<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 9, 2000
REGISTRATION NO. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
ELOYALTY CORPORATION
(Exact name of Registrant as Specified in Its Charter)
DELAWARE 36-4304577
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
205 NORTH MICHIGAN AVENUE 60601
SUITE 1500 (Zip Code)
CHICAGO, ILLINOIS
(Address of Principle Executive Offices)
ELOYALTY CORPORATION 1999 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
KELLY D. CONWAY
President and Chief Executive Officer
eLoyalty Corporation
205 North Michigan Avenue
Suite 1500
Chicago, Illinois 60601
(312) 228-4500
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
- -------------------------- ------------------------ ------------------------ ------------------------ ------------------------
Title of Each Class of Amount to be Registered Proposed Maximum Proposed Maximum Amount of Registration
Securities to be Offering Price Per Unit Aggregate Offering Fee
Registered Price
- -------------------------- ------------------------ ------------------------ ------------------------ ------------------------
- -------------------------- ------------------------ ------------------------ ------------------------ ------------------------
Common Stock, $.01 par 500,000 shares $1.73 (1) $865,000(1) $228
value
- -------------------------- ------------------------ ------------------------ ------------------------ ------------------------
Preferred Stock Purchase 500,000 rights (2) (2) (2)
Rights
- -------------------------- ------------------------ ------------------------ ------------------------ ------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee and,
pursuant to Rule 457(f)(2) under the Securities Act and is based upon the book
value of the Common Stock computed as of December 31, 1999.
(2) The Preferred Stock Purchase Rights initially are attached to and trade with
the shares of Common Stock being registered hereby. Value attributable to such
Rights, if any, is reflected in the market price of the Common Stock.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed (File Number 0-27975) with the
Securities and Exchange Commission (the "Commission") by eLoyalty Corporation
(the "Company") are incorporated herein by reference:
(a) The Information Statement/Prospectus dated February 8, 2000 and
contained in the Registration Statement on Form S-1 filed by the Company with
the Commission (Registration No. 333-94293); and
(b) The description of the Common Stock, $.01 par value, of the Company
(the "Common Stock") and the description of the Preferred Stock Purchase Rights
of the Company (the "Rights") associated with the Common Stock, contained in the
Registration Statement on Form 8-A filed by the Company with the Commission on
January 20, 2000, including any amendments or reports filed for the purpose of
updating such descriptions.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), after the date of this Registration Statement and prior to the filing of
a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold, are
deemed to be incorporated by reference into this Registration Statement and to
be a part hereof from the respective dates of filing of such documents (such
documents, and the documents enumerated above, being hereinafter referred to as
"Incorporated Documents").
Any statement contained in an Incorporated Document 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
Incorporated Document 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.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law ("DGCL") empowers a
Delaware corporation to indemnify any persons who are, or are threatened to be
made, parties to any threatened, pending or completed legal action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of such corporation), by
2
<PAGE> 3
reason of the fact that such person was an officer or director of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided that such officer or
director acted in good faith and in a manner he reasonably believed to be in or
not opposed to the corporation's best interests, and, for criminal proceedings,
had no reasonable cause to believe his conduct was illegal. A Delaware
corporation may indemnify officers and directors in an action by or in the right
of the corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the officer or director is adjudged to be
liable to the corporation in the performance of his duty. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the expenses which
such officer or director actually and reasonably incurred.
The Company's bylaws provide that it will indemnify its directors and
officers to the fullest extent permitted by Delaware law, except that no
indemnification will be provided to a director, officer, employee or agent if
the indemnification sought is in connection with a proceeding initiated by such
person without the authorization of the board of directors. The bylaws also
provide that the right of directors and officers to indemnification shall be a
contract right and shall not be exclusive of any other right now possessed or
hereafter acquired under any statute, provision of the Certificate of
Incorporation, bylaws, agreements, vote of stockholders or disinterested
directors or otherwise. The bylaws also permit the Company to secure insurance
on behalf of any officer, director, employee or other agent for any liability
arising out of his or her actions in such capacity, regardless of whether the
bylaws permit such indemnification.
In accordance with Section 102(b)(7) of the DGCL, the Company's amended
Certificate of Incorporation provides that directors shall not be personally
liable for monetary damages for breaches of their fiduciary duty as directors
except for (i) breaches of their duty of loyalty to the company or its
stockholders, (ii) acts of omissions not in good faith or which involve
intentional misconduct or knowing violations of law, (iii) certain transactions
under Section 174 of the DGCL(unlawful payment of dividends or unlawful stock
purchases or redemptions) or (iv) transactions from which a director derives an
improper personal benefit. The effect of this provision is to eliminate the
personal liability of directors for monetary damages for actions involving a
breach of their fiduciary duty of care, including any actions involving gross
negligence.
