As filed with the Securities and Exchange Commission on June 13, 2001
Registration No. 333-57158
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 3 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.
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 JUNE 13, 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 June 12, 2001, the closing price for the common stock was $7.10.
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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, provide 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 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
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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
Quarter ended June 30, 2001 (through June 12)................ $ 10.20 $ 5.32
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
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o otherwise through a combination of any such methods of sale.
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
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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.
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 Number of Shares Owned
Stockholder Beneficially Owned Registered 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
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Name of Selling Number of Shares Number of Shares Number of Shares Owned
Stockholder Beneficially Owned Registered for Sale Hereby After Offering
------------------ ------------------- -------------------------- ------------------------
Per Sunbrandt 5,990 3,345 2,645
Johan Tidestad 3,345 3,345 -
Robert Villingstam 6,688 6,688 -
Ulrika Wendt 15,667 6,688 8,979
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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. Our Current Report on Form 8-K, filed on January 19, 2001, as
amended;
6. Our Current Report on Form 8-K, filed on January 25, 2001;
7. Our Current Report on Form 8-K, filed on May 21, 2001;
8. Our Current Report on Form 8-K, filed on May 22, 2001;
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9. 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
10. 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.
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.
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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 45,000
Accounting Fees and Expenses 30,000
Transfer Agent Fees 5,000
Miscellaneous 5,000
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Total $85,149
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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
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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.
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. 3 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 June 12, 2001.
E*TRADE GROUP, INC.
By: /s/ Leonard C. Purkis
-----------------------
Leonard C. Purkis
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Pre-Effective Amendment No. 3 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 Financial and June 12, 2001
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. 3 to the Registration
Statement on Form S-3 on June 12, 2001 on behalf of each of the indicated
persons for whom he is attorney-in-fact pursuant to a power of attorney
previously filed.
By: /s/ Leonard C. Purkis
---------------------
Name: Leonard C. Purkis
Title: Chief Financial 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.