As filed with the Securities and Exchange Commission on October 31, 2002
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MEDALLION FINANCIAL CORP.
(Exact name of issuer as specified in its charter)
Delaware 04-3291176
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(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification Number)
organization)
437 Madison Avenue
New York, New York 10022
-------------------------
(Address, including zip code, of principal executive offices)
Medallion Financial Corp. Amended and Restated 1996 Stock Option Plan
(Full title of the plan)
Alvin Murstein
Chief Executive Officer
Medallion Financial Corp.
437 Madison Avenue
New York, New York 10022
(212) 328-2100
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(Name, address (including zip code) and telephone number (including area code)
of agent for service)
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COPY TO:
Christopher E. Manno, Esq.
Willkie Farr & Gallagher
787 Seventh Avenue
New York, New York 10019
(212) 728-8000
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed Proposed
Title of Amount to be maximum maximum Amount of
securities to registered offering price aggregate registration
be registered (1) per share (2) offering price (2) fee
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Common Stock,
$0.01 par
value per share 1,500,000 $4.71 $7,065,000 $649.98
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(1) This Registration Statement covers 1,500,000 additional shares authorized
to be issued under the Medallion Financial Corp. Amended and Restated 1996
Stock Option Plan (the "Plan"). In addition, this Registration Statement
covers an indeterminable number of additional shares as may hereafter be
offered or issued pursuant to the Plan, to prevent dilution resulting from
stock splits, stock dividends or similar transactions effected without the
receipt of consideration and pursuant to Rule 416(c) under the Securities
Act of 1933, as amended (the "Securities Act").
(2) Estimated solely for calculating the amount of the registration fee,
pursuant to Rule 457(h) under the Securities Act, based on the average of
high and low prices reported on the NASDAQ National Market on October 28,
2002.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed with the Securities and Exchange Commission
(the "Commission") by Medallion Financial Corp. (the "Company"), are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2001, filed pursuant to the Securities Exchange Act of 1934
(the "Exchange Act").
(b) The Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 2002 and June 30, 2002, filed pursuant to the
Exchange Act.
(c) The Company's Current Reports on Form 8-K, filed on July 29, 2002
and September 18, 2002 filed pursuant to the Exchange Act.
(d) The description of the Common Stock of the Company, par value
$0.01 per share (the "Common Stock"), incorporated by reference into the
Company's Registration Statement on Form 8-A, filed pursuant to the
Exchange Act on February 26, 1996, which description is contained in the
Company's Registration Statement on Form N-2, filed pursuant to the
Securities Act on February 26, 1996, as updated in the Company's
Registration Statement on Form N-2 (under the heading "Description of
Capital Stock"), filed pursuant to the Securities Act on May 2, 2001.
In addition, all documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent
to the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all the securities offered hereby
have been sold or which deregisters all securities then remaining unsold shall
be deemed to be incorporated herein by reference and to be a part hereof from
the date of the filing of such documents with the Commission. Any statement
contained in a document incorporated by reference herein shall be deemed to be
modified or superseded for purposes hereof to the extent that a statement
contained herein (or in any other subsequently filed document which also is
incorporated by reference herein) modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed to constitute a part
hereof except as so modified or superseded.
The consolidated financial statements included in the Company's Annual
Report on Form 10-K for the year ended December 31, 2001 ("Annual Report")
incorporated herein by reference were audited by the Company's former
independent auditor, Arthur Andersen LLP ("Andersen"). Effective July 29, 2002,
the Company dismissed its independent auditors, Andersen, in view of recent
developments involving Andersen, and engaged
PricewaterhouseCoopers LLP to serve as the Company's independent public
accountants and to audit the financial statements for the fiscal year ending
December 31, 2002.
The Company would ordinarily be required to obtain the consent of Andersen
to the incorporation by reference of Andersen's audit report and the audited
financial statements in the Annual Report. However, Andersen was indicted and
found guilty of federal obstruction of justice charges and has informed the
Company that it is no longer able to provide such consent as a result of the
departure from Andersen of the former partner and manager responsible for audit
report. Under these circumstances, Rule 437a under the Securities Act permits
the Company to incorporate the audit report and the audited financial statements
herein without obtaining the consent of Andersen.
Because Andersen has not consented to the inclusion of its audit report in
this Registration Statement, individuals purchasing securities pursuant to this
Registration Statement may not be able to recover any losses or damages from
Andersen pursuant to the Securities Act if the audit report or the audited
financial statements in the Annual Report are deficient or otherwise violate the
Securities Act.
Section 11(a) of the Securities Act provides that if any part of a
registration statement, at the time such registration statement becomes
effective, contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, any person acquiring a security pursuant to such
registration statement (unless such person knows of such untruth or omission)
may sue, among others, every accountant who has consented to be named as having
prepared or certified any part of the registration statement, or as having
prepared or certified any report or valuation that is used in connection with
the registration statement, with respect to any statement in such registration
statement, report or valuation that purports to have been prepared or certified
by the accountant.
