<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 2, 1999
REGISTRATION NO. 333-78133
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
PRE-EFFECTIVE AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
EXCHANGE APPLICATIONS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 7373 04-3338916
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBERS) IDENTIFICATION NO.)
</TABLE>
89 SOUTH STREET
BOSTON, MASSACHUSETTS 02111
(617) 737-2244
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
ANDREW J. FRAWLEY
CHAIRMAN OF THE BOARD, PRESIDENT
AND CHIEF EXECUTIVE OFFICER
EXCHANGE APPLICATIONS, INC.
89 SOUTH STREET
BOSTON, MASSACHUSETTS 02111
(617) 737-2244
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
WITH COPIES TO:
<TABLE>
<S> <C>
NEIL W. TOWNSEND, ESQ. DAVID C. CHAPIN, ESQ.
BINGHAM DANA LLP ROPES & GRAY
150 FEDERAL STREET ONE INTERNATIONAL PLACE
BOSTON, MASSACHUSETTS 02110 BOSTON, MASSACHUSETTS 02110
(617) 951-8000 (617) 951-7000
FACSIMILE NO. (617) 951-8736 FACSIMILE NO. (617) 951-7050
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier registration statement for the same
offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Expenses of the Registrant in connection with the issuance and distribution
of the securities being registered, other than the underwriting discount, are
estimated as follows:
<TABLE>
<CAPTION>
TOTAL
--------
<S> <C>
SEC Registration Fee........................................ 27,575
NASD Fees................................................... 10,419
Printing and Engraving Expenses............................. 150,000
Legal Fees and Expenses..................................... 200,000
Accountants' Fees and Expenses.............................. 125,000
Expenses of Qualification Under State Securities Laws,
Including Attorneys' Fees................................. 5,000
Transfer Agent and Registrar's Fees......................... 10,000
Miscellaneous Costs......................................... 85,000
--------
Total.................................................. 612,994
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES
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 of the Company and
the Amended and Restated By-laws of the Company, copies of which are filed as
Exhibits 3.1 and 3.2, provide for indemnification of officers and directors of
the Company and certain other persons against liabilities and expenses incurred
by any of them in certain stated proceedings and under certain stated
conditions.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
On November 15, 1996, in connection with the organization of the
Registrant, the Registrant entered into Restricted Stock Agreements dated as of
such date (Restricted Stock Agreements) with certain key employees of the
Registrant. Pursuant to the Restricted Stock Agreements, the Registrant issued
968,575 shares of Restricted Common Stock under the Registrant's 1996 Stock
Incentive Plan to such employees for an aggregate consideration of $968.58 at a
purchase price of $.001 per share.
On November 15, 1996, in addition to the shares of Restricted Common Stock
issued pursuant to the Registrant's 1996 Stock Incentive Plan, (i) the
Registrant issued 848,800 shares of Restricted Common Stock to Andrew J. Frawley
for an aggregate consideration of $848.80 pursuant to a Restricted Stock
Agreement entered into between the Registrant and Andrew J. Frawley, and (ii)
the Registrant issued 667,000 shares of Restricted Common Stock to Michael J.
Feldman for an aggregate consideration of $667.00 pursuant to a Restricted Stock
Agreement entered into between the Registrant and Michael J. Feldman.
The Registrant has, from time to time, repurchased an aggregate of 361,075
shares of common stock from its employees for an aggregate consideration of
$361.08.
On November 15, 1996, in connection with the organization of the
Registrant, the Registrant entered into an Assignment and Assumption Agreement
dated as of such date (Assignment Agreement) with Grant & Partners Limited
Partnership (GPLP) pursuant to which the Registrant
II-1
<PAGE> 3
issued 2,300,000 shares of Series A Convertible Preferred Stock to GPLP and
assumed certain liabilities of GPLP in exchange for certain assets of GPLP.
