As filed with the Securities and Exchange Commission on May 17, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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INSIGNIA FINANCIAL GROUP, INC.
(f/k/a Insignia/ESG Holdings, Inc.)
(Exact name of registrant as specified in its charter)
Delaware 56-2084290
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) Number)
200 Park Avenue
New York, New York 10166
(Address of principal executive offices) (Zip Code)
Insignia Financial Group, Inc. 401(k) Restoration Plan
(Full title of the Plan)
Adam B. Gilbert, Esq.
General Counsel and Secretary
Insignia Financial Group, Inc.
200 Park Avenue
New York, New York 10166
(212) 984-8000
(Name, address and telephone number,
including area code, of agent for service)
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Copies to:
Arnold S. Jacobs, Esq.
Proskauer Rose LLP
1585 Broadway
New York, New York 10036
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CALCULATION OF REGISTRATION FEE
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Title of Amount to Proposed Proposed Amount of
securities to be registered maximum maximum registration
be registered offering price aggregate fee
per share offering price
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Deferred $20 million N/A $20,000,000(1) $5,560
Compensation
Obligations
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(1) Solely for purposes of calculating the registration fee pursuant to Rule
457(h)(1).
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Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
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Insignia Financial Group, Inc., formerly known as Insignia/ESG Holdings,
Inc. (the "Corporation"), incorporates by reference herein the following
documents filed by it with the Securities and Exchange Commission (File No.
1-14373) pursuant to the Securities Exchange Act of 1934, as amended:
1. The Corporation's Annual Report on Form 10-K for the year ended December
31, 1998;
2. Amendment No. 1 to the Corporation's Annual Report on Form 10-K for the
year ended December 31, 1998 filed on April 30, 1999;
3. The Corporation's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999; and
4. The Corporation's Current Report on Form 8-K dated March 5, 1999.
All documents subsequently filed by the Corporation pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of 1934, as amended,
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 in this
Registration Statement and to be part hereof from the date of filing such
documents. Any statement in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superceded for the
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 supercedes such statement. Any
statement so modified or superceded shall not be deemed, except as so modified
or superceded, to constitute part of this Registration Statement.
Item 4. Description of Securities.
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The securities being registered represent obligations (the "Obligations")
of the Corporation to pay the participants in the Insignia Financial Group, Inc.
401(k) Restoration Plan (the "Plan"), upon their termination, death, retirement
or disability, compensation which the participants have elected to defer. The
Obligations may also represent amounts that the Corporation has elected to
credit to a participant's account under the Plan. Amounts credited to a
participant's account, including matching credits made by the Corporation, are
credited with a
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quarterly rate of return of two (2) percentage points above the 90-day treasury
bill rate as reported in The Wall Street Journal at the beginning of each
quarterly evaluation period. All credited Obligations are payable in cash in a
single sum payment upon a participant's death, retirement or disability. Upon a
participant's termination for cause, only the amounts that such participant has
elected to defer are payable in cash in a single sum payment and matching
credits by the Corporation will be forfeited. Upon termination for any other
reason, all vested amounts of the Obligations will be paid in cash in a single
sum payment. There is no trading market for the Obligations.
The Obligations are unsecured general obligations of the Corporation and
rank pari passu with other unsecured and unsubordinated indebtedness of the
Corporation. The Obligations are not subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment or
garnishment. Any attempt by any person to transfer or assign benefits under the
Plan, other than a claim for benefits by a participant for his or her
beneficiaries, will be null and void.
The Obligations are not convertible into any other security of the
Corporation. No trustee has been appointed to take action with respect to the
Obligations and each participant in the Plan will be responsible for enforcing
his or her own rights with respect to the Obligations. The Corporation, in its
sole discretion, may establish a "rabbi trust" or invest in group annuities or
other investment products to pay the Obligations.
Item 5. Interest of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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The Corporation is incorporated in Delaware. Under Section 145 of the
General Corporation Law of the State of Delaware, a Delaware corporation has the
power, under specified circumstances, to indemnify its 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 action, suit or proceeding. Article Tenth of
the Certificate of Incorporation of the Corporation provides for indemnification
of directors and officers to the fullest extent permitted by the General
Corporation Law of the State of Delaware, and the Corporation has entered into
agreements with all its executive officers and directors with respect to such
indemnification. Reference is made to the Certificate of Incorporation of the
Corporation and such agreements, incorporated by reference to Exhibits 3.1 and
10.18, respectively, to the Corporation's Registration Statement on Form 10.
The indemnification agreements entered into by the Corporation with all of
its directors and its executive officers are based on the provisions of the
General Corporation Law of the State of Delaware, which are contained primarily
in Section 145 of the General Corporation Law of the State of Delaware, but are
intended to provide broader indemnification than that which is
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specifically provided by Section 145. The indemnification agreements provide
generally that the Corporation will to the fullest extent permitted by
applicable law indemnify the director or executive officer against expenses
arising from any event or occurrence, either prior to or after the time the
indemnification agreement is executed, related to the fact that such person is
or was serving as a director or executive officer of the Corporation (or of
another entity at the Corporation's request).
