ITG Investment Technology Grp., Inc.

 

As filed with the Securities and Exchange Commission on January 28, 2016

 

Registration No. 333-

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM S-8

 

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

INVESTMENT TECHNOLOGY GROUP, INC.

(Exact Name of Registrant as Specified in its Charter)

 

Delaware

(State or Other Jurisdiction of Incorporation or Organization)

 

95-2848406

(I.R.S. Employer Identification No.)

 

 

 

 

INDIVIDUAL RESTRICTED STOCK UNIT AWARD AGREEMENTS

(Full Title of the Plan)

 

 

Angélique DeSanto, Esq.

Investment Technology Group, Inc.

One Liberty Plaza

165 Broadway

New York, NY 10006

(Name, and Address of Agent for Service)

 

(212) 588-4000

(Telephone Number, including Area Code, of Agent for Service)

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

 

CALCULATION OF REGISTRATION FEE

 

Title of Securities to be Registered		Amount to be Registered(1)		Proposed Maximum Offering Price Per Share			Proposed Maximum Aggregate Offering Price			Amount of Registration Fee
Investment Technology Group, Inc. (the “Company”) shares of common stock, $.01 par value (“Common Stock”), to be delivered under two stand-alone time-based vesting stock unit award agreements (the “Award Agreements”)		291,404(2)		$	16.45(3)		$	4,793,595.80		$	482.72(4)

 

(1)	This registration statement (the “Registration Statement”) covers shares of Common Stock which may be offered and sold from time to time pursuant to the Award Agreements. Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, the number of shares being registered shall be adjusted to include any additional shares which may become issuable as a result of stock splits, stock dividends or similar transactions in accordance with the anti-dilution provisions of the Award Agreements.
(2)	Represents 291,404 shares deliverable pursuant to the Award Agreements, pursuant to which stock units were granted as a material inducement of employment to Francis J. Troise to serve as the Company’s Chief Executive Officer.
(3)	Estimated pursuant to paragraphs (c) and (h) of Rule 457 solely for the purpose of calculating the registration fee, based upon the average of the reported high and low sales prices for shares of Common Stock on January 26, 2016, as reported on the New York Stock Exchange, which is within five (5) business days prior to the date of this Registration Statement.
(4)	Calculated pursuant to Section 6(b) of the Securities Act of 1933, as amended, as follows: $100.70 per $1,000,000 of proposed maximum aggregate offering price.

 

 

 

PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

The document(s) containing the information specified in Part I will be sent or given to employees as specified by Rule 428(b)(1) of the Securities Act.  Such documents need not be filed with the Securities and Exchange Commission (the “Commission”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act.  These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.

 

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

The following documents of the Company, filed with the Commission are incorporated by reference into this Registration Statement:

 

(a)  The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2014, filed with the Commission on March 13, 2015 (including portions of our definitive Proxy Statement for the 2015 Annual Meeting of Stockholders incorporated therein by reference);

(b)  Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2015, June 30, 2015 and September 30, 2015, filed with the Commission on May 11, 2015, August 10, 2015 and November 9, 2015, respectively;

(c)  Our Current Reports on Form 8-K filed with the Commission on January 9, 2015, February 9, 2015, March 9, 2015, April 9, 2015, May 8, 2015, June 8, 2015, June 12, 2015, July 9, 2015, July 29, 2015 (except for Item 2.02), August 4, 2015 (as amended), August 6, 2015, August 10, 2015, September 9, 2015, October 8, 2015, October 19, 2015, November 9, 2015, November 12, 2015, November 16, 2015, December 8, 2015, January 11, 2016 and January 12, 2016 (as amended); and

(d)  The description of the Common Stock of the Company contained in the Company’s Registration Statement on Form S-4 (Registration No. 333-74723, filed with the Commission on March 19, 1999), including any other amendment or report filed with the Commission for the purpose of updating such description.

 

All reports and other documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of the filing of such reports and documents. Unless expressly incorporated into this Registration Statement, a report furnished but not filed on Form 8-K shall not be incorporated by reference into this Registration Statement.

 

Any statement contained herein or in a document all or a portion of which is incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 

Item 4. Description of Securities.

 

Not applicable.

 

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Item 5. Interests of Named Experts and Counsel.

 

The legality of the shares of Common Stock offered hereby has been passed upon for the Company by Angélique F. M. DeSanto, Managing Director, General Counsel and Secretary of the Company.  As of January 28, 2016, Ms. DeSanto owns 7,711 shares of the Company’s Common Stock and 21,589 restricted stock units that are payable in an equivalent number of shares of the Company’s Common Stock.