The Company has directors' and officers' liability insurance which
provides, subject to certain policy limits, deductible amounts and exclusions,
coverage for all persons who have been, are or may in the future be, directors
or officers of the Company, against amounts which such persons may pay resulting
from claims against them by reason of their being such directors or officers
during the policy period for certain breaches of duty, omissions or other acts
done or wrongfully attempted or alleged. Such policies provide coverage to
certain situations where the company cannot directly provide indemnification
under the DGCL.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
3
<PAGE> 4
ITEM 8. EXHIBITS
Exhibit
Number Description of Exhibit
- ------- ----------------------
4.1 Certificate of Incorporation of the Company, as amended, filed as
Exhibit 3.1 to the Company's Registration Statement on Form S-1
(Registration No. 333-94293) (the "S-1"), is incorporated herein by
reference.
4.2 Bylaws of the Company, filed as Exhibit 3.2 to the S-1, are
incorporated herein by reference.
4.3 eLoyalty Corporation 1999 Employee Stock Purchase Plan, filed as
Exhibit 10.2 to the S-1, is incorporated herein by reference.
4.4 Form of Rights Agreement between the Company and ChaseMellon
Shareholder Services, L.L.C., as Rights Agent, filed as Exhibit 4.1 to
the S-1, is incorporated herein by reference.
*5 Opinion of Sidley & Austin as to the legality of the securities being
registered.
*23.1 Consent of PricewaterhouseCoopers LLP, Chicago, Illinois, Independent
Accountants.
*23.2 Consent of PricewaterhouseCoopers LLP, Boston Massachusetts,
Independent Accountants.
*23.3 Consent of Sidley & Austin (included in its opinion filed as Exhibit
5).
*24.1 Power of Attorney from John T. Kohler, Director
*24.2 Power of Attorney from Michael J. Murray, Director
*24.3 Power of Attorney from John R. Purcell, Director
*24.4 Power of Attorney from Michael R. Zucchini, Director
- ---------------------
* Filed herewith.
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:
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<PAGE> 5
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the 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 the registration statement; and notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission 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 the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) 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 Commission by the
Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in the 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 Commission 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
5
<PAGE> 6
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.
6
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Chicago, State of Illinois, on this 9th day of
February, 2000.
ELOYALTY CORPORATION
By: Kelly D. Conway
-------------------------------
Kelly D. Conway
President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on this 9th day of February, 2000.
<TABLE>
<CAPTION>
Name Capacity
- ---- --------
<S> <C>
Kelly D. Conway Director, President and Chief Executive Officer
- --------------------------- (principal executive officer)
Kelly D. Conway
Timothy J. Cunningham Senior Vice President and Chief Financial Officer
- -------------------------- (principal financial officer and principal
Timothy J. Cunningham accounting officer)
* Director
- --------------------------
John T. Kohler
* Director
- --------------------------
Michael J. Murray
* Director
- --------------------------
John R. Purcell
* Director
- --------------------------
Michael R. Zucchini
*By Timothy J. Cunningham
---------------------------------------
Timothy J. Cunningham, Attorney-in-Fact
</TABLE>
7
<PAGE> 8
INDEX TO EXHIBITS TO REGISTRATION STATEMENT ON FORM S-8
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
- ------- ----------------------
<S> <C>
4.1 Certificate of Incorporation of the Company, as amended, filed as
Exhibit 3.1 to the Company's Registration Statement on Form S-1
(Registration No. 333-94293) (the "S-1"), is incorporated herein by
reference.
4.2 Bylaws of the Company, filed as Exhibit 3.2 to the S-1, are
incorporated herein by reference.
4.3 eLoyalty Corporation 1999 Employee Stock Purchase Plan, filed as
Exhibit 10.2 to the S-1, is incorporated herein by reference.
4.4 Form of Rights Agreement between the Company and ChaseMellon
Shareholder Services, L.L.C., as Rights Agent, filed as Exhibit 4.1 to
the S-1, is incorporated herein by reference.
*5 Opinion of Sidley & Austin as to the legality of the securities being
registered.
*23.1 Consent of PricewaterhouseCoopers LLP, Chicago, Illinois, Independent
Accountants.
*23.2 Consent of PricewaterhouseCoopers LLP, Boston Massachusetts,
Independent Accountants.
