As filed with the Securities and Exchange Commission on January 29, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
KNIGHT/TRIMARK GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware 52-2096335
(State of incorporation)(I.R.S. employer identification no.)
Newport Tower, 29th Floor
525 Washington Blvd.
Jersey City, New Jersey 07310
(201) 222-9400
(Address of principal executive offices) (Zip code)
THE KNIGHT/TRIMARK GROUP, INC.
1998 LONG TERM INCENTIVE PLAN
-AND-
THE KNIGHT/TRIMARK GROUP, INC.
1998 NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full title of the Plan)
Michael T. Dorsey, Esq.
Senior Vice President and General Counsel
Knight/Trimark Group, Inc.
Newport Tower, 29th Floor
525 Washington Blvd.
Jersey City, New Jersey 07310
(201) 222-9400
(Name, address and telephone number, including area code, of agent for service)
Copies to:
Matthew J. Mallow, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===========================================================================================
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Registration
to be Registered Registered Per Share(1) Offering Price Fee
===========================================================================================
<S> <C> <C> <C> <C>
Class A Common 7,409,500 $ 41,625 $ 30,842,043 $ 85,741
Stock, par value
$.01 per share
===========================================================================================
</TABLE>
(1) Estimated pursuant to Rule 457(c) and (h) under the Securities Act of
1933 (the "Securities Act") on the basis of the average of the high and
low sale prices for a share of Common Stock as reported on The Nasdaq
Stock Market on January 28, 1999.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information required in Part I of Form S-8 is currently included in a
prospectus dated the date hereof which will be distributed to participants
in the Knight/Trimark Group, Inc. 1998 Long Term Incentive Plan and the
Knight/Trimark Group, Inc. 1998 Nonemployee Director Stock Option Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission
(the "Commission") by the registrant, Knight/Trimark Group, Inc., a
Delaware corporation (the "Company"), pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), are incorporated by reference
in this registration statement:
(1) The Company's Registration Statement on Form S-1 (File No. 333-51653);
(2) The Company's quarterly reports on Form 10-Q for the periods ended
June 30 and September 30, 1998; and
(3) The Company's Registration Statement on Form 8-A under the Exchange
Act, filed with the Commission on July 7, 1998, as amended by any
amendment or report filed for the purpose of amending such description;
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment 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 herein and to 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 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 incorporated or
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.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon the written or oral request of such
person, a copy of any or all of the documents referred to above which have
been or may be incorporated by reference herein (other than exhibits to
such documents unless such exhibits are specifically incorporated by
reference in such documents). Requests for such copies should be directed
to Michael T. Dorsey, Esq., Knight/Trimark Group, Inc., Newport Tower, 29th
Floor, 525 Washington Blvd., Jersey City, New Jersey 07310 (telephone (201)
222-9400).
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 Company, a Delaware corporation is empowered by Section 145 of
the Delaware General Corporation Law (the "DGCL"), subject to the
procedures and limitations stated therein, to indemnify any 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
such person is or was a director, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation or other enterprise,
against reasonable expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually incurred by him in connection with
such action, suit or proceeding, if such director, officer, employee or
agent acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Company and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The Company is required by Section 145 to indemnify
any person against reasonable expenses (including attorneys' fees) actually
incurred by him in connection with an action, suit or proceeding in which
he is a party because he is or was a director, officer, employee or agent
of the Company or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation or other
enterprise, if he has been successful, on the merits or otherwise, in the
defense of the action, suit or proceeding. Section 145 also allows a
corporation to purchase and maintain insurance on behalf of any such person
against any liability asserted against him in any such capacity, or arising
out of his status as such, whether or not the corporation would have the
power to indemnify him against such liability under the provisions of
Section 145. In addition, Section 145 provides that indemnification
pursuant to its provisions is not exclusive of other rights of
indemnification to which a person may be entitled under any bylaw,
agreement, vote of shareholders or disinterested directors, or otherwise.
Article 7 of the Company's Amended and Restated Certificate of
Incorporation (the "Charter") provides that the Company shall indemnify and
hold harmless any person who was, is, or is threatened to be made a party
to a proceeding by reason of the fact that he or she (i) is or was a
director or officer of the Company or (ii) while a director or officer of
the Company, is or was serving at the request of the Company as a director,
officer, partner, venturer, proprietor, trustee, employee, agent, or
similar functionary of another foreign or domestic corporation,
partnership, joint venture, sole proprietorship, trust, employee benefit
plan, or other enterprise, to the fullest extent permitted under the DGCL.
The right to indemnification under Article 7 of the Charter is a contract
right which includes, with respect to directors and officers, the right to
be paid by the Company the expenses incurred in defending any such
proceeding in advance of its disposition.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
4.1 Amended and Restated Certificate of Incorporation of the
Company, incorporated by reference to the Company's
Registration Statement on Form S-1 (File No.
