As filed with the Securities and Exchange Commission on February 13, 2002
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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LADENBURG THALMANN FINANCIAL SERVICES INC.
(Exact Name of Registrant as Specified in Its Charter)
Florida 65-0701248
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
590 MADISON AVENUE, 34th FLOOR
NEW YORK, NEW YORK 10022
(Address of Principal Executive Offices)
1999 PERFORMANCE EQUITY PLAN
(Full Title of the Plan)
VICTOR M. RIVAS, President and Chief Executive Officer
Ladenburg Thalmann Financial Services Inc.
590 Madison Avenue, 34th Floor
New York, New York 10022
(212) 409-2000
(Name, Address and Telephone Number, Including Area Code, of Agent For Service)
with a copy to:
DAVID ALAN MILLER, ESQ.
Graubard Miller
600 Third Avenue
New York, New York 10016-2097
Telephone: (212) 818-8800
CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum
Title of Securities Amount to be offering price aggregate Amount of
to be registered registered(1) per share offering price registration fee
300,000 $4.0625(2)
200,000 $4.46875(2)
981,874 $3.00(2)
36,364 $2.75(2)
169,116 $2.125(2)
Common Stock issuable upon exercise of 110,000 $2.52(2)
options granted and outstanding under the 1,200,000 $3.05(2) $10,528,294.50 $2,516.26
1999 Performance Equity Plan 1,220,000 $0.88(2)
Common Stock issuable upon exercise of
options which may be granted under the 1,282,646 $0.66(3) $846,546.36 $202.32
1999 Performance Equity Plan
TOTAL.......................... $2,718.58
============================================================================================================== =====================
(1) Pursuant to Rule 416, there are also being registered additional shares
of common stock as may become issuable pursuant to the anti-dilution
provisions of the 1999 Performance Equity Plan.
(2) Represents the exercise prices payable for the shares issuable upon
exercise of outstanding options granted under the plan in accordance
with Rule 457(h) promulgated under the Securities Act of 1933, as
amended.
(3) Based on the last sale price of a share of our common stock as reported
by the American Stock Exchange on February 6, 2002 in accordance with
Rules 457(c) and 457(h) promulgated under the Securities Act.
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In accordance with the provisions of Rule 462 promulgated under the
Securities Act, this registration statement will become effective upon filing
with the Securities and Exchange Commission.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information. *
* Information required by Part I to be contained in the Section
10(a) prospectus is omitted from this registration statement
in accordance with Rule 428 under the Securities Act and the
Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents that we have previously filed with the SEC are
incorporated by reference in this registration statement:
o our annual report on Form 10-K for the fiscal year ended
September 30, 2000, as amended by Form 10-K/A;
o our quarterly reports on Form 10-Q for the periods ended
December 31, 2000, March 31, 2001, June 30, 2001 and September
30, 2001;
o our current report on Form 8-K dated February 8, 2001 and
filed with the SEC on February 21, 2001, as amended by Form
8-K/A filed with the SEC on May 1, 2001, by Form 8-K/A filed
with the SEC on May 14, 2001 and by Form 8-K/A filed with the
SEC on September 10, 2001;
o our current report on Form 8-K dated December 7, 2001 and
filed with the SEC on the same date;
o our definitive proxy statement for our annual meeting of
shareholders held on May 7, 2001, filed with the SEC on March
28, 2001, as supplemented on April 2, 2001 and April 26, 2001;
and
o the description of our common stock, par value $.0001 per
share, contained in our registration statement on Form 8-A
(No. 1-15799) filed with the SEC pursuant to Section 12(b) of
the Securities Exchange Act of 1934, including any subsequent
amendments or reports filed for the purpose of updating this
description.
All documents subsequently filed by us pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all the securities offered have been sold or
which deregisters all securities then remaining unsold, will be deemed to be
incorporated by reference in this registration statement and to be a part of
this registration statement from the respective date of filing. Any statement
contained in a document incorporated by reference in this registration statement
will be modified or superseded for all purposes to the extent that a statement
contained in this registration statement or in any other subsequently filed
document which is incorporated by reference modifies or replaces the statement.
