As filed
with the Securities and Exchange Commission on October 29,
2008 Registration No. 333-152969
U.S.
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
AMENDMENT NO.
1 to FORM S-3 REGISTRATION STATEMENT
Under The
Securities Act Of 1933
Consumer
Portfolio Services, Inc.
(Exact
name of registrant as specified in its charter)
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California
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33-0459135
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(State
or other jurisdiction of incorporation or organization)
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(I.R.S.
Employer Identification No.)
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16355
Laguna Canyon Road, Irvine, California 92618
(Address,
including zip code, and telephone number, including area code, of registrant’s
principal executive offices)
Charles
E. Bradley, Jr.
Consumer
Portfolio Services, Inc.
16355
Laguna Canyon Road
Irvine,
California 92618
Telephone:
(949) 753-6800, Fax: (949) 753-6897
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
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Copies
to:
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Mark
Creatura, Esq.
Consumer
Portfolio Services, Inc.
16355
Laguna Canyon Road
Irvine,
California 92618
Telephone:
(949) 753-6800
Fax:
(815) 927-0292
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Alexander
D. Lynch, Esq.
Weil,
Gotshal & Manges LLP
767
Fifth Avenue
New
York, New York 10153
Telephone:
(212) 310-8971
Fax:
(212) 310-8007
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Mitchell
S. Cohen, Esq.
Irell
& Manella LLP
1800
Avenue of the Stars, Suite 900
Los
Angeles, California 90067
Telephone:
(310) 277-1010
Fax:
(310) 203-7199
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Approximate
date of commencement of proposed sale to the public: From time to time after the
effective date of this registration statement as determined by the selling
shareholders.
If the
only securities being registered on this form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box. [ ]
If any of
the securities being registered on this form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following
box. [x]
If this
form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If this
form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this
form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. [ ]
If this
form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. [ ]
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Check one)
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Large
accelerated filer
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[ ] | Accelerated filer | [X] |
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Non-accelerated
filer
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[ ] | Smaller reporting company | [ ] |
(Do not
check if a smaller reporting company)
CALCULATION
OF REGISTRATION FEE
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Title
of Each Class of
Securities
to Be
Registered
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Amount
to be
Registered
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Proposed
Maximum
Offering
Price Per Unit
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Proposed
Maximum
Aggregate
Offering Price
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Amount
of
Registration
Fee
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Common
Stock, no par value
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3,725,000
shares (1)
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$
2.035 (2)
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$
7,580,375 (2)
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$297.91
(3)
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Common
Stock, no par value
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1,848,309
shares (4)
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$
1.255 (5)
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$
2,319,628 (5)
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$91.16
(6)
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(1) Includes
2,500,000 shares of common stock issuable upon exercise of an outstanding
warrant. In addition to the shares of common stock set forth in the table above,
pursuant to Rule 416 under the Securities Act, an indeterminate number of
additional shares of common stock are issuable to prevent dilution resulting
from stock splits, stock dividends or similar transactions, and, in such an
event, the number of shares registered hereby shall be automatically increased
to cover the additional shares.
(2) Estimated solely
for the purpose of calculating the registration fee pursuant to Rule 457(c)
under the Securities Act, based on the average of high and low prices reported
for the registrant’s Common Stock by the Nasdaq Global Market on August 8,
2008.
(3) Previously
paid.
(4) Comprises
1,848,309 shares of common stock issuable upon exercise of outstanding warrants.
In addition to the shares of common stock set forth in the table above, pursuant
to Rule 416 under the Securities Act, an indeterminate number of additional
shares of common stock are issuable to prevent dilution resulting from stock
splits, stock dividends or similar transactions, and, in such an event, the
number of shares registered hereby shall be automatically increased to cover the
additional shares.
(5) Estimated solely
for the purpose of calculating the registration fee pursuant to Rule 457(c)
under the Securities Act, based on the average of high and low prices reported
for the registrant’s Common Stock by the Nasdaq Global Market on
October 27, 2008.
(6) Previously
paid.
The
registrant hereby amends this registration statement on such date or dates as
may be necessary to delay its effective date until it shall file a further
amendment which specifically states that this registration statement shall
become effective in accordance with Section 8(a) of the Securities Act of 1933
or until the registration statement shall become effective on such date as the
Commission, acting pursuant to Section 8(a), may determine.
*The
information in this prospectus is not complete and may be changed. We have filed
a registration statement with the Securities and Exchange Commission relating to
the common stock. The common stock may not be sold nor may offers to buy be
accepted prior to the time the registration statement becomes effective. This
prospectus is not an offer to sell the common stock, and neither we nor the
selling shareholders are soliciting offers to buy the common stock in any
jurisdiction where the offer or sale is not permitted.
Subject
to Completion, dated October 29, 2008
PROSPECTUS
Consumer
Portfolio Services, Inc.
