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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 10-K/A
FOR ANNUAL AND TRANSITION REPORTS PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
(MARK ONE)
|X| ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 2001
OR
|_| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM TO
COMMISSION FILE NUMBER 0-28191
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ESPEED, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 13-4063515
(State or Other (I.R.S. Employer
Jurisdiction of Incorporation) Identification No.)
135 E. 57TH STREET, NEW YORK, NEW YORK 10022
(Address of Principal Executive Offices) (Zip Code)
(212) 938-5000
(Registrant's telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH REGISTERED
------------------- -----------------------------------------
None None
Securities registered pursuant to Section 12(g) of the Act:
CLASS A COMMON STOCK, $. 01 PAR VALUE
(Title of Class)
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Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes |X| No |_|
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. |X|
The aggregate market value of voting common equity held by non-affiliates
of the registrant, based upon the closing price of the Class A common stock on
March 15, 2002 as reported on the Nasdaq National Market, was approximately
$308,686,582.
Indicate the number of shares outstanding of each of the Registrant's
classes of common stock, as of the latest practicable date.
Class Outstanding at March 15, 2002
----- -----------------------------
CLASS A COMMON STOCK, PAR VALUE $.01 PER SHARE 28,290,779 SHARES
CLASS B COMMON STOCK, PAR VALUE $.01 PER SHARE 26,688,814 SHARES
DOCUMENTS INCORPORATED BY REFERENCE.
NONE.
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eSPEED, INC.
2001 FORM 10-K/A ANNUAL REPORT
TABLE OF CONTENTS
Page
INTRODUCTORY NOTE..................................................... ii
PART III
ITEM 11. EXECUTIVE COMPENSATION...................................... 1
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.............. 3
i
INTRODUCTORY NOTE
We are filing this Form 10-K/A in order to amend and restate the information
disclosed in Item 11 and Item 13 of Part III. In Item 11, the principal change
we made was to amend the bonus compensation amount for Joseph C. Noviello, our
Chief Information Officer and Executive Vice President, and to amend the Value
of Unexercised In-The-Money Options at Fiscal Year End. The principal change we
made to Item 13 was to add disclosure regarding our employees' purchase of
Cantor Fitzgerald, L.P. partnership units. This Form 10-K/A does not reflect
events occurring after the filing of the original Form 10-K.
ii
PART III
ITEM 11. EXECUTIVE COMPENSATION
The following table provides certain summary information concerning all
compensation earned for the year ended December 31, 2001, the year ended
December 31, 2000 and the period from March 10, 1999 through December 31, 1999
by our Chief Executive Officer and each of our other executive officers required
to be included in the table (collectively, the Named Executive Officers).
SUMMARY COMPENSATION TABLE
LONG-TERM
COMPENSATION
------------
AWARDS
SECURITIES
SALARY BONUS UNDERLYING
NAME AND PRINCIPAL POSITION YEAR ($) ($) OPTIONS (#)
--------------------------- ---- ------- ------- ------------
Howard W. Lutnick.................................. 2001 400,000 600,000 1,500,000
Chairman, Chief Executive Officer 2000 350,000 650,000 625,000
and President 1999 280,000 -- 2,500,000
Frederick T. Varacchi*............................. 2001 354,167 500,000 --
2000 500,000 500,000 200,000
1999 400,000 -- 800,000
Douglas B. Gardner*................................ 2001 177,083 350,000 --
2000 250,000 350,000 75,000
1999 200,000 -- 375,000
Lee M. Amaitis..................................... 2001 107,418 300,000 375,000
Global Chief Operating Officer 2000 107,418 333,333 50,000
1999 -- -- 325,000
Joseph C. Noviello................................. 2001 275,000 1,000,000 (1) 200,000
Chief Information Officer and Executive Vice 2000 250,000 350,500 65,000
President 1999 175,000 250,000 85,000
Stephen M. Merkel.................................. 2001 150,000 400,000 200,000
General Counsel, Executive Vice President and 2000 150,000 300,000 100,000
Secretary 1999 120,000 -- 100,000
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*Messrs. Varacchi and Gardner were lost as a result of the terrorist attacks on
September 11, 2001.
