SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MemberWorks Incorporated
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(Exact name of registrant as specified in its charter)
Delaware 06-1276882
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(State of incorporation) (I.R.S. Employer
Identification No.)
9 West Broad Street
Stamford, Connecticut 06902
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(Address of Principal Executive Offices) (Zip Code)
Amended 1996 Stock Option Plan
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(Full title of the plan)
Gary A. Johnson
President and Chief Executive Officer
MemberWorks Incorporated
9 West Broad Street
Stamford, Connecticut 06902
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(Name and address of agent for service)
(203) 324-7635
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities to be Amount to be Offering Price Aggregate Amount of
Registered Registered (1) Per Share (2) Offering Price (2) Registration Fee
--------------------- ------------------- ------------- ----------------------- -----------------
Common Stock, 1,800,000 $17.38 $31,275,000 $2,877
$0.01 par value per
share, issuable pursuant
to the Amended 1996
Stock Option Plan
Notes
(1) This Registration Statement shall also cover any additional shares of the
Registrant's Common Stock that become issuable under the Amended 1996 Stock
Option Plan described herein (the "Plan") by reason of any stock dividend, stock
split, recapitalization or any other similar transaction effected without the
Registrant's receipt of consideration that result in an increase in the number
of the Registrant's outstanding shares of Common Stock.
(2) Estimated in accordance with Rule 457(h) under the Securities Act of 1933,
as amended, solely for the purpose of calculating the registration fee, and
based on $17.38 per share, which was the average of the high and low prices of
the Registrant's Common Stock as reported on the Nasdaq National Market on April
16, 2002, in accordance with Securities Act Rule 457(h).
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or given to
participants in the Amended 1996 Stock Option Plan (the "Plan") of MemberWorks
Incorporated, a Delaware corporation (the "Registrant"), pursuant to Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). Such
documents are not filed with the Securities and Exchange Commission (the "SEC")
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 under the Securities Act. These documents and
the documents incorporated by reference in this Registration Statement pursuant
to Item 3 of Part II of this Registration Statement, taken together, constitute
the prospectuses that meet the requirements of Section 10(a) of the Securities
Act relating to the Plan.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant is subject to the informational and reporting requirements of
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 as
amended (the "Exchange Act"), and in accordance therewith files reports, proxy
statements and other information with the Securities and Exchange Commission.
The Registrant hereby incorporates by reference in this Registration Statement
the following documents previously filed with the SEC: (i) the Registrant's
latest Annual Report on Form 10-K for the fiscal year ended June 30, 2001, filed
on September 6, 2001; (ii) the Registrant's Quarterly Report on Form 10-Q for
the quarters ended September 30, 2001, filed November 14, 2001, and December 31,
2001, filed on February 12, 2002; (iii) the Registrant's Current Report on Form
8-K dated August 10, 2001 as filed with the SEC on August 21, 2001, and dated
August 24, 2001 as filed with the SEC on September 7, 2001 and amended on
November 6, 2001, and (iv) the description of the Common Stock, $0.01 par value
per share ("Common Stock"), contained in the Registrant's Registration Statement
on Form 8-A as filed with the SEC on October 11, 1996, and any amendments or
reports filed for the purpose of updating that description. All documents filed
by the Registrant after the date of this Registration Statement pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all shares of Common Stock offered
hereby have been sold, or which deregisters all shares of Common Stock then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of the filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares of Common Stock offered hereby has been passed upon
for the Registrant by George W. M. Thomas. Mr. Thomas is a Senior Vice President
and the General Counsel of the Registrant.
Item 6. Indemnification of Directors and Officers.
Except as hereinafter set forth, there is no provision in our Certificate of
Incorporation or any contract, arrangement or statute under which any director
or officer of the Registrant is insured or indemnified in any manner against any
liability that he may incur in his capacity as such.
Article Eight of the Amended and Restated Certificate of Incorporation (the
"Restated Certificate of Incorporation") provides that no director of the
Registrant shall be personally liable for any monetary damages for any breach of
fiduciary duty as a director, except to the extent that the Delaware General
Corporation Law prohibits the elimination or limitation of liability of
directors for breach of fiduciary duty.
Article Nine of the Restated Certificate of Incorporation provides that a
director or officer of the Registrant (a) shall be indemnified by the Registrant
against all expenses (including attorney's fees), judgments, fines and amounts
paid in settlement incurred in connection with any litigation or other legal
proceeding (other than an action by or in the right of the Registrant) brought
against him by virtue of his position as a director or officer of the Registrant
if he acted in good faith and in a manner he reasonably believed to be in, or
not opposed to, the best interests of the Registrant, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful and (b) shall be indemnified by the Registrant against all expenses
(including attorneys' fees) and amounts paid in settlement incurred in
connection with any action by or in the right of the Registrant brought against
him by virtue of his position as a director or officer of the Registrant if he
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Registrant, except that no indemnification
shall be made with respect to any matter as to which such person shall have been
adjudged to be liable to the Registrant, unless a court determined that, despite
such adjudication but in view of all of the circumstances, he is entitled to
indemnification of such expenses. Notwithstanding the foregoing, to the extent
that a director or officer has been successful, on the merits or otherwise,
including, without limitation, the dismissal of an action without prejudice, he
is required to be indemnified by the Registrant against all expenses (including
attorneys' fees) incurred in connection therewith. Expenses shall be advanced to
a director or officer at his request, provided that he undertakes to repay the
amount advanced if it is ultimately determined that he is not entitled to
indemnification for such expenses.
