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As filed with the Securities and Exchange Commission on December 19, 1997
Registration No. 333-___________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INVESTMENT TECHNOLOGY GROUP, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE
(State or Other Jurisdiction of Incorporation or Organization)
13-3757717
(I.R.S. Employer Identification No.)
380 Madison Avenue
4th Floor
New York, NY 10017
(Address of Principal Executive Offices) (Zip Code)
INVESTMENT TECHNOLOGY GROUP, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
TIMOTHY H. HOSKING
Senior Vice President, General Counsel and Secretary
Investment Technology Group, Inc.
380 Madison Avenue
4th Floor
New York, NY 10017
(Name and Address of Agent For Service)
(212) 444-6363
(Telephone Number, Including Area code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title Of Amount Proposed Maximum Proposed Maximum
Securities To Be To Be Offering Price Aggregate Offering Amount Of
Registered (1) Registered (1) Per Share Price Registration Fee
-------------- -------------- --------- ----- ----------------
<S> <C> <C> <C> <C>
Common Stock, $.01
par value 250,000 $30.25 (2) $7,562,500 $2,230.94 (3)
</TABLE>
(1) This registration statement (the "Registration Statement") covers
shares of Common Stock, $.01 par value, of Investment Technology Group,
Inc. (the "Company") which may be offered and sold from time to time
pursuant to the Company's Employee Stock Purchase Plan (the "Plan").
Pursuant to Rule 416(a), the number of shares being registered shall be
adjusted to include any additional shares which may become issuable as
a result of stock splits, stock dividends or similar transactions in
accordance with the anti-dilution provisions of the Plan.
(2) Estimated pursuant to paragraphs (c) and (h) of Rule 457 solely for the
purpose of calculating the registration fee, based upon the average of
the reported high and low sales prices for shares of Common Stock on
December 18, 1997, as reported in the Nasdaq National Market.
(3) Calculated pursuant to Section 6(b) of the Securities Act of 1933, as
amended, as follows: $295 per $1,000,000 of proposed maximum aggregate
offering price.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Omitted as permitted pursuant to Rule 428 and Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Omitted as permitted pursuant to Rule 428 and Form S-8.
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PART II
INFORMATION REQUIRED IN REGISTRATION
STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of Investment Technology Group, Inc., a
Delaware corporation (the "Company"), filed with the Securities and Exchange
Commission (the "Commission"), are incorporated by reference into this
Registration Statement:
(a) The Company's Annual Report on Form 10-K for the Company's fiscal
year ended December 31, 1996, filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
(b) The Company's Quarterly Reports on Form 10-Q for the Company's
fiscal quarters ended March 28, 1997, June 27, 1997, and September 26, 1997,
filed pursuant to Section 13(a) of the Exchange Act.
(c) The description of the Common Stock of the Company contained in the
Company's Registration Statement on Form S-1 (Registration Number 33-76474,
filed with the Commission on March 15, 1994), incorporated by reference in the
Company's Form 8-A (filed with the Commission on March 16, 1994), including any
other amendment or report filed for the purpose of updating such description.
All reports and other 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 date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated in this Registration Statement by reference shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained in this Registration Statement or in any other
subsequently filed document which also is or is deemed to be incorporated in
this Registration Statement by reference modifies or supersedes such statement.
Any statement so modified shall not be deemed in its unmodified form, and any
statement so superseded shall not be deemed, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's By-laws provide that the Company shall, to the fullest
extent permitted by Section 145 of the Delaware General Corporation Law, as
amended from time to time, indemnify all persons whom it may indemnify pursuant
thereto.