 

Item 6. Indemnification of Directors and Officers.

 

The Company is incorporated under the laws of the State of Delaware. Sections 102 and 145 of the Delaware General Corporation Law (the “DGCL”) set forth the conditions and limitations governing the indemnification of officers, directors and other persons by Delaware corporations.

 

Generally, Section 145 of the DGCL provides that a Delaware corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (except actions by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, 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 all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.

 

In addition, a Delaware corporation may similarly indemnify such person for expenses (including attorneys’ fees) actually and reasonably incurred by him or her in connection with the defense or settlement of any action or suit by or in the right of the corporation, provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue and matter as to which such person shall have been adjudged liable to the corporation unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall have determined upon application, that, despite the adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper. To the extent that a present or former director or officer of a Delaware corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.

 

Generally, Section 102(b)(7) of the DGCL provides that the certificate of incorporation of a Delaware corporation may contain provisions eliminating or limiting the personal liability of a director to a corporation or its stockholders for monetary damages for breach of fiduciary duty as a director; provided that such provision may not eliminate or limit the liability of a director (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or knowing violation of law, (iii) under Section 174 of Title 8 of the DGCL or (iv) for any transaction from which the director derived an improper personal benefit. No such provision may eliminate or limit the liability of a director for any act or omission occurring prior to the date which such provisions became effective.

 

Section 145 of the DGCL provides that a Delaware corporation shall have the power to purchase and maintain insurance 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 such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against the same pursuant to the provisions of the DGCL.

 

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The Company’s amended and restated certificate of incorporation (the “Certificate of Incorporation”), provides for indemnification of directors and officers for liabilities and expenses incurred in defending actions brought against them in such capacities. The Certificate of Incorporation provides that the Company shall indemnify its directors and officers to the maximum extent now or hereafter permitted by law. The Certificate of Incorporation also contains a provision eliminating the personal liability of the Company’s directors to the Company or its stockholders for breaches of fiduciary duty to the maximum extent now or hereafter permitted by law.

 

The Company maintains directors’ and officers’ liability insurance covering all of the Company’s directors and officers against claims arising out of the performance of their duties.

 

Item 7. Exemption from Registration Claimed.

 

Not applicable.

 

Item 8. Exhibits.

 

Exhibit No.		Description
4.1		Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the Annual Report on Form 10-K for the year ended December 31, 1999).
4.2		Amended and Restated By-laws of the Company (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed November 19, 2014).
5.1		Opinion of General Counsel of the Company with respect to the legality of the Common Stock being registered hereby.
23.1		Consent of General Counsel of the Company (included in Exhibit 5.1).
23.2		Consent of Independent Registered Public Accounting Firm.
24.1		Power of Attorney.
99.1		Employment Agreement between the Company and Francis J. Troise dated as of October 16, 2015, including the Award Agreements (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed October 19, 2015).

 

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 (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement.

 

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(2)         That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(3)         To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

(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 section 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 the 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 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 Act and will be governed by the final adjudication of such issue.

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, 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 this 28th day of January, 2016.

 

	Investment Technology Group, Inc.
	By:	/s/ Francis J. Troise
	Name:	Francis J. Troise
	Title:	Chief Executive Officer and President

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons, in the capacities indicated, on this 28th day of January, 2016.

 

Signature		Title
/s/ Francis J. Troise		Chief Executive Officer, President and Director (Principal Executive Officer)
Francis J. Troise
/s/ Steven R. Vigliotti		Managing Director and Chief Financial Officer (Principal Financial Officer)
Steven R. Vigliotti
/s/ Angelo Bulone		Managing Director and Controller (Principal Accounting Officer)
Angelo Bulone
*		Director (Chairman)
Minder Cheng
*		Director
Brian G. Cartwright
*		Director
Timothy L. Jones
*		Director
R. Jarrett Lilien
*		Director
T. Kelley Millet
*		Director
Steven S. Wood

 

 

*By:	/s/ Angélique F. M. DeSanto
Name:	Angélique F. M. DeSanto
Title:	Managing Director, General Counsel and Secretary, Attorney-in-Fact for the Officers and Directors signing in the capacities indicated

 

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EXHIBIT INDEX

 

Exhibit No.		Description
4.1		Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the Annual Report on Form 10-K for the year ended December 31, 1999).
4.2		Amended and Restated By-laws of the Company (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed November 19, 2014).
5.1		Opinion of General Counsel of the Company with respect to the legality of the Common Stock being registered hereby.
23.1		Consent of General Counsel of the Company (included in Exhibit 5.1).
23.2		Consent of Independent Registered Public Accounting Firm.
24.1		Power of Attorney.
99.1		Employment Agreement between the Company and Francis J. Troise dated as of October 16, 2015, including the Award Agreements (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed October 19, 2015).