*23.3 Consent of Sidley & Austin (included in its opinion filed as Exhibit
5).
*24.1 Power of Attorney from John T. Kohler, Director
*24.2 Power of Attorney from Michael J. Murray, Director
*24.3 Power of Attorney from John R. Purcell, Director
*24.4 Power of Attorney from Michael R. Zucchini, Director
- ---------------------
</TABLE>
* Filed herewith.
8
<PAGE> 1
EXHIBIT 5
[Sidley & Austin Letterhead]
February 9, 2000
eLoyalty Corporation
205 North Michigan Avenue
Suite 1500
Chicago, Illinois 60601
Re: 500,000 shares of Common Stock, $.01 par value
500,000 Preferred Stock Purchase Rights
----------------------------------------------
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-8 (the "Registration
Statement") being filed by eLoyalty Corporation, a Delaware corporation (the
"Company"), with the Securities and Exchange Commission under the Securities Act
of 1933, as amended (the "Securities Act"), relating to the registration of an
aggregate of 500,000 shares of Common Stock, $.01 par value, of the Company (the
"Registered Common Stock"), together with 500,000 Preferred Stock Purchase
Rights of the Company (the "Registered Rights") associated therewith, to be
issued under the eLoyalty Corporation 1999 Employee Stock Purchase Plan (the
"Plan"). The terms of the Rights will be set forth in a Rights Agreement
substantially in the form of Exhibit 4.1 to the Company's Registration Statement
on Form S-1, File Number 333-94293 (the "Rights Agreement") to be entered into
between the Company and ChaseMellon Shareholder Services, L.L.C., as Rights
Agent.
We are familiar with the proceedings to date with respect to the
proposed issuance of the Registered Common Stock and the Registered Rights under
the Plan and have examined such records, documents and questions of law, and
satisfied ourselves as to such matters of fact, as we have considered relevant
and necessary as a basis for this opinion.
Based on the foregoing, we are of the opinion that:
1. The Company is duly incorporated and validly existing under the laws
of the State of Delaware.
2. Each share of the Registered Common Stock which is newly issued
pursuant to the Plan will constitute a share of Common Stock of the Company
which has been duly authorized and validly issued and is fully paid and
non-assessable when (i) the Registration Statement shall have become effective
under the Securities Act; (ii) the Company's Board of Directors or a duly
authorized committee thereof shall have duly adopted final resolutions
authorizing the issuance and sale of such share as contemplated by the Plan; and
(iii) a certificate representing such share shall have been duly executed,
countersigned and registered and duly delivered upon payment of
<PAGE> 2
the agreed consideration therefor (not less than the par value thereof)
determined in accordance with the terms of the Plan.
3. The Registered Right associated with each share of Registered Common
Stock referred to in paragraph 2 will be validly issued when (i) the Rights
Agreement shall have been duly executed by the parties thereto; (ii) such
Registered Right shall have been duly issued in accordance with the terms of the
Rights Agreement and (iii) such associated share shall have been duly issued and
paid for as set forth in paragraph 2.
This opinion is limited to the General Corporation Law of the State of
Delaware and the federal laws of the United States of America.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement.
Very truly yours,
Sidley & Austin
2
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our reports dated September 10, 1999 relating to the
financial statements and financial statement schedule of eLoyalty Corporation
and our report dated December 21, 1999 relating to the financial statements of
The Bentley Group, Inc., which appear in the Registration Statement on Form S-1
of eLoyalty Corporation dated February 8, 2000 ("Form S-1"). We also consent to
the reference to us under the heading "Experts" in such Form S-1.
PricewaterhouseCoopers LLP
Chicago, Illinois
February 9, 2000
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated December 20, 1999 relating to the
financial statements of NexCen Technologies, Inc., which appear in the
Registration Statement on Form S-1 of eLoyalty Corporation dated February 8,
2000 ("Form S-1"). We also consent to the reference to us under the heading
"Experts" in such Form S-1.
