10-K/A 1 form10ka.txt AMENDMENT TO FORM 10-K FOR YEAR ENDED DECEMBER 31, 2007 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