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 September 30, 2003
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: 0-26906
ASTA FUNDING, INC.
(Exact name of registrant as specified in its charter)
Delaware 22-3388607
--------------------------------- --------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
210 Sylvan Avenue,
Englewood Cliffs, NJ 07632
--------------------------------- --------------------
(Address of principal (Zip Code)
executive offices)
(201) 567-5648
------------------------------------------------------
(Registrant's telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
Title of each Name of each exchange on
class which registered
------------------ ----------------------------------
None Not applicable
Securities registered pursuant to Section 12(g) of the Act: Common Stock, $0.01
par value
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 (ss. 229.405 of this chapter) 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 an accelerated filer (as
defined in Rule 126-2 of the Act). Yes No X
The aggregate market value of voting and nonvoting common equity held by
non-affiliates of the registrant was approximately $36,213,000, as of the last
business day of the registrant's most recently completed second fiscal quarter.
Indicate the number of shares outstanding of each of the registrant's classes of
common stock, as of the latest practicable date: 6,673,964 as of January 23,
2004.
Documents incorporated by reference: None
The undersigned registrant hereby amends the following items, financial
statements, exhibits or other portions of its Annual Report on Form 10-K
pursuant to the Securities Exchange Act of 1934, as amended, as set forth in the
pages attached hereto:
PART III, Items 10 - 14 are amended by the inclusion of such items herein.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The following table sets forth the names, ages and positions of our executive
officers and directors:
Name Age Position
Arthur Stern 82 Chairman of the Board and
Executive Vice President
Gary Stern 51 Director, President and
Chief Executive Officer
Mitchell Herman 45 Director, Secretary and
Chief Financial Officer
Herman Badillo (2) 74 Director
Edward Celano (1)(3) 63 Director
David Slackman (1) (2)(3) 56 Director
Harvey Leibowitz (1)(2)(3) 70 Director
- ---
(1) Member of Audit Committee
(2) Member of Compensation Committee
(3) Member of Nominating Committee
Arthur Stern has been a director and has served as Chairman of the
Board of Directors of the Company since the Company's inception in July 1994.
Since 1963, Mr. Stern has been President of Asta Group, Incorporated, a consumer
finance company. In such capacities, he has obtained substantial experience in
distressed consumer credit analysis and receivables collections.
Gary Stern has been a director and the President and Chief Executive
Officer of the Company since the Company's inception in July 1994. Mr. Stern has
been Vice President, Secretary, Treasurer and a director of Asta Group,
Incorporated since 1980 and held other positions with Asta Group, Incorporated
prior thereto. In such capacities, he has obtained experience in distressed
consumer credit analysis and receivables collections.
Mitchell Herman has been a director of the Company since September
1995. He has been the Chief Financial Officer of the Company since the Company's
inception in July 1994 and the Chief Financial Officer of Asta Group,
Incorporated since May 1994. From September 1993 to May 1994, he was a manager
with Paul Abrams & Co., a certified public accounting firm. From September 1990
to September 1993, Mr. Herman was a senior accountant with Shapiro & Lieberman,
a certified public accounting firm. Mr. Herman is a certified public accountant.
Herman Badillo has been a director of the Company since September 1995.
He has been a member of Fischbein, Badillo, Wagner & Harding, a law firm located
in New York City, for more than five years. He has formerly served as Special
Counsel to the Mayor of New York City for Fiscal Oversight of Education and as a
member of the Mayor's Advisory Committee on the Judiciary. Mr. Badillo served as
a United States Congressman from 1971 to 1978 and Deputy Mayor of New York City
from 1978 to 1979.
Edward Celano has been a director of the Company since September 1995.
Mr. Celano has served as a consultant to M.R. Weiser & Co. since March 2001. He
was formally an Executive Vice President of Atlantic Bank from May 1996 to
February 2001. Prior to May 1996, Mr. Celano was a Senior Vice President of
NatWest Bank after having held different positions at the bank for over 20
years.
Harvey Leibowitz has been a director of the Company since March 2000.
Mr. Leibowitz has served as a Senior Vice President of Sterling National Bank
since June 1994. Prior to June 1994, Mr. Leibowitz was employed as a Senior Vice
President and Vice President of several banks and financial institutions since
1963.