On March 18, 1997, the Registrant entered into a Securities Purchase
Agreement dated as of such date (Securities Purchase Agreement) with certain of
its existing stockholders and certain new investors. Pursuant to the Securities
Purchase Agreement, (i) the Registrant issued 1,154,775 shares of Series B
Preferred Stock to Insight Venture Partners II, L.P. for an aggregate
consideration of $1,807,222.88, (ii) the Registrant issued 1,154,775 shares of
Series B Preferred Stock to Wexford Insight LLC for an aggregate consideration
of $1,807,222.88, (iii) the Registrant issued 246,006 shares of Series B
Convertible Preferred Stock to GAP Coinvestment Partners, L.P. for an aggregate
consideration of $384,999.39, (iv) the Registrant converted 2,300,000 shares of
Series A Convertible Preferred Stock held by GPLP to 1,725,000 shares of common
stock, (v) the Registrant issued 377,408 shares of a newly designated Series A
Preferred Stock to GPLP in consideration of the cancellation of certain
indebtedness owed by the Registrant to GPLP, and (vi) the Registrant issued
2,522,592 shares of Series A Preferred Stock to Cyrk, Inc. (Cyrk) in
consideration of the cancellation of certain indebtedness owed by the Registrant
to Cyrk.
On October 3, 1997, the Registrant entered into a Subscription Agreement
dated as of such date with Michael Caccavale pursuant to which the Registrant
issued 15,500 shares of common stock to Michael Caccavale for an aggregate
consideration of $13,175.
On December 4, 1997, the Registrant entered into a Securities Purchase
Agreement dated as of such date with Insight Capital Partners II, L.P. and
Wexford Insight LLC pursuant to which (i) the Registrant issued 611,977 shares
of Series C Convertible Preferred Stock to Insight Capital Partners II, L.P. for
an aggregate consideration of $2,000,000, and (ii) the Registrant issued 611,977
shares of Series C Convertible Preferred Stock to Wexford Insight LLC for an
aggregate consideration of $2,000,000.
The Registrant has, from time to time, issued an aggregate of 185,710
shares of Restricted Common Stock to various employees upon the exercise of
options granted pursuant to the Registrant's 1996 Stock Incentive Plan and 1998
Stock Incentive Plan for an aggregate consideration of $153,236.80 at an average
exercise price of $0.83 per share.
No underwriters were involved in the foregoing sales of securities. Such
sales were made in reliance upon an exemption from the registration provisions
of the Securities Act set forth in Section 4(2) thereof relating to sales by an
issuer not involving any public offering or the rules and regulations
thereunder, or, in the case of certain restricted shares, options to purchase
common stock and shares issuable upon the exercise of such options, Rule 701 of
the Act. All of the foregoing securities are deemed restricted securities for
purposes of the Act.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) The following is a list of exhibits filed as a part of this
registration statement:
<TABLE>
<CAPTION>
EXHIBITS
- --------
<C> <S>
1.1* Form of Underwriting Agreement (filed as Exhibit 1.1 to the
Company's Registration Statement on Form S-1, dated May 10,
1999, File No. 333-78133)
3.1* Form of Amended and Restated Certificate of Incorporation of
the Registrant (filed as Exhibit 3.1 to the Company's
Registration Statement on Form S-1, dated July 22, 1998,
File No. 333-59613)
3.2* Form of Amended and Restated By-laws of the Registrant
(filed as Exhibit 3.2 to the Company's Registration
Statement on Form S-1, dated July 22, 1998, File No.
