As filed with the Securities and Exchange Commission on February 10, 2005.
Registration No. ________
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FRANKLIN CREDIT MANAGEMENT CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 75-2243266
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
Six Harrison Street
New York, New York 10013
(Address of Principal Executive Offices)
FRANKLIN CREDIT MANAGEMENT CORPORATION
1996 STOCK INCENTIVE PLAN, AS AMENDED
(Full Title of the Plan)
Jeffrey R. Johnson
Chief Executive Officer
Franklin Credit Management Corporation
Six Harrison Street
New York, New York 10013
(Name and Address of Agent for Service)
(212) 925-8745
(Telephone Number, Including Area Code,
of Agent for Service)
Copy to:
John Collins
Franklin Credit Management Corporation
Six Harrison Street
New York, New York 10013
(212) 925-8745
(212) 925-1971 (Fax)
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Amount to be Offering Price Aggregate Registration
Registered Registered Per Share Offering Price Fee
- ------------------------------------------------------------------------------------------
common stock, par value
$.01 per share...... 1,600,000(1) (2) $9,312,740(2) $1,096.11
- ------------------------------------------------------------------------------------------
804,000(3) $10.55(4) $8,482,200(4)
- ------------------------------------------------------------------------------------------
5,000(5) $5.50(6) $27,500(6)
- ------------------------------------------------------------------------------------------
15,000(5) $3.55(6) $53,250(6)
- ------------------------------------------------------------------------------------------
19,000(5) $2.25(6) $42,750(6)
- ------------------------------------------------------------------------------------------
155,000(5) $1.56(6) $241,800(6)
- ------------------------------------------------------------------------------------------
25,000(5) $1.15(6) $28,750(6)
- ------------------------------------------------------------------------------------------
6,000(5) $1.04(6) $6,240(6)
- ------------------------------------------------------------------------------------------
20,000(5) $0.85(6) $17,000(6)
- ------------------------------------------------------------------------------------------
551,000(5) $0.75(6) $413,250(6)
- ------------------------------------------------------------------------------------------
(1) This Registration Statement is being filed with the Securities and
Exchange Commission to register 1,600,000 shares of common stock which may
be issued upon the exercise of stock options under the Franklin Credit
Management Corporation 1996 Stock Incentive Plan, as amended (the "Plan"),
of which 796,000 shares may be issued upon the exercise of stock options
that have been issued under the Plan and 804,000 shares may be issued upon
the exercise of stock options that may be issued under the Plan.
(2) The Proposed Maximum Aggregate Offering Price is based on estimates in
accordance with Rule 457(c), with respect to 804,000 shares that may be
issued upon the exercise of stock options that may be issued under the
Plan, and calculations pursuant to Rule 457(h)(1), with respect to 796,000
shares that may be issued upon the exercise of stock options that have
been issued under the Plan. See Footnote Nos. 4 and 6 below.
(3) Represents the aggregate of 804,000 shares that may be issued upon the
exercise of stock options that may be issued under the Plan.
(4) Estimated, in accordance with Rule 457(c), solely for the purpose of
calculating the registration fee. The Proposed Maximum Offering Price Per
Share and the Proposed Maximum Aggregate Offering Price are based on the
average of the high and low prices reported by the NASD OTC:BB on February
4, 2005, which is within five (5) business days prior to the date of this
Registration Statement.
(5) Represents shares that may be issued upon the exercise of stock options
that have been issued under the Plan.
(6) Pursuant to Rule 457(h)(1), the Proposed Maximum Offering Price Per Share
and the Proposed Maximum Aggregate Offering Price have been calculated
based on the exercise prices of options previously granted.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required to be contained in the Section 10(a) prospectus
is omitted from this Registration Statement pursuant to Rule 428 of the
Securities Act of 1933, as amended (the "Securities Act"), and the note to Part
I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The Registrant hereby incorporates by reference into this Registration
Statement the following documents:
(1) the Registrant's Annual Report on Form 10-K for the year ended
December 31, 2003, as amended by Amendment No. 1 to the
Registrant's Annual Report on Form 10-K/A;
(2) the Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 2004, as amended by Amendment
No. 1 to the Registrant's Annual Report on Form 10-Q/A;
(3) the Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 2004;
(4) the Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended September 30, 2004;
(5) the Registrant's Current Reports on Form 8-K filed on May 20,
2000, July 15, 2004 (as amended on July 16, 2004), July 20,
2004, October 20, 2004, October 20, 2004, October 21, 2004,
October 21, 2004, November 15, 2004 and January 31, 2005 and
(6) the description of the Registrant's common stock contained in
its Registration Statement on Form 8-A under Section 12 of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), dated May 17, 1989, including any amendment or reports
filed for the purpose of updating such description.
All documents subsequently filed by the Registrant with the Securities and
Exchange Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act, prior to the filing of a post-effective amendment to the
Registration Statement which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
-------------------------
Not applicable.
Item 5. Interest of Named Experts and Counsel.