Item 4. Description of Securities.
Our common stock is registered under Section 12(b) of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
Section 607.0850 of the 1989 Business Corporation Act of the State of
Florida empowers a Florida corporation 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 other type of proceeding, whether civil, criminal,
administrative, or investigative and whether formal or informal (other than an
action by, or in the right of, the corporation) by reason of the fact that he or
she is or was a director, officer, employee, or agent of the corporation, or is
or was serving at the request of the corporation as a director, officer,
employee, or agent of another corporation, partnership, joint venture, trust, or
other enterprise, against liability, judgments, settlements, penalties, fines
(including excise taxes assessed with respect to any employee benefit plan), and
expenses (including counsel's fees) actually and reasonably incurred in
connection with the proceeding and any subsequent appeals, if he or she acted in
good faith and in a manner that he or she reasonably believed to be in or not
opposed to the best interests of the corporation, and with respect to any
criminal action or proceeding, had no reasonable cause to believe that his or
her conduct was unlawful. The termination of any proceeding by judgment, order,
settlement, or conviction, or upon plea of nolo contendere or its equivalent,
does not, of itself, create a presumption that the person did not act in good
faith and in a manner which he or she reasonably believed to be in or not
opposed to the best interests of the corporation, or, with respect to any
criminal action or proceeding, had reasonable cause to believe that his or her
conduct was unlawful.
In the case of an action by or in the right of the corporation, Section
607.0850 empowers a corporation 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 other type of proceeding, whether civil, criminal,
administrative, or investigative and whether formal or informal, in any of the
capacities set forth above against expenses (including counsel's fees) and
amounts paid in settlement not exceeding, in the judgment of the board of
directors, the estimated expense of litigating the proceeding to conclusion,
actually and reasonably incurred in connection with the defense or settlement of
the proceeding or any subsequent appeals, if the person acted in good faith and
in a manner that he or she reasonably believed to be in or not opposed to the
best interests of the corporation. With respect to any claim, issue, or matter
as to which the person is adjudged to be liable to the corporation,
indemnification is not permitted unless, and only to the extent that, the court
in which the proceeding was brought determines upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
the person is fairly and reasonably entitled to indemnity for expenses that the
court deems proper.
Section 607.0850 further provides:
o that a Florida corporation is required to indemnify a
director, officer, employee, or agent against expenses
(including counsel's fees) actually and reasonably incurred by
the person in connection with any proceeding or in defending
any claim, issue, or matter involved in the proceeding as to
which the person has been successful on the merits or
otherwise;
o that indemnification provided for by Section 607.0850 shall
not be deemed exclusive of any other rights to which the
indemnified party may be entitled;
o that indemnification provided for by Section 607.0850 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
the person's heirs, executors, and administrators; and
o that a Florida corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer,
employee or agent of the corporation or who 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 the person and incurred by him or her in any
such capacity or arising out of his or her status as such,
whether or not the corporation would have the power to
indemnify the person against liability under Section 607.0850.
A Florida corporation may provide indemnification only as authorized in the
specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he or she has
met the applicable standard of conduct. The determination is to be made:
o by the board of directors upon majority vote of a quorum
consisting of directors who were not party to the proceeding;
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o if a quorum is not obtainable, or, even if obtainable, by
majority vote of a committee consisting solely of two or more
directors who are not parties to the proceeding at the time,
duly designated by the board of directors (in which interested
directors may participate);
o by independent legal counsel selected by majority vote of the
board of directors who were not party to the proceeding or a
committee so designated by the board of directors; or
o by shareholders upon majority vote of a quorum consisting of
shareholders who were not parties to the proceeding or, if a
quorum is not obtainable, by a majority vote of shareholders
who were not parties to the proceeding.
