As filed with the Securities and Exchange Commission on May 16, 2001
Registration No. 333-57158
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 2 TO FORM S-3
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)
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Delaware 94-2844166
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
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4500 Bohannon Drive
Menlo Park, California 94025
(650) 331-6000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
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Christos M. Cotsakos
Chairman and Chief Executive Officer
E*TRADE Group, Inc.
4500 Bohannon Drive
Menlo Park, California 94025
(650) 331-6000
(Name and address, including zip code, and telephone number, including
area code, of agent for service)
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Copy to:
Bruce K. Dallas, Esq.
Davis Polk & Wardwell
1600 El Camino Real
Menlo Park, CA 94025
(650) 752-2000
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Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment that specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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THE INFORMATION CONTAINED IN THIS PRELIMINARY PROSPECTUS IS NOT COMPLETE AND
MAY BE CHANGED. THESE SECURITIES MAY NOT BE SOLD UNTIL THE REGISTRATION
STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS
PROSPECTUS IS NOT AN OFFER TO SELL AND IT IS NOT SOLICITING AN OFFER TO BUY
THESE SECURITIES IN ANY JURISDICTION WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED MAY 16, 2001
PROSPECTUS
78,928 Shares
E*TRADE GROUP, INC.
Common Stock
This prospectus relates to the offer and sale from time to time of 78,928
shares of our common stock held by the stockholders named in this prospectus.
The prices at which selling stockholders may sell the shares will be
determined by the prevailing market price for the shares or in negotiated
transactions. We will not receive any of the proceeds from the sale of the
shares.
The shares offered by this prospectus were originally issued in connection
with our acquisition of E*TRADE Nordic AB, a Swedish corporation.
Our common stock is listed on the New York Stock Exchange under the symbol
"ET." On May 15, 2001, the closing price for the common stock was $9.00.
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Investing in these securities involves risks. See our Quarterly Report on
Form 10-Q for the period ended March 31, 2001 under the headings "Liquidity and
Capital Resources" and "Risk Factors" in Item 2 - Management's Discussion and
Analysis of Financial Condition and Results of Operations, and our Annual
Report on Form 10-K for the fiscal year ended September 30, 2000, as amended,
under the headings "Overview," "Liquidity and Capital Resources," and "Risk
Factors" in Item 7 - Management's Discussion and Analysis of Financial
Condition and Results of Operations.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is
a criminal offense.
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The date of this prospectus is , 2001
You should rely only on the information contained in or incorporated by
reference in this prospectus. No one has been authorized to provide you with
different information. This prospectus is not an offer of these securities in
any state where the offer is not permitted. You should not assume that the
information contained in or incorporated by reference in this prospectus or in
any prospectus supplement is accurate as of any date other than the date on the
front of the document.
SPECIAL NOTE REGARDING FORWARD LOOKING STATEMENTS
Any statements in this prospectus and in our filings with the Commission
incorporated by reference in this prospectus that are not statements of
historical information are forward-looking statements made pursuant to the safe
harbor provisions of the Private Litigation Reform Act of 1995. These
forward-looking statements, as well as other oral and written forward-looking
statements made by or on behalf of us from time to time, including statements
contained in our other filings with the Commission and our reports to
shareowners, involve known and unknown risks and assumptions about our business
and other factors which may cause our actual results in future periods to
differ materially from those expressed in any forward-looking statements. Any
such statement is qualified by reference to the risks and factors discussed in
our Annual Report on Form 10-K for the fiscal year ended September 30, 2000, as
amended, under the headings "Overview," "Liquidity and Capital Resources," and
"Risk Factors" in Item 7 - Management's Discussion and Analysis of Financial
Condition and Results of Operations and in our Quarterly Report on Form 10-Q
for the period ended March 31, 2001 under the headings "Liquidity and Capital
Resources" and "Risk Factors," in Item 2 - Management's Discussion and Analysis
of Financial Condition and Results of Operations as well as in any of our
subsequent filings with the Commission. These reports and filings are available
from the Commission or may be obtained upon request from us. We caution that
the risks and factors discussed in these filings are not exclusive. We have no
obligation to publicly update or revise any forward-looking statements, whether
as a result of new information, future events or risks. New information, future
events or risks may cause the forward-looking events we discuss in this
prospectus and in the filings with the Commission we incorporate by reference
in this prospectus not to occur.
