As filed with the Securities and Exchange Commission on December 3, 2003
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
MEMBERWORKS INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware 06-1276882
(State or other jurisdiction (I.R.S. Employer Identification Number)
of incorporation or organization)
MemberWorks Incorporated
680 Washington Boulevard., Suite 1100
Stamford, CT 06901
(203) 324-7635
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
George Thomas Esq.
MemberWorks Incorporated
680 Washington Boulevard, Suite 1100
Stamford, CT 06901
(203) 324-7635
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Steven T. Giove, Esq.
Shearman & Sterling LLP
599 Lexington Avenue
New York, New York 10022
(212) 848-4000
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement as
determined by market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. []
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, other than securities offered only in connection with
dividend or interest reinvestment plans, 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 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 effective 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. []
CALCULATION OF REGISTRATION FEE
========================================================= ==================== ================= ================ ================
Proposed
Proposed Maximum
--------------------------------------------------------- Maximum Offering Aggregate Amount of
Title of each Class of Amount to Price per Unit Offering Price Registration
Securities to be Registered be Registered (1) (2) (2) Fee
--------------------------------------------------------- -------------------- ----------------- ---------------- ----------------
5.50% Convertible Senior Subordinated Notes due 2010..... $90,000,000 100% $90,000,000 $7,281
2,229,651 - - (3)
Common stock, par value $0.01 per share.................. shares(3)
========================================================= ==================== ================= =================================
(Footnotes on next page)
The registrant hereby amends this Registration Statement on such date 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 or until this Registration Statement shall become effective on such
date as the Securities and Exchange Commission, acting pursuant to said Section
8(a), may determine.
================================================================================
------------
(1) $90,000,000 aggregate principal amount of notes and 2,229,651 shares of
common stock issuable upon conversion of the notes are being registered
hereby.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457.
(3) Reflects the number of shares of common stock issuable upon conversion of
the notes being registered hereunder at the rate of approximately 24.7739
shares of common stock per $1,000 principal amount at maturity of the
notes. Under Rule 416 under the Securities Act, the number of shares of
common stock registered includes an indeterminate number of shares of
common stock that may be issued in connection with a stock split, stock
dividend, recapitalization or similar event. No additional registration fee
is required pursuant to Rule 457(i) under the Securities Act because no
additional consideration will be received in connection with the exercise
of the conversion privilege.
PROSPECTUS
----------
Dated December 3, 2003
MEMBERWORKS INCORPORATED
5.50% Convertible Senior Subordinated Notes due 2010
and
Common Stock issuable upon conversion of the Notes
----------------------------
This prospectus relates to $90,000,000 aggregate principal amount at
maturity of 5.50% Convertible Senior Subordinated Notes due 2010 of MemberWorks
Incorporated. The notes may be sold from time to time by or on behalf of the
selling securityholders named in this prospectus or in supplements to this
prospectus. This prospectus also relates to 2,229,651 shares of our common
stock, par value $0.01 per share, issuable upon conversion of the notes held by
certain selling securityholders, plus such additional indeterminate number of
shares as may become issuable upon conversion of the notes by reason of
adjustment to the conversion price in certain circumstances.
We will pay interest on the notes on April 1 and October 1 of each year,
beginning April 1, 2004. The selling securityholders may sell all or a portion
of the notes in market transactions, negotiated transactions or otherwise and at
prices which will be determined by the prevailing market price for the notes or
in the negotiated transactions. The selling securityholders also may sell all or
a portion of the shares of common stock from time to time on the Nasdaq National
Market, in the negotiated transactions or otherwise, and at prices which will be
determined by the prevailing market price for the shares or in negotiated
transactions. The selling securityholders will receive all of the proceeds from
the sale of the notes and the common stock. We will not receive any proceeds
from the sale of notes or common stock by the selling securityholders.
Holders of the notes may convert the notes into shares of our common stock
at any time prior to the maturity date of the notes (unless previously redeemed
or repurchased) at a conversion price of approximately $40.37 per share
(equivalent to an initial conversion rate of approximately 24.7739 shares per
$1,000 principal amount of notes), subject to adjustment as set forth in this
prospectus.
On or after October 6, 2008, we may redeem some or all of the notes at 100%
of their principal amount plus accrued and unpaid interest to, but excluding,
the redemption date.
Upon the occurrence of a change of control, holders of the notes may
require us to repurchase all or part of their notes for cash.
Shares of our common stock are quoted on the Nasdaq National Market under
the symbol "MBRS." The closing sales price of the shares on November 11, 2003
was $28.48 per share.
The notes were originally issued in a private placement to qualified
institutional buyers in reliance on Rule 144A under the Securities Act of 1933,
as amended.
----------------------------
Investing in the notes involves risks, some of which are described in the
"Risk Factors" section beginning on page 5 of this prospectus.
----------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
----------------------------
The date of this prospectus is December 2, 2003.
TABLE OF CONTENTS
Page
Table of Contents
FORWARD-LOOKING STATEMENTS......................................................................................ii
SUMMARY..........................................................................................................1
RISK FACTORS.....................................................................................................5
RATIO OF EARNINGS TO FIXED CHARGES..............................................................................13
USE OF PROCEEDS.................................................................................................14
PRICE RANGE OF THE COMMON STOCK AND DIVIDEND POLICY.............................................................15
DESCRIPTION OF NOTES............................................................................................16
DESCRIPTION OF OUR CAPITAL STOCK................................................................................31
UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS.................................................................33
SELLING SECURITYHOLDERS.........................................................................................38
PLAN OF DISTRIBUTION............................................................................................41
LEGAL MATTERS...................................................................................................42
EXPERTS.........................................................................................................42
WHERE YOU CAN FIND MORE INFORMATION.............................................................................42
INCORPORATION BY REFERENCE......................................................................................42
---------------------------
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission, or SEC, using a "shelf" registration
process. Under this shelf registration process, the selling securityholders may,
from time to time, offer notes or shares of our common stock owned by them. Each
time the selling securityholders offer notes or common stock under this
prospectus, they will be provided a copy of this prospectus and, if applicable,
a copy of a prospectus supplement. You should read both this prospectus and, if
applicable, any prospectus supplement together with the information incorporated
by reference in this prospectus. See "Where You Can Find More Information" and
"Incorporation by Reference" for more information.
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized any other person to provide
you with different information. If anyone provides you with different or
inconsistent information, you should not rely on it. We are not making an offer
to sell these securities in any jurisdiction where the offer or sale is not
permitted. You should assume that the information appearing in this prospectus
or any documents incorporated by reference in this prospectus is accurate only
as of the date on the front cover of the applicable document or as specifically
indicated in the document. Our business, financial condition, results of
operations and prospects may have changed since that date.
References in this prospectus to "MemberWorks," "we," "us" and "our"
refer to MemberWorks Incorporated and its subsidiaries, unless the context
otherwise indicated.
i
FORWARD-LOOKING STATEMENTS
This prospectus contains or incorporates by reference forward-looking
statements that are based on current expectations, estimates, forecasts and
projections about the industry in which we operate and our beliefs and
assumptions. These forward-looking statements include statements that do not
relate solely to historical or current facts and can be identified by the use of
words such as "believe," "expect," "estimate," "project," "continue" or
"anticipate." These forward-looking statements are made pursuant to safe harbor
provisions of the Private Securities Litigation Reform Act of 1995.
Forward-looking statements are not guarantees of future performance and
are based on a number of assumptions and estimates that are inherently subject
to significant risks and uncertainties, many of which are beyond our control,
cannot be foreseen and reflect future business decisions that are subject to
change. Therefore, actual outcomes and results may differ materially from what
is expressed or forecasted in such forward-looking statements. Among the many
factors that could cause actual results to differ materially from the
forward-looking statements are:
o Higher than expected membership cancellations or lower than expected
membership renewal rates;
o Changes in the marketing techniques of credit card issuers;
o Increases in the level of commission rates and other compensation required
by marketing partners to actively market with us;
o Potential reserve requirements by business partners such as our credit card
processors;
o Unanticipated termination of marketing agreements;
o The extent to which we can continue to successfully develop and market new
products and services;
o Unanticipated changes in or termination of our ability to process
membership fees through third parties, including credit card processors and
bank card associations;
o Our ability to introduce new programs on a timely basis;
o Our ability to develop and implement operational and financial systems to
manage growing operations;
o Our ability to recover from a complete or partial system failure or
impairment, other hardware or software related malfunctions or programming
errors;
o Our ability to obtain financing on acceptable terms to finance our growth
strategy and to operate within the limitations imposed by financing
arrangements;
o Our ability to integrate acquired businesses into our management and
operations and operate successfully;
o Further changes in the already competitive environment for our products or
competitors' responses to our strategies;
o Changes in the growth rate of the overall U.S. economy, or the
international economy where we do business, such that credit availability,
interest rates, consumer spending and related consumer debt are impacted.
ii
Many of these factors are beyond our control and our business,
financial condition, results of operations and cash flows may be adversely
affected by these factors.
These factors are not exclusive. All of the forward-looking statements
made or incorporated by reference in this prospectus are qualified by these
cautionary statements and you are cautioned not to place undue reliance on these
forward-looking statements, which speak only as of the date of this prospectus.
Except as required by law, we do not have any intention or obligation to
publicly update any forward-looking statements, whether as a result of new
information, future events or otherwise.
iii
SUMMARY
The following summary is qualified in its entirety by the more detailed
information included elsewhere or incorporated by reference in this prospectus.
Because this is a summary, it may not contain all the information that may be
important to you. You should read the entire prospectus, as well as the
information incorporated by reference, before making an investment decision.
MemberWorks Incorporated
We are a leading provider of innovative membership programs. We combine
marketing innovation, entrepreneurial energy and consumer insight to create
industry leading membership programs that provide substantial benefits to our
members, clients and vendors. Our members benefit by receiving significant
discounts and insightful information on everyday items in the areas of
healthcare, personal finance, insurance, travel, entertainment, fashion,
personal security and more. In addition, our members save time by purchasing
goods and services and obtaining useful information over the telephone or the
internet. Our clients (organizations who offer the membership programs to their
customers) benefit by receiving royalty payments in exchange for providing us
with new members. Our clients also benefit because the membership programs are
designed to strengthen their relationships with customers. For the participating
vendors (whose products or services are offered through the membership
programs), the membership programs provide an opportunity for the vendors to
reach a large number of demographically attractive consumers while incurring
minimal incremental marketing costs.
Our programs are primarily marketed under the name of the membership
program to customers through arrangements with our clients, which include banks
and other financial institutions, e-commerce companies, direct response
television companies, catalog companies, retailers, major oil companies and
other organizations with large numbers of individual customers. In many cases,
these businesses lack the core competency to successfully design, market and
manage membership programs. As a result, these businesses seek to outsource to
providers that are able to apply advanced database systems to capture, process
and store consumer and market information, are able to use their experience to
provide effective membership programs and are able to realize economies of
scale. In addition, businesses seeking to implement a membership program demand
that the provider of those programs has the expertise to continue to introduce
innovative new programs and has resources, such as an extensive vendor network
and experienced management team, to launch membership programs quickly and
successfully.
We solicit members for our programs primarily by direct marketing
methods and we have been able to effectively diversify our distribution channels
since our initial public offering in 1996, at which time our primary method of
solicitation was outbound telemarketing. As of June 30, 2003, outbound
telemarketing was the source for approximately 20% of our new member
enrollments. We believe we are the leading designer and provider of innovative
membership programs in the United States due to our senior management's
extensive knowledge of the industry, our extensive vendor network and our
relationships with leading consumer-driven organizations with large numbers of
individual account holders and customers. We also possess the in-house
operational capabilities and expertise to perform most aspects of our business
with minimal reliance on third-party outsourcing. For instance, we generally
create most of our own marketing, creative and fulfillment materials. We also
maintain in-house call center facilities to process phone inquiries from our
members. We believe this in-house approach enables us to provide better customer
service and market our products more efficiently.
Most of our membership programs are for one-year renewable terms and
our members are generally entitled to unlimited use of the services during the
membership period. We have traditionally marketed membership programs which have
an up-front annual membership fee. However, in fiscal 2003, we expanded our
marketing of membership programs for which membership fees are payable in
monthly installments. In the fourth quarter of fiscal 2003, approximately half
of our new member enrollments were in monthly payment programs and we intend to
further increase the mix of monthly payment programs in fiscal 2004. In general,
membership fees vary depending upon the particular service offered by the
membership program. In fiscal 2003, annual membership fees averaged
approximately $112 per year and monthly membership fees averaged $10.22 per
month. Our membership programs had approximately 6.3 million members as of
September 30, 2003.
