As filed with the Securities and Exchange Commission on October 13, 1999.
Registration Statement 333-_______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
______________
NATIONAL DISCOUNT BROKERS GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware 22-2394480
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
10 Exchange Place Centre, Jersey City, New Jersey 07302
(Address of principal executive offices) (Zip Code)
National Discount Brokers Group, Inc.
1999 Non-Qualified Stock Option Plan, As Amended
(Full title of the plan)
Frank E. Lawatsch, Jr., Esq.
Executive Vice President, Secretary and General Counsel
National Discount Brokers Group, Inc.
10 Exchange Place Centre
Jersey City, New Jersey 07302
(Name and address of agent for service)
(201) 946-2200
(Telephone number, including area code, of agent for service)
Copy to:
James B. Keenan, Esq.
Gibbons, Del Deo, Dolan, Griffinger & Vecchione
One Riverfront Plaza
Newark, New Jersey 07102-5497
(973) 596-4500
Calculation of Registration Fee
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<S> <C> <C> <C> <C>
Proposed Proposed
Title of Each Class Amount Maximum Offering Maximum Amount of
of Securities To Be Price Aggregate Registration
to be Registered Registered(1) Per Share(2) Offering Fee(2)
Price(2)
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- ---------------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value per share 1,000,000 $25.375 $25,375,000 $7,054.25
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended,
this registration statement also covers additional shares of Common Stock
pursuant to the anti-dilution provisions of the Plan.
<PAGE>
(2) Estimated in accordance with Rule 457(c) solely for the purposes of
calculating the registration fee, based on the average high and low prices per
share of the Registrant's Common Stock as reported on The New York Stock
Exchange on October 11, 1999.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by National Discount Brokers
Group, Inc. (the "Company") with the Securities and Exchange Commission (the
"Commission") are incorporated by reference in this Registration Statement:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
May 31, 1999;
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") since the
filing of the Annual Report on Form 10-K described in (1) above;
(3) The description of the Company's common stock, par value $.01 per share
(the "Common Stock") contained in the Company's Registration Statement
filed on Form S-1 (File No. 33-12904) as filed under the Securities
Act of 1933, as amended, including any amendment or report filed
for the purpose of updating such description; and
(4) 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
in this Registration Statement and to be a part hereof from the
respective date of filing of such documents. Any statement
contained in a document incorporated by reference herein is
modified or superseded for all purposes to the extent that a
statement contained in this Registration Statement or in any other
subsequently filed document which is incorporated by reference
modifies or replaces such statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Ralph N. Del Deo, a senior partner in the law firm of Gibbons, Del Deo,
Dolan, Griffinger & Vecchione which performs legal services for the Company, is
a Director of the Company.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
provides for the indemnification of officers and directors under certain
circumstances against expenses incurred in successfully defending against a
claim and authorizes Delaware corporations to indemnify their officers and
directors under certain circumstances against expenses and liabilities incurred
in legal proceedings involving such persons because of their being or having
been an officer or director.
Section 102(b) of the Delaware General Corporation Law permits a
corporation, by so providing in its certificate of incorporation, to eliminate
or limit director's liability to the corporation and its stockholders for
monetary damages arising out of certain alleged breaches of their fiduciary
duty. Section 102(b)(7) provides that no such limitation of liability may affect
a director's liability with respect to any of the following: (i) breaches of the
director's duty of loyalty to the corporation or its stockholders; (ii) acts or
omissions not made in good faith or which involve intentional misconduct or
knowing violations of law; (iii) liability for dividends paid or stock
repurchased or redeemed in violation of the Delaware General Corporation Law; or
(iv) any transaction from which the director derived an improper personal
benefit. Section 102(b)(7) does not authorize any limitation on the ability of
the corporation or its stockholders to obtain injunctive relief, specific
performance or other equitable relief against directors.
Article 7 of the Company's Restated Certificate of Incorporation, as
amended, provides that no director shall be personally liable to the Company or
any of its stockholders for monetary damages for breach of his or her fiduciary
duty as a director except to the extent such elimination or limitation is
prohibited by the Delaware General Corporation Law. In addition, Article 7 of
the Company's Restated Certificate of Incorporation, as amended, provides in
substance that to the fullest extent permitted by Delaware law, each director
and officer shall be indemnified by the Company against reasonable costs and
expenses, including attorneys fees, and any liabilities which he or she may
incur in connection with any action to which he or she may be made a party by
reason of his or her having been a director or officer of the Company. The
indemnification provided by the Company's Restated Certificate of Incorporation,
as amended, is not deemed exclusive of or in any way to limit any other rights
to which any person seeking indemnification may be entitled.
The Company has entered into Indemnification Agreements with the directors
and executive officers of the Company (the "Officers") whereby the Company has
agreed to indemnify and hold harmless the Officers to the fullest extent
permitted by the provisions of the Delaware General Corporation Law, and pay and
all expenses, fines, costs, and judgments or awards which the Officers may incur
in connection with their service as officers of the Company.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description
4.1 National Discount Brokers Group,Inc. 1999
Non-Qualified Stock Option Plan, as
Amended - incorporated by reference to
Exhibit 10.38 to the Company's Form 10-K
for the fiscal year ended May 31, 1999.
