As filed with the Securities and Exchange Commission on January 9, 2004
Registration No.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CREDIT ACCEPTANCE CORPORATION
(Exact name of Registrant as Specified in Its Charter)
Michigan 38-1999511
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
25505 West Twelve Mile Road, Suite 3000
Southfield, Michigan 48034
(Address of Principal Executive Offices, including Zip Code)
Credit Acceptance Corporation 401(K) Profit Sharing Plan and Trust
(Full Title of the Plan)
Brett A. Roberts
Credit Acceptance Corporation
25505 West Twelve Mile Road, Suite 3000
Southfield, Michigan 48034
(Name and Address of Agent for Service)
Telephone Number, Including Area Code, of Agent for Service: (248) 353-2700
Copy to:
Mark A. Metz, Esq.
Dykema Gossett PLLC
400 Renaissance Center
Detroit, Michigan 48243-1668
(313) 568-5434
CALCULATION OF REGISTRATION FEE
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Title of Securities Amount To Be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Per Aggregate Offering Registration Fee
Share Price
------------------------ ---------------------- ---------------------- ---------------------- ----------------------
Common Stock* 200,000 shares* $15.26** $3,052,000** $247**
*The number of shares may be adjusted to prevent dilution from stock splits,
stock dividends and similar transactions. The Registration Statement covers any
such additional shares in accordance with Rule 416(a). This Registration
Statement also registers, pursuant to Rule 416, an indeterminate amount of
interests to be offered or sold pursuant to the 401(K) Profit Sharing Plan and
Trust described herein.
**Estimated solely for purposes of computing the registration fee, at the
average of the high and low sale price per share on January 5, 2004 as reported
on the Nasdaq Stock Market, pursuant to Rule 457(h).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Credit Acceptance Corporation (the
"Company") and the 401(K) Profit Sharing Plan and Trust (the "Plan") with the
Securities and Exchange Commission (the "Commission") are incorporated by
reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 2002;
(b) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 2003, June 30, 2003 and September 30, 2003;
(c) The Plan's Annual Report on Form 11-K for the fiscal year
ended December 31, 2002; and
(d) The description of the Common Stock of the Company under
"Description of Capital Stock" contained in the Registration
Statement on Form S-1 (No. 33-46772), incorporated by
reference into the Company's Registration Statement on Form
8-A, as amended, filed on May 12, 1992 under the Securities
Exchange Act of 1934.
All documents filed by the Company and the Plan with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934 subsequent to the date hereof and prior to the filing of a
post-effective amendment which indicates that all securities being offered have
been sold or which deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference and to be a part hereof from the date of
filing of each such document.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
MICHIGAN BUSINESS CORPORATION ACT. The Company is organized under the
Michigan Business Corporation Act (the "MBCA") which, in general, empowers
Michigan corporations to indemnify a person who was or is a party or is
threatened to be made a party to an action, suit or proceeding, whether civil,
criminal, administrative or investigative and whether formal or informal, other
than an action by or in the right of the corporation, by reason of the fact that
such person is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
partner, trustee, employee or agent of another enterprise, against expenses,
including attorneys' fees, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred in connection therewith if the
person acted in good faith and in a manner reasonably believed to be in or not
opposed to the best interests of the corporation or its shareholders and, with
respect to a criminal action or proceeding, if the person had no reasonable
cause to believe his or her conduct was unlawful.
The MBCA also empowers Michigan corporations to provide similar
indemnity to such a person for expenses, including attorneys' fees, and amounts
paid in settlement actually and reasonably incurred by the person in connection
with actions or suits by or in the right of the corporation if the person acted
in good faith and in a manner the person
reasonably believed to be in or not opposed to the interests of the corporation
or its shareholders, except in cases where the person has been found liable to
the corporation and the court has not determined that the person is fairly and
reasonably entitled to indemnification in view of all relevant circumstances. If
a person is successful in defending against a derivative action or third-party
action, the MBCA requires that a Michigan corporation indemnify the person
against expenses incurred in the action.
The MBCA also permits a Michigan corporation to purchase and maintain
on behalf of such a person insurance against liabilities incurred in such
capacities.
The MBCA further permits Michigan corporations to include a provision
in their articles of incorporation eliminating or limiting the personal
liability of directors to the corporation or its shareholders for money damages
for a breach of their fiduciary duty other than for any of the following: (i)
the amount of a financial benefit received by a director to which he or she is
not entitled; (ii) intentional infliction of harm on the corporation or the
shareholders; (iii) a violation of Section 551 of the MBCA; or (iv) an
intentional criminal act. If such a provision is included in the corporation's
articles of incorporation, the corporation may indemnify its directors without a
determination that the applicable standard of conduct has been met, except where
(i) the director received a financial benefit to which he or she is not
entitled; (ii) intentionally inflicted harm on the corporation or the
shareholders; (iii) violated Section 551 of the MBCA; or (iv) intentionally
committed a criminal act.
