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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)
150 FIELD DRIVE
SUITE 250
LAKE FOREST, ILLINOIS 60045
(Address of Principal Executive Offices, including Zip Code)
eLOYALTY CORPORATION 2000 STOCK INCENTIVE PLAN
(FULL TITLE OF THE PLAN)
KELLY D. CONWAY
President and Chief Executive Officer
eLoyalty Corporation
150 Field Drive
Suite 250
Lake Forest, Illinois 60045
(847) 582-7000
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------
Title of Amount Proposed Proposed Amount of
Each class to be Maximum Maximum Registration
of Securities Registered Offering Price Aggregate Fee
to be Registered per Unit Offering Price
<S> <C> <C> <C> <C>
Common Stock, 2,400,000 shares $15.07887 (1) $36,189,288 (1) $9,554
$0.01 par value
Preferred Stock
Purchase Rights 2,400,000 rights (2) (2) (2)
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee and,
pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933, based upon
the weighted average option price of shares subject to outstanding options and,
as to shares not currently subject to outstanding options, the average of the
high and low prices of the Common Stock reported in the consolidated reporting
system of NASDAQ on July 19, 2000.
(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.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF 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 Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1999, as filed with the Commission on March 30, 2000;
(b) (1) The Company's Current Report on Form 8-K dated April 24, 2000, as filed
with the Commission on April 25, 2000, and
(2) The Company's Quarterly Report on Form 10-Q for the period ended March 31,
2000, as filed with the Commission on May 15, 2000; and
(c) The description of the Common Stock, $0.01 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, as amended on March 24, 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 reason of the fact that
such person was an officer, director, employee or agent 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 person 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, he had no
reasonable cause to believe his conduct was illegal. A Delaware corporation may
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indemnify directors, officers, employees or agents 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 director, officer,
employee or agent is adjudged to be liable to the corporation in the performance
of his duty. Where a present or former director or officer 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 director or
officer actually and reasonably incurred.
The Company's By-laws 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 any such person if the indemnification
sought is in connection with a proceeding initiated by such person without the
authorization of the board of directors. The By-laws also provide that the right
of directors and officers to indemnification thereunder shall include the
advancement of expenses incurred in the defense of actions prior to their final
disposition, subject to any DGCL requirements on the provision of repayment
undertakings, and shall be a contract right, non-exclusive of any other right
now possessed or hereafter acquired under any statute, provision of the
Certificate of Incorporation, By-laws, agreements, vote of stockholders or
disinterested directors or otherwise. The Company's amended Certificate of
Incorporation confirms that the Company shall indemnify its directors and
officers in accordance with and pursuant to its By-laws. The Company's By-laws
permit the Company to maintain insurance on behalf of any officer or director,
among others, for any liability arising out of his or her actions in such
capacity, regardless of whether the Company would have the power to indemnify
such person under the DGCL, and the Company's amended Certificate of
Incorporation permits the Company to enter into one or more individual
indemnification agreements providing for additional or different
indemnification.
In accordance with Section 102(b)(7) of the DGCL, the Company's amended
Certificate of Incorporation provides that directors of the Company 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 in
certain situations where the Company cannot directly provide indemnification
under the DGCL.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
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 Certificate of Designation of Series A Junior Participating Preferred
Stock of the Company, included as Exhibit 4.2 to Amendment No. 1 to
the Company's Registration Statement on Form 8-A (File No. 0-27975)
filed with the Commission on March 24, 2000 (the "8-A Amendment"), is
incorporated herein by reference.
4.3 Rights Agreement, dated as of March 17, 2000, between the Company and
ChaseMellon Shareholder Services, L.L.C. as Rights Agent, filed as
Exhibit 4.1 to the 8-A Amendment, is incorporated herein by
reference.
4.4 By-laws of the Company, filed as Exhibit 3.2 to the S-1, are
incorporated herein by reference.
*4.5 eLoyalty Corporation 2000 Stock Incentive Plan.
*5 Opinion of Winston & Strawn as to the legality of the securities
being registered.
*23.1 Consent of PricewaterhouseCoopers LLP, Chicago, Illinois, Independent
Accountants.
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*23.2 Consent of Winston & Strawn (included in its opinion filed as Exhibit
5).
*24.1 Power of Attorney from Tench Coxe, Director
*24.2 Power of Attorney from Jay C. Hoag, Director
*24.3 Power of Attorney from John T. Kohler, Director
*24.4 Power of Attorney from Michael J. Murray, Director
*24.5 Power of Attorney from John R. Purcell, Director
*24.6 Power of Attorney from Michael R. Zucchini, Director
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* 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:
(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.
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(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 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.
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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 Lake Forest, State of Illinois, on this 26th day of
July, 2000.
eLOYALTY CORPORATION
By: /s/ Kelly D. Conway
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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 26th day of July, 2000.
Name Capacity
/s/ Kelly D. Conway Director, President and Chief Executive
-------------------------- Officer (principal executive officer)
Kelly D. Conway
/s/ Timothy J. Cunningham Senior Vice President and Chief Financial
-------------------------- Officer (principal financial officer and
Timothy J. Cunningham principal accounting officer)
* Director
--------------------------
Tench Coxe
* Director
--------------------------
Jay C. Hoag
* Director
--------------------------
John T. Kohler
* Director
--------------------------
Michael J. Murray
* Director
--------------------------
John R. Purcell
* Director
--------------------------
Michael R. Zucchini
*By: /s/ Timothy J. Cunningham
------------------------------
Timothy J. Cunningham Attorney-in-Fact
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INDEX TO EXHIBITS TO REGISTRATION STATEMENT ON FORM S-8
Exhibit
Number Description of Exhibit
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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 Certificate of Designation of Series A Junior Participating Preferred
Stock of the Company, included as Exhibit 4.2 to Amendment No. 1 to
the Company's Registration Statement on Form 8-A (File No. 0-27975)
filed with the Commission on March 24, 2000 (the "8-A Amendment"), is
incorporated herein by reference.
4.3 Rights Agreement, dated as of March 17, 2000, between the Company and
ChaseMellon Shareholder Services, L.L.C. as Rights Agent, filed as
Exhibit 4.1 to the 8-A Amendment, is incorporated herein by
reference.
4.4 By-laws of the Company, filed as Exhibit 3.2 to the S-1, are
incorporated herein by reference.
*4.5 eLoyalty Corporation 2000 Stock Incentive Plan.
*5 Opinion of Winston & Strawn as to the legality of the securities
being registered.
*23.1 Consent of PricewaterhouseCoopers LLP, Chicago, Illinois, Independent
Accountants.
*23.2 Consent of Winston & Strawn (included in its opinion filed as Exhibit
5).
*24.1 Power of Attorney from Tench Coxe, Director
*24.2 Power of Attorney from Jay C. Hoag, Director
*24.3 Power of Attorney from John T. Kohler, Director
*24.4 Power of Attorney from Michael J. Murray, Director
*24.5 Power of Attorney from John R. Purcell, Director
*24.6 Power of Attorney from Michael R. Zucchini, Director
---------------------
* Filed herewith.
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