UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K/A
|X| ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2007
OR
|_| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from ____________ to ____________
Commission file number: 0-6729
FIRST MONTAUK FINANCIAL CORP.
(Exact name of registrant as specified in its charter)
NEW JERSEY 22-1737915
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Parkway 109 Office Center, 07701
328 Newman Springs Road,
Red Bank, New Jersey
(Address of principal executive offices) (Zip Code)
(732) 842-4700
(Registrant's telephone number, including area code)
[None]
(Former name, former address and former fiscal year,
if changed since last report)
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which registered
------------------------- -----------------------------------------------
None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, no par value
Indicate by check mark if the registrant is a well-known seasoned issuer,
as defined in Rule 405 of the Securities Act. Yes [ ] No [X]
Indicate by check mark if the registrant is not required to file reports
pursuant to Section 13 or Section 15(d) of the Exchange Act. Yes [ ] No [X]
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
Indicate by check mark whether the registrant is a large accelerated filer,
an accelerated filer, or a non-accelerated filer. See definition of "accelerated
filer and large accelerated filer" in Rule 12b-2 of the Exchange Act. Large
accelerated filer [ ] Accelerated filer [ ] Non-accelerated filer [X]
Indicate by check mark whether the registrant is a shell company (as
defined in Rule 12b-2 of the Exchange Act). Yes [ ] No [X]
As of June 30, 2007 the aggregate market value of the registrant's common
stock held by non-affiliates of the registrant was $2,986,879 based on the
closing sale price as reported on the Over the Counter Bulletin Board.
Indicate the number of shares outstanding of each of the issuer's classes
of common stock, as of the latest practicable date.
Class Outstanding at March 31, 2008
- --------------------------------------- -----------------------------------
[Common Stock, no par value per share] 13,257,248 shares
DOCUMENTS INCORPORATED BY REFERENCE
None
2
EXPLANATORY NOTE
We are filing this Amendment No. 1 to our Annual Report on Form 10-K for
the year ended December 31, 2007, as filed with the Securities and Exchange
Commission ("SEC") on March 31, 2008, in order to amend Part IV, Item 15 to
update the Exhibit Index and to provide certain additional exhibits that were
previously omitted. These exhibits are appended as Exhibits 4.8.2, 4.8.3, 4.8.4
and 4.8.5. This Form 10-K/A (Amendment No. 1) is limited in scope to the items
identified above and should be read in conjunction with the Form 10-K and our
other filings with the SEC.
This Form 10-K/A (Amendment No. 1) does not reflect events occurring after
the filing of the Form 10-K or modify or update those disclosures affected by
subsequent events. Consequently, all other information is unchanged and reflects
the disclosures made at the time of the filing of the Form 10-K. With this Form
10-K/A (Amendment No. 1), the principal executive officer and principal
financial officer of the Company have reissued their certifications required by
Sections 302 and 906 of the Sarbanes-Oxley Act of 2002, included in Part IV,
Item 15. Exhibits, Financial Statement Schedules, furnished herewith.
3
Table of Contents
PART IV
Item 15. Exhibits and Financial Statement Schedules
3. Exhibits
Incorporated by reference to the Exhibit Index at the end of this
Report.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Company has duly caused this Report to be signed on
its behalf by the undersigned, thereunto duly authorized.
FIRST MONTAUK FINANCIAL CORP.
By /s/ Victor K. Kurylak
----------------------------
Dated: May 9, 2008 Victor K. Kurylak
Chief Executive Officer
and President
Pursuant to the requirements of the Securities Exchange Act of 1934, this
Report has been signed below by the following persons on behalf of the Company
and in the capacities and on the dates indicated.
/s/ Victor K. Kurylak May 9, 2008
- -------------------------------------------
Victor K. Kurylak, Chief Executive Officer,
President and Director
/s/ Celeste M. Leonard May 9, 2008
- --------------------------------------------
Celeste M. Leonard, Chief Compliance Officer
and Director
/s/ Mindy A. Horowitz May 9, 2008
- ---------------------------------------------
Mindy A. Horowitz, Acting Chief Financial Officer
and Principal Accounting Officer
/s/ Ward R. Jones, Jr. May 9, 2008
- ----------------------------------------------
Ward R. Jones, Jr., Director
/s/ Barry D. Shapiro May 9, 2008
- -----------------------------------------------
Barry D. Shapiro, Director
/s/ David I. Portman May 9, 2008
- ------------------------------------------------
David I. Portman, Director
4
EXHIBIT INDEX
The exhibits designated with an asterisk (*) are filed herewith. All other exhibits have been
previously filed with the Commission and, pursuant to 17 C.F.R. ss. 230.411, are incorporated by reference
to the document referenced in brackets following the descriptions of such exhibits.
