AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 15, 1999
_______________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
________________
EXCHANGE APPLICATIONS, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 04-3338916
(State or Other Jurisdiction of Incorporation (I.R.S. Employer
or Organization) Identification No.)
89 SOUTH STREET, BOSTON, MASSACHUSETTS 02111
(Address of Principal Executive Offices) (ZIP Code)
________________
Exchange Applications, Inc. 1996 Stock Incentive Plan
Exchange Applications, Inc. 1998 Stock Incentive Plan
Exchange Applications, Inc. 1998 Director Stock Option Plan
Exchange Applications, Inc. 1998 Employee Stock Purchase Plan
(Full titles of the plans)
________________
ANDREW J. FRAWLEY
Chairman of the Board, President
and Chief Executive Officer
EXCHANGE APPLICATIONS, INC.
89 South Street
Boston, MA 02111
(Name and Address of Agent for Service)
(617) 737-2244
Telephone Number, Including Area Code, of Agent for Service
Copies to:
NEIL W. TOWNSEND, ESQ.
BINGHAM DANA LLP
150 Federal Street
Boston, Massachusetts 02110-1726
(617) 951-8000
CALCULATION OF REGISTRATION FEE
<TABLE>
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<S> <C> <C> <C> <C>
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE (1) FEE
- -----------------------------------------------------------------------------------------------------
Common Stock,
$.001 par value............ 6,724,963 $35.82 $240,888,175 $66,966.91
- -----------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, as amended, based on
the average of the high and low prices of the Registrant's Common Stock, $0.001
par value per share, as reported on the Nasdaq National Market on July 13,
1999. It is not known how many shares will be purchased under the plans or at
what price such shares will be purchased.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Exchange Applications, Inc. (the
"Registrant") with the Securities and Exchange Commission (the "SEC") are
hereby incorporated by reference into this Registration Statement: (1) the
Registrant's Annual Report on Form 10-K for the fiscal year ended December 31,
1998; (2) all reports filed by the Registrant pursuant to Sections 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since the end of the Registrant's 1998 fiscal year; and (3) the description of
the Common Stock contained in the Registrant's registration statement on Form
8-A filed with the SEC on July 23, 1998 under Section 12(g) of the Exchange
Act, including any amendment or report filed for the purpose of updating such
description.
In addition, all documents subsequently filed by the Registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing
of a post-effective amendment that indicate that all securities offered hereby
have been sold or that deregisters all of such securities then remaining
unsold, shall be deemed to be incorporated by reference into this Registration
Statement and to be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law empowers a Delaware
corporation to indemnify its officers and directors and certain other persons
to the extent and under the circumstances set forth therein.
The Amended and Restated Certificate of Incorporation and the Amended and
Restated By-Laws of the Registrant, copies of which are filed herein as
exhibits, provide for indemnification of officers and directors of the
Registrant and certain other persons against liabilities and expenses incurred
by any of them in certain stated proceedings and under certain stated
conditions.
The Registrant intends to maintain insurance for the benefit of its
directors and officers, insuring such persons against certain liabilities,
including liabilities under the securities laws.
The above discussion of the Registrant's Amended and Restated Certificate
of Incorporation and Amended and Restated By-Laws and Section 145 of the
Delaware General Corporation Law is not exhaustive, and is qualified in its
entirety by the full text of those documents and law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
<PAGE>
ITEM 8. EXHIBITS.
The following exhibits are filed as part of this Registration Statement:
4.1 Form of Amended and Restated Certificate of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.1 to the Registrant's
Registration Statement on Form S-1, dated July 22, 1998, File No.
333-59613)
4.2 Form of Amended and Restated By-laws of the Registrant (incorporated by
reference to Exhibit 3.2 to the Registrant's Registration Statement on
Form S-1, dated July 22, 1998, File No. 333-59613)
4.3 Form of 1998 Stock Incentive Plan of the Registrant (incorporated by
reference to Exhibit 10.1 to Pre-Effective No. 1 to the Company's
Registration Statement on Form S-1, dated July 22, 1998, File No.
333-59613)
4.4 1996 Stock Incentive Plan, as amended, of the Registrant (incorporated by
reference to Exhibit 10.2 to the Registrant's Registration Statement on
Form S-1, dated July 22, 1998, File No. 333-59613)
4.5 Form of 1998 Director Stock Option Plan of the Registrant (incorporated by
reference to Exhibit 10.3 to the Registrant's Registration Statement on
Form S-1, dated July 22, 1998, File No. 333-59613)
4.6 Form of 1998 Employee Stock Purchase Plan of the Registrant (incorporated
by reference to Exhibit 10.4 to the Registrant's Registration Statement on
Form S-1, dated July 22, 1998, File No. 333-59613)
5.1 Opinion and Consent of Bingham Dana LLP with respect to the legality of
the shares being registered.
23.1 Consent of Bingham Dana LLP (included in Exhibit 5).
23.2 Consent of Arthur Andersen LLP.
24 Power of Attorney (included in signature page).
ITEM 9. UNDERTAKINGS.
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 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;
(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;
<PAGE>
(4) That, for purposes of determining any liability under the Securities Act of
1933, as amended, each filing of the Registrant's annual report pursuant to
Sections 13(a) or 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 this 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; and
(5) 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Boston, Commonwealth of Massachusetts, on this
15th day of July, 1999.
EXCHANGE APPLICATIONS, INC.
