As filed with the Securities and Exchange Commission on May 8, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT 0F 1933
TRACK DATA CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
22-3181095
(IRS Employer Identification Number)
56 PINE STREET
NEW YORK, NEW YORK 10005
(212) 422-4300
(Address, including zip code, and telephone number,
including area code, of registrants's principal executive offices)
MARTIN KAYE, VICE PRESIDENT - FINANCE
95 ROCKWELL PLACE
BROOKLYN, NEW YORK 11217
(718) 522-0222
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
1996 STOCK OPTION PLAN
OPTIONS
(Full title of option plan)
Copies of all Communications to:
Oscar D. Folger, Esq.
521 Fifth Avenue
New York, New York 10175
(212) 697-6464
CALCULATION OF REGISTRATION FEE
-------------------------------
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<S> <C> <C> <C> <C>
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED (1) PER SHARE (2) PRICE (2) FEE
- ----------------------------- --------------- ---------------- -------------------- -------------
Common Stock, $.01 par value 865,000 shares $ 3.75 $ 3,243,750 $ 956.91
</TABLE>
(1) The Registration Statement also includes an undeterminable number of
additional Shares that may become issuable pursuant to anti-dilution
provisions of the Plans.
(2) Estimated for purposes of computing the registration fee pursuant to
Rule 457(c) based upon the average of the high and low prices of the Common
Stock as reported by NASDAQ NMS on May 5, 1998.
<PAGE>
- ------
PROSPECTUS
- ----------
TRACK DATA CORPORATION
________________________________
865,000 Shares of Common Stock
________________________________
This Prospectus relates to 865,000 shares of Common Stock of Track Data
Corporation (the "Company"), par value $.01 per share (the "Shares"), of which
800,000 are issuable pursuant to the 1996 Stock Option Plan (the "Plan") and
65,000 options not issued pursuant to the Plan in connection with services
rendered to the Company. Any Shares which are offered will be offered for the
respective accounts of the Selling Shareholders. This Prospectus does not
relate to the sale or issuance by the Company of any securities. The Company
will not receive any proceeds from the sale of the Shares by the Selling
Shareholders. The Company will receive proceeds at the respective exercise
prices upon exercise of the options.
The Company has been advised by the Selling Shareholders that there are
no underwriting arrangements with respect to the sale of the Shares, that the
Shares will be sold from time to time in brokerage transactions at then
prevailing prices and in private transactions at negotiated prices, and that
usual and customary brokerage fees will be paid by the Selling Shareholders in
connection therewith.
The Company's Common Stock is traded on the NASDAQ National Market System
under the symbol TRAC. On May 5, 1998 the closing price for the Company's
Common Stock as reported by NASDAQ NMS was $3.75 per share.
________________________________
THESE SECURITIES INVOLVE A HIGH DEGREE OF RISK.
SEE "RISK FACTORS" ON PAGE 4.
________________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The price to public, underwriting discounts and commissions and proceeds to
selling shareholders are not determinable at this time.
THE DATE OF THIS PROSPECTUS IS MAY , 1998
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the reporting requirements of the Securities
Exchange Act of 1934 and in accordance therewith files reports and other
information with the Securities and Exchange Commission (the "Commission").
Such reports and other information may be inspected at the public reference
facilities maintained by the Commission at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the Commission's Regional Offices: Suite 1400,
Northwestern Atrium Center, 500 West Madison Street, Chicago, Illinois; Seven
World Trade Center - 13th Floor, New York, New York; and Suite 500, 5757
Wilshire Boulevard, Los Angeles, California. Copies of such materials may be
obtained from the Public Reference Section of the Commission, 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. The SEC also makes
electronic filings publicly available on the Internet within 24 hours of
acceptance. The SEC's Internet address is http://www.sec.gov. The SEC Web site
also contains reports, proxy and information statements, and other information
regarding registrants that file electronically with the SEC.