333-59613)
</TABLE>
II-2
<PAGE> 4
<TABLE>
<CAPTION>
EXHIBITS
- --------
<C> <S>
4.1* Specimen Certificate for Shares of the Registrant's Common
Stock, $.001 par value (filed as Exhibit 4.1 to
Pre-Effective No. 3 to the Company's Registration Statement
on Form S-1, dated July 22, 1998, File No. 333-59613)
4.2* Amended and Restated Registration Rights Agreement dated
December 4, 1997 (filed as Exhibit 10.14 to the Company's
Registration Statement on Form S-1, dated July 22, 1998,
File No. 333-59613)
5.1 Opinion of Bingham Dana LLP
10.1* Form of 1998 Stock Incentive Plan, with related forms of
stock option agreements (filed as 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)
10.2* 1996 Stock Incentive Plan, as amended, with related forms of
stock option agreements and form of restricted stock
agreement (filed as Exhibit 10.2 to the Company's
Registration Statement on Form S-1, dated July 22, 1998,
File No. 333-59613)
10.3* Form of 1998 Director Stock Option Plan, with related form
of stock option agreement (filed as Exhibit 10.3 to the
Company's Registration Statement on Form S-1, dated July 22,
1998, File No. 333-59613)
10.4* Form of 1998 Employee Stock Purchase Plan (filed as Exhibit
10.4 to the Company's Registration Statement on Form S-1,
dated July 22, 1998, File No. 333-59613)
10.5* 401(k) Plan (filed as Exhibit 10.5 to the Company's
Registration Statement on Form S-1, dated July 22, 1998,
File No. 333-59613)
10.6* Employment Agreement, dated November 15, 1996, between the
Registrant and Andrew J. Frawley (filed as Exhibit 10.6 to
the Company's Registration Statement on Form S-1, dated July
22, 1998, File No. 333-59613)
10.7* Restricted Stock Agreement, dated November 8, 1996, between
the Registrant and Andrew J. Frawley (filed as Exhibit 10.7
to the Company's Registration Statement on Form S-1, dated
July 22, 1998, File No. 333-59613)
10.8* Consulting Agreement, dated March 18, 1997, between the
Registrant and Exchange Marketing Group, LLC (filed as
Exhibit 10.8 to the Company's Registration Statement on Form
S-1, dated July 22, 1998, File No. 333-59613)
10.9* Securities Purchase Agreement, dated March 18, 1997 (filed
as Exhibit 10.9 to the Company's Registration Statement on
Form S-1, dated July 22, 1998, File No. 333-59613)
10.10* Securities Purchase Agreement, dated December 4, 1997 (filed
as Exhibit 10.10 to the Company's Registration Statement on
Form S-1, dated July 22, 1998, File No. 333-59613)
10.11* Stock Purchase and Waiver Agreement, dated December 4, 1997
(filed as Exhibit 10.11 to the Company's Registration
Statement on Form S-1, dated July 22, 1998, File No.
333-59613)
10.12* Promissory Note, dated December 4, 1997, by Andrew J.
Frawley payable to the Registrant (filed as Exhibit 10.12 to
the Company's Registration Statement on Form S-1, dated July
22, 1998, File No. 333-59613)
10.13* Amended and Restated Stockholders Agreement dated December
4, 1997 (filed as Exhibit 10.13 to the Company's
Registration Statement on Form S-1, dated July 22, 1998,
File No. 333-59613)
10.14* Amended and Restated Registration Rights Agreement, dated
December 4, 1997 (filed as Exhibit 10.14 to the Company's
Registration Statement on Form S-1, dated July 22, 1998,
File No. 333-59613)
</TABLE>
II-3
<PAGE> 5
<TABLE>
<CAPTION>
EXHIBITS
- --------
<C> <S>
10.15* Letter Agreement, dated December 22, 1997, between the
Registrant and Fleet National Bank, as amended, and the
related Promissory Note (filed as Exhibit 10.15 to the
Company's Registration Statement on Form S-1, dated July 22,
1998, File No. 333-59613)
10.16* Stock Purchase Agreement, dated June 25, 1998, and the
related Waiver Agreement to the Amended and Restated
Stockholders Agreement, dated June 25, 1998 (filed as
Exhibit 10.16 to the Company's Registration Statement on
Form S-1, dated July 22, 1998, File No. 333-59613)
10.17* Office lease for 89 South Street, Boston, Massachusetts
(filed as Exhibit 10.17 to the Company's Registration
Statement on Form S-1, dated July 22, 1998, File No.
