Securities Registration: Employee Benefit Plan (s-8)

 

As filed with the Securities and Exchange Commission on December 22, 2016.

Registration No. 333-                

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM S-8

 

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

INSTITUTIONAL FINANCIAL MARKETS, INC.

(Exact name of registrant as specified in its charter)

 

Maryland		16-1685692
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)

 

Cira Centre, 2929 Arch Street, 17th Floor, Philadelphia, Pennsylvania 19104-2870

(Address of principal executive offices) (Zip Code)

 

INSTITUTIONAL FINANCIAL MARKETS, INC.

SECOND AMENDED AND RESTATED 2010 LONG-TERM INCENTIVE PLAN

(Full title of the plan)

 

Joseph W. Pooler, Jr.

Chief Financial Officer

Cira Centre

2929 Arch Street, 17th Floor

Philadelphia, PA 19104-2870

(Name and address of agent for service)

 

[phone]

(Telephone number, including area code, of agent for service)

 

Copies to:

 

Darrick M. Mix, Esq.

Duane Morris LLP

30 South 17th Street

Philadelphia, PA 19103-4196

[phone]

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer	o	Accelerated filer	o
Non-accelerated filer	o (Do not check if a smaller reporting company)	Smaller reporting company	x

 

CALCULATION OF REGISTRATION FEE

 

Title of Securities to be Registered		Amount to be Registered(1)		Proposed Maximum Offering Price Per Share(2)			Proposed Maximum Aggregate Offering Price(2)			Amount of Registration Fee(2)
Common Stock, par value $0.001 per share		2,000,000		$	1.16		$	2,320,000		$	268.89
Preferred Stock Purchase Rights(3)		—		—			—			—

(1)          Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers such additional shares as may hereafter be offered or issued to prevent dilution resulting from stock splits, stock dividends, recapitalizations or certain other capital adjustments.

(2)          Calculated pursuant to Rule 457(h) under the Securities Act based upon the average ($1.16) of the high ($1.17) and low ($1.14) prices of Institutional Financial Markets, Inc.’s (the “Registrant”) common stock, par value $0.001 per share (“Common Stock”), reported by the NYSE MKT on December 16, 2016, which is within five (5) business days prior to the date of this Registration Statement.

(3)          Each share of Common Stock is accompanied by a right to purchase a unit consisting of one ten-thousandth of a share of the Registrant’s Series C Junior Participating Preferred Stock, par value $0.001 per share, pursuant to a Rights Agreement between the Registrant and Computershare Inc., as Rights Agent.

 

 

 

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EXPLANATORY STATEMENT

 

Institutional Financial Markets, Inc. (the “Registrant”) has filed this Registration Statement to register under the Securities Act of 1933, as amended (the “Securities Act”), the offer and sale of 2,000,000 shares of the Registrant’s common stock, par value $0.001 per share (the “Common Stock”), not previously registered, pursuant to the Registrant’s Second Amended and Restated 2010 Long-Term Incentive Plan, as amended (the “Plan”). Such shares are being registered in addition to the Common Stock previously registered for issuance on the Registrant’s Registration Statements on Form S-8 concerning the Plan filed with the U.S. Securities and Exchange Commission (the “Commission”) on April 29, 2010 (Registration No. 333-166386), May 17, 2011 (Registration No. 333-174281) and on April 4, 2014 (Registration No. 333-195056) (together, the “Prior Registration Statements”).

 

Effective as of October 27, 2016, the Board of Directors of the Registrant authorized the registration of an additional 2,000,000 shares of Common Stock under the Plan. In accordance with Instruction E to the General Instructions to Form S-8, the Registrant is registering the additional 2,000,000 shares of Common Stock which may, following approval of the Plan by the Registrant’s stockholders, which occurred on December 21, 2016, be offered and sold under the Plan pursuant to this Registration Statement, and the contents of the Prior Registration Statements are incorporated by reference herein, except to the extent supplemented, amended or superseded by the information set forth herein.

