As filed with the Securities and Exchange Commission on July 23, 2003
Registration No.
_______________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
______________________________
KNIGHT TRADING GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware 22-3689303
(State of incorporation) (I.R.S. employer identification no.)
____________________________________________________________________________
Newport Tower, 23rd Floor
525 Washington Blvd.
Jersey City, New Jersey 07310
(201) 222-9400
(Address of principal executive offices) (Zip code)
__________________________________________
THE KNIGHT TRADING GROUP, INC.
2003 EQUITY INCENTIVE PLAN
(Full title of the Plan)
John H. Bluher, Esq.
Executive Vice President, General Counsel and Secretary
Knight Trading Group, Inc.
Newport Tower, 23rd Floor
525 Washington Blvd.
Jersey City, New Jersey 07310
(201) 222-9400
(Name, address and telephone number, including area code, of agent for service)
Copies to:
Matthew J. Mallow, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
4 Times Square
New York, New York 10036
CALCULATION OF REGISTRATION FEE
=====================================================================================================
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered (1) Offering Price Aggregate Offering Registration
Per Share (2) Price (1, 2) Fee
=====================================================================================================
Class A Common 10,000,000 $8.29 $82,900,000 $6,706.61
Stock, par value
$.01 per share
=====================================================================================================
(1) Represents the maximum number of shares of Common Stock issuable
under the Knight Trading Group, Inc. 2003 Equity Incentive Plan (the
"Plan"). Pursuant to Rule 416(c) under the Securities Act of 1933, as
amended (the "Securities Act"), this registration statement shall also
cover an indeterminate amount of interests to be offered or sold pursuant
to the employee benefit plans.
(2) Estimated pursuant to Rule 457(c) and (h) under the Securities Act on
the basis of the average of the high and low sale prices for a share of
Common Stock as reported on The Nasdaq Stock Market on July 22, 2003.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information required in Part I of Form S-8 is currently included in a
prospectus dated the date hereof which will be distributed to participants in
the Knight Trading Group, Inc. 2003 Equity Incentive Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents filed with the U.S. Securities and Exchange Commission
(the "Commission") by the registrant, Knight Trading Group, Inc., a Delaware
corporation (the "Company"), pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), are incorporated by reference in this
registration statement:
(1) The Company's registration statement on Form 8-A, filed on July 7,
1998, incorporating by reference the description of the Company's
capital stock included in the Company's registration statement on
Form S-1 (File No. 333-51653) filed on July 7, 1998;
(2) The Company's annual report on Form 10-K for the year ended December
31, 2002;
(3) The Company's quarterly report on Form 10-Q for the period ended
March 31, 2003;
(4) The Company's current reports on Form 8-K filed on July 12 (two),
June 3, May 12, May 5, March 3, and February 5, 2003, respectively.
All documents filed or subsequently filed by the registrant pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date of this
registration statement and prior to the filing of a post-effective amendment
which indicates that all securities described herein have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be a part
hereof from the date of filing of such documents with the Commission. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this registration statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this registration statement.
The Company will provide without charge to each person to whom a copy of this
registration statement is delivered, upon the written or oral request of such
person, a copy of any or all of the documents referred to above which have
been or may be incorporated by reference herein (other than exhibits to such
documents unless such exhibits are specifically incorporated by reference in
such documents). Requests for such copies should be directed to John H.
Bluher, Esq., Knight Trading Group, Inc., Newport Tower, 23rd Floor, 525
Washington Blvd., Jersey City, New Jersey 07310 (telephone (201) 222-9400).
Item 4. Description of Securities
Not Applicable
Item 5. Interests of Named Experts and Counsel
Not Applicable
Item 6. Indemnification of Directors and Officers
Set forth below is a description of certain provisions of the Certificate of
Incorporation and the By-Laws and the DGCL, as such provisions relate to the
indemnification of the directors and officers of the Company. This description
is intended only as a summary and is qualified in its entirety by reference to
the Certificate of Incorporation and the By-Laws incorporated herein by
reference, and the DGCL.
Subsection (a) of Section 145 of the DGCL and Article 8 of the Company's
By-Laws (the "By-Laws") empower the Company 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 (other than an action by or in the right of the corporation)
by reason of the fact that he is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the corporation as
a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with such action, suit or
proceeding if the person acted in good faith and in a manner the person
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 the person's conduct was unlawful.
