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As filed with the Securities and Exchange Commission on June 30, 2000
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
OPTIMARK HOLDINGS, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 22-3730995
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
10 EXCHANGE PLACE CENTRE, 24TH FLOOR
JERSEY CITY, NEW JERSEY 07302
(Address of principal executive offices) (zip code)
STOCK OPTION PLAN
1999 STOCK PLAN
JAMES G. RICKARDS
SENIOR VICE PRESIDENT,
GENERAL COUNSEL & SECRETARY
OPTIMARK HOLDINGS, INC.
10 EXCHANGE PLACE CENTRE, 24TH FLOOR
JERSEY CITY, NEW JERSEY 07302
(201) 536-7000
(Name, address and telephone number of agent for service)
Copy to:
Mark L. Weissler
Milbank, Tweed, Hadley & McCloy LLP
1 Chase Manhattan Plaza
New York, New York 10005
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Amount of
Amount to be Offering Price Aggregate Registration
Title of Securities to be Registered Registered (1) Per Share Offering Price (1) Fee
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<S> <C> <C> <C> <C>
Stock Option Plan
Common Stock and Options to Purchase
Common Stock 6,490,212 $ 6.10 (2) $ 39,590,293 (2) $ 10,452
1999 Stock Plan
Common Stock* and Options to Purchase Common
Common Stock 11,709,788 $ 7.37 (3) $ 86,301,137 (3) $ 22,784
---------
TOTAL REGISTRATION FEE $ 33,236
=========
====================================================================================================================================
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(1) This Registration Statement shall also cover any additional shares of
Registrant's Common Stock that become issuable under the Registrant's
Stock Option Plan and 1999 Stock Plan by reason of any stock dividend,
stock split, recapitalization or other similar transaction effected
without the Registrant's receipt of consideration that results in an
increase in the number of the Registrant's outstanding shares of Common
Stock.
(2) The proposed maximum offering price per share represents a weighted
average exercise price of the shares subject to outstanding options to
purchase Common Stock under the Stock Option Plan pursuant to Rule 457(h)
of the Securities Act of 1993, as amended (the "Securities Act").
(3) The proposed maximum offering price per share represents a weighted
average of the following estimates calculated in accordance with Rule
457(h) of the Securities Act. With respect to 7,882,950 shares subject to
outstanding options to purchase Common Stock under the 1999 Stock Plan,
the proposed maximum offering price per share is equal to the weighted
average exercise price of $10.00 per share pursuant to Rule 457(h) under
the Securities Act. With respect to 3,826,838 shares of Common Stock
available for future grant under the 1999 Stock Plan, the estimated
proposed maximum offering price per share was determined pursuant to Rule
457(h) under the Securities Act to be equal to the book value of the
Registrant's Common Stock on May 31, 2000.
* INCLUDES ASSOCIATED RIGHTS (THE "RIGHTS") TO PURCHASE PREFERRED OR COMMON
STOCK. UNTIL THE OCCURRENCE OF CERTAIN PRESCRIBED EVENTS, NONE OF WHICH HAS
OCCURRED, THE RIGHTS ARE NOT EXERCISABLE.
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PART I
Item 1. Plan Information
This registration statement relates to the registration of 18,200,000
shares of Common Stock, $.01 par value per share (the "Common Stock"), of
OPTIMARK HOLDINGS, INC. (the "Registrant") awarded under the Stock Option Plan
and the 1999 Stock Plan (together, the "Plans"). Documents containing the
information required by Part I of the registration statement will be sent or
given to participants in the Plans as specified by Rule 428(b). Such documents
are not filed with the Securities and Exchange Commission (the "Commission" or
the "SEC") either as part of this registration statement or as prospectuses or
prospectus supplements pursuant to Rule 424 in reliance on Rule 428.
Item 2. Registrant Information and Employee Plan Annual Information
The Registrant will, upon written or oral request, provide without charge
to any person to whom the Prospectus relating to this registration statement is
delivered, a copy of any and all of the information which has been incorporated
by reference in such Prospectus and this registration statement (pursuant to
Item 3 of Part II below). Such requests should be directed to the Secretary,
OptiMark Holdings, Inc., 10 Exchange Place Centre, 24th Floor, Jersey City, New
Jersey 07302 (telephone: 201-536-7000).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
OptiMark Holdings, Inc. (the "Registrant") hereby incorporates by
reference in this registration statement the following:
The Registrant's Registration Statement on Form 10 filed with the
Commission on May 1, 2000, as amended and which became effective on June 30,
2000, in which is described the terms, rights and provisions applicable to the
Registrant's outstanding Common Stock, and which includes the Registrant's
audited financial statements for the Registrant's fiscal year ended December 31,
1999.