Item 4. DESCRIPTION OF SECURITIES
Inapplicable
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of Common Stock offered hereby is being passed
upon for the Company by Willkie Farr & Gallagher. As of the date of this
Registration Statement, Mario M. Cuomo, a non-employee director of the Company,
is a partner with the law firm of Willkie Farr & Gallagher.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law grants the Company the
power to indemnify each person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative by reason of the fact
that he is or was a director, officer, employee
or agent of the Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful,
provided, however, no indemnification shall be made in connection with any
proceeding brought by or in the right of the Company where the person involved
is adjudged to be liable to the Company except to the extent approved by a
court. Article TENTH of the Company's Certificate of Incorporation as currently
in effect provides that the Company shall, to the fullest extent permitted by
the Delaware General Corporation Law, as amended from time to time, indemnify
each person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding by reason of the
fact that he is or was, or has agreed to become, a director or officer of the
Company, or is or was serving, or has agreed to serve, at the request of the
Company, as a director, officer or trustee of, or in a similar capacity with,
another corporation, partnership, joint venture, trust or other enterprise. The
indemnification provided for in Article TENTH is expressly not exclusive of any
other rights to which those seeking indemnification may be entitled under any
law, agreement or vote of stockholders or disinterested directors or otherwise,
and shall inure to the benefit of the heirs, executors and administrators of
such persons. Article TENTH permits the board of directors of the Company to
authorize the grant of indemnification rights to other employees and agents of
the Company and such rights may be equivalent to, or greater or less than, those
set forth in Article TENTH.
Article V, Section 2 of the Company's By-Laws provides that the Company
shall have the power to purchase and maintain insurance on behalf of any person
who is or was a director, officer, employee or agent of the Company, or is or
was serving at the request of the Company, as a director, officer or trustee of,
or in a similar capacity with, another corporation, partnership, joint venture,
trust or other enterprise, against any liability asserted against and incurred
by such person in any such capacity.
Pursuant to Section 102(b)(7) of the Delaware General Corporation Law,
Article NINTH of the Company's Certificate of Incorporation eliminates a
director's personal liability for monetary damages to the Company and its
stockholders for breaches of fiduciary duty as a director, except to the extent
that the elimination or limitation of liability is not then permitted under the
Delaware General Corporation Law.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable
Item 8. EXHIBITS
Exhibit No.
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5 Opinion of Willkie Farr & Gallagher, counsel to the Company, as
to the legality of the shares of Common Stock to be originally
issued pursuant to the Plan.
23.1 Consent of Arthur Andersen LLP (omitted pursuant to Rule 437a of
the Securities Act).
23.2 Consent of Willkie Farr & Gallagher (included in Exhibit 5).
24 Power of Attorney (reference is made to the signature page).
Item 9. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to the Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(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; and
(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)(i) and (a)(ii) do not
apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Company pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(b) That, for the purpose of determining any liability under the Securities
Act, 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.
(c) 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.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
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.
3. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company 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 and will be governed by the final adjudication
of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on the 28th day of
October, 2002.
MEDALLION FINANCIAL CORP.
By: /s/ Alvin Murstein
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Alvin Murstein
Chairman of the Board
and Chief Executive Officer
POWER OF ATTORNEY
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KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Alvin Murstein and Andrew M. Murstein, and each
of them, with full power to act without the other, his true and lawful
attorney-in-fact and agent, 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 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 attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary fully to all intents and purposes as
he might or could do in person thereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or his substitutes or
substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated:
Signature Title Date
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/s/ Alvin Murstein Chairman of the Board and October 28, 2002
- ------------------------- Chief Executive Officer
Alvin Murstein (Principal Executive Officer)
/s/ James E. Jack Executive Vice President October 28, 2002
- ------------------------- and Chief Financial Officer
James E. Jack (Principal Financial Officer)
/s/ Larry D. Hall Chief Accounting Officer October 17, 2002
- ------------------------- and Assistant Treasurer
Larry D. Hall (Principal Accounting Officer)
/s/ Andrew M. Murstein President and Director October 28, 2002
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Andrew M. Murstein
/s/ Mario M. Cuomo Director October 29, 2002
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Mario M. Cuomo
/s/ Frederick S. Hammer Director October 28, 2002
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Frederick S. Hammer
/s/ Stanley Kreitman Director October 28, 2002
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Stanley Kreitman
/s/ David L. Rudnick Director October 16, 2002
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David L. Rudnick
EXHIBIT INDEX
Exhibit No. Description
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5 Opinion of Willkie Farr & Gallagher, counsel to the
Company, as to the legality of the shares of Common Stock
to be originally issued pursuant to the Plan.
23.2 Consent of Willkie Farr & Gallagher (contained in Exhibit
5).
24 Power of Attorney (reference is made to the signature
page).