Subsection (b) of Section 145 of the DGCL and Article 8 of the By-Laws empower
the Company 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, or suit by or
in the right of the corporation to procure a judgment in its favor by reason
of the fact that such person acted in any of the capacities set forth above,
against expenses (including attorneys' fees) actually and reasonably incurred
by the person in connection with the defense or settlement of such action or
suit if the person acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the corporation,
except that 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 Court of Chancery or the
court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
Section 145 of the DGCL and Article 8 of the By-Laws further provide that to
the extent a present or former director or officer of the Company has been
successful on the merits or otherwise in the defense of any action, suit or
proceeding referred to in subsections (a) and (b) of Section 145 of the DGCL,
or in defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorney fees') actually and
reasonably incurred by such person in connection therewith; that
indemnification and advancement of expenses provided for by Section 145 of the
DGCL and Article 8 of the By-Laws shall not be deemed exclusive of any other
rights to which those seeking indemnification or the advancement of expenses
may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office; that indemnification provided for by Section 145 of the DGCL and
Article 8 of the By-Laws shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of such person's heirs,
executors and administrators; and Section 145 of the DGCL and Article 8 of the
By-Laws empower the Company 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 such liability under
Section 145.
Section 102(b) (7) of the DGCL provides that a certificate of incorporation
may contain a provision eliminating or limiting the personal liability of a
director to the corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, provided that such provision shall not
eliminate or limit the liability of a director: (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for
any transaction from which the director derived an improper personal benefit.
Article 7 of the Company's Amended and Restated Certificate of Incorporation
(the "Charter") provides that the Company shall indemnify its directors and
officers to the fullest extent authorized or permitted by law, as now or
hereafter in effect, and such right to indemnification shall continue as to a
person who has ceased to be a director or officer of the Company and shall
inure to the benefit of his or her heirs, executors and personal and legal
representatives; provided, however, that, except for proceedings to enforce
rights to indemnification, the Company shall not be obligated to indemnify any
director or officer (or his or her heirs, executors or personal or legal
representatives) in connection with a proceeding (or part thereof) initiated
by such person unless such proceeding (or part thereof) was authorized or
consented to by the Board of Directors. The right to indemnification under
Article 7 of the Charter is a contract right which includes, with respect to
directors and officers, the right to be paid by the Company the expenses
incurred in defending any such proceeding in advance of its disposition.
Item 7. Exemption From Registration Claimed
Not Applicable
Item 8. Exhibits
Exhibit
Number Description
4.1 Amended and Restated Certificate of Incorporation of the Company,
incorporated by reference to the Company's Current Report on Form
8-K (File No. 001-14223).
4.2 Amended and Restated By-Laws of the Company, incorporated by
reference to the Company's Current Report on Form 8-K (File No.
001-14223).
5 Opinion of John H. Bluher, General Counsel of Knight Trading
Group, Inc. regarding the legality of the securities being
registered.
23.1 Consent of John H. Bluher, Esq. to the filing of his opinion
(included in Exhibit 5).
23.2 Consent of PricewaterhouseCoopers LLP to the incorporation by
reference of its report on the consolidated financial statements
included in the Company's Annual Report on Form 10-K for its
fiscal year ended December 31, 2002.
24 Power of Attorney (included on the signature page of this
Registration Statement).
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;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement; and
(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 periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the registration statement.
(2) 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.
(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, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in 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) 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, the latest annual report to security holders 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 Exchange Act;
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.
(d) 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 foregoing provisions, 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.
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 Jersey City, State of New Jersey, on this 23rd day
of July, 2003.
KNIGHT TRADING GROUP, INC.
/s/ Thomas M. Joyce
-----------------------------
Name: Thomas M. Joyce
Title: Chief Executive Officer,
President and Director
KNOW TO ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Thomas M. Joyce and John B. Howard, and
each of them severally, his or her true and lawful attorney-in-fact with power
of substitution and resubstitution to sign in his or her name, place and
stead, in any and all capacities, to do any and all things and execute any and
all instruments that such attorney may deem necessary or advisable under the
Securities Act and any rules, regulations and requirements of the Commission
in connection with this registration statement on Form S-8 and any and all
amendments hereto, as fully for all intents and purposes as he or she might or
could do in person, and hereby ratifies and confirms all said
attorneys-in-fact and agents, each acting alone, and his or her substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Exchange Act, this registration statement
has been signed by the following persons in the capacities and on the date
indicated.
/s/ Thomas M. Joyce /s/ Gary R. Griffith
_____________________ July 23, 2003 _____________________ July 23, 2003
Thomas M. Joyce Gary R. Griffith
Chief Executive Officer, Director
President and Director
/s/ John B. Howard /s/ Robert M. Lazarowitz
_____________________ July 23, 2003 _____________________ July 23, 2003
John B. Howard Robert M. Lazarowitz
Senior Managing Director, Chief Director
Financial Officer (Principal
Financial and Accounting Officer)
/s/ Anthony M. Sanfilippo /s/ Bruce R. McMaken
_____________________ July 23, 2003 ____________________ July 23, 2003
Anthony M. Sanfilippo Bruce R. McMaken
Director and Executive Vice Director
President
/s/ Charles V. Doherty /s/ Rodger O. Riney
_____________________ July 23, 2003 ____________________ July 23, 2003
Charles V. Doherty Rodger O. Riney
Chairman of the Board Director
EXHIBIT INDEX
Exhibit
Number Description
4.1 Amended and Restated Certificate of Incorporation of the Company,
incorporated by reference to the Company's Current Report on Form
8-K (File No. 001-14223).
4.2 Amended and Restated By-Laws of the Company, incorporated by
reference to the Company's Current Report on Form 8-K (File No.
001-14223).
5 Opinion of John H. Bluher, General Counsel of Knight Trading
Group, Inc. regarding the legality of the securities being
registered.
23.1 Consent of John H. Bluher, Esq. to the filing of his opinion
(included in Exhibit 5).
23.2 Consent of PricewaterhouseCoopers LLP to the incorporation by
reference of its report on the consolidated financial statements
included in the Company's Annual Report on Form 10-K for its
fiscal year ended December 31, 2002.
24 Power of Attorney (included on the signature page of this
Registration Statement).
Exhibit 5
Knight Trading Group, Inc.
Newport Tower, 23rd Floor
525 Washington Blvd.
Jersey City, NJ 07310
July 23, 2003
Knight Trading Group, Inc.
Newport Tower, 23rd Floor
525 Washington Blvd.
Jersey City, NJ 07310
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
Knight Trading Group, Inc., a Delaware corporation (the "Company"),
is registering for sale under the Securities Act of 1933, as amended (the
"Securities Act"), pursuant to a registration statement on Form S-8 (the
"Registration Statement"), up to 10,000,000 shares (the "Shares") of Class A
Common Stock of the Company, par value $0.01 per share ("Common Stock"). The
Shares have been reserved for issuance upon exercise of stock options that
have been granted under the Company's 2003 Equity Incentive Plan (the "Plan").
As General Counsel of the Company, I have general supervision over
the Company's legal affairs. In such capacity, I have examined originals or
copies, certified or otherwise identified to my satisfaction, of (a) the
Registration Statement to be filed with the Securities and Exchange Commission
(the "Commission") on the date hereof, (b) the Plan, (c) a specimen
certificate evidencing the Common Stock, (d) the Amended and Restated
Certificate of Incorporation of the Company, as presently in effect, (e) the
Amended and Restated By-Laws of the Company, as presently in effect, (f)
certain resolutions of the Board of Directors of the Company relating to,
among other things, the Plan (collectively, the "Board Resolutions") and (g)
such other documents as I have deemed necessary or appropriate as a basis for
the opinions set forth below.
In my examination, I have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents. In examining documents
executed or to be executed by parties other than the Company, I have assumed
that such parties had the power, corporate or other, to enter into and perform
all obligations thereunder and have also assumed the due authorization by all
requisite action, corporate or other, and execution and delivery by such
parties of such documents and the validity and binding effect thereof on such
parties. As to any facts material to the opinions expressed herein which I did
not independently establish or verify, I have relied upon certificates,
statements or representations of officers and other representatives of the
Company, public officials and others. In rendering the opinion set forth
below, I have assumed that (i) the certificates representing the Shares under
the Plan will be manually signed by one of the authorized officers of the
transfer agent and registrar for the Common Stock and registered by such
transfer agent and registrar and will conform to the specimen thereof examined
by me and (ii) prior to the issuance of any Shares under the Plan, the Company
and the relevant optionee will have duly entered into stock option or similar
agreements ("Agreements") in accordance with the Board Resolutions and the
Plan, as the case may be.
Based upon and subject to the foregoing, I am of the opinion that the
Shares under the Plan have been duly and validly authorized for issuance and,
when delivered and paid for in accordance with the terms of the Agreements,
will be validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion with the Commission as
Exhibit 5 to the Registration Statement. In giving such consent, I do not
thereby admit that I am in 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/ John H. Bluher
_______________________
John H. Bluher
Executive Vice President,
General Counsel and Secretary
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 23, 2003, except Note 18, as
to which is dated March 31, 2003 relating to the financial statements, which
appears in the 2002 Annual Report to Shareholders of Knight Trading Group,
Inc., which is incorporated by reference in Knight Trading Group's Annual
Report on Form 10-K for the year ended December 31, 2002.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
New York, New York
July 22, 2003