333-51653).
4.2 Amended and Restated By-Laws of the Company, incorporated by
reference to the Company's Registration Statement on Form S-1
(File No. 333-51653).
5 Opinion of Michael T. Dorsey, General Counsel of
Knight/Trimark Group, Inc. regarding the legality of the
securities being registered.
23.1 Consent of Pricewaterhouse Coopers LLP, independent certified
public accountant.
23.2 Consent of Michael T. Dorsey, Esq. to the filing of his opinion
(included in Exhibit 5).
24 Powers of Attorney (included on the signature page of this
Registration Statement).
UNDERTAKING. The Company hereby undertakes that it will submit or
has submitted the plans described herein and any amendments thereto to the
Internal Revenue Service (the "IRS") in a timely manner and has made or
will make all changes required by the IRS in order to qualify such plans in
accordance with applicable law.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a) (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.
(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 (ii) do not apply if 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
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.
(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.
(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
Securities and Exchange Commission such indemnification is against public
policy as expressed in the 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 Act and will be governed by the final
adjudication of such issue.
SIGNATURES
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 Jersey City, State of New Jersey,
on this 22nd day of January, 1999.
KNIGHT/TRIMARK GROUP, INC.
By /s/ Kenneth D. Pasternak
___________________________________
Name: Kenneth D. Pasternak
Title: Director, President and
Chief Executive Officer
KNOWN TO ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Kenneth D. Pasternak and
Walter F. Raquet, and each of them (with full power of each of them to act
alone), his true and lawful attorney-in-fact, with full power of
substitution and resubstitution for him and on his behalf, and in his name,
place and stead, in any and all capacities, to sign any amendments to this
registration statement (including post-effective amendments), and to file
the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying
and confirming all that each of said attorneys-in-fact, or his substitute
or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
NAME TITLE DATE
---- ----- ----
/s/ Kenneth D. Pasternak Director, President and January 22, 1999
_________________________ Chief Executive Officer
Kenneth D. Pasternak
/s/ Robert I. Turner Director, Executive Vice January 22, 1999
_________________________ President and Chief Financial
Robert I. Turner Officer (principal financial
and accounting officer)
/s/ Steven L. Steinman Director and Chairman of January 22, 1999
_________________________ the Board
Steven L. Steinman
/s/ Walter F. Raquet Director and Executive Vice January 22, 1999
_________________________ President
Walter F. Raquet
/s/ Robert M. Lazarowitz Director and Executive Vice January 22, 1999
_________________________ President
Robert M. Lazarowitz
/s/ Anthony M. Sanfilippo Director and Executive Vice January 22, 1999
_________________________ President
Anthony M. Sanfilippo
/s/ Martin Averbuch Director January 22, 1999
__________________________
Martin Averbuch
/s/ Charles V. Doherty Director January 22, 1999
__________________________
Charles V. Doherty
/s/ Gene L. Finn Director January 22, 1999
__________________________
Gene L. Finn
/s/ Gary R. Griffith Director January 22, 1999
__________________________
Gary R. Griffith
/s/ Bruce R. McMaken Director January 22, 1999
__________________________
Bruce R. McMaken
/s/ J. Joe Ricketts Director January 22, 1999
__________________________
J. Joe Ricketts
/s/ Rodger O. Riney Director January 22, 1999
__________________________
Rodger O. Riney
/s/ V. Eric Roach Director January 22, 1999
__________________________
V. Eric Roach
/s/ Charles A. Zabatta Director January 22, 1999
__________________________
Charles A. Zabatta
EXHIBIT INDEX
Exhibit No. Description of Exhibit
- ----------- ----------------------
4.1 Amended and Restated Certificate of Incorporation of
the Company (incorporated by reference to the Company's
Registration Statement on Form S-1 (File No. 333-51653)).
4.2 Amended and Restated By-Laws of the Company (incorporated
by reference to the Company's Registration Statement on Form
S-1 (File No. 333-51653)).
5 Opinion of Michael T. Dorsey, General Counsel of Knight/Trimark
Group, Inc., regarding the legality of the securities being
registered.
23.1 Consent of Pricewaterhouse Coopers LLP, independent certified
public accountant.
23.2 Consent of Michael T. Dorsey, Esq. to the filing of his opinion
(included in Exhibit 5).
24 Powers of Attorney (included on the signature page of this
Registration Statement).
Exhibit 5
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Knight/Trimark Group, Inc.
Newport Tower, 29th Floor
525 Washington Blvd.
Jersey City, NJ 07310
January 29, 1999
Knight/Trimark Group, Inc.