333-5961)
10.18* Assignment and Assumption Agreement, dated November 15,
1996, between the Registrant and Grant & Partners Limited
Partnership (filed as Exhibit 10.18 to Pre-Effective No. 1
to the Company's Registration Statement on Form S-1, dated
July 22, 1998, File No. 333-59613)
10.19* Termination Agreements, each dated March 18, 1997, between
the Registrant and the employees of the Registrant named
therein (filed as Exhibit 10.19 to Pre-Effective No. 1 to
the Company's Registration Statement on Form S-1, dated July
22, 1998, File No. 333-59613)
10.20* Consulting Agreement, dated March 18, 1997, between the
Registrant and Exchange Marketing Group, LLC (filed as
Exhibit 10.20 to Pre-Effective No. 1 to the Company's
Registration Statement on Form S-1, dated July 22, 1998,
File No. 333-59613)
21.1* Subsidiaries of Registrant (filed as Exhibit 21.1 to the
Company's Registration Statement on Form S-1, dated July 22,
1998, File No. 333-59613)
23.1+ Consent of Arthur Andersen LLP
23.2 Consent of Bingham Dana LLP (included in Exhibit 5.1)
24.1+ Power of Attorney (included on signature page)
27.1+ Financial Data Schedule
</TABLE>
- ---------------
+ Previously filed
* Incorporated by reference
(b) Financial Statement Schedules
Schedules
All schedules have been omitted because either they are not required, are
not applicable or the information is otherwise set forth in the Consolidated
Financial Statements and notes thereto.
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described in Item 14 hereof, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the 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
II-4
<PAGE> 6
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 Act and
will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes:
(1) To provide the Underwriter at the closing specified in the
Underwriting Agreement certificates in such denominations and registered in
such names as required by the Underwriter to permit prompt delivery to each
purchaser.
(2) That for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Registrant pursuant to Rule
424(b)(1) or (4), or 497(h) under the Securities Act shall be deemed to be
part of this registration statement as of the time it was declared
effective.
(3) That for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form
of prospectus 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.
II-5
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant,
Exchange Applications, Inc., has caused this Amendment No. 2 to the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boston, Commonwealth of Massachusetts, on this 2nd
day of June, 1999.
EXCHANGE APPLICATIONS, INC.
By: /s/ ANDREW J. FRAWLEY
------------------------------------
Andrew J. Frawley
Chairman of the Board, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to the Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ ANDREW J. FRAWLEY Chairman of the Board, President, June 2, 1999
- --------------------------------------------------- Chief Executive Officer and
Andrew J. Frawley Director (Principal Executive
Officer)
* Director June 2, 1999
- ---------------------------------------------------
Dean F. Goodermote
* Director June 2, 1999
- ---------------------------------------------------
Jeffrey Horing
* Director June 2, 1999
- ---------------------------------------------------
Ramanan Raghavendran
* Vice President, Chief Financial June 2, 1999
- --------------------------------------------------- Officer, Treasurer and Secretary
John G. O'Brien (Principal Financial and
Accounting Officer)
</TABLE>
*By: /s/ ANDREW J. FRAWLEY
------------------------------
Andrew J. Frawley
Attorney-in-Fact
II-6
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBITS
- --------
<C> <S>
1.1* Form of Underwriting Agreement (filed as Exhibit 1.1 to the
Company's Registration Statement on Form S-1, dated May 10,
1999, File No. 333-78133)
3.1* Form of Amended and Restated Certificate of Incorporation of
the Registrant (filed as Exhibit 3.1 to the Company's
Registration Statement on Form S-1, dated July 22, 1998,
File No. 333-59613)
3.2* Form of Amended and Restated By-laws of the Registrant
(filed as Exhibit 3.2 to the Company's Registration
Statement on Form S-1, dated July 22, 1998, File No.