MemberWorks Incorporated, a Delaware corporation, was organized in 1996
and did business as CardMember Publishing Corporation from 1989 to 1996.
1
Our principal office is located at 680 Washington Boulevard, Stamford,
CT 06901 and our phone number is (203) 324-7635. Our fiscal year ends June 30 of
each year.
2
The Notes
Issuer................................... MemberWorks Incorporated
Notes.................................... We issued $90.0 million aggregate principal amount of 5.50%
Convertible Senior Subordinated Notes due 2010 in a private placement
on September 30, 2003. Each note was issued at a price of $1,000 per
note and has a principal amount at maturity of $1,000.
Maturity Date............................ October 1, 2010, unless earlier converted, redeemed by us at our
option, or repurchased by us at your option upon a change of control
of MemberWorks.
Interest Rate............................ 5.50% per year. Interest will be payable semiannually in arrears on
April 1 and October 1 of each year, commencing April 1, 2004.
The initial interest payment will include accrued interest from
September 30, 2003.
Ranking.................................. The notes will be unsecured and
o subordinated in right of payment to all of our existing and
future senior indebtedness;
o equal in right of payment to our existing and future senior
subordinated indebtedness;
o senior in right of payment to our future subordinated
indebtedness; and
o effectively subordinated in right of payment to all existing
and future indebtedness and other liabilities of any of our
existing or future subsidiaries.
As of October 31, 2003:
o our outstanding senior indebtedness was approximately $5.5
million. In addition, we had $22.5 million available
under our bank credit facility (all of which, if drawn,
would rank senior to the notes);
o we had no outstanding senior subordinated indebtedness; and
o our subsidiaries had approximately $24.2 million of
liabilities outstanding, excluding intercompany liabilities.
Conversion Rights........................ Holders may convert their notes into common stock at any time prior to
the close of business on the business day prior to the maturity date
of the notes, unless previously redeemed or repurchased, at a
conversion price of approximately $40.37 per share (equal to a
conversion rate of approximately 24.7739 shares per $1,000 principal
amount of notes), subject to adjustment as described under
"Description of Notes-- Conversion Rights."
3
Redemption of Notes at Our Option........ We may redeem all or a portion of the notes for cash at any time on or
after October 6, 2008, at 100% of their principal amount plus accrued
and unpaid interest to, but excluding, the redemption date. We will
therefore be required to make at least 10 interest payments on the
notes before being able to redeem any notes. See "Description of
Notes-- Optional Redemption by MemberWorks."
Use of Proceeds.......................... We will not receive any proceeds from the sale by any selling
securityholder of the notes or the shares of common stock issuable
upon conversion of the notes.
Sinking Fund............................. None.
DTC Eligibility.......................... The notes will be issued in book-entry form and will be represented by
one or more permanent global certificates deposited with a custodian
for and registered in the name of a nominee of The Depository Trust
Company, or DTC, in New York, New York. Beneficial interests in any
of the notes will be shown on, and transfers will be effected only
through, records maintained by DTC and its direct and indirect
participants, and any such interest may not be exchanged for
definitive securities, except in limited circumstances. See
"Description of Notes-- Form, Denomination and Registration."
Trading Symbol for Our Common Stock...... Our common stock is traded on the Nasdaq National Market under the
symbol "MBRS."
Risk Factors............................. See "Risk Factors" beginning on page 5 of this prospectus and the
other information in this prospectus for a discussion of factors you
should consider carefully before deciding to invest in the notes.
For a more complete description of the Notes, see "Description of
Notes." For a more complete description of the common stock, see "Description of
Capital Stock."
4
RISK FACTORS
You should carefully consider the following risks, as well as the other
information contained in this prospectus, before investing in the notes. If any
of the following risks actually occur, our business could be harmed. You should
refer to the other information set forth in this prospectus and our consolidated
financial statements and the related notes incorporated by reference herein.
Risks Related to the Offering
The price of the notes may fluctuate significantly as a result of the volatility
of the price for our common stock.
Because the notes are convertible into shares of our common stock,
volatility or depressed prices for our common stock could have a similar effect
on the trading price of the notes. In addition, if you convert any notes into
common stock, the value of the common stock you receive may fluctuate
significantly.
The volatility of the market price of our common stock could adversely affect
our stockholders.
The market price of our common stock has been, and may continue to be,
relatively volatile. In fiscal 2003, the highest closing sales price of our
stock was $24.00 on April 29, 2003 and the lowest closing sales price of our
stock was $14.00 on January 27, 2003. The high and low closing sales prices of
our common stock were $25.00 and $7.98 in fiscal 2002 and $37.06 and $18.69 in
fiscal 2001. Factors which may affect the market price for our common stock
include:
o actual or anticipated variations in our quarterly operating results or
financial condition or in those of our competitors or clients;
o announcements by us or our competitors of new programs or acquisitions of
new businesses;
o market conditions or trends in our industry;
o introduction of program enhancements by other competitors that reduce the
demand for our programs;
o changes in financial estimates by securities analysts;
o general economic conditions in the United States and Canada;
o unexpected departures of key personnel;
o changes in the market valuations of our competitors;
o the sale of a large amount of our common stock by our largest shareholders;
o the other risk factors listed in this section; and
o new accounting pronouncements.
Sales of substantial amounts of shares of common stock in the public
market could adversely affect the market price of our common stock. As of
November 11, 2003 we had 10,755,000 shares of common stock outstanding.
5
The notes are subordinated. You will receive payment on your notes only if we
have funds remaining after we have paid any existing and future senior
indebtedness.
The notes will be unsecured and subordinated in right of payment to all
of our existing and future senior indebtedness. Currently we have a $28.0
million bank credit facility, which had no borrowings outstanding as of October
31, 2003. As of September 30, 2003, the availability under the bank credit
facility was reduced by an outstanding letter of credit of $5.5 million. In the
future, we may incur additional senior indebtedness. In the event of our
bankruptcy, liquidation or reorganization or upon acceleration of the notes due
to an event of default under the indenture and in certain other events, our
assets will be available to pay obligations on the notes only after all senior
indebtedness has been paid. As a result, there may not be sufficient assets
remaining to pay amounts due on any or all of the outstanding notes.
The notes will effectively be subordinated to the liabilities of our
subsidiaries.
Our right to receive any assets of any of our subsidiaries upon their
liquidation or reorganization, and therefore the right of the holders of the
notes to participate in those assets, will be effectively subordinated to the
claim of that subsidiary's creditors, including trade creditors. In addition,
even if we were a creditor of any of our subsidiaries, our rights as a creditor
would be subordinate to any security interest in the assets of our subsidiaries
and any indebtedness of our subsidiaries senior to that held by us. Our
subsidiaries have no obligation to pay any amounts due on the notes or to
provide us with funds for our payment obligations, whether by dividends,
distributions, loans or other payments. As of October 31, 2003, our subsidiaries
had approximately $24.2 million of indebtedness and other liabilities
outstanding.
If an active trading market for the notes does not develop, then the market
price of the notes may decline or you may not be able to sell your notes.
The notes comprise a new issue of securities for which there is
currently no public market. We do not intend to list the notes on any national
securities exchange or automated quotation system. If the notes are traded, they
may trade at a discount from their offering price, depending on prevailing
interest rates, the market for similar securities, the price of our common
stock, our performance and other factors. The initial purchasers advised us that
they intend to make a market in the notes. However, they are not obligated to
make a market and may discontinue this market activity at any time without
notice. As a result, we do not know whether an active trading market will
develop for the notes. To the extent that an active trading market does not
develop, the price at which you may be able to sell the notes, if at all, may be
less than the price you pay for them.
Increased leverage may harm our financial condition and results of operations.
At September 30, 2003, we had $90 million of outstanding indebtedness.
We may incur additional indebtedness in the future and the notes do not restrict
our future issuance of indebtedness. Our level of indebtedness will have several
important effects on our future operations, including, without limitation:
o a greater portion of our cash flow from operations will be dedicated to the
payment of any interest required with respect to outstanding indebtedness;
o increases in our outstanding indebtedness and leverage will increase our
vulnerability to adverse changes in general economic and industry
conditions, as well as to competitive pressure; and
o depending on the levels of our outstanding indebtedness, our ability to
obtain additional financing for working capital, capital expenditures,
general corporate and other purposes may be limited.
Our ability to make payments of principal and interest on our
indebtedness depends upon our future performance, which will be subject to the
success of the marketing of our programs, general economic conditions, and
financial, business and other factors affecting our operations, many of which
are beyond our control. If we are not able to generate sufficient cash flow from
operations in the future to service our indebtedness, we may be required, among
other things:
6
o to seek additional financing in the debt or equity markets;
o to refinance or restructure all or a portion of our indebtedness, including
the notes;
o to sell selected assets; and/or
o to reduce or delay planned expenditures on new marketing.
Such measures might not be sufficient to enable us to service our debt.
In addition, any such financing, refinancing or sale of assets might not be
available on economically favorable terms.
The notes will not contain restrictive covenants, and there is limited
protection in the event of a change in control.
The indenture under which the notes are issued does not contain
restrictive covenants that would protect you from several kinds of transactions
that may adversely affect you. In particular, the indenture does not contain
covenants that limit our ability to pay dividends or make distributions on or
redeem our capital stock or limit our ability to incur additional indebtedness
and, therefore, may not protect you in the event of a highly leveraged
transaction or other similar transaction. In addition, the requirement that we
offer to repurchase the notes upon a change of control is limited to the
transactions specified in the definition of a "change of control" under
"Description of Notes -- Repurchase at Option of Holders Upon a Change of
Control." Accordingly, we could enter into certain transactions, such as
acquisitions, refinancings or a recapitalization, that could affect our capital
structure and the value of our common stock but would not constitute a change of
control.
We may not have sufficient funds to repurchase notes upon a change of control.
Should a "change of control" occur, no assurance can be given that we
will have sufficient funds available to purchase notes which are tendered for
repurchase. A failure by us to repurchase tendered notes will constitute an
event of default under the indenture.
We have never paid any dividends on our common stock.
To date we have not paid, and the terms of our credit agreement
prohibit us from paying, any cash dividend. We anticipate that all of our
earnings in the foreseeable future will be retained for use in our business and
to repurchase our common stock under our stock buyback program.
If we pay cash dividends on our common stock, you will be deemed to have
received a taxable dividend without the receipt of any cash.
If we pay a cash dividend on our common stock, and an adjustment to the
conversion price results, you will be deemed to have received a taxable dividend
subject to U.S. federal income tax, to the extent of our current or accumulated
earnings and profits, without the receipt of any cash. See "United States
Federal Income Tax Consequences -- Constructive Dividends."
Future sales of our common stock in the public market could lower our stock
price.
Future sales of our common stock in the public market could lower our
stock price and impair our ability to raise funds in stock offerings. As of
November 11, 2003, we had 10,755,000 outstanding shares of our common stock. As
of November 11, 2003, our outstanding shares are subject to dilution by
3,483,000 shares of common stock issuable upon the exercise of outstanding stock
options, of which 1,848,000 are currently exercisable.
We may also issue additional shares of common stock as consideration
for future acquisitions or other investments. Sales of a substantial amount of
common stock in the public market, or the perception that these sales may occur,
could adversely affect the market price of our common stock prevailing from time
to time in the public market and could impair our ability to raise funds in
additional stock offerings.
7
Risks Related to Our Business
Our profitability depends on members continuing to retain their memberships in
our programs. Increased cancellations could impair our profitability.
We generally incur losses and negative cash flow during the initial
year of an individual membership program, as compared to renewal years. This is
due primarily to marketing costs associated with obtaining a new member. In
addition, we experience a higher percentage of cancellations during the initial
membership period as compared to renewal periods. Annual members may cancel
their membership at any time during the membership period generally for a pro
rata refund of the membership fee based on the remaining portion of the
membership period. Monthly members are billed each month after the trial period
until they cancel their membership. Accordingly, the profitability of each of
our programs depends on recurring and sustained membership renewals and
increased cancellations could have a material adverse effect on our business,
financial condition, results of operations and cash flows.
The loss of our key clients would have a material adverse effect on our results
of operations.
