As filed with the Securities and Exchange Commission on June 26, 2020
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
THE SECURITIES ACT OF 1933
MEDALLION FINANCIAL CORP.
(Exact Name of registrant as specified in its charter)
(State or other jurisdiction of
incorporation or organization)
437 Madison Avenue, 38th Floor
New York, New York 10022
(Address, including Zip Code, of Principal Executive Offices)
Medallion Financial Corp. 2018 Equity Incentive Plan
(Full title of the plan)
Marisa T. Silverman, Esq.
Chief Compliance Officer, General Counsel and Secretary
Medallion Financial Corp.
437 Madison Avenue, 38th Floor
New York, New York 10022
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Jeffrey S. Hochman, Esq.
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, New York 10019
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See definitions of large accelerated filer, accelerated filer, smaller reporting company, and emerging growth company in Rule 12b-2 of the Exchange Act.
|Large accelerated filer||☐||Accelerated filer||☒|
|Non-accelerated filer||☐ (Do not check if a smaller reporting company)||Smaller reporting company||☒|
|Emerging growth company||☐|
If an emerging growth company, indicate by check mark if the Registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
Calculation of Registration Fee
Title of securities
to be registered
Common Stock, par value $0.01 per share
|(1)||This Registration Statement covers 716,410 shares of the common stock of Medallion Financial Corp. (the Registrant), par value $0.01 per share (the Common Stock), authorized to be issued pursuant to the Medallion Financial Corp. 2018 Equity Incentive Plan, as amended (the 2018 Plan). In addition, this Registration Statement covers an indeterminable number of additional shares as may hereafter be offered or issued pursuant to the 2018 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 Rules 457(c) and 457(h)(1) under the Securities Act, based on the average of high and low prices reported on the NASDAQ Global Select Market on June 22, 2020.|
On July 11, 2018, Medallion Financial Corp. (the Registrant) filed a registration statement on Form S-8 (Registration No. 333- 226130) (the Prior Registration Statement) with the Securities and Exchange Commission (the Commission) registering 1,494,558 shares of the Registrants common stock, par value $0.01 per share (the Common Stock), available for issuance under the Medallion Financial Corp. 2018 Equity Incentive Plan, as amended from time to time (the 2018 Plan). On June 19, 2020, the stockholders of the Registrant approved an amendment to the 2018 Plan to increase the number of shares issuable thereunder by an additional 710,715 shares. This Registration Statement on Form S-8 relates to such additional 710,715 shares available for issuance under the 2018 Plan, and an additional 5,695 shares of Common Stock available for issuance under the 2018 Plan not previously registered on the Prior Registration Statement, and, pursuant to General Instruction E for registration statements on Form S-8, the filing fee relates only to such increase.
Pursuant to General Instruction E for registration statements on Form S-8, the contents of the Prior Registration Statement, filed with the Commission on July 11, 2018, are incorporated herein by reference, to the extent not otherwise amended or superseded by the contents hereof.
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
All information required by Part I to be contained in the prospectus is omitted from this Registration Statement in accordance with Section 428 under the Securities Act and the instructions to Form S-8 and instead will be delivered, pursuant to Rule 428 under the Securities Act, to each participant in the 2018 Plan.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
|Item 3.|| |
Incorporation of Documents by Reference
The following documents filed by the Registrant with the Commission under the Securities Act or the Securities Exchange Act of 1934, as amended (Exchange Act), are incorporated herein by reference and made a part hereof:
|(a)||The Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2019, as amended by Amendment No. 1 thereto (the Form 10-K Amendment) filed with the Commission on June 5, 2020;|
|(b)||The Registrants Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2020, filed with the Commission on May 7, 2020;|
|(c)||The Registrants Current Reports on Form 8-K filed with the Commission on February 3, 2020, June 4, 2020, June 22, 2020, and June 24, 2020; and|
|(d)||The description of the Common Stock, incorporated by reference into the Registrants Registration Statement on Form 8-A, as updated in the Registrants Registration Statement on Form S-3 (under the heading Description of Our Capital Stock), filed pursuant to the Securities Act on May 23, 2019 and by Exhibit 4.1 in the Form 10-K Amendment.|
All documents filed by the Registrant after the date of this Registration Statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of the post-effective amendment that indicates that all Common Stock offered hereby has been sold or which deregisters such Common Stock then remaining unsold, shall be deemed to be incorporated in this Registration Statement by reference and shall be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference in this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document that also is or is deemed to be incorporated by reference in this Registration Statement modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or so superseded, to constitute a part of this Registration Statement.