---------------- ---------------------------------------------------------------------------------------------
Exhibit No. Description
2.1 Agreement and Plan of Merger dated as of February 10, 2005 by and among First Montauk
Financial Corp., Olympic Cascade Financial Corp. and FMFC Acquisition Corporation
(Previously filed as Exhibit 10.1 to our Current Report on Form 8-K dated February 11,
2005).
2.2 Amended and Restated Agreement and Plan of Merger dated as of June 27, 2005 by and among
First Montauk Financial Corp., Olympic Cascade Financial Corp. and FMFC Acquisition
Corporation (Previously filed as Exhibit 10.1 to our Current Report on Form 8-K dated June
28, 2005).
2.3 Letter Agreement dated as of October 24, 2005 terminating the Amended and Restated
Agreement and Plan of Merger, dated June 27, 2005, by and among Olympic Cascade Financial
Corporation, OLY Acquisition Corporation and First Montauk Financial Corp. (Previously
filed as Exhibit 10.2 to our Current Report on Form 8-K dated October 25, 2005).
2.4 Agreement and Plan of Merger dated as of May 5, 2006 by and among FMFG Ownership, Inc.,
FMFG Acquisition Co. Inc. and First Montauk Financial Corp. (Previously filed as Exhibit
10.1 to our Current Report on Form 8-K dated May 9, 2006).
2.5 Settlement Agreement, dated as of May 8, 2007, among First Montauk Financial Corp., Edward
H. Okun, Investment Properties of America, LLC, IPofA Waterview, LLC, FMFC Acquisition Co.,
FMFG Ownership I Co., FMFG Ownership II, Victor K. Kurylak, Ward R. Jones, Jr., Barry
Shapiro, David Portman and Mindy Horowitz (Previously filed as Exhibit 10.1 to our Current
Report on Form 8-K dated May 11, 2007).
2.6 Settlement Agreement dated as of June 15, 2007 among First Montauk Financial Corp., Edward
H. Okun, Investment Properties of America, LLC, IpofA Waterview, LLC, FMFG Acquisition Co.,
FMFG Ownership II, Victor K. Kurylak, Ward R. Jones, Jr., Barry Shapiro, David Portman and
Mindy Horowitz (Previously filed as Exhibit 10.1 to our Current Report on Form 8-K dated
June 15, 2007).
3.1 Amended and Restated Certificate of Incorporation adopted at 1989 Special Meeting in lieu
of Annual Meeting of Shareholders (Previously filed with the Commission as an exhibit to
our Registration Statement on Form S-l, File No. 33-24696).
3.2 Amended and Restated By-Laws (Previously filed with the Commission as an exhibit to our
Registration Statement on Form S-l, File No. 33-24696).
3.3 Certificate of Designations of Series A Preferred Stock. (Previously filed with the
Commission as an exhibit to our Annual Report on Form 10-K for the fiscal year ended
December 31, 2002).
3.4 Form of Certificate of Amendment of Certificate of Designation of Rights and Preferences of
Series B Preferred Stock (Previously filed as Exhibit 3.1 to our Current Report on Form 8-K
dated February 9, 2005).
3.5 Amendment to Amended and Restated Certificate of Incorporation adopted at Annual Meeting of
Shareholders held on June 23, 2005 (Previously filed as Exhibit A to Definitive Proxy
Statement dated May 19, 2005).
4.1 Form of Common Stock. (Previously filed with the Commission as an exhibit to our
Registration Statement on Form S-l, File No. 33-24696).
4.2 Form of Debenture Sold in Private Placement. (Previously filed with the Commission as
Exhibit 4.1 to Report on Form 8-K dated March 27, 2003).
4.3 Form of Placement Agent Warrant (Previously filed with the Commission as Exhibit 4.2 to
Report on Form 8-K dated March 27, 2003).
4.4 Form of Debenture Sold in Private Placement. (Previously filed with the Commission as
Exhibit 4.1 to Report on Form 8-K dated January 5, 2004).
4.5 Form of Placement Agent Warrant (Previously filed with the Commission as Exhibit 4.2 to
Report on Form 8-K dated January 5, 2004).
4.6 Promissory Note issued to Herbert Kurinsky dated February 1, 2006 (Previously filed as
Exhibit 4.1 to Current Report on Form 8-K dated February 1, 2006).
4.7 Rights Agreement, dated as of August 8, 2004, among First Montauk Financial Corp. and
Continental Stock Transfer & Trust Company, as Rights Agent (Previously filed as Exhibit
4.1 to our Current Report on Form 8-K dated August 8, 2007).