333-59613)
4.1* Specimen Certificate for Shares of the Registrant's Common
Stock, $.001 par value (filed as Exhibit 4.1 to
Pre-Effective No. 3 to the Company's Registration Statement
on Form S-1, dated July 22, 1998, File No. 333-59613)
4.2* Amended and Restated Registration Rights Agreement dated
December 4, 1997 (filed as Exhibit 10.14 to the Company's
Registration Statement on Form S-1, dated July 22, 1998,
File No. 333-59613)
5.1 Opinion of Bingham Dana LLP
10.1* Form of 1998 Stock Incentive Plan, with related forms of
stock option agreements (filed as 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)
10.2* 1996 Stock Incentive Plan, as amended, with related forms of
stock option agreements and form of restricted stock
agreement (filed as Exhibit 10.2 to the Company's
Registration Statement on Form S-1, dated July 22, 1998,
File No. 333-59613)
10.3* Form of 1998 Director Stock Option Plan, with related form
of stock option agreement (filed as Exhibit 10.3 to the
Company's Registration Statement on Form S-1, dated July 22,
1998, File No. 333-59613)
10.4* Form of 1998 Employee Stock Purchase Plan (filed as Exhibit
10.4 to the Company's Registration Statement on Form S-1,
dated July 22, 1998, File No. 333-59613)
10.5* 401(k) Plan (filed as Exhibit 10.5 to the Company's
Registration Statement on Form S-1, dated July 22, 1998,
File No. 333-59613)
10.6* Employment Agreement, dated November 15, 1996, between the
Registrant and Andrew J. Frawley (filed as Exhibit 10.6 to
the Company's Registration Statement on Form S-1, dated July
22, 1998, File No. 333-59613)
10.7* Restricted Stock Agreement, dated November 8, 1996, between
the Registrant and Andrew J. Frawley (filed as Exhibit 10.7
to the Company's Registration Statement on Form S-1, dated
July 22, 1998, File No. 333-59613)
10.8* Consulting Agreement, dated March 18, 1997, between the
Registrant and Exchange Marketing Group, LLC (filed as
Exhibit 10.8 to the Company's Registration Statement on Form
S-1, dated July 22, 1998, File No. 333-59613)
10.9* Securities Purchase Agreement, dated March 18, 1997 (filed
as Exhibit 10.9 to the Company's Registration Statement on
Form S-1, dated July 22, 1998, File No. 333-59613)
10.10* Securities Purchase Agreement, dated December 4, 1997 (filed
as Exhibit 10.10 to the Company's Registration Statement on
Form S-1, dated July 22, 1998, File No. 333-59613)
</TABLE>
<PAGE> 9
<TABLE>
<CAPTION>
EXHIBITS
- --------
<C> <S>
10.11* Stock Purchase and Waiver Agreement, dated December 4, 1997
(filed as Exhibit 10.11 to the Company's Registration
Statement on Form S-1, dated July 22, 1998, File No.
333-59613)
10.12* Promissory Note, dated December 4, 1997, by Andrew J.
Frawley payable to the Registrant (filed as Exhibit 10.12 to
the Company's Registration Statement on Form S-1, dated July
22, 1998, File No. 333-59613)
10.13* Amended and Restated Stockholders Agreement dated December
4, 1997 (filed as Exhibit 10.13 to the Company's
Registration Statement on Form S-1, dated July 22, 1998,
File No. 333-59613)
10.14* Amended and Restated Registration Rights Agreement, dated
December 4, 1997 (filed as Exhibit 10.14 to the Company's
Registration Statement on Form S-1, dated July 22, 1998,
File No. 333-59613)
10.15* Letter Agreement, dated December 22, 1997, between the
Registrant and Fleet National Bank, as amended, and the
related Promissory Note (filed as Exhibit 10.15 to the
Company's Registration Statement on Form S-1, dated July 22,
1998, File No. 333-59613)
10.16* Stock Purchase Agreement, dated June 25, 1998, and the
related Waiver Agreement to the Amended and Restated
Stockholders Agreement, dated June 25, 1998 (filed as
Exhibit 10.16 to the Company's Registration Statement on
Form S-1, dated July 22, 1998, File No. 333-59613)
10.17* Office lease for 89 South Street, Boston, Massachusetts
(filed as Exhibit 10.17 to the Company's Registration
Statement on Form S-1, dated July 22, 1998, File No.