PricewaterhouseCoopers LLP
Boston, Massachusetts
February 9, 2000
<PAGE> 1
EXHIBIT 24.1
EXHIBIT 24.1
POWER OF ATTORNEY
The undersigned, a Director and/or Officer of eLoyalty Corporation, a
Delaware corporation (the "Corporation"), does hereby constitute and appoint
TIMOTHY J. CUNNINGHAM OR KELLY D. CONWAY his or her true and lawful
attorney-in-fact and agent, with full power and authority to execute in the name
and on behalf of the undersigned as such Director and/or Officer, a Registration
Statement on Form S-8 under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the registration under the Securities Act of
the offer and sale of 500,000 shares of the Corporation's Common Stock, par
value $.01, and the associated Preferred Stock Purchase Rights, issuable in
accordance with the 1999 ELOYALTY CORPORATION EMPLOYEE STOCK PURCHASE PLAN, and
to execute any and all amendments to such Registration Statement, whether filed
prior or subsequent to the time such Registration Statement becomes effective,
and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission. The
undersigned hereby grants unto each such attorney-in-fact and agent, full power
of substitution and revocation in the premises and hereby ratifies and confirms
all that each such attorney-in-fact and agent, or his substitute or substitutes,
may do or cause to be done by virtue of these presents.
Dated this 8th day of February, 2000.
John T. Kohler
--------------------------------
<PAGE> 1
EXHIBIT 24.2
POWER OF ATTORNEY
The undersigned, a Director and/or Officer of eLoyalty Corporation, a
Delaware corporation (the "Corporation"), does hereby constitute and appoint
TIMOTHY J. CUNNINGHAM OR KELLY D. CONWAY his or her true and lawful
attorney-in-fact and agent, with full power and authority to execute in the name
and on behalf of the undersigned as such Director and/or Officer, a Registration
Statement on Form S-8 under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the registration under the Securities Act of
the offer and sale of 500,000 shares of the Corporation's Common Stock, par
value $.01, and the associated Preferred Stock Purchase Rights, issuable in
accordance with the 1999 ELOYALTY CORPORATION EMPLOYEE STOCK PURCHASE PLAN, and
to execute any and all amendments to such Registration Statement, whether filed
prior or subsequent to the time such Registration Statement becomes effective,
and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission. The
undersigned hereby grants unto each such attorney-in-fact and agent, full power
of substitution and revocation in the premises and hereby ratifies and confirms
all that each such attorney-in-fact and agent, or his substitute or substitutes,
may do or cause to be done by virtue of these presents.
Dated this 8th day of February, 2000.
Michael J. Murray
------------------------
<PAGE> 1
EXHIBIT 24.3
POWER OF ATTORNEY
The undersigned, a Director and/or Officer of eLoyalty Corporation, a
Delaware corporation (the "Corporation"), does hereby constitute and appoint
TIMOTHY J. CUNNINGHAM OR KELLY D. CONWAY his or her true and lawful
attorney-in-fact and agent, with full power and authority to execute in the name
and on behalf of the undersigned as such Director and/or Officer, a Registration
Statement on Form S-8 under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the registration under the Securities Act of
the offer and sale of 500,000 shares of the Corporation's Common Stock, par
value $.01, and the associated Preferred Stock Purchase Rights, issuable in
accordance with the 1999 ELOYALTY CORPORATION EMPLOYEE STOCK PURCHASE PLAN, and
to execute any and all amendments to such Registration Statement, whether filed
prior or subsequent to the time such Registration Statement becomes effective,
and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission. The
undersigned hereby grants unto each such attorney-in-fact and agent, full power
of substitution and revocation in the premises and hereby ratifies and confirms
all that each such attorney-in-fact and agent, or his substitute or substitutes,
may do or cause to be done by virtue of these presents.
Dated this 8th day of February, 2000.
John R. Purcell
--------------------------
<PAGE> 1
EXHIBIT 24.4
POWER OF ATTORNEY
The undersigned, a Director and/or Officer of eLoyalty Corporation, a
Delaware corporation (the "Corporation"), does hereby constitute and appoint
TIMOTHY J. CUNNINGHAM OR KELLY D. CONWAY his or her true and lawful
attorney-in-fact and agent, with full power and authority to execute in the name
and on behalf of the undersigned as such Director and/or Officer, a Registration
Statement on Form S-8 under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the registration under the Securities Act of
the offer and sale of 500,000 shares of the Corporation's Common Stock, par
value $.01, and the associated Preferred Stock Purchase Rights, issuable in
accordance with the 1999 ELOYALTY CORPORATION EMPLOYEE STOCK PURCHASE PLAN, and
to execute any and all amendments to such Registration Statement, whether filed
prior or subsequent to the time such Registration Statement becomes effective,
and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission. The
undersigned hereby grants unto each such attorney-in-fact and agent, full power
of substitution and revocation in the premises and hereby ratifies and confirms
all that each such attorney-in-fact and agent, or his substitute or substitutes,
may do or cause to be done by virtue of these presents.
Dated this 8th day of February, 2000.
Michael R. Zucchini
-----------------------------