The Company undertakes to provide without charge to each person to whom
this Prospectus is delivered, upon the written or oral request of such person,
a copy of any and all of the information that has been incorporated by
reference in the Prospectus (not including exhibits to the information that is
incorporated by reference unless such exhibits are specifically incorporated
by reference into the information that the Prospectus incorporates). Such
request should be directed to the Secretary, Track Data Corporation, 95
Rockwell Place, Brooklyn, New York 11217.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS IN CONNECTION
WITH THE OFFERING DESCRIBED HEREIN AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFERING IN ANY JURISDICTION TO ANY PERSON
TO WHOM SUCH OFFER WOULD BE UNLAWFUL OR AN OFFERING OF ANY SECURITIES OTHER
THAN THE REGISTERED SECURITIES TO WHICH IT RELATES. NEITHER THE DELIVERY OF
THIS PROSPECTUS NOR ANY OFFER OR SALE MADE HEREUNDER AT ANY TIME SHALL IMPLY
THAT THE INFORMATION PROVIDED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO
ITS DATE.
<PAGE>
THE COMPANY
The Company was incorporated in Delaware in June 1992. On March 31, 1996,
Track Data Corporation ("Track"), a principal stockholder of Global Market
Information, Inc. ("Global"), merged into Global and the name of Global was
changed to Track Data Corporation ("TDC" or the "Company"). Pursuant to the
merger (the "Merger"), Global issued 12,000,000 shares of its common stock in
exchange for all of the outstanding stock of Track. Global, as the surviving
corporation, assumed all of Track's assets, liabilities and obligations.
On November 7, 1997, Barry Hertz, Chairman and principal stockholder of
the Company, transferred his 100% ownership in Newsware, Inc. ("NW") to the
Company for no consideration. NW owed Mr. Hertz approximately $1,025,000,
which was contributed to capital prior to this transaction, and NW owed the
Company approximately $1,200,000, net of reserves, at the time of this
transaction. NW is a provider of on-line news information services.
For accounting purposes, the Merger in 1996 and subsequently the
contribution of NW in 1997 were treated as combinations of entities under
common control similar to pooling-of-interests. Accordingly, the historical
financial position and results of operations of Track, Global and Newsware
have been combined for all periods presented.
Track Data Corporation is a supplier of electronically delivered
financial information since 1981. TDC provides real-time financial market
data, financial data bases, historical information, analytical services and
data manipulation tools, through a sophisticated private data network to high
end users in the equity/options/futures trading marketplace. TDC delivers
information on equities, options, futures, commodities, listed bonds, fixed
income securities and foreign currencies from all North American exchanges and
from the principal exchanges in Europe, Latin America and the Far East. In
addition, TDC disseminates news and third party data base information from
more than 100 sources worldwide.
The Company maintains more than a dozen offices worldwide, with executive
offices located at 56 Pine Street, New York, New York 10005 and at 95 Rockwell
Place, Brooklyn, New York 11217. Its telephone number is 212-943-4555 or
718-522-7373.
<PAGE>
RISK FACTORS
AN INVESTMENT IN THE COMMON STOCK INVOLVES A HIGH DEGREE OF RISK AND
SHOULD BE MADE ONLY BY INVESTORS WHO CAN AFFORD THE LOSS OF THEIR ENTIRE
INVESTMENT. PROSPECTIVE PURCHASERS, PRIOR TO MAKING AN INVESTMENT IN THE
SECURITIES, SHOULD CAREFULLY CONSIDER, ALONG WITH OTHER MATTERS REFERRED TO
HEREIN, THE FOLLOWING RISK FACTORS AND SHOULD CONSULT WITH THEIR OWN LEGAL,
TAX AND FINANCIAL ADVISORS WITH RESPECT THERETO.
Competition and Technological Change.
- ----------------------------------------
The Company operates in a highly competitive market in which it competes
with other distributors of financial and business information, some of whom
have substantially greater financial resources. The Company competes, among
other things, on the basis of price, on the quality and reliability of data,
and on the flexibility of services. There can be no assurance that the
Company will not encounter increased competition in the future, which could
limit its ability to maintain or increase market share or maintain margins,
and which could have a material adverse effect on its business, financial
condition or operating results. The industry in which the company competes is
characterized by developments requiring rapid adaptation to provide
competitive products and services. The Company believes that the increased
competition within the online services market could result in reduced market
share, price reductions, and increased spending on marketing and product
development, which could have a materially adverse effect on the Company's
financial condition and operating results.
Control.