By: /s/ Andrew J. Frawley
------------------------
Andrew J. Frawley
Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby appoints Andrew J. Frawley and John G. O'Brien and each of them
severally, acting alone and without the other, his true and lawful
attorney-in-fact with the authority to execute in the name of each such person,
and to file with the Securities and Exchange Commission, together with any
exhibits thereto and other documents therewith, any and all amendments
(including without limitation post-effective amendments) to this Registration
Statement on Form S-8 necessary or advisable to enable the Registrant to comply
with the Securities Act of 1933, as amended, and any rules, regulations, and
requirements of the Securities and Exchange Commission in respect thereof,
which amendments may make such other changes in the Registration Statement as
the aforesaid attorney-in-fact executing the same deems appropriate.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated:
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<CAPTION>
<S> <C> <C>
SIGNATURE TITLE DATE
/s/ Andrew J. Frawley Chairman of the Board, President, July 15, 1999
- ------------------------- Chief Executive Officer and Director
Andrew J. Frawley (Principal Executive Officer)
/s/ John G. O'Brien Vice President, Chief Financial Officer, July 15, 1999
- ------------------------- Treasurer and Secretary
John G. O'Brien (Principal Financial and Accounting Officer)
/s/ Dean F. Goodermote Director July 15, 1999
- -------------------------
Dean F. Goodermote
/s/ Jeffrey Horing Director July 15, 1999
- -------------------------
Jeffrey Horing
/s/ Ramanan Raghavendran Director July 15, 1999
- -------------------------
Ramanan Raghavendran
</TABLE>
<PAGE>
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
4.1 Form of Amended and Restated Certificate of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.1 to the Registrant's
Registration Statement on Form S-1, dated July 22, 1998, File No.
333-59613)
4.2 Form of Amended and Restated By-laws of the Registrant (incorporated by
reference to Exhibit 3.2 to the Registrant's Registration Statement on
Form S-1, dated July 22, 1998, File No. 333-59613)
4.3 Form of 1998 Stock Incentive Plan of the Registrant (incorporated by
reference to Exhibit 10.1 to Pre-Effective No. 1 to the Company's
Registration Statement on Form S-1, dated July 22, 1998, File No.
333-59613)
4.4 1996 Stock Incentive Plan, as amended, of the Registrant (incorporated by
reference to Exhibit 10.2 to the Registrant's Registration Statement on
Form S-1, dated July 22, 1998, File No. 333-59613)
4.5 Form of 1998 Director Stock Option Plan of the Registrant (incorporated by
reference to Exhibit 10.3 to the Registrant's Registration Statement on
Form S-1, dated July 22, 1998, File No. 333-59613)
4.6 Form of 1998 Employee Stock Purchase Plan of the Registrant (incorporated
by reference to Exhibit 10.4 to the Registrant's Registration Statement on
Form S-1, dated July 22, 1998, File No. 333-59613)
5.1 Opinion and Consent of Bingham Dana LLP with respect to the legality of
the shares being registered.
23.1 Consent of Bingham Dana LLP (included in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP.
24 Power of Attorney (included in signature page to Registration Statement).
<PAGE>
Exhibit 5.1
BINGHAM DANA LLP
150 Federal Street
Boston, Massachusetts 02110
(617) 951-8000
July 15, 1999
Exchange Applications, Inc.
89 South Street
Boston, MA 02111
Re: FORM S-8 REGISTRATION STATEMENT
Ladies and Gentlemen:
We have acted as counsel for Exchange Applications, Inc., a Delaware
corporation (the "Company"), in connection with the Company's Registration
Statement on Form S-8, to be filed with the Securities and Exchange Commission
on July 15, 1999 (the "Registration Statement").
The Registration Statement effects the registration of 6,724,963 shares of
the common stock, $0.001 par value per share, of the Company (the "Shares"),
which are to be issued by the Company pursuant to the Company's 1996 Stock
Incentive Plan, 1998 Stock Incentive Plan, 1998 Director Stock Option Plan and
1998 Employee Stock Purchase Plan (collectively, the "Plans").
We have reviewed the corporate proceedings of the Company with respect to
the authorization of the Plan and the issuance of the Shares thereunder. We
have also examined and relied upon originals or copies, certified or otherwise
identified or authenticated to our satisfaction, of such agreements,
instruments, corporate records, certificates, and other documents as we have
deemed necessary or appropriate as a basis for the opinions hereinafter
expressed. In our examination, we have assumed the genuineness of all
signatures, the conformity to the originals of all documents reviewed by us as
copies, the authenticity and completeness of all original documents reviewed by
us in original or copy form, and the legal competence of each individual
executing any document.
We further assume, without investigation, that all Shares issued pursuant
to the Plans will be issued in accordance with the terms of such Plans and that
the purchase price of each of the Shares will be at least equal to the par
value of such Shares. Without prejudice to the generality of the foregoing, we
assume that in connection with each award of shares of restricted stock under
the Plans, the Company will require the recipient of the award upon issuance of
<PAGE>
such shares to pay a cash purchase price at least equal to the par value of
such shares.
Subject to the limitations set forth below, we have made such examination
of law as we have deemed necessary for the purposes of this opinion. This
opinion is limited solely to the Delaware General Corporation Law as applied by
courts located in Delaware.
Based upon and subject to the foregoing, we are of the opinion that the
Shares, when issued and delivered upon the exercise of options or grant of
restricted stock awards pursuant to the Plans and against the payment of the
purchase price therefor, will be validly issued, fully paid, and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Bingham Dana LLP
BINGHAM DANA LLP
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
reports (and to all references to our Firm) included in or made part of this
registration statement.
Arthur Andersen LLP
Boston, Massachusetts
July 15, 1999
