As filed with the Securities and Exchange Commission on April 28, 1999
Registration Nos. 333-26309 and
333-42725
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
---------------
POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
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INVESTMENT TECHNOLOGY GROUP, INC.
(Exact name of registrant as specified in charter)
Delaware 95-2848406
(State of Incorporation) (I.R.S. Employer Identification No.)
380 Madison Avenue
4th Floor
New York, New York 10017
(212) 588-4000
(Address of Principal Executive Offices)
---------------
Investment Technology Group, Inc.
1994 Stock Option and Long-Term Incentive Plan, as Amended and Restated
Amended Non-Employee Directors' Stock Option Plan
Options Granted to Certain Non-Employee Directors
Employee Stock Purchase Plan
(Full title of the plans)
---------------
Timothy H. Hosking, Esq.
Investment Technology Group, Inc.
380 Madison Avenue, 4th Floor
New York, New York 10017
(212) 588-4000
(Name, address and telephone number, including area code, of agent for service)
===============================================================================
<PAGE>
EXPLANATORY STATEMENT
This constitutes post-effective amendment no. 1 to the registration
statements (the "Registration Statements") on form S-8 (File Nos. 333-26309 and
333-42725) filed by Investment Technology Group, Inc. (IRS Employer
Identification Number 13-3757717) ("Old ITG") prior to the merger described
below.
On April 27, 1999, Old ITG was spun off from Jefferies Group, Inc.
("Jefferies Group"). The spin-off was effected through a series of transactions
including Old ITG's merger with and into Jefferies Group, with Jefferies Group
surviving the merger and being renamed Investment Technology Group, Inc. (IRS
Employer Identification Number 95-2848406) ("New ITG"). Prior to the merger, Old
ITG paid a special cash dividend of $4.00 per share.
The number of shares covered by the Registration Statements are adjusted to
reflect the increases in (a) the maximum numbers of shares issuable under (1)
the 1994 Stock Option and Long-Term Incentive Plan, (2) the Amended Non-Employee
Directors' Stock Option Plan and (3) the Employee Stock Purchase Plan and (b)
the number of shares issuable upon exercise of the options granted to certain
non-employee directors covered by Registration Statement No. 333-26309. These
increases reflect the exchange ratio in the merger and the special cash
dividend.
Except as modified by this post-effective amendment, including
modifications resulting from the incorporation of documents by reference, New
ITG, by virtue of this amendment, expressly adopts the Registration Statements
as its own registration statements for all purposes of the Securities Act of
1933.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Investment Technology Group, Inc. (the "Company") hereby incorporates by
reference the following documents previously filed with the Securities and
Exchange Commission pursuant to the Securities Exchange Act:
(a) Annual Report on Form 10-K and 10-K/A for the fiscal year ended
December 31, 1998 (File No. 0-23644); and
(b) The description of the Common Stock contained in the Registration
Statement on Form S-4 (Registration Number 333-74723, filed with the
Commission on March 19, 1999), including any other amendment or report
filed for the purpose of updating such description.
In addition to the documents already incorporated by reference into the
registration statements, all documents filed by the Company pursuant to Section
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
subsequent to the date of this registration statement and prior to the filing of
a post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
of such documents.
Any statement contained herein or in a document incorporated or deemed to
be incorporated herein by reference 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 subsequently filed document which also is, or is
deemed to be, incorporated by reference herein 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
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Investment Technology Group, Inc. is incorporated under the laws of the
State of Delaware. Sections 102 and 145 of the Delaware General Corporation Law
(the "DGCL") set forth the conditions and limitations governing the
indemnification of officers, directors and other persons by Delaware
corporations.