David Slackman has been a director of the Company since May 2002. Mr.
Slackman has served as President, Manhattan Market -- New York of Commerce Bank
since June 2001. Prior to June 2001, Mr. Slackman was an Executive Vice
President of Atlantic Bank of New York from 1994 to 2001 and a Senior Vice
President of the Dime Savings Bank from 1986 to 1994.
Arthur Stern is the father of Gary Stern. There are no other family
relationships among directors or officers of the Company.
All directors hold office until the next annual meeting of stockholders
or until their successors are elected and qualified; vacancies and any
additional positions created by board action are filled by action of the
existing Board of Directors. All officers serve at the discretion of the Board
of Directors.
Page 2
Composition of the Board of Directors. Since the adoption of the
Sarbanes-Oxley Act in July 2002, there has been a growing public and regulatory
focus on the independence of directors. Recently, Nasdaq adopted amendments to
its definition of independence. Additional requirements relating to independence
are imposed by the Sarbanes-Oxley Act with respect to members of the Audit
Committee and the Nominating Committee. The Board of Directors has determined
that the members of the Audit Committee and the Nominating Committee satisfy all
such definitions of independence. The Board of Directors has also determined
that the following members of the Board satisfy the Nasdaq definition of
independence: Herman Badillo, Edward Celano, Harvey Leibowitz, and David
Slackman.
Audit Committee. The Company has a standing Audit Committee, which
consists of Harvey Leibowitz (the Chairman), David Slackman and Edward Celano.
The Audit Committee is empowered by the Board of Directors to, among other
things: serve as an independent and objective party to monitor the Company's
financial reporting process, internal control system and disclosure control
system; review and appraise the audit efforts of the Company's independent
accountants; assume direct responsibility for the appointment, compensation,
retention and oversight of the work of the outside auditors and for the
resolution of disputes between the outside auditors and the Company's management
regarding financial reporting issues; and provide an open avenue of
communication among the independent accountants, financial and senior
management, and the Board of Directors.
Audit Committee Financial Expert. The Board of Directors has determined
that Harvey Leibowitz is an "audit committee financial expert", as such term is
defined by the SEC. As noted above, Mr. Leibowitz - as well as the other members
of the Audit Committee - has been determined to be "independent" within the
meaning of SEC and Nasdaq regulations.
Independence of Audit Committee Members. The Company's Common Stock is
listed on the Nasdaq National Market and the Company is governed by the listing
standards applicable thereto. All members of the Audit Committee of the Board of
Directors have been determined to be "independent directors" pursuant to the
definition contained in Rule 4200(a)(15) of the National Association of
Securities Dealers' Marketplace Rules and under the SEC's Rule 10A-3.
COMPLIANCE WITH SECTION 16 OF THE SECURITIES EXCHANGE ACT OF 1934
Section 16(a) of the Securities Exchange Act of 1934 requires the
Company's directors, executive officers and persons holding more than 10% of a
registered class of the equity securities of the Company to file with the SEC
and to provide the Company with initial reports of ownership, reports of changes
in ownership and annual reports of ownership of Common Stock and other equity
securities of the Company. Based solely upon a review of such reports furnished
to the Company, the Company believes that all such Section 16(a) reporting
requirements were timely fulfilled during the fiscal year ended September 30,
2003, except Herman Badillo exercised options on February 14, 2003 but filed a
form 4 on March 4, 2003, and GMS Family Investors, LLC and Judith Feder crossed
the 10% threshold on May 30, 2003 but filed a form 3 on July 1, 2003. These late
filings were inadvertent, and the required filings were made promptly after
noting the failures to file.