- --------
Barry Hertz, the Company's Chairman, directly or indirectly owns
11,717,145 shares of the Company's Common Stock, representing approximately
80% of the total shares outstanding. As a result, Mr. Hertz controls the
Company. Since there are no cumulative voting rights, Mr. Hertz controls the
election of all of the members of the Company's Board of Directors. This
control by Mr. Hertz will prevent a change in control of the Company which is
not approved by Mr. Hertz. As a result, potential purchasers may not seek to
acquire control of the Company through the purchase of Common Stock. This may
tend to reduce the price of the Company's Common Stock.
Dependence on Management.
- ---------------------------
The Company is significantly dependent upon the continued availability of
Barry Hertz, its Chairman. The loss or unavailability of Mr. Hertz for an
extended period of time could have a material adverse effect on its business
operations and prospects. To the extent that his services would be
unavailable to the Company for any reason, the Company would be required to
procure other personnel to manage and operate the Company and develop its
products. There can be no assurance that the Company would be able to locate
or employ such qualified personnel on acceptable terms. The Company has not
entered into any employment agreement with Mr. Hertz.
<PAGE>
- ------
Dependence on Securities Markets.
- ------------------------------------
The services of the Company are primarily directed towards customers who
invest or trade in the securities markets. To the extent that interest in
investing or trading decreases due to volatility in the securities markets,
the operations and revenues of the Company could be materially adversely
affected.
Lack of Intellectual Property Protection.
- ---------------------------------------------
The Company maintains proprietary economic and historical financial
databases. The Company considers its AIQ analytic software to be proprietary.
The Company protects its proprietary information with standard secrecy
agreements. There can be no assurance that the parties to such agreements,
other than the Company, will not breach any of the provisions of such
agreements and that, in the event of a breach or threatened breach, the
Company will be able to enforce its rights under the agreements. Should the
Company's proprietary information be disclosed, the business and prospects of
the Company could be adversely affected. The Company does not have, and has
not applied for, any patent protection for its proprietary information.
Shares Available for Future Sale.
- -------------------------------------
There are presently outstanding 14,616,202 shares of common stock, of
which 751,100 are deemed "restricted securities." These shares are held in a
trust for the benefit of employees and consultants pursuant to a deferred
compensation plan. "Restricted securities" may not be sold except in
compliance with Rule 144 under the Securities Act of 1933, as amended (the
"Securities Act"). Rule 144, in essence, provides that a person holding
restricted securities for a period of one year may publicly sell in brokerage
transactions an amount equal to 1% of the Company's outstanding Common Stock
every three months or, if greater, a percentage of the shares publicly traded
during a designated period.
The Company has issued to the underwriter of its initial public offering
(the "Underwriter") an option to purchase 120,000 shares of Common Stock for a
period of four years ending August 10, 1999. The holders of the Underwriter's
Options also have piggy-back registration rights for a period of six years
ending August 10, 2000. Such options and underlying shares are presently
registered pursuant to a registration statement filed on Form S-3.
Sales of the Company's Common Stock under options may have a depressive
effect on the price of the Common Stock and the issuance of additional Common
Stock upon the exercise of options will also dilute the proportionate
ownership of the then current stockholders of the Company.
Broad Discretion in Application of Proceeds.
- -------------------------------------------------
Management has designated the proceeds from the exercise of options to be
used for general corporate and working capital purposes and they may be
expended at the discretion of the Company's management. The Company has not
made any specific allocations as to the use of any such proceeds. As a result
of the foregoing, any return on investment to investors will be substantially
dependent upon the discretion and judgment of the Company's management with
respect to the application of the net proceeds of the offering.
Pending their use, the net proceeds from the exercise of options may be
invested by the Company in short-term, interest-bearing securities or money
market funds. The Company does not require that any specific minimum
investment criteria be used in selecting such short-term investments, but will
select such investments as it deems appropriate, taking into consideration
such factors as liquidity, return on and safety of investment. See "Use of
Proceeds".
Continued Listing Requirements for NASDAQ Securities.
- ----------------------------------------------------------
While the Common Stock is presently listed on the Nasdaq NMS, there can
be no assurance that the Company will continue to meet the maintenance
criteria for continued listing of its securities on Nasdaq. These continued
listing criteria include, among other things, $4,000,000 in net tangible
assets, a public float of 750,000 shares with a market value equal to
$5,000,000 held by at least 400 stockholders, two market makers and a minimum
bid price of $1.00 per share of common stock. There can be no assurance that
the Company will continue to satisfy these criteria. If the Company became
unable to meet the continued listing criteria of the Nasdaq National Market
System and became delisted therefrom, trading, if any, in the Common Stock
would thereafter have to be conducted in the Nasdaq Small-Cap Market, or in
the so-called "pink sheets" or, if then available, the Nasdaq "Electronic
Bulletin Board". As a result, an investor would find it more difficult to
dispose of, and to obtain accurate quotations for his Common Stock.