The Corporation currently has directors and officers liability insurance
policies (the "Policies") in place with National Union Fire Insurance Company of
Pittsburgh and Lloyds of London. The Policies are "claims made" policies with a
$25,000,000 aggregate coverage amount. However, the Board of Directors believes
that it serves the Corporation's best interest to supplement this coverage or
any coverage which the Corporation may maintain in the future by agreeing by
contract to indemnify directors and executive officers to the fullest extent
permitted under applicable law.
Section 102(b)(7) of the General Corporation Law of the State of Delaware
provides that a certificate of incorporation may contain a provision eliminating
or limiting the personal liability of a director to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director
provided that such provision shall 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 a knowing violation of law, (iii) under
Section 174 (relating to liability for unauthorized acquisitions or redemptions
of, or dividends on, capital stock) of the General Corporation Law of the State
of Delaware, or (iv) for any transactions from which the director derived an
improper personal benefit. Article Eleventh of the Corporation's Certificate of
Incorporation contains such a provision.
Item 7. Exemption from Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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4.1 Insignia Financial Group, Inc. 401(k) Restoration Plan (incorporated
herein by reference to Exhibit 10.3(h) to the Corporation's Annual Report on
Form 10-K for the year ended December 31, 1998).
5 Opinion of Proskauer Rose LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Proskauer Rose LLP (included in Exhibit 5).
24 Power of Attorney.
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Item 9. Undertakings.
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(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;
(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
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 15(d) of the Securities
Exchange Act or 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purposes of determining 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.
(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 of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (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
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 of 1933 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
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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 New York, State of New York, on this 14th day of May,
1999.
INSIGNIA FINANCIAL GROUP, INC.
By: /s/ Andrew L. Farkas
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Andrew L. Farkas
Chairman and
Chief Executive Officer
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.
Signatures Title Date
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/s/ Andrew L. Farkas Chief Executive Officer May 14, 1999
- ---------------------- and Director
Andrew L. Farkas (Principal Executive Officer)
/s/ James A. Aston Chief Financial Officer
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James A. Aston Accounting Officer)
/s/ Robert J. Denison Director May 12, 1999
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Robert J. Denison
/s/ Robin L. Farkas Director May 14, 1999
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Robin L. Farkas
/s/ Andrew J.M. Huntley Director May 14, 1999
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Andrew J.M. Huntley
/s/ Robert G. Koen Director May 14, 1999
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Robert G. Koen
/s/ Stephen B. Siegel Director May 14, 1999
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Stephen B. Siegel
/s/ H. Strauss Zelnick Director May 14, 1999
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H. Strauss Zelnick
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EXHIBIT INDEX
Number Title of Exhibit
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5 Opinion of Proskauer Rose LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Proskauer Rose LLP (included in Exhibit 5).
24 Power of Attorney.
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Exhibit 5
Letterhead of Proskauer Rose LLP
May 17, 1999
Insignia Financial Group, Inc.
200 Park Avenue
New York, New York 10166
Dear Sirs:
We are acting as counsel to Insignia Financial Group, Inc. (f/k/a
Insignia/ESG Holdings, Inc.), a Delaware corporation (the "Company"), in
connection with the Registration Statement on Form S-8 (the "Registration
Statement") filed by the Company under the Securities Act of 1933, as amended
(the "Act"), relating to the registration of deferred compensation obligations
(the "Obligations") of the Company arising under the Company's 401(k)
Restoration Plan (the "Plan").
We have examined originals or copies, certified or otherwise authenticated
to our satisfaction, of all such corporate records, documents, agreements and
instruments and certificates of public officials and of representatives of the
Company, and have made such investigation of law and fact, as we have deemed
appropriate for purposes of this opinion.
Based upon, and subject to, the foregoing, we are of the opinion that the
Obligations, when established pursuant to the terms of the Plan, will be valid
and binding obligations of the Company, enforceable against the Company in
accordance with the terms of the Plan, except as enforceability (i) may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting creditors' rights generally and (ii) is subject to general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving the foregoing consent, we do not admit that we
are in the category of persons whose consent is required under Section 7 of the
Act.
Very truly yours,
/s/ Proskauer Rose LLP
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) of Insignia Financial Group, Inc. (f/k/a Insignia/ESG Holdings, Inc.)
pertaining to the Insignia Financial Group, Inc. 401(k) Restoration Plan of our
report dated March 5, 1999 with respect to the consolidated and combined
financial statements of Insignia Financial Group, Inc. included in the Annual
Report (Form 10-K) for the year ended December 31, 1998 filed with the
Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Greenville, South Carolina
May 17, 1999
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints Andrew L. Farkas and Adam B. Gilbert, and each of
them, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, to act, without the other, for him and in his
name, place, and stead, in any and all capacities, to sign a Registration
Statement on Form S-8 of Insignia Financial Group, Inc., and any or all
amendments (including post-effective amendments) thereto, relating to the
offering of shares of its Common Stock, 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 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 full 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, their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
/s/ Andrew L. Farkas /s/ Robert G. Koen
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Andrew L. Farkas Robert G. Koen
/s/ Robin L. Farkas /s/ Stephen B. Siegel
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Robin L. Farkas Stephen B. Siegel
/s/ Robert J. Denison /s/ H. Strauss Zelnick
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Robert J. Denison H. Strauss Zelnick
/s/ Andrew J.M. Huntley
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Andrew J.M. Huntley
