As filed with the Securities and Exchange Commission on March 1, 2005
File No. 333-________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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FIRST MONTAUK FINANCIAL CORP.
(Exact name of Registrant as specified in its charter)
Parkway 109 Office Center
328 Newman Springs Road
Red Bank, New Jersey 07701
New Jersey (732) 842-4700 22-1737915
(State of Incorporation) (Address, including zip code, (I.R.S.Employer
and telephone number, including Identification
area code, of registrant's Number)
principal executive offices)
2002 Incentive Stock Option Plan
1996 Senior Management Stock Option Plan, as amended
2002 Non-Executive Director Stock Option Plan
(Full Name of Plans)
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Victor K. Kurylak
Chief Executive Officer
Parkway 109 Office Center
328 Newman Springs Road
Red Bank, New Jersey 07701
(732) 842-4700
(Name and address, including zip code, and telephone number,
including area code, of agent for service)
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With copies to:
Victor J. DiGioia, Esq.
Michael A. Goldstein, Esq.
GOLDSTEIN & DIGIOIA, LLP
45 Broadway
New York, New York 10017
Telephone (212) 599-3322
Facsimile (212) 557-0295
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Offering Price Aggregate Offering
Title of Each Class of Securities Being Amount to be per Share (2) Price(2) Amount of
Registered Registered (1) Registration Fee
- ------------------------------------------------ ------------------------ ------------------ -------------------- ------------------
- ------------------------------------------------ ------------------------ ------------------ -------------------- ------------------
4,286,000 Shares (3) $1.04 $4,457,440 $524.64
Common Stock, no par value
- ------------------------------------------------ ------------------------ ------------------ -------------------- ------------------
- ------------------------------------------------ ------------------------ ------------------ -------------------- ------------------
Common Stock, no par value 1,214,000 Shares (4) $0.59 $ 716,260 $ 84.30
- ------------------------------------------------ ------------------------ ------------------ -------------------- ------------------
- ------------------------------------------------ ------------------------ ------------------ -------------------- ------------------
Common Stock, no par value 2,000,000 Shares (5) $1.04 $2,080,000 $244.82
- ------------------------------------------------ ------------------------ ------------------ -------------------- ------------------
- ------------------------------------------------ ------------------------ ------------------ -------------------- ------------------
Common Stock, no par value 120,000 Shares (6) $ .30 $ 36,000 $ 4.24
- ------------------------------------------------ ------------------------ ------------------ -------------------- ------------------
- ------------------------------------------------ ------------------------ ------------------ -------------------- ------------------
7,620,000 Shares $7,289,700 $858.00
Totals
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(1) Pursuant to Rule 416(a) under the Securities Act, this Registration
Statement shall also cover any additional shares of Common Stock which
become issuable under the following of our stock option plans: 2002
Incentive Stock Option Plan, Amended and Restated 1996 Senior Management
Plan, and the 2002 Non-Executive Director Stock Option Plan by reason of
any stock dividend, stock split, recapitalization or other similar
transaction effected without the Registrant's receipt of consideration
which results in an increase in the number of the outstanding shares of
Registrant's Common Stock.
(2) Offering prices of options that have not yet been granted as of the date of
this Registration Statement and for the outstanding shares of restricted
stock granted under the 1996 Management Plan are computed in accordance
with Rule 457(h) based on the average of the bid and asked prices per share
of Registrant's Common Stock on February 25, 2005 as reported on the OTC
Bulletin Board, which was $1.04 per share. Offering prices of options that
are outstanding as of the date of this Registration Statement are computed
in accordance with Rule 457(h) based on the weighted average exercise price
(rounded to the nearest cent) of the outstanding options. Offering prices
are estimated solely for the purpose of calculating the registration fee.
(3) Represents shares issuable upon exercise of options under the 2002
Incentive Plan, and the 2002 Director Plan that have not been granted as of
the date of this Registration Statement. These shares comprised a common
pool of authorized shares that are available for grant under any or all of
these plans. Of these shares, the number of shares available for issuance
under the 2002 Incentive Plan is 3,786,000; and the number of shares we
expect to issue under the 2002 Director Plan is 500,000.
(4) Represents shares of Common Stock issuable upon exercise of outstanding
options under the 2002 Incentive Plan as of the date of this Registration
Statement.
(5) Represents shares of restricted Common Stock that have been issued under
the 1996 Management Plan as of the date of this Registration Statement.
(6) Represents shares of Common Stock issuable upon exercise of outstanding
options under the 2002 Director Plan as of the date of this Registration
Statement.
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Explanatory Note
First Montauk Financial Corp. (the "Registrant") is filing this Registration
Statement on Form S-8 to register (i) 5,000,000 shares of common stock of the
Registrant, no par value per share ("Common Stock"), issuable under the
Registrant's 2002 Incentive Stock Option Plan, including shares underlying
1,214,000 outstanding options previously granted by the Registrant under such
plan; (ii) 2,000,000 shares of Common Stock issuable under the Registrant's
Amended 1996 Senior Management Stock Option Plan, consisting of 2,000,000
restricted shares of Common Stock previously awarded by the Registrant; and
(iii) 620,000 shares of Common Stock issuable under the Registrant's 2002
Non-Executive Director Stock Option Plan, including shares underlying 120,000
outstanding options previously granted by the Registrant under such plan.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, heretofore filed by First Montauk Financial Corp.
with the Commission pursuant to the Exchange Act, are hereby incorporated by
reference, except as superseded or modified herein:
1. Our Annual Report on Form 10-K, for the fiscal year ended December 31,
2003.
2. Our Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31,
2004, June 30, 2004 and September 30, 2004.