5,573,309
Shares
Common
Stock
Who is offering the common stock and
receiving proceeds from any sales. The selling shareholders identified in
this prospectus may from time to time sell up to an aggregate of 5,573,309
shares of our common stock. Of this amount, 1,225,000 shares of our common stock
are held by one of the selling shareholders and 4,348,309 shares of the common
stock are issuable upon exercise of currently outstanding
warrants. The selling shareholders will receive all of the proceeds
from any such sales. We will not receive any of the proceeds from the
sale of the shares offered by this prospectus, but we may receive proceeds upon
the exercise of the warrants. See “Use of Proceeds.”
How sales will be made; price of
shares. The selling shareholders may sell all or any portion of the
shares of common stock at various times and in various types of transactions,
including sales in the open market, sales in negotiated transactions and sales
by a combination of these methods. Shares may be sold at the market price of the
common stock at the time of a sale, at prices relating to the market price over
a period of time, or at prices negotiated with the buyers of shares. For
additional information on the methods of sale, see “Plan of
Distribution.”
Fees and expenses. The selling
shareholders will pay all brokerage fees and commissions and similar
sale-related expenses. We are paying expenses relating to the
registration of the shares with the Securities and Exchange
Commission.
Where our stock is traded. Our
common stock is traded on the Nasdaq Global Market under the symbol “CPSS.” On
October 28, 2008, the last reported sale price of our common stock on the Nasdaq
Global Market was $1.14 per share.
Contacting us. Our principal
executive offices are located at 16355 Laguna Canyon Road, Irvine, California
92618, and our telephone number is (949) 753-6800.
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Investing
in our common stock involves a high degree of risk.
See Risk
Factors on page 3 of this
prospectus.
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Neither
the Securities and Exchange Commission nor any state securities commission or
regulatory authority has approved or disapproved of these securities or passed
upon the accuracy or adequacy of this prospectus. Any representation to the
contrary is a criminal offense.
The date
of this prospectus is
,
2008.
TABLE
OF CONTENTS
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Risk
Factors
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3
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Forward-Looking
Statements
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3
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Use
of Proceeds
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3
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Selling
Shareholders
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4
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Transactions
with the Selling Shareholders
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4
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Plan
of Distribution
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6
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Legal
Matters
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8
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Experts
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8
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Where
You Can Find More Information
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8
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Documents
Incorporated by Reference
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9
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You
should rely only on the information contained or incorporated by reference in
this prospectus. Neither we nor any selling shareholder has authorized any other
person to provide you with different information. We have supplied all
information contained or incorporated by reference in this prospectus relating
to Consumer Portfolio Services, Inc. and our subsidiaries. Each selling
shareholder has supplied certain information contained in this prospectus
relating to that selling shareholder. If anyone provides you with different or
inconsistent information, you should not rely on it. Neither we nor the selling
shareholders are making an offer to sell our common stock in any jurisdiction
where the offer or sale is not permitted. You should assume the information
appearing in this prospectus and the documents incorporated by reference is
accurate only as of the date on the front of those documents. Our business,
financial condition, results of operations and prospects may have changed since
that date.
2
RISK
FACTORS
Purchase
of the offered shares involves a high degree of risk. See the risk factors
described in our Annual Report on Form 10-K for the most recent fiscal year, and
any changes to those risk factors included in subsequent quarterly reports on
Form 10-Q. All of those reports are incorporated by reference in this
prospectus. The risks described in any document incorporated by reference are
not the only ones we face, but are considered to be the most significant.
Additional risks and uncertainties not presently known to us or that we
currently believe to be less significant may also adversely affect our business
and your investment in our common stock.
Before
making an investment decision, you should carefully consider these risks as well
as other information we include or incorporate by reference in this prospectus,
including our financial statements and related notes. These risks could
materially affect our business, results of operations or financial condition and
cause the value of our common stock to decline. You could lose all or part of
your investment.
FORWARD-LOOKING
STATEMENTS
Discussions
of certain matters contained in this prospectus and incorporated herein by
reference may constitute forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended (the “Securities Act”),
and Section 21E of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), and as such, may involve risks and uncertainties. These
forward-looking statements relate to, among other things, expectations of the
business environment in which we operate, projections of future performance,
perceived opportunities in the market and statements regarding our mission and
vision. You can generally identify forward-looking statements as statements
containing the words “will,” “would,” “believe,” “may,” “could,” “expect,”
“anticipate,” “intend,” “estimate,” “assume” or other similar expressions. Our
actual results, performance and achievements may differ materially from the
results, performance and achievements expressed or implied in such
forward-looking statements. The discussions of “Risk Factors” contained in our
Annual Report on Form 10-K and in certain other reports identify some of the
factors that might cause such a difference, including the
following:
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changes
in general economic conditions;
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changes
in interest rates;
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availability
or unavailability of short-term and long-term
financing;
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our
ability to generate sufficient operating and financing cash
flows;
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competition;
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changes
in the levels of losses incurred on receivables; and
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regulatory
requirements.