Page 3
ITEM 11. EXECUTIVE COMPENSATION
The following table summarizes certain information relating to the
compensation paid or accrued by the Company for services rendered during the
fiscal years ended September 30, 2003, 2002 and 2001 with respect to the
Company's Chief Executive Officer and each other executive officer whose total
annual salary and bonus are $100,000 or more:
SUMMARY COMPENSATION TABLE
Long-Term
Compensation
Annual Compensation Awards (1)
------------------------------------------ ------------------------------------------
Name and Year Salary Bonus Other Securities All Other
Principal Position ($) ($) Annual Underlying Compensation
Compensation Options/ ($) (3)
($) SARs (#)
(2)
- -------- ------------ ------------ ------------ ------------ ------------ ------------
Gary Stern 2003 375,000 250,000 -- 35,000 1,958
President and Chief 2002 325,000 200,000 -- -- 1,722
Executive Officer 2001 300,000 200,000 -- 1,604
Mitchell Herman 2003 250,000 125,000 -- 25,000 847
Chief Financial Officer 2002 200,000 100,000 -- -- 718
2001 175,000 100,000 -- -- 694
Arthur Stern 2003 275,000 50,000 -- 35,000 --
Chairman 2002 225,000 50,000 -- -- --
2001 225,000 50,000 -- -- --
- ---
(1) The Company did not grant any stock appreciation rights, restricted stock
awards or make any long-term incentive plan payout during the fiscal years ended
September 30, 2003, 2002 or 2001.
(2) Comprised solely of incentive stock options and non-qualified stock options
granted under the Company's 1995 Stock Option Plan. See "1995 Stock Option
Plan."
(3) Includes insurance premium amounts paid by the Company.
STOCK OPTION PLANS
1995 Stock Option Plan
The 1995 Stock Option Plan was adopted in order to attract and retain
qualified directors, officers and employees of and consultants to the Company.
The following description does not purport to be complete and is qualified in
its entirety by reference to the full text of the 1995 Stock Option Plan, which
is included as an exhibit to the Company's reports filed with the SEC.
The 1995 Stock Option Plan authorizes the granting of incentive stock
options (as defined in Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code")) and non-qualified stock options to eligible employees of
the Company, including officers and directors of the Company (whether or not
employees) and consultants of the Company.
The Company has 920,000 shares of Common Stock authorized for issuance
under the 1995 Stock Option Plan and 40,501 shares remain available as of
January 12, 2004. As of January 12, 2004, approximately 108 of the Company's
employees were eligible to participate in the 1995 Stock Option Plan. Future
grants under the 1995 Stock Option Plan have not yet been determined. No option
will vest more than ten years from the date of grant and no option may be
granted after September 14, 2005.
2002 Stock Option Plan
On March 5, 2002, the Board of Directors adopted the Asta Funding, Inc.
2002 Stock Option Plan (the "2002 Plan"), which plan was approved by the
Company's stockholders on May 1, 2002. The 2002 Plan was adopted in order to
attract and retain qualified directors, officers and employees of and
consultants to the Company. The following description does not purport to be
complete and is qualified in its entirety by reference to the full text of the
2002 Plan, which is included as an exhibit to the Company's reports filed with
the SEC.
Page 4
The 2002 Plan authorizes the granting of incentive stock options (as
defined in Section 422 of the Code) and non-qualified stock options to eligible
employees of the Company, including officers and directors of the Company
(whether or not employees) and consultants of the Company.
The Company has 500,000 shares of Common Stock authorized for issuance
under the 2002 Plan and 430,000 were available as of January 12, 2004. As of
January 12, 2004, approximately 108 of the Company's employees were eligible to
participate in the 2002 Plan. Future grants under the 2002 Plan have not yet
been determined. No option will vest more than ten years from the date of grant.
The following tables summarize certain information relating to the
grant of options to purchase Common Stock to the executive officers named in the
Summary Compensation Table.
OPTION/SAR GRANTS IN LAST FISCAL YEAR (1)
Individual Grants
-----------------------------------------------------------------------------------------------
Name Number of Total Exercise of Expiration Grant
Securities Options/ Base Price Date Date
Underlying SARs ($/Sh) Present
Options/ Granted to Value $
SARs Employees in
Granted (#) Fiscal Year
--------------- --------------- --------------- --------------- ---------------
Gary Stern 35,000(2) 31.8% $ 29.74 11/3/13 $ 182,004
Mitchell Herman 25,000(2) 22.7% $ 29.74 11/3/13 $ 130,003
Arthur Stern 35,000(2) 31.8% $ 29.74 11/3/13 $ 182,004
- ---
(1) The Company did not grant any stock appreciation rights to its executive
officers in fiscal 2003.