3. The following of our Reports on Form 8-K filed with the Commission on the
following dates: January 5, 2004, July 12, 2004, September 28, 2004,
September 28, 2004, October 13, 2004, January 21, 2005, February 9, 2005
and February 11, 2005.
4. A description of our common stock contained in our registration statement
on Form S-3/S-8 (SEC Registration No. 333-28907), filed on June 10, 1997,
as amended by our Registration Statement on Form S-3/S-8 (SEC Registration
No. 333-28907), filed on July 29, 1997.
Each document filed subsequent to the date of this prospectus pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination
of this offering shall be deemed to be incorporated by reference in this
prospectus and shall be part hereof from the date of filing of such document.
Any statement contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed modified or superseded for purposes of this
Registration Statement and Prospectus to the extent that a statement contained
herein or in any other subsequently filed document which also is or is deemed to
be incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of the Registration Statement of
which this Prospectus forms a part.
We will provide without charge to each person to whom a copy of this
Prospectus is delivered, upon the written or oral request of any such person, a
copy of any document described above (other than exhibits). Requests for such
copies should be directed to First Montauk Financial Corp., Parkway 109 Office
Center, 328 Newman Springs Road, Red Bank, New Jersey 07701, telephone (732)
842-4700, Attention: General Counsel. Our World Wide Web site is located at
www.montaukfinancialgroup.com. Information on the Web site is not incorporated
by reference into 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.
First Montauk's By-Laws require First Montauk to indemnify, to the full
extent authorized by Section 14A:3-5 of the New Jersey Business Company Act, any
person with respect to any civil, criminal, administrative or investigative
action or proceeding instituted or threatened by reason of the fact that he, his
testator or intestate is or was a director, officer or employee of First Montauk
or any predecessor of First Montauk is or was serving at the request of First
Montauk or a predecessor of First Montauk as a director, officer, employee or
agent of another Company, partnership, joint venture, trust or other enterprise.
Section 14A:3-5 of the New Jersey Business Company Act authorized the
indemnification of directors and officers against liability incurred by reason
of being a director or officer and against expenses (including attorneys fees)
in connection with defending any action seeking to establish such liability, in
the case of third-party claims, if the officer or director acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of First Montauk and if such officer or director shall not have been
adjudged liable for negligence or misconduct, unless a court otherwise
determines. Indemnification is also authorized with respect to any criminal
action or proceeding where the officer or director had no reasonable cause to
believe his conduct was unlawful.
In accordance with Section 14A:2-7 of the New Jersey Business Company Act,
First Montauk's Certificate of Incorporation eliminates the personal liability
of officers and directors to First Montauk and to shareholders for monetary
damage for violation of a director's duty owed to First Montauk or its
Shareholders, under certain circumstances.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers, or persons controlling First
Montauk pursuant to the foregoing provisions, or otherwise, First Montauk has
been informed 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.
Item 7. Exemption from Registration Claimed.
Not Applicable
Item 8. Exhibits.
The exhibits designated with (*) are filed herewith. All other exhibits
have been previously filed with the Commission and, pursuant to 17 C.F.R. Secs.
201.24 and 240.12b-32, are incorporated by reference to the document referenced
in brackets following the description of such exhibits.
Exhibit
No. Description
4.1 Form of Common Stock Certificate (previously filed with the Commission on
First Montauk's Registration Statement on Form S-l, File No. 33-24696).
4.2 Amended 1996 Senior Management Stock Option Plan (previously filed with the
Commission with First Montauk's 2000 Proxy Statement, filed on May 26,
2000).
4.3 2002 Incentive Stock Option Plan (previously filed with the Commission as
an Exhibit A to our Proxy Statement dated May 20, 2002).
4.4 2002 Non-Executive Directors Stock Option Plan (previously filed with the
Commission as an Exhibit B to our Proxy Statement dated May 20, 2002).
5* Opinion of Goldstein & DiGioia, LLP re legality of shares offered.
23.1* Consent of Schneider & Associates LLP.
23.2* Consent of Goldstein & DiGioia, LLP, contained in Exhibit 5.
24.1*Power of Attorney (contained on signature page to this Registration
Statement)
Item 9. Undertakings
We hereby undertake:
A. (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 thereto) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the 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 by the registrant pursuant to Section 13 or 15(d) of the
Exchange Act 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.
B. For purposes of determining any liability under the Securities Act of 1933,
each filing of our 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 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, we certify that
we have reasonable grounds to believe that we meet all of the requirements for
filing on Form S-8 and have duly caused this Registration Statement to be signed
on our behalf by the undersigned, thereunto duly authorized, in the City of Red
Bank, New Jersey, on March 1, 2005.
FIRST MONTAUK FINANCIAL CORP.
By: /s/ Victor K. Kurylak
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Victor K. Kurylak,
President, Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below substitutes and appoints Victor K. Kurylak his true and lawful
attorney-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, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be don in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent
or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1933, this
registration statement has been signed below by the following persons on our
behalf and in the capacities and on the dates indicated.
Name Title Date
/s/ Victor K. Kurylak President, Chief Executive Officer March 1, 2005
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Victor K. Kurylak
/s/ Herbert Kurinsky Chairman March 1, 2005
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Herbert Kurinsky
/s/ Norma Doxey Director March 1, 2005
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Norma Doxey
/s/ William J. Kurinsky Director March 1, 2005
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William J. Kurinsky
/s/ Ward R. Jones Director March 1, 2005
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Ward R. Jones
/s/ Barry D. Shapiro Director March 1, 2005
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Barry D. Shapiro
/s/ Robert I. Rabinowitz Vice President, General Counsel March 1, 2005
- ----------------------------- and Secretary
Robert I. Rabinowitz
/s/ Mindy Horowitz Chief Financial Officer March 1, 2005
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Mindy Horowitz