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Forward-looking
statements are not guarantees of performance. They involve risks, uncertainties
and assumptions. Actual results may differ from expectations due to many factors
beyond our ability to control or predict, including those described herein and
in documents incorporated by reference in this prospectus. For these statements,
we claim the protection of the safe harbor for forward-looking statements
contained in the Private Securities Litigation Reform Act of 1995.
We
undertake no obligation to update any forward-looking information. You are
advised to consult any additional disclosure we make in our periodic reports
filed with the Securities and Exchange Commission (the “SEC”). See “Where You
Can Find More Information” and “Documents Incorporated by
Reference.”
3
The
selling shareholders acquired the shares of common stock offered by this
prospectus, or the rights to acquire such shares upon exercise of warrants, in
the transactions described below under the caption "Transactions with the
Selling Shareholders." The registration of these shares does not necessarily
mean that the selling shareholders will sell all or any of the shares. None of
the selling shareholders has, or within the past three years has had, any
position, office or material relationship with us or any of our predecessors or
affiliates, except as indicated below under the caption "Transactions with the
Selling Shareholders."
The
following table sets forth the names of the selling shareholders, the number of
shares of common stock beneficially owned by the selling shareholders
immediately prior to the date of this prospectus, assuming, where applicable,
exercise of their warrants in full, and the maximum number of shares that may be
offered pursuant to this prospectus. The table also provides information
regarding the beneficial ownership of our common stock by the selling
shareholders as adjusted to reflect the assumed sale of all of the shares
offered by this prospectus.
The
information provided in the table below with respect to the selling shareholders
has been obtained from the selling shareholders and we have not sought to verify
this information.
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Selling
Shareholder
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Number
of Shares Beneficially Owned Prior to the Offering
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Number
of Shares Being Offered
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Number
of Shares Beneficially Owned
After
Completion
of
the Offering (3)
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Citigroup
Financial Products Inc. (1)
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2,500,000
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2,500,000
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None
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Levine
Leichtman Capital Partners IV, L.P. (2)
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3,073,309
(4)
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3,073,309
(4)
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None
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(1) The
named shareholder is an indirect wholly owned subsidiary of Citigroup
Inc. Other affiliates of Citigroup Inc. may hold, and from time to
time do hold, shares of our common stock, in fiduciary and other
capacities. Such holdings are not reported in this table, and such
shares are not included in this offering. Citigroup Financial
Products Inc. is an affiliate of Citigroup Global Markets Inc. (“CGMI”), a
registered broker-dealer, and acquired the warrant and underlying shares of the
common stock listed above in the ordinary course of business and at the time of
acquisition did not have any arrangements or understandings, directly or
indirectly, with any party to distribute the warrant or the shares of common
stock issuable upon exercise of the warrant. The address for the named
shareholder is 388 Greenwich Street, New York, New York 10013.
(2) The
named shareholder is a Delaware limited partnership. LLCP Partners IV
GP, LLC is the sole general partner of the named shareholder, and Levine
Leichtman Capital Partners, Inc. is the sole manager of LLCP Partners IV GP,
LLC. Arthur E. Levine and Lauren B. Leichtman are the controlling
shareholders of Levine Leichtman Capital Partners, Inc. The named
shareholder has informed us that it is not a registered broker-dealer or an
affiliate of a registered broker-dealer. The address for the named shareholder
and each of the persons and entities identified in this footnote is 335 N. Maple
Drive, Suite 240, Beverly Hills, California 90210.
(3) Assumes
the sale by the selling shareholders of all the shares of common stock available
for resale under this prospectus.
(4) Includes
1,848,309 shares of common stock that are issuable upon exercise of certain
warrants held by the named shareholder. The number of shares issuable
pursuant to these warrants is subject to adjustment pursuant to the
anti-dilution provisions of the warrants.
We refer
elsewhere to Citigroup Financial Products Inc. as the "Citigroup selling
shareholder," and to Levine Leichtman Capital Partners IV, L.P. as the "LLCP
selling shareholder."
On July
10, 2008, we and our wholly owned subsidiary Folio Funding II, LLC, as borrower,
agreed with the Citigroup selling shareholder to amend and restate the
agreements governing a pre-existing revolving residual credit facility. The
Citigroup selling shareholder is the note purchaser and administrative agent of
that credit facility.
Under the
original residual facility, we sold eligible residual interests in
securitizations to the borrower, which in turn pledged the residuals as
collateral for floating rate borrowings from the note purchaser. The amount
available
4
for
borrowing was computed by the administrative agent using a valuation methodology
of the residuals, and was subject to an overall maximum principal amount of $120
million. The indebtedness of the borrower was represented by (i) a $60 million
Class A-1 Variable Funding Note, and (ii) a $60 million Class A-2 Term Note. The
facility's revolving feature was to expire by its terms on July 10, 2008, and
the Class A-1 Note was to be due at that time. The Class A-2 Note was to be due
on July 10, 2009.