Newport Tower, 29th Floor
525 Washington Blvd.
Jersey City, New Jersey 07310
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
Knight/Trimark Group, Inc., a Delaware corporation (the
"Company"), is registering for sale under the Securities Act of 1933, as
amended (the "Securities Act"), pursuant to a registration statement on
Form S-8 (the "Registration Statement"), up to 7,409,500 shares (the
"Shares") of Class A Common Stock of the Company, par value $0.01 per share
("Common Stock"). The Shares consist of 7,145,500 shares of Common Stock
which have been reserved for issuance upon exercise of stock options (the
"Long Term Incentive Plan Shares") that have been granted under the
Company's 1998 Long Term Incentive Plan (the "1998 Long Term Incentive
Plan") and 264,000 shares of Class A Common Stock which have been reserved
for issuance upon exercise of stock options (the "Nonemployee Director Plan
Shares") that have been or may be granted under the Company's 1998
Nonemployee Director Stock Option Plan, as amended and restated (the "1998
Nonemployee Director Stock Option Plan").
This opinion is being furnished in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Act.
As General Counsel of the Company, I have general supervision
over the Company's legal affairs. In such capacity, I have examined
originals or copies, certified or otherwise identified to my satisfaction,
of (a) the Registration Statement to be filed with the Securities and
Exchange Commission (the "Commission") on the date hereof, (b) the 1998
Long Term Incentive Plan, (c) the 1998 Nonemployee Director Stock Option
Plan, (d) a specimen certificate evidencing the Common Stock, (e) the
Amended and Restated Certificate of Incorporation of the Company, as
presently in effect, (f) the Amended and Restated By-Laws of the Company,
as presently in effect, (g) certain resolutions of the Board of Directors
of the Company relating to, among other things, the 1998 Long Term
Incentive Plan and the 1998 Nonemployee Director Stock Option Plan
(collectively, the "Board Resolutions") and (h) such other documents as I
have deemed necessary or appropriate as a basis for the opinions set forth
below.
In my examination, I have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original
documents of all documents submitted as certified, conformed or photostatic
copies and the authenticity of the originals of such latter documents. In
examining documents executed or to be executed by parties other than the
Company, I have assumed that such parties had the power, corporate or
other, to enter into and perform all obligations thereunder and have also
assumed the due authorization by all requisite action, corporate or other,
and execution and delivery by such parties of such documents and the
validity and binding effect thereof on such parties. As to any facts
material to the opinions expressed herein which I did not independently
establish or verify, I have relied upon certificates, statements or
representations of officers and other representatives of the Company,
public officials and others. In rendering the opinion set forth below, I
have assumed that (i) the certificates representing the Long Term Incentive
Plan Shares and the Nonemployee Director Plan Shares will be manually
signed by one of the authorized officers of the transfer agent and
registrar for the Common Stock and registered by such transfer
agent and registrar and will conform to the specimen thereof examined by me
and (ii) prior to the issuance of any Long Term Incentive Plan Shares or
Nonemployee Director Stock Option Plan Shares, the Company and the relevant
optionee will have duly entered into stock option or similar agreements
("Agreements") in accordance with the Board Resolutions and the 1998 Long
Term Incentive Plan or the 1998 Nonemployee Director Stock Option Plan, as
the case may be.
Based upon and subject to the foregoing, I am of the opinion
that the Long Term Incentive Plan Shares and the Nonemployee Director Plan
Shares have been duly and validly authorized for issuance and, when
delivered and paid for in accordance with the terms of the Agreements, will
be validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion with the
Commission as Exhibit 5 to the Registration Statement. In giving such
consent, I do not thereby admit that I am in the category of persons whose
consent is required under Section 7 of the Act or the rules or regulations
of the Commission thereunder.
Very truly yours,
/s/ Michael T. Dorsey
Senior Vice President and
General Counsel
Exhibit 23.1
------------
CONSENT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors
Knight/Trimark Group, Inc.
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Knight/Trimark Group, Inc. (the "Company"), for the
registration of 7,409,500 shares of the Company's Class A Common Stock, par
value $.01 per share pursuant to the Knight/Triamark Group, Inc. 1998 Long
Term Incentive Plan and the Knight/Trimark Group, Inc. 1998 Nonemployee
Director Stock Option Plan, and the related prospectuses, of our report
dated February 10, 1998, except as to Note 15, which is as of April 15,
1998 relating to the consolidated financial statements of Roundtable
Partners, L.L.C., which was reorganized as the Company on July 13, 1998,
included in the Company's Registration Statement on Form S-1 (File No.
333-51653).
/s/ PricewaterhouseCoopers LLP
New York, New York
January 29, 1999