Authorization and Discretionary Issuance of Preferred Stock.
- ------------------------------------------------------------------
The Company's Certificate of Incorporation authorizes the issuance of
preferred stock with such designations, rights and preferences as may be
determined from time to time by the Board of Directors. Accordingly, the
Board of Directors is empowered, without stockholder approval, to issue
preferred stock, with dividend, liquidation, conversion, voting or other
rights which could adversely affect the voting power or other rights of the
holders of the Company's Common Stock. In the event of issuance, the
preferred stock could be utilized, under certain circumstances, as a method of
discouraging, delaying or preventing a change in control of the Company.
Although the Company has no present intention to issue any shares of its
preferred stock, there can be no assurance that it will not do so in the
future. Depending on the designations, rights and preferences of a particular
issuance of preferred stock, such issuance could adversely affect the market
value of the Company's Common Stock.
Indemnification and Limitation on Directors' Liabilities Under Delaware Law.
- ------------------------------------------------------------------------------
The Company's Certificate of Incorporation limits the liability of its
directors for breach of their fiduciary duty of care. The effect is to
eliminate liability of directors for monetary damages arising out of negligent
or grossly negligent conduct. Stockholder actions against a director of the
Company for monetary damages can only be maintained upon a showing of a breach
of the individual director's duty of loyalty to the Company, a failure to act
in good faith, intentional misconduct, a knowing violation of the law, an
improper personal benefit, or an illegal dividend or stock purchase, and not
for such director's negligence or gross negligence in satisfying his duty of
care. The Certificate of Incorporation also provides for indemnification as
permitted by Delaware law. However, insofar as indemnification for
liabilities arising under the Securities Act of 1933 may be permitted to
directors, officers or persons controlling the Company pursuant to the
foregoing provisions, the Company has been informed that in the opinion of the
Commission such indemnification is against public policy as expressed in the
Act and is therefore unenforceable.
No Dividends.
- --------------
The Company has not paid any cash dividends since its inception and does
not anticipate paying any cash dividends in the foreseeable future. There can
be no assurance that the operations of the Company will result in sufficient
earnings to enable the Company to pay dividends. It is anticipated that
earnings, if any, will be used to finance the Company's growth.
USE OF PROCEEDS
Management has designated the proceeds from options, if any, to be used
for general corporate and working capital purposes and they may be expended at
the discretion of the Company's management. The Company has not made any
specific allocations as to the use of any such proceeds.
The Company may, when and if the opportunity arises, acquire other
businesses which are in some manner related to the Company's business. If such
an opportunity arises, the Company may use a portion of its funds for that
purpose. The Company has no specific arrangements with respect to any such
acquisition at the present time and is not presently involved in any
negotiations with respect to any such acquisition. There can be no assurance
that any acquisition will be made.
Prior to expenditure, the net proceeds will be invested in short-term,
interest bearing securities or money market funds. The Company does not
require that any specific minimum investment criteria be used in selecting
such short-term investments, but will select such investments as it deems
appropriate, taking into consideration such factors as liquidity, return on
and safety of investments.
MATERIAL DEVELOPMENTS
Since the Company's most recent filing of its Annual Report on Form 10-K
for the fiscal year ended December 31, 1997, no material developments have
occurred.
<PAGE>
SELLING SHAREHOLDERS
The securities are being offered on behalf of a number of employees,
officers, directors and consultants of the Company. The list below sets forth
the current officers and directors on whose behalf securities are being
offered hereby. Unless otherwise indicated, the addresses for all of the
Selling Shareholders is 95 Rockwell Place, Brooklyn, NY 11217.
