As filed with the Securities and Exchange Commission on September 3, 2002
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
INVESTMENT TECHNOLOGY GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware 95-2848406
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
380 Madison Avenue
New York, New York 10017
(Address of principal executive offices)
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Hoenig Group Inc. Amended and Restated 1996 Long-Term Stock Incentive Plan
Hoenig Group Inc. 1994 Stock Option Plan
Hoenig Group Inc. 1991 Stock Option Plan
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P. Mats Goebels, Esq.
Investment Technology Group, Inc.
380 Madison Avenue
New York, New York 10017
(212) 588-4000
(Name, address, and telephone number, including
area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Title of Amount to be Proposed maximum Amount of
securities to be registered registered aggregate offering price registration fee
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Common Stock, par value
$.01 per share(1) 99,448(1) $1,599,350(2) $147.14(3)
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(1) This registration statement covers shares of Common Stock, $.01 par value,
of Investment Technology Group, Inc. that may be offered and sold from time
to time pursuant to the Hoenig Group Inc. Amended and Restated 1996
Long-Term Stock Incentive Plan, as amended and restated (61,261 shares),
the Hoenig Group Inc. 1994 Stock Option Plan, as amended and restated
(35,750 shares) and the Hoenig Group Inc. 1991 Stock Option Plan, as
amended and restated (2,437 shares). Pursuant to Rule 416(a), the number of
shares being registered shall be adjusted to include any additional shares
which may become issuable as a result of stock splits, stock dividends or
other transactions triggering adjustments in accordance with the
anti-dilution and adjustment provisions of the Plans.
(2) Estimated pursuant to paragraphs (c) and (h) of Rule 457 solely for the
purpose of calculating the registration fee, based upon the average of the
reported high and low sales prices for shares of Common Stock on August 30,
2002, as reported on the New York Stock Exchange.
(3) Calculated pursuant to Section 6(b) of the Securities Act of 1933, as
amended, as follows: $92 per $1,000,000 of the maximum aggregate offering
price.
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EXPLANATORY STATEMENT
On September 3, 2002, Investment Technology Group, Inc. ("ITG") acquired
Hoenig Group Inc. ("Hoenig") through the merger of ITG's wholly-owned subsidiary
Indigo Acquisition Corp. with and into Hoenig, with Hoenig surviving the merger.
As a consequence of the merger, each share of Hoenig common stock was converted
into (i) the right to receive, without interest, $11.35 (the "Cash Merger
Consideration") and (ii) one contingent payment right for a pro rata share of
any future distributions from an escrow account set up in connection with the
pursuit of certain insurance and other claims related to a trading loss and
unauthorized trading activity suffered at Hoenig's U.K. subsidiary. Options to
purchase Hoenig common stock were either cashed-out or rolled over as follows.
All cash-out options were canceled, and holders of cash-out options with an
exercise price below the Cash Merger Consideration received (i) an amount in
cash, without interest, equal to the product of (x) the excess of the Cash
Merger Consideration over the exercise price per share of such cash-out option
times (y) the number of shares of Hoenig common stock subject to such cash-out
option and (ii) the number of contingent payment rights as is equal to the
number of shares of Hoenig common stock subject to such cash-out option. Each
rollover option was converted into (x) except for specified rollover options,
the number of contingent payment rights as is equal to the number of shares of
Hoenig common stock subject to such rollover option and (y) an option to
purchase shares of ITG common stock on terms substantially identical to those in
effect immediately prior to the merger under the terms of the stock option plan
or other agreement or award pursuant to which such Hoenig stock option was
granted; provided, however, that from and after the merger, (i) each rollover
option assumed by ITG became exercisable solely to purchase shares of ITG common
stock, (ii) the number of shares of ITG common stock purchasable upon exercise
of each rollover option became equal to the number of shares of Hoenig common
stock that were purchasable under such rollover option immediately prior to the
merger multiplied by the exchange ratio and rounded down to the nearest whole
share and (iii) the per share exercise price under each rollover option was
adjusted by dividing the per share exercise price of such rollover option
immediately prior to the merger by the exchange ratio, and rounded up to the
nearest whole cent. This Registration Statement covers shares of ITG common
stock issuable upon the exercise of the rollover options.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. Plan Information.*
ITEM 2. Registrant Information and Employee Plan Annual Information.*
* As permitted by Rule 428 under the Securities Act of 1933, as
amended (the "Securities Act"), this Registration Statement omits
the information specified in Part I of Form S-8. The documents
containing the information specified in Part I will be delivered
to the participants in the plans covered by this Registration
Statement as required by Rule 428(b). Such documents are not
being filed with the Securities and Exchange Commission (the
"Commission") as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424(b)
under the Securities Act.