Indemnification is required to be made unless the Registrant determines that the
applicable standard of conduct required for indemnification has not been met. In
the event of a determination by the Registrant that the director or officer did
not meet the applicable standard of conduct required for indemnification, or if
the Registrant fails to make an indemnification payment within 60 days after
such payment is claimed by such person, such person is permitted to petition the
court to make an independent determination as to whether such person is entitled
to indemnification. As a condition precedent to the right of indemnification,
the director or officer must give the Registrant notice of the action for which
indemnity is sought and the Registrant has the right to participate in such
action or assume the defense thereof.
Article Nine of the Restated Certificate of Incorporation further provides that
the indemnification provided therein is not exclusive, and provides that in the
event that the Delaware General II-1 16 Corporation Law is amended to expand the
indemnification permitted to directors or officers, the Registrant must
indemnify those persons to the fullest extent permitted by such law as so
amended.
Section 145 of the Delaware General Corporation Law provides that a corporation
has the power to indemnify a director, officer, employee or agent of the
corporation and certain other persons serving at the request of the corporation
in related capacities against amounts paid and expenses incurred in connection
with an action or proceeding to which he is or is threatened to be made a party
by reason of such position, if such person shall have acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the corporation, and, in any criminal proceeding, if such person had no
reasonable cause to believe his conduct was unlawful; provided that, in the case
of actions brought by or in the right of the corporation, no indemnification
shall be made with respect to any matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
adjudicating court determines that such indemnification is proper under the
circumstances.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibit Index immediately preceding the exhibits is incorporated herein by
reference.
Item 9. Undertakings.
1. The 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 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
(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 (i) and (ii) above do not
apply if 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 Securities and
Exchange Commission by the Registrant pursuant to Section 13 or
Section 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; and
(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.
2. The 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.
3. Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, executive 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 Securities and
Exchange 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,
executive officer of controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director,
executive 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.
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 Stamford, State of Connecticut, on this 22 day of
April, 2002.
MEMBERWORKS INCORPORATED
By: /s/ Gary A. Johnson
Gary A. Johnson
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Gary A. Johnson and James B. Duffy, and each of them
each with full power to act without the other, his true and lawful
attorney-in-fact and agent, each with full power of substitution and
resubstitution, for such person and in his name, place and stead, in any and all
capacities, to sign any or all further amendments or supplements (including
post-effective amendments) to this Form S-8 Registration Statement and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto each of
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 in and about the
premises, as fully as to all intent and purposes as he might or could do in
person, hereby ratifying and confirming all that each of said attorneys-in-fact
and agents, or his substitutes, may lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
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By: /s/ Gary A. Johnson President, Chief Executive Officer and Director April. 22, 2002
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Gary A. Johnson (Principal Executive Officer)
By: /s/ James B. Duffy Executive Vice President and April. 22, 2002
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James B. Duffy Chief Financial Officer
By: /s/ Dennis P. Walker Executive Vice President and Director April. 22, 2002
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Dennis P. Walker
By: /s/ Stephen J. Clearman Director April. 22, 2002
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Stephen J. Clearman
By: /s/ Alec L. Ellison Director April. 22, 2002
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Alec L. Ellison
By: /s/ Michael McClorey Director April. 22, 2002
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Michael McClorey
By: /s/ Marc S. Tesler Director April. 22, 2002
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Marc S. Tesler
EXHIBIT INDEX
Exhibit Number Document
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4.1 Certificate of Incorporation, as amended (1)
4.2 By-Laws (2)
4.3 Specimen Certificate of Common Stock of the Registrant (3)
5.1 Opinion of George W. M. Thomas
23.1 Consent of George W. M. Thomas (included in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney (included in the signature pages of this
Registration Statement)
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1 Incorporated herein by reference to Exhibits 3.1 through 3.3 to the
Registrant's Registration Statement on Form S-1 (File No. 333-10541).
2 Incorporated herein by reference to Exhibits 3.4 to the Registrant's
Registration Statement on Form S-1 (File No. 333-10541).
3 Incorporated herein by reference to Exhibits 4 to the Registrant's
Registration Statement on Form S-1 (File No. 333-10541).
EXHIBIT 5.1
April 19, 2002
Board of Directors
MemberWorks Incorporated
9 West Broad Street
Stamford, Connecticut 06902
Re: Amended 1996 Stock Option Plan
Ladies and Gentlemen:
Reference is made to that certain Registration Statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission relating to 1,800,000 shares of Common Stock, $0.01 par value per
share (the "Shares"), of MemberWorks Incorporated, a Delaware corporation (the
"Company"), issuable under the Company's Amended 1996 Stock Option Plan (the
"Plan").
I have examined the Certificate of Incorporation and the By-Laws of the
Company, each as amended to date, and such corporate records and other documents
relating to the Shares, and have reviewed such other matters, as I have deemed
necessary or appropriate for the purposes of this opinion.
Based on such examination and review, it is my opinion that the
Shares have been duly and validly authorized and, when issued in accordance with
the terms of the Plan, will be legally issued, fully paid and nonassessable.
I hereby consent to be named in the Registration Statement as the attorney
who passed upon the validity of the Shares, and to a filing of a copy of this
opinion as an exhibit to the Registration Statement.
Very truly yours,
/s/ George W. M. Thomas
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George W. M. Thomas
Senior Vice President and General Counsel
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 July 27, 2001 relating to
the consolidated financial statements of MemberWorks Incorporated, which appears
in the Annual Report on Form 10-K of MemberWorks Incorporated for the year ended
June 30, 2001.
/s/ PricewaterhouseCoopers LLP
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PricewaterhouseCoopers LLP
New York, New York
April 19, 2002