With the
amendments to this facility, we prepaid a portion of the outstanding notes,
reducing the outstanding principal balance to $70 million, and the notes have
been re-designated as (i) a $10 million Class A-1 Term Note, and (ii) a $60
million Class A-2 Term Note. Approximately $4 million of the principal
prepayment represented the nominal purchase price of a warrant to
purchase 2,500,000 shares of our common stock, which was issued directly to
CGMI. The warrant was subsequently transferred to the Citigroup selling
shareholder. The Class A-1 Term Note and Class A-2 Term Note provide for minimum
required levels of amortization, and are due in June 2009. However, we also
received an option, if certain conditions are met, to extend the maturity for an
additional year to June 2010. The 2,500,000 shares
issuable upon exercise of the warrant described above are the shares to be sold
by the Citigroup selling shareholder in this offering.
On
September 26, 2008, we sold approximately $198.7 million in adjusted principal
amount of automobile purchase receivables to our wholly owned subsidiary CALT
SPE, LLC, which then transferred those receivables to Auto Loan Trust, a
Delaware statutory trust. The purchase price was funded by Auto Loan
Trust's issuance and sale of structured notes. An affiliate of the Citigroup
selling shareholder purchased 95% of the notes, and we purchased the remaining
5%.
The
Citigroup selling shareholder and certain of its affiliates have provided, and
may in the future provide, investment banking, financial advisory or commercial
banking services to us, for which they have received; and may in the future
receive, compensation in such amounts and forms as may be determined by
negotiation.
Transactions
with the LLCP Selling Shareholder
On June
30, 2008, we entered into a Securities Purchase Agreement and related agreements
with the LLCP selling shareholder, pursuant to which the LLCP selling
shareholder purchased a $10 million five-year note issued by us. The
indebtedness to the LLCP selling shareholder is secured by substantially all of
our assets, though not by the assets of our special-purpose financing
subsidiaries. Certain other subsidiaries of ours (CPS Marketing, Inc., CPS
Leasing, Inc., Mercury Finance Company LLC and TFC Enterprises LLC) have
guarantied our obligations to the LLCP selling shareholder.
In
connection with the Securities Purchase Agreement, we paid to the LLCP selling
shareholder a closing fee of $1.1 million and issued to the LLCP selling
shareholder (i) 1,225,000 shares of our common stock, (ii) a warrant that
represented the right to purchase, at the time of issuance, 275,000 shares of
our common stock, at a nominal exercise price, and (iii) a warrant that
represented the right to purchase, at the time of issuance, 1,500,000 shares of
our common stock, at an exercise price of $2.573 per share. The
number of shares subject to each warrant and the exercise price of each warrant
are subject to certain adjustments contained in the
warrants. Exercise of the warrants was contingent upon our obtaining
the approval of our shareholders, which we obtained on September 16,
2008.
Pursuant
to the anti-dilution provisions of the LLCP selling shareholder’s warrants, our
July 10 transactions with the Citigroup selling shareholder, described above,
resulted in a change in the number of shares issuable upon exercise of the first
warrant from 275,000 to 283,985, and upon exercise of the second warrant from
1,500,000 to 1,564,324. The exercise price of the second warrant was
also adjusted, from $2.573 per share to $2.4672 per share.
The
3,073,309 shares issued or issuable as described above are the shares to be sold
by the LLCP selling shareholder in this offering.
Under the
Securities Purchase Agreement, subject to the satisfaction of certain terms and
conditions, the LLCP selling shareholder also agreed to purchase an additional
$15 million note to be issued by us. That obligation was subject to a number of
conditions being satisfied, including, without limitation, a successful
amendment and restatement of our indebtedness to CGMI, described above. Those
conditions were satisfied and the additional note was issued on July 10, 2008.
The additional note has substantially the same terms as the $10 million
note.
In
connection with the Securities Purchase Agreement, we entered into an Investor
Rights Agreement with the LLCP selling shareholder that granted the LLCP selling
shareholder certain monitoring and other rights, including the right to cause an
individual designated by the LLCP selling shareholder to be nominated and
elected to our board of directors. In addition, the Investor Rights
Agreement granted to the LLCP selling shareholder rights of first
5
refusal
with respect to future issuances of equity securities by us and contains
restrictions on our ability (and the ability of our subsidiaries) to issue
equity securities.
Affiliates
of the LLCP selling shareholder have purchased other senior secured debt
securities from the Company, and have held as much as 4.5 million shares of the
Company's common stock, at various times prior to the transactions described
above. No such debt securities had been outstanding since July 2007, and no such
shares had been held since December 2007. The LLCP selling shareholder or its
affiliates may in the future provide us with financial advisory or
other services, for which it may receive compensation in such amounts and forms
as may be determined by negotiation.