Membership programs sponsored by our two largest clients, Citibank,
N.A. (and its affiliates) and West Corporation, accounted for 21% and 16% of our
revenue, respectively, for the fiscal year ended June 30, 2003. A loss of either
of these clients or a decline in the businesses of either of these clients from
which we acquire new members would have a material adverse effect on our results
of operations. There can be no assurance that one or more of our key or other
clients will not terminate their relationship with us or suffer a decline in
their business from which we acquire new members.
We market many of our membership programs through credit card issuers. A
downturn in the credit card industry would adversely affect us.
Our future success is dependent in large part on continued demand for
our membership programs within the industries of our clients. In particular,
membership programs marketed through our credit card issuer clients accounted
for a significant amount of our revenues in fiscal 2003. A significant downturn
in the credit card industry or a trend in that industry to reduce or eliminate
its use of membership programs would have a material adverse effect on our
business, financial condition, results of operations and cash flows.
The unanticipated termination of agreements with independent vendors could have
a material adverse effect on our business.
We depend on independent vendors to provide most of our program
products and services to members. The vendors generally operate pursuant to
non-exclusive agreements with us that may be terminated by the vendor with
limited prior notice. There can be no assurance that, in the event a vendor
ceases operations, or terminates, breaches or chooses not to renew its agreement
with us, a replacement vendor could be retained on a timely basis, if at all. In
addition, vendors are independent contractors and the level and quality of
services they provide is outside our control. Any service interruptions, delays
or quality problems could result in customer dissatisfaction and membership
cancellations and/or termination of clients' relationships with us, which could
have a material adverse effect on our business, financial condition, results of
operations and cash flows.
We depend on credit card processors to obtain payments for us.
We depend on credit card processors to obtain payments for us. The
credit card processors operate pursuant to agreements that may be terminated
with limited prior notice. In the event a credit card processor ceases
operations or terminates its agreement with us, there can be no assurance a
replacement credit card processor could be retained on a timely basis, if at
all. Any service interruptions, delays or quality problems could result in
delays in collecting payments, which could have a material adverse effect on our
business, financial condition, results of operations and cash flows.
8
We may be unable to compete effectively with other companies in our industry
that have financial or other advantages.
We believe that the principal competitive factors in our industry
include the ability to identify, develop and offer innovative membership
programs, the quality and breadth of membership programs offered, competitive
pricing and in-house marketing expertise. Our competitors offer membership
programs which provide products or services similar to, or which compete
directly with, those provided by us. These competitors include, among others,
Aegon, Cendant, Fortis and General Electric Financial Assurance. In addition, we
could face competition if our current clients or other companies were to
introduce their own in-house membership programs.
Some of these competitors have substantially larger customer bases and
greater financial and other resources than us. To date, we have effectively
competed with such competitors. There can be no assurance that:
o our competitors will not increase their emphasis on programs similar to
those we offer;
o our competitors will not provide programs comparable or superior to those
we provide at lower membership fees;
o our competitors will not adapt more quickly than us to evolving industry
trends or changing market requirements;
o new competitors will not enter the market; or
o other businesses (including our current clients) will not themselves
introduce in-house membership programs.
Such increased competition may result in price reductions, reduced
operating margins or loss of market share, any of which could materially
adversely affect our business, financial condition and results of operations.
Additionally, because contracts between clients and program providers are often
exclusive with respect to a particular program, potential clients may be
prohibited from contracting with us to promote a new program if the products and
services provided by our program are similar to, or overlap with, the products
and services provided by an existing program of a competitor.
Our industry is increasingly subject to federal and state government regulation.
We market our membership programs through various distribution
channels, including MemberLinkSM (our inbound marketing channel), online
marketing, outbound telemarketing and direct mail. These channels are regulated
at both state and federal levels and we believe that these channels will be
subject to increasing regulation, particularly in the area of consumer privacy.
Such regulation may limit our ability to solicit new members or to offer
products or services to existing members.
The telemarketing industry has become subject to an increasing amount
of federal and state regulation as well as general public scrutiny. For example,
the Federal Telephone Consumer Protection Act of 1991 limits the hours during
which telemarketers may call consumers and prohibits the use of automated
telephone dialing equipment to call certain telephone numbers. The Federal
Telemarketing and Consumer Fraud and Abuse Prevention Act of 1994 and Federal
Trade Commission ("FTC") regulations prohibit deceptive, unfair or abusive
practices in telemarketing sales. The FTC's 2003 Amendment to its Telemarketing
Sales Rule created a national do-not-call list which became effective October 1,
2003. Both the FTC and state attorneys general have authority to prevent
telemarketing activities deemed by them to be "unfair or deceptive acts or
practices." Further, some states have enacted laws, and others are considering
enacting laws, targeted directly at regulating telemarketing practices,
including the creation of do-not-call lists, and any such laws could adversely
affect or limit our operations.
Compliance with these regulations is generally our responsibility, and
we could be subject to a variety of enforcement and/or private actions for any
failure to comply with such regulations. Our provision of membership programs
requires us to comply with certain state regulations and any changes to such
regulations could materially
9
increase our compliance costs. The risk of our noncompliance with any rules and
regulations enforced by a federal or state consumer protection authority may
subject us or our management to fines or various forms of civil or criminal
prosecution, any of which could have a material adverse effect on our business,
financial condition and results of operations. Also, the media often publicizes
perceived noncompliance with consumer protection regulations and violations of
notions of fair dealing with consumers, and the membership services industry is
susceptible to peremptory charges by the media of regulatory noncompliance and
unfair dealing.
We currently maintain rigorous security and quality controls that are
intended to ensure that all of our marketing practices meet or exceed industry
standards and all applicable state and federal laws and regulations. We only
collect and maintain customer data that is necessary to administer our business
activities, such as a customer's name, address and encrypted billing
information. For marketing and modeling purposes, we only use publicly available
information, such as demographic, neighborhood and lifestyle data. We do not
resell any confidential customer information that is obtained or derived from
our marketing efforts, nor do we purchase consumer information from financial
institutions. However, there can be no assurance that our efforts will continue
to meet all applicable state and federal laws and regulations in the future.
We depend in part on the communication channels through which we market and
service our products, such as telephone, internet and the United States Postal
Service. An interruption of, or an increase in the billing rate for, such
communication channels could adversely affect our business.
We market and service our membership programs by various communication
channels, including telephone, internet and mail, and accordingly, our business
is dependent on the quality of service of providers of these communication
channels. Any significant interruption in these communication channels could
adversely affect us. In addition, rate increases imposed by providers would
increase our and our clients' operating expenses and could have a material
adverse effect on our business, financial condition, results of operations and
cash flows.
The success of our business depends on introduction of popular new programs or
program enhancements.
Our business is substantially dependent on our ability to develop and
successfully introduce popular new programs or provide enhancements to existing
programs which generate consumer loyalty. Failure to introduce new programs in a
timely manner could result in our competitors acquiring additional market share.
In addition, the introduction or announcement of new innovative programs by us
or by others could render existing programs obsolete, or result in a delay or
decrease in orders for existing programs as customers evaluate new programs.
Therefore, the announcement or introduction of new innovative programs by us or
others, or our failure to introduce new programs which generate broad consumer
appeal, could have a material adverse effect on our business, financial
condition, results of operations and cash flows.
Our business may suffer if we fail to successfully integrate acquired businesses
or to properly assess the risks in particular transactions.
We have in the past acquired, and may in the future acquire, businesses
and other assets. The successful integration of the acquired business and assets
into our existing operations can be critical to our future performance. Acquired
businesses may not be successfully integrated with our operations or produce the
anticipated benefits in a timely manner, or at all. Failure to successfully
integrate acquired businesses or to achieve anticipated operating synergies or
cost savings could have a material adverse effect on our business, financial
condition, results of operations and cash flows. Although we attempt to evaluate
the risks inherent in each transaction and to value acquisition candidates
appropriately, we cannot assure you that we will properly ascertain all such
risks or that acquired businesses and assets will perform as we expect or
enhance the value of our company as a whole. In addition, acquired companies or
businesses may have larger than expected liabilities that are not covered by the
indemnification, if any, we are able to obtain from the seller.
We may need to raise additional capital in the future to fund liquidity and
capital requirements, which may not be available to us on favorable terms.
10
Our future liquidity and capital requirements will depend upon numerous
factors, including the success of our membership programs, market developments,
potential acquisitions and additional repurchases of our common stock. We may
need to raise additional funds to support expansion, develop new membership
programs, respond to competitive pressures, acquire complementary businesses or
take advantage of unanticipated opportunities. We experienced negative cash flow
in the period following the terrorist attacks of September 11, 2001 and may
experience negative cash flow in the future as a result of various factors, some
of which are outside of our control. We cannot be certain that we will be able
to obtain adequate financing on favorable terms or at all. If required, we may
raise such additional capital through public or private debt or equity
financing, strategic relationships or other arrangements.
Our efforts to increase the share of monthly payment programs in our program mix
may adversely affect our cash flow.
We have traditionally marketed membership programs which have an
up-front annual membership fee. However, in fiscal 2003, we expanded our
marketing of membership programs for which membership fees are payable in
monthly installments. In the fourth quarter of fiscal 2003, approximately half
of our new member enrollments were in monthly payment programs and we intend to
further increase the share of monthly payment programs in our program mix in
fiscal 2004. Our increased emphasis on monthly payment programs adversely
affects our cash flow because the immediate cost of acquiring a new member is
higher than the first month's membership fee.
We rely on our computer and communication systems. If such systems fail or are
unable to keep pace with technological advances, our business would suffer.
Our business is highly dependent on our computer and telecommunications
systems and any temporary or permanent loss of either system, for whatever
reason, could have a material adverse effect on our business, financial
condition and results of operations. In addition, the technologies on which we
are dependent to compete effectively and meet our clients' needs are rapidly
evolving and in many instances are characterized by short product life cycles.
As a result, we are dependent on ongoing, significant investment in advanced
computer and telecommunications technology, including automated call
distributors and digital switches. Our inability to anticipate and adapt to
technological shifts and to develop new and enhanced technology on a timely
basis could have a material adverse effect on our business, financial condition,
results of operations and cash flows.
Our operating results fluctuate from quarter to quarter.
Our quarterly revenues, expenses and operating results have varied
significantly in the past and may vary significantly from quarter to quarter in
the future. Factors which could cause our financial results to fluctuate
include:
o increased cancellation of member enrollments;
o the rate of renewal by existing members;
o our ability to introduce new programs or enhance existing programs on a
timely basis and the introduction of programs by our competitors;
o the mix of our client base;
o seasonality of the businesses of our clients;
o market acceptance and demand for our and our clients' membership programs
generally;
o the mix of programs we offer and the price points of such programs;
o increased commission rates and other compensation required by clients;
11
o the mix of our marketing channels;
o unanticipated service interruptions;
o the availability of vendors to support offered programs;
o the level of enthusiasm for health and fitness, travel, entertainment and
leisure activities, and other lifestyle elements underlying the programs;
and
o competitive pressures on selling prices.
Many of these factors are beyond our control. Operating results would
be adversely affected if projected revenues for a given quarter are not
achieved. In addition, any future acquisitions by us could have a material
adverse effect on our results of operations, particularly in quarters
immediately following consummation of such transactions, while the operations of
the acquired business are being integrated into our operations.
We depend on key executive and marketing personnel.
We are dependent on certain key members of our management and marketing
staff, particularly our Chief Executive Officer, Gary Johnson. In addition, we
believe that our future success will depend in part upon our ability to attract
and retain highly skilled managerial and marketing personnel. We face
significant competition for such personnel, and we may be unsuccessful in hiring
or retaining the personnel we require. The failure to hire and retain such
personnel could have a material adverse effect on our business, financial
condition and results of operations.
We employ anti-takeover measures that may discourage a potential acquirer or
prevent a transaction that is in the best interest of the stockholders.
Our Restated Certificate of Incorporation, or "charter," requires that
any action required or permitted to be taken by our stockholders must be
effected at a duly called annual or special meeting of stockholders and may not
be effected by any consent in writing, and requires reasonable advance notice by
a stockholder of a proposal or director nomination which such stockholder
desires to present at any annual or special meeting of stockholders. Special
meetings of stockholders may be called only by our Chairman of the Board, our
Chief Executive Officer or, if none, our President or by our board of directors.
