<PAGE>
As filed with the Securities and Exchange Commission on May 5, 2000.
REGISTRATION NO. 333-85203
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------
FORM S-8
POST EFFECTIVE AMENDMENT NO. 1 TO
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
-------------
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
PROPOSED PROPOSED
TITLE OF SECURITIES TO NUMBER OF SHARES TO MAXIMUM MAXIMUM AMOUNT OF
BE REGISTERED (1) BE OFFERING AGGREGATE OFFERING REGISTRATION
REGISTERED (2) PRICE PER SHARE PRICE FEE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Common Stock, par value $0.01 per share, subject to
options granted under the Stock Incentive Plan or issued
upon exercise of options granted under the Stock Incentive 6,780,117 $1.43(3) $9,695,567.31
Plan
6,384,438 $2.14(3) $13,662,697.32
82,072 $3.57(3) $292,997.04
348,700 $9.00(3) $3,138,300.00
3,500 $10.69(3) $37,415.00
4,500 $11.19(3) $50,355.00
2,000 $12.25(3) $24,500.00
3,500 $12.38(3) $43,330.00
3,500 $13.25(3) $46,375.00
80,000 $17.13(3) $1,370,400.00
84,000 $18.13(3) $1,522,920.00
1,000 $21.25(3) $21,250.00
15,500 $21.75(3) $337,125.00
7,000 $23.44(3) $164,080.00
22,950 $27.06(3) $621,027.00
1,000 $27.25(3) $27,250.00
1,000 $29.25(3) $29,250.00
7,000 $31.38(3) $219,660.00
6,500 $31.50(3) $204,750.00
40,000 $32.25(3) $1,290,000.00
3,500 $32.75(3) $114,625.00
3,500 $34.88(3) $122,080.00
Common Stock, par value $.01 per share, reserved for the
future grant of options under the Stock Incentive Plan 3,614,723 $18.50(4) $66,872,375.50
Common Stock, par value $.01 per share, issued under
written compensation agreements 5,856,666 $18.50(4) $108,348,321.00
Common Stock TOTAL 23,356,666 $208,256,650.17 (5)
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
(1) The securities registered include the associated rights to purchase
preferred stock.
(2) Pursuant to Rule 416(a), the number of shares previously registered
include an indeterminate number of additional shares of 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) 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.
(4) 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.
(5) Previously paid.
<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 which shares were registered pursuant to this
registration statement, and (ii) certain individuals who previously acquired
common stock 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.
<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.
<PAGE>
Prospectus Filed Pursuant to Rule 424(b)(3)
Registration Number 333-85203
16,369,933 Shares
WIT CAPITAL GROUP, INC.
Common Stock
------------------
Our business is comprised of investment banking and brokerage. 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 May 4, 2000, the closing price of the common stock was $13.75 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 supplemented prospectus is May 5, 2000
<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:
o Our annual report on Form 10-K for the year ended December 31,
1999 (File Number 0000-26225) filed with the SEC on March 30,
2000; and
o 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, Seventh Floor
New York, New York 10003
Attention: Secretary
212-253-4400
-----------------
Information on our website is not part of this supplemented prospectus.
2
<PAGE>
OUR BUSINESS
Our business is comprised of investment banking and brokerage. We have
also established private equity funds for venture capital investing in Internet
and technology companies. On January 31, 2000 we completed our merger with
SoundView Technology Group, Inc., an investment banking firm focused exclusively
on technology. The merger positions us to be a market leader in Internet and
technology investment banking with one of the largest banking and research
groups focused exclusively on these sectors. It also enables us to significantly
expand our Internet-based product offerings both in numbers of shares
distributed to our customers and in breath of timely research coverage which
will be broadly accessible through the Internet.
Our business was started as an Internet investment banking and
brokerage firm that uses electronic mail and the Internet to offer and sell
shares in public offerings, primarily of companies in Internet related business,
to individuals. With the addition of SoundView, we added a focus on the
technology sector and acquired an active base of corporate and institutional
customers. SoundView's core strength has been its research coverage of the
information technology sector. Their business builds upon its in-depth research
to provide investment banking services and institutionally focused sales and
trading in information technology stocks. Following the merger with SoundView,
we are combining our business under the name Wit SoundView. By combining the Wit
Capital and SoundView research coverage and distribution capabilities, we have
significantly expanded our investment banking activities.
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. 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.
<TABLE>
<CAPTION>
AS OF MAY 2, 2000 AS OF JUNE 30, 2000
----------------- -------------------
NUMBER OF SHARES NUMBER OF SHARES
NUMBER OF COVERED BY THIS COVERED BY THIS
SHARES OWNED(1) PROSPECTUS PROSPECTUS(5)
--------------- ---------------- -----------------
<S> <C> <C> <C>
Jonathan Cohen
Director of Research
(since 1999) 685,000 110,000 160,000
Russell Crabs
Co-head of Wit SoundView and
Director
(since 2000) 2,281,579 1,857,493 1,894,741
Daniel I. DeWolf
Senior Vice President and
Director of Venture Capital Fund
Group
(since 1999) 100,000 6,250 12,500
Ronald O. Drake
Director of Private Equity
(since 1999) 130,000 17,500 17,500
Paul Ezekiel
Managing Director - Investment
Banking
(since 1999) 412,002 39,668(A) 52,501
William C. Feeley
Director of Capital Markets
(since 1997) 357,503 271,248(B) 279,998
Lloyd H. Feller
Senior Vice President and
Co-general Counsel
(since 1999) 645,000 151,875(C) 192,188
Joseph H. Flom
Special Advisory Board Member
(since 1998) 151,666 57,604(D) 59,791
</TABLE>
4
<PAGE>
<TABLE>
<CAPTION>
AS OF MAY 2, 2000 AS OF JUNE 30, 2000
----------------- -------------------
NUMBER OF SHARES NUMBER OF SHARES
NUMBER OF COVERED BY THIS COVERED BY THIS
SHARES OWNED(1) PROSPECTUS PROSPECTUS(5)
--------------- ---------------- -----------------
<S> <C> <C> <C>
Charles Hall
Managing Director - Investment
Banking
(since 1999) 530,001 72,918(E) 94,064
Everett F. Lang
Senior Vice President and
Director of Brokerage
(since 1999) 467,502 98,125(F) 127,344
Robert H. Lessin
Co-chief Executive Officer,
Chairman and Director
(since 1998) 4,941,865 3,143,058(2)(G) 3,379,169
Mark Loehr
Co-head of Wit SoundView
(since 1999) 985,000 225,000(H) 285,938
Robert C. Mendelson
Senior Vice President and
Co-general Counsel
(since 1999) 645,000 151,875(I) 192,188
Christopher Mulligan
Managing Director - Investment
Banking
(since 1999) 545,000 72,918(J) 94,064
John W. Palmer
Senior Vice President and Chief
Information Officer
(since 2000) 250,000 0 0
Elliot S. Prince
Managing Director - Research
(since 1999) 427,502 46,667(K) 61,250
Ronald Readmond
Vice Chairman, President, Co-
chief Executive Officer,
and Director
(since 1998) 2,132,000 1,062,498(3)(L) 1,220,832
</TABLE>
5
<PAGE>
<TABLE>
<CAPTION>
AS OF MAY 2, 2000 AS OF JUNE 30, 2000
----------------- -------------------
NUMBER OF SHARES NUMBER OF SHARES
NUMBER OF COVERED BY THIS COVERED BY THIS
SHARES OWNED(1) PROSPECTUS PROSPECTUS(5)
--------------- ---------------- -----------------
<S> <C> <C> <C>
Elizabeth Schimel
Senior Vice President and
Director of Business
Development
(since 1999) 150,000 19,375(M) 28,750
Harry Silver
Senior Vice President and Chief
Administrative Officer
(since 1999) 180,100 21,250(N) 32,500
Curtis Snyder 439,291 149,632 164,600
Senior Vice President and Chief
Financial Officer
(since 2000)
</TABLE>
6
<PAGE>
<TABLE>
<CAPTION>
NUMBER OF SHARES NUMBER OF SHARES COVERED
OWNED(1) BY THIS PROSPECTUS
---------------- ------------------------
<S> <C> <C>
OTHER EMPLOYEES AND
FORMER EMPLOYEES
Michael Benedek(4) 24,168 8,750
Susan J. Berkowitz(4) 109,375 77,292
David Bisceglia(4) 8,750 2,188
Richard R. Brescia(4) 2,251 437
Jeffrey Chapman(4) 13,125 3,282
Ronald Conway(4) 70,000 70,000
Sanjay Das 33,913 3,413
John Devenney(4) 583 583
Miriam Eaves(4) 12,600 12,600
Matthew Fitch 25,394 438
Malik Franklin 59,100 5,569
Sean Gormley(4) 14,000 14,000
Kenneth W. Graham 8,000 437
Michele Hudak 27,000 6,562
Tenzing Jangtey 4,500 219
Richard Lerner 55,500 4,375
Jose Leston(4) 1,313 437
George M. Lieberman(4) 280,000 33,057
Joanne Medvecky 38,000 5,833
Elizabeth Morgan 2,000 437
7
<PAGE>
<CAPTION>
NUMBER OF SHARES NUMBER OF SHARES COVERED
OWNED(1) BY THIS PROSPECTUS
---------------- ------------------------
<S> <C> <C>
Eve Oliva 8,000 437
Julia A. Oliver(4) 210,000 70,000
Barry Osherow 89,501 50,385
Jane Portnoy(4) 3,500 3,500
Gene Robbins(4) 2,188 438
Saul Rosenthal 64,000 5,833
Howard Seibel(4) 5,950 5,950
Cornelius Shields IV(4) 8,749 5,833
M. Bernard Siegel(4) 330,000 87,500
Francine Sommer 72,917 72,917
George Tashie(4) 26,251 26,251
William Tkacs(4) 142,188 142,188
Nancy Hernandez Toste 38,000 2,188
Bryan Vaniman 59,100 4,633
Diane Vivolo(4) 875 875
Peter Weinberg 88,000 24,500
Jason Wright 252,000 191,770
</TABLE>
- ----------
(1) Based on ownership as of March 31, 2000. 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.
(2) 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 one-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 all of these shares.
(3) 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 one-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 all of these
shares.
(4) No longer employed by us.
(5) Also includes shares subject to exercisable options as of June 30, 2000.
8
<PAGE>
(A) Mr. Ezekiel also owns an additional 141,166 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. Feeley also owns an additional 8,749 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) This amount consists of 113,750 shares owned by Mr. Feller and 38,125 shares
subject to exercisable options. In addition, Mr. Feller also owns an additional
341,250 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) This amount consists of 46,666 shares owned by Mr. Flom and 10,938 shares
subject to presently exercisable options.
(E) Mr. Hall also owns an additional 232,604 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.
(F) This amount consists of 33,542 shares owned by Mr. Lang and 64,583 shares
subject to exercisable options. In addition, Mr. Lang also owns an additional
124,323 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) Mr. Lessin also owns an additional 894,442 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. Loehr also owns an additional 656,250 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 113,750 shares owned by Mr. Mendelson and 38,125
shares subject to exercisable options. In addition, Mr. Mendelson also owns an
additional 341,250 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. Mulligan also owns an additional 232,604 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. Prince also owns an additional 160,416 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) This amount consists of 922,500 shares owned by Mr. Readmond and 139,998
shares subject to exercisable options. In addition, Mr. Readmond also owns an
additional 577,500 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.
(M) This amount consists of 7,500 shares owned by Ms. Schimel and 11,875 shares
subject to exercisable options. In addition, Ms. Schimel also owns an additional
32,500 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.
(N) This amount consists of 7,500 shares owned by Mr. Silver and 13,750 shares
subject to exercisable options. In addition, Mr. Silver also owns an additional
32,500 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.
9
<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:
o 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);
o to purchasers directly;
o in ordinary brokerage transactions in which the broker
solicits purchasers;
o 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;
o through the writing of options on the shares;
o 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;
o through purchases by a broker or dealer as principal and
resale by such broker or dealer for its own account pursuant
to this prospectus;
o 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;
o through exchange distributions in accordance with the rules of
the applicable exchange;
o in any combination of one or more of these methods; or
o 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
consolidated transaction reporting system contemplated by Rule 11Aa3-1 under the
Exchange Act during the four-week period specified in clause (2) above.
10
<PAGE>
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 under Delaware law, the personal liability of 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 Delaware permits us to
indemnify officers, directors or employees against expenses (including
attorney's fees), judgments, fines and amounts paid in settlement in connection
with legal proceedings if the officer, director or employee acted in good faith
and in a manner he reasonably believed to be in or not opposed to our best
interests, and, with respect to any criminal act or proceeding, he had no
reasonable cause to believe his conduct was unlawful. Indemnification is not
permitted as to any matter as to which the person is adjudged to be liable
11
<PAGE>
unless, and only to the extent that, the court in which such action or suit was
brought upon application that, despite the adjudication of liability, but in
view of all the circumstances of the case, the person is fairly and reasonably
entitled to indemnity for such expenses as the court deems proper. Individuals
who successfully defend such an action are entitled to indemnification against
expenses reasonably incurred in connection therewith.
Our By-Laws require us to indemnify directors and officers against, to
the fullest extent permitted by law, liabilities which they may incur under the
circumstances described in the preceding paragraph.
We plan to maintain 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 provision or otherwise as a matter of law.
In addition, we have entered into indemnification agreements with our
directors and executive officers. Under these agreements, we agree to indemnify
each director and officer to the fullest extent permitted by law for any acts
performed, or for failures to act, on our behalf or on behalf of another person
or entity for which that director or officer is performing services at our
request. We will not indemnify a director or officer for any breach of loyalty
to us or to our stockholders, or if the director or officer 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 Delaware, or for any
transaction for which the director or officer derives an improper benefit. We
agree to indemnify for expenses related to indemnifiable events, and to pay for
these expenses in advance. Our obligation to indemnify and to provide advances
for expenses are subject to the approval of a review process with a reviewer to
be determined by the board. The rights of directors and officers will not
exclude any rights to indemnification otherwise available under law or under the
Amended and Restated Certificate of Incorporation.
VALIDITY OF COMMON STOCK
The validity of our common stock has been passed upon by Morgan, Lewis
& Bockius LLP, New York, New York.
EXPERTS
The annual consolidated financial statements and schedule of Wit
Capital Group, Inc. incorporated by reference to our annual report on Form 10-K
in this prospectus have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report with respect thereto, and are included
herein in reliance upon the authority of this firm as experts in accounting and
auditing.
12
<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 annual report on Form 10-K for the year ended December 31, 1999
(File Number 0000-26225) filed with the SEC on March 30, 2000; and
(b) 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.
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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<PAGE>
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our Amended and Restated Certificate of Incorporation limits, to the
maximum extent permitted under Delaware law, the personal liability of 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 Delaware permits us to
indemnify officers, directors or employees against expenses (including
attorney's fees), judgments, fines and amounts paid in settlement in connection
with legal proceedings if the officer, director or employee acted in good faith
and in a manner he reasonably believed to be in or not opposed to our best
interests, and, with respect to any criminal act or proceeding, he had no
reasonable cause to believe his conduct was unlawful. Indemnification is not
permitted as to any matter as to which the person is adjudged to be liable
unless, and only to the extent that, the court in which such action or suit was
brought upon application that, despite the adjudication of liability, but in
view of all the circumstances of the case, the person is fairly and reasonably
entitled to indemnity for such expenses as the court deems proper. Individuals
who successfully defend such an action are entitled to indemnification against
expenses reasonably incurred in connection therewith.
Our By-Laws require us to indemnify directors and officers against, to
the fullest extent permitted by law, liabilities which they may incur under the
circumstances described in the preceding paragraph.
We plan to maintain 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 provision or otherwise as a matter of law.
In addition, we have entered into indemnification agreements with our
directors and executive officers. Under these agreements, we agree to indemnify
each director and officer to the fullest extent permitted by law for any acts
performed, or for failures to act, on our behalf or on behalf of another person
or entity for which that director or officer is performing services at our
request. We will not indemnify a director or officer for any breach of loyalty
to us or to our stockholders, or if the director or officer 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 Delaware, or for any
transaction for which the director or officer derives an improper benefit. We
agree to indemnify for expenses related to indemnifiable events, and to pay for
these expenses in advance. Our obligation to indemnify and to provide advances
for expenses are subject to the approval of a review process with a reviewer to
be determined by the board. The rights of directors and officers will not
exclude any rights to indemnification otherwise available under law or under the
Amended and Restated Certificate of Incorporation.
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
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<PAGE>
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.
Exhibit Description
------- -----------
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).*
----------
* Previously filed.
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
(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.
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<PAGE>
(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.
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<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 May 5, 2000.
WIT CAPITAL GROUP, INC.
By /s/ ROBERT H. LESSIN
-------------------------------
Robert H. Lessin
Chairman of the Board and Co-Chief
Executive Officer
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
- ---------------------------------
Robert H. Lessin Co-Chief Executive Officer May 5, 2000
and Director
/s/ RONALD READMOND
- ---------------------------------
Ronald Readmond Co-Chief Executive Officer May 5, 2000
and Director
/s/ RUSSELL D. CRABS
- ---------------------------------
Russell D. Crabs Co-Head of Wit SoundView May 5, 2000
and Director
/s/ ANDREW D. KLEIN*
- ---------------------------------
Andrew D. Klein Director
/s/ JOHN H. N. FISHER*
- ---------------------------------
John H. N. Fisher Director
/s/ EDWARD H. FLEISCHMAN*
- ---------------------------------
Edward H. Fleischman Director
/s/ STEVEN M. GLUCKSTERN*
- ---------------------------------
Steven M. Gluckstern Director
/s/ JOSEPH R. HARDIMAN*
- ---------------------------------
Joseph R. Hardiman Director
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<PAGE>
/s/ GILBERT C. MAURER*
- ---------------------------------
Gilbert C. Maurer Director
/s/ CURTIS SNYDER
- ---------------------------------
Curtis Snyder Senior Vice President and May 5, 2000
Chief Financial Officer
By /s/ RONALD H. READMOND
------------------------------
Ronald H. Readmond
Attorney-in-fact
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<PAGE>
EXHIBIT INDEX
EXHIBIT DESCRIPTION
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).*
- ----------
* Previously filed
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<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference of our report dated February 16, 2000 relating to
the consolidated statements of financial condition of Wit Capital Group, Inc.
and subsidiaries as of December 31, 1999 and 1998, and the related
consolidated statements of operations, changes in stockholders' equity and
cash flows for each of the three years in the period ended December 31, 1999
and schedule, included in the Company's Form 10-K for the year ended December
31, 1999 and to all references of our Firm included in this Registration
Statement (File No. 333-85203).
New York, New York
May 4, 2000