PLAN
OF DISTRIBUTION
We have
been advised that the shares may be offered and sold by or for the account of
the selling shareholders (or their pledges, donees, transferees, or successors
in interest), from time to time as market conditions permit, on the Nasdaq
Global Market, any other exchange on which the shares may be listed, over the
counter, or otherwise, at prices and on terms then prevailing or in negotiated
transactions, and that the shares may be sold by one or more of the following
methods, without limitation:
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purchases
by underwriters, brokers, dealers, and agents who may receive compensation
in the form of underwriting discounts, concessions, or commissions from
the selling shareholders and/or the purchasers of the shares for whom they
may act as agent;
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one
or more block trades in which a broker or dealer so engaged will attempt
to sell the shares as agent, but may position and resell a portion of the
block as principal to facilitate the transaction or, in crosses, in which
the same broker acts as agent on both sides;
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purchases
by a broker or dealer (including a specialist or market maker) as
principal and resale by such broker or dealer for its account pursuant to
this prospectus;
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ordinary
brokerage transactions and transactions in which the broker solicits
purchasers;
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face-to-face
transactions between sellers and purchasers without a
broker-dealer;
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the
pledge of shares as security for any loan or obligation, including pledges
to brokers or dealers who may from time to time effect distributions of
the shares or other interests in the shares;
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short
sales or transactions to cover short sales relating to the
shares;
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distributions
to creditors, equity holders, partners, and members of the selling
shareholders;
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transactions
in options, swaps, or other derivatives (whether exchange listed or
otherwise);
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sales
in other ways not involving market makers or established trading markets,
including direct sales to institutions or individual purchasers;
and
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sales
in other ways not involving market makers or established trading markets,
including direct sales to institutions or individual purchasers;
and
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any
combination of the foregoing or by any other legally available
means.
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The
selling shareholders may enter into sale, forward sale, and derivative
transactions with third parties, or sell securities not covered by this
prospectus to third parties in privately negotiated transactions. If the
applicable prospectus supplement indicates, in connection with those sale,
forward sale, or derivative transactions, the third parties may sell securities
covered by this prospectus and the applicable prospectus supplement, including
in short sale transactions and by issuing securities that are not covered by
this prospectus but are exchangeable for or represent beneficial interests in
the shares. The third parties may use shares received under those sale,
forward sale, or derivative arrangements or shares pledged by the selling
shareholders or borrowed from the selling shareholders or others to settle such
third party sales or to close out any related open borrowings of shares.
The third parties may deliver this prospectus in connection with any such
transactions. Any third party in such sale transactions will be an
underwriter and will be identified in the applicable prospectus supplement (or a
post-effective amendment to the registration statement of which this prospectus
forms a part). In addition, the selling shareholders may enter into
hedging transactions with broker-dealers in connection with distributions of
shares or otherwise. In those transactions, broker-dealers may engage in short
sales of shares in the course of hedging the positions they assume with the
selling shareholders. The selling shareholders also may sell shares short
and redeliver shares to close out
6
such
short positions. The selling shareholders may also enter into option or
other transactions with broker-dealers that require the delivery to such
broker-dealers of the shares, which shares may be resold thereafter pursuant to
this prospectus. The selling shareholders also may loan or pledge shares,
and the borrower or pledgee may sell or otherwise transfer the shares so loaned
or pledged pursuant to this prospectus. Such borrower or pledgee also may
transfer those shares to investors in our securities or the shareholder’s
securities or in connection with the offering of other securities not covered by
this prospectus. From time to time, selling shareholders may also transfer
or donate their shares and each transferee or donee will be deemed to be a
selling shareholder for purposes of this prospectus. Any pledgee, secured
party, transferee, or donee that a selling shareholder intends to offer or sell
shares to through this prospectus will be named in a prospectus supplement, if
required.
In
addition, any shares of the selling shareholders covered by this prospectus
which qualify for sale pursuant to Rule 144 under the Securities Act may be
sold in open market transactions under Rule 144 rather than pursuant to
this prospectus.
Underwriters,
brokers, dealers, or agents may receive compensation in the form of commissions,
discounts, or concessions from the selling shareholders. Underwriters,
broker-dealers, or agents may also receive compensation from the purchasers of
shares for whom they act as agents or to whom they sell as principals, or
both. Compensation as to a particular underwriter, broker-dealer, or agent
might be in excess of customary commissions and will be in amounts to be
negotiated in connection with transactions involving shares. In effecting
sales, brokers or dealers engaged by the selling shareholders may arrange for
other brokers or dealers to participate.
At the
time a particular offer of shares is made by one or more of the selling
shareholders, a prospectus supplement, if required, will be distributed to set
forth the terms of the specific offering of the shares, including:
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the
name of the selling shareholders and other participating
broker-dealer(s);
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the
number of shares offered;
|
||
|
•
|
the
price at which such shares are being sold;
|
||
|
|
•
|
the
proceeds to the selling shareholders from the sale of such
shares;
|
|
|
|
•
|
the
specific plan of distribution for such shares;
|
|
|
|
•
|
the
names of the underwriters or agents, if any;
|
|
|
•
|
any
underwriting discounts, agency fees, or other compensation to underwriters
or agents;
|
||
|
•
|
any
discounts or concessions allowed or paid to dealers;
and
|
||
|
•
|
any
other facts material to the
transaction.
|
In
connection with the sale of the shares, the selling shareholders and such
brokers and dealers and any other participating brokers or dealers may be deemed
to be “underwriters” within the meaning of the Securities Act in connection with
such sales. Accordingly, any profits realized by the selling shareholders
and any compensation earned by such broker-dealers or agents may be deemed to be
underwriting discounts and commissions. Because a selling shareholder may
be deemed to be an “underwriter” within the meaning of Section 2(11) of the
Securities Act, the selling shareholders will be subject to the prospectus
delivery requirements of that act. We will make copies of this prospectus
(as it may be amended or supplemented from time to time) available to the
selling shareholders for the purpose of satisfying any prospectus delivery
requirements.