All documents subsequently filed by the Registrant 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 to this
registration statement which indicates that all securities offered hereby have
been sold or which deregisters all securities 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 (such documents, and the
documents enumerated above, being hereinafter referred to as "Incorporated
Documents"); provided, however, that the documents enumerated above or
subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act in each year during which the offering made by this
registration statement is in effect prior to the filing with the Commission of
the Registrant's Annual Report on Form 10-K covering such year shall not be
Incorporated Documents or be incorporated by reference in this registration
statement or be a part hereof from and after the filing of such Annual Report on
Form 10-K.
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Any statement contained in an Incorporated Document 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
Incorporated Document 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
The Common Stock being registered hereunder has been registered pursuant
to Section 12 of the Exchange Act and a description of the Common Stock is
contained in the Exchange Act registration statement which has been filed with
the Commission.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of Delaware grants
corporations the power to indemnify their directors, officers, employees and
agents.
The Registrant's bylaws and certificate of incorporation, as amended
provide that it will indemnify any person who was or is a party or is threatened
to be made a party to any proceeding, because he was a director or officer, or
was serving at the Registrant's request as a director, officer, partner,
trustee, employee or agent of another enterprise. The indemnity covers expenses,
including attorneys' fees, judgments, fines and amounts paid in settlement
reasonably incurred in connection with the proceeding, to the fullest extent
permitted by the Delaware General Corporation Law. The indemnity is payable only
if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the Registrant's best interests, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. Any of the Registrant's other employees or agents may be indemnified
to the maximum extent permitted by law as authorized by the board of directors.
The Registrant's bylaws provide that this indemnification is not exclusive of
other rights to which these persons may be entitled.
The Registrant's certificate of incorporation, as amended also contains
provisions exculpating a director from liability for breaches of fiduciary duty
as a director, except for liability:
- for any breach of the directors' duty of loyalty to the
Registrant or its stockholders,
- for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law,
- in respect of certain unlawful dividend payments or stock
redemptions or repurchases, or
- for any transaction from which the director derived an
improper personal benefit.
The Registrant's certificate of incorporation, as amended also provides
that it will have the power to maintain insurance covering the Registrant's
directors, officers and employees against any liability or loss whether or not
the Registrant could indemnify them against the liability or loss under Delaware
law. The Registrant currently maintain directors' and officers' liability
insurance.
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Item 7. Exemption From Registration Claimed
Not applicable.
Item 8. Exhibits
The exhibits to this registration statement are listed in the Exhibit
Index, which appears elsewhere in this registration statement and is hereby
incorporated by reference.
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 of 1933, as amended (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 (a)(1)(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
Securities and Exchange 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
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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.
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SIGNATURES
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 Jersey City, State of New Jersey, on June 26, 2000.
OptiMark Holdings, Inc.
By: /s/ Phillip J. Riese
Chief Executive Officer and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
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Signature Title Date
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<S> <C> <C>
/s/ William A. Lupien Chairman of the Board June 22, 2000
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/s/ Phillip J. Riese Chief Executive Officer and Director (Principal June 26, 2000
--------------------- Executive, Financial and Accounting Officer)
/s/ John T. Rickard Director June 22, 2000
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/s/ Jerome H. Bailey Director June 26, 2000
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/s/ Peter L. Bloom Director June 27, 2000
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/s/ Ronald D. Fisher Director June 26, 2000
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/s/ Richard W. Jones Director June 23, 2000
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/s/ Morton H. Meyerson Director June 23, 2000
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/s/ Michael D. O'Halleran Director June 22, 2000
--------------------------
/s/ Kenneth D. Pasternak Director June 28, 2000
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EXHIBIT INDEX
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Exhibit
Number
<S> <C>
4.1* Stock Option Plan
4.2* Form of Stock Option Agreement for the Stock Option Plan
4.3* 1999 Stock Plan
4.4* Form of Stock Option Agreement for the 1999 Stock Plan
4.5 Form of Restricted Stock Purchase Agreement for the 1999
Stock Plan
4.6 Form of Common Stock Equivalent Agreement for the 1999 Stock
Plan
5.1 Opinion of Milbank, Tweed, Hadley & McCloy LLP
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Milbank, Tweed, Hadley & McCloy LLP (included in the
Opinion filed as Exhibit 5.1)
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* Previously filed as an exhibit to the Registrant's Registration
Statement on Form 10 (No. 000-30527) and incorporated by reference
thereto.