(1) The after-tax portion of $600,000 of such bonus was used to purchase units
in Cantor Fitzgerald, L.P. See "Item 13. Certain Relationships and Related
Transactions."
1
The following table sets forth the options granted during 2001 to, and the value
of the options held on December 31, 2001 by, our Named Executive Officers.
Messrs. Varacchi and Gardner were not granted any options during 2001.
OPTION GRANTS IN LAST FISCAL YEAR
Individual Grants
PERCENT OF TOTAL
NUMBER OF SHARES OPTIONS GRANTED
UNDERLYING OPTIONS TO EMPLOYEES EXERCISE OR BASE GRANT DATE
NAME GRANTED IN 2001 PRICE ($/SHARE) EXPIRATION DATE PRESENT VALUE ($)
---- ------- ------- --------------- --------------- -----------------
Howard W. Lutnick................. 1,500,000(1) 42.2 5.10 10/19/11 4,068,150(2)
Lee M. Amaitis.................... 375,000(1) 10.5 5.10 10/19/11 1,017,038(2)
Joseph C. Noviello................ 200,000(1) 5.6 5.10 10/19/11 542,420(2)
Stephen M. Merkel................. 200,000(1) 5.6 5.10 10/19/11 542,420(2)
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(1) The options vest quarterly over a four year period from the date of grant,
October 19, 2001.
(2) The fair value of the options was estimated using a modified Black-Scholes
option pricing model and the following assumptions: risk-free interest rate
of 3.25%, no expected dividends, expected stock price volatility of 80% and
assumed to be exercised at 80% of their original life.
The following table provides information, with respect to the Named Executive
Officers, concerning options and SARs held as of December 31, 2001.
AGGREGATED OPTION/SAR EXERCISES IN LAST FISCAL YEAR
AND FISCAL YEAR-END OPTION/SAR VALUES
NUMBER OF SECURITIES UNDERLYING VALUE OF UNEXERCISED
SHARES UNEXERCISED OPTIONS/SARS AT IN-THE-MONEY OPTIONS/SARS AT
ACQUIRED ON VALUE REALIZED FISCAL YEAR END (#) FISCAL YEAR END($)(1)
EXERCISE ON EXERCISE ------------------------------- -----------------------------
NAME (#) ($) Exercisable Unexercisable Exercisable Unexercisable
---------------------------------------------------------------------------------------------------------------------------
Howard W. Lutnick............ 0 0 1,425,000 3,200,000 0 4,770,000
Frederick T. Varacchi*....... 0 0 1,000,000 0 0 0
Douglas B. Gardner*.......... 0 0 450,000 0 0 0
Lee M. Amaitis............... 0 0 140,000 610,000 0 1,192,500
Joseph C. Noviello........... 0 0 58,750 291,250 0 636,000
Stephen M. Merkel............ 0 0 60,000 340,000 0 636,000
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(1) Based on the last reported price of $8.28 for our Class A common stock on
December 31, 2001.
* Messrs. Varacchi and Gardner were lost as a result of the terrorist attacks
on September 11, 2001.
COMPENSATION OF DIRECTORS
Directors who are also our employees do not receive additional compensation for
serving as directors. On October 19, 2001, we granted each of our three
non-employee directors at the time options to purchase 30,000 shares of our
Class A common stock at an exercise price per share equal to $5.10, which was
the price of our Class A common
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stock on October 18, 2001. These options vest in three equal installments
beginning on the first of three semi-anniversaries of the date of grant.
Effective February 11, 2002, Mr. Dalton was granted an option to purchase 30,000
shares of our Class A common stock at an exercise price per share of $8.95 in
connection with his election to our board. Our non-employee directors receive
annual compensation of $25,000. They also receive compensation for each
quarterly meeting of the board of directors attended of $2,000 and options to
purchase 1,500 shares of our Class A common stock, which options vest in three
equal installments beginning on the first of three semi-anniversaries of the
date of grant, and they receive $1,000 for each additional meeting of our board
of directors or committee of our board of directors actually attended, whether
by telephone or otherwise. If both a meeting of our board of directors and of a
committee of our board of directors are held on the same date, an aggregate of
$1,000 will be paid for attendance at both meetings. Non-employee directors also
are reimbursed for all out-of-pocket expenses incurred in attending meetings of
our board of directors or committees of our board of directors.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
The Compensation Committee of our board of directors consists of Messrs.