The
selling shareholders may sell the shares covered by this prospectus from time to
time, and may also decide not to sell all or any of the shares they are allowed
to sell under this prospectus. The selling shareholders will act
independently of us in making decisions regarding the timing, manner, and size
of each sale. There can be no assurance, however, that all or any of the
shares will be offered by the selling shareholders. We know of no existing
arrangements between any selling shareholders and any broker, dealer, finder,
underwriter, or agent relating to the sale or distribution of the
shares.
We will
not receive any of the proceeds of any sale of shares by the selling
shareholders. We will bear all of the expenses of the registration of this
offering under the Securities Act including, without limitation, registration
and filing fees, printing expenses, fees and disbursements of our counsel,
counsel for the selling shareholders and independent public accountants,
transfer taxes, fees of transfer agents and registrars, and costs of insurance,
if any. All underwriting discounts, selling commissions, and broker’s fees
applicable to the sale of any shares will be borne
7
by the
selling shareholders or by such persons other than us as agreed by and among the
selling shareholders and such other persons.
We and
the selling shareholders have agreed to indemnify each other against certain
liabilities under the Securities Act. In addition, we or the selling
shareholders may agree to indemnify any underwriters, brokers, dealers or agents
against, or contribute to any payments the underwriters, brokers, dealers or
agents may be required to make with respect to, civil liabilities, including
liabilities under the Securities Act. Underwriters, brokers, dealers and
agents and their affiliates are permitted to be customers of, engage in
transactions with, or perform services for us and our affiliates or the selling
shareholders and their affiliates in the ordinary course of
business.
The
selling shareholders will be subject to applicable provisions of the Exchange
Act and the associated rules and regulations under the Exchange Act,
including Regulation M, which provisions may limit the timing of purchases and
sales of shares by the selling shareholders. These restrictions may affect
the marketability of such shares.
In order
to comply with applicable securities laws of some states, the shares may be sold
in those jurisdictions only through registered or licensed brokers or
dealers. In addition, in certain states the shares may not be sold unless
they have been registered or qualified for sale in the applicable state or an
exemption from the registration or qualification requirements is
available.
In
connection with an underwritten offering of shares under this prospectus, the
underwriters may purchase and sell securities in the open market. These
transactions may include short sales, stabilizing transactions and purchases to
cover positions created by short sales. Short sales involve the sale by
the underwriters of a greater number of securities than they are required to
purchase in an offering. Stabilizing transactions consist of certain bids
or purchases made for the purpose of preventing or retarding a decline in the
market price of the securities while an offering is in progress.
The
underwriters also may impose a penalty bid. This occurs when a particular
underwriter repays to the underwriters a portion of the underwriting discount
received by it because the underwriters have repurchased securities sold by or
for the account of that underwriter in stabilizing or short-covering
transactions.
These
activities by the underwriters may stabilize, maintain or otherwise affect the
market price of the shares offered under this prospectus. As a result, the
price of the shares may be higher than the price that otherwise might exist in
the open market. If these activities are commenced, they may be
discontinued by the underwriters at any time. These transactions may be
effected on an automated quotation system or in the over-the-counter market or
otherwise.
To the
extent permitted by applicable law, this plan of distribution may be modified in
a prospectus supplement or otherwise.
LEGAL
MATTERS
The
validity of the common stock offered hereby has been passed upon by Mark
Creatura, our general counsel, 16355 Laguna Canyon Road, Irvine, California
92618. Mr. Creatura owns beneficially, or has rights to acquire under
our employee benefit plans, an aggregate of 1.0% of our common
stock.
The
consolidated financial statements of Consumer Portfolio Services, Inc. as of and
for the years ended December 31, 2007 and 2006 and for each of the three years
in the period ended December 31, 2007 have been incorporated by reference herein
in reliance upon the report of McGladrey & Pullen LLP, independent
registered public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
We file annual, quarterly and current reports, proxy statements and
other information with the SEC. You may read and copy any document we file at
the SEC’s Public Reference Room located at 100 F Street, N.E., Washington, D.C.
20549. You can also request copies of these documents, upon payment of a
duplicating fee, by writing to the
8
SEC.
Please call the SEC at 1-800-SEC-0330 for further information on the Public
Reference Room. Our SEC filings are also available to the public at no cost from
the SEC’s website at http://www.sec.gov, or from our website at
http://www.consumerportfolio.com. Other than our SEC filings, none of the
information on or hyperlinked from our website is incorporated by reference into
this prospectus.
