EX-10.78



 Exhibit 10.78 

 

					
		  	 December 16, 2013

		
	To:	  	Encore Capital Group, Inc.
		  	3111 Camino Del Rio North, Suite 1300
		  	San Diego, California 92108
		  	Attn:	  	Paul Grinberg, Chief Financial Officer
		  	Telephone:	  	858-309-6904
		  	Facsimile:	  	858-309-6977
		
	From:	  	RBC Capital Markets, LLC
		  	as agent for Royal Bank of Canada
		  	3 World Financial Center –
8th Floor
		  	200 Vesey Street
		  	New York, NY 10281-8089
		  	Telephone:	  	212-858-7000
		  	Facsimile:	  	212-428-3053
		
	Re:	  	Amendment to Warrant Transactions

 Ladies and Gentlemen: 

This letter agreement (this “Amendment”) amends the letter agreement re: Base Issuer Warrant Transaction, between Royal
Bank of Canada (“Dealer”) and Encore Capital Group, Inc. (“Issuer”), dated November 20, 2012 (such letter agreement, the “Base Warrant Confirmation” and the “Transaction” as defined
therein, the “Base Warrant Transaction”), and the letter agreement re: Additional Issuer Warrant Transaction, between Dealer and Issuer, dated December 6, 2012 (such letter agreement, the “Additional Warrant
Confirmation” and together with the Base Warrant Confirmation, the “Confirmations,” and the “Transaction” as defined in the Additional Warrant Confirmation, the “Additional Warrant Transaction”
and together with the Base Warrant Transaction, the “Transactions”), as set forth below. Any capitalized term used but not defined herein shall have the meaning assigned thereto in the Base Warrant Confirmation or the Additional
Warrant Confirmation, as the context shall require. 
 1. Amendments.  

a. If the Hedge Completion Percentage is 100%, each Confirmation shall be amended by increasing the “Strike
Price” of each Transaction from USD 44.1875 to USD 60.00. 
 b. If the Hedge Completion Percentage is less
than 100%: 
 i. The Additional Warrant Confirmation shall be amended by: 

 

	 	1.	Replacing the “Number of Warrants” for each “Component” other than the last “Component” of the Additional Warrant Transaction with a
number of “Warrants” (the “Additional Daily Warrant Number”) equal to (i) the product of (a) the Hedge Completion Percentage and (b) the Total Number of Warrants, rounded down to the nearest whole number
(the “Additional Total Warrant Number”) divided by (ii) 150, rounded down to the nearest whole number; 









	 	2.	Replacing the “Number of Warrants” for the last “Component” of the Additional Warrant Transaction with a number of “Warrants” equal to the
(i) the Additional Total Warrant Number less (ii) the product of 149 and the Additional Daily Warrant Number; and 

  

	 	3.	Increasing the “Strike Price” of the Additional Warrant Transaction from USD 44.1875 to USD 60.00; and 


ii. The Base Warrant Confirmation shall be amended by: 

 

	 	1.	Replacing the “Number of Warrants” for each “Component” other than the last “Component” of the Base Warrant Transaction with a number of
“Warrants” (the “Base Daily Warrant Number”) equal to (i) the Total Number of Warrants less the aggregate “Number of Warrants” for all “Components” under the Additional Warrant Transaction,
after giving effect to the amendments set forth in Section 1.b.i above (the “Base Total Warrant Number”), divided by (ii) 150, rounded down to the nearest whole number; and 


 

	 	2.	Replacing the “Number of Warrants” for the last “Component” of the Base Warrant Transaction with a number of “Warrants” equal to
(i) the Base Total Warrant Number less (ii) the product of 149 and the Base Daily Warrant Number. 

 2. Hedging Completion Notice. On the first Scheduled Trading Day following the Hedge Completion Date, Dealer will deliver to Issuer a hedging completion notice substantially in the form set forth
in Annex B hereto, and no later than the first Scheduled Trading Day following delivery to Issuer of such notice, absent manifest error, Issuer will return to Dealer a counter-signed copy thereof. 