<TABLE>
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SECURITIES OWNED SECURITIES OWNED SECURITIES TO BE
BEFORE OFFERING (1) AFTER OFFERING SOLD
NAME AND ADDRESS
Barry Hertz (1) 11,897,145 40,000 11,857,145
Alan Schnelwar 50,000 25,000 -0-
Martin Kaye 45,000 25,000 -0-
</TABLE>
(1) Consists of 11,353,245 shares owned by Mr. Hertz and 363,900 shares
owned by Trusts established in the names of Mr. Hertz's children. Also
includes 140,000 options which are presently exercisable under the Company's
1994 and 1995 Stock Option Plans and 40,000 granted under the 1996 Stock
Option Plan. After this offering, Mr. Hertz would own or control approximately
80% of the Company's Common Stock
(2) Consists of 50,000 shares issuable upon the exercise of options
granted under the Company's 1996 Stock Option Plan of which 25,000 are not
presently exercisable.
(3) Consists of shares issuable upon the exercise of presently exercisable
options granted under the Company's 1995 Stock Option Plan and 25,000 options
granted under the 1996 Stock Option Plan.
<PAGE>
PLAN OF DISTRIBUTION
The shares are being offered for the respective accounts of the Selling
Shareholders. The Company will not receive any proceeds from the sale of any
Shares by the Selling Shareholders. The Company will receive proceeds from the
exercise prices of any options which are exercised by the Selling
Shareholders.
The sale of Shares by the Selling Shareholders may be effected from time
to time in brokerage transactions, in negotiated transactions, through the
writing of options on the Shares, or through a combination of such methods of
sale, at fixed prices, which may be charged at market prices prevailing at the
time of sale, at prices related to such prevailing market prices or at
negotiated prices. The Selling Shareholders may effect such transactions by
selling the Shares to or through broker-dealers, and such broker-dealers may
receive compensation in the form of discounts, concessions or commissions from
the Selling Shareholders and/or the purchasers of the Shares for which such
broker-dealers may act as agent or to whom they sell as principal, or both
(which compensation as to a particular broker-dealer may be in excess of
customary compensation).
The Selling Shareholders and any broker-dealers who act in connection
with the sale of the shareholders hereunder may be deemed to be "underwriters"
within the meaning of section 2(11) of the Securities Act, and any commissions
received by them and profit on any sale of the Shares as principal might be
deemed to be underwriting discounts and commissions under the Securities Act.
EXPERTS
The financial statements of Track Data Corporation incorporated in this
Prospectus by reference from the Company's Annual Report on Form 10-K for each
of the three years in the period ended December 31, 1997 have been audited by
Grant Thornton LLP, independent auditors, as stated in their report, and the
financial statements of Innodata Corporation incorporated in this Prospectus
by reference from the Company's Annual Report on Form 10-K for the year ended
December 31, 1997 have been audited by Grant Thornton LLP and for the years
ended December 31, 1996 and 1995 have been audited by Margolin, Winer & Evens
LLP, as stated in their reports, which are incorporated herein by reference,
and have been so incorporated in reliance upon the reports of such firms given
upon their authority as experts in accounting and auditing.
LEGAL MATTERS
Certain legal matters in connection with the validity of the securities
offered by this Prospectus will be passed on for the Company by Oscar D.
Folger, Esq., New York, New York. Mr. Folger is entitled to receive 30,562
shares of the Company's common stock pursuant to a TDC phantom stock plan at
the time he no longer performs services for the Company, or earlier with the
approval of the Board of Directors.
<PAGE>
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents are incorporated in this Prospectus and made a part
hereof by reference:
1. The Company's Annual Report on Form 10-K for the year ended December
31, 1997, filed with the Commission pursuant to Section 13 of the Securities
Exchange Act of 1934.
2. The section entitled "Description of Common Stock" contained in
Global's Registration Statement No. 33-78570 on Form S-1 filed with the
Commission, under the Securities Act of 1933, and effective as of August 11,
1994.
In addition, all reports, proxy statements and other documents of the
Company hereafter filed with the Commission pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, prior to the termination
of the offering of the securities covered by this Prospectus or the filing of
a post-effective amendment which indicates that all securities have been sold
or which deregisters all securities then remaining unsold, shall be deemed to
be incorporated in this Prospectus and made a part hereof by reference from
the date of filing each such document. The Company's Commission File Number is
0-24634. Any statement contained in an earlier document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is
incorporated or 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 Prospectus.
