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As filed with the Securities and Exchange Commission on November 1, 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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eSPEED, INC.
(Exact name of Registrant as specified in its charter)
Delaware 13-4063515
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
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One World Trade Center
103rd Floor
New York, New York 10048
(212) 938-3773
(Address, including Zip Code, of Principal Executive Offices)
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eSPEED, INC. NON-QUALIFIED EMPLOYEE STOCK PURCHASE PLAN
eSPEED, INC. DEFERRAL PLAN FOR EMPLOYEES OF
CANTOR FITZGERALD, L.P. AND ITS AFFILIATES
(Full Title of the Plans)
----------------
Stephen M. Merkel, Esq.
Senior Vice President,
General Counsel and Secretary
eSpeed, Inc.
One World Trade Center
105th Floor
New York, New York 10048
(212) 938-3773
(Name, address, and telephone number,
including area code, of agent for service)
----------------
Copies to:
Christopher T. Jensen, Esq.
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, New York 10178
(212) 309-6000
Fax: (212) 309-6273
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===============================================================================================================================
Proposed maximum
Title of securities to Amount to be offering price Proposed maximum Amount of
be registered (1) registered(1) per share(2) aggregate offering price registration fee(3)
-------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A common stock, $.01 par value 1,500,000 shares $ 17.875 $ 26,812,500 $ 7,078.50
===============================================================================================================================
</TABLE>
(1) Includes (i) 1,000,000 shares of Class A common stock for the eSpeed,
Inc. Non-Qualified Employee Stock Purchase Plan (the "Stock Purchase
Plan"), (ii) 500,000 shares of Class A common stock for the eSpeed,
Inc. Deferral Plan for Employees of Cantor Fitzgerald, L.P. and its
Affiliates (the "Deferral Plan") and (iii) pursuant to Rule 416(a)
under the Securities Act of 1933, as amended, an indeterminate number
of additional shares of Class A common stock which may become issuable
as a result of stock splits, stock dividends, or similar transactions
in accordance with the anti-dilution provisions of the Stock Purchase
Plan and the Deferral Plan. In addition, pursuant to Rule 416(c) under
the Securities Act, this registration statement also covers an
indeterminate amount of interests to be offered or sold pursuant to
the Deferral Plan. Pursuant to Rule 457(h)(2) under the Securities
Act, no registration fee is required with respect to such interests in
the Deferral Plan.
(2) Calculated pursuant to Rules 457(c) and (h) under the Securities Act,
based upon the average of the high and low prices for the Class A
common stock as reported on the Nasdaq National Market on October 25,
2000.
(3) Calculated pursuant to Section 6(b) of the Securities Act, as follows:
proposed maximum aggregate offering price multiplied by .000264.
2
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
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Item 2. Registrant Information and Employee Plan Annual Information.*
-----------------------------------------------------------
* Information required by Part I to be contained in the Section 10(a)
prospectus for each plan is omitted from this registration statement
in accordance with Rule 428 under the Securities Act and the
Explanatory Note to Part I of this Form S-8.
I-1
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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 Securities and Exchange
Commission are incorporated by reference in this Registration Statement:
(a) The description of our Class A common stock, par value $.01 per
share, contained in our Registration Statement on Form 8-A (File No. 000-28191)
filed with the SEC on November 17, 1999, including any amendment or report filed
for the purpose of updating this description.
(b) Our Annual Report on Form 10-K for the period ended December 31,
1999 filed with the SEC on March 29, 2000.
(c) Our Quarterly Report on Form 10-Q for the quarter ended March 31,
2000 filed with the SEC on May 11, 2000.
(d) Our Quarterly Report on Form 10-Q for the quarter ended June 30,
2000 filed with the SEC on August 14, 2000.
All reports and other documents subsequently filed by us and the
Deferral Plan pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended, 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.
II-1
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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 or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law.
Section 145 of the General Corporation Law of the State of Delaware
permits us to indemnify officers, directors or employees against expenses,
including attorneys' 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 reasonably believed to be in or not opposed to our
best interests and, with respect to any criminal act or proceeding, if he or she
had no reasonable cause to believe his or her 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 determines 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
with the action.
Our Amended and Restated 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 provisions or otherwise as a matter of
law.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not Applicable.
Item 8. Exhibits.
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Exhibit Description
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4.1 Amended and Restated Certificate of Incorporation of
eSpeed, Inc. -- Incorporated by reference to Exhibit
3.1 to Amendment No. 3 to eSpeed, Inc.'s
Registration Statement on Form S-1 (Registration No.
333-87475) filed with the SEC on December 2, 1999.
II-2
<PAGE>
4.2 Second Amended and Restated By-Laws of eSpeed, Inc.
- Incorporated by reference to Exhibit 3(ii) to
eSpeed, Inc.'s Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 2000 filed with the
SEC on May 11, 2000.
4.3 eSpeed, Inc. Non-Qualified Employee Stock Purchase
Plan.
4.4 eSpeed, Inc. Deferral Plan for Employees of Cantor
Fitzgerald, L.P. and its Affiliates.