Article XI of our articles of incorporation, as amended, and Article VII
of our bylaws provide for indemnification of our directors and officers to the
fullest extent permitted by law, as now in effect or later amended. Article VII
of our bylaws provides that expenses incurred by a director or officer in
defending a civil or criminal action, suit, or proceeding may be paid by us in
advance of a final disposition upon receipt of an undertaking by or on behalf of
the director or officer to repay the advanced amount if he or she is ultimately
found not to be entitled to indemnification.
We may provide liability insurance for each of our directors and
officers for certain losses arising from claims or charges made against them
while acting in their capacities as directors or officers. We currently maintain
this type of liability insurance.
Additionally, we have entered into indemnification agreements with all
of our directors and executive officers whereby we have agreed to indemnify, and
advance expenses to, each indemnitee to the fullest extent permitted by
applicable law. The indemnification agreements will continue until and terminate
upon the later of (i) ten years after the date that the indemnitee has ceased to
serve as a director or officer for us or (ii) the final termination of all
pending proceedings in respect of which the indemnitee is granted rights of
indemnification or advancement of expenses or any proceeding commenced by the
indemnitee.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Incorporated by
Reference from
Exhibit No. Description Document No. in Document
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4.1 1999 Performance Equity Plan A Exhibit C
5.1 Opinion of Graubard Miller - Filed Herewith
23.1 Consent of Goldstein Golub Kessler LLP - Filed Herewith
23.2 Consent of PricewaterhouseCoopers LLP - Filed Herewith
23.3 Consent of Graubard Miller (Included in Exhibit 5.1) - -
24.1 Power of Attorney (Included on Signature page) - -
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A. Definitive proxy statement relating to the special meeting of
shareholders held on August 23, 1999 and filed with the SEC on July 30,
1999
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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 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.
(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 registration of 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 13th day of
February, 2002.
LADENBURG THALMANN FINANCIAL SERVICES INC.
By: /s/ Victor M. Rivas
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Name: Victor M. Rivas
Title: President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Howard M. Lorber, Richard J. Rosenstock, Victor
M. Rivas and J. Bryant Kirkland III, and each of them, with full power to act
without the others, such person's true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any or all amendments to
this registration statement, including post-effective amendments, and to file
the same, with all exhibits thereto, and all documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, and hereby ratifies and confirms all that said
attorneys-in-fact and agents, each acting alone, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Howard M. Lorber Chairman of the Board February 13, 2002
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Howard M. Lorber
/s/ Victor M. Rivas President and Chief February 13, 2002
------------------------- Executive Officer
Victor M. Rivas
/s/ Richard J. Rosenstock Vice Chairman and February 13, 2002
------------------------- Chief Operating Officer
Richard J. Rosenstock
/s/ J. Bryant Kirkland III Chief Financial Officer February 13, 2002
-------------------------- (and Principal Accounting Officer)
J. Bryant Kirkland III
/s/ Vincent A. Mangone Executive Vice President and Director February 13, 2002
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Vincent A. Mangone
/s/ Mark Zeitchick Executive Vice President and Director February 13, 2002
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Mark Zeitchick
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/s/ Bennett S. LeBow Director February 13, 2002
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Bennett S. LeBow
/s/ Phillip Frost Director February 8, 2002
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Phillip Frost
/s/ Henry C. Beinstein Director February 13, 2002
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Henry C. Beinstein
/s/ Robert J. Eide Director February 13, 2002
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Robert J. Eide
/s/ Richard J. Lampen Director February 13, 2002
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Richard J. Lampen
Incorporated by
Reference from
Exhibit No. Description Document No. in Document
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4.1 1999 Performance Equity Plan A Exhibit C
5.1 Opinion of Graubard Miller - Filed Herewith
23.1 Consent of Goldstein Golub Kessler LLP - Filed Herewith
23.2 Consent of PricewaterhouseCoopers LLP - Filed Herewith
23.3 Consent of Graubard Miller (Included in Exhibit 5.1) - -
24.1 Power of Attorney (Included on Signature page) - -
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A. Definitive proxy statement relating to the special meeting of
shareholders held on August 23, 1999 and filed with the SEC on July 30,
1999