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As filed with the Securities and Exchange Commission on February 10, 2000.
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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.)
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826 BROADWAY, SIXTH FLOOR
NEW YORK, NEW YORK 10003
(212) 253-4400
(Address, including zip code, of Principal Executive Offices)
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SOUNDVIEW 1995 STOCK OPTION PLAN
(Full title of the plan)
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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)
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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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TITLE OF SECURITIES TO NUMBER OF SHARES TO PROPOSED PROPOSED AMOUNT OF
BE REGISTERED (1) BE MAXIMUM MAXIMUM REGISTRATION
REGISTERED (2) OFFERING AGGREGATE FEE
PRICE PER SHARE OFFERING
PRICE
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<S> <C> <C> <C> <C>
Common Stock, par value $0.01 per share, subject to
options granted under the SoundView 1995 Stock Option
Plan or issued upon exercise of options granted under
the SoundView 1995 Stock Option Plan 15,219 $ .34(3) $ 5,190.00
10,146 .38(3) 3,820.00
7,610 .52(3) 3,960.00
3,044 .65(3) 1,980.00
431,154 .69(3) 295,765.20
50,730 $ .71(3) $ 35,900.00
12,683 .72(3) 9,100.00
50,730 .76(3) 38,800.00
18,263 .83(3) 15,192.00
5,073 1.04(3) 5,270.00
45,657 1.08(3) 49,500.00
812,187 1.09(3) 886,954.00
55,803 1.13(3) 63,030.00
81,168 1.18(3) 95,840.00
10,146 1.23(3) 12,440.00
10,146 1.31(3) 13,260.00
60,876 1.33(3) 81,240.00
40,584 1.35(3) 54,800.00
7,610 1.45(3) 11,025.00
30,438 1.48(3) 45,060.00
762,320 1.49(3) 1,135,856.80
453,765 1.53(3) 695,897.66
111,099 1.56(3) 173,229.00
459,614 1.57(3) 719,364.00
15,219 1.59(3) 24,150.00
15,219 1.61(3) 24,480.00
232,891 1.62(3) 376,445.60
259,601 1.63(3) 422,177.25
1,110,855 1.65(3) 1,832,910.75
20,292 1.67(3) 33,880.00
20,292 1.68(3) 34,040.00
30,438 1.70(3) 51,780.00
101,460 1.73(3) 176,000.00
174,511 1.78(3) 310,632.00
14,204 1.82(3) 25,816.00
194,803 1.83(3) 356,736.00
93,343 1.88(3) 175,720.00
15,219 1.98(3) 30,120.00
1,337,242 2.17(3) 2,901,815.14
50,730 2.26(3) 114,400.00
395,694 2.41(3) 954,720.00
116,679 2.46(3) 287,040.00
91,314 2.51(3) 229,320.00
15,219 2.56(3) 39,000.00
45,657 2.61(3) 119,250.00
25,365 2.66(3) 67,500.00
55,803 2.76(3) 154,110.00
10,000 2.76 27,600.00
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Common Stock total 7,988,115 $13,222,116.40 $3,490.64
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</TABLE>
(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 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 SoundView 1995 Stock Option Plan.
(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.
<PAGE>
EXPLANATORY NOTE
Pursuant to the merger agreement, dated as of October 31, 1999, by and
among Wit Capital Group, Inc., W/S Merger Corp. and SoundView Technology Group,
Inc., SoundView became Wit Capital's wholly owned subsidiary. Under the merger
agreement, each outstanding option to purchase shares of SoundView common stock
granted under SoundView's 1995 Stock Option Plan was converted into options to
purchase shares of Wit Capital's common stock at an exchange ratio set forth in
the merger agreement. This registration statement registers shares of Wit
Capital now subject to outstanding options granted under SoundView's 1995 Stock
Option Plan.
2
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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.
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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 current report on Form 8-K dated February 1, 2000;
(b) Our proxy statement/prospectus contained in the registration
statement on Form S-4 (Registration No. 333-92887) filed pursuant to Rule 424(b)
under the Securities Act;
(c) Our registration statement on Form S-4 (Registration No.
333-92887);
(d) Our quarterly report on Form 10-Q for the period ended September
30, 1999;
(e) Our current report on Form 8-K dated November 4, 1999;
(f) Our quarterly report on Form 10-Q for the period ended June 30,
1999;
(g) 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;
(h) Our registration statement on Form S-1 (Registration No.
333-74619); and
(i) Our Form 8-A, 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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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.
Not applicable.
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<PAGE>
Item 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
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<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
(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
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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.
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(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 February 10, 2000.
WIT CAPITAL GROUP, INC.
By /s/ Robert H. Lessin
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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.
<TABLE>
<S> <C> <C>
/s/ Robert H. Lessin Co-Chief Executive Officer February 10, 2000
- --------------------------- and Director
Robert H. Lessin
/s/ Ronald Readmond Co-Chief Executive Officer February 10, 2000
- --------------------------- and Director
Ronald Readmond
/s/ Andrew D. Klein Director February 10, 2000
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Andrew D. Klein
/s/ John H. N. Fisher Director February 10, 2000
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John H. N. Fisher
/s/ Edward H. Fleischman Director February 7, 2000
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Edward H. Fleischman
</TABLE>
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<PAGE>
<TABLE>
<S> <C> <C>
/s/ Steven M. Gluckstern Director February 10, 2000
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Steven M. Gluckstern
/s/ Joseph R. Hardiman Director February 10, 2000
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Joseph R. Hardiman
/s/ Gilbert C. Maurer Director February 8, 2000
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Gilbert C. Maurer
/s/ Adam Mizel Director February 10, 2000
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Adam Mizel
/s/ Curtis L. Snyder Chief Financial Officer February 10, 2000
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Curtis L. Snyder
</TABLE>
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<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
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<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>
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<PAGE>
Exhibit 5.1
[Letterhead of Morgan, Lewis & Bockius LLP]
January 31, 2000
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 (the "Company"), 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 7,988,114 shares of the Company's common stock, par value $0.01 (the "Plan
Shares"), which may be issued and sold upon exercise of options previously
granted under the SoundView 1995 Stock Option Plan and outstanding at the
effective time of the merger of SoundView Technology, Inc. with and into W/S
Merger Corp., a wholly owned subsidiary of the Company.
In so acting, we have examined originals, or copies certified or
otherwise identified to our satisfaction, of the Registration Statement, the
SoundView 1995 Stock Option Plan, the Agreement and Plan of Merger, dated
October 31, 1999, by and amoung the Company, W/S Merger Corp. and SoundView
Technology Group, Inc., 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 have been duly authorized and, when issued and paid
for in accordance with the SoundView 1995 Stock Option Plan, will be
validly issued, fully-paid and non-assessable.
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 of 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 our report dated
February 16, 1999 relating to the consolidated statements of financial condition
of Wit Capital Group, Inc. and subsidiaries as of December 31, 1998 and 1997,
and the related consolidated statements of operations, changes in stockholders'
equity and cash flows for 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
February 1, 2000
