As filed with the Securities and Exchange Commission on June 28, 2002
Registration No. 333-________
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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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E*TRADE GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware 94-2844166
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
4500 Bohannon Drive
Menlo Park, California 94025
(Address of principal executive offices) (Zip Code)
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E*TRADE GROUP, INC. 2002 ASSOCIATE STOCK PURCHASE PLAN
(Full title of the Plan)
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Christos M. Cotsakos
Chairman of the Board and Chief Executive Officer
E*TRADE GROUP, INC.
4500 Bohannon Drive
Menlo Park, California 94025
(650) 331-6000
(Name, address including zip code, and telephone number,
including area code, of agent for service)
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Copies of Communications to:
Russell S. Elmer
Chief Legal Affairs & Human Resources Officer
E*TRADE GROUP, INC.
4500 Bohannon Drive
Menlo Park, California 94025
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered (1) per Share (2) Price (2) Fee
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E*TRADE Group, Inc. 2002 Associate Stock
Purchase Plan 5,000,000 shares $4.82 $24,100,000 $2,217.20
Common Stock, $0.01 par value
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the E*TRADE Group, Inc. 2002
Associate Stock Purchase Plan by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without Registrant's
receipt of consideration which results in an increase in the number of the
outstanding shares of Registrant's Common Stock.
(2) Calculated under Rule 457(h) of the Securities Act of 1933, as amended, on
the basis of the average of the high and low selling prices per share of
the Registrant's Common Stock on June 26, 2002, as reported by the New York
Stock Exchange.
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
E*TRADE Group, Inc. (the "Registrant") hereby incorporates by reference
into this Registration Statement the following documents previously filed with
the Securities and Exchange Commission (the "SEC"):
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 2001, filed on April 1, 2002;
(b) The Registrant's Current Report on Form 8-K, filed on May 10, 2002;
(c) The Registrant's Quarterly Report on Form 10-Q for the period ended
March 31, 2002, filed on May 15, 2002; and,
(d) The description of the Registrant's common stock, $0.01 par value per
share, and associated rights, contained in our registration statement
on Form 8-A, filed on July 12, 1996, as amended by Amendment No. 1 on
Form 8-A12B/A filed on February 12, 2001, including any amendment or
report filed for the purpose of updating this description.
All reports and definitive proxy or information statements filed pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "1934 Act") after the date of this Registration Statement and prior
to the filing of a post-effective amendment which indicates that all securities
offered hereby 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 filing of such documents. 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 subsequently filed document which also 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.
Prior to September 30, 2000 the independent public accountant for E*TRADE
Financial Corporation and its subsidiaries was Arthur Andersen LLP. On March 14,
2002, Arthur Andersen was indicted on federal obstruction of justice charges
arising from the government's investigation of Enron Corporation. SEC rules
require us to present audited financial statements in various SEC filings, along
with Arthur Andersen's consent to our inclusion of its audit report in those
filings. We have not been able to obtain, after reasonable efforts, the written
consent of Arthur Andersen to the inclusion of their reports included or made a
part of this registration statement. The SEC recently has provided regulatory
relief designed to allow companies that file reports with the SEC to dispense
with the requirement to file a consent of Arthur Andersen in certain
circumstances, but you will not be able to sue Arthur Andersen pursuant to
Section 11(a)(4) of the Securities Act of 1933, as amended (the "Securities
Act"), and therefore your right of recovery under that section may be limited as
a result of the lack of consent.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Article Tenth of the registrant's Certificate of Incorporation, as amended,
provides that, to the fullest extent permitted by the Delaware General
Corporation Law (the "DGCL"), as the same exists or as it may hereafter be
amended, as described below, no director of the registrant shall be personally
liable to the registrant or its stockholders for monetary damages for breach of
fiduciary duty as a director.
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Article 5 of the registrant's Bylaws further provides that the registrant
shall, to the maximum extent and in the manner permitted by the DGCL, as
described below, indemnify each of its directors and officers against expenses
(including attorneys' fees), judgments, fines, settlements and other amounts
actually and reasonably incurred in connection with any proceeding, arising by
reason of the fact that such person is or was an agent of the registrant.
In addition, the registrant has entered into indemnification agreements
with each of its directors and executive officers, and maintains officers' and
directors' liability insurance.