LIMITATION OF LIABILITY AND INDEMNIFICATION OF DIRECTORS
The Company's Certificate of Incorporation includes a provision that
eliminates or limits the personal financial liability of the Company's
directors, except in situations where there has been a breach of the
director's duty of loyalty to the Company or its stockholders, acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, liability under Section 174 of the Delaware General
Corporation Law relative to unlawful payment of dividends, stock purchases or
redemptions, or any transaction from which the director derived an improper
personal benefit. In addition, under its Certificate of Incorporation and
By-Laws as well as under separate agreements, the Company is required to
indemnify its officers and directors to the fullest extent permitted by law.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed 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.
<PAGE>
FURTHER INFORMATION
The Company has filed with the Securities and Exchange Commission,
Washington, D.C., a Registration Statement on Form S-8 under the Securities
Act of 1933, as amended, with respect to the securities offered by this
Prospectus. This Prospectus omits certain information contained in the
Registration Statement, as permitted by the rules and regulations of the
Securities and Exchange Commission. For further information, reference is made
to the Registration Statement which may be examined without charge at the
Washington, D.C. office of the Commission and copies of all or any part
thereof may be obtained from the Commission's office in Washington, D.C. upon
payment of the Commission's charge for copying. Statements contained in this
Prospectus as to the contents of any contract or other document which is an
exhibit to the Registration Statement, each such statement is deemed to be
qualified and amplified in all respects by the provisions of the exhibit.
<PAGE>
TRACK DATA CORPORATION
____________________
865,000 Shares of Common Stock
____________________
PROSPECTUS
____________________
--------------------
May , 1998
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS, AND IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES
NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF ANY OFFER TO BUY ANY
SECURITIES IN ANY JURISDICTION IN WHICH SUCH AN OFFER OR SOLICITATION WOULD BE
UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER
SHALL UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
<PAGE>
PART II
INFORMATION REQUIRED IN THE PROSPECTUS
ITEM 3. Incorporation of Documents by Reference.
--------------------------------------------
See "Incorporation of Certain Information by Reference."
ITEM 4. Description of Securities.
----------------------------
Not Applicable.
ITEM 5. Interest of Named Experts and Counsel.
-------------------------------------------
See "Legal Matters."
ITEM 6. Indemnification of Directors and Officers.
----------------------------------------------
The Company has entered into agreements with each director in which the
Company agrees to indemnify each director and officer to the maximum extent
permitted by law.
The Company's Certificate of Incorporation provides that all directors,
officers, employees and agents of the Registrant shall be entitled to be
indemnified by the Company to the fullest extent permitted by law. The
Certificate of Incorporation also provides as follows:
A director, or former director, shall not be liable to the corporation or
to any of its stockholders for monetary damages for breach of fiduciary duty
as a director, provided that this provision shall 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 a knowing violation of
law; (iii) under Section 174 of the General Corporation Law of the State of
Delaware, pertaining to the liability of directors for unlawful payment of
dividends or unlawful stock purchase or redemption; or (iv) for any
transaction from which the director derived an improper personal benefit.
Section 145 of the Delaware General Corporation Law concerning
indemnification of officers, directors, employees and agents is set forth
below.
Section 145. Indemnification of officers, directors, employees and
agents; insurance.
(a) 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 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 him in connection with such action, suit or proceeding
if he acted in good faith and in a manner he 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. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he 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 reasonable cause to believe that his
conduct was unlawful.
(b) 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 or suit by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that he 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) actually and reasonably incurred by him
in connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such persons shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the corporation unless and only
to the extent that the Court of Chancery 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 indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in subsections
(a) and (b) of this section. Such determination shall be made (1) by the board
of directors by a majority vote of a quorum consisting of directors who were
not parties to such action, suit or proceeding, or (2) if such a quorum is not
obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (3) by the
stockholders.
(e) Expenses incurred by an officer or director in defending a civil
or criminal 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 shall ultimately be determined that he is not entitled
to be indemnified by the corporation as authorized in this section. Such
expenses incurred by other employees and agents may be so paid upon such terms
and conditions, if any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
(g) A corporation shall have power to purchase and maintain insurance
on behalf of any person who 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 any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the corporation would have the power to
indemnify him against such liability under this section.
(h) For purposes of this section, references to "the corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and
employees or agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this section with respect
to the resulting or surviving corporation as he would have with respect to
such constituent corporation if its separate existence had continued.
(i) For purposes of this section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan;
and references to "serving at the request of the corporation" shall include
any service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee,
or agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the corporation" as referred to
in this section.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended, (the "Securities Act") 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 Securities 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 the 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.