-------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify directors and officers, as well as other employees and
individuals, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by any such person
in connection with any threatened, pending or completed actions, suits or
proceedings in which such person is made a party by reason of such person being
or having been a director, officer, employee or agent to the Registrant. The
Delaware General Corporation Law provides that Section 145 is not exclusive of
other rights to which those seeking indemnification may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
Article VI of the Registrant's Fifth Amended and Restated Certificate of
Incorporation provides that the Registrant shall to the fullest extent permitted
by Delaware law, as in effect from time to time, indemnify each director of the
Registrant or of any of its wholly-owned subsidiaries who was or is a party or
is threatened to be made a party to any litigation or other legal proceeding, by
reason of the fact that he or she is or was a director of the Registrant or of
any of its subsidiaries (provided that such person's actions subject to such
proceeding were taken in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the Registrant, and,
with respect to any criminal proceeding, had no reasonable cause to believe his
or her conduct was unlawful) against all expense, liability and loss (including,
but not limited to, attorneys' fees, judgments, fines, excise taxes or penalties
with respect to any employee benefit plan or otherwise, and amounts paid or to
be paid in settlement) incurred or suffered by such director in connection with
such proceeding; provided, however, that, except for proceedings to recover
claims made by a director against the Registrant pursuant to such Article VI,
the Registrant shall not be obligated to indemnify a director in connection with
a proceeding (or part thereof) not authorized by the Board of Directors of the
Registrant and initiated by such director against (i) the Registrant or any of
its subsidiaries, (ii) any person who is or was a director, officer, employee or
agent of the Registrant or any of its subsidiaries and/or (iii) any person or
entity which is or was controlled, controlled by, or under common control with
the Registrant or has or had business relations with the Registrant or any of
its subsidiaries.
The right to indemnification conferred by such Article VI includes the
right to be paid by the Registrant the expenses incurred in connection with the
defense or investigation of any such proceeding in advance of its final
disposition; provided, however, that the payment of such expense in advance of
the final disposition of a proceeding shall be made only upon delivery to the
Registrant of an undertaking, by or on behalf of such director or former
director, and such other reasonable assurance that the Registrant may reasonably
require, that all amounts so advanced shall be repaid if it shall ultimately be
determined that such director or former director is not entitled to be
indemnified by the Registrant.
Article VI of the Registrant's Fifth Amended and Restated Certificate of
Incorporation further provides that the indemnification provided therein is not
exclusive, and provides that in the event that the Delaware General Corporation
Law is amended to expand the indemnification permitted to directors the
Registrant must indemnify those persons to the fullest extent permitted by such
law as so amended. Article VI of the Registrant's Fifth Amended and Restated
Certificate of Incorporation also permits the indemnification by the Registrant
or persons other than directors to the fullest extend permitted by the Delaware
Corporation Law.
The Company has obtained directors and officers liability insurance for
the benefit of its directors and certain of its officers.
Section 102(b)(7) of the Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
unlawful payments of dividends or unlawful stock repurchases, redemptions or
other distributions, or (iv) for any transaction from which the director derived
an improper personal benefit. The Registrant's Fifth Amended and Restated
Certificate of Incorporation provides for such limitation of liability.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
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Exhibit Number Description
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4.1 Franklin Credit Management Corporation 1996 Stock
Incentive Plan, as amended.
5.1 Opinion of John Collins, Esq.
23.1 Consent of Opinion of John Collins, Esq. (included in
Exhibit 5.1 to this Registration Statement).
23.2 Consent of Deloitte & Touche LLP.
24.1 Power of Attorney (included on the signature page of
this Registration Statement).
Item 9. 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 this 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 this
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), if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this registration statement or
any material change to such information in this registration statement;
provided, however, that clauses (a)(1)(i) and (a)(i)(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 with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 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) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 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.
(h) 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, Franklin Credit
Management Corporation certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing a Registration Statement on Form S-8
and has duly caused this Registration Statement on Form S-8 to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of New York,
State of New York, on this 10th day of February, 2005.
FRANKLIN CREDIT MANAGEMENT
CORPORATION
By: /s/ Jeffrey R. Johnson
-----------------------------
Jeffrey R. Johnson
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the persons whose signatures
appear below each severally constitutes and appoints Jeffrey R. Johnson and
Joseph Caiazzo his true and lawful attorneys-in-fact and agents, with full
powers 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
pre-effective and post-effective amendments) to this registration statement and
to sign any registration statement (and any post-effective amendments) relating
to the same offering as this registration statement that is to be effective upon
filing pursuant to Rule 462(b) under the Securities Act, and to file the same,
with all exhibits, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, full power and authority to do and perform each and every act and thing
requisite and necessary to be done 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 which said attorneys-in-fact and agents, or their 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 below by the following persons in the capacities and
on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Jeffrey R. Johnson Chief Executive Officer February 10, 2005
- ------------------------- and Director
Jeffrey R. Johnson
/s/ Alan Joseph Chief Financial Officer February 10, 2005
- ------------------------- (Principal Financial
Alan Joseph Officer)
Vice President Finance
/s/ Kimberly Shaw
- ------------------------- (Principal Accounting February 10, 2005
Kimberly Shaw Officer)
/s/ Thomas J. Axon
- ------------------------- Chairman of the Board February 10, 2005
Thomas J. Axon
/s/ Michael Bertash
- ------------------------- Director February 10, 2005
Michael Bertash
/s/ Frank B. Evans
- ------------------------- Director February 10, 2005
Frank B. Evans
_______________________
Dennis Geer Director
/s/ Alexander Gordon Jardin Director February 10, 2005
- ------------------------
Alexander Gordon Jardin
/s/ Steven W. Lefkowitz Director February 10, 2005
- ------------------------
Steven W. Lefkowitz
/s/ Allan R. Lyons Director February 10, 2005
- ------------------------
Allan R. Lyons
/s/ William F. Sullivan Director February 10, 2005
- ------------------------
William F. Sullivan
EXHIBIT INDEX
Exhibit Number Description
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4.1 Franklin Credit Management Corporation 1996 Stock
Incentive Plan, as amended.
5.1 Opinion of John Collins, Esq.
23.1 Consent of Opinion of John Collins, Esq. (included in
Exhibit 5.1 to this Registration Statement).
23.2 Consent of Deloitte & Touche LLP.
24.1 Power of Attorney (included on the signature page of
this Registration Statement).