<PAGE> 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 3, 2000 REGISTRATION NO. 333- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 MCM CAPITAL GROUP, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER) DELAWARE 48-1090909 (STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.) 500 WEST FIRST STREET, HUTCHINSON, KANSAS 67501-5222 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICE) (ZIP CODE) MCM CAPITAL GROUP, INC. 1999 EQUITY PARTICIPATION PLAN (FULL TITLE OF PLAN) ROBERT E. KOE PRESIDENT AND CHIEF EXECUTIVE OFFICER MCM CAPITAL GROUP, INC. 500 WEST FIRST STREET HUTCHINSON, KANSAS 67501-5222 (NAME AND ADDRESS OF AGENT FOR SERVICE) (800) 759-0327 (TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) CALCULATION OF REGISTRATION FEE
<TABLE> <CAPTION> PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AMOUNT OF TITLE OF SECURITIES AMOUNT TO BE PRICE PER SHARE(2) AGGREGATE OFFERING REGISTRATION TO BE REGISTERED REGISTERED(1) PRICE(2) FEE <S> <C> <C> <C> <C> Common Stock 250,000 $1.8906 $472,650 $125 $.01 par value </TABLE>
(1) In the event of a stock split, stock dividend or similar transaction involving the Registrant's Common Stock, in order to prevent dilution, the number of shares registered shall be automatically increased to cover the additional shares in accordance with Rule 416(a) under the Securities Act of 1933. (2) Estimated solely for the purpose of calculating the amount of the registration fee, pursuant to Rules 457(c) and 457(h) of the Securities Act of 1933 (the "Securities Act"), on the basis of the average of the high and low prices of the Registrant's Common Stock on April 28, 2000.
<PAGE> 2 PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS We will deliver the documents containing the information specified in Part I, Items 1 and 2, to participants in accordance with Form S-8 and Rule 428 under the Securities Act of 1933, as amended (the "Securities Act"). These documents and the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents have been filed by MCM Capital Group, Inc. (the "Registrant") with the Securities and Exchange Commission pursuant to the Securities Act of 1933 or the Securities Exchange Act of 1934 and are hereby incorporated by reference into this Registration Statement: (a) The Registrant's Form 10-K Report for the year ended December 31, 1999 and its Form 10-K/A Report filed May 1, 2000; (b) The Registrant's Form 8-K Report dated January 13, 2000; and (c) The description of the Registrant's capital stock contained in the Registrant's Registration Statement on Form 8-A, dated June 23, 1999, filed pursuant to Section 12(g) of the Securities Exchange Act of 1934. All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Our Restated Certificate of Incorporation provides that our directors shall not be personally liable to us or our stockholders for monetary damages for breach of fiduciary duty as a director, except for liability for: (i) any breach of the director's duty of loyalty to us or our stockholders; (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) liability for payments of dividends or stock purchases or redemptions in violation of Section 174 of the Delaware General Corporation Law; or (iv) any 2
<PAGE> 3 transaction from which the director derived an improper personal benefit. In addition, our Certificate of Incorporation provides that we will to the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits us to provide broader indemnification rights than such law permitted us to provide prior to such amendment), indemnify and hold harmless any person who was or is a party, or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of the fact that such person is or was our director or officer, or is or was serving at our request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (hereinafter an "Indemnitee") against expenses, liabilities and losses (including attorneys' fees, judgments, fines, excise taxes or penalties paid in connection with the Employee Retirement Income Security Act of 1974, as amended, and amounts paid in settlement) reasonably incurred or suffered by such Indemnitee in connection therewith; provided, however, that except as otherwise provided with respect to proceedings to enforce rights to indemnification, we will indemnify any such Indemnitee in connection with a proceeding (or part thereof) initiated by such Indemnitee only if such proceeding or part thereof was authorized in advance by our board of directors. The right to indemnification set forth above includes the right to require us to pay the expenses (including attorneys' fees) incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the Delaware General Corporation Law requires, an advancement of expenses incurred by an Indemnitee in his capacity as a director or officer (and not in any other capacity in which service was or is rendered by such Indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to us of an undertaking, by or on behalf of such Indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is not further right to appeal that such Indemnitee is not entitled to be indemnified for such expenses under this section or otherwise. The rights to indemnification and to the advancement of expenses conferred herewith are contract rights and continue as to an Indemnitee who has ceased to be a director, officer, employee or agent and inure to the benefit of the Indemnitee's heirs, executors and administrators. The Delaware General Corporation Law provides that indemnification is permissible only when the director, officer, employee, or agent acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the Registrant, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the conduct was unlawful. The Delaware General Corporation Law also precludes indemnification in respect of any claim, issue, or matter as to which an officer, director, employee, or agent shall have been adjudged to be liable to the Registrant unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine that, despite such adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. In addition, we have entered into and/or may enter into agreements to indemnify certain of our directors and officers to the fullest extent allowed by law, subject to certain exceptions. To the extent that our board or stockholders may in the future wish to limit or repeal our ability to provide indemnification to our officers and directors, such repeal or limitation may not be effective as to directors or officers who are parties to any indemnification agreements because their rights to full protection would be contractually assured by such agreements. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. 3
<TABLE> <CAPTION> Exhibit No. Description ----------- ----------- <S> <C> 3.1 Amended and Restated Certificate of Incorporation of the Registrant (1) 3.2 Bylaws of the Registrant(1) 5 Opinion of Snell & Wilmer L.L.P. 10.7 MCM Capital Group, Inc. 1999 Equity Participation Plan(1) 23.1 Consent of Ernst & Young LLP, Independent Auditors 23.2 Consent of Snell & Wilmer L.L.P. (Included in Exhibit 5) </TABLE>
----------- (1) Incorporated by reference to the Registrant's Registration Statement on Form S-1 (Registration No. 333-77483, effective July 8, 1999). ITEM 9. UNDERTAKINGS. (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. 4
<PAGE> 5 (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in such Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. 5
<PAGE> 6 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona, on May 2, 2000. MCM CAPITAL GROUP, INC., a Delaware corporation By: /s/ Robert E. Koe -------------------------------------------- Robert E. Koe President and Chief Executive Officer POWER OF ATTORNEY The Registrant and each person whose signature appears below constitutes and appoints Robert E. Koe, Gregory G. Meredith and Eric D. Kogan, and any agent for service named in this Registration Statement and each of them, his, her, or its true and lawful attorney-in-fact and agents, with full power of substitution and resubstitution, for him, her, or it and in his, her, or its name, place and stead, in any and all capacities, to sign and file (i) any and all amendments (including post-effective amendments) to this Registration Statement, with all exhibits thereto, and other documents in connection therewith, and (ii) a registration statement, and any and all amendments thereto, relating to the offering covered hereby filed under Rule 462(b) under the Securities Act of 1933, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he, she, or it might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the date indicated.