Our charter provides for a classified board of directors, and members of the
board of directors may be removed only for cause upon the affirmative vote of
holders of at least two-thirds of our shares of capital stock entitled to vote.
In addition, shares of preferred stock may be issued in the future without
further stockholder approval and on such terms and conditions, and having such
rights, privileges and preferences, as the board of directors may determine. The
rights of the holders of common stock will be subject to, and may be adversely
affected by, the rights of any holders of preferred stock that may be issued in
the future. We have no present plans to issue any shares of preferred stock.
In addition, we are subject to the anti-takeover provisions of Section
203 of the Delaware General Corporation Law which prohibits us from engaging in
a "business combination" with an "interested stockholder" for a period of three
years after the date of the transaction in which the person became an interested
stockholder, unless the business combination is approved in a prescribed manner.
These provisions, and other provisions of our charter, may have the effect of
deterring hostile takeovers or delaying or preventing changes in our control or
management, including transactions in which stockholders might otherwise receive
a premium for their shares over then current market prices. In addition, these
provisions may limit the ability of stockholders to approve transactions that
they may deem to be in their best interests.
12
RATIO OF EARNINGS TO FIXED CHARGES
Set forth below is information concerning our ratio of earnings to
fixed charges on a consolidated basis for the periods indicated. This ratio
shows the extent to which our business generates enough earnings after the
payment of all expenses other than interest to make required interest payments
on our debt.
For the purpose of computing the ratios of earnings to fixed charges,
"earnings" consist of income before tax and fixed charges. "Fixed charges"
consist of interest expense, amortization of expenses related to indebtedness,
and the portion of rental expense which is considered to be representative of
the interest factors in our leases.
Fiscal Quarter Ended
September 30, Fiscal Year Ended June 30,
--------------------- ----------------------------------------------
2003 2003 2002 2001 2000 1999
--------------------- ------ ------ ------ ------ -----
Ratio of earnings to fixed charges ............... 10.82x 15.52x 17.69x (1) 6.75x 8.60x
(1) For the year ended June 30, 2001, earnings were insufficient to cover fixed
charges by $35.9 million.
13
USE OF PROCEEDS
The selling securityholders will receive all of the net proceeds from
the sale of the notes or the shares of common stock sold under this prospectus.
We will not receive any of the proceeds from sales by the selling
securityholders of the notes or the underlying common stock.
14
PRICE RANGE OF THE COMMON STOCK AND DIVIDEND POLICY
Our common stock is quoted and traded on the Nasdaq National Market
under the symbol "MBRS." The table below shows the range of reported high and
low closing sale prices per share for our common stock on the Nasdaq National
Market for the periods indicated.
High Low
------- ------
Fiscal Year Ended June 30, 2001
First Quarter ended September 30............................. $37.06 $26.62
Second Quarter ended December 31............................. 36.19 19.38
Third Quarter ended March 31................................. 27.94 18.69
Fourth Quarter ended June 30................................. 26.00 20.31
Fiscal Year Ended June 30, 2002
First Quarter ended September 30............................. $25.00 $17.90
Second Quarter ended December 31............................. 21.00 7.98
Third Quarter ended March 31................................. 18.93 14.26
Fourth Quarter ended June 30................................. 18.53 16.27
Fiscal Year Ended December 31, 2003
First Quarter ended September 30............................. $18.80 $12.48
Second Quarter ended December 31............................. 19.53 16.65
Third Quarter ended March 31................................. 20.71 14.00
Fourth Quarter ended June 30................................. 24.00 19.30
Fiscal Year Ended June 30, 2004
First Quarter ended September 30............................. $38.22 $19.75
Second Quarter ended December 31 (through November 11, 2003). 34.00 24.69
As of November 11, 2003, the closing sales price for our common stock
as reported by the Nasdaq National Market was $28.48 per share.
We had 1,953 common stockholders of record as of November 11, 2003.
We have not declared or paid to date, and currently are not permitted
by the terms of our credit agreement to pay, any cash dividends. We anticipate
that all of our earnings in the foreseeable future will be retained for use in
our business and to repurchase our common stock under our stock buyback program.
Our future dividend policy will depend on our earnings, capital requirements,
financial condition, requirements of the financing agreements to which we are a
party and other factors considered relevant by our Board of Directors.
15
DESCRIPTION OF NOTES
We issued $90,000,000 aggregate principal amount of notes in a private
placement on September 30, 2003, under an indenture between us and Deutsche Bank
Trust Company Americas, as trustee. The terms of the notes include those
provided in the indenture, the notes and those provided in the registration
rights agreement, which we entered into with the initial purchasers. The
following description is only a summary of the material provisions of the notes,
the indenture and the registration rights agreement. We urge you to read these
documents in their entirety because they, and not this description, will define
your rights as holders of the notes. You may request copies of these documents
at our address set forth above under the caption "Summary."
When we refer to "MemberWorks," "we," "our" or "us" in this section, we
refer only to MemberWorks Incorporated, a Delaware corporation, and not its
subsidiaries.
Brief Description of the Notes
The notes are:
o limited to $90.0 million in aggregate principal amount;
o our unsecured senior subordinated obligations, ranking junior in right
of payment to all of our existing and future senior indebtedness,
equally in right of payment to our future senior subordinated
indebtedness and senior in right of payment to our future subordinated
indebtedness, but as indebtedness of MemberWorks, the notes will be
effectively subordinated to all existing and future secured
indebtedness to the extent of the value of the related security and to
all existing and future indebtedness and other liabilities of our
subsidiaries;
o convertible into our common stock at an initial conversion price of
approximately $40.37 per share, subject to adjustment as described
below under "-- Conversion Rights";
o redeemable at our option in whole or in part beginning on October 6,
2008 upon the terms set forth under "--Optional Redemption by
MemberWorks";
o subject to repurchase by us at your option if a change of control
occurs as set forth below under "-- Repurchase at Option of Holders
Upon a Change of Control"; and
o due on October 1, 2010, unless earlier converted, redeemed by us at
our option or repurchased by us at your option upon a change of
control of MemberWorks.
The indenture does not contain any financial covenants and does not
restrict us or our subsidiaries from paying dividends, incurring additional debt
or issuing or repurchasing our other securities. In addition, the indenture will
not protect you in the event of a highly leveraged transaction or a change in
control of MemberWorks except to the extent described below under "-- Repurchase
at Option of Holders upon a Change of Control."
As of October 31, 2003, we had outstanding approximately $5.5 million
of indebtedness that would rank senior to the notes. In addition, we had $22.5
million available under our bank credit facility (all of which would rank senior
to the notes if drawn). As of October 31, 2003, our subsidiaries had outstanding
approximately $24.2 million of indebtedness and other liabilities, all of which
would be effectively senior to the notes.
No sinking fund is provided for the notes. The notes are not subject to
defeasance. The notes were issued only in registered form in denominations of
$1,000 and any integral multiple of $1,000 above that amount. No service charge
will be made for any registration of transfer or exchange of notes, but we may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
You may present definitive notes for conversion, registration of
transfer and exchange, without service charge, at our office or agency in New
York City, which shall initially be the office or agency of the trustee in New
16
York City. For information regarding conversion, registration of transfer and
exchange of global notes, see "-- Form, Denomination and Registration."
Interest
The notes will bear interest from September 30, 2003 at the rate of
5.50% per year. We will pay interest semiannually in arrears on April 1 and
October 1 of each year to the holders of record at the close of business on the
preceding March 15 and September 15, respectively, beginning April 1, 2004.
There are two exceptions to the preceding sentence:
o In general, we will not pay accrued and unpaid interest on any note
that is converted into our common stock. See "-- Conversion Rights --
Conversion Procedures"; and
o We will pay interest to a person other than the holder of record on
the relevant record date if we redeem, or holders elect to require us
to repurchase, the notes on a date that is after the record date and
on or prior to the corresponding interest payment date. In this
instance, we will pay accrued and unpaid interest on the notes being
redeemed to, but excluding, the redemption date or repurchase date, as
the case may be, to the same person to whom we will pay the principal
of those notes.
We will pay the principal of, interest on, and any additional amounts
due in respect of the global notes to DTC in immediately available funds.
In the event definitive notes are issued, we will pay interest and any
additional amount due on:
o definitive notes having an aggregate principal amount of $5,000,000 or
less by check mailed to the holders of those notes;
o definitive notes having an aggregate principal amount of more than
$5,000,000 by wire transfer in immediately available funds if
requested by the holder of those notes; and
o at maturity, we will pay the principal of and interest on the
definitive notes at our office or agency in New York City, which
initially will be the office or agency of the trustee in New York
City.
Interest will be computed on the basis of a 360-day year comprised of
twelve 30-day months.
Conversion Rights
General
You may convert any outstanding notes (or portions of outstanding
notes) into our common stock, initially at the conversion price of approximately
$40.37 per share, equal to a conversion rate of approximately 24.7739 shares per
$1,000 principal amount of notes. The conversion price will be subject to
adjustment as described below under "Conversion Price Adjustments". We will not
issue fractional shares of common stock upon conversion of notes. Instead, we
will pay cash to you in an amount equal to the market value of that fractional
share based upon the closing sale price of our common stock on the trading day
immediately preceding the conversion date. You may convert notes only in
denominations of $1,000 and whole multiples of $1,000.
You may exercise conversion rights at any time prior to the close of
business on the business day prior to the final maturity date of the notes.
However, if you are a holder of notes that have been called for redemption, you
must exercise your conversion rights prior to the close of business on the
second business day preceding the redemption date, unless we default in payment
of the redemption price on the redemption date. In addition, if you have
exercised your right to require us to repurchase your notes because a change of
control has occurred, you may convert your notes into our common stock only if
you withdraw your notice and convert your notes prior to the close of business
on the business day immediately preceding the change of control repurchase date.
17
Conversion Procedures
Except as provided below, if you convert your notes into common stock
on any day other than an interest payment date, you will not receive any
interest that has accrued on these notes since the prior interest payment date.
By delivering to the holder the number of shares issuable upon conversion,
determined by dividing the principal amount of the notes being converted by the
conversion price, together with a cash payment, if any, in lieu of fractional
shares, we will satisfy our obligation with respect to the converted notes. That
is, accrued but unpaid interest will be deemed to be paid in full rather than
canceled, extinguished or forfeited.
If you convert after a record date for an interest payment date but
prior to the corresponding interest payment date, you will receive on the
interest payment date interest accrued and paid on such notes, notwithstanding
the conversion of such notes prior to such interest payment date, because you
will have been the holder of record on the corresponding record date. However,
at the time you surrender such notes for conversion, you must pay us an amount
equal to the interest that has accrued and will be paid on the notes being
converted on the interest payment date. The preceding sentence does not apply,
however, to a holder that converts, after a record date for an interest payment
date but prior to the corresponding interest payment date, notes that we call
for redemption prior to such conversion on a redemption date that is on or prior
to the third business day after such interest payment date. Accordingly, if we
call your notes for redemption on a date that is after a record date for an
interest payment date but on or prior to the third business day after the
corresponding interest payment date, and prior to the redemption date you choose
to convert your notes, you will receive on the date that has been fixed for
redemption the amount of interest you would have received if you had not
converted your notes.
You will not be required to pay any transfer taxes or duties relating
to the issuance or delivery of our common stock if you exercise your conversion
rights, but you will be required to pay any transfer tax or duties which may be
payable relating to any transfer involved in the issuance or delivery of the
common stock in a name other than yours. Certificates representing shares of
common stock will be issued or delivered only after all applicable transfer
taxes and duties, if any, payable by you have been paid.
To convert interests in a global note, you must deliver to DTC the
appropriate instruction form for conversion pursuant to DTC's conversion
program.
To convert a definitive note, you will be required to:
o complete the conversion notice on the back of the note (or a facsimile
of it);
o deliver the completed conversion notice and the notes to be converted
to the specified office of the conversion agent;
o pay all funds required, if any, relating to interest on the notes to
be converted to which you are not entitled, as described in the third
preceding paragraph; and
o pay all transfer taxes or duties, if any, as described in the second
preceding paragraph.
The conversion date will be the date on which all of the foregoing
requirements have been satisfied. The notes will be deemed to have been
converted immediately prior to the close of business on the conversion date. We
will deliver, or cause to be delivered, to you a certificate for the number of
shares of common stock into which the notes are converted (and cash in lieu of
any fractional shares) as soon as practicable on or after the conversion date.