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<PAGE>
Generally, Section 145 of the DGCL provides that a Delaware corporation
shall have the power to indemnify any person who was or is a party or is
threatened to be made a party to any action, suit or proceeding (except actions
by or in the right of the corporation) by reason of the fact that such person is
or was a director, officer, employee or agent of the corporation against all
expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with such action, suit or
proceeding if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. In addition, a Delaware corporation may
similarly indemnify such person for expenses actually and reasonably incurred by
him or her in connection with the defense or settlement of any action or suit by
or in the right of the corporation, provided such person acted in good faith and
in a manner he or she reasonably believed to be in the best interests of the
corporation, and, in the case of claims, issues and matters as to which such
person shall have been adjudged liable to the corporation, provided that the
Court of Chancery of the State of Delaware or the court in which such action or
suit was brought shall have determined upon application, that, despite the
adjudication of liability but in view of all of the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which such court shall deem proper. To the extent that a present or former
director or officer of a Delaware corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding described above, or in
defense of any claim issue or matter therein, such person shall be indemnified
against expenses actually and reasonably incurred by such person in connection
therewith.
Generally, Section 102(b)(7) of the DGCL provides that the certificate of
incorporation of a Delaware corporation may contain provisions eliminating or
limiting the personal liability of a director to a corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director;
provided that such provision may 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 act or omissions not in good faith or which
involve intentional misconduct or knowing violation of law, (iii) under Section
174 of Title VIII, or (iv) for any transaction from which the director derived
an improper personal benefit. No such provision may eliminate or limit the
liability of a director for any act or omission occurring prior to the date
which such provisions becomes effective.
Section 145 of the DGCL provides that a Delaware corporation shall have the
power to purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation against any liability
asserted against such person and incurred by such person in any such capacity,
or arising out of such person's status as such, whether or not the corporation
would have the power to indemnify such person against the same pursuant to the
provisions of the DGCL.
Our certificate of incorporation, as amended provides for indemnification
of directors and officers for liabilities and expenses incurred in defending
actions brought against them in such capacities. Our certificate of
incorporation provides that we shall indemnify our directors to the maximum
extent now or hereafter permitted by law, and our officers, employees and agents
to the extent required by law and may, as authorized hereafter by the board of
directors, provide further indemnification to our officers, employees and agents
to the maximum extent now or hereafter permitted by law.
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<PAGE>
We maintain directors' and officers' liability insurance covering all of
our directors and officers against claims arising out of the performance of
their duties.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
Exhibit No. Description
5 Opinion of Cahill Gordon & Reindel as to the legality of the common
stock.
23.1 Consent of KPMG LLP (incorporated by reference from Exhibit 23 of our
Annual Report on Form 10-K for the year ended December 31, 1998 filed
on March 19, 1999).
23.2 Consent of Cahill Gordon & Reindel (included in Exhibit 5).
24 Powers of Attorney (included on page II-8 of this registration
statement).
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;
(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 this 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; and
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<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;
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 the periodic reports filed 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 further undertakes that, for the
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 herein, 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 existing provisions or arrangements whereby the
registrant may indemnify a director, officer or controlling person of the
registrant against liabilities arising under the Securities Act, 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 Securities 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
Securities Act and will be governed by the final adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-8 and has duly caused this post-effective
amendment to Registration Statement Nos. 333-26309 and 333-42725 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of New
York, and the State of New York on this 28th day of April 1999.
INVESTMENT TECHNOLOGY GROUP, INC.
By: /s/ Raymond L. Killian Jr.
------------------------------------
Raymond L. Killian, Jr.
President, Chief Executive Officer
and Chairman
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<PAGE>
Pursuant to the requirements of the Securities Act of 1933, as amended,
this post-effective amendment to Registration Statement No. 333-26309 has been
signed by the following persons in the capacities indicated and on the dates
indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Raymond L. Killian, Jr. President, Chief Executive Officer and April 28, 1999
- ------------------------------- Chairman of the Board of Directors
Raymond L. Killian, Jr. (Principal Executive Officer)
/s/ John R. MacDonald Senior Vice President and Chief Financial April 28, 1999
- ------------------------------- Officer (Principal Financial Officer)
John R. MacDonald
/s/ Angelo Bulone Vice President and Controller (Principal April 28, 1999
- ------------------------------- Accounting Officer)
Angelo Bulone
* Director April 28, 1999
- -------------------------------
Frank E. Baxter
* Director April 28, 1999
- -------------------------------
William I Jacobs
* Director April 28, 1999
- -------------------------------
Robert L. King
* Director April 28, 1999
- -------------------------------
Mark A. Wolfson
* By: /s/ Raymond L. Killian, Jr.
----------------------------
Raymond L. Killian, Jr.
Attorney-in-Fact
</TABLE>
II-6
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, as amended,
this post-effective amendment to Registration Statement No. 333-42725 has been
signed by the following persons in the capacities indicated and on the dates
indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Raymond L. Killian, Jr. President, Chief Executive Officer and April 28, 1999
- ------------------------------- Chairman of the Board of Directors
Raymond L. Killian, Jr. (Principal Executive Officer)
/s/ John R. MacDonald Senior Vice President and Chief Financial April 28, 1999
- ------------------------------- Officer (Principal Financial Officer)
John R. MacDonald
/s/ Angelo Bulone Vice President and Controller (Principal April 28, 1999
- ------------------------------- Accounting Officer)
Angelo Bulone
* Director April 28, 1999
- -------------------------------
Frank E. Baxter
* Director April 28, 1999
- -------------------------------
William I Jacobs
* Director April 28, 1999
- -------------------------------
Robert L. King
* Director April 28, 1999
- -------------------------------
Mark A. Wolfson
* By: /s/ Timothy H. Hosking
----------------------------
Timothy H. Hosking
Attorney-in-Fact
</TABLE>
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<PAGE>
Each person whose signature appears below constitutes and appoints Raymond
L. Killian, Jr, Timothy H. Hosking and John R. MacDonald and each of them, his
or her true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to Registration Statement Nos. 333-26309 and
333-42725 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 so and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
or she 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.
Director April 28, 1999
- ---------------------------
Neal S. Garonzik
II-8
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Description
5* Opinion of Cahill Gordon & Reindel as to the legality of the common
stock.
23.1 Consent of KPMG LLP (incorporated by reference from Exhibit 23 of our
Annual Report on Form 10-K for the year ended December 31, 1998 filed
on March 19, 1999).
23.2* Consent of Cahill Gordon & Reindel (included in Exhibit 5).
24* Powers of Attorney (included on page II-8 of this registration
statement.).
- ---------------
* Filed herewith
Exhibit 5
April 28, 1999
Investment Technology Group, Inc.
380 Madison Avenue
4th Floor
New York, New York 10017
Re: Post-effective Amendment No. 1 to Form S-8 Relating to the
Investment Technology Group, Inc. 1994 Stock Option and Long-Term
Incentive Plan, as Amended and Restated, the Amended Non-Employee
Directors' Stock Option Plan, Options Granted to Certain
Non-Employee Directors and
Employee Stock Purchase Plan
Ladies and Gentlemen:
We have acted as counsel to Investment Technology Group, Inc., a Delaware
corporation (the "Company"), in connection with the preparation of
post-effective amendment no. 1 to registration statements on Form S-8 to be
filed with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act"), relating to shares of
the Company's common stock (the "Registered Shares"), $.01 par value per share
(the "Common Stock"), issuable under the Company's 1994 Stock Option and
Long-Term Incentive Plan, as amended and restated, the Company's Amended
Non-Employee Directors' Stock Option Plan and the Employee Stock Purchase Plan
(collectively, the "Plans") and pursuant to the exercise of certain options
granted to certain non-employee directors (the "Specified Directors' Options").
In connection with this opinion, we have examined the registration
statements, the certificate of incorporation and bylaws of the Company, certain
of the Company's corporate proceedings as reflected in its minute books, the
Plans and such other records as we have deemed relevant. In our examinations, we
have assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, and the conformity with the originals of
all documents submitted to us as copies. As to factual matters, we have relied
on certificates and other representations and warranties of officers of the
Company and its subsidiaries and certificates and other documents of or provided
by governmental officials as we have deemed necessary or desirable.
In our opinion, the Registered Shares when and to the extent issued in
accordance with the terms of the Plans and the Specified Directors' Options and
the resolutions authorizing the Plans and the Specified Directors' Options 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.
In rendering this opinion, we express no opinion as to the laws of any
jurisdiction other than the General Corporation Law of the State of Delaware.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving such opinion and consent, we do not thereby
admit that we are 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/ Cahill Gordon & Reindel