 

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Exhibit 5.1

 

[Letterhead of Investment Technology Group, Inc.]

 

January 28, 2016

 

Investment Technology Group, Inc.

One Liberty Plaza, 165 Broadway

New York, New York 10006

 

Re: Investment Technology Group, Inc. Registration Statement on Form S-8

 

Ladies and Gentlemen:

 

I am General Counsel to Investment Technology Group, Inc., a Delaware corporation (the “Company”). I have advised the Company in connection with a Registration Statement on Form S-8 (the “Registration Statement”) to be filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Act”), relating to the registration of 291,404 shares of Common Stock, par value $0.01 per share (the “Shares”), of the Company issuable in connection with stand-alone time-based vesting stock unit award agreements between the Company and Francis. J. Troise entered into as a material inducement to serve as the Company’s Chief Executive Officer (the “Award Agreements”).

 

In connection with this opinion letter, I have examined originals, or copies certified or otherwise identified to my satisfaction, of the Registration Statement, the Certificate of Incorporation of the Company, the Bylaws of the Company, the Award Agreements and such other documents, records and other instruments as I have deemed appropriate for the purposes of the opinion set forth herein.

 

Based upon the foregoing, I am of the opinion that the Shares to be originally issued by the Company pursuant to the Award Agreements have been duly authorized by the Company and, when issued and delivered by the Company in the manner and on the terms described in the Award Agreements, will be validly issued, fully paid and non-assessable.

 

The opinions expressed herein are limited to the Delaware General Corporation Law.

 

I hereby consent to the use of this opinion as Exhibit 5.1 to the Registration Statement. In giving such opinion, I do not thereby admit that I am acting within the category of persons whose consent is required under Section 7 of the Act or the rules or regulations of the Commission thereunder.

 

Very truly yours,

 

 

/s/ Angélique F. M. DeSanto
Angélique F. M. DeSanto
Managing Director, General Counsel and Secretary

 

 

Exhibit 23.2

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

The Board of Directors
Investment Technology Group, Inc.:

 

We consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports with respect to the consolidated financial statements and the effectiveness of internal control over financial reporting which appear in the December 31, 2014 Annual Report on Form 10-K of Investment Technology Group, Inc.

 

 

/s/ KPMG LLP
New York, New York
January 28, 2016

 

 

Exhibit 24.1

 

POWER OF ATTORNEY

 

Registration Statement on Form S-8

 

KNOW ALL PERSONS BY THESE PRESENTS:

 

That each of the undersigned directors and/or officers of Investment Technology Group, Inc. (the “Corporation”), a Delaware corporation, hereby names, constitutes and appoints Francis J. Troise, Steven R. Vigliotti, and Angélique F. M. DeSanto, or any of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place, and stead, in any and all capacities in connection with the Registration Statement (“Registration Statement”) on Form S-8 (or other appropriate form) for the registration under the Securities Act of 1933, as amended (the “Securities Act”), of the Common Stock, $0.01 par value per share, of the Corporation, pursuant to the resolutions of the Board of Directors of the Corporation adopted on January 15, 2016; and in connection with any and all amendments to the Registration Statement and all instruments necessary or in connection therewith, including to sign the Registration Statement and any and all amendments and supplements relating thereto (including post-effective amendments), in the name and on behalf of the Corporation and in the name and on behalf of such officer or director of the Corporation; to attest to the seal of the Corporation thereon; and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, any state securities commission and any applicable securities exchange or securities self-regulatory organization; hereby granting to said attorneys-in-fact and agents, and each of them acting alone, the full power and authority to do and perform every act and thing requisite, necessary or advisable to be done in and about the premises, as fully and to all intents and purposes as any such officer or director might or could do in person; and said persons are authorized to take or cause to be taken any and all such further actions in connection therewith in the name and on behalf of the Corporation as they, in their sole discretion, deem necessary or appropriate;

 

And each of the undersigned hereby ratifies and confirms all that any said attorney-in-fact and agent, or any substitute, lawfully does or causes to be done by virtue hereof.

 

 

IN WITNESS WHEREOF, each of the undersigned has executed this Power of Attorney in the capacity and as of the date indicated.