As filed with the Securities and Exchange Commission on January 21, 2000
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
----------------------
NYFIX, INC.
(Exact Name of Registrant as it Appears in its Charter)
New York 06-134488
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
333 Ludlow Street
Stamford, Connecticut 06902
(Address of principal executive offices) (Zip Code)
----------------------
NYFIX, Inc. Amended and Restated
1991 Incentive and Nonqualified Stock Option Plan
(Full title of the plan)
Richard A. Castillo
Chief Financial Officer
NYFIX, Inc.
333 Ludlow Street
Stamford, Connecticut
(Name and address of agent for service)
(203) 425-8000
(Telephone number, including area code, of agent for service)
With a copy to:
Adam W. Finerman, Esq.
Olshan Grundman Frome Rosenzweig & Wolosky LLP
505 Park Avenue, New York, New York 10022
(212) 753-7200
Approximate date of proposed sales pursuant to the
plan: From time to time after the effective date of this
registration statement.
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===============================================================================================================================
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
securities to be price offering registration
to be registered registered per share price fee
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
par value, .001 per
share.................... 1,500,000(1)(2)(3) $26.295(3) $39,364,687.50(3) $10,392.28(3)
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 416, the registration statement also covers such
indeterminate additional shares of Common Stock as may become issuable
as a result of any future anti-dilution adjustment in accordance with
the terms of the Amended and Restated 1991 Stock Option Plan (the "1991
Plan").
(2) The number of shares available for the grant of options under the 1991
Plan has been increased from 2,250,000 to 3,750,000.
(3) Includes an aggregate of 7,500 shares with respect to which options
were granted under the 1991 Plan at an average exercise price of $10.41
per share. An additional 1,492,500 shares of Common Stock may be
offered under the 1991 Plan. Pursuant to Rule 457(g) and (h), the
offering price for the shares which may be issued under the 1991 Plan
is estimated solely for the purpose of determining the registration fee
and is based on the closing price of the Company's Common Stock $.001
as reported by the American Stock Exchange ("AMEX") on January 20,
2000.
-2-
<PAGE>
EXPLANATORY NOTES
NYFIX, Inc. (formerly known as Trinitech Systems, Inc.) (the "Company")
has prepared this Registration Statement in accordance with the requirements of
Form S-8 under the Securities Act of 1933, as amended (the "Securities Act"), to
register shares of common stock, $.001 par value per share (the "Common Stock"),
of the Company, issuable pursuant to the 1991 Plan.
This Form S-8 includes a Reoffer Prospectus prepared in accordance with
Part I of Form S-3 under the Securities Act. The Reoffer Prospectus may be
utilized for reofferings and resales of up to 1,500,000 shares of Common Stock
acquired pursuant to the Plan by selling stockholders who may be deemed an
"affiliate" (as such term is defined in Rule 405 under the Securities Act) of
the Company.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The Company will provide documents containing the information specified
in Part 1 of Form S-8 to employees as specified by Rule 428(b)(1) under the
Securities Act. Pursuant to the instructions to Form S-8, the Company is not
required to file these documents either as part of this Registration Statement
or as prospectuses or prospectus supplements pursuant to Rule 424 under the
Securities Act.
-3-
<PAGE>
PROSPECTUS
1,500,000 SHARES
NYFIX, INC.
Common Stock, $.001 par value
This prospectus relates to the reoffer and resale by certain selling
shareholders of shares of our common stock that may be issued by us to the
selling shareholders upon the exercise of stock options granted under our 1991
Stock Option Plan. We previously registered the offer and sale of the shares to
the selling stockholders. This Prospectus also relates to certain underlying
options that have not as of this date been granted. If and when such options are
granted to persons required to use the prospectus to reoffer and resell the
shares underlying such options, we will distribute a prospectus supplement. The
shares are being reoffered and resold for the account of the selling
shareholders and we will not receive any of the proceeds from the resale of the
shares.
The selling shareholders have advised us that the resale of their
shares may be effected from time to time in one or more transactions on the
American Stock Exchange, in negotiated transactions or otherwise, at market
prices prevailing at the time of the sale or at prices otherwise negotiated. See
"Plan of Distribution." We will bear all expenses in connection with the
preparation of this prospectus.
The common stock of the Company is traded on the American Stock
Exchange under the symbol "NYF." On January 20, 2000, the closing price for the
Common Stock, as reported by the American Stock Exchange, was $26.375.
- --------------------------------------------------------------------------------
This investment involves risk. See "Risk Factors" beginning at page 8.
- --------------------------------------------------------------------------------
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 date of this Prospectus is [ ], 2000.
-4-
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549; Northwest Atrium Center, Suite 1400, 500
West Madison Street, Chicago, Illinois 60661; and Seven World Trade Center, 13th
Floor, New York, New York 10048. Copies of such material can be obtained from
the Public Reference Section of the Commission at Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates.