333-59613)
10.18* Assignment and Assumption Agreement, dated November 15,
1996, between the Registrant and Grant & Partners Limited
Partnership (filed as Exhibit 10.18 to Pre-Effective No. 1
to the Company's Registration Statement on Form S-1, dated
July 22, 1998, File No. 333-59613)
10.19* Termination Agreements, each dated March 18, 1997, between
the Registrant and the employees of the Registrant named
therein (filed as Exhibit 10.19 to Pre-Effective No. 1 to
the Company's Registration Statement on Form S-1, dated July
22, 1998, File No. 333-59613)
10.20* Consulting Agreement, dated March 18, 1997, between the
Registrant and Exchange Marketing Group, LLC (filed as
Exhibit 10.20 to Pre-Effective No. 1 to the Company's
Registration Statement on Form S-1, dated July 22, 1998,
File No. 333-59613)
21.1* Subsidiaries of Registrant (filed as Exhibit 21.1 to the
Company's Registration Statement on Form S-1, dated July 22,
1998, File No. 333-59613)
23.1+ Consent of Arthur Andersen LLP
23.2 Consent of Bingham Dana LLP (included in Exhibit 5.1)
24.1+ Power of Attorney (included on signature page)
27.1+ Financial Data Schedule
</TABLE>
- ---------------
+ Previously filed
* Incorporated by reference
<PAGE> 1
Exhibit 5.1
BINGHAM DANA LLP
150 Federal Street
Boston, MA 02110
June 2, 1999
Exchange Applications, Inc.
89 South Street
Boston, Massachusetts 02111
Re: FORM S-1 REGISTRATION STATEMENT
-------------------------------
Ladies and Gentlemen:
We have acted as counsel for Exchange Applications, Inc., a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended (the "Act"), of 3,450,000 shares (including
1,000,000 shares to be issued and offered by the Company and 2,000,000
outstanding shares offered by the stockholders of the Company listed on SCHEDULE
II of the Underwriting Agreement (the "Underwriting Agreement"), by and among
the Company, the stockholders of the Company listed on SCHEDULE II thereto (the
"Selling Stockholders") and the representatives of the several underwriters
listed on SCHEDULE I thereto (collectively, the "Underwriters"), and also
including an additional 450,000 shares in the aggregate that may be offered by
certain of the Selling Stockholders, in order to cover over-allotments, if any),
of Common Stock, par value $.001 per share, of the Company (the "Shares"),
pursuant to a Registration Statement on Form S-1, File No. 333-78133 (as
amended, the "Registration Statement"), initially filed with the Securities and
Exchange Commission on May 10, 1999. The Shares to be issued and offered by the
Company are referred to below as the "Company Shares" and the Shares to be
offered by the Selling Stockholders are referred to as the "Selling Stockholder
Shares."
We have reviewed the corporate proceedings of the Company with respect to
the authorization of the issuance of the Shares. We have also examined and
relied upon originals or copies, certified or otherwise identified or
authenticated to our satisfaction, of such corporate records, instruments,
agreements or other documents of the Company, and certificates of officers of
the Company as to certain factual matters, and have made such investigation of
law and have discussed with officers and representatives of the Company such
questions of fact, as we have deemed necessary or appropriate to enable us to
express 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
<PAGE> 2
Exchange Applications, Inc.
June 2, 1999
Page 2
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 have also assumed that (i) the Underwriting Agreement, substantially in
the form of Exhibit 1.1 to the Registration Statement, will have been duly
executed and delivered pursuant to the authorizing votes of the Board of
Directors of the Company and that the Shares will be sold and issued or
transferred only upon the payment therefor as provided in the Underwriting
Agreement; and (ii) the registration requirements of the Act and all applicable
requirements of state laws regulating the sale of securities will have been duly
satisfied.
This opinion is limited solely to the Delaware General Corporation Law as
applied by courts located in Delaware, to the extent applicable to the
transactions that are the subject of this opinion.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly authorized and that the Selling Stockholder Shares are,
and the Company Shares, when delivered and paid for in accordance with the
provisions of the Underwriting Agreement, will be, validly issued, fully paid
and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the heading
"Validity of the Common Stock" in the Prospectus included in the Registration
Statement.
Very truly yours,
/s/ BINGHAM DANA LLP
BINGHAM DANA LLP