(2) These options vest in three equal annual installments commencing November 3,
2003.
AGGREGATED OPTION/SAR EXERCISE IN LAST FISCAL YEAR
AND FY-END OPTION/SAR VALUES (1)
Value of
Number of Securities Unexercised
Underlying Unexercised In-The-Money
Options/SARs Options/SARs
Shares at FY-End (#)(1) at FY-End ($)(2)
Acquired Value -------- --------
Name on Exercise(#) Realized ($) Exercisable Unexercisable Exercisable Unexercisable
-------------- -------------- ----------- ------------- ----------- ------------
Gary Stern -- -- 281,000 32,000 $ 6,192,770 $ 524,340
Mitchell Herman 22,000(3) $ 478,720 14,333 28,667 $ 173,267 $ 438,544
Arthur Stern -- -- 116,500 17,000 $ 2,440,915 $ 276,240
- ---
(1) The Company did not grant any stock appreciation rights.
(2) In accordance with SEC rules, values are calculated by subtracting the
exercise price from the fair market value of the underlying Common Stock. For
purposes of this table, fair market value is deemed to be $25.99, the fair
market value of a share of Common Stock on September 30, 2003 (presumed to equal
the last reported sale price of the Common Stock as reported on the Nasdaq
National Market on such date).
(3) Mitchell Herman exercised 22,000 options in fiscal 2003 at an average
exercise price of $4.23.
Page 5
EQUITY COMPENSATION PLAN INFORMATION
The following table gives information about the Company's Common Stock
that may be issued upon the exercise of options, warrants and rights under the
Company's 1995 Stock Option Plan and 2002 Stock Option Plan, as of September 30,
2003. These plans were the Company's only equity compensation plans in existence
as of September 30, 2003.
Plan Category (a) (b) (c)
Number Of Weighted-Average Number Of
Securities Exercise Securities
To Be Price Of Remaining
Issued Upon Outstanding Available
Exercise Of Options, For
Outstanding Warrants Future
Options, and Rights Issuance
Warrants Under
and Rights Equity
Compensation
Plans
(Excluding
Securities
Reflected In
Column (a))
--------------- --------------- ---------------
Equity Compensation Plans Approved by Shareholders 554,500 $ 5.73 741,000
Equity Compensation Plans Not Approved by Shareholders -- -- --
=============== =============== ===============
Total 554,500 $ 5.73 741,000
=============== =============== ===============
COMPENSATION OF DIRECTORS
Directors who are employees of the Company do not receive additional
compensation for serving as directors. Each director who is not an employee of
the Company received a fee of $15,000 for fiscal 2003 and will receive a fee of
$16,000 for fiscal 2004 for serving as a member of the Board of Directors. In
addition, each director who is not an employee of the Company receives an
additional fee of $1,000 for attendance at each committee meeting not held on
the date of a regular meeting of the Board of Directors. The Company reimburses
each director for the expenses incurred in connection with attendance at such
meetings.
On November 3, 2003, the Company granted non-qualified stock options
covering 17,500 shares of Common Stock to: Herman Badillo, Edward Celano, Harvey
Leibowitz, and David Slackman at an exercise price of $29.74 per share.
One-third of such options become exercisable on November 3, 2003, 2004 and 2005.
Employment Agreements
Each of Gary Stern and Mitchell Herman has entered into an Employment
Agreement with the Company, which commenced on October 1, 2001 and will continue
until September 30, 2004. Arthur Stern entered into an Employment Agreement with
the Company on November 11, 2003 which will continue until November 11, 2006.
The Employment Agreements for Arthur Stern, Gary Stern and Mitchell Herman are
collectively referred to as the "Employment Agreements."
The Employment Agreements provide for base annual salaries of $450,000
and $300,000 for Messrs. Gary Stern and Herman, respectively, effective October
1, 2003. The Employment Agreement for Arthur Stern provides for a base annual
salary of $300,000, effective November 11, 2003. Each of Messrs. Gary Stern,
Arthur Stern and Herman may be granted annual bonuses in the discretion of the
Board of Directors. If Messrs. Gary Stern's or Herman's employment with the
Company is terminated for "Disability", "Cause" (as such terms are defined in
the Employment Agreements) or upon death, the Company will pay either Messrs.