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.          Incorporation of Documents by Reference.

 

The following documents filed with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated into this Registration Statement by reference (other than, in each case, documents or information deemed to have been furnished and not filed in accordance with the Commission’s rules):

 

(a)          The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2015, filed with the Commission on March 9, 2016, as amended by Amendment No. 1 on Form 10-K/A, filed with the Commission on April 26, 2016;

 

(b)          The Registrant’s Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2016, June 30, 2016 and September 30, 2016, filed with the Commission on May 4, 2016, August 4, 2016 and November 2, 2016, respectively;

 

(c)           The Registrant’s Current Reports on Form 8-K, filed with the Commission on February 19, 2016, March 17, 2016, March 25, 2016, August 3, 2016, October 5, 2016 and December 21, 2016, respectively;

 

(d)          The description of the Registrant’s shares of Common Stock contained in its registration statement on Form 8-A filed by the Registrant with the Commission on December 16, 2009 pursuant to Section 12(b) of the Exchange Act, including all amendments and reports filed for the purpose of updating such description; and

 

(e)           The description of the Registrant’s preferred stock purchase rights contained in its registration statement on Form 8-A filed by the Registrant with the Commission on August 3, 2016 pursuant to Section 12(b) of the Exchange Act, including all amendments and reports filed for the purpose of updating such description.

 

All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered 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 such documents. 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.

 

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Item 8.          Exhibits.

 

The following Exhibits are filed as part of this Registration Statement:

 

Exhibit No.		Description
4.1		Second Articles of Amendment and Restatement (incorporated by reference to Exhibit 3.1 to Amendment No. 1 to the Registrant’s Registration Statement on Form S-11 (Registration No. 333-111018) filed with the Commission on February 6, 2004).
4.2		Articles of Amendment changing the Registrant’s name to Alesco Financial Inc. (incorporated by reference to Exhibit 3.1 to the Registrant’s Registration Statement on Form S-3 (Registration No. 333-138136) filed with the Commission on October 20, 2006)
4.3		Articles of Amendment to Effectuate a Reverse Stock Split (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the Commission on December 17, 2009).
4.4		Articles of Amendment to Set Par Value (incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed with the Commission on December 17, 2009).
4.5		Articles Supplementary — Series A Voting Convertible Preferred Stock (incorporated by reference to Exhibit 3.3 to the Registrant’s Current Report on Form 8-K filed with the Commission on December 17, 2009).
4.6		Articles Supplementary — Series B Voting Non-Convertible Preferred Stock (incorporated by reference to Exhibit 3.4 to the Registrant’s Current Report on Form 8-K filed with the Commission on December 17, 2009).
4.7		Articles of Amendment to change Name to Cohen & Company Inc. (incorporated by reference to Exhibit 3.5 to the Registrant’s Current Report on Form 8-K filed with the Commission on December 17, 2009)
4.8		Articles Supplementary — Series C Junior Participating Preferred Stock (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the Commission on December 28, 2009).
4.9		Articles of Amendment Changing Name to Institutional Financial Markets, Inc. (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the Commission on January 24, 2011).
4.10		By-laws, as amended (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the Commission on October 11, 2005).
4.11		Articles Supplementary — Series D Voting Non-Convertible Preferred Stock (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the Commission on December 31, 2012).
4.12		Articles Supplementary — Series E Voting Non-Convertible Preferred Stock (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the Commission on May 13, 2013).
4.13		Form of 10.50% Contingent Convertible Senior Notes due 2027 (incorporated by reference to Exhibit 4.2 to the Registrant’s Current Report on Form 8-K filed with the Commission on July 26, 2011).
4.14		Junior Subordinated Indenture, dated as of March 15, 2005, by and between Sunset Financial Resources, Inc. (now Institutional Financial Markets, Inc.) and JPMorgan Chase Bank, National Association (incorporated by reference to Exhibit 10.62 to the Registrant’s Annual Report on Form 10-K filed with the Commission on March 31, 2005).
4.15		Junior Subordinated Indenture, dated as of June 25, 2007, by and between Alesco Financial Inc. and Wells Fargo Bank, N.A. (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K filed with the Commission on June 29, 2007).
4.16		Form of Specimen Stock Certificate (incorporated by reference to Exhibit 4.1 to the Registrant’s Annual Report on Form 10-K filed with the Commission on March 10, 2010).

