NMRK Newmark Group Inc

Registration No. 333-            

As filed with the Securities and Exchange Commission on August 8, 2024

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM S-8 

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

Newmark Group, Inc.

(Exact name of registrant as specified in its charter)

 

Delaware		81-4467492
(State or other jurisdiction of incorporation or organization)		(IRS Employer Identification No.)

 

125 Park Avenue

New York, New York 10017

(Address of Principal Executive Offices)(Zip Code)

 

 

Newmark 401(k) Plan

(Full title of the plan)

 

 

Stephen M. Merkel

Executive Vice President and Chief Legal Officer

Newmark Group, Inc.

125 Park Avenue

New York, New York 10017

(Name and address of agent for service)

 

(212) 372-2000

(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, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer	☒		Accelerated filer	☐
Non-accelerated filer	☐		Smaller reporting company	☐
			Emerging growth company	☐

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐

 

 

 

EXPLANATORY NOTE

 

This Registration Statement on Form S-8 is filed by Newmark Group, Inc., a Delaware corporation (“we,” “us,” “our” or the “Registrant”), with the Securities and Exchange Commission (the “Commission”) for the purpose of registering 1,000,000 additional shares of our Class A Common Stock, par value $0.01 per share (the “Class A Common Stock”), that may be offered to participants in the Newmark 401(k) Plan (the “Plan”), together with an indeterminate amount of plan interests pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the “Securities Act”), to be offered or sold pursuant to the Plan. The Class A Common Stock and the plan interests registered herein to be offered and sold pursuant to the Plan are of the same classes of securities as registered under our currently effective Registration Statement on Form S-8 filed with the Commission on July 19, 2021 (File No. 333-258013) (the “Prior Registration Statement”). Pursuant to General Instruction E to Form S-8, the contents of the Prior Registration Statement are incorporated herein by reference except to the extent supplemented, amended or superseded by the information set forth herein. Only those items containing new information not contained in the Prior Registration Statement are presented herein.

 

 

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 of Form S-8, including with respect to the Registrant, the Plan, and the plan interests registered herein and the Class A Common Stock registered herein to be offered and sold pursuant to the Plan, 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 previously filed by us with the Commission are incorporated by reference into this Registration Statement:

 

	(a)	The Plan’s Annual Report on Form 11-K for the fiscal year ended December 31, 2023, filed with the Commission on June 27, 2024.
	(b)	Our Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the Commission on February 29, 2024, as amended by Amendment No. 1 to our Annual Report on Form 10-K/A filed with the Commission on April 26, 2024.
	(c)	Our Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2024, filed with the Commission on May 10, 2024.
	(d)	Our Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2024, filed with the Commission on August 8, 2024.
	(e)	Our Current Reports on Form 8-K, filed with the Commission on January 5, 2024, January 12, 2024, February 22, 2024 (other than as indicated therein), April 30, 2024, May 3, 2024 (other than as indicated therein), June 10, 2024, and August 2, 2024 (other than as indicated therein).
	(f)	The description of the Class A Common Stock contained in our Registration Statement on Form 8-A (Registration No. 001-38329), filed with the Commission on December 14, 2017, as updated by Exhibit 4.1 to our Annual Report on Form 10-K for the year ended December 31, 2023 filed with the Commission on February 29, 2024, including any amendment or report filed for the purpose of updating such description.

 

All documents subsequently filed by us or the Plan 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 which indicates that all securities offered herein have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of the filing of such documents.

 

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 6. Indemnification of Directors and Officers.

 

Section 145 of the Delaware General Corporation Law (the “DGCL”) provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any threatened, pending or completed actions, suits or proceedings in which such person is made a party by reason of such person being or having been a director, officer, employee or agent of the Registrant. The DGCL provides that Section 145 is not exclusive of other rights to which those seeking indemnification may be entitled under any bylaws, agreement, vote of stockholders or disinterested directors or otherwise. The Registrant’s Amended and Restated Certificate of Incorporation provides for indemnification by the Registrant of its directors, officers and employees to the fullest extent permitted by the DGCL.

 

Section 102(b)(7) of the DGCL permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director or officer, except for liability of (1) a director or officer for any breach of the director or officer’s duty of loyalty to the corporation or its stockholders, (2) a director or officer for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) a director for unlawful payments of dividends or unlawful stock repurchases, redemptions or other distributions, (4) a director or officer for any transaction from which the director or officer derived an improper personal benefit or (5) an officer in any action by or in the right of the corporation. The Registrant’s Amended and Restated Certificate of Incorporation provides for such limitation of liability for directors of the Registrant to the fullest extent permitted by the DGCL.