4.7.1 First Amendment to the Rights Agreement, dated as of December 7, 2007, by and between
First Montauk Financial Corp. and Continental Stock Transfer & Trust Company, as Rights
Agent (Previously filed as Exhibit 10.2 to our Current Report on Form 8-K, dated December 13, 2007).
5
4.8 Note Purchase Agreement, dated as of December 7, 2007, by and between First Montauk
Financial Corp. and AEFC FMFK Investment Corp. (Previously filed as Exhibit 10.1 to our
Current Report on Form 8-K dated December 13, 2007).
4.8.1 Amendment to Note Purchase Agreement, dated as of December 17, 2007, by and between First
Montauk Financial Corp. and AEFC FMFK Investment Corp.
4.8.2* Secured Convertible Promissory Note, dated December 7, 2007, executed by First Montauk
Financial Corp.
4.8.3* Stock Pledge Agreement, dated as of December 7, 2007, by and between First Montauk
Financial Corp. and AEFC FMFK Investment Corp.
4.8.4* Contingent Warrant, executed by First Montauk Financial Corp.
4.8.5* Prepayment Warrant, executed by First Montauk Financial Corp.
10.1 Office Lease Agreement between First Montauk Securities Corp. and River Office Equities
dated March 5, 1997 (Previously filed with the Commission as an exhibit to our Annual
Report on Form 10-K for the fiscal year ended December 31, 1997).
10.2 First Amendment to Office Lease Agreement dated March 5, 1997 between First Montauk
Securities Corp. and River Office Equities dated March 3, 1998 (Previously filed with the
Commission as Exhibit 28.8 to Form 10-K for the fiscal year ended December 31, 1998).
10.3+ Employment Agreement between First Montauk Securities Corp. and Mark Lowe dated October 15,
1998 (Previously filed with the Commission as an exhibit to our Annual Report on Form 10-K
for the fiscal year ended December 31, 1998).
10.4 Sublease Agreement between Aim net Solutions, Inc. and First Montauk Financial Corp. dated
January 15, 2002 (Previously filed with the Commission as an exhibit to our Annual Report
on Form 10-K for the fiscal year ended December 31, 2001).
10.5+ Employment Agreement dated as of January 1, 2004 between Herbert Kurinsky and First Montauk
Financial Corp. (Previously filed as Exhibit 10.13 to our Annual Report on Form 10-K for
the fiscal year ended December 31, 2004).
10.6+ Employment Agreement dated as of January 1, 2004 between William J. Kurinsky and First
Montauk Financial Corp. (Previously filed as Exhibit 10.14 to our Annual Report on Form
10-K for the fiscal year ended December 31, 2004).
10.7+ Employment Agreement dated as of January 1, 2004 between Victor K. Kurylak and First
Montauk Financial Corp. (Previously filed as Exhibit 10.15 to our Annual Report on Form
10-K for the fiscal year ended December 31, 2004).
10.8+ 1992 Incentive Stock Option Plan (Previously filed with the Commission as an exhibit to our
Registration Statement on Form S-l, File No. 33-24696).
10.9+ 1992 Non-Executive Director Stock Option Plan (Previously filed with the Commission as an
exhibit to our Registration Statement on Form S-l, File No. 33-24696).
10.10+ Amended and Restated 1992 Incentive Stock Option Plan. (Previously filed with the
Commission as an exhibit to our Proxy Statement dated May 30, 1996).
10.11+ Non-Executive Director Stock Option Plan - Amended and Restated June 28, 1996 (Previously
filed with the Commission as an exhibit to our Proxy Statement dated May 30, 1996).
10.12+ 1996 Senior Management Incentive Stock Option Plan (Previously filed with the Commission as
an exhibit to our Proxy Statement dated May 30, 1996).
10.13+ Second Amended and Restated 1992 Incentive Stock Option Plan (Previously filed with the
Commission as an exhibit to our Proxy Statement dated May 23, 2000).
10.14+ 1996 Senior Management Incentive Plan Amended as of June 23, 2000 (Previously filed with
the Commission as an exhibit to our Proxy Statement dated May 23, 2000).
10.15+ 2002 Incentive Stock Option Plan. (Previously filed with the Commission as an Exhibit A to
our Proxy Statement dated May 20, 2002).
10.16+ 2002 Non-Executive Director Stock Option Plan. (Previously filed with the Commission as
Exhibit B to our Proxy Statement dated May 20, 2002).
10.17+ Form of Non-Executive Director Stock Option Award. (Previously filed as Exhibit 10.1 to our
Report on Form 8-K dated September 2, 2004).
10.18+ Form of Stock Option Award pursuant to Incentive Stock Option Plan. (Previously filed as
Exhibit 10.26 to our Annual Report on Form 10-K for the year ended December 31, 2004).
10.19+ Form of Stock Option Award pursuant to 1996 Senior Management Stock Option Plan.