 

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Exhibit No.		Description
4.17		Registration Rights Agreement, dated as of May 9, 2013, by and among Institutional Financial Markets, Inc., Cohen Bros. Financial, LLC and Mead Park Capital Partners LLC (incorporated by reference to Exhibit 10.3 to the Registrant’s Current Report on Form 8-K filed with the Commission on May 13, 2013).
4.18		Form of Indenture (incorporated by reference to Exhibit 4.18 to the Registrant’s Registration Statement on Form S-3 (Registration No. 333-193975) filed with the Commission on February 14, 2014).
4.19		Section 382 Rights Agreement, dated August 3, 2016, between Institutional Financial Markets, Inc. and Computershare Inc. (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K filed with the Commission on August 3, 2016).
5.1*		Opinion of Duane Morris LLP.
23.1*		Consent of Grant Thornton LLP, Independent Registered Public Accounting Firm.
23.2*		Consent of Duane Morris LLP (included in Exhibit 5.1).
24.1*		Power of Attorney (included on signature pages of this Registration Statement).

 

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*   Filed herewith.

 

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

 

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. 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 a 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 the Registration Statement or any material change to such information in the Registration Statement;

 

Provided, however,  that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement;

 

(2)          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; and

 

(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.

 

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(b)          The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to 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

 

(c)           Insofar as indemnification for liabilities arising under the Securities Act 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 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 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 Securities Act and will be governed by the final adjudication of such issue.

 

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SIGNATURES AND POWER OF ATTORNEY

 

Pursuant to the requirements of the Securities Act of 1933, 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 Philadelphia, Commonwealth of Pennsylvania, on this 22nd day of December, 2016.

 

	INSTITUTIONAL FINANCIAL MARKETS, INC.
	By:	/s/ Lester R. Brafman
		Lester R. Brafman
		Chief Executive Officer (Principal Executive Officer)

 

KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Lester R. Brafman, Joseph W. Pooler, Jr. and Rachael Fink, acting individually, the undersigned’s true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for the undersigned and in the undersigned’s 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 attorney-in-fact and agent 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 the undersigned might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, 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.

 

Signatures		Title		Date
/s/ Lester R. Brafman		Chief Executive Officer		December 22, 2016
Lester R. Brafman		(Principal Executive Officer)
/s/ Daniel G. Cohen		Director		December 22, 2016
Daniel G. Cohen
/s/ Thomas P. Costello		Director		December 22, 2016
Thomas P. Costello
/s/ G. Steven Dawson		Director		December 22, 2016
G. Steven Dawson
/s/ Jack J. DiMaio, Jr.		Chairman		December 22, 2016
Jack J. DiMaio, Jr.
/s/ Jack Haraburda		Director		December 22, 2016
Jack Haraburda
/s/ Diana Louise Liberto		Director		December 22, 2016
Diana Louise Liberto
/s/ James J. McEntee, III		Director		December 22, 2016
James J. McEntee, III
/s/ Neil S. Subin		Director		December 22,2016
Neil S. Subin
/s/ Joseph W. Pooler, Jr.		Executive Vice President, Chief Financial Officer and Treasurer		December 22,2016
Joseph W. Pooler, Jr.		(Principal Financial Officer)
/s/ Douglas Listman		Chief Accounting Officer and Assistant Treasurer		December 22,2016
Douglas Listman		(Principal Accounting Officer)

 

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EXHIBIT INDEX

 