E*TRADE GROUP, INC.
We, through our wholly-owned subsidiaries, including E*TRADE Securities,
Inc., TIR (Holdings) Limited and E*TRADE Bank, are a leading provider of online
financial services and have established a popular, branded destination Web site
for self-directed investors. We offer financial products and services in the
following three primary categories:
o Domestic retail brokerage - our domestic retail brokerage products
and services include fully-automated stock, option, fixed income and
mutual fund order processing, online investment portfolio tracking,
and access to financial market news and information. Revenues from
these products and services were 71% of our net revenues in the
fiscal year ended September 30, 2000
o Banking - through our banking operations, we provide a wide range of
FDIC-insured and other banking products and services through the
Internet, telephones and ATMs. Revenues from these products and
services were 10% of our net revenues in the fiscal year ended
September 30, 2000.
o Global and institutional brokerage - our global brokerage products
and services are similar to those of our domestic retail brokerage
operations except that they are provided to foreign investors through
our international subsidiaries. Our institutional brokerage products
and services are provided to institutional investors as opposed to
retail investors, and revenues from these products and services were
13% of our net revenues in the fiscal year ended September 30, 2000.
In addition, we also provide asset gathering and other services consisting
primarily of our mutual fund operations and stock option and stock purchase
plan services provided to corporations. Revenues from these asset gathering and
other services, together with certain corporate investing activities, were 6%
of our net revenues in the fiscal year ended September 30, 2000.
We provide our services 24 hours a day, seven days a week by means of the
Internet, touch-tone telephone (including interactive voice recognition) and
direct modem access. Our proprietary transaction-enabling system
2
includes a wide variety of functions and services that allow customers to open
and monitor investment accounts and to place orders for equity, option, mutual
fund and fixed income transactions. The primary components of our
transaction-enabling system include a graphical user interface, the session
manager, the transaction process monitor, the data manager, and the transaction
processor. As our proprietary transaction-enabling system is designed and
proven to be a flexible, "front-end" system, we are able to integrate it with a
wide range of computing platforms used throughout the financial services
industry in executing electronic commerce transactions. We believe that our
proprietary technology can be adapted to provide transaction-enabling services
in the financial services industry, including, but not limited to, investment
banking, insurance, and correspondent clearing operations.
Our principal executive office is located at 4500 Bohannon Drive, Menlo
Park, California 94025. Our telephone number is (650) 331-6000. The address of
our web site is www.etrade.com. The information on our web site does not form
part of this prospectus. References to E*TRADE, "we", "us" and "our" in this
prospectus refer to E*TRADE Group, Inc. and its subsidiaries unless the context
requires otherwise.
MARKET FOR OUR COMMON EQUITY
The following table shows the high and low sale prices of our common stock
as reported by the Nasdaq National Market or the New York Stock Exchange, as
applicable (we relisted from the Nasdaq National Market to the New York Stock
Exchange in January 2001), for the periods indicated.
High Low
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Fiscal 1999:
First Quarter.............................................. $ 16.25 $ 2.50
Second Quarter............................................. $ 33.22 $12.74
Third Quarter.............................................. $ 72.25 $29.38
Fourth Quarter............................................. $ 42.63 $21.31
Fiscal 2000:
First Quarter.............................................. $ 40.00 $21.63
Second Quarter............................................. $ 34.25 $19.19
Third Quarter.............................................. $ 31.19 $13.13
Fourth Quarter............................................. $ 20.19 $13.19
Quarter ended December 31, 2000............................ $ 16.50 $ 6.66
Quarter ended March 31, 2001............................... $ 15.38 $ 6.35
PLAN OF DISTRIBUTION
We are registering for resale all 78,928 shares of common stock, par value
of $0.01 per share, on behalf of current stockholders, a list of whom is set
forth in this prospectus under "Selling Stockholders," or pledgees, donees,
transferees or other successors in interest that receive those shares as a
gift, partnership distribution or other non-sale related transfer, referred to
in this prospectus as the selling stockholders. We will receive no proceeds
from this offering. All of the shares were originally issued by us in
connection with our acquisition of all of the outstanding shares of E*TRADE
Nordic AB, a Swedish corporation.
The selling stockholders may distribute shares of common stock from time
to time as follows (if at all):
o to or through underwriters, brokers or dealers;
o directly to one or more other purchasers;
o through agents on a best-efforts basis; or
o otherwise through a combination of any such methods of sale.
3
If a selling stockholder sells shares of common stock through
underwriters, dealers, brokers or agents, those underwriters, dealers, brokers
or agents may receive compensation in the form of discounts, concessions or
commissions from the selling stockholder and/or the purchasers of the notes or
shares of common stock.
The shares of common stock may be sold from time to time:
o in one or more transactions at a fixed price or prices, which may be
changed;
o at market prices prevailing at the time of sale;
o at prices related to such prevailing market prices;
o at varying prices determined at the time of sale; or
o at negotiated prices.
These sales may be effected in transactions:
o on any national securities exchange or quotation service on which our
common stock may be listed or quoted at the time of sale;
o in the over-the-counter market;
o in block transactions in which the broker or dealer so engaged will
attempt to sell the shares of common stock as agent but may position
and resell a portion of the block as principal to facilitate the
transaction, or in crosses, in which the same broker acts as an agent
on both sides of the trade;
o in transactions otherwise than on such exchanges or services or in
the over-the-counter market;
o through the writing of options; or
o through other types of transactions.
In connection with sales of the common stock or otherwise, the selling
stockholder may enter into hedging transactions with brokers-dealers or others,
who may in turn engage in short sales of the common stock in the course of
hedging the positions they assume. The selling stockholder may pledge or grant
a security interest in some or all of the common stock and, if it defaults in
the performance of its secured obligations, the pledgees or secured parties may
offer and sell the common stock from time to time pursuant to this prospectus.
The selling stockholder also may transfer and donate shares of common stock in
other circumstances in which case the transferees, donees, pledgees or other
successors in interest will be the selling stockholders for purposes of this
prospectus. The selling stockholder may sell short the common stock and may
deliver this prospectus in connection with such short sales and use the shares
of common stock covered by the prospectus to cover such short sales. In
addition, any shares of common stock covered by this prospectus that qualify
for sale pursuant to Rule 144 or any other available exemption from
registration under the Securities Act may be sold under Rule 144 or another
available exemption.
At the time a particular offering of shares of common stock is made, a
prospectus supplement, if required, will be distributed which will set forth
the aggregate amount of shares of common stock being offered and the terms of
the offering, including the name or names of any underwriters, dealers, brokers
or agents, if any, and any discounts, commissions or concessions allowed or
reallowed to be paid to brokers or dealers. There are currently no agreements,
arrangements or understandings with respect to the sale of any of the shares
offered hereby.
Selling stockholders and any underwriters, dealers, brokers or agents who
participate in the distribution of the shares of common stock may be deemed to
be "underwriters" within the meaning of the Securities Act and any profits on
the sale of the shares of common stock by them and any discounts commissions or
concessions received by any such underwriters, dealers, brokers or agents may
be deemed to be underwriting discounts and commissions under the Securities
Act.
4
The selling stockholders and any other person participating in a
distribution of the shares of common stock will be subject to applicable
provisions of the Exchange Act of 1934, as amended, referred to in this
prospectus as the Exchange Act, and the rules and regulations under the
Exchange Act, including, without limitation, Regulation M which may limit the
timing of purchases and sales of shares of common stock by the selling
stockholders and any other person participating in the distribution.
Furthermore, Regulation M under the Exchange Act may restrict the ability of
any person engaged in a distribution of the shares of common stock to engage in
market-making activities with respect to the shares of common stock being
distributed for a period of up to five business days prior to the commencement
of the distribution. All of the foregoing may affect the marketability of the
shares of common stock and the ability of any person or entity to engage in
market-making activities with respect to the shares of common stock.
The selling stockholders will be responsible for any fees, disbursements
and expenses of any counsel for the selling stockholders. All other expenses
incurred in connection with the registration of the shares, including printer's
and accounting fees and the fees, disbursements and expenses of our counsel
will be borne by us. Commissions and discounts, if any, attributable to the
sales of the shares will be borne by the selling stockholders. The selling
stockholders may agree to indemnify any broker-dealer or agent that
participates in transactions involving sales of the shares against certain
liabilities, including liabilities arising under the Securities Act. We will
indemnify the selling stockholders against claims arising out of any untrue
statement of a material fact contained in the registration statement of which
this prospectus constitutes a part or any omission to state therein a material
fact necessary in order to make the statement made therein not materially
misleading.
We have undertaken to keep the registration statement of which this
prospectus constitutes a part effective until the earlier of the disposition of
the securities offered by this prospectus or March 16, 2002. After this period,
if we choose not to maintain the effectiveness of the registration statement of
which this prospectus constitutes a part, the securities offered hereby may not
be sold, pledged, transferred or assigned, except in a transaction which is
exempt under the provisions of the Securities Act.
SELLING STOCKHOLDERS
None of the selling stockholders has had a material relationship with us
within the past three years other than as a result of the ownership of the
shares or other of our securities. No selling stockholder beneficially owns 1%
or more of the outstanding shares of our common stock. The following table sets
forth the number of shares of common stock owned by the selling stockholders,
and the number of shares of common stock that will be owned assuming the sale
of all the shares offered hereby:
Name of Selling Number of Shares Number of Shares Registered Number of Shares Owned
Stockholder Beneficially Owned for Sale Hereby After Offering
--------------------- ------------------ --------------------------- -----------------------
Katarina Baalack 3,506 2,006 1,500
Viveka Blom 12,366 10,033 2,333
Peter Edholm 13,376 6,688 6,688
John Lundblad 23,224 16,724 6,500
Mattias Miksche 63,077 3,010 60,067
Linda Nuhma 2,006 1,003 1,003
Johan Ostlund 2,012 2,006 6
Manne Skoog 41,994 16,724 25,270
Lisa Strom 1,336 668 668
Per Sunbrandt 5,990 3,345 2,645
Johan Tidestad 3,345 3,345 -
5
Name of Selling Number of Shares Number of Shares Registered Number of Shares Owned
Stockholder Beneficially Owned for Sale Hereby After Offering
--------------------- ------------------ --------------------------- -----------------------
Robert Villingstam 6,688 6,688 -
Ulrika Wendt 15,667 6,688 8,979
------- ------ -------
Total 194,587 78,928 115,659
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AVAILABLE INFORMATION
We are subject to the informational requirements of the Exchange Act, and
in accordance with the Exchange Act file reports, proxy statements, information
statements and other information with the Securities and Exchange Commission,
referred to in this prospectus as the Commission. Reports, proxy statements and
other information filed by us may be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and you may obtain information about the operation of
these public reference facilities by calling the Commission at 1-800-SEC-0330.
The Commission maintains an Internet web site that contains reports, proxy and
information statements and other information regarding registrants that file
electronically with the Commission. The address of the Commission's web site is
http://www.sec.gov.
We have filed with the Commission a registration statement on Form S-3
under the Securities Act with respect to the shares of common stock offered by
this prospectus, referred to in this prospectus, together with all amendments
and exhibits thereto, as the registration statement. This prospectus does not
contain all of the information set forth in the registration statement, certain
parts of which are omitted in accordance with the rules and regulations of the
Commission. For further information regarding us and the shares of common stock
offered by this prospectus, reference is hereby made to the registration
statement and to the exhibits and schedules filed with the registration
statement. The registration statement, including the exhibits and schedules
filed with the registration statement, may be inspected at the public reference
facilities maintained by the Commission at Room 450, Fifth Street, N.W.,
Washington, D.C. 20549 and copies of all or any part may be obtained from that
office upon payment of the prescribed fees.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission (File No. 1-11921)
pursuant to the Exchange Act are incorporated herein by reference:
1. Our Annual Report on Form 10-K for the year ended September 30, 2000,
filed on November 9, 2000, as amended;
2. Our Amendment No. 1 on Form 10-Q/A for the period ended June 30, 2000;
3. Our Transition Report on Form 10-QT for the period ended December 31,
2000;
4. Our Quarterly Report on Form 10-Q for the period ended March 31, 2001;
5. Current Report on Form 8-K, filed on January 19, 2001, as amended, and
our Current Report on Form 8-K, filed on January 23, 2001;
6. Our Current Report on Form 8-K, filed on January 25, 2001;
7. The description of our 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 such description; and
8. All reports and other documents filed by us pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
prospectus and prior to the termination of the offering.