Gary Stern or Herman or each of their respective estates, as the case may be,
the base annual salary and other benefits under the Employment Agreement through
the date of termination of employment. If Messrs. Gary Stern's or Herman's
employment with the Company is terminated "Without Cause" (as such term is
defined in the respective Employment Agreements), the Company will pay either
Messrs. Gary Stern or Herman or each of their respective estates, as the case
may be, the base annual salary and other benefits under the Employment Agreement
for the earlier of 18 months after the date of termination of employment or
until such time such employee becomes a full-time employee of another employer.
If Arthur Stern's employment with the Company is terminated for "Cause" (as such
term is defined in his Employment Agreement), the Company will pay Arthur Stern,
the base annual salary and other benefits under the Employment Agreement through
the date of termination of employment. If Arthur Stern's employment with the
Company is terminated for "Disability" or "Without Cause" (as such terms are
defined in the Employment Agreement), or upon death, the Company will pay Arthur
Stern or his estate, the base annual salary and other benefits under the
Employment Agreement for the remainder of the three year term.
Page 6
Each of the Employment Agreements contains certain non-competition
covenants and confidentiality provisions. During the term of the Employment
Agreements and for a period of 12 months after the date of termination of the
Employment Agreements, or for such period as the Company will continue to pay
Messrs. Gary Stern, Arthur Stern or Herman, as the case may be, their base
salary and other benefits under the Employment Agreements, Messrs. Gary Stern,
Arthur Stern and Herman, as the case may be, will not, in any geographic area in
which the Company does business as of the date of termination of such Employment
Agreement, directly or indirectly, compete with or be engaged in the same
business as the Company or its subsidiaries.
Page 7
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth information as of January 12, 2004 with
respect to beneficial ownership of the Company's Common Stock by (i) each
director and executive officer, (ii) each person known by the Company to own
beneficially more than five percent of the Company's outstanding Common Stock,
and (iii) all directors and executive officers as a group. Unless otherwise
indicated, the address of each such person is c/o Asta Funding, Inc., 210 Sylvan
Avenue, Englewood Cliffs, New Jersey 07632. All persons listed have sole voting
and investment power with respect to their shares unless otherwise indicated.
Name and Address of Beneficial Owner Number Percentage
------ ----------
Arthur Stern.......................................... 337,408(2) 5.0%
Gary Stern............................................ 679,946(3) 9.8%
Mitchell Herman....................................... 74,608(4) 1.1%
Herman Badillo
909 Third Avenue
New York, New York 10022.............................. 22,833(5) *
Edward Celano
2115 Scotch Gamble Road
Scotch Plains, New Jersey ............................ 5,834(6) *
Harvey Leibowitz
159 West 53rd Street, Apt 229
New York, New York 10019.............................. 50,667(7) *
David Slackman
28 Markwood Lane
East Northport, NY 11731.............................. 5,834(8) *
Asta Group, Incorporated.............................. 421,000(9) 6.3%
Barbara Marburger
9 Locust Hollow Road
Monsey, New York 10952................................ 220,220(10) 3.3%
Judith R. Feder
928 East 10th Street
Brooklyn, New York 11230.............................. 947,000(11) 14.1%
Stern Family Investors LLC............................ 358,000(12) 5.4%
GMS Family Investors LLC.............................. 581,000(13) 8.8%
All executive officers and directors
as a group (7 persons)................................ 1,177,130(14) 16.5%
* Less than 1%
(1) Any shares of common stock that any person named above has the right
to acquire within 60 days of January 12, 2004, are deemed to be
outstanding for purposes of calculating the ownership percentage of such
person, but are not deemed to be outstanding for purposes of calculating
the beneficial ownership percentage of any other person.