Subsection (a) of Section 145 of the DGCL 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 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 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
reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 of the DGCL 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 or suit by 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 him in
connection with the defense or settlement of such action or suit 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, except that no indemnification may be made in
respect to 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 further provides that to the extent a director or
officer of a corporation has been successful on the merits or otherwise in the
defense of any such action, suit or proceeding referred to in subsections (a)
and (b) of Section 145 or in the defense of any claim, issue or matter therein,
he shall be indemnified against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection therewith; that the indemnification
provided for by Section 145 shall not be deemed exclusive of any other rights
which the indemnified party may be entitled; that indemnification provided by
Section 145 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 empowers the corporation to purchase and maintain insurance
on behalf of a director or officer of the corporation against any liability
asserted against him and 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 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 the 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.
Item 7. Exemption from Registration Claimed
Not Applicable.
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Item 8. Exhibits
Exhibit Number Exhibit
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4 Instruments Defining Rights of Stockholders. Reference is
made to Registrant's Registration Statement No. 001-11921 on
Form 8-A12B, including the exhibits thereto, which is
incorporated herein by reference pursuant to Item 3(d).
5 Opinion of Davis Polk & Wardwell.
23.1 Consent of Deloitte & Touche LLP, Independent Auditors.
23.2 Consent of Davis Polk & Wardwell is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 E*TRADE Group, Inc. 2002 Associate Stock Purchase Plan.
Item 9. Undertakings
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 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; and
(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.
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 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.
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
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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Menlo Park, State of California on this 28th day
of June, 2002.
E*TRADE GROUP, INC.
By: /s/ Christos M. Cotsakos
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Christos M. Cotsakos
Chairman of the Board and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of E*TRADE Group, Inc., a
Delaware corporation, do hereby constitute and appoint Brigitte VanBaelen,
Russell S. Elmer and Leonard C. Purkis, and each one of them, the lawful
attorneys-in-fact and agents with full power and authority to do any and all
acts and things and to execute any and all instruments which said attorneys and
agents, and any one of them, determine may be necessary or advisable or required
to enable said corporation to comply with the Securities Act of 1933, as
amended, and any rules or regulations or requirements of the Securities and
Exchange Commission in connection with this Registration Statement. Without
limiting the generality of the foregoing power and authority, the powers granted
include the power and authority to sign the names of the undersigned officers
and directors in the capacities indicated below to this Registration Statement,
to any and all amendments, both pre-effective and post-effective, and
supplements to this Registration Statement, and to any and all instruments or
documents filed as part of or in conjunction with this Registration Statement or
amendments or supplements thereof, and each of the undersigned hereby ratifies
and confirms all that said attorneys and agents, or any one of them, shall do or
cause to be done by virtue hereof. This Power of Attorney may be signed in
several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
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/s/ Christos M. Cotsakos
------------------------- Chairman of the Board and June 28, 2002
Christos M. Cotsakos Chief Executive Officer
(Principal Executive Officer)
/s/ Leonard C. Purkis
------------------------- Chief Financial Officer June 28, 2002
Leonard C. Purkis (Principal Financial and
Accounting Officer)
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William A. Porter Chairman Emeritus
/s/ Peter Chernin
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Peter Chernin Director June 28, 2002
/s/ Ronald D. Fisher
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Ronald D. Fisher Director June 28, 2002
/s/ William E. Ford
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William E. Ford Director June 28, 2002
/s/ David C. Hayden
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David C. Hayden Director June 28, 2002
/s/ George Hayter
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George Hayter Director June 28, 2002
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Lewis E. Randall Director
/s/ Lester C. Thurow
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Lester C. Thurow Director June 28, 2002
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EXHIBIT INDEX
Exhibit Number Exhibit
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4 Instruments Defining Rights of Stockholders. Reference is
made to Registrant's Registration Statement No. 001-11921 on
Form 8-A12B, including the exhibits thereto, which is
incorporated herein by reference pursuant to Item 3(d).
5 Opinion of Davis Polk & Wardwell.
23.1 Consent of Deloitte & Touche LLP, Independent Auditors.
23.2 Consent of Davis Polk & Wardwell is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 E*TRADE Group, Inc. 2002 Associate Stock Purchase Plan.