6
Any statement contained in a document incorporated by reference in this
prospectus shall be deemed to be incorporated by reference in this prospectus
and to be part of this prospectus from the date of filing of such document. Any
statement modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this prospectus. We will provide upon
written or oral request without charge to each person to whom this prospectus
is delivered a copy of any or all of the documents which are incorporated in
this prospectus by reference (other than exhibits to those documents unless
those exhibits are specifically incorporated by reference into the documents
that this prospectus incorporates). Written requests for copies should be
directed to E*TRADE Group, Inc., Investor Relations, 4500 Bohannon Drive, Menlo
Park, California 94025. Our telephone number is (650) 331-6000.
LEGAL MATTERS
The validity of the securities offered by this prospectus will be passed
upon for us by Davis Polk & Wardwell, Menlo Park, California.
EXPERTS
The consolidated financial statements of E*TRADE Group, Inc. and its
consolidated subsidiaries (the "Company"), except for E*TRADE Financial
Corporation and subsidiaries, as of September 30, 2000 and 1999, and for each
of the three years in the period ended September 30, 2000, incorporated by
reference in this prospectus have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report which is incorporated herein by
reference and have been so incorporated by reference in reliance upon the
report of such firm given upon their authority as experts in accounting and
auditing.
The consolidated financial statements of E*TRADE Financial Corporation and
its subsidiaries (consolidated with those of the Company) not presented
separately herein have been audited by Arthur Andersen LLP, independent public
accountants, as stated in their report incorporated herein by reference. Such
consolidated financial statements of the Company and its consolidated
subsidiaries are incorporated herein by reference in reliance upon the report
of such firm given upon their authority as experts in accounting and auditing.
7
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by E*TRADE Group in connection
with the sale of common stock being registered. All amounts are estimates
except the SEC registration fee.
SEC Registration Fee $ 149
Legal Fees and Expenses 28,500
Accounting Fees and Expenses 30,000
Transfer Agent Fees 5,000
Miscellaneous 5,000
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Total $68,649
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Item 15. 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.
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.
II-1
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 16. Exhibits
5.1 Opinion of Davis Polk & Wardwell.*
23.1 Consent of Deloitte & Touche LLP, independent auditors.
23.2 Consent of Arthur Andersen LLP, independent public accountants.
23.3 Consent of Davis Polk & Wardwell.*
24.1 Power of Attorney.*
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*Previously filed with the initial filing of this Registration Statement.
Item 17. 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
II-2
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.
II-3
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-3, and has duly caused this
Pre-Effective Amendment No. 2 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Menlo
Park, State of California on May 16, 2001.
E*TRADE GROUP, INC.
By: /s/ Leonard C. Purkis
----------------------------------
Leonard C. Purkis
Chief Financial Officer (Principal
Financial and Accounting Officer)
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Pre-Effective Amendment No. 2 to the Registration Statement has been
signed below by the following persons in the capacities and on the dates
indicated.
Signature Title Date
--------- ----- ----
*
---------------------------
Christos M. Cotsakos Chairman of the Board and Chief
Executive Officer (Principal
Executive Officer)
/s/ Leonard C. Purkis
---------------------------
Leonard C. Purkis Chief Financial Officer (Principal May 16, 2001
Financial and Accounting Officer)
*
---------------------------
William A. Porter Chairman Emeritus
*
---------------------------
Peter Chernin Director
*
---------------------------
Ronald D. Fisher Director
*
---------------------------
William E. Ford Director
II-4
*
---------------------------
David C. Hayden Director
*
---------------------------
George Hayter Director
*
---------------------------
Lewis E. Randall Director
*
---------------------------
Lester C. Thurow Director
* hereby signs this Pre-Effective Amendment No. 2 to the Registration Statement
on Form S-3 on May 16, 2001 on behalf of each of the indicated persons for whom
she is attorney-in-fact pursuant to a power of attorney previously filed.
By: /s/ Brigitte VanBaelen
----------------------------------
Name: Brigitte VanBaelen
Title: Chief Community Development
Officer
II-5
Index to Exhibits
Exhibit
Number Exhibit Title
------- -------------
5.1 Opinion of Davis Polk & Wardwell.*
23.1 Consent of Deloitte & Touche LLP, independent auditors.
23.2 Consent of Arthur Andersen LLP, independent public accountants.
23.3 Consent of Davis Polk & Wardwell.*
24.1 Power of Attorney.*
----------
*Previously filed with the initial filing of this Registration Statement.