(2) Includes 134,167 shares of common stock issuable upon exercise of
options that are exercisable within 60 days of January 12, 2004, and
107,271 shares of common stock owned by Asta Group, Incorporated which
shares are attributable to Arthur Stern based on his percentage
ownership of Asta Group, Incorporated. Excludes 212,000 shares owned by
Stern Family Investors LLC which shares are attributable to Arthur Stern
based on his percentage ownership of such LLC and 1,000 shares owned by
GMS Family Investors LLC which shares are attributable to Arthur Stern
based on his percentage ownership of such LLC. Arthur Stern does not
have voting or investment power with respect to any of the shares held
by either LLC and disclaims beneficial ownership of the shares owned by
the LLCs. Also excludes 34,333 shares of common stock issuable upon
exercise of options that are not exercisable within 60 days of January
12, 2004.
(3) Includes 303,667 shares of common stock issuable upon exercise of
options that are exercisable within 60 days of January 12, 2004, and
98,328 shares of common stock owned by Gary Stern as custodian for his
minor children and 142,761 shares of common stock owned by Asta Group,
Incorporated, which shares are attributable to Gary Stern based on his
percentage ownership of Asta Group, Incorporated. Excludes 700,000
shares owned by GMS Family Investors LLC which shares are attributable
to Gary Stern based on his percentage ownership of such LLC. Gary Stern
does not have voting or investment power with respect to any of the
shares held by the LLC and disclaims beneficial ownership of the shares
owned by the LLC. Also excludes 44,333 shares of common stock issuable
upon exercise of options that are not exercisable within 60 days of
January 12, 2004, and 98,328 shares of common stock held by one of his
children who is no longer a minor and for which he disclaims beneficial
ownership.
Page 8
(4) Includes 8,334 shares of common stock issuable upon exercise of
options that are exercisable within 60 days of January 12, 2004, and
6,000 shares of common stock owned by Mitchell Herman as custodian for
his minor child. Excludes 37,667 shares of common stock issuable upon
exercise of options that are not exercisable within 60 days of January
12, 2004.
(5) Represents 22,833 shares of common stock issuable upon exercise of
options that are exercisable within 60 days of January 12, 2004.
Excludes 22,667 shares of common stock issuable upon exercise of options
that are not exercisable within 60 days of January 12, 2004.
(6) Represents 5,834 shares of common stock issuable upon exercise of
options that are exercisable within 60 days of January 12, 2004.
Excludes 19,333 shares of common stock issuable upon exercise of options
that are not exercisable within 60 days of January 12, 2004.
(7) Includes 28,667 shares of common stock issuable upon exercise of
options exercisable within 60 days of January 12, 2004. Excludes 19,333
shares of common stock issuable upon exercise of options that are not
exercisable within 60 days of January 12, 2004.
(8) Represents 5,834 shares of common stock issuable upon exercise of
options exercisable within 60 days of January 12, 2004. Excludes 18,333
shares of common stock issuable upon exercise of options that are not
exercisable within 60 days of January 12, 2004.
(9) Asta Group, Incorporated is owned by Arthur Stern, our Chairman of
the Board and an Executive Vice President, Gary Stern, our President and
Chief Executive Officer, and other members of the Stern family,
including Barbara Marburger.
(10) Includes 45,338 shares of common stock owned by Barbara Marburger
as custodian for her minor child and 35,448 shares of common stock owned
by Asta Group, Incorporated, which shares are attributable to Barbara
Marburger based on her percentage ownership of Asta Group, Incorporated.
Excludes shares of common stock held by her children who are no longer
minors and for which she disclaims beneficial ownership. Barbara
Marburger is the daughter of Arthur Stern and the sister of Gary Stern.
(11) Includes 8,000 shares owned directly, 358,000 shares owned by Stern
Family Investors LLC and 581,000 shares owned by GMS Family Investors
LLC. Ms. Feder is the manager of each LLC and as such has sole voting
and investment power as to such shares.
(12) A limited liability company of which Judith R. Feder has sole
voting and investment power. Arthur Stern has a 49.5% beneficial
interest in the LLC, his wife, Alice Stern, has a 1% beneficial
interest, and a trust for the benefit of the descendants of Arthur
Stern, of which Judith R. Feder is trustee, has a 49.5% beneficial
interest in the LLC.