Breeden, Carter and Moran. All of the members of the Compensation Committee are
non-employee directors and are not former officers. During 2001, none of our
executive officers served as a member of the board of directors or on the
compensation committee of a corporation where any of its executive officers
served on our Compensation Committee or on our board of directors.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
THE FORMATION TRANSACTIONS
Concurrently with our initial public offering, Cantor contributed to us certain
of our assets. These assets primarily consist of the proprietary software,
network distribution systems, technologies and related contractual rights that
comprise our eSpeed(R) system. In exchange for these assets, we issued to Cantor
43,999,900 shares of our Class B common stock, representing approximately 98% of
the voting power of our capital stock outstanding at the time. Cantor converted
3,350,000 of these shares into the shares of our Class A common stock which it
sold in our initial public offering in December 1999.
We entered into the agreements described below in connection with the formation
transactions and to help define the terms of our relationship with Cantor in the
future. In an effort to mitigate conflicts of interest between us and Cantor, we
and Cantor have agreed that none of these agreements may be amended without the
approval of a majority of our disinterested directors.
JOINT SERVICES AGREEMENT
Under our Amended and Restated Joint Services Agreement, as amended, with Cantor
and services agreements with TradeSpark, Freedom and Municipal Partners, LLC, we
own and operate the electronic trading systems and are responsible for providing
electronic brokerage services, and Cantor, TradeSpark, Freedom and Municipal
Partners, LLC provide voice-assisted brokerage services, clearance, settlement
and other fulfillment and related services, such as credit and risk management
services, oversight of client suitability and regulatory compliance, sales
positioning of products and other services customary to brokerage operations.
Our agreement with Cantor provides for a perpetual term.
3
REVENUE SHARING ARRANGEMENTS
Under our Amended and Restated Joint Services Agreement, as amended, with Cantor
and services agreements with TradeSpark, Freedom and Municipal Partners, LLC, we
own and operate the electronic trading system and are responsible for providing
electronic brokerage services, and Cantor, TradeSpark, Freedom or Municipal
Partners, LLC provides voice-assisted brokerage services, fulfillment services,
such as clearance and settlement, and related services, such as credit risk
management services, oversight of client suitability and regulatory compliance,
sales positioning of products and other services customary to marketplace
intermediary operations. In general, for fully electronic transactions, we
receive 65% of the transaction revenues and Cantor, TradeSpark or Freedom
receives 35% of the transaction revenues. We and Municipal Partners, LLC each
receive 50% of the fully electronic revenues related to municipal bonds. In
general, for voice-assisted brokerage transactions we receive 7% of the
transaction revenues, in the case of Cantor transactions, and 35% of the
transaction revenues, in the case of TradeSpark or Freedom transactions. In
addition, we receive 25% of the net revenues from Cantor's gaming business.
SOFTWARE SOLUTION SERVICES
We also provide to Cantor, TradeSpark, Freedom and Municipal Partners, LLC
software solution services, including (1) systems administration; (2) internal
network support; (3) support and procurement for desktops of end-user equipment;
(4) operations and disaster recovery services; (5) voice and data
communications; (6) support and development of systems for clearance, settlement
and other fulfillment services; (7) systems support for broker; (8) electronic
applications systems and network support and development; and (9) provision
and/or implementation of existing electronic applications systems, including
improvements and upgrades thereto, and use of the related intellectual property
rights. In general, we charge Cantor, TradeSpark and Freedom the actual direct
and indirect costs, including overhead, that we incur in performing these
services. We charge Municipal Partners, LLC an amount based on the actual direct
and indirect costs, including overhead, of providing such services. In exchange
for a 25% share of the net revenues from Cantor's gaming businesses, we are
obligated to spend and do not get reimbursed for the first $750,000 each quarter
of costs of providing support and development services for such gaming
businesses.