DOCUMENTS
INCORPORATED BY REFERENCE
The SEC
allows us to “incorporate by reference” the information we file with the SEC,
which means that we can disclose important information to you by referring you
to those documents. The information incorporated by reference is considered to
be part of this prospectus. Information that we file with the SEC will
automatically update the information in this prospectus. In all cases, you
should rely on the later information over different information included in this
prospectus. We incorporate by reference the documents listed below
and any future filings made with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act:
(a)
Annual Report on Form 10-K for the year ended December 31,
2007;
(b)
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2008 and
June 30, 2008;
(c)
Current Reports on Form 8-K filed on April 15, 2008, July 7, 2008, July 16, 2008
(excluding item 2.02), October 2, 2008, and October 29, 2008;
(d) The
information in our Definitive Proxy Statement on Schedule 14A, filed on April
29, 2008 as amended on May 6, 2008, but only to the extent that such information
was incorporated by reference into our Annual Report on Form 10-K for the year
ended December 31, 2007; and
(e)
The description of our common stock contained in our registration statement on
Form 8-A filed on September 4, 1992, including any amendments or reports filed
for the purpose of updating such description.
All
documents we file pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act after the date of this prospectus and before the completion of the
offering of the securities described in this prospectus shall be incorporated by
reference in this prospectus from the date of filing of such
documents.
You may
request a copy of these filings, at no cost, by writing or telephoning us at the
following address or telephone number:
Corporate
Secretary
Consumer
Portfolio Services, Inc.
P.O. Box
57017
Irvine,
CA 92619
(949) 753-6800
9
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
ITEM 14.
OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Set forth
below are the fees and expenses expected to be paid by the registrant in
connection with the issuance and distribution of the securities registered
hereby. All amounts shown are estimates except for the SEC registration
fee.
|
SEC
registration fee
|
$
|
298
|
|||
|
Accounting
fees and expenses
|
2,000
|
||||
|
Legal
fees and expenses
|
2,000
|
||||
|
Selling
shareholders’ legal fees and expenses
|
12,000
|
||||
|
Printing
expenses
|
2,000
|
||||
|
Miscellaneous
|
702
|
||||
|
TOTAL
|
$
|
19,000
|
|||
ITEM 15.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under
California law, a California corporation may eliminate or limit the personal
liability of a director of the corporation for monetary damages for breach of
the director’s duty of care as a director, provided that the breach does not
involve certain enumerated actions, including, among other things, intentional
misconduct or knowing and culpable violation of the law, acts or omissions which
the director believes to be contrary to the best interests of the corporation or
its shareholders or which reflect an absence of good faith on the director’s
part, the unlawful purchase or redemption of stock, payment of unlawful
dividends, and receipt of improper personal benefits. The registrant’s Board of
Directors believes that such provisions have become commonplace among major
corporations and are beneficial in attracting and retaining qualified directors,
and the registrant’s Articles of Incorporation include such
provisions.
The
registrant’s Articles of Incorporation and Bylaws also impose a mandatory
obligation upon the registrant to indemnify any director or officer to the
fullest extent authorized or permitted by law (as now or hereinafter in effect),
including under circumstances in which indemnification would otherwise be at the
discretion of the registrant.
Under
California law, a California corporation may purchase and maintain insurance on
behalf of any agent, including any director, officer, employee or other agent of
the corporation. The registrant’s Bylaws permit the registrant to
secure insurance on behalf of any director, officer, employee or other agent of
the registrant.
The
registrant provides liability insurance for its directors and officers, which
provides for coverage against loss from claims made against directors and
officers in their capacity as such, including, subject to certain exceptions,
liabilities under the federal securities laws. Such coverage indemnifies the
directors and officers of the registrant against certain liabilities, including
certain liabilities arising under the Securities Act, which might be incurred by
them in such capacities and against which they cannot be indemnified by the
registrant.
II-1
ITEM 16.
EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
The
following exhibits are filed herewith:
|
Exhibit
No.
|
Description
|
|
|
5.1
|
Opinion
of Mark Creatura with respect to legality of the securities
registered
|
|
|
23.1
|
Consent
of Mark Creatura (included in Exhibit 5.1)
|
|
|
23.2
|
Consent
of McGladrey & Pullen LLP
|
|
|
24.1*
|
Power
of Attorney (included on the signature page to the registration statement,
as filed on August 12, 2008)
|
* Previously
Filed
ITEM 17.
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) (§230.424(b) of Title 17 of the Code of
Federal Regulations) if, in the aggregate, the changes in volume and price
represent no more than 20% 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),
(a)(1)(ii) and (a)(1)(iii) above do not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained in
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 this registration statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) (§230.424(b) of Title 17 of the
Code of Federal Regulations) that is part of 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) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser, each prospectus filed pursuant to Rule 424(b) as part of a
registration statement relating to an offering, other than registration
statements relying on Rule 430B or other than prospectuses filed in reliance on
Rule 430A (§230.430A of Title 17 of the Code of Federal Regulations), shall be
deemed to be part of and included in the registration statement as of the date
it is first used after effectiveness. Provided, however, that no
statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale
prior to such first use, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such date of first
use.