|Item 6.|| |
Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law (the DGCL) grants the Registrant 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 Registrant, or is or was serving at the Registrants request 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 Registrant, 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 our right where the person involved is adjudged to be liable to the Registrant except to the extent approved by a court. Article TENTH of the Registrants certificate of incorporation as currently in effect provides that the Registrant shall, to the fullest extent permitted by the DGCL, 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, the Registrants director or officer, or is or was serving, or has agreed to serve, at the request of the Registrant, 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 shareholders 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 to authorize the grant of indemnification rights to the Registrants other employees and agents and such rights may be equivalent to, or greater or less than, those set forth in Article TENTH.
Article V, Section 2 of the Registrants by-laws provides that the Registrant shall have the power to purchase and maintain insurance on behalf of any person who is or was the Registrants director, officer, employee or agent, or is or was serving at the Registrants request, 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 DGCL, Article NINTH of the Registrants certificate of incorporation eliminates a directors personal liability for monetary damages to the Registrant and its shareholders 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 DGCL.
The Registrants by-laws and certificate of incorporation provide indemnification to the maximum extent permitted by Delaware law.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to the Registrants directors, officers and controlling persons pursuant to the provisions described above, or otherwise, the Registrant 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 Registrant of expenses incurred or paid by a director, officer or controlling person in the successful defense of an action, suit or proceeding) is asserted by a 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 Securities Act and will be governed by the final adjudication of such issue.
The Registrant has purchased insurance on behalf of the Registrants directors and officers for liabilities arising out of their capacities as such.
|Item 8.|| |
|4.1||Restated Medallion Financial Corp. Certificate of Incorporation (filed as Exhibit 3.1 to the Annual Report on Form 10-K for the fiscal year ended December 31, 1996 (File No. 000-27812) and incorporated by reference herein).|
|4.2||Amendment to Restated Certificate of Incorporation (filed as Exhibit 3.1.1 to the Quarterly Report on Form 10-Q for the quarterly period ended June 30, 1998 (File No. 000-27812) and incorporated by reference herein).|
|4.3||Amended and Restated By-Laws of Medallion Financial Corp. (filed as Exhibit 3.1 to the Current Report on Form 8-K filed on April 27, 2018 (File No. 001-37747) and incorporated by reference herein).|
|4.4||Medallion Financial Corp. 2018 Equity Incentive Plan (filed as Annex A to the Registrants Definitive Proxy Statement for the Registrants 2018 Annual Meeting of Shareholders filed on April 30, 2018 (File No. 001-37747) and incorporated by reference herein).|
|4.5||Amendment to Medallion Financial Corp. 2018 Equity Incentive Plan (filed as Annex A to the Registrants Definitive Proxy Statement for the Registrants 2020 Annual Meeting of Shareholders filed on April 28, 2020 (File No. 001-37747) and incorporated by reference herein).|
|5||Opinion of Willkie Farr & Gallagher LLP, counsel to the Registrant, as to the legality of the shares of Common Stock to be originally issued pursuant to the Plan (filed herewith).|
|23.1||Consent of Mazars USA LLP (filed herewith).|
|23.2||Consent of Willkie Farr & Gallagher LLP (included in Exhibit 5).|
|24||Power of Attorney (included in the signature page).|
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 June 26, 2020.
