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As filed with the Securities and Exchange Commission on July 1, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMERICAN BUSINESS FINANCIAL SERVICES, INC.
(Exact name of Registrant as specified in its charter)
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Delaware 6162 87-0418807
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<S> <C> <C>
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
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AMERICAN BUSINESS FINANCIAL SERVICES, INC.
BalaPointe Office Centre
111 Presidential Boulevard
Bala Cynwyd, PA 19004
(Address, including zip code of Registrant=s principal executive offices)
AMERICAN BUSINESS CREDIT, INC.
401(K) PLAN
(Full title of the Plan)
ANTHONY J. SANTILLI, JR.
Chairman, President, Chief Executive Officer,
Chief Operating Officer and Director
American Business Financial Services, Inc.
BalaPointe Office Centre
111 Presidential Boulevard
Bala Cynwyd, PA 19004
(610) 668-2440
(Name, address and telephone number,
including area code, of agent for service)
Copies to:
JANE K. STORERO, ESQUIRE
Blank Rome Comisky & McCauley LLP
One Logan Square
Philadelphia, Pennsylvania 19103
(215) 569-5500
CALCULATION OF REGISTRATION FEE
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Amount Proposed maximum
Title of each class of to be offering price Proposed maximum Amount of
securities to be registered registered(1) per share offering price registration fee
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<S> <C> <C> <C> <C>
Common Stock................ 100,000 $11.875 $1,187,500 $331.00
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(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this
Registration Statement covers, in addition to the number of shares set
forth above, an indeterminate amount of interests to be offered or sold
pursuant to the Plan described herein.
(2) Estimated in accordance with Rule 457(h), solely for the purpose of
calculating the registration fee based upon the average of the bid and
asked prices of the common stock on the Nasdaq National Market System of
$11.875 per share on June 28, 1999.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to participants in the American Business Credit, Inc.
401(k) Plan (the "Plan") as specified by Rule 428(b)(1) promulgated by the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Securities Act").
Such documents are not being filed with the Commission, but constitute
(along with the documents incorporated by reference into this Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information.
The document(s) containing the information specified in Item 2 will be
sent or given to employees as specified in Rule 428(b)(1) and are not required
to be filed as part of this Registration Statement.
I-1
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents previously or concurrently filed by American
Business Financial Services, Inc. ("ABFS" or the "Company") with the Commission
are hereby incorporated by reference in this Registration Statement:
(i) The Company's Annual Report on Form 10-KSB for the fiscal year ended
June 30, 1998 (File No. 0-22474) filed pursuant to Rule 13a-1 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and all
amendments thereto;
(ii) The Company's Quarterly Reports in Form 10-Q for the quarters ending
September 30, 1998, December 31, 1998 and March 31, 1999, filed pursuant
to the Exchange Act;
(iii) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by
the Annual Report on Form 10-KSB referred to in (i) above; and
(iv) The description of the Company's Common Stock, which is incorporated by
reference to the Company's Registration Statement on Form 8-A (File No.
0-22474) filed with the Commission on January 8, 1997 and all
amendments or reports filed for the purpose of updating such
description.
All reports and other documents subsequently filed by the Company with
the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act, after the date hereof, and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed
incorporated by reference into this Registration Statement and to be a part
thereof from the date of the filing of such documents. Any statement contained
in the documents incorporated, or deemed to be incorporated, be reference herein
or therein shall be deemed to be modified or superseded for purposes of this
Registration Statement and the Prospectus to the extent that a statement
contained herein or therein or in any other subsequently filed document which
also is, or is deemed to be, incorporated by reference herein or therein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement and the Prospectus.
II-1
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The Company shall furnish without charge to each person to whom the
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the documents incorporated by reference, other than exhibits to
such documents (unless such exhibits are specifically incorporated by reference
to the information that is incorporated herein). Requests should be directed to
Beverly Santilli, Secretary of the Company, American Business Financial
Services, Inc., Bala Pointe Centre, 111 Presidential Boulevard, Bala Cynwyd, PA
19004, telephone number (610) 668-2440.