INTELLECTUAL PROPERTY
Cantor has granted to us a license covering Cantor's patents and patent
applications that relate to our eSpeed(R) system. The license is perpetual,
irrevocable, worldwide and royalty free and is exclusive, except in the event
that (1) we are unwilling to provide to Cantor any requested services covered by
the patents with respect to a marketplace and Cantor elects not to require us to
do so, or we are unable to provide such services or (2) we do not exercise our
right of first refusal to provide to Cantor electronic brokerage services with
respect to a marketplace, in which events Cantor will have a limited right to
use the patents and patent applications solely in connection with the operation
of that marketplace. Cantor will cooperate with us, at our expense, in any
attempt by us to prevent any third party infringement of our patent rights under
the license. Cantor has also granted to us a non-exclusive, perpetual,
irrevocable worldwide, royalty-free right and license to use the servicemarks
"Cantor Exchange(SM)," "Interactive Matching(SM)," "MOLE(SM)" and "CX(SM)".
NON-COMPETITION AND MARKET OPPORTUNITY PROVISIONS
The Joint Services Agreement imposes performance obligations on us and restricts
our ability to compete with Cantor and Cantor's ability to compete with us in
markets that we and Cantor traditionally operate. We and Cantor have agreed to
exclude the TradeSpark and Freedom marketplaces from the provisions of the Joint
Services Agreement in order to enable us to enter into separate agreements in
connection with the new marketplaces.
4
ADMINISTRATIVE SERVICES AGREEMENT
Under our Administrative Services Agreement with Cantor, Cantor provides certain
administrative and management services to us. Cantor makes available to us some
of its administrative and other staff, including its internal audit, treasury,
legal, tax, insurance, human resources, facilities, corporate development and
accounting staffs. Members of these staffs arrange for our insurance coverage
and provide a wide array of services, including administration of our personnel
and payroll operations, benefits administration, internal audits, facilities
management, promotional sales and marketing, legal, risk management, accounting
and tax preparation and other services. We reimburse Cantor for the actual costs
incurred by Cantor, plus other reasonable costs, including reasonably allocated
overhead and any applicable taxes. We have also entered into arrangements with
Cantor under which we have the right to use certain assets, principally computer
equipment, from Cantor. These assets are subject to operating leases with third
party leasing companies. Under the Administrative Services Agreement, we provide
sales, marketing and public relations services to Cantor. Cantor reimburses us
for the actual costs incurred by us, plus other reasonable costs, including
reasonably allocated overhead. The Administrative Services Agreement has a
three-year term which will renew automatically for successive one-year terms
unless canceled by either us or Cantor upon six months' prior notice; provided,
however, that our right to use our London office space expires at the earlier of
(1) the time Cantor's lease expires in 2016 or (2) until Cantor ceases to be an
affiliate of ours and Cantor asks us to vacate.
Pursuant to the Administrative Services Agreement, Cantor is required to obtain
for us, among other things, property and casualty insurance of not less than $40
million and business interruption insurance of $25 million. Cantor has procured
insurance coverage for us in these respective amounts; however, we are listed on
this insurance policy as one of several insured parties, together with Cantor
and several of its affiliates. This insurance policy is for aggregate amounts in
excess of the amounts set forth above. The Administrative Services Agreement
does not provide for the allocation of the proceeds among the named insureds.
Insurance proceeds paid to date have been paid to Cantor on behalf of all
parties named on the policy, and Cantor has allocated these proceeds among the
insured parties. Pursuant to this allocation, we received approximately $20.5
million of property insurance proceeds in 2001 with respect to fixed assets of
ours that were destroyed as a result of the September 11 Events.
REGISTRATION RIGHTS AGREEMENT
Pursuant to the Registration Rights Agreement entered into by Cantor and us,
Cantor has received piggyback and demand registration rights.
The piggyback registration rights allow Cantor to register the shares of our
Class A common stock issued or issuable to it in connection with the conversion
of its shares of our Class B common stock whenever we propose to register any
shares of our Class A common stock for our own or another's account under the
Securities Act for a public offering, other than any shelf registration of
shares of our Class A common stock to be used as consideration for acquisitions
of additional businesses and registrations relating to employee benefit plans.