3. Restrike Cost. In consideration for the amendments contained herein: 

a. On December 19, 2013, Issuer shall pay to Dealer an amount in USD equal to the product of (i) 13,895,000 and
(ii) 40% (such product, the “Prepayment Amount”); and 
 b. On the later of the third
Currency Business Day following the Hedge Completion Date and January 2, 2014, (A) if the Aggregate Restrike Cost exceeds the Prepayment Amount, Issuer shall pay to Dealer an amount in USD equal to such excess or (B) if the Prepayment
Amount exceeds the Aggregate Restrike Cost, Dealer shall pay to Issuer an amount in USD equal to such excess. 

4. Definitions. As used herein: 

“Aggregate Restrike Cost” means the product of (i) the Hedge Completion Percentage multiplied
by the Total Number of Warrants and (ii) the Restrike Cost Per Share. 
 “Delta” means
the “Delta” set forth in the grid in Annex A hereto corresponding to the Hedge Execution Price; provided that (i) if the Hedge Execution Price is between “Hedge Execution Prices” set forth in such grid,
“Delta” shall be determined by linear interpolation between the “Deltas” set forth in such grid corresponding to such “Hedge Execution Prices” and (ii) if the Hedge Execution Price is less than the lowest
“Hedge Execution Price” set forth in such grid, “Delta” will be determined by the Calculation Agent in a manner consistent with the methodology used in creating such grid. 

  
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 “Hedge Completion Percentage” means the ratio of the Hedge
Purchase Number to the Target Hedge Purchase Number. 
 “Hedge Execution Price” means the
per-Share volume-weighted average price at which Dealer (or its affiliate or agent) purchases Shares during the Hedging Period to adjust its Hedge Positions in connection with this Amendment; provided that the price per Share for any such
purchase shall not exceed the Limit Price (as defined in Annex A hereto). 
 “Hedge Purchase
Number” means the number of Shares purchased by Dealer (or its affiliate or agent) during the Hedging Period to adjust its Hedge Positions in connection with this Amendment. 

“Hedging Period” means the period of consecutive Scheduled Trading Days beginning on, and including,
December 17, 2013, and ending on, and including, the earlier of (i) the first date on which Dealer (or its affiliate or agent) has completed purchasing Shares to adjust its Hedge Positions in connection with this Amendment and
(ii) February 20, 2014 (such earlier date, the “Hedge Completion Date”). 

“Restrike Cost Per Share” means the “Restrike Cost Per Share” set forth in the grid in Annex A
hereto corresponding to the Hedge Execution Price; provided that (i) if the Hedge Execution Price is between “Hedge Execution Prices” set forth in such grid, the “Restrike Cost Per Share” shall be determined by
linear interpolation between the “Restrike Costs Per Share” set forth in such grid corresponding to such “Hedge Execution Prices” and (ii) if the Hedge Execution Price is less than the lowest “Hedge Execution
Price” set forth in such grid, the “Restrike Cost Per Share” will be determined by the Calculation Agent in a manner consistent with the methodology used in creating such grid. 

“Target Hedge Purchase Number” means a number of Shares equal to the product of (i) Delta and
(ii) the Total Number of Warrants, rounded down to the nearest Share. 
 “Total Number of
Warrants” means the sum of (i) the aggregate “Number of Warrants” for all “Components” under the Base Warrant Transaction and (ii) the aggregate “Number of Warrants” for all “Components”
under the Additional Warrant Transaction (without giving effect to the amendments set forth herein). 
 5.
Representations, Warranties and Covenants.  
 a. Each party re-makes, as of the date hereof, each of the
representations and warranties set forth in Section 3(a) of the Agreement and Section 7(b) of the Confirmations. 
 b. Issuer re-makes, as of the date hereof, each of the representations and warranties, and agrees to comply with the covenants, set forth in Section 7(a)(i), (iv), (v), (vi), (ix)(C) and (x) of
the Confirmations; provided that, solely for this purpose: 
 i. Any reference therein to: 

 