-5-
<PAGE>
TABLE OF CONTENTS
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE...........................7
THE COMPANY...............................................................8
RISK FACTORS..............................................................8
FORWARD LOOKING STATEMENTS...............................................12
USE OF PROCEEDS..........................................................12
SELLING SHAREHOLDERS.....................................................13
PLAN OF DISTRIBUTION.....................................................14
LEGAL MATTERS............................................................16
EXPERTS..................................................................16
ADDITIONAL INFORMATION...................................................16
-6-
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information we incorporate by reference is
considered to be a part of this prospectus and information that we file later
with the SEC will automatically update and replace this information. We
incorporate by reference the documents listed below and any future filings we
make with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended:
(1) Our Annual Report on Form 10-KSB for the year ended December 31,
1998;
(2) Our Quarterly Reports on Form 10-Q for the quarterly periods ended
March 31, 1999, June 30, 1999 and September 30, 1999; and
(3) Our Application for Registration of our common stock on Form 8-A
dated August 27, 1993.
You may request a copy of these filings, excluding the exhibits to such
filings which we have not specifically incorporated by reference in such
filings, at no cost, by writing or telephoning us at the following address:
NYFIX, Inc.
333 Ludlow Street
Stamford, CT 06902
Attention: Chief Financial Officer
(203) 425-8000
------------------------
No dealer, salesman or other person has been authorized to give any
information or to make any representations other than those contained in this
Prospectus in connection with the offer made hereby, and, if given or made, such
information or representations must not be relied upon as having been authorized
by the Company or any Selling Shareholder. This Prospectus does not constitute
an offer to sell, or a solicitation of an offer to buy, the securities offered
hereby to any person in any state or other jurisdiction in which such offer or
solicitation is unlawful. The delivery of this Prospectus at any time does not
imply that information contained herein is correct as of any time subsequent to
its date.
-7-
<PAGE>
THE COMPANY
NYFIX develops and markets advanced electronic trading systems to
brokerage firms, international global exchanges trading in equities, currencies
and futures & options. We also successfully leverage our patented flat panel
hardware technology, the Trinitech Touchpad(R), which is a state of the art
computer monitor with several technologically advanced attributes, including a
reduced size and weight, as well as a touch screen that allows an operator to
interface with the computer by simply touching the image displayed on the
screen. Our principal executive offices are located at 333 Ludlow Street,
Stamford, Connecticut, 06902. Our telephone number is (203) 425-8000.
On November 15, 1999, NYFIX effected a three-for-two stock split in the
form of a 50% dividend of its shares of common stock. All share numbers included
herein reflect such stock split. The shares offered hereby were or will be
purchased by the selling shareholders upon exercise of options granted to them
and will be sold for the account of the selling shareholders.
RISK FACTORS
THE PURCHASE OF OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. YOU
SHOULD CAREFULLY CONSIDER THE FOLLOWING RISK FACTORS AND THE OTHER INFORMATION
IN THIS PROSPECTUS BEFORE DECIDING TO INVEST IN OUR COMMON STOCK.
PRIOR TO 1999, NYFIX HAD BEEN UNPROFITABLE SINCE ITS INCEPTION AND THERE IS NO
ASSURANCE THAT IT WILL REMAIN PROFITABLE IN THE FUTURE.
We have conducted our business operations since June 1991. Prior to
1999 we have had limited revenue from operations or other financial results upon
which investors may base an assessment of our potential. We have had net losses
since our inception in 1991 through September 30, 1999 of approximately $5.8
million. We cannot assure you that we will succeed in implementing our business
strategy or continue to achieve profitable operations in the future.
IF WE ARE NOT ABLE TO IDENTIFY, DEVELOP, ASSEMBLE, MARKET OR SUPPORT OUR
PRODUCTS SUCCESSFULLY OR RESPOND EFFECTIVELY TO TECHNOLOGICAL CHANGES OR PRODUCT
ANNOUNCEMENTS BY COMPETITORS, WE MAY NOT REMAIN COMPETITIVE.
Rapidly changing technology and new product introductions characterize
the markets for our products. Accordingly, we believe that our future success
will depend on our ability to enhance our existing products and to develop and
introduce in a timely fashion new products that achieve market acceptance. We
cannot assure you that we will be able to identify, develop, assemble, market or
support our products successfully or that we will be able to respond effectively
to technological changes or product announcements by competitors.
THE LOSS OF ANY OF OUR SIGNIFICANT CUSTOMERS WOULD LIKELY HAVE A MATERIAL
ADVERSE EFFECT ON OUR REVENUES.