I-1
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by Investment Technology Group,
Inc. ("the "Registrant" or the "Company") with the Securities and Exchange
Commission (the "Commission") (File No. 0-23644) and are hereby incorporated by
reference in this Registration Statement:
The Company's Annual Report on Form 10-K for the fiscal year ended December
31, 2001;
The Company's Quarterly Reports on Form 10-Q for the quarterly periods
ended March 31, 2002 and June 30, 2002;
The Company's Current Reports on Form 8-K filed on March 4, 2002 and July
8, 2002; and
The description of the Common Stock of the Company contained in the
Company's Registration Statement on Form S-4 (No. 333-74723, filed with the
Commission on March 19, 1999), including any other amendment or report
filed for the purpose of updating such description.
In addition, all reports and other documents subsequently filed by the
Company with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), 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 to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents. Any
statement contained in a document, all or a portion of which is incorporated or
deemed to be incorporated by reference herein, 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 which
also is or is deemed to be incorporated by reference herein) 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the shares of Common Stock offered hereby has been passed
upon for the Registrant by P. Mats Goebels, General Counsel and Secretary of the
Registrant. As of September 3, 2002, Mr. Goebels beneficially owned 9,898 shares
of the Company's Common Stock and options to purchase 12,500 additional shares.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is incorporated under the laws of the State of Delaware.
Sections 102 and 145 of the Delaware General Corporation Law (the "DGCL") set
forth the conditions and limitations governing the indemnification of officers,
directors and other persons by Delaware corporations.
Generally, Section 145 of the DGCL provides that a Delaware corporation
shall have the power to indemnify any person who was or is a party or is
threatened to be made a party to any action, suit or proceeding (except actions
by or in the right of the corporation) by reason of the fact that such person is
or was a director, officer, employee or agent of the corporation against all
expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with such action, suit or
proceeding if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. In addition, a Delaware corporation may
similarly indemnify such person for expenses actually and reasonably incurred by
him or her in connection with the defense or settlement of any action or suit by
or in the right of the corporation, provided such person acted in good faith and
in a manner he or she reasonably believed to be in the best interests of the
corporation, and, in the case of claims, issues and matters as to which such
person shall have been adjudged liable to the corporation, provided that the
Court of Chancery of the State of Delaware or the court in which such action or
suit was brought shall have determined upon application, that, despite the
adjudication of liability by in view of all of the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which such court shall deem proper. To the extent that a present or former
director or officer of a Delaware corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding described above, or in
defense of any claim, issue or matter therein, such person shall be indemnified
against expenses actually and reasonably incurred by such person in connection
therewith.
Generally, Section 102(b)(7) of the DGCL provides that the certificate of
incorporation of a Delaware corporation may contain provisions eliminating or
limiting the personal liability of a director to a corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director;
provided that such provision may not eliminate or limit the liability of a
director (i) for any breach of the director's duty of loyalty to the corporation
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or knowing violation of law, (iii) under Section
174 of Title 8 of the DGCL or (iv) for any transaction from which the director
derived an improper personal benefit. No such provision may eliminate or limit
the liability of a director for any act or omission occurring prior to the date
which such provisions became effective.
Section 145 of the DGCL provides that a Delaware corporation shall have the
power to purchase and maintain insurance of behalf of any person who is or was a
director, officer, employee or agent of the corporation against any liability
asserted against such person and incurred by such person in any such capacity,
or arising out of such person's status as such, whether or not the corporation
would have the power to indemnify such person against the same pursuant to the
provisions of the DGCL.
Our certificate of incorporation, as amended, provides for indemnification
of directors and officers for liabilities and expenses incurred in defending
actions brought against them in such capacities. Our certificate of
incorporation provides that we shall indemnify our directors and officers to the
maximum extent now or hereafter permitted by law.
We maintain directors' and officers' liability insurance covering all of
our directors and officers against claims arising out of the performance of
their duties.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index.
ITEM 9. UNDERTAKINGS.
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 of 1933;
(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% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement; or
(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 (1)(i) and (ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed 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.
2. That, for the purpose of determining any liability under the Securities
Act of 1933, 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.
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 this 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.
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 provisions described under Item 6 above, 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 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 indemni-
fication by it is against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
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 September 3, 2002.
INVESTMENT TECHNOLOGY GROUP, INC.
/s/ Robert J. Russel
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Name: Robert J. Russel
Title: Chief Executive Officer
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby appoints Robert J. Russel, Howard C. Naphtali and P. Mats Goebels,
or any of them, his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place, and
stead, in any and all capacities, to sign the Registration Statement on Form S-8
under the Securities Act of 1933, as amended, to sign any and all post-effective
amendments to the Registration Statement on Form S-8, 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 or 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 any of
them, or their or his substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Title Date
--------- ------ ----
/s/ Robert J. Russel Chief Executive Officer and September 3, 2002
----------------------------------------------- Director (Principal Executive
(Robert J. Russel) Officer)
/s/ Howard C. Naphtali Managing Director and Chief September 3, 2002
----------------------------------------------- Financial Officer (Principal
(Howard C. Naphtali) Financial Officer)
/s/ Angelo Bulone Vice President and Controller September 3, 2002
----------------------------------------------- (Principal Accounting Officer)
(Angelo Bulone)
Signature Title Date
--------- ------ ----
/s/ Raymond L. Killian, Jr. Chairman of the Board of Directors September 3, 2002
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(Raymond L. Killian, Jr.)