All information appearing in this Registration Statement and the
Prospectus is qualified in its entirety by the detailed information, including
financial statements, appearing in the documents incorporated herein or therein
by reference.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
The Amended and Restated Certificate of Incorporation (the "Certificate
of Incorporation") and the Amended and Restated Bylaws (the "Bylaws") of ABFS
provide for indemnification of its directors and officers to the full extent
permitted by Delaware law. In the event that the Delaware General Corporation
Law (the "Corporation Law") is amended to authorize corporate action further
eliminating or limiting the personal liability of directors and officers, the
Certificate of Incorporation and Bylaws provide the personal liability of the
directors and officers of ABFS shall be so eliminated or limited.
Section 145 of the Corporation Law provides, in substance, that
Delaware corporations shall have the power, under specified circumstances, to
indemnify their directors, officers, employees and agents in connection with
actions, suits or proceedings brought against them by a third party or in the
right of the corporation, by reason of the fact that they were or are such
directors, officers, employees or agents, against expenses incurred in any such
action, suit or proceeding.
Section 145 of the Corporation Law provides that a company may pay the
expenses incurred by an officer or director in defending any civil, criminal,
administrative, or investigative action, suit or proceeding upon an undertaking
by or on behalf of such director or officer to repay such amount
II-2
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if it is ultimately determined that he or she is not entitled to be indemnified
by the corporation. The Certificate of Incorporation and Bylaws of ABFS provide
that ABFS shall pay such expenses.
The Company has obtained insurance to cover the Company's directors and
executive officers for liabilities which may be incurred in connection with the
offer, sale and registration of the Common Stock.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration Statement
or, where so indicated have been previously filed and are incorporated herein by
reference.
Regulation S-B
Exhibit Number Description
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4.1 Certificate of Incorporation of American Business
Financial Services, Inc.*
4.2 Bylaws of American Business Financial Services,
Inc.**
5.1 Opinion of Blank Rome Comisky & McCauley LLP
regarding legality.
23.1 Consent of BDO Seidman, LLP.
23.2 Consent of Blank Rome Comisky & McCauley LLP
(included in Exhibit 5.1).
24 Power of Attorney (included on the Signature
Page).
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* Incorporated herein by reference to Exhibit 3.1 of the Company's Annual
Report on Form 10-KSB (File No. 1-14268) for the fiscal year ended June 30,
1996 filed with the Commission on September 27, 1996.
** Incorporated herein by reference to Exhibit 3.2 of the Company's
Registration Statement on Form SB-2 (Registration No. 333-18919) filed with
the Commission on December 27, 1996 (the "1996 Form SB-2").
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
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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, the
aggregate, the changes in value and price represent no more than a
20% 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 additional material information on the plan of
distribution not previously disclosed in this Registration Statement
or any material change to such information in this 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.
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.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this
section do not apply if the Registration Statement is on Form S-3,
Form S-8 or Form F-3 and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the Registration
Statement.
II-4
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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 Securities Exchange Act of 1934, as amended (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the Registration Statement shall
be deemed to be a new registration statement 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 Securities and Exchange 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 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.
II-5
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SIGNATURES
The Registrant. 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 authorized this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Philadelphia, Commonwealth of Pennsylvania on June
30, 1999.
AMERICAN BUSINESS FINANCIAL SERVICES, INC.
Date: June 30, 1999 By: /s/ Anthony J. Santilli
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Anthony J. Santilli, Jr., Chairman, President,
Chief Executive Officer, Chief Operating Officer
and Director (Duly Authorized Officer)
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
trustee has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the city of Somerset, State of
New Jersey on June 30, 1999.
AMERICAN BUSINESS CREDIT, INC.401(k) PLAN
By: MERRILL LYNCH TRUST COMPANY, AS TRUSTEE
By: /s/ Robert F. Arimenta, Jr.
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Name: Robert F. Arimenta, Jr.
Title: Vice President
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KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Anthony J. Santilli, his true and lawful
attorney-in-fact and agent with full power of substitution or 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 documentation in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
In accordance with the requirements of the Securities Act of 1933, this
registration statement was signed by the following persons in the capacities and
on the dates stated.