4.2 The Company's Restated Certificate of
Incorporation, as amended - incorporated
by reference to Exhibit 3.3 to the
Company's Form 10-Q for the quarter ended
November 30, 1997.
4.3 Amended and Restated By-Laws of the
Company - incorporated by reference to
Exhibit 4.4 to the Company's Registration
Statement on Form S-8 (File No. 333-41819)
filed December 9, 1997.
5.1 Opinion of Gibbons, Del Deo, Dolan,
Griffinger & Vecchione.
23.1 Consent of KPMG LLP.
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Gibbons, Del Deo, Dolan,
Griffinger & Vecchione (included
in Exhibit 5.1).
Item 9. Undertakings.
The Company 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;
(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 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective 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.
(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.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Company's annual report pursuant to Section
13(a) or 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.
(5) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company 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 of 1933, as amended, the
Company 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 1st day of
September, 1999.
NATIONAL DISCOUNT BROKERS GROUP, INC.
By: ________________________________
Matthew S. Stadler
Senior Vice President and Chief
Financial Officer
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.
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<S> <C> <C>
Signature Title Date
____________________ Chief Executive Officer September 30, 1999
Arthur Kontos and Director
(Principal Executive Officer)
____________________ Senior Vice President and Chief September 30, 1999
Matthew S. Stadler Financial Officer (Principal
Financial and Accounting Officer)
____________________ Director September 30, 1999
James H. Lynch, Jr.
____________________ Director September 30, 1999
Charles Kirk Kellogg
_______________ Director September 30, 1999
Dennis Marino
______________ Director September 30, 1999
Thomas Newmann
______________ Director September 30, 1999
John P. Duffy
______________ Director September 30, 1999
Ralph Del Deo
____________________ Director September 30, 1999
Stephen DiLascio
</TABLE>
<TABLE>
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EXHIBIT INDEX
No. Description Method of Filing
4.1 National Discount Brokers Group, Incorporated by reference to
Inc. 1999 Non-Qualified Stock Option Exhibit 10.38 to the Company's Form 10-K for
Plan, as Amended the fiscal year ended May 31, 1999
4.2 Restated Certificate of Incorporated by reference to Exhibit
Incorporation, as amended 3.3 to the Company's Form 10-Q for the
quarter ended November 30, 1997
4.3 Amended and Restated By-Laws Incorporated by reference to Exhibit
4.4 to the Company's Registration
Statement on Form S-8 (File No.
333-41819) filed December 9, 1997
5.1 Opinion of Gibbons, Del Deo, Dolan, Filed with this Registration Statement
Griffinger & Vecchione
23.1 Consent of KPMG LLP Filed with this Registration Statement
23.2 Consent of PricewaterhouseCoopers Filed with this Registration Statement
23.3 Consent of Gibbons, Del Deo, Dolan, Included in Exhibit 5.1
Griffinger & Vecchione
</TABLE>
Exhibit 5.1
Gibbons, Del Deo, Dolan, Griffinger & Vecchione
One Riverfront Plaza
Newark, New Jersey 07102
October 11, 1999
National Discount Brokers Group, Inc.
10 Exchange Place Centre
Jersey City, New Jersey 07302
Re: National Discount Brokers Group, Inc. 1999 Non-Qualified Stock Option
Plan, as Amended
Ladies and Gentlemen:
We have acted as counsel to National Discount Brokers Group, Inc. (the
"Company") in connection with all proceedings relating to the authorization and
proposed issuance and sale by the Company of shares of common stock, $.01 par
value per share ("Common Stock") upon the exercise of stock options granted
pursuant to the National Discount Brokers Group, Inc. 1999 Non-Qualified Stock
Option Plan, as amended (the "Plan"), as described in the Registration Statement
on Form S-8 (the "Registration Statement"), filed by the Company with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
on the date hereof.
Based upon our examination of such documents and proceedings as we have
deemed necessary and pertinent, we are of the opinion that when the shares of
Common Stock are issued upon the due exercise of stock options granted in
accordance with the Plan, such shares of Common Stock will be duly and validly
issued and outstanding and will be fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Gibbons, Del Deo, Dolan, Griffinger & Vecchione
GIBBONS, DEL DEO, DOLAN,
GRIFFINGER & VECCHIONE
A Professional Corporation
EXHIBIT 23.1
Consent of Independent Accountants
The Board of Directors
National Discount Brokers Group, Inc.:
We consent to incorporation by reference in the registration statement on
Form S-8 of National Discount Brokers Group, Inc. of our report dated July 15,
1998, relating to the consolidated statement of financial condition of National
Discount Brokers Group, Inc. and subsidiaries as of May 31, 1998, and the
related consolidated statements of income and comprehensive income, changes in
stockholders' equity, and cash flows for each of the years in the two-year
period then ended, which report appears in the May 31, 1999 annual report on
Form 10-K of National Discount Brokers Group, Inc.
KPMG LLP
New York, New York
October 12, 1999
EXHIBIT 23.2
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated July 15, 1999 relating to the
financial statements and financial statement schedules, which appears in
National Discount Brokers Group, Inc. Annual Report on Form 10-K for the year
ended May 31, 1999.
PricewaterhouseCoopers LLP
October 12, 1999