II-2
(b) The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act 1933, each filing of the registrant’s annual
report pursuant to section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to
section 15(d) of the Exchange Act) that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, 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 provisions described under Item 15 above, 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 Securities Act of 1933 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
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-3
Pursuant
to the requirements of the Securities Act of 1933, as amended, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Irvine, State of California, on October 29,
2008.
|
CONSUMER
PORTFOLIO SERVICES, INC.
|
|
|
By:
|
(Registrant)
/s/
Charles E. Bradley, Jr.
|
|
Charles
E. Bradley, Jr., President and
Chief
Executive Officer
|
.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration
Statement on Form S-3 has been signed by the following persons in the capacities
and on the dates indicated below.
|
Signature
|
Title
|
Date
|
||||
|
/s/
Charles E. Bradley, Jr.
|
Chairman
of the Board of Directors, President and
|
October
29, 2008
|
||||
|
Charles
E. Bradley, Jr.
|
Chief
Executive Officer (Principal Executive Officer)
|
|||||
|
/s/
Jeffrey P. Fritz
|
Sr.
Vice President (Principal Financial and Accounting
|
October
29, 2008
|
||||
|
Jeffrey
P. Fritz
|
Officer)
|
|||||
|
Chris
A. Adams*
|
Director
|
October
29, 2008
|
||||
|
E.
Bruce Fredrikson*
|
Director
|
October
29, 2008
|
||||
|
John
C. Warner*
|
Director
|
October
29, 2008
|
||||
|
William
B. Roberts*
|
Director
|
October
29, 2008
|
||||
|
Gregory
S. Washer*
|
Director
|
October
29, 2008
|
||||
|
Daniel
S. Wood*
|
Director
|
October
29, 2008
|
||||
|
*By /s/
Jeffrey P. Fritz
Jeffrey
P. Fritz
Attorney-in-fact
|
II-4
EXHIBIT
INDEX
|
Exhibit
No.
|
Description
|
|
|
|
|
|
|
5.1
|
Opinion
of Mark Creatura with respect to legality of the securities
registered
|
|
|
23.1
|
Consent
of Mark Creatura (included in Exhibit 5.1)
|
|
|
23.2
|
Consent
of McGladrey & Pullen LLP
|
|
|
24.1*
*Previously
Filed
|
Power
of Attorney (included on the signature page to the registration statement
as filed on August 12, 2008)
|
II-5
EXHIBIT
5.1
OPINION
OF COUNSEL
October
29, 2008
Consumer
Portfolio Services, Inc.
16355
Laguna Canyon Road
Irvine,
CA 92618
Re: Registration
Statement on Form S-3
Ladies
and Gentlemen:
I have
examined the Registration Statement on Form S-3 (as amended, the "Registration
Statement") to be filed by you with the Securities and Exchange Commission (the
"Commission") on or about the date hereof in connection with the
registration under the Securities Act of 1933, as amended, of shares of your
Common Stock, comprising
(i)
1,225,000 shares that are presently outstanding,
(ii)
4,348,309 shares that are reserved for issuance upon exercise of
presently-outstanding warrants, and
(iii)
such additional shares of common stock that may become issuable upon exercise of
such warrants, to prevent dilution resulting from stock splits, stock dividends
or similar transactions.
I refer
to the shares described in clause (i) as the "Issued Shares," and to the shares
described in clauses (ii) and (iii), as the "Warrant Shares."
As your
counsel in connection with this transaction, I have examined the proceedings
taken and I am familiar with the proceedings proposed to be taken by you in
connection with the sale and issuance of the Issued Shares, and the proposed
sale and issuance of the Warrant Shares.
It is my
opinion that the Issued Shares are, and the Warrant Shares will be, when issued
and sold in the manner described in the Registration Statement, legally and
validly issued, fully paid and non-assessable.
I consent
to the use of this opinion as an exhibit to the Registration Statement and
further consent to the use of my name wherever appearing in the Registration
Statement, including the Prospectus constituting a part thereof, and in any
amendment thereto.
Sincerely,
/s/ MARK
CREATURA
-----------------
MARK
CREATURA
EXHIBIT
23.2
Consent
of Independent Registered Public Accounting Firm
We
consent to the incorporation by reference in Amendment No. 1 to the Registration
Statement on Form S-3 of Consumer Portfolio Services, Inc. of our reports, dated
March 17, 2008 relating to our audits of the consolidated financial statements
and internal control over financial reporting, which appear in the Annual Report
on Form 10-K of Consumer Portfolio Services, Inc. for the year ended December
31, 2007. We also consent to the reference to our firm under the caption
“Experts” in this Registration Statement.
/s/
MCGLADREY & PULLEN
Irvine,
California
October
29, 2008