As filed with the Securities and Exchange Commission on November 28, 2000
Registration No. 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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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
(Address of principal executive offices)
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ITG Australia Employee Share Plan
(Full title of the plan)
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P. Mats Goebels, 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)
Please send copies of all communications to:
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005-1702
Attention: Daniel J. Zubkoff, Esq.
(212) 701-3000
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CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of Amount to be offering price aggregate offering Amount of
securities to be registered registered per share price registration fee
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<S> <C> <C> <C> <C>
Common Stock, par value $.01 19,353 $36.24688 $701,486 $186
per share (1)
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(1) This registration statement covers shares of Common Stock, $.01 par value,
of Investment Technology Group, Inc. that may be offered and sold from time
to time pursuant to the ITG Australia Employee Share Plan.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. Plan Information.*
ITEM 2. Registrant Information and Employee Plan Annual Information.*
* As permitted by Rule 428 under the Securities Act of 1933, as
amended (the "Securities Act"), this Registration Statement omits
the information specified in Part I of Form S-8. The documents
containing the information specified in Part I will be delivered
to the participants in the plans covered by this Registration
Statement as required by Rule 428(b). Such documents are not
being filed with the Securities and Exchange Commission (the
"Commission") as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424(b)
under the Securities Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by Investment Technology Group,
Inc. ("the "Registrant" or the "Company") with the Securities and Exchange
Commission (the "Commission") (File No. 0-23644) and are hereby incorporated by
reference in this Registration Statement:
The Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1999;
The Company's Quarterly Reports on Form 10-Q for the fiscal quarters ended
March 31, June 30 and September 30, 2000; and
The description of the Common Stock of the Company contained in the
Company's Registration Statement on Form S-4 (No. 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, all documents subsequently filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment which indicates that all securities offered hereby 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, all or a portion of which is incorporated or deemed to be
incorporated by reference herein, 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 other 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.
The Company 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 (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
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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 by
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 acts or omissions not in good faith or which
involve intentional misconduct or knowing violation of law, (iii) under Section
174 of Title 8 of the DGCL 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 became effective.
Section 145 of the DGCL provides that a Delaware corporation shall have the
power to purchase and maintain insurance of 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 and officers to the
maximum extent now or hereafter permitted by law.
We maintain director's 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.
The following is a complete list of exhibits filed or incorporated by
reference as a part of this Registration Statement:
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Exhibit No. Description
4.1* ITG Australia Employee Share Plan.
4.2 Amended and Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 of the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1999).
4.3 Amended and Restated bylaws of the Company (incorporated by
reference to Exhibit 3.2 of the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1999).
5.1* Opinion of Cahill Gordon & Reindel with respect to the legality
of the Common Stock being registered hereby.
23.1* Consent of Cahill Gordon & Reindel (included in Exhibit 5.1).
23.2* Consent of KPMG LLP.
24* Powers of Attorney (included on page II-5 of this Registration
Statement).
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* Filed herewith.
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. 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% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement; or
(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 if the information required to be included in a
post-effective amendment by paragraphs (1)(i) and (ii) above 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
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that are incorporated by reference in this Registration Statement, then
paragraphs (1)(i) and (ii) shall not apply.
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; and
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.
That, for 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 this 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.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under 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 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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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 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 November 28, 2000.
INVESTMENT TECHNOLOGY GROUP, INC.
/s/ Raymond L. Killian, Jr.
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Name: Raymond L. Killian, Jr.
Title: Chairman of the Board, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby appoints Raymond L. Killian, Jr., Howard C. Naphtali and P. Mats
Goebels, or any of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place,
and stead, in any and all capacities, to sign the Registration Statement on Form
S-8 under the Securities Act of 1933, as amended, to sign any and all pre- or
post-effective amendments to the Registration Statement on Form S-8, and to file
the same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his substitutes, may
lawfully do or cause to be done by virtue hereof.
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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Signature Title Date
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<S> <C> <C>
/s/ Raymond L. Killian, Jr. Chairman of the Board, President November 28, 2000
----------------------------------------------- and Chief Executive Officer
(Raymond L. Killian, Jr.) (Principal Executive Officer)
/s/ Howard C. Naphtali Managing Director and Chief November 28, 2000
----------------------------------------------- Financial Officer (Chief
(Howard C. Naphtali) Financial
Officer)
/s/ Angelo Bulone Vice President and Controller November 28, 2000
----------------------------------------------- (Principal Accounting Officer)
(Angelo Bulone)
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Signature Title Date
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/s/ Frank E. Baxter Director November 28, 2000
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(Frank E. Baxter)
/s/ Neal S. Garonzik Director November 28, 2000
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(Neal S. Garonzik)
/s/ William I. Jacobs Director November 28, 2000
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(William I. Jacobs)
/s/ Robert L. King Director November 28, 2000
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(Robert L. King)
/s/ Mark A. Wolfson Director November 28, 2000
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(Mark A. Wolfson)
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Exhibit Index
Exhibit No. Description
4.1* ITG Australia Employee Share Plan.
4.2 Amended and Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 of the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1999).
4.3 Amended and Restated bylaws of the Company (incorporated by
reference to Exhibit 3.2 of the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1999).
5.1* Opinion of Cahill Gordon & Reindel with respect to the legality
of the Common Stock being registered hereby.
23.1* Consent of Cahill Gordon & Reindel (included in Exhibit 5.1).
23.2* Consent of KPMG LLP.
24* Powers of Attorney (included on page II-5 of this Registration
Statement).
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* Filed herewith.
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