<PAGE>
As filed with the Securities and Exchange Commission on August 13, 1999.
REGISTRATION NO. 333-_____
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------
WIT CAPITAL GROUP, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 13-3900397
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
-------------
826 BROADWAY, SIXTH FLOOR
NEW YORK, NEW YORK 10003
(212) 253-4400
(Address, including zip code, of Principal Executive Offices)
--------------
STOCK INCENTIVE PLAN
WRITTEN COMPENSATION AGREEMENTS
WITH CERTAIN EMPLOYEES
(Full title of the plan)
-------------
ROBERT H. LESSIN
RONALD READMOND
CO-CHIEF EXECUTIVE OFFICERS
WIT CAPITAL GROUP, INC.
826 BROADWAY, SIXTH FLOOR
NEW YORK, NEW YORK 10003
(212) 253-4400
(Name, address, and telephone number,
including area code, of agent for service)
-------------
COPIES TO:
STEPHEN P. FARRELL, ESQ.
MORGAN, LEWIS & BOCKIUS LLP
101 PARK AVENUE
NEW YORK, NEW YORK 10178
(212) 309-6050
FAX: (212) 309-6273
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED
PROPOSED MAXIMUM
NUMBER OF MAXIMUM AGGREGATE
TITLE OF SECURITIES TO SHARES TO BE OFFERING OFFERING AMOUNT OF
BE REGISTERED (1) REGISTERED(2) PRICE PER SHARE PRICE REGISTRATION FEE
<S> <C> <C> <C> <C>
Class C Common Stock, par value $0.01 per share, 6,780,117 $ 1.43(4) $ 9,695,567.31
subject to options granted under the Stock 6,384,438 $ 2.14(4) $ 13,662,697.32
Incentive Plan or issued upon exercise of options 82,072 $ 3.57(4) $ 292,997.04
granted under the Stock Incentive Plan (3) 348,700 $ 9.00(4) $ 3,138,300.00
3,500 $10.69(4) $ 37,415.00
4,500 $11.19(4) $ 50,355.00
2,000 $12.25(4) $ 24,500.00
3,500 $12.38(4) $ 43,330.00
3,500 $13.25(4) $ 46,375.00
80,000 $17.13(4) $ 1,370,400.00
84,000 $18.13(4) $ 1,522,920.00
1,000 $21.25(4) $ 21,250.00
15,500 $21.75(4) $ 337,125.00
7,000 $23.44(4) $ 164,080.00
22,950 $27.06(4) $ 621,027.00
1,000 $27.25(4) $ 27,250.00
1,000 $29.25(4) $ 29,250.00
7,000 $31.38(4) $ 219,660.00
6,500 $31.50(4) $ 204,750.00
40,000 $32.25(4) $ 1,290,000.00
3,500 $32.75(4) $ 114,625.00
3,500 $34.88(4) $ 122,080.00
Class C Common Stock, par value $.01 per share,
reserved for the future grant of options under
the Stock Incentive Plan (3) 3,614,723 $18.50(5) $ 66,872,375.50
Class C Common Stock, par value $.01 per share,
issued under written compensation agreements (3) 5,856,666 $18.50(5) $108,348,321.00
---------- ---------------
---------- ---------------
Class C Common Stock TOTAL 23,356,666 $208,256,650.20 $57,895.35
---------- ---------------
Common Stock par value $.01 per share (6) 23,356,666 (6) $208,256,650.20 (6)
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</TABLE>
<PAGE>
(1) The securities to be registered include the associated rights to purchase
preferred stock.
(2) Pursuant to Rule 416(a), the number of shares being registered shall include
an indeterminate number of additional shares of Class C common stock or
common stock which may become issuable as a result of stock splits, stock
dividends, or similar transactions in accordance with anti-dilution
provisions of the Stock Incentive Plan and any written compensation
contracts.
(3) Prior to December 7, 1999, any person who exercises a stock option granted
pursuant to the Stock Incentive Plan will receive shares of our Class C
common stock which is not transferable until it automatically converts into
our common stock on December 7, 1999. Anyone who exercises a stock option on
or after December 7, 1999 will receive shares of our common stock.
(4) Calculated pursuant to Rule 457(h) for the purpose of calculating the
registration fee, based upon the price at which outstanding options may be
exercised.
(5) Calculated pursuant to Rule 457(c), (h) and (i), based upon the average of
the high and low prices for the common stock as reported on the Nasdaq
National Market for August 10, 1999 and based on the automatic conversion of
Class C common stock into common stock on December 7, 1999.
(6) All outstanding shares of Class C common stock will convert into shares
of common stock, par value $.01 per share, automatically and without
payment of additional consideration on December 7, 1999. Similarly,
options exercisable for shares of Class C common stock will become
options exercisable for shares of common stock on and after that date. The
offering prices per share of common stock are identical to those for the
shares of Class C common stock being registered, as demonstrated above.
Accordingly, no registration fee for these securities has been paid in
accordance with Rule 457(i).
2
<PAGE>
EXPLANATORY NOTE
This registration statement includes a form of prospectus to be used by
(i) certain individuals, who may be deemed to be affiliates, and other current
or former employees of Wit Capital Group, Inc. in connection with the resale of
shares of common stock to be received by such individuals upon conversion of the
shares of Class C common stock to be issued upon exercise of options granted
under the Stock Incentive Plan, which shares are being registered pursuant to
this registration statement, and (ii) certain individuals who previously
acquired Class C common stock (which will automatically convert into common
stock on December 7, 1999) upon exercise of options granted under the Stock
Incentive Plan or pursuant to written compensation agreements with Wit Capital
Group, Inc. or Wit Capital Corporation.
3
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. PLAN INFORMATION.*
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this registration statement in accordance
with Rule 428 under the Securities Act of 1933, as amended, and the
Explanatory Note to Part I of this Form S-8.
4
<PAGE>
Prospectus
12,001,320 Shares
----------
WIT CAPITAL GROUP, INC.
Common Stock
------------------
We are an Internet investment banking and brokerage firm. This
prospectus relates to the resale of our common stock by our officers and
directors and others who may be in a control relationship with us and by certain
of our employees. The common stock which may be sold has previously been
acquired, or will be acquired, by these individuals under written compensation
contracts or upon exercise of options granted to them under our Stock Incentive
Plan. The Stock Incentive Plan amended and restated the Stock Option and
Restricted Stock Purchase Plan, effective March 1, 1999.
We will not receive any of the proceeds from these sales. We will pay
all expenses in connection with this offering, other than commissions and
discounts of underwriters, dealers or agents.
Our common stock is quoted on the Nasdaq National Market (Symbol:
WITC). On August 11, 1999, the closing price of the common stock was $19.38
per share.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is August 13, 1999
<PAGE>
We have not, nor has any individual named in this prospectus,
authorized any person to give any information or to make any representation
other than those contained in, or incorporated by reference into, this
prospectus. This prospectus does not constitute an offer to sell or solicitation
of an offer to buy.
We have filed a registration statement on Form S-8 in respect of the
common stock offered by this prospectus with the Securities and Exchange
Commission under the Securities Act. This prospectus does not contain all of the
information contained in the registration statement. You should read this entire
prospectus carefully as well as the registration statement for additional
information.
WHERE YOU CAN FIND MORE INFORMATION
We must file annual, quarterly and special reports, proxy statements
and other information with the SEC. You may read and copy any documents we file
at the SEC's public reference rooms in Washington, D.C., New York, N.Y. and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms. Our SEC filings are also available to the public
from the SEC's web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" information into this
prospectus, which means that we can disclose important information to you by
referring you to another document filed separately with the SEC. The information
incorporated by reference is considered to be part of this prospectus.
Information in this prospectus may update documents previously filed with the
SEC, and later information that we file with the SEC will automatically update
this prospectus. We incorporate by reference the documents listed below and any
future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 prior to the termination of the offering:
- Our quarterly report on Form 10-Q for the period ended June 30,
1999 filed with the SEC on August 13, 1999;
- Our Registration Statement on Form S-1 (Registration No.
333-74619) filed with the SEC on March 18, 1999 and Amendments
Nos. 1 through 3 thereto, in which the terms of the common stock
are described;
- Our prospectus contained in the Registration Statement on Form S-1
(Registration No. 333-74619), filed pursuant to Rule 424(b) under
the Securities Act on June 4, 1999, for the offering of 7,600,000
shares of common stock; and
- Our Form 8-A filed with the SEC on June 1, 1999, including any
amendments or reports filed for the purpose of updating the
description of our common stock that is incorporated by reference
therein.
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
Wit Capital Group, Inc.
826 Broadway, Sixth Floor
New York, New York 10003
Attention: Secretary
212-253-4400
-----------------
Information on our website is not part of this prospectus.
2
<PAGE>
OUR BUSINESS
We are an Internet investment banking and brokerage firm that uses
electronic mail and the Web to offer and sell shares in public offerings to
individuals. We also produce and electronically disseminate investment research
to individual investors. Directly and through arrangements with twenty-two
discount brokerage firms, we expect to be able to offer and sell shares to a
substantial number of online individual investors. We also advise corporate
clients in connection with significant transactions like mergers and
acquisitions and assist them with the development of Internet strategies and
businesses and in raising funds from private sources. Our investment banking
activities focus on companies that principally use the Internet to conduct their
businesses and, more generally, on issuers seeking to market their stock
offerings to online individual investors. Beginning recently, we are focusing as
well on other rapidly growing sectors of the economy that are related to or
dependent on Internet technology.
We also provide online brokerage services and we are developing a
Web-based after-hours digital trading facility through which individual
investors will be able to trade Nasdaq and exchange listed securities directly
with each other. In addition, we intend to create and manage proprietary Angel
Funds(TM) primarily for high net worth individuals. Under our management, these
funds will make private investments in companies in the Internet sector and
other industries.
PROCEEDS
We will not receive any of the proceeds from the sale of the shares of
our common stock by the individuals named herein.
3
<PAGE>
SELLING STOCKHOLDERS
The following table identifies our executive officers and directors as
well as certain of our current and former employees, any of whom may use this
prospectus to sell our common stock. The shares listed below will not be
transferable until December 7, 1999. We do not know whether the individuals
listed below will sell any or all of their shares covered by this prospectus.
Assuming all such shares are sold by them, none of the individuals would own one
percent (1%) or more of our common stock.(1)
<TABLE>
<CAPTION>
AS OF AUGUST 11, 1999
---------------------
NUMBER OF SHARES
NUMBER OF SHARES COVERED BY THIS
OWNED(2) PROSPECTUS
---------------- ----------------
<S> <C> <C>
Susan J. Berkowitz
Senior vice president - marketing
(since 1998) 350,000 65,626(A)
Ronald O. Drake
Director of private equity
(since 1999) 120,000 8,750
Paul Ezekiel
Managing director - investment banking
(since 1999) 392,000 8,945(B)
William C. Feeley
Director of capital markets
(since 1997) 350,000 157,500(C)
Lloyd H. Feller
Senior vice president and
co-general counsel
(since 1999) 595,000 28,438(D)
Joseph H. Flom
Special advisory board member
(since 1998) 151,666 51,041(E)
Charles Hall
Managing director - investment banking
(since 1999) 525,000 17,258(F)
</TABLE>
4
<PAGE>
<TABLE>
<CAPTION>
AS OF AUGUST 11, 1999
---------------------
NUMBER OF SHARES
NUMBER OF SHARES COVERED BY THIS
OWNED(2) PROSPECTUS
---------------- ----------------
<S> <C> <C>
Everett F. Lang
President - digital trading facility
(since 1999) 367,000 22,969(G)
Robert H. Lessin
Co-chief executive officer,
chairman and Director
(since 1998) 4,641,000 2,459,725(3)(H)
George M. Lieberman
Senior vice president and
chief information officer
(since 1999) 280,000 35,001(I)
Mark Loehr
Director of investment banking
(since 1999) 875,000 54,688(J)
Robert C. Mendelson
Senior vice president and
co-general counsel
(since 1999) 595,000 28,438(K)
Christopher Mulligan
Managing director - investment banking
(since 1999) 525,000 17,258(L)
Elliot S. Prince
Managing director - research
(since 1999) 420,000 10,695(M)
Ronald Readmond
Co-chief executive officer,
vice chairman, president
and Director
(since 1998) 1,932,000 703,500(4)(N)
</TABLE>
5
<PAGE>
<TABLE>
<CAPTION>
AS OF AUGUST 11, 1999
---------------------
NUMBER OF SHARES
NUMBER OF SHARES COVERED BY THIS
OWNED(2) PROSPECTUS
---------------- ----------------
<S> <C> <C>
M. Bernard Siegel
Chief financial officer
(since 1998) 280,000 52,500(O)
George Tashie 70,000 10,938
Vice president - sales
(since 1998)
</TABLE>
6
<PAGE>
<TABLE>
<CAPTION>
AS OF AUGUST 11, 1999
---------------------
NUMBER OF SHARES NUMBER OF SHARES COVERED
OWNED(2) BY THIS PROSPECTUS
---------------- ------------------------
<S> <C> <C>
OTHER EMPLOYEES AND
FORMER EMPLOYEES
Michael Benedek 55,000 8,750
David Bisceglia 35,000 2,188
Richard R. Brescia 7,000 437
Jeffrey Chapman 52,500 3,282
Ronald Conway(5) 70,000 70,000
Sanjay Das 31,413 3,413
John Devenney(5) 583 583
Miriam Eaves(5) 12,600 12,600
Matthew Fitch 24,394 438
Malik Franklin 37,100 5,569
Sean Gormley(5) 73,500 14,000
Kenneth W. Graham 7,000 437
Michele Hudak 24,500 6,562
Tenzing Jangtey 3,500 219
Richard Lerner 52,500 4,375
Jose Leston 7,000 437
Joanne Medvecky 35,000 5,833
Elizabeth Morgan 7,000 437
</TABLE>
7
<PAGE>
<TABLE>
<CAPTION>
AS OF AUGUST 11, 1999
---------------------
NUMBER OF SHARES NUMBER OF SHARES COVERED
OWNED(2) BY THIS PROSPECTUS
---------------- ------------------------
<S> <C> <C>
Eve Oliva 7,000 437
Julia A. Oliver(5) 210,000 70,000
Barry Osherow 69,500 50,385
Jane Portnoy(5) 3,500 3,500
Gene Robbins 7,000 438
Saul Rosenthal 60,000 5,833
Howard Seibel(5) 5,950 5,950
Cornelius Shields IV 35,000 5,833
Francine Sommer 72,917 72,917
William Tkacs(5) 142,188 142,188
Nancy Hernandez Toste 35,000 2,188
Bryan Vaniman 54,600 4,633
Diane Vivolo(5) 875 875
Peter Weinberg 66,500 24,500
Jason Wright 252,000 191,770
</TABLE>
(1) This prospectus also covers 40,000 shares issued to each of Harry Silver
and Elizabeth Schimel, both of whom are our officers, on August 4, 1999 and
August 9, 1999, respectively. Both Mr. Silver and Ms. Schimel were issued
these shares under our Stock Incentive Plan. All of Mr. Silver's 40,000
shares and all of Ms. Schimel's 40,000 shares are subject to repurchase by us
until they vest. We will supplement this prospectus as necessary as these
shares vest and are no longer subject to this repurchase right.
(2) Based on ownership as of August 11, 1999. Includes shares issuable to the
named individuals upon exercise of currently outstanding options under the Stock
Incentive Plan, whether or not presently exercisable, and shares issued to them
under written compensation agreements.
(3) Mr. Lessin's ability to sell his shares is restricted by contract. Under the
relevant contractual provision, he cannot sell, in any calendar year, more than
the sum of half of the total number of shares he is permitted to sell under Rule
144 under the Securities Act, plus a percentage of any share amount sold by
Capital Z Financial Services Fund II, L.P. in that year, plus any allowable
transfer amount carried over from a previous year. If this restriction is waived
at any time, Mr. Lessin may use this prospectus to sell these shares.
(4) Mr. Readmond's ability to sell his shares is restricted by contract. Under
the relevant contractual provision, he cannot sell, in any calendar year, more
than the sum of half of the total number of shares he is permitted to sell under
Rule 144 under the Securities Act, plus a percentage of any share amount sold by
Capital Z Financial Services Fund II, L.P. in that year, plus any allowable
transfer amount carried over from a previous year. If this restriction is waived
at any time, Mr. Readmond may use this prospectus to sell these shares.
(5) No longer employed by us.
8
<PAGE>
(A) This amount consists of shares owned by Ms. Berkowitz, including 16,042
shares acquired upon exercise of options on July 2, 1999. In addition, Ms.
Berkowitz also owns an additional 46,666 shares still subject to repurchase
by us. We will supplement this prospectus as necessary as these shares vest
and are no longer subject to this repurchase right.
(B) Mr. Ezekiel also owns an additional 171,890 shares still subject to
repurchase by us. We will supplement this prospectus as necessary as these
shares vest and are no longer subject to this repurchase right.
(C) Mr. Feeley also owns an additional 40,833 shares still subject to
repurchase by us. We will supplement this prospectus as necessary as these
shares vest and are no longer subject to this repurchase right.
(D) Mr. Feller also owns an additional 426,562 shares still subject to
repurchase by us. We will supplement this prospectus as necessary as these
shares vest and are no longer subject to this repurchase right.
(E) This amount consists of 46,666 shares owned by Mr. Flom and 4,375 shares
subject to presently exercisable options.
(F) Mr. Hall also owns an additional 288,264 shares still subject to
repurchase by us. We will supplement this prospectus as necessary as these
shares vest and are no longer subject to this repurchase right.
(G) This amount consists of 7,413 shares owned by Mr. Lang and 15,556 shares
subject to exercisable options. In addition, Mr. Lang also owns an additional
150,453 shares still subject to repurchase by us. We will supplement this
prospectus as necessary as these shares vest and are no longer subject to
this repurchase right.
(H) Mr. Lessin also owns an additional 1,565,275 shares still subject to
repurchase by us. We will supplement this prospectus as necessary as these
shares vest and are no longer subject to this repurchase right.
(I) This amount consists of 25,279 shares owned by Mr. Lieberman and 9,722
shares subject to exercisable options. Mr. Lieberman also owns an additional
85,556 shares still subject to repurchase by us. We will supplement this
prospectus as necessary as these shares vest and are no longer subject to
this repurchase right.
(J) Mr. Loehr also owns an additional 820,312 shares still subject to
repurchase by us. We will supplement this prospectus as necessary as these
shares vest and are no longer subject to this repurchase right.
(K) Mr. Mendelson also owns an additional 426,562 shares still subject to
repurchase by us. We will supplement this prospectus as necessary as these
shares vest and are no longer subject to this repurchase right.
(L) Mr. Mulligan also owns an additional 288,264 shares still subject to
repurchase by us. We will supplement this prospectus as necessary as these
shares vest and are no longer subject to this repurchase right.
(M) Mr. Prince also owns an additional 196,389 shares still subject to
repurchase by us. We will supplement this prospectus as necessary as these
shares vest and are no longer subject to this repurchase right.
9
<PAGE>
(N) This amount consists of 598,500 shares owned by Mr. Readmond and 105,000
shares subject to exercisable options. In addition, Mr. Readmond also owns an
additional 962,500 shares still subject to repurchase by us. We will
supplement this prospectus as necessary as these shares vest and are no
longer subject to this repurchase right.
(O) This amount consists of 35,000 shares owned by Mr. Siegel and 17,500
shares subject to exercisable options.
10
<PAGE>
PLAN OF DISTRIBUTION
The shares of our common stock covered by this prospectus will be sold,
if at all, by the individuals named above, and not by us. The shares may be sold
from time to time as follows:
- on the Nasdaq National Market, in the over-the-counter market, or
on a national securities exchange (any of which may involve
crosses and block transactions);
- to purchasers directly;
- in ordinary brokerage transactions in which the broker solicits
purchasers;
- through underwriters, dealers and agents who may receive
compensation in the form of underwriting discounts, concessions or
commissions from a seller and/or the purchasers of the shares for
whom they may act as agent;
- through the writing of options on the shares;
- through the pledge of shares as security for any loan or
obligation, including pledges to brokers or dealers who may from
time to time effect distributions of the shares or other interests
in the shares;
- through purchases by a broker or dealer as principal and resale by
such broker or dealer for its own account pursuant to this
prospectus;
- through block trades in which the broker or dealer so engaged will
attempt to sell the shares as agent or as riskless principal but
may position and resell a portion of the block as principal to
facilitate the transaction;
- through exchange distributions in accordance with the rules of the
applicable exchange;
- in any combination of one or more of these methods; or
- in any other lawful manner.
These sales may be made at prices related to the then current market
price or otherwise at prices and on terms then prevailing, or in privately
negotiated transactions. In effecting sales, a broker or dealer engaged by an
individual using this prospectus to sell common stock may arrange for other
brokers or dealers to participate in the sale. In addition, any shares covered
by this prospectus which qualify for sale pursuant to Section 4(1) of the
Securities Act or Rules 144 or 701(g) under the Securities Act may be sold
thereunder rather than by this prospectus.
The number of shares to be reoffered or resold by means of this
prospectus by each individual named above, and any other individual with whom he
or she is cooperating for the purpose of selling our common stock, may not
exceed the greater of, during any three-month period, (1) 1% of all outstanding
shares of our common stock, (2) the average weekly reported volume of trading in
our common stock on the Nasdaq National Market during the four weeks preceding,
the date of the receipt of the order to execute the transaction by the broker or
the date of execution of the transaction directly with a market maker, or (3)
the average weekly volume of trading in our common stock reported through the
11
<PAGE>
consolidated transaction reporting system contemplated by Rule 11Aa3-1 under the
Exchange Act during the four-week period specified in clause (ii) above.
In connection with distributions of the shares or otherwise, an
individual using this prospectus to sell common stock may enter into hedging
transactions with a broker-dealer. In connection with such a transaction, a
broker-dealer may engage in short sales of shares registered hereunder in the
course of hedging the positions they assume with the seller. The seller may also
sell shares short and deliver the shares to close out such short positions. The
seller may also enter into an option or other transaction with a broker-dealer
which requires the delivery to the broker-dealer of shares we have registered,
which the broker-dealer may resell by this prospectus.
A seller may pay a broker-dealer or an agent compensation in the form
of commissions, discounts or concessions. The broker-dealer and any other
participating broker-dealer may be deemed to be "underwriters" within the
meaning of the Securities Act in connection with such sales and any such
commission, discount or concession may be deemed to be underwriting discounts or
commissions under the Securities Act.
We may be required to file a supplemented prospectus in connection with
any activities involving a seller which may be deemed to be an "underwriting."
In that case, a supplement to this prospectus would contain (1) information as
to whether an underwriter selected by a seller, or any other broker-dealer, is
acting as principal or agent for the seller, (2) the compensation to be received
by an underwriter selected by a seller or any broker-dealer, for acting as
principal or agent for a seller and (3) the compensation to be received by any
other broker-dealer, in the event the compensation of such other broker-dealers
is in excess of usual and customary commissions. Any broker or dealer
participating in any distribution of the shares may be required to deliver a
copy of this prospectus, including any prospectus supplement, to any individual
who purchases any shares from or through such a broker-dealer.
We have advised the people identified in this prospectus as potential
sellers of common stock that during any period when they may be engaged in a
distribution of the shares offered by this prospectus, they are required to
comply with Regulation M promulgated under the Exchange Act. With certain
exceptions, Regulation M precludes any seller, any affiliated purchaser and any
broker-dealer or other individual who participates in such a distribution from
bidding for or purchasing, or attempting to induce any individual to bid for or
purchase any security, that is the subject of the distribution until the entire
distribution is complete. Regulation M also prohibits any bids or purchases made
in order to stabilize the price of a security in connection with the
distribution of that security. All of these factors may affect the marketability
of our common stock.
The people identified in this prospectus as potential sellers of common
stock offer to sell all, some or none of the shares covered by this prospectus.
Because it is possible that a significant number of shares could be sold
simultaneously by means of this prospectus, such sales, or the possibility
thereof, may have an adverse effect on the market price of our common stock.
INDEMNIFICATION
Our Amended and Restated Certificate of Incorporation limits, to the
maximum extent permitted by law, the personal liability of our directors and
officers for monetary damages for breach of their fiduciary duties as directors
and officers, except in certain circumstances involving certain wrongful acts,
12
<PAGE>
such as a breach of the director's duty of loyalty or acts of omission which
involve intentional misconduct or a knowing violation of law.
Section 145 of the General Corporation Law of the State of Delaware, as
amended, permits a corporation, under specified circumstances, to indemnify its
directors, officers, employees or agents against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlements actually and reasonably
incurred by them in connection with any action, suit or proceeding brought by
third parties by reason of the fact that they were or are directors, officers,
employees or agents of the corporation, if such directors, officers, employees
or agents acted in good faith and in a manner they 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 reason to believe their conduct was
unlawful. In an action by or in the right of the corporation, indemnification
may be made only for expenses actually and reasonably incurred by directors,
officers, employees or agents in connection with the defense or settlement of an
action or suit, and only with respect to a matter as to which they shall have
acted in good faith and in a manner they reasonably believed to be in or not
opposed to the best interest of the corporation, except that no indemnification
shall be made if such individual shall have been adjudged liable to the
corporation, unless and only to the extent that the court in which the action or
suit was brought shall determine upon application that the defendant directors,
officers, employees or agents are fairly and reasonably entitled to indemnity
for such expenses despite such adjudication of liability.
Our By-Laws provide that we shall, to the fullest extent permitted by
law, indemnify our officers and directors for liabilities which they may incur
under the circumstances described in the preceding paragraph.
In addition, we have entered into indemnification agreements with our
directors, members of our special advisory board and certain of our officers.
Under these agreements, we agree to indemnify the individual to the fullest
extent permitted by law for any acts performed, or for failures to act, on our
behalf or on behalf of another individual or entity for which that person is
performing services at our request. We will not indemnify a person for any
breach of loyalty to us or to our stockholders, or if the individual does not
act in good faith or for acts involving intentional misconduct, or for acts or
omissions falling under Section 174 of the General Corporation Law of the State
of Delaware, as amended, or for any transaction from which the individual
derives an improper benefit. We agree to indemnify for expenses related to
indemnifiable events, and to pay for these expenses in advance. Our obligations
to indemnify and to provide advances for expenses are subject to a review
process with a reviewer to be determined by our Board of Directors. The rights
of directors, special advisory board members and officers under these agreements
will not exclude any rights to indemnification otherwise available to them under
law or under our Amended and Restated Certificate of Incorporation.
We have procured standard policies of insurance under which coverage is
provided (1) to our directors and officers against loss arising from claims made
by reason of breach of duty or other wrongful act and (2) to us with respect to
payments which may be made by us to such officers and directors pursuant to the
above indemnification provisions of our Amended and Restated Certificate of
Incorporation, the indemnification agreements with our directors and executive
officers or otherwise as a matter of law.
13
<PAGE>
VALIDITY OF COMMON STOCK
The validity of our common stock will be passed upon by Morgan, Lewis &
Bockius LLP, New York, New York.
EXPERTS
Our consolidated financial statements as of March 31, 1999, December
31, 1998 and 1997, and the related consolidated statements of operations,
changes in stockholders' equity and cash flows for the period ended March 31,
1999, the years ended December 31, 1998 and 1997 and for the period from March
27, 1996 (inception) to December 31, 1996, incorporated in this prospectus by
reference to our prospectus dated June 4, 1999 have been so incorporated in
reliance on the report of Arthur Andersen LLP, independent accountants, given on
the authority of this firm as experts in auditing and accounting.
14
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by us with the SEC are incorporated by
reference into this Registration Statement:
(a) Our quarterly report on Form 10-Q for the period ended June 30,
1999 filed with the SEC on August 13, 1999;
(b) Our Registration Statement on Form S-1 (Registration No. 333-74619)
filed with the SEC on March 18, 1999 and Amendments Nos. 1 through 3 thereto;
(c) Our Prospectus contained in the Registration Statement on Form S-1
(Registration No. 333-74619), filed pursuant to Rule 424(b) under the Securities
Act, on June 4, 1999, for the offering of 7,600,000 shares of common stock; and
(d) Our Form 8-A, filed on June 1, 1999, including any amendments or
reports filed for the purpose of updating the description of our common stock
that is incorporated by reference therein.
All reports and other documents subsequently filed by us pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents.
Any statement contained herein or in a document all or a portion of
which is incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. DESCRIPTION OF SECURITIES.
Our common stock is quoted on the Nasdaq National Market.
The holders of our common stock and Class C common stock are entitled
to one vote for each share on all matters voted upon by stockholders, including
the election of directors. The holders of our common stock and Class C common
stock are entitled to such dividends as may be declared in the discretion of our
Board of Directors out of funds legally available therefor, subject to the
preferential dividend rights of any shares of preferred stock. Upon liquidation,
holders of our common stock and Class C common stock are entitled to share
ratably in the remaining assets upon liquidation after payment or provision for
all liabilities and any preferential liquidation rights of any preferred stock.
The holders of our common stock and Class C common stock have no preemptive
rights to purchase shares of our stock. Shares of common stock and Class C
common stock are not subject to any redemption provisions and shares of common
stock are not convertible into any other securities. All outstanding
-II-1-
<PAGE>
shares of common stock and Class C common stock are fully paid and
non-assessable. Shares of Class C common stock are not transferable until
December 7, 1999 when they will automatically convert into common stock.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our Amended and Restated Certificate of Incorporation limits, to the
maximum extent permitted by law, the personal liability of our directors and
officers for monetary damages for breach of their fiduciary duties as directors
and officers, except in certain circumstances involving certain wrongful acts,
such as a breach of the director's duty of loyalty or acts of omission which
involve intentional misconduct or a knowing violation of law.
Section 145 of the General Corporation Law of the State of Delaware, as
amended, permits a corporation, under specified circumstances, to indemnify its
directors, officers, employees or agents against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlements actually and reasonably
incurred by them in connection with any action, suit or proceeding brought by
third parties by reason of the fact that they were or are directors, officers,
employees or agents of the corporation, if such directors, officers, employees
or agents acted in good faith and in a manner they 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 reason to believe their conduct was
unlawful. In an action by or in the right of the corporation, indemnification
may be made only for expenses actually and reasonably incurred by directors,
officers, employees or agents in connection with the defense or settlement of an
action or suit, and only with respect to a matter as to which they shall have
acted in good faith and in a manner they reasonably believed to be in or not
opposed to the best interest of the corporation, except that no indemnification
shall be made if such individual shall have been adjudged liable to the
corporation, unless and only to the extent that the court in which the action or
suit was brought shall determine upon application that the defendant directors,
officers, employees or agents are fairly and reasonably entitled to indemnity
for such expenses despite such adjudication of liability.
Our By-Laws provide that we shall, to the fullest extent permitted by
law, indemnify our officers and directors for liabilities which they may incur
under the circumstances described in the preceding paragraph.
In addition, we have entered into indemnification agreements with our
directors, members of our special advisory board and certain of our officers.
Under these agreements, we agree to indemnify the individual to the fullest
extent permitted by law for any acts performed, or for failures to act, on our
behalf or on behalf of another individual or entity for which that person is
performing services at our request. We will not indemnify a person for any
breach of loyalty to us or to our stockholders, or if the individual does not
act in good faith or for acts involving intentional misconduct, or for acts or
omissions falling under Section 174 of the General Corporation Law of the State
of Delaware, as amended, or for any transaction from which the individual
derives an improper benefit. We agree to indemnify for expenses related to
indemnifiable events, and to pay for these expenses in advance. Our obligations
to indemnify and to provide advances for expenses are subject to a review
process with a reviewer to be determined by our Board of Directors. The rights
of directors, special advisory board members and officers under these agreements
will not exclude any rights to indemnification otherwise available to them under
law or under our Amended and Restated Certificate of Incorporation.
-II-2-
<PAGE>
We have procured standard policies of insurance under which coverage is
provided (1) to our directors and officers against loss arising from claims made
by reason of breach of duty or other wrongful act and (2) to us with respect to
payments which may be made by us to such officers and directors pursuant to the
above indemnification provisions of our Amended and Restated Certificate of
Incorporation, the indemnification agreements with our directors and executive
officers or otherwise as a matter of law.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
The outstanding securities to be resold under this registration
statement were sold by Wit Capital Group, Inc. or Wit Capital Corporation in
transactions that were exempt from the registration requirements of the
Securities Act either (i) pursuant to Section 4(2) of the Securities Act, or
Regulation D promulgated thereunder, or (ii) with respect to issuances to
employees, directors and consultants, Rule 701, promulgated under Section 3(b)
of the Securities Act, as transactions by an issuer not involving a public
offering or transactions pursuant to compensatory benefit plans and contracts
relating to compensation as provided under Rule 701. The recipients of
securities in each of these transactions represented their intentions to acquire
the securities for investment only and not with a view to or for sale in
connection with any distribution thereof and appropriate legends were affixed to
the instruments representing such securities issued in such transactions. All
recipients either received adequate information about us or had adequate access,
through their relationships with us, to such information.
Item 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
------- -----------
<S> <C>
5.1 Opinion of Morgan, Lewis & Bockius LLP.
23.1 Consent of Arthur Andersen LLP.
23.3 Consent of Morgan, Lewis & Bockius LLP (included in Exhibit 5.1).
24 Powers of Attorney (included on pages II-5 and II-6 of this Registration
Statement).
</TABLE>
Item 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the Prospectus any facts or events arising
after the effective date of this Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in this Registration
Statement; and
-II-3-
<PAGE>
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the SEC 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.
-II-4-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on July 30, 1999.
WIT CAPITAL GROUP, INC.
By /s/ Robert H. Lessin
----------------------------------------------------
Robert H. Lessin
Chairman of the Board and Co-Chief Executive Officer
Each person whose signature appears below constitutes and appoints
Robert H. Lessin and Ronald Readmond, and each of them, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement and any and all other documents and instruments incidental thereto,
and to file the same, with all exhibits thereto, and all documents in connection
therewith, with the Securities and Exchange Commission and any other regulatory
authority, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following individuals in the
capacities and on the dates indicated.
/s/ Robert H. Lessin Co-Chief Executive Officer July 30, 1999
- ------------------------ and Director
Robert H. Lessin
/s/ Ronald Readmond Co-Chief Executive Officer July 30, 1999
- ------------------------ and Director
Ronald Readmond
/s/ Andrew D. Klein Director July 30, 1999
- ------------------------
Andrew D. Klein
/s/ John H. N. Fisher Director July 30, 1999
- ------------------------
John H. N. Fisher
/s/ Edward H. Fleischman Director July 30, 1999
- ------------------------
Edward H. Fleischman
-II-5-
<PAGE>
/s/ Steven M. Gluckstern Director July 30, 1999
- ------------------------
Steven M. Gluckstern
/s/ Joseph R. Hardiman Director July 30, 1999
- ------------------------
Joseph R. Hardiman
/s/ Gilbert C. Maurer Director July 30, 1999
- ------------------------
Gilbert C. Maurer
/s/ Adam Mizel Director July 30, 1999
- ------------------------
Adam Mizel
/s/ M. Bernard Siegel Chief Financial Officer July 30, 1999
- ------------------------
M. Bernard Siegel
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<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
------- -----------
<S> <C>
5.1 Opinion of Morgan, Lewis & Bockius LLP.
23.1 Consent of Arthur Andersen LLP.
23.3 Consent of Morgan, Lewis & Bockius LLP (included in Exhibit 5.1).
24 Powers of Attorney (included on pages II-5 and II-6 of this Registration
Statement).
</TABLE>
-II-7-
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF MORGAN, LEWIS & BOCKIUS LLP]
August 13, 1999
Wit Capital Group, Inc.
826 Broadway, Sixth Floor
New York, New York 10003
Re: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have acted as counsel to Wit Capital Group, Inc., a
Delaware corporation, in connection with the preparation and filing with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Act"), of a Registration Statement on Form S-8 (the "Registration
Statement"). The Registration Statement registers an aggregate of 23,356,666
shares, consisting of 13,372,959 shares (the "Plan Shares") which may be issued
and sold upon exercise of options previously granted under the Company's Stock
Incentive Plan (or the Company's prior Stock Option and Restricted Stock
Purchase Plan) or options granted hereafter under the Stock Incentive Plan, and
9,983,707 shares (the "Outstanding Shares") which were previously issued upon
exercise of options granted under the Stock Incentive Plan (or the Company's
prior Stock Option and Restricted Stock Purchase Plan) or under written
compensation contracts between the Company and certain of its employees.
In so acting, we have examined originals, or copies certified
or otherwise identified to our satisfaction, of the Registration Statement, the
Stock Incentive Plan, the Company's written compensation contracts with certain
of its employees and such other documents, records, certificates and other
instruments of the Company as in our judgment are necessary or appropriate for
purposes of this opinion.
Based on the foregoing, we are of the following opinion:
1. The Company is a corporation duly incorporated and validly existing
under the laws of the State of Delaware.
2. The Plan Shares that are to be issued upon the exercise of options
granted or to be granted under the Stock Incentive Plan have been duly
authorized and, when issued and paid for in accordance with the Stock
Incentive Plan, will be validly issued, fully-paid and non-assessable.
3. The Outstanding Shares have been duly and validly authorized and
issued and are fully-paid and non-assessable.
4. The shares of Common Stock, par value $.01 per share, to be issued
(i) on December 7, 1999, upon conversion of the then outstanding shares
of Class C Common Stock being registered by means of the Registration
Statement and (ii) on and after December 7, 1999, upon exercise of the
options granted under the Company's Stock Incentive Plan (or the
Company's prior Stock Option and Restricted Stock Purchase Plan) or to
be hereafter granted under the Stock Incentive Plan, have been duly
authorized and, when issued, will be validly issued, fully-paid and
non-assessable.
<PAGE>
We are expressing the opinions above as members of the Bar of
the State of New York and express no opinion as to any law other than the
General Corporation Law of the State of Delaware.
We consent to the use of this opinion as an exhibit to the
Registration Statement. In giving such opinion, we do not thereby admit that we
are acting within the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ Morgan, Lewis & Bockius LLP
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in the Registration Statement on Form S-8 of Wit Capital Group, Inc.
of our report dated April 23, 1999 relating to the consolidated statements of
financial condition Wit Capital Group, Inc. and subsidiaries as of March 31,
1999, December 31, 1998 and 1997, and the related consolidated statements of
operations, changes in stockholders' equity and cash flows for the period ended
March 31, 1999, the years ended December 31, 1998 and 1997 and for the period
from March 27, 1996 (inception) to December 31, 1996 and to all references to
our Firm included in this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
New York, New York
August 12, 1999
e