Conversion Price Adjustments
We will adjust the initial conversion price for certain events,
including:
1. issuances of our common stock as a dividend or distribution on our
common stock;
2. certain subdivisions, combinations or reclassifications of our common
stock;
18
3. issuances to all or substantially all holders of our common stock of
certain rights or warrants to purchase our common stock (or securities
convertible into our common stock) at less than (or having a conversion
price per share less than) the current market price of our common
stock;
4. distributions to all or substantially all holders of our common stock
of shares of our capital stock, evidences of our indebtedness or assets
(including securities), but excluding:
o dividends or distributions referred to in paragraph (1) above;
o rights or warrants referred to in paragraph (3) above;
o dividends or distributions paid exclusively in cash referred to in
paragraph (5) below; or
o dividends and distributions in connection with a reclassification,
consolidation, merger, statutory share exchange, combination, sale or
conveyance resulting in a change in the conversion consideration
pursuant to the fourth succeeding paragraph;
5. dividends or other distributions consisting exclusively of cash to all
or substantially all holders of our common stock, other than dividends
or distributions made in connection with our liquidation, dissolution
or winding-up; and
6. purchases of our common stock pursuant to a tender offer or exchange
offer made by us or any of our subsidiaries to the extent that the cash
and value of any other consideration included in the payment per share
of common stock exceeds the closing sale price per share of our common
stock on the trading day next succeeding the last date on which tenders
or exchanges may be made pursuant to such tender or exchange offer.
We will not make any adjustment if holders may participate in the
transaction or in certain other cases. In cases where the fair market value of
assets, debt securities or certain rights, warrants or options to purchase our
securities, applicable to one share of common stock, distributed to
stockholders:
o equals or exceeds the average closing price of the common stock over
the ten consecutive trading day period ending on the record date for
such distribution, or
o such average closing price exceeds the fair market value of such
assets, debt securities or rights, warrants or options so distributed
by less than $1.00,
rather than being entitled to an adjustment in the conversion price, the holder
of a note will be entitled to receive upon conversion, in addition to the shares
of common stock, the kind and amount of assets, debt securities or rights,
warrants or options comprising the distribution that such holder would have
received if such holder had converted such notes immediately prior to the record
date for determining the shareholders entitled to receive the distribution.
We will not make an adjustment in the conversion price unless such
adjustment would require a change of at least 1% in the conversion price then in
effect at such time. We will carry forward and take into account in any
subsequent adjustment any adjustment that would otherwise be required to be
made. Except as stated above, we will not adjust the conversion price for the
issuance of our common stock or any securities convertible into or exchangeable
for our common stock or carrying the right to purchase any of the foregoing.
In the event that we distribute shares of capital stock of a subsidiary
of ours, the conversion price will be adjusted, if at all, based on the market
value of the subsidiary stock so distributed relative to the market value of our
common stock, in each case over a measurement period following the distribution,
unless we elect to reserve the pro rata portion of such shares for the benefit
of the holders of the notes.
If we:
19
o reclassify or change our common stock (other than changes resulting
from a subdivision or combination); or
o consolidate or combine with or merge into any person or sell or convey
to another person all or substantially all of our property and assets,
and the holders of our common stock receive stock, other securities or other
property or assets (including cash or any combination thereof) with respect to
or in exchange for their common stock, each outstanding note will, without the
consent of any holders of notes, become convertible only into the consideration
the holders of notes would have received if they had converted their notes
immediately prior to such reclassification, change, consolidation, combination,
merger, statutory share exchange, sale or conveyance. We may not become a party
to any such transaction unless its terms are consistent with the foregoing.
If a taxable distribution to holders of our common stock or other
transaction occurs which results in any adjustment of the conversion price
(including an adjustment at our option), you may, in certain circumstances, be
deemed to have received a distribution subject to U.S. income tax as a dividend.
For example, you will be deemed to have received a constructive distribution
from us to the extent of any change in the conversion rate of the notes made to
compensate you for cash dividends paid to holders of our common stock. In
certain other circumstances, the absence of an adjustment may result in a
taxable dividend to the holders of our common stock. See "United States Federal
Income Tax Consequences."
We may from time to time, to the extent permitted by law, reduce the
conversion price of the notes by any amount for any period of at least 20 days.
In that case, we will give at least 15 days' notice of such decrease. We may
make such reductions in the conversion price, in addition to those set forth
above, as our board of directors deems advisable to avoid or diminish any income
tax to holders of our common stock resulting from any dividend or distribution
of stock (or rights to acquire stock) or from any event treated as such for
income tax purposes.
If we adjust the conversion price pursuant to the above provisions, we
will issue a press release through Dow Jones & Company, Inc., Bloomberg Business
News or a similar newswire service containing the relevant information and make
this information available on our web site or through another public medium as
we may use at that time.
Subordination
The payment of principal, interest and premium, if any, on the notes
will be subordinated in right of payment, as set forth in the indenture, to the
prior payment in full of all senior indebtedness of MemberWorks, including
senior indebtedness incurred after the date the notes are issued.
Upon any distribution to creditors of MemberWorks in a liquidation or
dissolution of MemberWorks or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to MemberWorks or its property, an
assignment for the benefit of creditors or any marshalling of MemberWorks'
assets and liabilities, the holders of senior indebtedness will be entitled to
receive payment in full in cash of all obligations due in respect of such senior
indebtedness (including interest after the commencement of any such proceeding
at the rate specified in the applicable senior indebtedness, whether or not an
allowable claim in any such proceeding) before the holders of notes will be
entitled to receive any payment with respect to the notes, and until all
obligations with respect to senior indebtedness are paid in full, any
distribution to which the holders of notes would be entitled shall be made to
the holders of senior indebtedness.
MemberWorks also may not make any payment upon or in respect of the
notes if:
o a default in the payment of the principal of, premium, if any, or
interest on designated senior indebtedness occurs and is continuing;
or
o any other default occurs and is continuing with respect to designated
senior indebtedness that permits holders of the designated senior
indebtedness as to which such default relates to accelerate its
maturity
20
(or that would permit such holders to accelerate with the giving of
notice or the passage of time or both) and the trustee receives a
notice of such default (a "Payment Blockage Notice") from MemberWorks
or the holders of any designated senior indebtedness.
Payments on the notes may and shall be resumed:
o in the case of a payment default, upon the date on which such default
is cured or waived; and
o in case of a nonpayment default, the earlier of the date on which such
nonpayment default is cured or waived or 179 days after the date on
which the applicable Payment Blockage Notice is received, unless the
maturity of any designated senior indebtedness has been accelerated.
No new period of payment blockage may be commenced unless and until:
o 360 days have elapsed since the effectiveness of the immediately prior
Payment Blockage Notice; and
o all scheduled payments of principal, interest and premium, if any, on
the notes that have come due have been paid in full in cash.
No nonpayment default that existed or was continuing on the date of
delivery of any Payment Blockage Notice to the trustee shall be, or be made, the
basis for a subsequent Payment Blockage Notice unless such default shall have
been waived for a period of not less than 90 days.
The indenture further requires that MemberWorks promptly notify holders
of senior indebtedness if payment of the notes is accelerated because of an
event of default.
As a result of the subordination provisions described above, in the
event of a liquidation or insolvency, the holders of notes may recover less
ratably than creditors of MemberWorks who are holders of senior indebtedness.
See "Risk Factors -- The notes are subordinated. You will receive payment on
your notes only if we have funds remaining after we have paid any existing and
future senior indebtedness." You will receive payment on your notes only if we
have funds remaining after we have paid any existing and future senior
indebtedness. As of October 31, 2003, we had outstanding $5.5 million of senior
indebtedness.
"senior indebtedness" means:
o all indebtedness of MemberWorks outstanding under credit facilities
and all hedging obligations with respect thereto;
o any other indebtedness permitted to be incurred by MemberWorks under
the terms of the indenture, unless the instrument under which such
indebtedness is incurred expressly provides that it is on a parity
with or subordinated in right of payment to the notes; and
o all principal, interest (including interest accruing on or after the
filing of any petition in bankruptcy or for reorganization, whether or
not a claim for post-filing interest is allowed in such proceeding),
premium, penalties, fees, charges, expenses, indemnification,
reimbursement obligations, damages, guarantees and other liabilities
or amounts payable under the documentation governing any indebtedness
of MemberWorks referred to above.
Notwithstanding anything to the contrary in the foregoing, senior
indebtedness will not include:
o any liability for federal, state, local or other taxes owed or owing
by MemberWorks;
o any indebtedness of MemberWorks to any of its subsidiaries or other
affiliates;
21
o any trade payables; or
o any indebtedness of MemberWorks that is incurred in violation of the
indenture.
"Indebtedness" means, with respect to any person, any indebtedness of
such person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or banker's acceptances
or representing capital lease obligations or the balance deferred and unpaid of
the purchase price of any property or representing any hedging obligations,
except any obligations that constitutes an accrued expense, deferred revenue or
trade payable, if and to the extent any of the foregoing indebtedness (other
than letters of credit and hedging obligations) would appear as a liability upon
a balance sheet of such person prepared in accordance with GAAP, as well as all
indebtedness of others secured by a lien on any assets of such person (whether
or not such indebtedness is assumed by such person) and, to the extent not
otherwise included, the guarantee by such person of any indebtedness of any
other person.
"designated senior indebtedness" means (1) any senior indebtedness
outstanding under any credit facility and (2) any other senior indebtedness
permitted under the indenture, the principal amount of which is $25.0 million or
more and that has been designated by MemberWorks as "designated senior
indebtedness." The indenture does not restrict the creation of senior
indebtedness or any other indebtedness in the future. For information concerning
our potential incurrence of additional senior indebtedness, see "Risk Factors --
The notes will not contain restrictive covenants, and there is limited
protection in the event of a change of control."
We will be obligated to pay reasonable compensation to the trustee and
to indemnify the trustee against any losses, liabilities or expenses incurred by
it in connection with its duties relating to the notes. The trustee's claims for
such payments will be senior to those of holders of the notes in respect of all
funds collected or held by the trustee.
Optional Redemption by MemberWorks
We may not redeem the notes in whole or in part at any time prior to
October 6, 2008. At any time on or after October 6, 2008, we may redeem some or
all of the notes on at least 30 but not more than 60 days' prior notice, at a
redemption price equal to 100% of the principal amount of notes to be redeemed,
plus accrued and unpaid interest to, but excluding, the redemption date. In each
case, we will pay accrued and unpaid interest on the notes being redeemed to,
but excluding, the redemption date. In the event the notes are converted into
our common stock after the date the notice of the redemption is mailed and prior
to the third business day after the optional redemption date, we will pay
interest on such notes. See "-- Conversion Rights -- Conversion Procedures."
Procedures for Partial Redemption
If we do not redeem all of the notes, the trustee will select the notes
to be redeemed in principal amounts of $1,000 or whole multiples of $1,000 by
lot or on a pro rata basis. If any notes are to be redeemed in part only, we
will issue a new note or notes in principal amount equal to the unredeemed
principal portion thereof. If a portion of your notes are selected for partial
redemption and you convert a portion of your notes, the converted portion will
be deemed to be part of the portion of notes selected for redemption.
Repurchase at Option of Holders upon a Change of Control
Repurchase upon a Change of Control
If a change of control occurs, holders may require us to repurchase all
or any portion of their notes not previously called for redemption at a
repurchase price equal to 100% of the principal amount of the notes to be
repurchased plus any accrued and unpaid interest to, but excluding, the
repurchase date. The principal amount submitted for repurchase by a holder must
be equal to $1,000 or a whole multiple of $1,000.
A "change of control" will be deemed to have occurred at such time
after the original issuance of the notes when any of the following has occurred:
22
o the acquisition by any person, including any syndicate or group deemed
to be a "person" under Section 13(d)(3) of the Exchange Act, of
beneficial ownership, directly or indirectly, through a purchase,
merger or other acquisition transaction or series of purchases,
mergers or other acquisition transactions of shares of our capital
stock entitling that person to exercise 50% or more of the total
voting power of all shares of our capital stock entitled to vote
generally in elections of directors, other than any acquisition by us,
any of our subsidiaries or any of our employee benefit plans; or
o the first day on which a majority of the members of our board of
directors does not consist of continuing directors; or
o the consolidation or merger of us with or into any other person, any
merger of another person into us, or any conveyance, transfer, sale,
lease or other disposition of all or substantially all of our
properties and assets to another person, other than:
1. any transaction:
o that does not result in any reclassification, conversion,
exchange or cancellation of outstanding shares of our capital
stock; and
o pursuant to which the holders of 50% or more of the total voting
power of all shares of our capital stock entitled to vote
generally in elections of directors immediately prior to such
transaction have the right to exercise, directly or indirectly,
50% or more of the total voting power of all shares of our
capital stock entitled to vote generally in elections of
directors of the continuing or surviving person immediately after
giving effect to such issuance; and
2. any merger primarily for the purpose of changing our jurisdiction of
incorporation and resulting in a reclassification, conversion or exchange of
outstanding shares of common stock solely into shares of common stock of the
surviving entity.