ITEM 7. Exemption from Registration Claimed.
---------------------------------------
Not applicable.
ITEM 8. Exhibits.
---------
(5) Opinion of Oscar D. Folger as to legality (included in Exhibit 24(a))
(24) (a) Consent of Oscar D. Folger
(24) (b) Consent of Grant Thornton LLP
(24) (c) Consent of Margolin, Winer & Evens LLP
(28) Form of 1996 Stock Option Plan (1)
- ---------------
(1) Incorporated by reference from Exhibit A to Definitive Proxy for
November 7, 1996 Annual Meeting of Stockholders.
ITEM 10. Undertakings.
-------------
The undersigned registrant hereby undertakes:
A. To file, during any period in which offers or sales are being
made, a post-effective amendment of 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 which, individually
or in the aggregate, represent a fundamental change in the information set
forth in the Registration Statement; and
(iii) To include any additional or changed material information on
the plan of distribution.
Provided, however, that paragraphs (A)(i) and (ii) do not apply if
-------------------
the 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 the registration statement.
B. 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.
C. 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.
D. The undersigned registrant hereby undertakes that for purposes of
determining any liability under the Securities Act of 1933, each filing of
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 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.
E. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registant pursuant to any charter provisions, by-laws,
contract, arrangements, statute 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
with the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by a 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>
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
7th day of May 1998.
TRACK DATA CORPORATION
By /s/
---------------------------------
Barry Hertz
Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date stated.
SIGNATURE TITLE DATE
- ------------------- ----------------------------------- -----------
/s/ Chairman of the Board and May 7, 1998
- -------------------
Barry Hertz Chief Executive Officer
/s/ Senior Vice President and Director May 7, 1998
- -------------------
Alan Schnelwar
/s/ Vice President - Finance, Secretary May 7, 1998
- -------------------
Martin Kaye and Director
/s/ Director May 7, 1998
- -------------------
E. Bruce Fredrikson
/s/ Director May 7, 1998
- -------------------
Morton Mackof
/s/ Director May 7, 1998
- -------------------
Jack Speigelman
EXHIBIT 24.A
LAWYERS OPINION AND CONSENT
We have acted as counsel to Track Data Corporation, a Delaware corporation
(the "Company") in connection with the registration by the Company of 865,000
shares of its common stock, $.01 par value (the "Shares") which are issuable
under the Company's 1996 Stock Option Plan and certain options issued not
pursuant to a plan in connection with services rendered to the Company. All
of the Shares are the subject of a Registration Statement on Form S-8 under
the Securities Act of 1933, as amended (the "Act"). As counsel to the Company
we have examined and relied upon the original or copies, certified or
otherwise identified to our satisfaction, of such documents, corporate records
and other instruments as we have deemed necessary in order to render the
following opinion.
Based upon the foregoing, we are of the opinion that the Shares to be issued
by the Company are duly authorized and, when issued and paid as described in
the Registration Statement, will be validly issued, fully paid and
nonassessable.
We are aware that we are referred to under the caption "Legal Matters" in the
Prospectus included in the Registration Statement and we hereby consent to
such reference to us and to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving such consent, however, we do not hereby
imply or admit that we are within the category of persons whose consent is
required under Section 7 of the Act or under the General Rules and Regulations
of the Securities and Exchange Commission adopted thereunder.
Oscar D. Folger
Law Offices of Oscar D. Folger
New York, New York
May 7, 1998
EXHIBIT 24.B
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Track Data Corporation on Form S-8 of our report dated February
27, 1998, appearing in the Annual Report on Form 10-K of Track Data
Corporation for each of the three years in the period ended December 31, 1997
as to Track Data Corporation and of our report dated March 4, 1998 as to
Innodata Corporation for the year ended December 31, 1997 and to the reference
to our firm under the heading "Experts" in the Prospectus, which is part of
this Registration Statement.
Grant Thornton LLP
Melville, New York
May 7, 1998
EXHIBIT 24.C
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Track Data Corporation on Form S-8 of our report dated March 14,
1997, appearing in the Annual Report on Form 10-K of Track Data Corporation as
to the financial statements of Innodata Corporation for the years ended
December 31, 1996 and 1995 and to the reference to our firm under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
Margolin, Winer & Evens LLP
Garden City, New York
May 6, 1998