Exhibit No.		Description
4.1		Second Articles of Amendment and Restatement (incorporated by reference to Exhibit 3.1 to Amendment No. 1 to the Registrant’s Registration Statement on Form S-11 (Registration No. 333-111018) filed with the Commission on February 6, 2004).
4.2		Articles of Amendment changing the Registrant’s name to Alesco Financial Inc. (incorporated by reference to Exhibit 3.1 to the Registrant’s Registration Statement on Form S-3 (Registration No. 333-138136) filed with the Commission on October 20, 2006)
4.3		Articles of Amendment to Effectuate a Reverse Stock Split (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the Commission on December 17, 2009).
4.4		Articles of Amendment to Set Par Value (incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed with the Commission on December 17, 2009).
4.5		Articles Supplementary — Series A Voting Convertible Preferred Stock (incorporated by reference to Exhibit 3.3 to the Registrant’s Current Report on Form 8-K filed with the Commission on December 17, 2009).
4.6		Articles Supplementary — Series B Voting Non-Convertible Preferred Stock (incorporated by reference to Exhibit 3.4 to the Registrant’s Current Report on Form 8-K filed with the Commission on December 17, 2009).
4.7		Articles of Amendment to change Name to Cohen & Company Inc. (incorporated by reference to Exhibit 3.5 to the Registrant’s Current Report on Form 8-K filed with the Commission on December 17, 2009)
4.8		Articles Supplementary — Series C Junior Participating Preferred Stock (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the Commission on December 28, 2009).
4.9		Articles of Amendment Changing Name to Institutional Financial Markets, Inc. (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the Commission on January 24, 2011).
4.10		By-laws, as amended (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the Commission on October 11, 2005).
4.11		Articles Supplementary — Series D Voting Non-Convertible Preferred Stock (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the Commission on December 31, 2012).
4.12		Articles Supplementary — Series E Voting Non-Convertible Preferred Stock (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the Commission on May 13, 2013).
4.13		Form of 10.50% Contingent Convertible Senior Notes due 2027 (incorporated by reference to Exhibit 4.2 to the Registrant’s Current Report on Form 8-K filed with the Commission on July 26, 2011).
4.14		Junior Subordinated Indenture, dated as of March 15, 2005, by and between Sunset Financial Resources, Inc. (now Institutional Financial Markets, Inc.) and JPMorgan Chase Bank, National Association (incorporated by reference to Exhibit 10.62 to the Registrant’s Annual Report on Form 10-K filed with the Commission on March 31, 2005).
4.15		Junior Subordinated Indenture, dated as of June 25, 2007, by and between Alesco Financial Inc. and Wells Fargo Bank, N.A. (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K filed with the Commission on June 29, 2007).
4.16		Form of Specimen Stock Certificate (incorporated by reference to Exhibit 4.1 to the Registrant’s Annual Report on Form 10-K filed with the Commission on March 10, 2010).
4.17		Registration Rights Agreement, dated as of May 9, 2013, by and among Institutional Financial Markets, Inc., Cohen Bros. Financial, LLC and Mead Park Capital Partners LLC (incorporated by reference to Exhibit 10.3 to the Registrant’s Current Report on Form 8-K filed with the Commission on May 13, 2013).
4.18		Form of Indenture (incorporated by reference to Exhibit 4.18 to the Registrant’s Registration Statement on Form S-3 (Registration No. 333-193975) filed with the Commission on February 14, 2014).
4.19		Section 382 Rights Agreement, dated August 3, 2016, between Institutional Financial Markets, Inc. and Computershare Inc. (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K filed with the Commission on August 3, 2016).
5.1*		Opinion of Duane Morris LLP.
23.1*		Consent of Grant Thornton LLP, Independent Registered Public Accounting Firm.
23.2*		Consent of Duane Morris LLP (included in Exhibit 5.1).
24.1*		Power of Attorney (included on signature pages of this Registration Statement).

 

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*   Filed herewith.

 

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