As filed with the Securities and Exchange Commission on March 7, 2000.
Registration Statement 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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NATIONAL DISCOUNT BROKERS GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware 22-2394480
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(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
10 Exchange Place Centre, Jersey City, New Jersey 07302
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(Address of principal executive offices) (Zip Code)
2000 National Discount Brokers Group, Inc. Compensation Plan
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(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
<TABLE>
<CAPTION>
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Proposed Proposed
Amount Maximum Offering Maximum Amount of
Title of Each Class To Be Price Aggregate Registration
of Securities Registered(1) Per Share(2) Offering Fee(2)
to be Registered Price(2)
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<S> <C> <C> <C> <C>
Common Stock, $.01 par value per share 800,000 $43.28 $34,624,000 $9,140.74
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<FN>
(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.
</FN>
<FN>
(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 March 3, 2000.
</FN>
</TABLE>
<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. Mr. Del Deo is also the beneficial owner of 35,000
shares of Common Stock of the Company consisting of 20,000 shares held by Mr.
Del Deo, an option to purchase 5,000 shares of Common Stock of the Company and
10,000 shares held by his wife.
<PAGE>
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.
<PAGE>
<TABLE>
<CAPTION>
Item 8. Exhibits.
Exhibit No. Description
<S> <C>
4.1 2000 National Discount Brokers Group, Inc. Compensation Plan -
incorporated by reference to Exhibit A to the Company's definitive
Proxy Statement dated September 9, 1999 for its 1999 Annual Meeting of
Stockholders.
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).
</TABLE>
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;
<PAGE>
(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.
<PAGE>
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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 3rd
day of March, 2000.
NATIONAL DISCOUNT BROKERS GROUP, INC.
By:
--------------------------------
Daniel Fishbane
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.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
Chief Executive Officer and Director March 3, 2000
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Arthur Kontos (Principal Executive Officer)
Senior Vice President and Chief March 3, 2000
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Daniel Fishbane Financial Officer (Principal
Financial and Accounting Officer)
Director March 3, 2000
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James H. Lynch, Jr.
Director March 3, 2000
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Charles Kirk Kellogg
Director March 3, 2000
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Dennis Marino
Director March 3, 2000
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Thomas Newmann
Director March 3, 2000
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John P. Duffy
Director March 3, 2000
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Ralph Del Deo
Director March 3, 2000
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Russell Horowitz
</TABLE>
<PAGE>
Exhibit 5.1
March 3,2000
National Discount Brokers Group, Inc.
10 Exchange Place Centre
Jersey City, New Jersey 07302
Re: 2000 National Discount Brokers Group, Inc. Compensation Plan
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, and the issuance of Common Stock as a stock award under, the 2000
National Discount Brokers Group, Inc. Compensation Plan (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 (i) the due exercise of stock options granted in
accordance with the Plan and payment for such shares as required under the Plan,
and (ii) the granting of a stock award and the vesting thereof 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,
GIBBONS, DEL DEO, DOLAN,
GRIFFINGER & VECCHIONE
A Professional Corporation
<PAGE>
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, 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.
/s/ KPMG LLP
KPMG LLP
New York, New York
March 3, 2000
<PAGE>
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 consolidated financial statements and financial statement schedule, which
appears in National Discount Brokers Group, Inc.'s Annual Report on Form 10-K
for the year ended May 31, 1999.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
New York, New York
March 3, 2000