|MEDALLION FINANCIAL CORP.|
|By:||/s/ Alvin Murstein|
|Chairman and Chief Executive Officer|
POWER OF ATTORNEY
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 of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
|/s/ Alvin Murstein||Chairman of the Board of Directors||June 26, 2020|
and Chief Executive Officer
(Principal Executive Officer)
|/s/ Larry D. Hall||Senior Vice President and||June 26, 2020|
|Larry D. Hall||
Chief Financial Officer
(Principal Financial and
|/s/ Andrew M. Murstein||President, Chief Operating Officer||June 26, 2020|
|Andrew M. Murstein||and Director|
|/s/ John Everets||Director||June 26, 2020|
|/s/ Cynthia A. Hallenbeck||Director||June 26, 2020|
|Cynthia A. Hallenbeck|
|/s/ Frederick A. Menowitz||Director||June 26, 2020|
|Frederick A. Menowitz|
|/s/ David L. Rudnick||Director||June 26, 2020|
|David L. Rudnick|
|/s/ Allan J. Tanenbaum||Director||June 26, 2020|
|Allan J. Tanenbaum|
787 Seventh Avenue
New York, NY 10019-6099
Tel: 212 728 8000
Fax: 212 728 8111
June 26, 2020
Medallion Financial Corp.
437 Madison Avenue, 38th Floor
New York, New York 10022
Ladies and Gentlemen:
We have acted as counsel to Medallion Financial Corp. (the Company), a corporation organized under the laws of the State of Delaware, with respect to the Companys Registration Statement on Form S-8 (the Registration Statement) to be filed by the Company with the Securities and Exchange Commission on or about the date hereof, in connection with the registration under the Securities Act of 1933, as amended (the Act), by the Company of 716,410 additional shares of the Companys common stock, par value $0.01 per share (the Shares), issuable in connection with the award of stock-based incentives (Awards) under the Medallion Financial Corp. 2018 Equity Incentive Plan, as amended (the Plan).
We have examined, among other things, originals and/or copies (certified or otherwise identified to our satisfaction) of such documents, papers, statutes and authorities as we have deemed necessary to form a basis for the opinion hereinafter expressed. In our examination, we have assumed the genuineness of all signatures and the conformity to original documents of all copies submitted to us. As to various questions of fact material to our opinion, we have relied without independent check or verification upon statements, certificates and comparable documents of officers and representatives of the Company.
Based on the foregoing, we are of the opinion that the Shares issuable in connection with Awards under the Plan, when duly issued and delivered pursuant to the terms of the Awards and the Plan, will be validly issued, fully paid and non-assessable.
This opinion is limited to the General Corporation Law of the State of Delaware, and we express no opinion with respect to the laws of any other jurisdiction or any other laws of the State of Delaware. This opinion speaks only as of the date hereof and is limited to present statutes, regulations and administrative and judicial interpretations. We undertake no responsibility to update or supplement this letter after the date hereof.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
/s/ Willkie Farr & Gallagher LLP
NEW YORK WASHINGTON HOUSTON PALO ALTO SAN FRANCISCO CHICAGO PARIS LONDON FRANKFURT BRUSSELS MILAN ROME
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in the Registration Statement on Form S-8 (filed on or about June 26, 2020) pertaining to the Medallion Financial Corp. 2018 Equity Incentive Plan of our reports dated March 30, 2020 on (i) the consolidated financial statements of Medallion Financial Corp. and subsidiaries as of December 31, 2019 and 2018 and for each of the three years in the three-year period ended December 31, 2019 and on the selected financial ratios and other data for each of the three years in the three-year period ended December 31, 2017, and (ii) the effectiveness of internal control over financial reporting as of December 31, 2019, all of which appear in the Annual Report on Form 10-K of Medallion Financial Corp. for the year ended December 31, 2019.
|/s/ Mazars USA LLP|
|Mazars USA LLP|
|Edison, New Jersey|
|June 26, 2020|