	 	1.	the Confirmation shall be deemed replaced by this Amendment; 

  

	 	2.	the Trade Date or the Effective Date shall, in each case, be deemed replaced by the date hereof; 


 

	 	3.	the Transaction shall be deemed to refer to the Transaction as amended hereby; and 


 

	 	4.	the Settlement Period (including, for the avoidance of doubt, references to certain Expiration Dates in the definition thereof) shall be deemed replaced by the Hedging
Period; and 

 ii. The exception set forth in Section 7(a)(x) of the Confirmations for
purchases, offers or orders through Dealer or Deutsche Bank AG or Société Générale shall not apply. For the avoidance of doubt, Issuer shall not be deemed to have breached Section 7(a)(x) of the Confirmations on
account of its entry into this Amendment or the other warrant transaction amendments executed substantially contemporaneously herewith. 

  
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 c. Issuer represents, warrants and covenants to Dealer that: 

i. Issuer is entering into this Amendment in good faith and not as part of a plan or scheme to evade the prohibitions of
Rule 10b5-1 under the Exchange Act (“Rule 10b5-1”) or any other antifraud or anti-manipulation provisions of the federal or applicable state securities laws and that it has not entered into or altered and will not enter into or
alter any corresponding or hedging transaction or position with respect to the Shares. Issuer and Dealer each acknowledges that it is the intent of the parties that this Amendment comply with the requirements of paragraphs (c)(1)(i)(A) and
(B) of Rule 10b5-1 and this Amendment shall be interpreted to comply with the requirements of Rule 10b5-1(c). 
 ii. Issuer is entering into this Amendment hereunder in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 or any other antifraud or anti-manipulation provisions of
the federal or applicable state securities laws and that it has not entered into or altered and will not enter into or alter any corresponding or hedging transaction or position with respect to the Shares. 

iii. Issuer acknowledges and agrees that any amendment, modification or waiver of the terms set forth herein must be
effected in accordance with the requirements for the amendment of a “plan” as defined in Rule 10b5-1(c). Without limiting the generality of the foregoing, any such amendment, modification or waiver shall be made in good faith and not as
part of a plan or scheme to evade the prohibitions of Rule 10b-5, and no such amendment, modification or waiver shall be made at any time at which Issuer is aware of any material non-public information regarding Issuer or the Shares. 

d. Dealer acknowledges and agrees that Section 3 of the Confirmations will apply to any judgment, determination or
calculation made by the Calculation Agent in connection with this Amendment. 
 6. Adjustments. If any
event occurs with respect to Issuer or the Shares during the Hedging Period that gives rise to an adjustment under the Confirmations or the Equity Definitions to the terms of the Transactions, the Calculation Agent will also adjust the terms set
forth herein as appropriate to preserve the economic intent of the parties. 
 7. Continuing Effect.
Except as expressly amended hereby, the terms and provisions of the Transactions and Confirmations shall remain and continue in full force and effect and are hereby confirmed in all respects. 

8. Counterparts. This Amendment may be signed in any number of counterparts, each of which shall be considered an
original, with the same effect as if all of the signatures hereto and thereto were upon the same instrument. 

  
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 9. Waiver of Trial by Jury. EACH OF ISSUER AND DEALER HEREBY
IRREVOCABLY WAIVES (ON ITS OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS STOCKHOLDERS) ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF
OR RELATING TO THE TRANSACTIONS, AS AMENDED HEREBY, OR THE ACTIONS OF DEALER OR ITS AFFILIATES IN THE NEGOTIATION, PERFORMANCE OR ENFORCEMENT OF THIS AMENDMENT AND THE CONFIRMATIONS AS AMENDED HEREBY. 

10. Governing Law; Jurisdiction. THIS AMENDMENT AND EACH CONFIRMATIONS AS AMENDED HEREBY AND ANY CLAIM,
CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AMENDMENT AND THE CONFIRMATIONS AS AMENDED HEREBY SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF
THE STATE OF NEW YORK AND THE UNITED STATES COURT FOR THE SOUTHERN DISTRICT OF NEW YORK IN CONNECTION WITH ALL MATTERS RELATING HERETO AND WAIVE ANY OBJECTION TO THE LAYING OF VENUE IN, AND ANY CLAIM OF INCONVENIENT FORUM WITH RESPECT TO, THESE
COURTS. 