Cantor also has the right, on three occasions, to require that we register under
the Securities Act any or all of the shares of our Class A common stock issued
or issuable to it in connection with the conversion of its shares of our Class B
common stock. The demand and piggyback registration rights apply to Cantor and
to any transferee of shares held by Cantor who agrees to be bound by the terms
of the Registration Rights Agreement.
We have agreed to pay all costs of one demand and all piggyback registrations,
other than underwriting discounts and commissions. We have also agreed to
indemnify Cantor and any transferee for certain liabilities they may
5
incur in connection with the exercise of their registration rights. All of these
registration rights are subject to conditions and limitations, including (1) the
right of underwriters of an offering to limit the number of shares included in
that registration; (2) our right not to effect any demand registration within
six months of a public offering of our securities; and (3) that Cantor agrees to
refrain from selling its shares during the period from 15 days prior to and 90
days after the effective date of any registration statement for the offering of
our securities.
POTENTIAL CONFLICTS OF INTEREST AND COMPETITION WITH CANTOR
Various conflicts of interest between us and Cantor may arise in the future in a
number of areas relating to our past and ongoing relationships, including
potential acquisitions of businesses or properties, the election of new
directors, payment of dividends, incurrence of indebtedness, tax matters,
financial commitments, marketing functions, indemnity arrangements, service
arrangements, issuances of our capital stock, sales or distributions by Cantor
of its shares of our common stock and the exercise by Cantor of control over our
management and affairs. Four of our directors and a majority of our officers
also serve as directors and/or officers of Cantor. Simultaneous service as an
eSpeed director or officer and service as a director or officer, or status as a
partner, of Cantor could create or appear to create potential conflicts of
interest when such directors, officers and/or partners are faced with decisions
that could have different implications for us and for Cantor. Mr. Lutnick, our
Chairman, President and Chief Executive Officer, is the sole stockholder of the
managing general partner of Cantor. As a result, Mr. Lutnick controls Cantor.
Cantor owns shares of our Class A common stock and Class B common stock
representing approximately 90.4% of the Total Voting Power of our capital stock.
Mr. Lutnick's simultaneous service as our Chairman, President and Chief
Executive Officer and his control of Cantor could create or appear to create
potential conflicts of interest when Mr. Lutnick is faced with decisions that
could have different implications for us and for Cantor.
Our relationship with Cantor may result in agreements that are not the result of
arm's-length negotiations. As a result, the prices charged to us or by us for
services provided under agreements with Cantor may be higher or lower than
prices that may be charged by third parties and the terms of these agreements
may be more or less favorable to us than those that we could have negotiated
with third parties. However, transactions between us and Cantor and/or its other
affiliates are subject to the approval of a majority of our independent
directors. In addition, Cantor can compete with us under certain circumstances.
WILLIAMS AND DYNEGY
On June 5, 2000, each of Williams Energy Marketing & Trading and Dynegy
purchased a unit consisting of (a) 789,071 shares of our Class A common stock
and (b) warrants exercisable for the purchase of up to 666,666 shares of our
Class A common stock, for an aggregate purchase price for the unit of $25.0
million. The warrants have a per share exercise price of $35.20, a 10-year term
and are exercisable commencing on December 5, 2005, subject to acceleration
under certain prescribed circumstances. Acceleration results from the investment
by Williams and/or Dynegy, along with at least two additional participants, in
four new electronic and telephonic verticals to be formed by us and Cantor,
which we refer to as Qualified Verticals, by an agreed upon date. The initial
agreed upon date of June 2001 has been extended by the parties for a period not
to exceed two years. We refer to such period as the Presentment Period. The
Presentment Period operates in three month increments, and is subject to the
right of Dynegy and Williams to refuse to grant an additional three month
extension on not less than 30 days' prior notice to us. In connection with the
four Qualified Verticals, Williams and, subject to certain limitations, Dynegy,
will be entitled to invest $25.0 million in shares of our Class A common stock
at a 10% discount to the trading price of our Class A common stock determined at
the time of the investment in the Qualified Vertical. If we present Qualified
Vertical opportunities in accordance with the terms of the agreements, and
either Williams or Dynegy does not invest in at least four Qualified Verticals,
the non-investing entity will be required to make a
6
$2,500,000 payment to us for each investment not made, up to a maximum of $10
million. Williams and Dynegy have already invested in the first Qualified
Vertical presented to it, Tradespark.
At such time as Williams and Dynegy (or their permitted affiliate assignees)
have made an aggregate equity investment in us of an amount equal to at least
$100.0 million, valued on a cost basis (and for so long as such parties maintain
ownership of equity securities having such cost basis), Cantor will use its best
efforts to cause one designee jointly selected by Williams and Dynegy to be
nominated to our board of directors and to vote its shares of common equity in
favor of such designee.
In connection with the Williams and Dynegy transactions, we purchased from
Cantor 789,071 shares of our Class A common stock, representing half of the
number of shares of our Class A common stock sold by us to Williams and Dynegy,
for a purchase price of $25.0 million. In addition, Cantor has agreed to sell
half of the number of shares to be purchased by Williams and Dynegy, in the
aggregate, each time an additional investment right is exercised in connection
with a new Qualified Vertical for the same purchase price per share as is paid
by Williams and Dynegy at the time.
TRADESPARK
On September 22, 2000, we made a cash investment in TradeSpark of $2.0 million
in exchange for a 5% interest in TradeSpark, and Cantor made a cash investment
of $4.25 million in TradeSpark and agreed to contribute to TradeSpark certain
assets relating to its voice brokerage business in certain energy products in
exchange for a 28.33% interest in TradeSpark. We and Cantor also executed an
amendment to the Joint Services Agreement in order to enable each of us to
engage in this business transaction. The remaining 66.67% interest in TradeSpark
was purchased by energy industry market participants (EIPs). In connection with
such investment, we entered into a perpetual technology services agreement with
TradeSpark pursuant to which we provide the technology infrastructure for the
transactional and technology related elements of the TradeSpark marketplace as
well as certain other services to TradeSpark in exchange for specified
percentages of transaction revenues from the marketplace. If a transaction is
fully electronic, we receive 65% of the aggregate transaction revenues and
TradeSpark receives 35% of the transaction revenues. In general, if TradeSpark
provides voice-assisted brokerage services with respect to a transaction, then
we receive 35% of the revenues and TradeSpark receives 65% of the revenues.
Cantor also entered into an administrative services agreement with TradeSpark
pursuant to which it provideS administrative services to TradeSpark at cost. We
and Cantor each received representation rights on the management committee of
TradeSpark in proportion to our ownership interests in TradeSpark.
In order to provide incentives to the EIPs to trade on the TradeSpark electronic
marketplace, which will result in commissions to us under the TradeSpark
technology services agreement, we issued 5,500,000 shares of our Series A
preferred stock and 2,500,000 shares of our Series B preferred stock to a
limited liability company newly-formed by the EIPs to hold their investments in
TradeSpark and the Series A and B preferred stock.
MUNICIPAL PARTNERS
In January 2002, Cantor sold the assets of the business known as Municipal
Partners, Inc., a municipal bond broker, to a newly formed limited company,
Municipal Partners, LLC, formed by Brian Kelly, a former employee of Cantor, in
exchange for a 25% special interest in Municipal Partners LLC. Cantor had
purchased substantially all of the assets of Municipal Partners, Inc. in July
2000. Cantor also loaned $1,000,000 to Municipal Partners, LLC and is entitled
to distributions equal to 5% of the gross revenues of the business less the
amount of our revenue share for electronic transactions. Pending receipt of
applicable licenses by Municipal Partners, LLC, Cantor provided Municipal
Partners, LLC with interim services. In connection with the sale, we (1) granted
Municipal Partners LLC a non-exclusive license to use our software and
technology to operate a municipal bond
7
brokerage business; (2) will maintain our municipal bond trading platform and
provide the software capabilities that were in place in Cantor's municipal bond
business (we are to be compensated for upgrading the trading platform at cost
plus a reasonable profit or at prevailing rates, at our election); (3) will
provide web-hosting, technical and customer support at cost plus a reasonable
fee to Municipal Partners LLC; (4) will receive 50% of gross revenues of
Municipal Partners LLC with respect to electronic transactions; and (5)
terminated existing arrangements with former brokers in the business (some of
whom are deceased) pursuant to which we had given them shares of our Class A
common stock valued at $1,250,000 in exchange for promissory notes in the same
amount with the result that the notes were terminated and the shares were
cancelled.