Under Section 145 of the Delaware General Corporation Law, a
corporation may 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, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation) by reason of the fact that he
or she is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding (i) if such person acted in
good faith and in a manner that person reasonably believed to be in or not
opposed to the best interests of the corporation and (ii), with respect to any
criminal action or proceeding, if he or she had no reasonable cause to believe
such conduct was unlawful. In actions brought by or in the right of the
corporation, a corporation may indemnify such person against expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
with the defense or settlement of such action or suit if such person acted in
good faith and in a manner which that person reasonably believed to be in or not
opposed to the best interests of the corporation, except that no indemnification
shall be made in respect of any claim, issue or matter as to which that person
shall have been adjudged to be liable to the corporation unless and only to the
extent that the Court of Chancery of the State of Delaware or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnification for such
expenses which the Court of Chancery or other such court shall deem proper. To
the extent that such person has been successful on the merits or otherwise in
defending any such action, suit or proceeding referred to above or any claim,
issue or matter therein, he or she is entitled to indemnification for expenses
(including attorneys' fees) actually and reasonably incurred by such person in
connection therewith. Expenses (including attorneys' fees) incurred by an
officer or director in defending any civil, criminal, administrative or
investigative action, suit or proceeding may be paid by the corporation in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such director or officer to repay such
amount if it is ultimately determined that he is not entitled to be indemnified
by the corporation as authorized in Section 145. Such expenses (including
attorneys' fees) incurred by other employees and agents may be so paid upon such
terms and conditions, if any, as the board of directors deems appropriate. The
indemnification and advancement of expenses provided for, or granted pursuant
to, Section 145 is not exclusive of any other rights of indemnification or
advancement of expenses to which those seeking indemnification or advancement of
expenses may be entitled, and a corporation may purchase and maintain insurance
against liabilities asserted against any former or current director, officer,
employee or agent of the corporation, or a person who is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise whether or
not the power to indemnify is provided by the statute.
Article Seven of the Company's Certificate of Incorporation provides
that the Company's directors will not be personally liable to the Company or its
stockholders for monetary damages resulting from breaches of their fiduciary
duty as directors except (i) for any breach of the duty of loyalty to the
Company 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 of the Delaware General Corporation Law (involving certain unlawful
dividends or stock
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repurchases) or (iv) for any transaction from which the director derived an
improper personal benefit.
The Company's directors and officers are covered by insurance policies
insuring against certain civil liabilities, including liabilities under the
federal securities laws, which might be incurred by them in such capacity.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4(a) Certificate of Incorporation of the Company (incorporated by
reference to Exhibit 3.1 to the Company's Registration
Statement on Form S-1, Number 33-76474, filed with the
Commission on March 15, 1994 (the "Form S-1 Registration
Statement")).
4(b) By-laws of the Company (incorporated by reference to Exhibit
3.2 to the Form S-1 Registration Statement, filed with the
Commission on March 15, 1994).
5 Opinion of Steven C. Root, Esq., with respect to the legality
of securities being registered.
23(a) Consent of KPMG Peat Marwick LLP.
23(b) Consent of Steven C. Root, Esq. (included in Exhibit 5).
24 Powers of Attorney (included on the signature pages of this
Part II).
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;
(ii) To reflect in the Prospectus any facts or events arising
after the effective date of this 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 the 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% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
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(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this 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 this Registration Statement is on Form S-3 or Form S-8, and
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any
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 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 the 19th day of
December, 1997.
INVESTMENT TECHNOLOGY GROUP, INC.
By: /s/ SCOTT P. MASON
-------------------------------------
Scott P. Mason
President and Chief Executive Officer
Each person whose signature appears below constitutes and appoints
Scott P. Mason, President and Chief Executive Officer of the Company, and
Timothy H. Hosking, Senior Vice President, General Counsel and Secretary of the
Company, and each of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement and any and all other
documents and instruments incidental thereto, and to file the same, with all
exhibits thereto, and all documents in connection therewith, with the Securities
and Exchange Commission and any other regulatory authority, granting unto said
attorney-in-fact and agent, or his substitute, full power and authority to do
and perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or his
substitute, may lawfully do or cause to be done by virtue hereof.
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.
<TABLE>
<CAPTION>
SIGNATURE POSITION DATE
<S> <C> <C>
/s/ SCOTT P. MASON Director, President and Chief December 19, 1997
- ------------------------------------- Executive Officer
Scott P. Mason (Principal Executive Officer)
/s/ JOHN R. MACDONALD Senior Vice President and December 19, 1997
- ------------------------------------- Chief Financial Officer
John R. MacDonald (Principal Financial Officer and
Principal Accounting Officer)
/s/ RAYMOND L. KILLIAN, JR. Chairman of the Board and December 19, 1997
- ------------------------------------- Director
Raymond L. Killian, Jr.