ARTICLES OF INCORPORATION. As permitted by the MBCA, the Company's
Articles of Incorporation limit the liability of directors to the Company and
its shareholders for monetary damages to the extent provided by law. As a
result, shareholders of the Company may be unable to recover monetary damages
against directors for actions taken by them which constitute negligence or gross
negligence or which are in violation of their fiduciary duties, although it may
be possible to obtain injunctive or other equitable relief with respect to such
actions.
The Articles of Incorporation also obligate the Company to indemnify
directors and officers to the fullest extent permitted by law. If a claim for
indemnity is not paid in full by the Company within thirty days after a written
claim has been received, the director or officer may bring suit against the
Company to recover the unpaid amount of the claim and, if successful, is also
entitled to be paid the expense of prosecuting the claim. In any action brought
by the indemnitee to enforce a right under the indemnification provisions in the
Articles of Incorporation or by the Company to recover payments by the Company
of advances, the burden of proof shall be on the Company.
BYLAWS. Similarly, the Company's Bylaws require the Company to
indemnify its directors and officers to the fullest extent permitted by law.
Such indemnification will be provided if such persons acted in good faith and in
a manner they reasonably believed to be in or not opposed to the best interests
of the Company or its shareholders, or in respect to a criminal proceeding, had
no reasonable cause to believe such conduct was unlawful. The Company's Bylaws
also provide that the Company may provide insurance on behalf of any person who
is or was a director or officer of the Company, or was at the request of the
Company serving as a director, officer, employee or agent of another entity,
with respect to any liability incurred or asserted by or against them as a
result of their status with the Company or such other entity. The Company has
obtained such insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are part of this Registration Statement:
5 IRS Determination Letter
23 Consent of Deloitte & Touche LLP
24 Power of Attorney (see "Signatures")
99.1 Credit Acceptance Corporation 401(K) Profit Sharing Plan and
Trust
99.2 Administrative Rules for Investments in Employer Stock
ITEM 9. UNDERTAKINGS.
(1) The undersigned registrant hereby undertakes 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 this 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
this registration statement; (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
registration statement or any material change to such information in this
registration statement; provided, however, that paragraphs (1)(i) and (1)(ii) do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this registration statement.
(2) The undersigned registrant hereby undertakes that, for the purpose
of determining any liability under the Securities Act of 1933, each
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) The undersigned registrant hereby undertakes 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) The undersigned registrant hereby undertakes that, for the purpose
of determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or 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.
(5) 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 the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the 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.
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 Southfield, State of Michigan on January 9, 2004.
CREDIT ACCEPTANCE CORPORATION
By: /s/ BRETT A. ROBERTS
--------------------
Brett A. Roberts
Chief Executive Officer
POWER OF ATTORNEY
Each of the undersigned whose signature appears below hereby
constitutes and appoints Brett A. Roberts, Douglas W. Busk and Charles A. Pearce
and each of them acting alone, his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, under the Securities Act
of 1933, as amended, and confirming all that each such attorney-in-fact or his
or her substitute may 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 indicated on January 9, 2004.
Signature Title
/s/ BRETT A. ROBERTS Chief Executive Officer and Director
---------------------------- (Principal Executive Officer)
Brett A. Roberts
/s/ DOUGLAS W. BUSK Treasurer and Chief Financial Officer
---------------------------- (Principal Financial and Accounting Officer)
Douglas W. Busk
/s/ HARRY E. CRAIG Director
----------------------------
Harry E. Craig
/s/ DONALD A. FOSS Director and Chairman of the Board
----------------------------
Donald A. Foss
/s/ SAM M. LAFATA Director
----------------------------
Sam M. LaFata
/s/ DANIEL P. LEFF Director
----------------------------
Daniel P. Leff
/s/ THOMAS N. TRYFOROS Director
----------------------------
Thomas N. Tryforos
Pursuant to the requirements of the Securities Act of 1933, the Plan
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Southfield, State of
Michigan on January 9, 2004.
CREDIT ACCEPTANCE CORPORATION
401(K) PROFIT SHARING PLAN AND TRUST
By: /s/ Charles A. Pearce
---------------------------
Its: Plan Administrator
INDEX TO EXHIBITS
Exhibit
Number Description
5 IRS Determination Letter
23 Consent of Deloitte & Touche LLP
24 Power of Attorney (see "Signatures")
99.1 Credit Acceptance Corporation 401(K) Profit Sharing Plan and
Trust
99.2 Administrative Rules for Investments in Employer Stock