/s/ Frank E. Baxter Director September 3, 2002
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(Frank E. Baxter)
/s/ J. Willam Burdett Director September 3, 2002
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(J. William Burdett)
/s/ Neal S. Garonzik Director September 3, 2002
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(Neal S. Garonzik)
/s/ William I Jacobs Director September 3, 2002
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(William I Jacobs)
/s/ Robert L. King Director September 3, 2002
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(Robert L. King)
/s/ Mark A. Wolfson Director September 3, 2002
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(Mark A. Wolfson)
Exhibit Index
Exhibit No. Description
4.1 Hoenig Group Inc. 1991 Stock Option Plan. (Incorporated herein by
reference to Exhibit 10(b) to the Hoenig Group Inc. Registration
Statement on Form S-1 filed August 23, 1991).
4.2 Hoenig Group Inc. 1994 Stock Option Plan. (Incorporated herein by
reference to Exhibit 99.2 to the Hoenig Group Inc. Registration
Statement on Form S-8 filed September 30, 1994).
4.3 Hoenig Group Inc. Amended and Restated 1996 Long-Term Stock
Incentive Plan. (Incorporated by reference to Annex A to the
Hoenig Group Inc. Definitive Proxy Statement for the 2000 Annual
Meeting of Stockholders held on May 18, 2000).
5.1 Opinion of General Counsel of the Company with respect to the
legality of the Common Stock being registered hereby.
23.1 Consent of General Counsel of the Company (included in Exhibit
5.1).
23.2 Consent of Independent Auditors.
24 Powers of Attorney (included on page II-5 of this Registration
Statement).
Exhibit 5.1
[LETTERHEAD OF INVESTMENT TECHNOLOGY GROUP, INC.]
September 3, 2002
Re Form S-8 Relating to the Hoenig Group Inc. Amended and Restated 1996
Long-Term Stock Incentive Plan, 1994 Stock Option Plan and 1991 Stock
Option Plan
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Ladies and Gentlemen:
I am General Counsel to Investment Technology Group, Inc., a Delaware
corporation (the "Company"). The Company is filing a Registration Statement on
Form S-8 (the "Registration Statement") with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act"), relating to 61,261 shares of the Company's common stock (the
"1996 Option Plan Registered Shares"), par value $.01 per share, offered under
Hoenig Group Inc.'s ("Hoenig") 1996 Long-Term Stock Incentive Plan, as amended
and restated (the "1996 Option Plan"), 35,750 shares of the Company's common
stock (the "1994 Option Plan Registered Shares"), par value $.01 per share,
offered under Hoenig's 1994 Stock Option Plan, as amended and restated (the
"1994 Option Plan") and 2,437 shares of the Company's common stock (the "1991
Option Plan Registered Shares"; and together with the 1996 Option Plan
Registered Shares and the 1994 Option Plan Registered Shares, the "Registered
Shares"), par value $.01 per share, offered under Hoenig's 1991 Stock Option
Plan, as amended and restated (the "1991 Option Plan"; and together with the
1996 Option Plan and 1994 Option Plan, the "Plans").
In connection with this opinion, I have examined the Registration
Statement, the Certificate of Incorporation and Bylaws of the Company, certain
of the Company's corporate proceedings as reflected in its minute books, the
Plans and such other records as I have deemed relevant. In addition, I have made
such other examinations of law and fact as I have deemed appropriate in order to
form a basis for the opinion hereinafter expressed. In my opinion, the
Registered Shares that may be originally issued by the Company in connection
with the Plans, when and to the extent issued in accordance with the terms of
the Plans and the resolution authorizing the Plans for a price per share not
less than the par value thereof, will be duly authorized, validly issued, fully
paid and non-assessable.
In rendering this opinion, I express no opinion as to the laws of any
jurisdiction other than the laws of the United States, the laws of the State of
New York and the Delaware General Corporation Law.
I hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving such opinion and consent, I do not thereby
admit that I am acting within the category of persons whose consent is required
under Section 7 of the Securities Act or the rules and regulations of the
Commission thereunder.
Very truly yours
/s/ P. Mats Goebels
Managing Director, General Counsel
And Secretary
Exhibit 23.2
Independent Auditors' Consent
Board of Directors
Investment Technology Group, Inc. and Subsidiaries:
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of Investment Technology Group, Inc. dated September 3, 2002 of our
report dated January 17, 2002, relating to the consolidated statements of
financial condition of Investment Technology Group, Inc. and subsidiaries as of
December 31, 2001 and 2000, and the related consolidated statements of income,
changes in stockholders' equity and cash flows for each of the years in the
three-year period ended December 31, 2001, which appears in the December 31,
2001 annual report on Form 10-K of Investment Technology Group, Inc.
/s/ KPMG LLP
New York, New York
September 3, 2002