-8-
<PAGE>
As of September 30, 1999, twelve customers accounted for approximately
57% of subscription revenue, and during the year ended December 31, 1998, two
customers accounted for approximately 26% of total revenue. As we continue to
increase our subscription customer base, the Company believes it will be less
likely to be dependent on a limited number of significant customers. We cannot
assure you that we will be less dependent on a limited number of significant
customers in the future, and the loss of any such significant customer would
likely have a material adverse effect on our revenues.
THE LOSS OF ANY OF OUR KEY EXECUTIVES MAY HAVE A MATERIAL ADVERSE EFFECT UPON
OUR OPERATIONS.
Our success is dependent upon the expertise of the key members of our
management team, particularly our President and Chief Executive Officer, Mr.
Peter Kilbinger Hansen. The loss of Mr. Hansen's services would, and the loss of
Mr. Lars Kragh, Vice President-Research and Development, may, have a material
adverse effect upon our operations. Our future success also depends on our
continuing ability to attract, train and retain highly qualified technical,
sales, marketing, development and managerial personnel. If we are unable to hire
such personnel on a timely basis, our business, operating results and financial
condition could be adversely affected.
NYFIX FACES COMPETITION IN ITS INDIVIDUAL PRODUCT AREAS FROM COMPANIES THAT MAY
HAVE LARGER AND GREATER FINANCIAL AND HUMAN RESOURCES AND MARKETING
CAPABILITIES, WHICH MAY HINDER OUR ABILITY TO COMPETE SUCCESSFULLY.
We have developed comprehensive electronic trading and order-routing
systems for exchange floors and trader desktops as well as the ability to
provide managed network services and specialized interfaces to exchange and
back-office systems. Many of our products are based on FIX protocol, which
stands for "Financial Information Exchange". FIX protocol offers the ability to
connect the buy-side and sell-side of an equities transaction for electronic
order/execution routing and trade information sharing. With the acceptance of
FIX as the standard protocol for real-time electronic communication between
brokerage firms and asset management companies, vendors, including NYFIX and
certain of its competitors, have developed FIX-based trading system solutions.
For further review, some of these entities are listed on the FIX Protocol
website, www.fixprotocol.org. While we face considerable competitive pressure in
our distinct product segments (i.e. trader workstations, network services, FIX
engine technology, etc.), management believes that our position as an
end-to-end, "one-stop" shop for electronic trading systems and solutions will
lead to increased sales in our defined marketplace. However, certain of our
competitors may have considerably larger and greater financial and human
resources and marketing capabilities, in addition to
o longer operating histories;
o significantly greater financial, technical and marketing
resources;
o greater name recognition;
o a larger installed base of customers and products;
-9-
<PAGE>
o well-established relationships with our current and
potential customers; and
o extensive knowledge of the industry.
As such, we may not be able to compete successfully against
our current and future competitors. Furthermore, competitive pressures we face
may materially adversely affect our business, operating results and financial
condition.
NYFIX MILLENNIUM HAS NO OPERATING HISTORY OR REVENUES AND OUR
INVESTMENT IN NYFIX MILLENNIUM COULD RESULT IN SIGNIFICANT LOSSES.
NYFIX Millennium was formed in October 1999 and is not
anticipated to generate revenues until sometime within the year 2000. Our
investment in NYFIX Millennium involves a high degree of business and financial
risks and can result in substantial losses. NYFIX Millennium's prospects must be
considered in light of the risks, expenses, delays, problems and difficulties
frequently encountered in the establishment of a new business in an emerging and
evolving industry. NYFIX Millennium's business is based on NYFIX's "Super FIX
Engine" technology and is a hybrid market-system leveraging new regulation and
technology with the power of the traditional markets. No assurances can be given
that NYFIX Millennium will be successful in its business, or that profitability
will ever be attained.
IF OUR PRODUCTS CONTAIN ERRORS, WE COULD EXPERIENCE A LOSS OF OR DELAY
IN MARKET ACCEPTANCE OR OTHERWISE RESULT IN LITIGATION, WHICH COULD MATERIALLY
ADVERSELY AFFECT OUR BUSINESS.
Our products are complex and may contain undetected errors or
failures when we first introduce them or at a later time. If our products
contain errors, we could experience a loss of or delay in market acceptance,
which could materially adversely affect our business, operating results and
financial condition. While we have not experienced product liability claims to
date, our business may entail the risk of such claims. A successful product
liability claim brought against us could have a material adverse effect on our
business, operating results and financial condition.
SHARES ELIGIBLE FOR FURTHER SALE COULD ADVERSELY AFFECT THE PREVAILING
MARKET PRICE OF THE COMMON STOCK.
The sale of any substantial number of shares of our common
stock may have a depressive effect on the market price of our common stock. As
of November 30, 1999, 2,720,896 shares of the restricted securities we have
issued were eligible for resale under Rule 144. This number does not include the
shares of common stock covered by this prospectus. Any such sale, particularly
if large in volume, could have a material adverse effect on the market for and
price of shares of common stock.
CERTAIN PROVISIONS OF STATE LAW, IN ADDITION TO OUR SHAREHOLDER RIGHTS
PLAN, MAY PREVENT OR HINDER CHANGE IN CONTROL OF THE COMPANY AND MAY REDUCE THE
POSSIBILITY THAT OUR
-10-
<PAGE>
SHAREHOLDERS WILL RECEIVE A PREMIUM ON THEIR SHARES IN CONNECTION WITH ANY SUCH
CHANGE IN CONTROL.
Our shareholders may be deprived of the opportunity to receive
a premium for their shares because of certain provisions of the New York
Business Corporation Law and our shareholder rights plan. These provisions may,
among other things, delay or prevent a change in control of NYFIX or a change in
our management, or restrict the ability of our shareholders to authorize a
merger or other business combination. These provisions are expected to encourage
persons seeking to acquire control of NYFIX to consult first with the Board of
Directors to negotiate the terms of any proposed merger or other business
combination.
SHARES ISSUABLE UPON THE EXERCISE OF CERTAIN OPTIONS AND WARRANTS COULD
ADVERSELY AFFECT THE PREVAILING MARKET PRICE OF THE COMMON STOCK.
As of September 30, 1999, we had outstanding options and
warrants to purchase an aggregate of 2,664,099 shares of our common stock at a
weighted average exercise price of $5.07 per share. The exercise of all of
outstanding warrants and options would dilute the then-existing shareholders'
percentage ownership of our common stock, and any sales in the public market
could adversely affect prevailing market prices for our common stock. Moreover,
the terms upon which we would be able to obtain additional equity capital could
be adversely affected since the holders of such securities can be expected to
exercise them at a time when we would, in all likelihood, be able to obtain any
needed capital on terms more favorable to than those provided by such
securities.
OUR BUSINESS AND OPERATIONS MAY BE NEGATIVELY AFFECTED BY "YEAR 2000"
COMPLIANCE ISSUES.
The Company is aware of industry wide issues related to Year
2000 that are associated with the programming code in computer systems. Systems
that do not properly recognize the Year 2000 could generate erroneous data or
cause a system to fail. We completed a Year 2000 plan consisting of several
phases which include, risk assessment, manual and automated review of
programming code, baseline testing, unit testing, integrated testing and a
review of third party products.
We successfully participated in an industry wide Year 2000
testing between March and April of 1999. The objective of these tests was to
ensure our customer base would be in full Year 2000 compliance before the end of
the year. To date, the Company has already issued Year 2000 enhancements to our
customers. These tests did not reveal any significant software errors. The
Company has identified and evaluated all internal software and hardware systems
for Year 2000 compliance. The Company has not identified any systems that would
require significant expenditures to become Year 2000 compliant, nor is the
Company aware of any significant costs that would be incurred as a result of
ensuring that internal needs are Year 2000 compliant. The Company has
established a Year 2000 Quality Assurance Team that will stay in place well into
the year 2000. As of January 20, 2000, NYFIX, Inc. did not receive any reported
problems related to the Year 2000 date changeover. Our services and systems
functioned properly and without issue or interruption.
-11-
<PAGE>
It is possible that a significant amount of litigation will
arise out of Year 2000 compliance issues. The Company has established a workable
plan and Quality Assurance team to help minimize these risks. Because of the
unprecedented nature of such litigation, it is uncertain whether such issues may
affect the Company. Therefore, there can be no assurance that we will not
experience serious unanticipated negative consequences and/or material costs
caused by undetected errors or defects in the technology used in our internal
systems or in third party systems that we employ.
FORWARD LOOKING STATEMENTS
Certain forward-looking statements, including statements
regarding our expected financial position, business and financing plans are
contained in this prospectus or are incorporated in documents annexed as
exhibits to this prospectus. These forward-looking statements reflect our views
with respect to future events and financial performance. The words, "believe,"
"expect," "plans" and "anticipate" and similar expressions identify
forward-looking statements. Although we believe that the expectations reflected
in such forward-looking statements are reasonable, we can give no assurance that
such expectations will prove to have been correct. Important factors that could
cause actual results to differ materially from such expectations are disclosed
in this prospectus, including, without limitation, under "Risk Factors." All
subsequent written and oral forward-looking statements attributable to us are
expressly qualified in their entirety by the cautionary statements. Readers are
cautioned not to place undue reliance on these forward-looking statements, which
speak only as of their dates. We undertake no obligations to publicly update or
revise any forward-looking statements, whether as a result of new information,
future events or otherwise.
USE OF PROCEEDS
The Company will receive the exercise price of the options
when exercised by the holders thereof or the issuance of shares under the 1991
Plan. Such proceeds will be used for working capital and general corporate
purposes by the Company. The Company will not receive any of the proceeds from
the reoffer and resale of the Shares by the Selling Shareholders.
-12-
<PAGE>
SELLING SHAREHOLDERS
This Prospectus relates to the reoffer and resale of shares
issued or that may be issued to the Selling Shareholders under the 1991 Plan.
This Prospectus also relates to such indeterminate number of additional shares
of common stock that may be acquired by the selling stockholders as a result of
the antidilution provisions of the 1991 Plan. We will provide additional
information regarding the identity of the selling stockholders and certain other
information relating to the selling stockholders as supplement to this
prospectus if we are required by law to do so.
The following table sets forth (i) the number of shares of common stock
owned by each selling stockholder at January 20, 2000, (ii) the number of shares
of common stock to be offered for resale by each selling stockholder (i.e., the
total number of shares underlying options held by each selling stockholder
irrespective of whether such options are presently exercisable within sixty days
of January 20, 2000) and (iii) the number and percentage of shares of common
stock that each selling stockholder will beneficially own after completion of
the offering, assuming that all shares that may be offered for resale are sold
and no other shares beneficially owned by the selling stockholders are also
sold.
Number of
shares of Common
Stock/ Percentage
Number of Class to
Number of of Shares to be Owned After
shares of Common be Offered Completion of the
Name Stock Owned(1) for Resale(2) Offering(3)
- --------------------- ------------------ ------------- ------------------
Richard Castillo;
Chief Financial
Officer 22,500 (4) 7,500(4) 15,000/*
================================================================================
- ----------------
* Less than 1%
(1) Includes all options being registered for resale regardless of
whether these options are currently exercisable within 60 days.
(2) Consists of shares of common stock issuable upon exercise of options
both currently and not currently exercisable.
(3) Assumes that all shares that may be offered for resale are sold and
no other shares that are beneficially owned by the selling
stockholders are also sold. A person is deemed to be the beneficial
owner of voting securities that can be acquired by such
-13-
<PAGE>
person within 60 days after the date hereof upon the exercise of
options, warrants or convertible securities. Each beneficial owner's
percentage ownership is determined by assuming that options,
warrants or convertible securities that are held by such person (but
not those held by any other person) have been exercised. Unless
otherwise noted, we believe that all persons named in the table have
sole voting and investment power with respect to all shares
beneficially owned by them.
(4) Includes 7,500 shares of common stock issuable upon exercise of
options both currently and not currently exercisable. Mr. Castillo
has been the Company's Chief Financial Officer since November 23,
1998.
We cannot assure you that the selling stockholders will
exercise their options to purchase our common stock.
The shares covered by this prospectus may be sold from time to
time so long as this prospectus remains in effect; provided, however, that the
selling stockholders are first required to contact our Corporate Secretary to
confirm that this prospectus is in effect. We intend to distribute to each
selling stockholder a letter describing the procedures that the selling
stockholder may follow in order to use this prospectus to sell the shares and
under what conditions the prospectus may not be used. The selling stockholders
expect to sell the shares at prices then attainable, less ordinary brokers'
commissions and dealers' discounts as applicable.
PLAN OF DISTRIBUTION
This offering is self-underwritten; neither the selling
shareholders nor we have employed an underwriter for the sale of common stock by
the selling shareholders. We will bear all expenses in connection with the
preparation of this prospectus. The selling shareholders will bear all expenses
associated with the sale of the common stock.
The selling shareholders may offer their shares of common
stock directly or through pledgees, donees, transferees or other successors in
interest in one or more of the following transactions:
o On any stock exchange on which the shares of common stock
may be listed at the time of sale;
o in negotiated transactions;
o in the over-the-counter market; or
o in a combination of any of the above transactions.
The selling shareholders may enter into hedging transactions
in the future. For example, the selling shareholders may:
-14-
<PAGE>
o enter into transactions involving short sales of the common
shares by broker- dealers;
o sell common shares short themselves and redeliver such
shares to close out their short positions;
o enter into option or other types of transactions that
require the selling shareholders to deliver common shares to
a broker-dealer, who will then resell or transfer the common
shares under this prospectus; or
o loan or pledge the common shares to a broker-dealer, who may
sell the loaned shares or, in the event of default, sell the
pledged shares.
The selling shareholders may offer their shares of common
stock at any of the following prices:
o Fixed prices which may be changed;
o market prices prevailing at the time of sale;
o prices related to such prevailing market prices; or
o at negotiated prices
The selling shareholders may effect such transactions by
selling shares to or through broker-dealers, and all such broker-dealers may
receive compensation in the form of discounts, concessions, or commissions from
the selling shareholders and/or the purchasers of shares of common stock for
whom such broker-dealers may act as agents or to whom they sell as principals,
or both. Compensation as to particular broker dealers may be in excess of
customary commissions.
Any broker-dealer acquiring common stock from the selling
shareholders may sell the shares either directly, in its normal market-making
activities, through or to other brokers on a principal or agency basis or to its
customers. Any such sales may be at prices then prevailing on the American Stock
Exchange or at prices related to such prevailing market prices or at negotiated
prices to its customers or a combination of such methods. The selling
shareholders and any broker-dealers that act in connection with the sale of the
common stock hereunder might be deemed to be "underwriters" within the meaning
of Section 2(11) of the Securities Act; any commissions received by them and any
profit on the resale of shares as principal might be deemed to be underwriting
discounts and commissions under the Securities Act. Any such commissions, as
well as other expenses incurred by the selling shareholders and applicable
transfer taxes, are payable by the selling shareholders.
The selling shareholders reserve the right to accept, and
together with any agent of the selling shareholder, to reject in whole or in
part any proposed purchase of the shares of common stock. The selling
shareholders will pay any sales commissions or other seller's compensation
applicable to such transactions.
-15-
<PAGE>
We have not registered or qualified offers and sales of shares
of the common stock under the laws of any country, other than the United States.
To comply with certain states' securities laws, if applicable, the selling
shareholders will offer and sell their shares of common stock in such
jurisdictions only through registered or licensed brokers or dealers. In
addition, in certain states the selling shareholders may not offer or sell
shares of common stock unless we have registered or qualified such shares for
sale in such states or we have complied with an available exemption from
registration or qualification.
Under applicable rules and regulations under the Exchange Act,
any person engaged in a distribution of shares of the common stock may not
simultaneously engage in market making activities with respect to such shares of
common stock for a period of two to nine business days prior to the commencement
of such distribution. In addition, the selling shareholders and any other person
participating in a distribution will be subject to applicable provisions of the
Exchange Act and the rules and regulations thereunder, including without
limitation, Rules 10b-2, 10b-6 and 10b-7. Such provisions may limit the timing
of purchases and sales of any of the shares of common stock by the selling
shareholders or any such other person. This may affect the marketability of the
common stock and the brokers' and dealers' ability to engage in market making
activities with respect to the common stock.
LEGAL MATTERS
Certain legal matters in connection with the issuance of the
shares of common stock offered hereby have been passed upon for the Company by
Olshan Grundman Frome Rosenzweig & Wolosky LLP, 505 Park Avenue, New York, New
York 10022. Certain partners of Olshan Grundman Frome Rosenzweig & Wolosky LLP
own shares of common stock of NYFIX.
EXPERTS
The audited financial statements and schedules incorporated by
reference in this prospectus and elsewhere in the registration statement have
been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their reports with respect thereto, and are included herein in
reliance upon the authority of said firm as experts in giving said reports.
ADDITIONAL INFORMATION
The Company has filed with the Securities and Exchange
Commission a Registration Statement on Form S-8 under the Securities Act with
respect to the Shares offered hereby. For further information with respect to
the Company and the securities offered hereby, reference is made to the
Registration Statements. Statements contained in this Prospectus as to the
contents of any contract or other document are not necessarily complete, and in
each instance, reference is made to the copy of such contract or document filed
as an exhibit to the Registration Statements, each such statement being
qualified in all respects by such reference.
-16-
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information
we file with them, which means that we can disclose important information to you
by referring you to those documents. The information we incorporate by reference
is considered to be a part of this prospectus and information that we file later
with the SEC will automatically update and replace this information. We
incorporate by reference the documents listed below and any future filings we
make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended:
(1) Our Annual Report on Form 10-KSB for the year ended December
31, 1998;
(2) Our Quarterly Reports on Form 10-Q for the quarterly periods
ended March 31, 1999, June 30, 1999 and September 30, 1999;
and
(3) Our Application for Registration of our common stock on Form
8-A dated August 27, 1993.
All reports and other documents subsequently filed by the
Company pursuant to Sections 13, 14 and 15(d) of the Securities Exchange Act of
1934, as amended, prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which
de-registers all securities remaining unsold, shall be deemed to be incorporated
by reference herein and to be a part hereof from the date of the filing of such
reports and documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Certain partners of Olshan Grundman Frome Rosenzweig & Wolosky
LLP own shares of common stock
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS
The Company was incorporated in New York. Section 722 of the
New York Business Corporation Law provides as follows:
II-1
<PAGE>
(a) A corporation may indemnify any person,
made, or threatened to be made, a party to an action
or proceeding other than one by or in the right of
the corporation to procure a judgment in its favor,
whether civil or criminal, including an action by or
in the right of any other corporation of any type or
kind, domestic or foreign, or any partnership, joint
venture, trust, employee benefit plan or other
enterprise, which any director or officer of the
corporation served in any capacity at the request of
the corporation, by reason of the fact that he, his
testator or intestate, was a director or officer of
the corporation, or served such other corporation,
partnership, joint venture, trust, employee benefit
plan or other enterprise in any capacity, against
judgments, fines, amounts paid in settlement and
reasonable expenses, including attorney's fees
actually and necessarily incurred as a result of such
action or proceeding, or any appeal therein, if such
director or officer acted, in good faith, for a
purpose which he reasonably believed to be in, or, in
the case of service for any other corporation or any
partnership, joint venture, trust, employee benefit
plan or other enterprise, not opposed to, the best
interests of the corporation and, in criminal actions
or proceedings, in addition, had not reasonable cause
to believe that his conduct was unlawful.
(b) The termination of any such civil or
criminal action or proceeding by judgment,
settlement, conviction or upon a plea of nolo
contendere, or its equivalent, shall not in itself
create a presumption that any such director or
officer did not act, in good faith, for a purpose
which he reasonably believed to be, or, in the case
of service for any other corporation or any
partnership, joint venture, trust, employee benefit
plan or other enterprise, not opposed to, the best
interests of the corporation or that he had
reasonable cause to believe that his conduct was
unlawful.
(c) A corporation may indemnify any person
made, or threatened to be made, a party to an action
by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he,
his testator or intestate, is or was a director or
officer of the corporation, or is or was serving at
the request of the corporation as a director or
officer of any other corporation of any type or kind,
domestic or foreign, of any partnership, joint
venture, trust, employee benefit plan or other
enterprise, against amounts paid in settlement or
such action, or in connection with an appeal therein
if such director or officer acted, in good faith, for
a purpose which he reasonably believed to be in, or,
in the case of service for any other corporation or
any partnership, joint venture, trust, employee
benefit plan or other enterprise, not opposed to, the
best interests of the corporation, except that no
indemnification under this paragraph shall be made in
respect of (1) a threatened action, or a pending
action which is settled or otherwise disposed of, or
(2) any claim issue or matter as to
II-2
<PAGE>
which such person shall have been adjudged to be
liable to the corporation, unless and only to the
extent that the court on which the action was
brought, or, if no action was brought, any court of
competent jurisdiction, determines upon application
that, in view of all the circumstances of the case,
the person is fairly and reasonably entitled to
indemnity for such portion of the settlement amount
and expenses as the court deems proper.
(d) For the purpose of this section, a
corporation shall be deemed to have requested a
person to serve an employee benefit plan where the
performance by such person of his duties to the
corporation also imposes duties on, or otherwise
involves services by, such person to the plan or
participants or beneficiaries of the plan; excise
taxes assessed on a person with respect to an
employee benefit plan pursuant to applicable law
shall be considered fines; and action taken or
omitted by a person with respect to an employee
benefit plan in the performance of such person's
duties for a purpose reasonably believed by such
person to be in the interest of the participants and
beneficiaries of the plan shall be deemed to be for a
purpose which is not opposed to the best interests of
the corporation.
The Company maintains a directors and officers liability and
Company reimbursement policy. The policy insures directors and officers against
unindemnified loss arising from certain wrongful acts in their capacities and
reimburses the Company for such loss for which the Company has lawfully
indemnified the directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
3.1 Articles of Incorporation of NYFIX Systems, Inc.
(Exhibit 3.1 to Registrant's Form 10 filed March 5,
1993)
3.2 By-Laws of NYFIX Systems, Inc. (Exhibit 3.2 to
Registrant's Form 10 filed March 5, 1993)
3.3 Certificate of Amendment to Articles of Incorporation
of NYFIX Systems, Inc. (Exhibit 3.3 to Registrant's
Form S-3 filed December 30, 1999)
4.1 Certificate of Designation of Series A Preferred
Stock (Exhibit 4.1 to Registrant's Form 10 filed
March 5, 1993)
4.2 Specimen - Common Stock Certificate (Exhibit 4.2 to
the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1993)
II-3
<PAGE>
4.3 1991 Incentive Stock Option Plan of NYFIX Systems,
Inc. (Exhibit 4.3 to Registrant's Form S-8 filed
October 19, 1994.)
4.4 Amendment No. 1 to Amended and Restated 1991
Incentive and Nonqualified Stock Option Plan
5.1 Opinion of Olshan Grundman Frome Rosenzweig & Wolosky
LLP, counsel to the Company, as to the legality of
the securities being registered
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Olshan Grundman Frome Rosenzweig & Wolosky
LLP (included in Exhibit 5.1)
Item 9. Undertakings.
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers
or sales are being made, a post-effective
amendment to this Registration Statement:
(i) To include any prospectus required
by Section 10(a)(3) of the
Securities Act 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
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
by the registrant pursuant to
Section 13 or 15(d) of the
Securities Exchange Act of 1934 that
are incorporated by reference in the
Registration Statement;
(2) That, for the purposes 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
II-4
<PAGE>
(3) To remove from registration by means of a
post-effective amendment any of the
securities being registered that 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 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 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 of 1933 may be permitted to
directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, 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 of 1933 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
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 Securities Act of 1933 and will be
governed by the final adjudication of such issue.
D. The undersigned registrant hereby undertakes to
deliver or cause to be delivered with the prospectus,
to each person to whom the prospectus is sent or
given, a copy of the registrant's latest annual
report to shareholders that is incorporated by
reference in the prospectus and furnished pursuant to
and meeting the requirements of Rule 14a-3 or Rule
14c-3 under the Securities Exchange Act of 1934; and,
where interim financial information required to be
presented by Article 3 of Regulation S-X is not set
forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is
sent or given, the latest quarterly report that is
specifically incorporated by reference in the
prospectus to provide such interim financial
information.
II-5
<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 Stamford, State of Connecticut on this 24th day
of January, 2000.
NYFIX, INC.
By: /s/ Peter Kilbinger Hansen
--------------------------------------
Name: Peter Kilbinger Hansen
Title: Chairman of the Board and President
(Chief Executive Officer)
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints each of Peter Kilbinger Hansen
and Richard A. Castillo his true and lawful attorneys-in-fact and agent, with
full power of substitution and resubstitution, for and in his or her name, place
and stead, in any and all capacities, to sign any or all amendments to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite necessary to
be done in and about the premises, 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 or her substitute, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities
Exchange Act of 1934, this report has been signed below by the following persons
on behalf of the Registrant and in the capacities and on the dates indicated:
Signatures Title Date
- ---------- ----- ----
- ----------------------- Chairman of the Board January 24, 2000
Peter Kilbinger Hansen (Principal Executive
Officer)
- ----------------------- Chief Financial January 24, 2000
Richard A. Castillo Officer
(Principal Accounting
Officer)
- ----------------------- Director January 24, 2000
Dr. John H. Chapman
- ----------------------- Director January 24, 2000
Craig M. Shumate
- ----------------------- Director January 24, 2000
Carl E. Warden
II-6
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated March 23, 1999
included in Trinitech Systems, Inc.'s Form 10-KSB for the year ended December
31, 1998 and to all references to our Firm included in this registration
statement.
/S/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Stamford, Connecticut
January 20, 2000
II-7
<PAGE>
THE 1991 INCENTIVE AND NON-QUALIFIED STOCK OPTION PLAN. Pursuant to the
requirements of the Securities Act of 1933, the Stock Option Committee has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Stamford, State of
Connecticut, on January 24, 2000.
/s/ Peter Kilbinger Hansen
-----------------------------
Peter Kilbinger Hansen
Chairman, Stock Option Committee
II-8
Olshan Grundman Frome Rosenzweig & Wolosky LLP
505 Park Avenue
New York, New York 10022
(212) 753-7200
January 21, 2000
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549
Re: NYFIX, Inc.
Registration Statement on Form S-8
----------------------------------
Gentlemen:
Reference is made to the Registration Statement on Form S-8
dated the date hereof (the "Registration Statement"), filed with the Securities
and Exchange Commission by NYFIX, Inc., a Delaware corporation (the "Company").
The Registration Statement relates to an aggregate of 1,500,000 shares (the
"Shares") of common stock, par value $.001 per share (the "Common Stock"). The
Shares will be issued and sold by the Company in accordance with the Company's
Amended and Restated 1991 Incentive and Nonqualified Stock Option Plan (the
"Plan").
We advise you that we have examined originals or copies
certified or otherwise identified to our satisfaction of the Certificate of
Incorporation and By-laws of the Company, minutes of meetings of the Board of
Directors and stockholders of the Company, the Plan, the documents to be sent or
given to participants in the Plan (the "Prospectus") and such other documents,
instruments and certificates of officers and representatives of the Company and
public officials, and we have made such examination of the law, as we have
deemed appropriate as the basis for the opinion hereinafter expressed. In making
such examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, and the conformity
to original documents of documents submitted to us as certified or photostatic
copies.
<PAGE>
Based upon the foregoing, we are of the opinion that the
Shares, when issued and paid for in accordance with the terms and conditions set
forth in the Prospectus, will be duly and validly issued, fully paid and
non-assessable.
We are members of the Bar of the State of New York. This
opinion is limited to the Federal laws of the United States, the laws of the
State of New York and the General Corporation Law of the State of Delaware.
We advise you that certain partners of Olshan Grundman Frome Rosenzweig
& Wolosky LLP own shares of common stock of the Company.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the reference to this firm under the
caption "Legal Matters" in the prospectus constituting a part of the
Registration Statement.
Very truly yours,
/s/ OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP
OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP
