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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1 TO
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
E*TRADE GROUP, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 94-2844166
(State of Incorporation or Organization) (I.R.S. Employer Identification No.)
4500 Bohannon Drive
Menlo Park, CA 94025
(Address of Principal Executive Offices) (Zip Code)
If this form relates to the registration of a
class of securities pursuant to Section 12(b)
of the Exchange Act and is effective pursuant
to General Instruction A.(c), please check the
following box.[X]
If this form relates to the registration of a
class of securities pursuant to Section 12(g)
of the Exchange Act and is effective pursuant
to General Instruction A.(d), please check the
following box. [ ]
Securities Act registration statement file number to which this
form relates: --------------------
(If applicable)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
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Common Stock, par value $0.01 per share New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
(Title of Class)
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None
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Item 1: Description of Registrant's Securities to be Registered
The following description of our capital stock is based upon our
Fourth Amended and Restated Certificate of Incorporation, referred to in this
description as our Certificate of Incorporation, our Amended and Restated
Bylaws, referred to in this description as our Bylaws, and applicable
provisions of law. We have summarized certain portions of our Certificate of
Incorporation and Bylaws below. The summary is not complete. The Certificate of
Incorporation and Bylaws are exhibits to this Form 8- A. You should read the
Certificate of Incorporation and Bylaws for the provisions that are important
to you.
Certain provisions of the Delaware General Corporation Law, our
Certificate of Incorporation and our Bylaws summarized in the following
paragraphs may have an anti-takeover effect. This may delay, defer or prevent a
tender offer or takeover attempt that a shareowner might consider in its best
interests, including those attempts that might result in a premium over the
market price for its shares.
Authorized Capital Stock
Our Certificate of Incorporation authorizes us to issue 600 million shares
of common stock, par value $0.01 per share, and one million shares of preferred
stock, par value $0.01 per share.
Common Stock
As of January 31, 2001, there were 311,224,955 shares of common stock
outstanding which were held of record by in excess of 2,200 stockholders. Each
holder of common stock is entitled to one vote per share held on all matters to
be voted upon by the shareowners. Subject to preferences that may be applicable
to any outstanding preferred stock, the holders of common stock are entitled to
receive ratably the dividends, if any, as may be declared from time to time by
our board of directors out of funds legally available for the payment of
dividends. If we liquidate, dissolve or wind-up our business, the holders of
common stock are entitled to share ratably in all assets remaining after
payment of liabilities, subject to prior distribution rights of preferred
stock, if any, then outstanding. The common stock has no preemptive or
conversion rights or other subscription rights. There are no redemption or
sinking fund provisions applicable to the common stock. All outstanding shares
of common stock are fully paid and non-assessable, and any shares of common
stock to be issued upon completion of our offering will be fully paid and non-
assessable. The common stock is listed on the New York Stock Exchange. The
transfer agent and registrar for the common stock is American Stock Transfer &
Trust Company, N.A.
Exchangeable Securities
Certain shares issued by EGI Canada Corporation, referred to in this
description as the Exchangeable Shares, have dividend, voting, and other rights
equivalent to those of shares of our common stock. Exchangeable Shares may be
exchanged at any time, at the option of the holder, on a one-for-one basis for
our common stock. As of January 31, 2001, there were 3,697,897 Exchangeable
Shares outstanding.
Preferred Stock
Our board of directors has the authority to issue the preferred stock from
time to time in one or more series and to fix the powers, rights, designations,
preferences, qualifications, limitations and restrictions applicable to the
preferred stock, including dividend rights, dividend rates, conversion rights,
voting rights, terms of redemption, redemption prices, sinking fund provisions,
liquidation preferences, the number of shares constituting any series or the
designation of the series, without further vote or action by the shareowners.
The issuance of preferred stock may have the effect of delaying, deferring or
preventing a change in control of E*TRADE without further action by the
shareowners and may adversely affect the voting and other rights of the holders
of common stock. One share of Series A Preferred Stock (the "EGI Special Voting
Share") is issued and outstanding. The EGI Special Voting Share was issued in
connection with the acquisition of VERSUS Technologies, Inc. and is entitled to
up to that number of votes equal to the number of Exchangeable Shares
outstanding (see "Exchangeable Securities" above).
Certain Provisions of Our Certificate of
Incorporation and Bylaws
Our Certificate of Incorporation and Bylaws contain provisions that could
discourage potential takeover attempts and make attempts by shareowners to
change management more difficult.
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Our Certificate of Incorporation and our Bylaws provide for a classified
board of directors and permit the board to create new directorships and to
elect new directors to serve for the full term of the class of directors in
which the new directorship was created. The terms of the directors are
staggered to provide for the election of approximately one-third of the board
members each year, with each director serving a three- year term. The board (or
its remaining members, even though less than a quorum) is also empowered to
fill vacancies on the board, occurring for any reason, including a vacancy from
the an enlargement of the board; however, a vacancy created by the removal of a
director by the stockholders or court order may be filled only by the vote of a
majority of the shares at a meeting at which a quorum is present. Any director
so elected according to the preceding sentence shall hold office for the
remainder of the term of the class of directors in which the new directorship
was created or the vacancy occurred. A director or the entire board may be
removed by shareowners, with or without cause, by the affirmative vote of
two-thirds of the outstanding voting stock. We have not elected to use
cumulative voting in the election of directors.
Our Certificate of Incorporation provides that shareowners may take action
only at an annual meeting or special meeting and may not take action by written
consent. Special meetings of our shareowners may only be called by our Chairman
of the board, our President, a majority of the number of directors constituting
the full board, or the holders of not less than 10% of our outstanding voting
stock.
Under the terms of our Bylaws, shareowners who intend to present business
or nominate persons for election to the board at annual meetings of shareowners
must provide notice to our corporate secretary no more that 150 days and no
less than 120 days prior to the date of the proxy statement for the prior
annual meeting, as more fully set forth in our Bylaws.
Our Certificate of Incorporation provides that, in addition to the
requirements of the Delaware General Corporation Law described below, any
business combination with an interested shareowner, as these terms are defined
in our certificate of incorporation and summarized below, requires the
affirmative vote of two-thirds of the outstanding voting stock, unless two-
thirds of the number of directors constituting the full board approve the
transaction.
A business combination is defined for purposes of this provision of our
Certificate of Incorporation as:
o a merger or consolidation of us or any of our subsidiaries with an
interested shareowner or with a corporation that is or would become an
affiliate or associate, with these terms defined for purposes of this
provision of our Certificate of Incorporation as they are defined in the
Exchange Act of 1934, of an interested shareowner,
o any sale, lease, exchange, mortgage, pledge, transfer or other disposition
to or with, or proposed by or on behalf of, an interested shareowner or
any affiliate or associate of an interested shareowner involving any
assets of ours or our subsidiaries that constitute 5% or more of our total
assets,
o the issuance or transfer by us or by any of our subsidiaries of any of our
or their securities to, or proposed by or on behalf of, an interested
shareowner or any affiliate or associate of an interested shareowner in
exchange for cash, securities or other property that constitute 5% or more
of our total assets,
o the adoption of any plan or proposal for our liquidation or dissolution or
any spin-off or split- up of any kind of us or any of our subsidiaries,
proposed by or on behalf of an interested shareowner or an affiliate or
associate of an interested shareowner, or
o any reclassification, recapitalization, or merger or consolidation of us
with any of our subsidiaries or any other transaction that has the effect,
directly or indirectly, of increasing the proportionate share of any class
or series of our capital stock or that of any of our subsidiaries that is
beneficially owned by an interested shareowner or an affiliate or
associate of an interested shareowner.
An interested shareowner is defined for purposes of this provision of our
Certificate of Incorporation as an individual, corporation or other entity
which, as of the record date for notice of the transaction or immediately prior
to the transaction:
o is, or was at any time within the prior two-year period, the beneficial
owner of 10% or more of our outstanding voting securities,
o is one of our associates or affiliates and at any
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time in the prior two-year period was the beneficial owner of 10% or more
of our outstanding voting securities, or
o under circumstances described in more detail in our Certificate of
Incorporation, an assignee of any of the persons described above.
A person is the beneficial owner of any voting securities which
o that person or any of its affiliates or associates, beneficially owns,
directly or indirectly,
o that person or any of its affiliates or associates has, directly or
indirectly, the right to acquire (whether such right is exercisable
immediately or subject only to the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or the right
to vote pursuant to any agreement, arrangement or understanding, or
o are beneficially owned, directly or indirectly, by any other person with
which the person in question or any of its affiliates or associates has
any agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of our capital stock.
These provisions of our Certificate of Incorporation and Bylaws may deter
any potential unfriendly offers or other efforts to obtain control of us that
are not approved by our board of directors and could deprive our shareowners of
opportunities to realize a premium on their common stock and could make removal
of incumbent directors more difficult. At the same time, these provisions may
have the effect of inducing any persons seeking to control us or seeking a
business combination with us to negotiate terms acceptable to our board of
directors. These provisions of our Certificate of Incorporation can be changed
or amended only by the affirmative vote of the holders of at least two-thirds
of our outstanding voting stock. Shareholders can change or amend the Bylaws
only by the affirmative vote of the holders of at least two-thirds of our
outstanding voting stock.
Certain Anti-Takeover Effects of Delaware Law
We are subject to Section 203 of the Delaware General Corporate Law,
referred to in this description as Section 203. In general, Section 203
prohibits a publicly held Delaware corporation from engaging in a business
combination with any interested shareowner for a period of three years
following the date of the transactions in which the person became an interested
shareowner, unless:
o the transaction is approved by the board of directors prior to the date the
shareowner became an interested shareowner,
o upon consummation of the transaction which resulted in the shareowner
becoming an interested shareowner, the interested shareowner owned at
least 85% of the voting stock of the corporation outstanding at the time
the transaction commenced, or
o on or subsequent to the date the shareowner became an interested
shareowner the business combination is approved by the board and
authorized at an annual or special meeting of shareowners by the
affirmative vote of at least two-thirds of the outstanding voting stock
which is not owned by the interested shareowner.
A business combination is defined for purposes of Section 203 to include
mergers, asset sales, and other transactions resulting in financial benefit to
a shareowner. In general, an interested shareowner for purposes of Section 203
is a person who, together with affiliates and associates, owns (or within three
years, did own) 15% or more of a corporation's voting stock. The statute could
prohibit or delay mergers or other takeover or change in control attempts with
respect to us and, accordingly, may discourage attempts to acquire us even
though such a transaction may offer our shareowners the opportunity to sell
their stock at a price above the prevailing market price.
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Item 2: Exhibits
The following exhibits have been filed with the Securities and Exchange
Commission:
1. Specimen of Common Stock Certificate, incorporated by reference to
Exhibit 4.1 of the Registration Statement on Form S-1, Registration
Statement No. 333-05525.
2. Fourth Amended and Certificate of Incorporation of the Registrant,
incorporated by reference to Exhibit 3.1 of the Registrant's Annual
Report on Form 10-K for the fiscal year ended September 30, 2000.
3. Certificate of Designation of Series A Preferred Stock of the
Registrant, incorporated by reference to Exhibit 4.2 of Amendment No.
1 to the Registration Statement on Form S-3, Registration Statement
No. 333-41628.
4. Restated Bylaws of the Registrant, incorporated by reference to
Exhibit 3.3 of the Registrant's Annual Report on Form 10-K for the
fiscal year ended September 30, 2000.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this amendment to the registration
statement to be signed on its behalf by the undersigned, thereto duly
authorized.
E*TRADE Group, Inc.
By: /s/ Leonard C. Purkis
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Name: Leonard C. Purkis
Title: Chief Financial Officer
Date: February 12, 2001