However, a change of control will be deemed not to have occurred if:
o the closing sale price per share of our common stock for any five trading
days within:
(i) the period of 10 consecutive trading days ending immediately after the
later of the change of control or the public announcement of the change of
control, in the case of a change of control under the first or second bullet
point above; or
(ii) the period of 10 consecutive trading days ending immediately before
the change of control, in the case of a change of control under the third bullet
point above, equals or exceeds 110% of the conversion price of the notes in
effect on each such trading day; or
o all of the consideration in the transaction or transactions (other than
cash payments for fractional shares and cash payments made in respect of
dissenters' appraisal rights) constituting a change of control consists of
shares of common stock traded or to be traded immediately following such
change of control on a national securities exchange or the Nasdaq National
Market and, as a result of the transaction or transactions, the notes
become convertible solely into such common stock (and any rights attached
thereto).
Beneficial ownership shall be determined in accordance with Rules l3d-3
and 13d-5 under the Exchange Act (except that a person shall be deemed to have
beneficial ownership of all securities that such person has the right to
acquire, whether such right is currently exercisable or is exercisable only upon
the occurrence of a subsequent condition). The term "person" includes any
syndicate or group which would be deemed to be a "person" under Section l3(d)(3)
under the Exchange Act.
23
"Continuing directors" means, as of any date of determination, any
member of the board of directors of MemberWorks who:
o was a member of the board of directors on September 24, 2003; or
o was nominated for election or elected to the board of directors with
the approval of a majority of the continuing directors who were
members of the board at the time of new director's nomination or
election.
The definition of "change of control" includes a phrase relating to the
conveyance, transfer, sale, lease or disposition of "all or substantially all"
of our properties and assets. There is no precise, established definition of the
phrase "substantially all" under applicable law. In interpreting this phrase,
courts, among other things, make a subjective determination as to the portion of
assets conveyed, considering many factors, including the value of assets
conveyed, the proportion of an entity's income derived from the assets conveyed
and the significance of those assets to the ongoing business of the entity. To
the extent the meaning of such phrase is uncertain, uncertainty will exist as to
whether or not a change of control may have occurred and, accordingly, as to
whether or not the holders of notes will have the right to require us to
repurchase their notes.
Repurchase Right Procedures
Within 30 days after the occurrence of a change of control, we will be
required to give notice to all holders of the occurrence of the change of
control and of their resulting repurchase right. The repurchase date will be no
later than 30 days after the date we give that notice. The notice will be
delivered to the holders at their addresses shown in the register of the
registrar and to beneficial owners as required by applicable law, stating, among
other things, the procedures that holders must follow to require us to
repurchase their notes as described below.
If holders have the right to cause us to repurchase their notes as
described above, we will issue a press release through Dow Jones & Company,
Inc., Bloomberg Business News or a similar newswire service containing the
relevant information and make this information available on our web site or
through another public medium as we may use at that time.
To elect to require us to repurchase notes, each holder must deliver
the repurchase notice so that it is received by the paying agent no later than
the close of business on the second business day immediately prior to the
repurchase date, unless we specify a later date, and must state certain
information, including:
o if certificated notes have been issued, the certificate numbers of the
holders' notes to be delivered for repurchase or, if not, such
information as may be required under applicable DTC procedures;
o the portion of the principal amount of notes to be repurchased, which
must be $1,000 or an integral multiple of $1,000; and
o that the notes are to be repurchased by us pursuant to the applicable
provision of the indenture.
A holder may withdraw any repurchase notice by delivering a written
notice of withdrawal to the paying agent prior to the close of business on the
repurchase date. The notice of withdrawal must state certain information,
including:
o the principal amount of notes being withdrawn;
o if certificated notes have been issued, the certificate numbers of the
notes being withdrawn or, if not, such information as may be required
under applicable DTC procedures; and
o the principal amount, if any, of the notes that remain subject to the
repurchase notice.
24
The Exchange Act requires the dissemination of certain information to
security holders and that an issuer follow certain procedures if an issuer
tender offer occurs, which requirements may apply if the repurchase right
summarized above becomes available to holders of the notes. In connection with
any offer to require us to repurchase notes as summarized above, we will, to the
extent applicable:
o comply with the provisions of Rule l3e-4, Rule 14e-1 and any other
tender offer rules under the Exchange Act which may then be
applicable; and
o file a Schedule TO or any other required schedule or form under the
Exchange Act.
Our obligation to pay the repurchase price for notes for which a
repurchase notice has been delivered and not validly withdrawn is conditioned
upon book-entry transfer or delivery of the notes, together with necessary
endorsements, to the paying agent at any time after delivery of the repurchase
notice. We will cause the repurchase price for the notes to be paid promptly
following the later of the repurchase date or the time of book-entry transfer or
delivery of the notes, together with such endorsements.
If the paying agent holds money sufficient to pay the repurchase price
of the notes for which a repurchase notice has been given on the business day
following the repurchase date in accordance with the terms of the indenture,
then, immediately after the repurchase date, the notes will cease to be
outstanding and interest on the notes will cease to accrue, whether or not the
notes are delivered to the paying agent. Thereafter, all other rights of the
holder shall terminate, other than the right to receive the repurchase price
upon delivery of the notes.
We may, to the extent permitted by applicable law and the agreements
governing any of our other indebtedness at the time outstanding, at any time
purchase the notes in the open market or by tender at any price or by private
agreement. Any notes so purchased by us shall be surrendered to the trustee for
cancellation. Any notes surrendered to the trustee may, to the extent permitted
by applicable law, be reissued or resold or may be surrendered to the trustee
for cancellation. Any note surrendered to the trustee for cancellation may not
be reissued or resold and will be canceled promptly.
Limitations on Repurchase Rights
The repurchase rights described above may not necessarily protect
holders of the notes if a highly leveraged or another transaction involving us
occurs that may adversely affect holders.
Our ability to repurchase notes upon the occurrence of a change of
control is subject to important limitations. The occurrence of a change of
control will cause an event of default under, and may otherwise be prohibited or
limited by, the terms of our existing bank credit facility and could cause an
event of default under, or be prohibited or limited by, the terms of our future
indebtedness. Further, we cannot assure you that, in that event, we would have
the financial resources, or would be able to arrange financing, to pay the
repurchase price for all the notes that might be delivered by holders of notes
seeking to exercise the repurchase right. Any failure by us to repurchase the
notes when required following a change of control would result in an event of
default under the indenture. Any such default may, in turn, cause a default
under our other indebtedness that may be outstanding at that time. In addition,
our ability to repurchase notes may be limited by restrictions on our ability to
obtain funds for such repurchase through dividends from our subsidiaries and
other provisions in agreements that may govern our other indebtedness
outstanding at the time.
The change of control repurchase provision of the notes may, in certain
circumstances, make more difficult or discourage a takeover of our company. The
change of control repurchase feature, however, is not the result of our
knowledge of any specific effort by others to accumulate shares of our common
stock or to obtain control of us by means of a merger, tender offer solicitation
or otherwise or by management to adopt a series of anti-takeover provisions.
Instead, the change of control purchase feature is a standard term contained in
convertible securities similar to the notes.
25
Consolidation, Merger, Etc.
The indenture will provide that we may, without the consent of the
holders of any of the notes, consolidate with or merge into any other person or
convey, transfer, sell, lease or otherwise dispose of all or substantially all
of our properties and assets to another person as long as, among other things:
o the resulting, surviving or transferee person is organized and
existing under the laws of the United States, any state thereof or the
District of Columbia;
o that person assumes all of our obligations under the indenture and the
notes; and
o MemberWorks or such successor is not then or immediately thereafter in
default under the indenture and no event which, after notice or lapse
of time, would become an event of default under the indenture, shall
have occurred and be continuing.
The occurrence of certain of the foregoing transactions could also
constitute a change of control under the indenture.
The covenant described above includes a phrase relating to the
conveyance, transfer, sale, lease or disposition of "all or substantially all"
of our properties and assets. There is no precise, established definition of the
phrase "substantially all" under applicable law. In interpreting this phrase,
courts, among other things, make a subjective determination as to the portion of
assets conveyed, considering many factors, including the value of assets
conveyed, the proportion of an entity's income derived from the assets conveyed
and the significance of those assets to the ongoing business of the entity. To
the extent the meaning of such phrase is uncertain, uncertainty will exist as to
whether or not the restrictions on the sale, lease or disposition of our assets
described above apply to a particular transaction.
Events of Default
Each of the following will constitute an event of default under the
indenture:
1. our failure to pay when due the principal of any of the notes at
maturity, upon redemption or exercise of a repurchase right or otherwise;
2. our failure to pay installment of interest (including additional
amounts, if any) on any of the notes for 30 days after the date when due;
3. our failure to perform or observe any other covenant or agreement
contained in the notes or the indenture for a period of 60 days after written
notice of such failure, requiring us to remedy the same, shall have been given
to us by the trustee or to us and the trustee by the holders of at least 25% in
aggregate principal amount of the notes then outstanding;
4. a default under any indebtedness for money borrowed by us or any of our
subsidiaries that is a "significant subsidiary" (as defined in Rule 405 of the
Securities Act) the aggregate outstanding principal amount of which is in an
amount in excess of $10 million, for a period of 30 days after written notice to
us by the trustee or to us and the trustee by holders of at least 25% in
aggregate principal amount of the notes then outstanding, which default:
o is caused by a failure to pay principal or interest when due on such
indebtedness by the end of the applicable grace period, if any, unless
such indebtedness is discharged; or
o results in the acceleration of such indebtedness, unless such
acceleration is waived, cured, rescinded, annulled or such
indebtedness is discharged; and
26
5. certain events of bankruptcy, insolvency or reorganization with respect
to us or any of our subsidiaries that is a significant subsidiary.
The indenture will provide that the trustee will, within 90 days of the
occurrence of a default, give to the registered holders of the notes notice of
all uncured defaults or events of default known to it, but the trustee shall be
protected in withholding such notice if it, in good faith, determines that the
withholding of such notice is in the best interest of such registered holders,
except in the case of a default or event of default in the payment of the
principal of, or interest on, any of the notes when due or in the payment of any
redemption or repurchase obligation.
If an event of default specified in clause (5) above occurs and is
continuing with respect to us, then automatically the principal of all the notes
and the interest thereon shall become immediately due and payable. If an event
of default shall occur and be continuing, other than with respect to clause (5)
above with respect to us (the default not having been cured or waived as
provided under "-- Modifications and Amendments" below), the trustee or the
holders of at least 25% in aggregate principal amount of the notes then
outstanding may declare the notes due and payable at their principal amount
together with accrued interest, and thereupon the trustee may, at its
discretion, proceed to protect and enforce the rights of the holders of notes by
appropriate judicial proceedings. Such declaration may be rescinded or annulled
with the written consent of the holders of a majority in aggregate principal
amount of the notes then outstanding if all events of default (other than the
nonpayment of amounts due solely as a result of such acceleration) have been
cured or waived.
The indenture will contain a provision entitling the trustee, subject
to the duty of the trustee during default to act with the required standard of
care, to be indemnified by the holders of notes before proceeding to exercise
any right or power under the indenture at the request of such holders. The
indenture provides that the holders of a majority in aggregate principal amount
of the notes then outstanding may direct the time, method and place of
conducting any proceeding for any remedy available to the trustee or exercising
any trust or power conferred upon the trustee.
We will be required to furnish annually to the trustee a statement as
to the fulfillment of our obligations under the indenture.
