As filed with the Securities and Exchange Commission on November 17, 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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BKF CAPITAL GROUP, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 36-0767530
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
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ONE ROCKEFELLER PLAZA
NEW YORK, NEW YORK 10020
(212) 332-8400
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
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BKF CAPITAL GROUP, INC. 1998 INCENTIVE COMPENSATION PLAN
(Full title of the plan)
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NORRIS NISSIM, ESQ.
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
BKF CAPITAL GROUP, INC.
ONE ROCKEFELLER PLAZA
NEW YORK, NEW YORK 10020
(212) 332-8400
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPY TO:
JOHN C. KENNEDY, ESQ.
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
1285 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10019-6064
(212) 373-3000
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<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Amount of
Title of Each Class of Offering Price Per Aggregate Offering Registration
Securities to be Registered Amount to be Registered Share Price Fee
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<S> <C> <C> <C> <C> <C> <C>
Common stock, par value $1.00 per share 256,357 shares(1)(2) $13.84 $ 3,547,980.80 $ 936.67
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Common stock, par value $1.00 per share 1,043,643 shares(2) $18.16(3) $18,952,556.00(3) $5,003.47
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Total 1,300,000 shares(2) $5,940.14
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</TABLE>
(1) Consists of shares of common stock, par value $1.00 per share, of BKF
Capital Group, Inc. with respect to which options have been granted at a
weighted average exercise price of $13.84.
(2) Pursuant to Rule 416 under the Securities Act of 1933, this registration
statement shall be deemed to cover any additional securities to be offered
or issued from stock splits, stock dividends or similar transactions.
(3) Estimated solely for the purpose of calculating the registration fee in
accordance with Rules 457(c) and 457(h) under the Securities Act of 1933,
as amended. The Proposed Maximum Offering Price Per Share was determined by
averaging the high and low prices of the common stock, par value $1.00 per
share, of BKF Capital Group, Inc. as reported on the New York Stock
Exchange composite tape on November 14, 2000.
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EXPLANATORY NOTE
The Section 10(a) prospectus being delivered by BKF Capital Group, Inc.
(the "Company") to participants in the BKF Capital Group, Inc. 1998 Incentive
Compensation Plan (the "Plan") as required by Rule 428 under the Securities Act
of 1933, as amended (the "Securities Act"), has been prepared in accordance with
the requirements of Form S-8 and relates to shares of common stock, par value
$1.00 per share, of the Company (the "Common Stock") which have been reserved
for issuance pursuant to the Plan. The information regarding the Plan required
in the Section 10(a) prospectus is included in documents being maintained and
delivered by the Company as required by Rule 428 under the Securities Act. The
Company shall provide to participants in the Plan a written statement advising
them of the availability without charge, upon written or oral request, of
documents incorporated by reference herein, as is required by Item 2 of Part I
of Form S-8.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION
Not required to be filed in the Registration Statement.
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Not required to be filed in the Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Company (File
No. 1-10024) are incorporated by reference in this Registration Statement:
1. The Company's Annual Report on Form N-30D for the
fiscal year ended December 31, 1999 filed with the Commission on
February 1, 2000, as
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supplemented by the Company's Annual Report Supplement on Form N-30D/A
filed with the Commission on March 13, 2000;
2. The Company's Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 2000 filed with the Commission on May
22, 1999;
3. The Company's Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 2000 filed with the Commission on
August 15, 2000;
4. The Company's Quarterly Report on Form 10-Q for the
quarterly period ended September 30, 2000 filed with the Commission on
November 17, 2000;
5. The Company's Current Report on Form 8-K filed with
the Commission on April 25, 2000; and
6. The description of the Common Stock set forth in the
Company's Registration Statement on Form 8-A filed pursuant to Section
12 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), on November 4, 1993, and any amendment or report filed for the
purpose of updating any such description.
In addition, all reports and documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
hereof and 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 herein and made a part hereof from the date of the filing of such
documents.
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 certificate of incorporation of the Company, as amended to date
(the "BKF Charter"), provides indemnification to the extent not prohibited by
Delaware law (including as such law may be amended in the future to be more
favorable to directors and officers). Section 145 of the General Corporation Law
of the State of Delaware (the "DGCL") provides
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that 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 civil,
criminal, administrative or investigative action, suit or proceeding (other than
an action by or in the right of the corporation, such as a derivative action) by
reason of the fact that he or she is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent for any corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise. The BKF Charter
provides that its officers and directors, and any person serving in any capacity
at the request of the Company for another enterprise shall be entitled to such
indemnification; provided, however, that indemnification will not be available
where an officer or director is liable for willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of his or
her office and that indemnification shall not be available in connection with
any actions, suit or proceeding brought by or on behalf of an officer or
director without prior approval of the Board of Directors of the Company.
Under Section 145 of the DGCL, depending on the nature of the
proceeding, a corporation may indemnify against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred in connection with such action, suit or proceeding if the person so
indemnified 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 that
his or her conduct was unlawful. In the case of a derivative action, no
indemnification may be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation, unless and
only to the extent that the Delaware Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability, such person is fairly and reasonably entitled to
indemnity for such expenses as such court shall deem proper.
