Registration No. 333-
As filed with the Securities and Exchange Commission on March 15, 2001
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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LABRANCHE & CO INC.
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(Exact name of registrant as specified its charter)
DELAWARE 13-4064735
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
LABRANCHE & CO INC.
ONE EXCHANGE PLAZA
NEW YORK, NEW YORK 10006-3008
(212) 425-1144
(Address, including zip code, of principal executive offices)
OPTIONS TO PURCHASE SHARES OF ROBB PECK MCCOOEY FINANCIAL SERVICES, INC.
COMMON STOCK
(Full title of the plan)
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GEORGE M.L. LABRANCHE, IV
LABRANCHE & CO INC.
ONE EXCHANGE PLAZA
NEW YORK, NEW YORK 10006-3008
(212) 425-1144
(Name, address and telephone number, including area code,
of agent for service)
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Copies of all communications, including all communications sent to the agent
for service, should be sent to:
JEFFREY M. MARKS, ESQ.
STEVEN I. SUZZAN, ESQ.
FULBRIGHT & JAWORSKI L.L.P.
666 FIFTH AVENUE
NEW YORK, NEW YORK 10103
(212) 318-3000
FACSIMILE: (212) 318-3400
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CALCULATION OF REGISTRATION FEE
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of Amount to be Proposed Maximum Proposed Maximum Amount of
Securities to be Registered Registered (1) Offering Price Per Aggregate Offering Price Registration Fee
Share (2) (2)
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Common Stock, par value $0.01 per 2,775,662 shares Not Applicable Not Applicable $5,900.00(2)
share
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(1) Plus such additional indeterminable number of shares as may be
required in the event of a stock dividend, stock split,
recapitalization or other similar change in the Common Stock.
(2) Calculated solely for the purposes of this offering under Rule
457(h) under the Securities Act of 1933, as amended, on the basis of
the weighted average exercise price of the outstanding options.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Registrant are incorporated herein
by reference:
(i) The Registrant's Prospectus filed under Rule 424(b) of the
Securities Act on March 1, 2001 forming part of the Registrant's Registration
Statement on Form S-4 (File No. 333-55862).
(ii) The Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 2000.
(iii) The Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 2000.
(iv) The Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended September 30, 2000.
(v) The Registrant's Current Report on Form 8-K filed on
February 8, 2000.
(vi) The Registrant's Current Report on Form 8-K filed on
March 17, 2000.
(vi) The Registrant's Current Report on Form 8-K/A filed on
May 17, 2000.
(viii) The Registrant's Current Report on Form 8-K filed on
October 23, 2000.
(ix) The Registrant's Current Report on Form 8-K filed on
January 19, 2001.
(x) The description of the Registrant's Common Stock contained
in its Registration Statement on Form 8-A (File No. 001-15251).
In addition to the foregoing, all documents subsequently filed by the
Registrant 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 indicating that all of the securities offered hereunder have been sold
or deregistering all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be part hereof
from the date of filing of such documents. Any statement contained in a document
incorporated by reference in this Registration Statement 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 subsequently filed document that is
also incorporated by reference herein modifies or supersedes such
statement. Any 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.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145(a) of the General Corporation Law of the State of Delaware
("DGCL") provides that a Delaware corporation may indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed 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 or enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
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
cause to believe his conduct was unlawful.
Section 145(b) of the DGCL provides that a Delaware corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he
acted in any of the capacities set forth above, against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted under similar
standards, 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 in which such
action or suit was brought shall determine that despite the adjudication of
liability, such person is fairly and reasonably entitled to be indemnified for
such expenses which the court shall deem proper.
Section 145 of the DGCL further provides that to the extent a director
or officer of a corporation has been successful in the defense of any action,
suit or proceeding referred to in subsections (a) and (b) or in the defense of
any claim, issue or matter therein, he shall be indemnified against expenses
actually and reasonably incurred by him in connection therewith; that
indemnification provided for by Section 145 shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled; and that the
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 is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation or enterprise, against any liability
asserted against him or incurred by him in any such capacity or arising out of
his status as such whether or not the corporation would have the power to
indemnify him against such liabilities under such 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 Tenth of the certificate of incorporation of the Registrant
states that to the fullest extent permitted by the DGCL, no director of the
Registrant shall be personally liable to the Registrant, any of its stockholders
or any other person or entity for monetary damages for breach of fiduciary duty
owed to the Registrant, its stockholders or such other person or entity owing to
such director's position as a director of the Registrant.
Article Eleventh of the Registrant's certificate of incorporation
contains substantially the same provisions for indemnification as those
contained in Section 145 of the DGCL.
The Registrant has entered into indemnification agreements with its
current directors and executive officers. The Registrant has agreed to insure
its directors and officers against losses arising from any claim against them as
such for wrongful acts or omission, subject to certain limitations.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
5.1 -- Opinion of Fulbright & Jaworski L.L.P.
23.1 -- Consent of Arthur Andersen LLP
23.2 - Consent of PricewaterhouseCoopers LLP
23.3 -- Consent of Fulbright & Jaworski L.L.P. (included in Exhibit 5.1)
24.1 -- Power of Attorney (included on signature page)
99.1 - Form of RPM Option Agreement
99.2 - Form of Amendment to RPM Option Agreement
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, as amended (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; (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;
(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 on Form 10-K pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934, as amended (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) 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 Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
o and is, therefore, unenforceable. In the event 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 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 the 15th day of
March, 2001.
LABRANCHE & CO INC.
By: /s/ George M.L. LaBranche, IV
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George M.L. LaBranche, IV
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints George M.L. LaBranche, IV and Harvey S.
Traison, or either of them, as his 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 and all amendments
(including post-effective amendments) to this Registration Statement, and any
registration statement relating to the offering hereunder pursuant to Rule 462
under the Securities Act of 1933, as amended, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or either of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
SIGNATURE TITLE DATE
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/s/ George ML. LaBranche, IV Chairman, Chief Executive Officer, and March 15, 2001
-------------------------------------- President (Principal Executive Officer)
George M.L. LaBranche, IV
/s/ S. Lawrence Prendergast Executive Vice President, Finance and March 15, 2001
-------------------------------------- Director
S. Lawrence Prendergast
/s/ Harvey S. Traison Senior Vice President, Chief Financial March 15, 2001
-------------------------------------- Officer and Director (Principal Financial
Harvey S. Traison Officer
/s/ Thomas E. Dooley Director March 15, 2001
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Thomas E. Dooley
/s/ E. Margie Filter Director March 15, 2001
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E. Margie Filter
/s/ James G. Gallagher Director March 15, 2001
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James G. Gallagher
/s/ Alfred O. Hayward, Jr. Director March 15, 2001
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Alfred O. Hayward, Jr.
/s/ Todd Graber Controller (Principal Accounting Officer) March 15, 2001
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Todd Graber
INDEX TO EXHIBITS
Exhibit
No. Description
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5.1 Opinion of Fulbright & Jaworski L.L.P.
23.1 Consent of Arthur Andersen LLP
23.2 Consent of PricewaterhouseCoopers LLP
23.3 Consent of Fulbright & Jaworski L.L.P. (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
99.1 Form of RPM Option Agreement
99.2 Form of Amendment to RPM Option Agreement