(Previously filed as Exhibit 10.27 to our Annual Report on Form 10-K for the year ended
December 31, 2004).
10.20 Fourth Amendment to Office Lease Agreement dated September 22, 2004 between First Montauk
Securities Corp. and River Office Equities (Previously filed with the Commission as Exhibit
10.1 to Form 8-K dated September 28, 2004).
6
10.21+ Separation Agreement between First Montauk Financial Corp. and William J. Kurinsky,
effective as of February 1, 2005. (Previously filed as Exhibit 10.29 to our Annual Report
on Form 10-K for the year ended December 31, 2004).
10.22+ Consulting Agreement between First Montauk Financial Corp. and William J. Kurinsky,
effective as of February 1, 2005. (Previously filed as Exhibit 10.30 to our Annual Report
on Form 10-K for the year ended December 31, 2004).
10.23+ Employment Agreement dated as of February 1, 2005 between Victor K. Kurylak and First
Montauk Financial Corp. (Previously filed as Exhibit 10.31 to our Annual Report on Form
10-K for the year ended December 31, 2004).
10.24+ Employment Agreement dated as of February 8, 2005 between Robert I. Rabinowitz and First
Montauk Financial Corp. (Previously filed as Exhibit 10.32 to our Annual Report on Form
10-K for the year ended December 31, 2004).
10.25+ Employment Agreement dated as of February 8, 2005 between Mindy A. Horowitz and First
Montauk Financial Corp. (Previously filed as Exhibit 10.33 to our Annual Report on Form
10-K for the year ended December 31, 2004).
10.26 Termination of Clearing Agreement between First Montauk Securities Corp. and Fiserv
Securities, Inc. dated April 21, 2005 (Previously filed as Exhibit 10.1 to Current Report
on Form 8-K filed on April 27, 2005).
10.27 Termination of Financial and Security Agreement among First Montauk Financial Corp., First
Montauk Securities Corp. and Fiserv Securities, Inc. dated April 21, 2005 (Previously filed
as Exhibit 10.2 to Current Report on Form 8-K filed on April 27, 2005).
10.28+ Separation Agreement between First Montauk Financial Corp. and Herbert Kurinsky dated
February 1, 2006 (Previously filed as Exhibit 10.1 to Current Report on Form 8-K dated
February 1, 2006).
10.29+ Employment Agreement between First Montauk Securities Corp. and Celeste Leonard dated
August 7, 2006 (Previously filed as Exhibit 10.1 to Current Report on Form 8-K dated
February 26, 2007).
10.30+ Agreement and Release between First Montauk Financial Corp. and Robert I. Rabinowitz dated
November 14, 2006 (Previously filed on November 14, 2006 as Exhibit 10.1 to Quarterly
Report on Form 10-Q for the quarterly period ended September 30, 2006).
10.31+ Consulting Agreement between First Montauk Financial Corp. and Robert I. Rabinowitz dated
as of January 19, 2007.
10.32+ Employment Agreement between First Montauk Securities Corp. and Jeffrey J. Fahs dated as of
January 24, 2007.
10.33+ Amended and Restated Employment Agreement between First Montauk Financial Corp. and Victor
K. Kurylak, dated as of May 9, 2007 (Previously filed as Exhibit 10.2 to our Current Report
on Form 8-K filed on May 11, 2007.
10.34+ Amendment Number One, dated as of June 15, 2007, to the Amended 2nd Restated Employment
Agreement, dated as of May 9, 2007, between Victor K. Kurylak and First Montauk Financial
Corp. (Previously filed as Exhibit 10.3 to Form 10-Q for the Quarter Ended June 30, 2007,
dated August 14, 2007).
10.35+ Consulting Agreement between First Montauk Financial Corp. and Phillip P. D'Ambrisi, dated
September 1, 2007 (Previously filed as Exhibit 10.1 to our Current Report on Form 8-K filed
on September 6, 2007).
14 Code of Ethics (Filed as Exhibit 14 to our Annual Report on Form 10-K for the year ended
December 31, 2003).
21 Subsidiary Companies
23.1 Consent of Lazar, Levine & Felix.
31.1* Certification of Chief Executive Officer and President pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
31.2* Certification of Acting Chief Financial Officer pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
32.1 * Certification of Victor K. Kurylak pursuant to 18 U.S.C. Section 1350, as adopted pursuant
to Section 906 of the Sarbanes-Oxley Act of 2002.
32.2 * Certification of Mindy A. Horowitz pursuant to 18 U.S.C. Section 1350, as adopted pursuant
to Section 906 of the Sarbanes-Oxley Act of 2002.
+ Denotes management contracts or compensation plans or arrangements in which directors or executive
officers are eligible to participate.
7