Section 145 further provides that to the extent that a director or
officer of a corporation is successful in the defense of any action, suit or
proceeding referred to above or in the defense of any claim, issue or matter
therein, he or she shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred in connection therewith. However, if such
director or officer is not successful in the defense of any such action, suit or
proceeding, or in the defense of any claim, issue or matter therein, he or she
shall only be indemnified by the corporation as authorized in the specific case
upon a determination that indemnification is proper because he or she met the
applicable standard set forth above as determined by a majority of the
disinterested directors, by independent legal counsel or by the stockholders.
As permitted by Section 102(b)(7) of the DGCL, the BKF Charter includes
a provision which eliminates the personal liability of a director to the Company
or its stockholders for monetary damages for breach of fiduciary duty as a
director, other than liability (1) for the breach of a director's duty of
loyalty to the Company or its stockholders, (2) for acts or omissions not in
good faith or which involve intentional misconduct or a
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knowing violation of law, (3) under Section 174 of the DGCL (relating to
unlawful payment of a dividend and unlawful stock purchase and redemption) or
(4) for any transaction from which the director derived any improper personal
benefit.
Finally, the Company carries directors' and officers' liability
insurance covering losses up to specified amounts.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
EXHIBITS
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4.1 Certificate of Incorporation of the Company, as currently in
effect, incorporated herein by reference to Exhibit 3(i) to
the Company's Form 10-Q filed with the Commission on August
15, 2000 (SEC file No. 1-10024).
4.2 By-laws of the Company, incorporated herein by reference to
Exhibit 3(ii) to the Company's Form 10-Q filed with the
Commission on August 15, 2000 (SEC file No. 1-10024).
4.3 BKF Capital Group, Inc. 1998 Incentive Compensation Plan,
incorporated herein by reference to Exhibit 10.1 to the
Company's Form 10-Q filed with the Commission on November 17,
2000 (SEC file No. 1-10024).
4.4* Form of Stock Option Award Agreement.
4.5* Form of Deferred Stock Award Agreement.
5.1* Opinion of Norris Nissim, Esq., Vice President, General
Counsel and Secretary of the Company, regarding the legality
of the Common Stock being registered.
23.1* Consent of Ernst & Young LLP.
23.2* Consent of Norris Nissim (included in Exhibit 5.1).
24.1* Power of Attorney (included on signature page).
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* Filed herewith.
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ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(a) 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 material information with respect to the plan of distribution not
previously disclosed in this registration statement or any material change to
such information in this registration statement; (ii) 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; and (iii) to
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the Securities Act, each filing
of the registrant's annual report pursuant to Section 13(a) or 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.
(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 the registrant's Certificate of
Incorporation or by-laws, by contract, or otherwise, the registrant has been
advised that in the opinion of the 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, 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 November 17, 2000.
BKF CAPITAL GROUP, INC.
(Registrant)
By: /s/ John A. Levin
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John A. Levin
Chairman, Chief Executive Officer and President
POWER OF ATTORNEY
The officers and directors of BKF Capital Group, Inc. whose signatures
appear below hereby constitute and appoint John A. Levin and Glenn A. Aigen, and
each of them (with full power to each of them to act alone), their true and
lawful attorneys-in-fact, with full powers of substitution and resubstitution,
to sign and execute on behalf of the undersigned any and all amendments,
including any post-effective amendments, to this Registration Statement, and to
file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, and each of the
undersigned does hereby ratify and confirm all that said attorneys-in-fact shall
do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below on November 17, 2000 by the following persons in
the capacities indicated.
SIGNATURE TITLES
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/s/ John A. Levin
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John A. Levin Chairman, Chief Executive Officer and
President and Director (Principal Executive
Officer)
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SIGNATURE TITLES
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/s/ Glenn A. Aigen
----------------------------- Senior Vice President and Chief Financial
Glenn A. Aigen Officer (Principal Financial and Accounting
Officer)
/s/ J. Barton Goodwin Director
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J. Barton Goodwin
/s/ David D. Grumhaus Director
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David D. Grumhaus
/s/ Burton G. Malkiel Director
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Burton G. Malkiel
/s/ Peter J. Solomon Director
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Peter J. Solomon
/s/ Dean J. Takahashi Director
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Dean J. Takahashi
/s/ James S. Tisch Director
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James S. Tisch
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INDEX TO EXHIBITS
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EXHIBITS
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4.1 Certificate of Incorporation of the Company, as currently in
effect, incorporated herein by reference to Exhibit 3(i) to
the Company's Form 10-Q filed with the Commission on August
15, 2000 (SEC file No. 1-10024).
4.2 By-laws of the Company, incorporated herein by reference to
Exhibit 3(ii) to the Company's Form 10-Q filed with the
Commission on August 15, 2000 (SEC file No. 1-10024).
4.3 BKF Capital Group, Inc. 1998 Incentive Compensation Plan,
incorporated herein by reference to Exhibit 10.1 to the
Company's Form 10-Q filed with the Commission on November 17,
2000 (SEC file No. 1-10024).
4.4* Form of Stock Option Award Agreement.
4.5* Form of Deferred Stock Award Agreement.
5.1* Opinion of Norris Nissim, Esq., Vice President, General
Counsel and Secretary of the Company, regarding the legality
of the Common Stock being registered.
23.1* Consent of Ernst & Young LLP.
23.2* Consent of Norris Nissim (included in Exhibit 5.1).
24.1* Power of Attorney (included on signature page).
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* Filed herewith.
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