Modifications and Amendments
Changes Requiring Approval of Each Affected Holder
Except as set forth below and under "-- Changes Requiring No Approval,"
we and the trustee may amend or supplement the indenture or the notes with the
consent of the holders of a majority in aggregate principal amount of the
outstanding notes. However, the indenture, including the terms and conditions of
the notes, may not be modified or amended without the written consent or the
affirmative vote of the holder of each note affected by such change to:
o change the maturity of the principal of or the date any installment of
interest (including any payment of additional amounts) is due on any
note;
o reduce the principal amount, repurchase price or redemption price of,
or interest (including any payment of additional amounts) on, any
note;
o change the currency of payment of such note or interest thereon;
o impair the right to institute suit for the enforcement of any payment
on or conversion of any note;
o modify our obligations to maintain an office or agency in New York
City;
o except as otherwise permitted or contemplated by provisions concerning
corporate reorganizations, adversely affect the repurchase rights of
holders or the conversion rights of holders of the notes;
27
o modify the redemption provisions of the indenture in a manner adverse
to the holders of notes; or
o reduce the percentage in aggregate principal amount of notes
outstanding necessary to modify or amend the indenture or to waive any
past default.
Changes Requiring No Approval
The indenture, including the terms and conditions of the notes, may be
modified or amended by us and the trustee, without the consent of any holders of
notes, for the purposes of, among other things:
o adding to our covenants for the benefit of the holders of notes;
o surrendering any right or power conferred upon us;
o providing for conversion rights of holders of notes if any
reclassification or change of our common stock or any consolidation,
merger or sale of all or substantially all of our assets occurs;
o providing for the assumption of our obligations to the holders of
notes in the case of a merger, consolidation, conveyance, transfer or
lease;
o reducing the conversion price, provided that the reduction will not
adversely affect the interests of the holders of notes;
o complying with the requirements of the SEC in order to effect or
maintain the qualification of the indenture under the Trust Indenture
Act of 1939;
o curing any ambiguity or correcting or supplementing any defective
provision contained in the indenture, provided that such modification
or amendment does not, in the good faith opinion of our board of
directors, adversely affect the interests of the holders of notes in
any material respect; or
o adding or modifying any other provisions with respect to matters or
questions arising under the indenture that we and the trustee may deem
necessary or desirable and that will not, in the good faith opinion of
our board of directors, adversely affect the interests of the holders
of notes.
The terms of our senior indebtedness may require us to obtain the
consent of our lender before agreeing to amendments to the indenture.
No Personal Liability of Directors, Officers, Employees or Stockholders
None of our directors, officers, employees or stockholders, as such,
shall have any liability for any of our obligations under the notes or the
indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a note, each noteholder shall waive
and release all such liability. The waiver and release shall be part of the
consideration for the issue of the notes.
Governing Law
The indenture and the notes are governed by, and construed in
accordance with, the law of the State of New York.
Information Concerning the Trustee and the Transfer Agent
Deutsche Bank Trust Company Americas, as trustee under the indenture,
has been appointed by us as paying agent, conversion agent, registrar and
custodian with regard to the notes. The American Stock Transfer &
28
Trust Company is the transfer agent and registrar for our common stock. The
trustee or its affiliates may from time to time in the future provide banking
and other services to us in the ordinary course of their business.
Form, Denomination and Registration
Denomination and Registration
The notes will be issued in fully registered form, without coupons, in
denominations of $1,000 principal amount and whole multiples of $1,000.
Global Notes; Book-Entry Form
Except as provided below, the notes will be evidenced by one or more
global notes deposited with the trustee as custodian for DTC, and registered in
the name of Cede & Co. as DTC's nominee.
Record ownership of the global notes may be transferred, in whole or in
part, only to another nominee of DTC or to a successor of DTC or its nominee,
except as set forth below. A holder may hold its interests in a global note
directly through DTC if such holder is a participant in DTC, or indirectly
through organizations which are direct DTC participants if such holder is not a
participant in DTC. Transfers between direct DTC participants will be effected
in the ordinary way in accordance with DTC's rules and procedures and will be
settled in same-day funds. Holders may also beneficially own interests in the
global notes held by DTC through certain banks, brokers, dealers, trust
companies and other parties that clear through or maintain a custodial
relationship with a direct DTC participant, either directly or indirectly.
Transfers between direct DTC participants will be effected in the ordinary way
in accordance with DTC's rules and procedures and will be settled in same-day
funds.
So long as Cede & Co., as nominee of DTC, is the registered owner of
the global notes, Cede & Co. for all purposes will be considered the sole holder
of the global notes. Except as provided below, owners of beneficial interests in
the global notes:
o will not be entitled to have certificates registered in their names;
o will not receive or be entitled to receive physical delivery of
certificates in definitive form; and
o will not be considered holders of the global notes.
The laws of some states require that certain persons take physical
delivery of securities in definitive form. Consequently, the ability of an owner
of a beneficial interest in a global note to transfer the beneficial interest in
the global note to such persons may be limited.
We will wire, through the facilities of the trustee, payments of
principal of and interest on the global notes to Cede & Co., the nominee of DTC,
as the registered owner of the global notes. None of MemberWorks, the trustee
and any paying agent will have any responsibility or be liable for paying
amounts due on the global notes to owners of beneficial interests in the global
notes.
It is DTC's current practice, upon receipt of any payment of principal
of and interest on the global notes, to credit participants' accounts on the
payment date in amounts proportionate to their respective beneficial interests
in the notes represented by the global notes, as shown on the records of DTC,
unless DTC believes that it will not receive payment on the payment date.
Payments by DTC participants to owners of beneficial interests in notes
represented by the global notes held through DTC participants will be the
responsibility of DTC participants, as is now the case with securities held for
the accounts of customers registered in "street name."
If you would like to convert your notes into common stock pursuant to
the terms of the notes, you should contact your broker or other direct or
indirect DTC participant to obtain information on procedures, including proper
forms and cut-off times, for submitting those requests.
29
Because DTC can only act on behalf of DTC participants, who in turn act
on behalf of indirect DTC participants and other banks, your ability to pledge
your interest in the notes represented by global notes to persons or entities
that do not participate in the DTC system, or otherwise take actions in respect
of such interest, may be affected by the lack of a physical certificate.
Neither MemberWorks nor the trustee (nor any registrar, paying agent or
conversion agent under the indenture) will have any responsibility for the
performance by DTC or direct or indirect DTC participants of their obligations
under the rules and procedures governing their operations. DTC has advised us
that it will take any action permitted to be taken by a holder of notes,
including, without limitation, the presentation of notes for conversion as
described below, only at the direction of one or more direct DTC participants to
whose account with DTC interests in the global notes are credited and only for
the principal amount of the notes for which directions have been given.
DTC has advised us as follows: DTC is a limited purpose trust company
organized under the laws of the State of New York, a member of the Federal
Reserve System, a "clearing corporation" within the meaning of the Uniform
Commercial Code and a "clearing agency" registered pursuant to the provisions of
Section 17A of the Exchange Act. DTC was created to hold securities for DTC
participants and to facilitate the clearance and settlement of securities
transactions between DTC participants through electronic book-entry changes to
the accounts of its participants, thereby eliminating the need for physical
movement of certificates. Participants include securities brokers and dealers,
banks, trust companies and clearing corporations and may include certain other
organizations, such as the initial purchasers of the notes. Certain DTC
participants or their representatives, together with other entities, own DTC.
Indirect access to the DTC system is available to others such as banks, brokers,
dealers and trust companies that clear through, or maintain a custodial
relationship with, a participant, either directly or indirectly.
Although DTC has agreed to the foregoing procedures in order to
facilitate transfers of interests in the global notes among DTC participants, it
is under no obligation to perform or continue to perform such procedures, and
such procedures may be discontinued at any time. If DTC is at any time unwilling
or unable to continue as depositary and a successor depositary is not appointed
by us within 90 days or an event of default has occurred and is continuing with
respect to the notes, we will cause notes to be issued in definitive form in
exchange for the global notes. None of MemberWorks, the trustee or any of their
respective agents will have any responsibility for the performance by DTC or
direct or indirect DTC participants of their obligations under the rules and
procedures governing their operations, including maintaining, supervising or
reviewing the records relating to, or payments made on account of, beneficial
ownership interests in global notes.
According to DTC, the foregoing information with respect to DTC has
been provided to its participants and other members of the financial community
for informational purposes only and is not intended to serve as a
representation, warranty or contract modification of any kind.
30
DESCRIPTION OF OUR CAPITAL STOCK
Our authorized capital stock consists of 40,000,000 shares of common
stock, $0.01 par value per share, and 1,000,000 shares of preferred stock, $0.01
par value per share.
Common Stock
As of November 11, 2003, there were 10,755,000 shares of common stock
outstanding held by 1,953 stockholders of record. Holders of common stock are
entitled to one vote for each share held on all matters submitted to a vote of
stockholders and do not have cumulative voting rights. Accordingly, holders of a
majority of the shares of common stock entitled to vote in any election of
directors may elect all of the directors standing for election. Holders of
common stock are entitled to receive ratably such dividends, if any, as may be
declared by the Board of Directors out of funds legally available therefor,
subject to any preferential dividend rights of outstanding preferred stock. Upon
the liquidation, dissolution or winding up of the company, the holders of common
stock are entitled to receive ratably the net assets of the company available
after the payment of all debts and other liabilities and subject to the prior
rights of any outstanding preferred stock. Holders of common stock have no
preemptive, subscription, redemption or conversion rights. The outstanding
shares of common stock are fully paid and nonassessable. The rights, preferences
and privileges of holders of common stock are subject to, and may be adversely
affected by, the rights of the holders of shares of any series of preferred
stock which we may designate and issue in the future.
Preferred Stock
The Board of Directors is authorized, subject to any limitations
prescribed by law, without further stockholder approval, to issue shares of
preferred stock in one or more series. Each series of preferred stock shall have
the rights, preferences, privileges and restrictions, including voting rights,
dividend rights, conversion rights, redemption privileges and liquidation
preferences, as shall be determined by the Board of Directors. We have no
present plans to issue any shares of preferred stock. It is not possible to
state the effect of the authorization and issuance of any series of preferred
stock upon the rights of holders of common stock until the Board of Directors
determines the specific terms, rights and preferences of such a series of
preferred stock. However, the effects may include, among other things,
restricting dividends on our common stock, diluting the voting power of our
common stock or impairing the liquidation rights of our common stock without
further action by holders of common stock. In addition, under certain
circumstances, the issuance of preferred stock may render more difficult or tend
to discourage a merger, tender offer or proxy contest, the assumption of control
by a holder of a large block of our securities or the removal of incumbent
management, which could thereby depress the market price of our common stock.
Delaware Law and Certain Charter and By-law Provisions
We are subject to the provisions of Section 203 of the General
Corporation Law of Delaware. Section 203 prohibits a publicly held Delaware
corporation from engaging in a "business combination" with an "interested
stockholder" for a period of three years after the date of the transaction in
which the person became an interested stockholder, unless the business
combination is approved in a prescribed manner. A "business combination"
includes mergers, asset sales and other transactions resulting in a financial
benefit to the interested stockholder. Subject to certain exceptions, an
"interested stockholder" is a person who, together with affiliates and
associates, owns, or within three years did own, 15% or more of the
corporation's voting stock.
Our Restated Certificate of Incorporation provides for the division of
the Board of Directors into three classes as nearly equal in size as possible
with staggered three-year terms. In addition, our certificate of incorporation
provides that directors may be removed only for cause by the affirmative vote of
the holders of two-thirds of the shares of capital stock of the corporation
entitled to vote. Under our certificate of incorporation, any vacancy on the
Board of Directors, however occurring, including a vacancy resulting from an
enlargement of the Board, may only be filled by vote of a majority of the
directors then in office. The classification of the Board of Directors and the
limitations on the removal of directors and filling of vacancies could have the
effect of making it more difficult for a third party to acquire, or of
discouraging a third party from acquiring, control of the company.
31
Our certificate of incorporation also provides that any action required
or permitted to be taken by our stockholders at an annual meeting or special
meeting of stockholders may only be taken if it is properly brought before such
meeting and may not be taken by written action in lieu of a meeting. Our
certificate of incorporation further provides that special meetings of the
stockholders may only be called by the Chairman of the Board of Directors, the
Chief Executive Officer or, if none, the President or by the Board of Directors.