  
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 This Amendment may be executed in several counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument. 
 Issuer hereby agrees to check this Amendment to confirm that the foregoing
correctly sets forth the terms of the amendments to the Transactions by signing in the space provided below and returning to Dealer a facsimile of the fully-executed Amendment to Dealer at (212) 428-3053. Originals shall be provided for your
execution upon your request. 
 We are very pleased to have executed the Amendment with you and we look forward to completing other transactions
with you in the near future. 
  

					
	Very truly yours,
	
	 ROYAL BANK OF CANADA
 by its agent

	RBC Capital Markets, LLC
		
	By:	 	 /s/ Alex Rabaev

		 	Name:	 	Alex Rabaev
		 	Title:	 	Associate Director


 Confirmed and Acknowledged as of the date first above written: 

 

			
	ENCORE CAPITAL GROUP, INC.
		
	By:	 	 /s/ Kenneth A. Vecchione

	Name:	 	Kenneth A. Vecchione
	Title:	 	President and Chief Executive Officer


  
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 ANNEX A 
  

					
	 Hedge Execution Price
	 	 Restrike Cost Per Share
	 	 Delta

	 $40.00
	 	$6.05	 	22.3%
	 $42.00
	 	$6.49	 	21.8%
	 $44.00
	 	$6.92	 	21.3%
	 $46.00
	 	$7.34	 	20.6%
	 $48.00
	 	$7.75	 	20.0%
	 $50.00
	 	$8.14	 	19.2%

 Limit Price: $49.00. 

  
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 ANNEX B 
 FORM OF HEDGING COMPLETION NOTICE 
 [DATE] 

 

					
	To:	  	Encore Capital Group, Inc.
		  	3111 Camino Del Rio North, Suite 1300
		  	San Diego, California 92108
		  	Attn:	  	Paul Grinberg, Chief Financial Officer
		  	Telephone:	  	858-309-6904
		  	Facsimile:	  	858-309-6977

 Reference is hereby made to the letter agreement re: Amendment to Warrant Transactions (the
“Amendment”), dated December 16, 2013, between Royal Bank of Canada (“Dealer”) and Encore Capital Group, Inc. (“Issuer”). Capitalized terms used but not defined herein shall have the meanings
assigned thereto in the Amendment. For purposes of the Amendment and the Confirmations, the following terms shall have the meanings set forth below: 
  

			
	Aggregate Restrike Cost:	  	[            ]
		
	Delta:	  	[            ]
		
	Hedge Completion Date:	  	[            ]
		
	Hedge Completion Percentage:	  	[            ]
		
	Hedge Execution Price:	  	[            ]
		
	Hedge Purchase Number:	  	[            ]
		
	Restrike Cost Per Share:	  	[            ]
		
	Target Hedge Purchase Number:	  	[            ]
		
	[For Additional Warrant Transaction:	  	
		
	 “Number of Warrants” for each “Component” other than the last “Component”:
	  	[            ]
		
	 “Number of Warrants” for last “Component”:
	  	[            ]
		
	For Base Warrant Transaction:	  	
		
	 “Number of Warrants” for each “Component” other than the last “Component”:
	  	[            ]
		
	 “Number of Warrants” for last “Component”:
	  	[            ]]1

  

	1 	 Include if Hedge Completion Percentage is less than 100%. 



  
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	Very truly yours,
	
	 ROYAL BANK OF CANADA
 by its agent

	RBC Capital Markets, LLC
		
	By:	 	  

		 	Name:	 	
		 	Title:	 	


 Confirmed and Acknowledged as of the date first above written: 

 

			
	ENCORE CAPITAL GROUP, INC.
		
	By:	 	  

	Name:	 	
	Title: