As filed with the Securities and Exchange Commission on May 12, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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 its charter)
Delaware 95-2848406
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
380 Madison Avenue
4th Floor
New York, New York 10017
(212) 588-4000
(Address of Principal Executive Offices)
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INVESTMENT TECHNOLOGY GROUP, INC.
EMPLOYEE STOCK OWNERSHIP PLAN
(Full title of the plan)
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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)
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Copy to:
Daniel J. Zubkoff, Esq.
Cahill Gordon & Reindel
80 Pine Street
New York, NY 10005-1702
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<CAPTION>
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered (1) Registered (2) Offering Price Per Share Aggregate Offering Price Registration Fee
(2) (2)
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par
value $.01 per share 290,000 $34.22 $9,923,800 $2,759
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(1) This registration statement covers shares of Common Stock, $.01 par value,
of Investment Technology Group, Inc. which may be offered and sold from
time to time pursuant to our Employee Stock Ownership 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 this plan. In addition, pursuant to Rule
416(c), this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to our Employee Stock Ownership
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 sale prices for shares of Common Stock on May [ ],
1999, as reported on the New York Stock Exchange.
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<PAGE>
PART I
INFORMATION REQUIRED
IN PROSPECTUS
ITEM 1. PLAN INFORMATION.
Omitted as permitted pursuant to Rule 438 and Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Omitted as permitted pursuant to Rule 438 and Form S-8.
<PAGE>
PART II
INFORMATION REQUIRED
IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Investment Technology Group, Inc. hereby incorporates by reference the
following documents previously filed with the Securities and Exchange Commission
pursuant to the Securities Exchange Act:
(a) The Company's Annual Report on Form 10-K and 10-K/A for the fiscal
year ended December 31, 1998 (File No. 0-23644);
(b) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 26, 1999; and
(c) The description of the Common Stock of the Company contained in the
Company's 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 statement, 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.
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
<PAGE>
(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.
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.
II-2
<PAGE>
ITEM 8. EXHIBITS.
The following exhibits are filed herewith, or incorporated herein by
reference:
EXHIBIT NO. EXHIBIT
5 Opinion of Cahill Gordon & Reindel, filed herewith.
23.1 Consent of KPMG LLP, filed herewith..
23.2 Consent of Cahill Gordon & Reindel (included in Exhibit 5).
24 Powers of Attorney (included on page II-5 of this registration
statement.).
ITEM 9. UNDERTAKINGS.
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 the undertakings set forth in paragraphs (i)
and (ii) above do not apply if 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 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.
(4) 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 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 this 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.
II-3
<PAGE>
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 provisions described in Item 6 above, 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 the 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.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Western Resources,
Inc., 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 11th day of
May 1999.
INVESTMENT TECHNOLOGY GROUP, INC.
By: /s/ Raymond L. Killian, Jr.
----------------------------------
Raymond L. Killian, Jr.
Chairman of the Board, President Chief
Executive Officer
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 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 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.
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.
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<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Raymond L. Killian, Jr.
- ----------------------------- Chairman of the Board, President and Chief May 11, 1999
Raymond L. Killian, Jr. Executive Officer
/s/ John R. MacDonald
- ----------------------------- Senior Vice President and Chief Financial Officer May 11, 1999
John R. MacDonald (Principal Financial Officer)
/s/ Angelo Bulone Vice President and Controller (Principal May 11, 1999
- ----------------------------- Accounting Officer)
Angelo Bulone
/s/ Frank E. Baxter
- ----------------------------- Director May 11, 1999
Frank E. Baxter
/s/ Neal S. Garonzik
- ----------------------------- Director May 11, 1999
Neal S. Garonzik
II-5
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/s/ William I Jacobs
- ----------------------------- Director May 11, 1999
William I Jacobs
/s/ Robert L. King
- ----------------------------- Director May 11, 1999
Robert L. King
/s/ Mark A. Wolfson
- ----------------------------- Director May 11, 1999
Mark A. Wolfson
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II-6
<PAGE>
EXHIBIT INDEX
Exhibit
Number Exhibit
5 Opinion of Cahill Gordon & Reindel.
23.1 Consent of KPMG LLP.
23.2 Consent of Cahill Gordon & Reindel (included in Exhibit 5).
24 Powers of Attorney (included on page II-5 of this registration
statement).
II-7
EXHIBIT 5
May 12, 1999
Investment Technology Group, Inc.
380 Madison Avenue
4th Floor
New York, New York 10017
Re: Form S-8 Relating to the Investment Technology Group, Inc.
Employee Stock Ownership 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 the
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 290,000
shares of the Company's common stock (the "Registered Shares"), $.01 par value
per share (the "Common Stock"), offered under the Company's Employee Stock
Ownership Plan (the "Plan").
In connection with this opinion, we have examined the Registration
Statement, the Certificate of Incorporation and Bylaws of the Company, certain
of the Company's corporate proceedings as reflected in its minute books, the
Plan 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 have been duly authorized and are
validly issued, fully paid and non-assessable.
In rendering this opinion, we express no opinion as to the laws of any
jurisdiction other than the laws of the United States, the laws of the State of
New York and 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
Exhibit 23.1
Independent Auditors' Consent
The Board of Directors
Investment Technology Group, Inc.:
We consent to incorporation by reference in the Registration Statement on Form
S-8 of Investment Technology Group, Inc. of our report dated January 20, 1999,
relating to the consolidated statements of financial condition of Investment
Technology Group, Inc. and subsidiaries as of December 31, 1998 and 1997, and
the related consolidated statements of income, changes in stockholders' equity
and cash flows for each of the years in the three-year period ended December 31,
1998, which report is included in the December 31, 1998 annual report on Form
10-K, as amended by Form 10-K/A of Investment Technology Group, Inc.
KPMG LLP
New York, New York
May 11, 1999