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SIGNATURE CAPACITY DATE
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<S> <C> <C>
/s/ Anthony J. Santilli, Jr. Chairman, President, Chief Executive June 30, 1999
- ---------------------------- Officer, Chief Operating Officer and
Anthony J. Santilli, Jr. Director (Principal Executive and
Operating Officer)
/s/ Albert W. Mandia Executive Vice President-Finance and June 30, 1999
- --------------------- Chief Financial Officer (Principal
Albert W. Mandia Financial and Accounting Officer)
Director
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Leonard Becker
Director
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Richard Kaufman
/s/ Michael DeLuca Director June 30, 1999
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Michael DeLuca
/s/ Harold Sussman Director June 30, 1999
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Harold Sussman
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EXHIBIT INDEX
S-B Exhibit Numbers Description
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4.1 Certificate of Incorporation of American Business
Financial Services, Inc.*
4.2 Bylaws of American Business Financial Services, Inc.**
5.1 Opinion of Blank Rome Comisky & McCauley LLP regarding
legality.
23.1 Consent of BDO Seidman, LLP.
23.2 Consent of Blank Rome Comisky & McCauley LLP (included
in Exhibit 5).
24 Power of Attorney (included on the Signature Page).
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* Incorporated hereby by reference to Exhibit 3.1 of the Company's Annual
Report on Form 10-KSB (File No. 1-14268) for the fiscal year ended June 30,
1996 filed with the Commission on September 27, 1996.
** Incorporated hereby by reference to Exhibit 3.2 of the Company's
Registration Statement on Form SB-2 (Registration No. 333-18919) filed with
the Commission on December 27, 1996 (the "1996 Form SB-2").
<PAGE>
EXHIBIT 5.1
[Letterhead of Blank Rome Comisky & McCauley, LLP]
June 30, 1999
American Business Financial Services, Inc.
BalaPointe Office Centre
111 Presidential Boulevard
Bala Cynwyd, PA 191004
Gentlemen:
We have acted as counsel to American Business Financial Services, Inc.
(the "Company") in connection with the preparation of the Registration Statement
on Form S-8 (the "Registration Statement") to be filed by the Company with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
relating to the offer of up to 100,000 shares of common stock, par value $0.001
per share (the "Common Stock"), by the Company pursuant to the American Business
Credit, Inc.'s 401(k) Plan ( the "Plan"). This opinion is furnished pursuant to
the requirement of Item 601(b)(5) of Regulation S-K.
Although as counsel to the Company we have advised the Company in
connection with a variety of matters referred to us by it, our services are
limited to specific matters so referred. Consequently, we may not have knowledge
of many transactions in which the Company has engaged or of its day-to-day
operations.
In rendering this opinion, we have examined the following documents:
(i) the Company's Articles of Incorporation and Bylaws, as currently in effect;
(ii) resolutions adopted by the Board of Directors of the Company; (iii) the
Registration Statement; and (iv) the Plan. We have assumed and relied, as to
questions of fact and mixed questions of law and fact, on the truth,
completeness, authenticity and due authorization of all documents and records
examined and the genuineness of all signatures.
We have not made any independent investigation in rendering this
opinion other than the document examination described. Our opinion is therefore
qualified in all respects by the scope of that document examination. We make no
representation as to the sufficiency of our investigation for your purposes.
This opinion is limited to the laws of the State of Delaware. In rendering this
opinion we have assumed (i) compliance with all other laws, including federal
laws and (ii) compliance with all Delaware securities and antitrust laws.
Based upon and subject to the foregoing, we are of the opinion that:
The shares of Common Stock of the Company which are being offered by
the Company pursuant to the Registration Statement, when sold in the manner and
for the consideration contemplated by the Registration Statement, will be
legally issued, fully paid and non-assessable.
This opinion is given as of the date hereof. We assume no obligation to
update or supplement this opinion to reflect any facts or circumstances which
may hereafter come to our attention or any changes in laws which may hereafter
occur.
This opinion is strictly limited to the matters stated herein and no
other or more extensive opinion is intended, implied or to be inferred beyond
the matters expressly stated herein.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under "Item 5. Interests of
Named Experts and Counsel" in the Registration Statement.
Sincerely,
/s/ BLANK ROME COMISKY & McCAULEY LLP
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EXHIBIT 23.1
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Consent of Independent Certified Public Accountants
The Board of Directors
American Business Financial Services, Inc.
Bala Cynwyd, Pennsylvania
We hereby consent to incorporation by reference in the Registration
Statement on Form S-8 of our report dated September 11, 1998 relating to the
consolidated financial statements of American Business Financial Services, Inc.
appearing in the Company's Annual Report on Form 10-KSB for the year ended June
30, 1998.
/s/ BDO Seidman, LLP
July 1, 1999