4.5 Specimen Class A Common Stock Certificate -
Incorporated by reference to Exhibit 4 to Amendment
No. 1 to eSpeed, Inc.'s Registration Statement on
Form S-1 (Registration No. 333-87475) filed with the
SEC on November 15, 1999.
5.1 Opinion of Morgan, Lewis & Bockius LLP.
5.2 The Registrant will submit or has submitted the
eSpeed, Inc. Deferral Plan for Employees of Cantor
Fitzgerald, L.P. and its Affiliates (the Plan) and
any amendment thereto to the Internal Revenue
Service (the IRS) in a timely manner and has made or
will make all changes required by the IRS in order
to qualify the Plan.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Morgan, Lewis & Bockius LLP (included in
Exhibit 5.1).
24 Powers of Attorney (included on page II-5 of this
Registration Statement).
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. Notwithstanding the foregoing, any increase or
decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which
was registered) and
II-3
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any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of the
prospectus filed with the SEC pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no
more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective 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) above do not apply
if the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the SEC
by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-4
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 the 26th day of
October, 2000.
eSpeed, Inc.
By: /s/ Howard W. Lutnick
--------------------------------
Howard W. Lutnick
Chairman of the Board and
Chief Executive Officer
Each person whose signature appears below constitutes and appoints
Howard W. Lutnick, Frederick T. Varacchi and Douglas B. Gardner, and each of
them, with full power to act without the other, such person's true and lawful
attorneys-in-fact and agents, 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 attorneys-in-fact and
agents 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
attorneys-in-fact and agents, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following individuals in the capacities
and on the date or dates indicated.
<TABLE>
<S> <C> <C>
/s/ Howard W. Lutnick Chairman of the Board and Chief October 26, 2000
--------------------------------- Executive Officer (Principal
Howard W. Lutnick Executive Officer)
/s/ Jeffrey G. Goldflam Senior Vice President and Chief October 26, 2000
--------------------------------- Financial Officer
Jeffrey G. Goldflam (Principal Financial and Accounting
Officer)
/s/ Frederick T. Varacchi President and Chief Operating October 26, 2000
--------------------------------- Officer and Director
Frederick T. Varacchi
</TABLE>
II-5
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<TABLE>
<S> <C> <C>
/s/ Douglas B. Gardner Vice Chairman October 26, 2000
---------------------------------
Douglas B. Gardner
/s/ Richard C. Breeden Director October 26, 2000
---------------------------------
Richard C. Breeden
/s/ Larry R. Carter Director October 26, 2000
---------------------------------
Larry R. Carter
/s/ William J. Moran Director October 26, 2000
---------------------------------
William J. Moran
/s/ Joseph P. Shea Director October 26, 2000
---------------------------------
Joseph P. Shea
</TABLE>
Pursuant to the requirements of the Securities Act, the Administrator
of the eSpeed, Inc. Deferral Plan for Employees of Cantor Fitzgerald, L.P. and
its Affiliates 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 the 26th day of October, 2000.
By: Administrative Committee of eSpeed, Inc. Deferral Plan for Employees of
Cantor Fitzgerald, L.P. and its Affiliates, as
Plan Administrator
By: /s/ Frederick T. Varacchi
---------------------------------
Name: Frederick T. Varacchi
Title: Member of the Administrative Committee of eSpeed, Inc. Deferral Plan
for Employees of Cantor Fitzgerald, L.P. and its Affiliates
II-6
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EXHIBIT INDEX
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Exhibit Description
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4.1 Amended and Restated Certificate of Incorporation of
eSpeed, Inc. -Incorporated by reference to Exhibit
3.1 to Amendment No. 3 to eSpeed, Inc.'s
Registration Statement on Form S-1 (Registration No.
333-87475) filed with the SEC on December 2, 1999.
4.2 Second Amended and Restated By-Laws of eSpeed, Inc.
- Incorporated by reference to Exhibit 3(ii) to
eSpeed, Inc.'s Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 2000 filed with the
SEC on May 11, 2000.
4.3 eSpeed, Inc. Non-Qualified Employee Stock Purchase
Plan.
4.4 eSpeed, Inc. Deferral Plan for Employees of Cantor
Fitzgerald, L.P. and its Affiliates.
4.5 Specimen Class A Common Stock Certificate -
Incorporated by reference to Exhibit 4 to Amendment
No. 1 to eSpeed, Inc.'s Registration Statement on
Form S-1 (Registration No. 333-87475) filed with the
SEC on November 15, 1999.
5.1 Opinion of Morgan, Lewis & Bockius LLP.
5.2 The Registrant will submit or has submitted the
eSpeed, Inc. Deferral Plan for Employees of Cantor
Fitzgerald, L.P. and its Affiliates (the Plan) and
any amendment thereto to the Internal Revenue
Service (the IRS) in a timely manner and has made or
will make all changes required by the IRS in order
to qualify the Plan.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Morgan, Lewis & Bockius LLP (included in
Exhibit 5.1).
24 Powers of Attorney (included on page II-5 of this
Registration Statement).