(13) A limited liability company of which Judith R. Feder has sole
voting and investment power. Gary Stern has a 79.46% beneficial interest
in the LLC, trusts for the benefit of the children of Gary Stern of
which Judith R. Feder is the trustee have a combined 20.43% beneficial
interest (10.215% each), and Arthur Stern has a .11% beneficial interest
in the LLC.
(14) Includes 509,336 shares of common stock issuable upon exercise of
options that are exercisable within 60 days of January 12, 2004.
Excludes 195,999 shares of common stock issuable upon exercise of
options that are not exercisable within 60 days of January 12, 2004, and
the shares owned in the aggregate by Stern Family Investors LLC and GMS
Family Investors LLC.
Page 9
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
From time to time Asta Group, Incorporated makes advances to the
Company. During the year ended September 30, 2003, Asta Group, Incorporated did
not make any advances to the Company and its subsidiaries.
The Company has employment agreements with certain of its executive
officers. See "Item 11 -- Executive Compensation -- Employment Agreements".
In the future, transactions with officers, directors and affiliates of
the Company are anticipated to be minimal and will be approved by a majority of
the Board of Directors, including a majority of the disinterested members of the
Board of Directors, and will be made on terms no less favorable to the Company
than could be obtained from unaffiliated third parties.
Page 10
ITEM 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES.
Audit Fees. The Company was billed $75,487 for the audit of the
Company's annual financial statements for the year ended September 30, 2003 and
for the review of the financial statements included in the Company's Quarterly
Reports on Form 10-QSB filed during fiscal 2003.
Financial Information Systems Design Implementation Fees. The Company
was not billed for and did not receive any professional services described in
Paragraph (c)(4)(ii) of Rule 2-01 of the SEC's Regulation S-X (in general,
information technology services) from the Company's principal accountant during
the year ended September 30, 2003.
All Other Fees. The Company was billed $96,977 for non-audit services
from the Company's principal accountant during the year ended September 30,
2003. Such non-audit services were comprised of $76,300 in connection with the
Company's registration statement filed in June 2003, and $20,677 in connection
with due diligence services related to an acquisition not consummated.
Other Matters. The Audit Committee of the Board of Directors has
considered whether the provision of non-audit services as described above is
compatible with maintaining the independence of the Company's principal
accountant.
Of the time expended by the Company's principal accountant to audit the
Company's financial statements for the fiscal year ended September 30, 2003,
less than 50% of such time involved work performed by persons other than the
principal accountant's full-time, permanent employees.
Page 11
SIGNATURES
In accordance with Section 13 or 15(d) of the Exchange Act, the Registrant
caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
ASTA FUNDING, INC.
Dated: January 28, 2004 By: /S/ Gary Stern
------------------ ---------------------------
Gary Stern, President
In accordance with the Exchange Act, this report has been signed below by the
following persons on behalf of the Registrant and in the capacities and on the
dates indicated:
Signature Title Date
--------- ----- ----
/S/ Gary Stern President, Chief Executive Officer January 28, 2004
- ---------------------------- and Director
Gary Stern
/S/ Mitchell Herman Chief Financial Officer, Secretary, January 28, 2004
- ---------------------------- and Director
Mitchell Herman
/S/ Arthur Stern Chairman of the Board and January 28, 2004
- ---------------------------- Executive Vice President
Arthur Stern
/S/ Herman Badillo Director January 28, 2004
- ----------------------------
Herman Badillo
/S/ Edward Celano Director January 28, 2004
- ----------------------------
Edward Celano
/S/ Harvey Leibowitz Director January 28, 2004
- ----------------------------
Harvey Leibowitz
/S/ David Slackman Director January 28, 2004
- ----------------------------
David Slackman
Page 12
Part IV
Item 15. Exhibits.
(a) Exhibits
Exhibit
Number
------
31.1 Certification of Registrant's Chief Executive
Officer, Gary Stern, pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
31.2 Certification of Registrant's Chief Financial
Officer, Mitchell Herman, pursuant to Section 302
of the Sarbanes-Oxley Act of 2002.
32.1 Certification of the Registrant's Chief Executive
Officer, Gary Stern, pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002.
32.2 Certification of the Registrant's Chief Financial
Officer, Mitchell Herman, pursuant to Section 906
of the Sarbanes-Oxley Act of 2002.