 

The Registrant maintains standard policies of insurance under which coverage is provided (1) to its directors and officers against loss rising from claims made by reason of breach of duty or other wrongful act, while acting in their capacity as directors and officers of the Registrant, and (2) to the Registrant with respect to payments which may be made by the Registrant to such officers and directors pursuant to any indemnification provisions contained in the Registrant’s Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws or otherwise as a matter of law.

 

 

Item 8. Exhibits.

 

The Exhibit Index set forth below is incorporated by reference in response to this Item 8.

 

EXHIBIT INDEX

 

Exhibit No.		Description
4.1		Amended and Restated Certificate of Incorporation of Newmark Group, Inc. (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the Commission on December 19, 2017)
4.2		Amended and Restated Bylaws of Newmark Group, Inc. (incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed with the Commission on December 19, 2017)
4.3		Newmark 401(k) Plan (incorporated by reference to Exhibit 4.3 to the Registrant’s Registration Statement on Form S-8 filed with the Commission on July 19, 2021)
5.1*		Opinion of Stephen M. Merkel
23.1*		Consent of Ernst & Young LLP
23.2*		Consent of Stephen M. Merkel (included in Exhibit 5.1)
24.1		Powers of Attorney (included on the signature page of this Registration Statement)
107*		Fee Table

 

*

Filed herewith.

 

 

SIGNATURES

 

The Registrant. 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 New York, State of New York, on August 8, 2024.

 

	Newmark Group, Inc.
	By:	/s/ Howard W. Lutnick
		Name:	Howard W. Lutnick
		Title:	Executive Chairman

 

POWERS OF ATTORNEY

 

Each of the undersigned, whose signature appears below, hereby constitutes and appoints Howard W. Lutnick and Michael Rispoli, and each of them, as his or her true and lawful attorneys-in-facts 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, to sign any and all amendments to this Registration Statement, including post-effective amendments under the Securities Act and other instruments necessary or appropriate in connection therewith, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Commission, granting unto said attorneys-in-fact and agents, or his or their substitute or substitutes, and each of them, full power and authority to do and perform each and every act and thing necessary or appropriate to be done with respect to this Registration Statement or any amendments hereto in 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 attorneys-in-fact and agents, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue thereof.

 

Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons, in the capacities and on the date indicated:

 

Signature		Capacity in Which Signed		Date
/s/ Howard W. Lutnick		Executive Chairman and Director		August 8, 2024
Howard W. Lutnick		(Principal Executive Officer)
/s/ Barry M. Gosin		Chief Executive Officer		August 8, 2024
Barry M. Gosin
/s/ Michael J. Rispoli		Chief Financial Officer		August 8, 2024
Michael J. Rispoli		(Principal Financial and Accounting Officer)
/s/ Virginia S. Bauer		Director		August 8, 2024
Virginia S. Bauer
/s/ Kenneth A. McIntyre		Director		August 8, 2024
Kenneth A. McIntyre
/s/ Jay Itzkowitz		Director		August 8, 2024
Jay Itzkowitz

  

 

The Plan. Pursuant to the requirements of the Securities Act, the Administrator of the Newmark 401(k) Plan 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 August 8, 2024.

 

	Newmark 401(k) Plan
	By:	/s/ Michael Rispoli
		Name:	Michael Rispoli
		Title:	Chief Financial Officer on behalf of the Newmark 401(k) Plan Administrative Committee, the Plan Administrator

 

 

II-5

Exhibit 5.1

 

NEWMARK GROUP, INC.

 

August 8, 2024

 

Newmark Group, Inc.

125 Park Avenue

New York, New York 10017

 

Ladies and Gentlemen:

 

I am the Executive Vice President and Chief Legal Officer of Newmark Group, Inc., a Delaware corporation (the “Company”). In connection with the Registration Statement on Form S-8 (the “Registration Statement”) filed by the Company with the U.S. Securities and Exchange Commission (the “Commission”) on the date hereof, relating to the registration under the Securities Act of 1933, as amended (the “Securities Act”), of the offer and sale of up to 1,000,000 shares (the “Shares”) of the Company’s Class A common stock, par value $0.01 per share (the “Class A Common Stock”) pursuant to the Newmark 401(k) Plan (the “Plan”), you have requested my opinion with respect to the matters set forth below.