<TABLE> <CAPTION> Name and Signature Title Date ------------------ ----- ---- <S> <C> <C> /s/ Robert E. Koe President, Chief Executive Officer May 2, 2000 ----------------------------- and Director Robert E. Koe (Principal Executive Officer) /s/ R. Brooks Sherman, Jr. Chief Financial Officer and May 2, 2000 ----------------------------- Treasurer R. Brooks Sherman, Jr. (Principal Financial and Accounting Officer) /s/ Frank Chandler Director May 2, 2000 ----------------------------- Frank Chandler /s/ Eric D. Kogan Director May 2, 2000 ----------------------------- Eric D. Kogan /s/ Peter W. May Director May 2, 2000 ----------------------------- Peter W. May </TABLE>
<TABLE> <S> <C> <C> /s/ James D. Packer Director May 2, 2000 ----------------------------- James D. Packer /s/ Nelson Peltz Director May 2, 2000 ----------------------------- Nelson Peltz /s/ Robert M. Whyte Director May 2, 2000 ----------------------------- Robert M. Whyte </TABLE>
<PAGE> 8 EXHIBIT INDEX
<TABLE> <CAPTION> Exhibit Number Description Method of Filing -------------- ----------- ---------------- <S> <C> <C> 3.1 Restated Certificate of Incorporated by reference to the Incorporation of the Registrant Registrant's Registration Statement on Form S-1 (Registration No. 333-77483, effective July 8, 1999). 3.2 Bylaws of the Registrant Incorporated by reference to the Registrant's Registration Statement on Form S-1 (Registration No. 333-77483, effective July 8, 1999). 5 Opinion of Snell & Wilmer L.L.P. Filed herewith 10.7 MCM Capital Group, Inc. 1999 Equity Incorporated by reference to the Participation Plan Registrant's Registration Statement on Form S-1 (Registration No. 333-77483, effective July 8, 1999). 23.1 Consent of Ernst & Young LLP, Filed herewith Independent Auditors 23.2 Consent of Snell & Wilmer L.L.P. Included in Exhibit 5 </TABLE>
<PAGE> 1 EXHIBIT 5 May 2, 2000 MCM Capital Group, Inc. 500 West First Street Hutchinson, Kansas 67501-5222 RE: MCM CAPITAL GROUP, INC. 1999 EQUITY PARTICIPATION PLAN Ladies and Gentlemen: We have acted as counsel to MCM Capital Group, Inc., a Delaware corporation (the "Company"), in connection with its Registration Statement on Form S-8 (the "Registration Statement") filed under the Securities Act of 1933, as amended, relating to the registration of 250,000 shares of its Common Stock, $.01 par value (the "Shares"), issuable pursuant to the Company's 1999 Equity Participation Plan (the "Plan"). In that connection, we have examined such documents, corporate records, and other instruments as we have deemed necessary or appropriate for purposes of this opinion, including the Certificate of Incorporation, as amended, and the Bylaws of the Company. Based upon the foregoing, we are of the opinion that the Shares, when issued and sold in accordance with the terms of the Plan, will be validly issued, fully paid, and nonassessable. The opinions expressed herein are limited solely to the General Corporation Law of the State of Delaware. We express no opinion on the laws of any other jurisdiction or the applicability or effect of any such laws or principles.
The opinions expressed herein are based upon the law and the other matters in effect on the date hereof, and we assume no obligation to review or supplement this opinion should such law be changed by legislative action, judicial decision, or otherwise, or should any facts or other matters upon which we have relied be changed. We hereby consent to the use of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ SNELL & WILMER L.L.P. 9
<PAGE> 1 EXHIBIT 23.1 Consent of Independent Auditors We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the MCM Capital Group, Inc. 1999 Equity Participation Plan of our report dated February 25, 2000 (except for Note 16 as to which the date is March 31, 2000) with respect to the consolidated financial statements of MCM Capital Group, Inc. included in the Annual Report (Form 10-K) for the year ended December 31, 1999. /s/ Ernst & Young LLP Ernst & Young LLP Kansas City, Missouri May 2, 2000