FREEDOM INTERNATIONAL BROKERAGE
On January 29, 2001, we and Cantor formed a limited partnership to acquire 66.7%
of Freedom International Brokerage. On April 4, 2001, we contributed 310,770
shares of our Class A common stock to the limited partnership, which entitles us
to 75% of the limited partnership's interest in Freedom. We share in 15% of the
limited partnership's cumulative profits but not in its cumulative losses.
Cantor contributed 103,589 shares of our Class A common stock as the general
partner. Cantor will be allocated all of the limited partnership's cumulative
losses and 85% of the cumulative profits. The limited partnership exchanged the
414,359 shares for its 66.7% interest in Freedom. In addition, we issued
warrants to purchase 400,000 shares of our Class A common stock to provide
incentives to the Freedom owner-participants other than us and Cantor to migrate
to our fully electronic platform. To the extent necessary to protect us from any
allocation of losses, Cantor is required to provide future capital contributions
to the limited partnership up to an amount that would make Cantor's total
contribution equal to our investment in the limited partnership.
Upon the closing of the transaction, we entered into a services agreement with
Freedom to provide for electronic trading technology and services and
infrastructure/back-offices services. Under this agreement, we are entitled to
65% of the electronic transaction services revenues and Freedom is entitled to
35% of the revenues. We also receive 35% of revenues derived from all
voice-assisted transactions, other miscellaneous transactions and the sale of
market data or other information that is not incidental to the above services.
OUR EMPLOYEES' PURCHASE OF CANTOR FITZGERALD, L.P. PARTNERSHIP UNITS
We paid a cash bonus to six of our employees totalling $2.3 million in early
2001. These employees used the after-tax amount of the bonus to purchase units
in Cantor Fitzgerald, L.P. Three of these persons, one of whom is Mr. Noviello,
our Executive Vice President and Chief Information Officer, are still employees
of ours. With respect to these persons, when an employee is no longer a partner
of Cantor (typically if he ceases to be employed by us), and if the employee has
been employed by us for a period of more than four years and does not go to work
for a competitor, then the employee will receive his capital in Cantor in four
equal annual installments, with interest at an applicable federal rate. Amounts
not paid to an employee who leaves before the fourth anniversary, or who leaves
and competes with us, Cantor or any of its affiliates, will be paid to us.
INDEMNIFICATION BY CANTOR
Although we do not expect to incur any losses with respect to pending lawsuits
or supplemental allegations relating to Cantor and Cantor's limited partnership
agreement, Cantor has agreed to indemnify us with respect to any liabilities we
incur as a result of such lawsuits or allegations.
8
REVERSE REPURCHASE AGREEMENTS
We enter into overnight reverse repurchase agreements with Cantor. At December
31, 2001, the reverse repurchase agreements totaled $157.3 million, including
accrued interest. The securities collateralizing the reverse repurchase
agreements are held under a custodial arrangement with a third party bank.
9
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this Annual Report on Form 10-K/A to
be signed on its behalf by the undersigned, thereunto duly authorized, on the
15th day of October, 2002.
eSPEED, INC.
By: /s/ Howard W. Lutnick
-------------------------------------
Name: Howard W. Lutnick
Title: Chairman of the Board,
Chief Executive Officer
and President
10
Certifications Pursuant to Section 302
of the Sarbanes-Oxley Act of 2002
I, Howard W. Lutnick, certify that:
1. I have reviewed this annual report on Form 10-K/A of eSpeed, Inc.; and
2. Based on my knowledge, this annual report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this annual
report.
Date: October 15, 2002 /s/ Howard W. Lutnick
-----------------------------------------
Howard W. Lutnick
Chairman of the Board,
Chief Executive Officer and President
I, Jeffrey M. Chertoff, certify that:
1. I have reviewed this annual report on Form 10-K/A of eSpeed, Inc.; and
2. Based on my knowledge, this annual report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this annual
report.
Date: October 14, 2002 /s/ Jeffrey M. Chertoff
-----------------------------------------
Jeffrey M. Chertoff
Senior Vice President and
Chief Financial Officer
11