</TABLE>
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<TABLE>
<CAPTION>
SIGNATURE POSITION DATE
<S> <C> <C>
/s/ FRANK E. BAXTER Director December 19, 1997
- -------------------------------------
Frank E. Baxter
/s/ RICHARD G. DOOLEY Director December 19, 1997
- -------------------------------------
Richard G. Dooley
/s/ WILLIAM I. JACOBS Director December 19, 1997
- -------------------------------------
William I. Jacobs
/s/ ROBERT L. KING Director December 19, 1997
- -------------------------------------
Robert L. King
/s/ MICHAEL L. KLOWDEN Director December 19, 1997
- -------------------------------------
Michael L. Klowden
/s/ DALE A. PROUTY Director December 19, 1997
- -------------------------------------
Dale A. Prouty
/s/ MARK A. WOLFSON Director December 19, 1997
- -------------------------------------
Mark A. Wolfson
</TABLE>
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EXHIBIT INDEX
Exhibit
Number Description
4(a) Certificate of Incorporation of the Company (incorporated by reference
to Exhibit 3.1 to the Company's Registration Statement on Form S-1,
Number 33-76474, filed with the Commission on March 15, 1994 (the "Form
S-1 Registration Statement")).
4(b) By-laws of the Company (incorporated by reference to Exhibit 3.2 to the
Form S-1 Registration Statement, filed with the Commission on March 15,
1994).
5 Opinion of Steven C. Root, Esq., with respect to the legality of
securities being registered.
23(a) Consent of KPMG Peat Marwick LLP.
23(b) Consent of Steven C. Root, Esq. (included in Exhibit 5).
24 Powers of Attorney (included on the signature pages of Part II of the
Registration Statement).
<PAGE> 1
Exhibit 5
December 19, 1997
Investment Technology Group, Inc.
380 Madison Avenue
4th Floor
New York, NY 10017
Re: Registration Statement on Form S-8 Relating to the Investment
Technology Group, Inc. Employee Stock Purchase Plan
Ladies and Gentlemen:
I have acted as counsel to Investment Technology Group, Inc., a
Delaware corporation (the "Company"), in connection with the preparation of a
registration statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act"), relating to 250,000
shares of the Company's common stock (the "Registered Shares"), $.01 par value
per share (the "Common Stock"), to be offered and sold under the Company's
Employee Stock Purchase Plan (the "Plan").
In connection with this opinion, I have examined the Registration
Statement, the Certificate of Incorporation and By-laws of the Company, certain
of the Company's corporate proceedings as reflected in its minute books, the
Plan, and such other records as I have deemed relevant. In my examinations, I
have assumed the genuineness of all signatures, the authenticity of all
documents submitted to me as originals, and the conformity with the originals of
all documents submitted to me as copies. In addition, I have made such other
examinations of law and fact as I have deemed appropriate in order to form a
basis for the opinion hereinafter expressed.
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Investment Technology Group, Inc.
December 19, 1997
Page 2
In my opinion, the Registered Shares that may be originally issued by
the Company in connection with the Plan, when and to the extent issued in
accordance with the terms of the Plan and the resolutions authorizing the Plan
for a price per share not less than the par value thereof, will be validly
issued, fully paid, and non-assessable shares of Common Stock.
I render this opinion as a member of the Bar of the State of New
Hampshire. The opinion set forth above is limited to the application of the
Delaware General Corporation Law, as amended.
I hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving such opinion and consent, I do not thereby
admit that I am acting within the category of persons whose consent is required
under Section 7 of the Securities Act or the rules and regulations of the
Commission thereunder.
Very truly yours,
/s/ STEVEN C. ROOT
Steven C. Root
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Exhibit 23(a)
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Investment Technology Group, Inc.:
We consent to the use of our report incorporated herein by reference.
/s/ KPMG PEAT MARWICK LLP
Los Angeles, California
December 19, 1997