 

For the purposes of this opinion letter, I, or attorneys working under my direction (collectively, “we”), have examined the Registration Statement and the originals, or duplicates or certified or conformed copies, of such corporate records, agreements, documents and other instruments, including the Amended and Restated Certificate of Incorporation, the Amended and Restated Bylaws of the Company and the Plan, and have made such other investigations as we have deemed relevant and necessary in connection with the opinions set forth below. As to questions of fact material to this opinion letter, we have relied, with your approval, upon oral and written representations and certificates of officers and other representatives of the Company and certificates or comparable documents of public officials.

 

In making such examination and rendering the opinions set forth below, we have assumed without verification the genuineness of all signatures, the authenticity of all documents submitted to us as originals, that all documents submitted to us as certified copies are true and correct copies of such originals, the authenticity of the originals of such documents submitted to us as certified copies, and the legal capacity of all individuals executing any of the foregoing documents.

 

We have also assumed that any Shares to be offered and sold from time to time will be duly authorized and issued in accordance with the Amended and Restated Certificate of Incorporation and the Amended and Restated Bylaws of the Company as the same may be amended from time to time, the authorizing resolutions of the Board of Directors of the Company or a committee thereof and applicable law, and that any certificates evidencing such Shares will be duly executed and delivered, against receipt of the consideration approved by the Company, which will be no less than the par value of the Class A Common Stock on a per share basis.

 

Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, I am of the opinion that, when the Shares registered for sale under the Registration Statement have been issued, delivered and paid for in the manner contemplated by and upon the terms and conditions set forth in the Registration Statement and the Plan, the Shares will be validly issued, fully paid and nonassessable. I am also of the opinion that the provisions of the written documents constituting the Plan are in compliance with the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). My opinion expressed above is exclusively based on the Plan as constituted as of the date hereof and on the requirements of ERISA in effect as of the date hereof.

 

I am a member of the bar of the State of New York, and I do not express any opinion herein concerning any law other than the laws of the State of New York, Title I of ERISA and the Delaware General Corporation Law (including the statutory provisions, all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting the foregoing).

 

 

I hereby consent to the filing of this opinion letter as Exhibit 5.1 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 Securities Act, and the rules and regulations of the Commission promulgated thereunder.

 

	Very truly yours,
	/s/ Stephen M. Merkel
	Stephen M. Merkel Executive Vice President and Chief Legal Officer

  

 

 

 

Exhibit 23.1

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Newmark 401(k) Plan of our reports (a) dated February 29, 2024, with respect to the consolidated financial statements of Newmark Group, Inc., and the effectiveness of internal control over financial reporting of Newmark Group, Inc., included in its Annual Report (Form 10-K), and (b) dated June 27, 2024, with respect to the financial statements and schedule of the Newmark 401(k) Plan included in the Plan's Annual Report (Form 11-K), both for the year ended December 31, 2023, filed with the Securities and Exchange Commission.

 

/s/ Ernst & Young LLP

New York, New York

August 8, 2024

 

v3.24.2.u1

Submission	Aug. 07, 2024
Submission [Line Items]
Central Index Key	0001690680
Registrant Name	NEWMARK GROUP, INC.
Form Type	S-8
Submission Type	S-8
Fee Exhibit Type	EX-FILING FEES

v3.24.2.u1

Offerings - Offering: 1	Aug. 07, 2024 USD ($) shares
Offering:
Fee Previously Paid	false
Other Rule	true
Security Type	Equity
Security Class Title	Class A Common Stock, par value $0.01 per share
Amount Registered | shares	1,000,000
Proposed Maximum Offering Price per Unit	11.40
Maximum Aggregate Offering Price	$ 11,400,000.00
Fee Rate	0.01476%
Amount of Registration Fee	$ 1,682.64
Offering Note	Footnote 1 to "Amount Registered": Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the "Securities Act"), the number of shares of Class A Common Stock, par value $0.01 per share (the "Class A Common Stock"), of Newmark Group, Inc. being registered shall include an indeterminate number of 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 Newmark 401(k) Plan (the "Plan"). In addition, pursuant to Rule 416(c) under the Securities Act, the Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the Plan. Pursuant to Rule 457(h)(2) under the Securities Act, no separate registration fee is required with respect to such plan interests. Footnote 2 to "Proposed Maximum Offering Price Per Unit" and "Maximum Aggregate Offering Price": Calculated pursuant to Rules 457(c) and 457(h)(1) under the Securities Act, based upon the average of the high and low sale prices of the Class A Common Stock reported on the Nasdaq Global Select Market on August 5, 2024.

v3.24.2.u1

Fees Summary	Aug. 07, 2024 USD ($)
Fees Summary [Line Items]
Total Offering	$ 11,400,000.00
Total Fee Amount	1,682.64
Total Offset Amount	0.00
Net Fee	$ 1,682.64

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