Under the Restated By-laws, in order for any matter to be considered "properly
brought" before a meeting, a stockholder must comply with certain requirements
regarding advance notice to the company. The foregoing provisions could have the
effect of delaying until the next stockholders meeting stockholder actions which
are favored by the holders of a majority of the outstanding voting securities of
the company. These provisions may also discourage another person or entity from
making a tender offer for the company's common stock, because such person or
entity, even if it acquired a majority of the outstanding voting securities of
the company, would be able to take action as a stockholder (such as electing new
directors or approving a merger) only at a duly called stockholders meeting, and
not by written consent.
The General Corporation Law of Delaware provides generally that the
affirmative vote of a majority of the shares entitled to vote on any matter is
required to amend a corporation's certificate of incorporation or by-laws,
unless a corporation's certificate of incorporation or by-laws, as the case may
be, requires a greater percentage. Our certificate of incorporation requires the
affirmative vote of the holders of at least 75% of the shares of capital stock
of the company issued and outstanding and entitled to vote to amend or repeal
any of the foregoing provisions of our certificate of incorporation. The
Restated By-laws also may be amended or repealed by a majority vote of the Board
of Directors subject to any limitations set forth in the Restated By-laws. The
75% stockholder vote would be in addition to any separate class vote that might
in the future be required pursuant to the terms of any series Preferred Stock
that might be outstanding at the time any such amendments are submitted to
stockholders.
Transfer Agent and Registrar
The transfer agent and registrar for the common stock is American Stock
Transfer & Trust Company.
32
UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following discussion is a summary of the material U.S. federal
income tax consequences relating to the purchase, ownership and disposition of
the notes, and of common stock into which notes may be converted, but does not
purport to be a complete analysis of all of the potential tax consequences that
may be material to the particular tax situation of an investor. This summary is
based on the provisions of the Internal Revenue Code of 1986, as amended (the
"Code"), the applicable Treasury Regulations promulgated or proposed thereunder
("Treasury Regulations"), administrative pronouncements of the Internal Revenue
Service ("IRS") and judicial decisions as of the date of this prospectus. All of
those authorities are subject to change, possibly on a retroactive basis, or
differing interpretations, which could result in U.S. federal income tax
consequences different from those discussed below. This summary deals only with
initial beneficial owners of notes that purchase at the initial issue price in
the offering of the notes, and that will hold the notes, and common stock into
which notes may be converted, as "capital assets," within the meaning of Section
1221 of the Code. This summary does not discuss the U.S. federal income tax
consequences applicable to beneficial owners that may be subject to special tax
rules, such as financial institutions, tax-exempt organizations, expatriates,
pension funds, regulated investment companies, real estate investment trusts,
insurance companies, dealers in securities or foreign currencies, traders that
elect to mark-to-market their securities, persons liable for the alternative
minimum tax, persons that will hold notes as a position in a hedging
transaction, "straddle," "conversion transaction" or other risk reduction
transaction for tax purposes, partnerships or other pass-through entities or
"U.S. Holders" (as defined below) that have a "functional currency" other than
the U.S. dollar. Moreover, this summary does not address the effect of any
applicable state, local or foreign tax laws, or any aspect of U.S. federal tax
law other than income taxation. We have not sought any ruling from the IRS with
respect to the statements made and the conclusions reached in this summary, and
there can be no assurance that the IRS will agree with such statements and
conclusions. INVESTORS CONSIDERING THE PURCHASE OF NOTES SHOULD CONSULT THEIR
OWN TAX ADVISORS WITH RESPECT TO THE APPLICATION OF THE U.S. FEDERAL INCOME AND
OTHER TAX LAWS TO THEIR PARTICULAR SITUATIONS AS WELL AS ANY TAX CONSEQUENCES
ARISING UNDER THE LAWS OF ANY STATE, LOCAL OR FOREIGN TAXING JURISDICTION OR
UNDER ANY APPLICABLE INCOME TAX TREATY.
As used herein, the term "U.S. Holder" means an initial beneficial
owner of a note that is, for U.S. federal income tax purposes, (i) an individual
who is a citizen or resident of the United States, (ii) a corporation created or
organized in or under the laws of the United States or any State thereof
(including the District of Columbia), (iii) an estate the income of which is
subject to U.S. federal income taxation regardless of its source, or (iv) a
trust that (a) is subject to the primary supervision of a court within the
United States and one or more U.S. persons, as defined in Section 7701(a)(30) of
the Code, having the authority to control all substantial decisions of the
trust, or (b) has properly elected under applicable Treasury Regulations to be
treated as a U.S. person. The term "Non-U.S. Holder" means an initial beneficial
owner of a note that is neither a U.S. Holder nor a partnership for U.S. federal
income tax purposes. If a partnership (including any entity treated as a
partnership for U.S. federal income tax purposes) holds notes, the U.S. federal
income tax treatment of a partner generally will depend upon the status of the
partner and the activities of the partnership. Partners in partnerships holding
the notes should consult their own tax advisors.
U.S. Federal Income Tax Consequences to U.S. Holders
Payment of Interest
Stated interest on a note generally will be includible in the gross
income of a U.S. Holder as ordinary income at the time such interest is received
or accrued, in accordance with such U.S. Holder's regular method of accounting
for U.S. federal income tax purposes.
Market Discount
If a U.S. Holder purchases a note for an amount that is less than its
stated redemption price at maturity the amount of the difference will be treated
as "market discount" unless such difference is a specified de minimis amount.
Market discount is considered to be de minimis if it is less than 1/4 of 1% of
the note's stated redemption price at maturity multiplied by the number of
complete years to maturity after the note was acquired. Under the market
discount rules of the Code, a U.S. Holder will be required to treat any partial
principal payment on, or any gain realized upon the sale, redemption or other
taxable disposition of, a note as ordinary income to the extent of the
33
market discount which has not previously been included in income and is treated
as having accrued on such note at the time of such payment or disposition. In
addition, if a U.S. Holder acquired a note with market discount such U.S. Holder
may be required to defer the deduction of all or a portion of the interest paid
or accrued on any indebtedness incurred or maintained to purchase or carry such
note until the maturity of the note or its earlier disposition in a taxable
transaction. Market discount is considered to accrue ratably during the period
from the date of acquisition to the maturity date of a note, unless a U.S.
Holder elects to include market discount in income on a current basis. A U.S.
Holder may elect to include market discount in income (generally as ordinary
income) currently as it accrues, in which case the rules described above
regarding the deferral of interest deductions will not apply. Such election will
also apply to all debt obligations held or subsequently acquired by the U.S.
Holder on or after the first day of the taxable year to which the election
applies. The election may not be revoked without the consent of the IRS. U.S.
Holders should consult their own tax advisors before making this election.
Acquisition Premium
In general, if a U.S. Holder purchases a note for an amount in excess
of the stated principal amount such U.S. Holder will be treated as having
purchased such note with acquisition premium in the amount of such excess. A
U.S. Holder generally may elect to amortize the acquisition premium (with a
corresponding decrease in adjusted tax basis) over the remaining term of the
note on a constant yield method as an offset to interest income when includible
in income under such U.S. Holder's regular method of accounting for U.S. federal
income tax purposes. If such U.S. Holder does not elect to amortize acquisition
premium, that premium will decrease the gain or increase the loss it would
otherwise recognize upon a sale or other disposition of the note. An election to
amortize premium on a constant yield method will also apply to all debt
obligations held or subsequently acquired by the U.S. Holder on or after the
first day of the taxable year to which the election applies. The election may
not be revoked without the consent of the IRS. U.S. Holders should consult their
own tax advisors before making this election.
The rules governing market discount and amortizable premium are
complex, and U.S. Holders should consult their own tax advisors concerning the
application of these rules.
Sale, Redemption or Other Taxable Dispositions of Notes
Upon the sale, redemption or other taxable disposition of a note, a
U.S. Holder generally will recognize gain or loss equal to the difference, if
any, between the amount realized on the sale, redemption or other taxable
disposition, and the U.S. Holder's adjusted tax basis in such note. The U.S.
Holder's amount realized would equal the amount of cash plus the fair market
value of any other property received, but would not include any amount
attributable to accrued but unpaid interest on the note (which amount would be
taxable as interest to the extent not previously included in gross income by the
U.S. Holder). A U.S. Holder's adjusted tax basis in a note generally will be the
cost of such note to such U.S. Holder. Gain or loss so recognized generally will
be capital gain or loss and will be long-term capital gain or loss if, at the
time of the sale, redemption or other taxable disposition, the U.S. Holder's
holding period for the notes is more than one year. Certain U.S. Holders
(including individuals) are eligible for preferential rates of U.S. federal
income taxation in respect of long-term capital gains. The deductibility of
capital losses is subject to limitations under the Code.
Constructive Dividends
The conversion price of the notes is subject to adjustment under
certain circumstances. Under Section 305 of the Code, adjustments to the
conversion price that increase a U.S. Holder's proportionate share of our assets
or our earnings may in certain circumstances result in a constructive dividend
that is taxable to such U.S. Holder to the extent of our current and accumulated
earnings and profits, as determined under U.S. federal income tax principles.
Generally, an increase in the conversion ratio pursuant to a bona-fide
reasonable formula which has the effect of preventing the dilution of the
interest of U.S. Holders in the notes will not be considered to result in a
constructive dividend. However, certain adjustments provided in the notes
(including, without limitation, adjustments to the conversion price of the notes
in connection with cash dividends to our stockholders) will not qualify as being
pursuant to a bona-fide reasonable formula. If such adjustments are made, a U.S.
Holder will, to the extent of our current and accumulated earnings and profits,
be deemed to have received a constructive dividend even though such U.S. Holder
has not received any cash or property as a result of the adjustment. In
addition, a failure to adjust the
34
conversion price of the notes to reflect a stock dividend or similar event could
in some circumstances give rise to a constructive dividend to U.S. Holders of
common stock.
Conversion of the Notes
A U.S. Holder generally will not recognize any income, gain or loss
upon conversion of a note into common stock, except with respect to (i) cash
received in lieu of a fractional share of common stock, or (ii) common stock
that is attributable to accrued but unpaid interest not previously included in
gross income. Cash received in lieu of a fractional share of common stock upon
conversion will be treated as a payment in exchange for such fractional share.
Accordingly, the receipt of cash in lieu of a fractional share of common stock
generally will result in capital gain or loss (measured by the difference
between the cash received for the fractional share and the U.S. Holder's
adjusted tax basis in the note that is allocable to the fractional share).
Amounts that are attributable to accrued but unpaid interest generally will be
taxable to the U.S. Holder as interest to the extent not previously included in
gross income.
A U.S. Holder's initial tax basis in the common stock received on
conversion of a note will be the same as the U.S. Holder's adjusted tax basis in
the note at the time of conversion, reduced by any tax basis allocable to a
fractional share treated as exchanged for cash. However, the tax basis of common
stock received upon a conversion with respect to accrued but unpaid interest
should equal the fair market value of such common stock. The holding period for
the common stock received on conversion generally will include the holding
period of the note converted. To the extent any common stock issued upon a
conversion is allocable to accrued interest, however, the U.S. Holder's holding
period for such common stock may commence on the day following the date of
delivery of common stock.
Dividends on Common Stock
Generally, a distribution by us with respect to our common stock will
be treated as a taxable dividend to the extent of our current or accumulated
earnings and profits (as determined under U.S. federal income tax principles).
To the extent that the amount of a distribution exceeds our current and
accumulated earnings and profits, the excess will constitute a tax-free return
of capital to the extent of a U.S. Holder's tax basis in the common stock, and
thereafter as gain from the sale or exchange of such common stock. Certain U.S.
Holders (including individuals) may qualify, under appropriate circumstances,
for preferential rates of U.S. federal income taxation in respect of dividend
income. U.S. Holders that are corporations may be eligible for a
dividend-received deduction in respect of dividend distributions by us.
Sale or Other Taxable Dispositions of Common Stock
Upon the sale or other taxable disposition of our common stock, a U.S.
Holder generally will recognize gain or loss equal to the difference between (i)
the amount of cash and the fair market value of any property received upon the
sale or exchange and (ii) such U.S. Holder's adjusted tax basis in the common
stock. Such gain or loss generally will be capital gain or loss, and will be
long-term capital gain or loss if the U.S. Holder's holding period is more than
one year at the time of the sale or other taxable disposition. Certain U.S.
Holders (including individuals) can qualify for preferential rates of U.S.
federal income taxation in respect of long-term capital gains. The deductibility
of capital losses is subject to limitations under the Code.
U.S. Federal Income Tax Consequences to Non-U.S. Holders
Payment of Interest
Subject to the discussion below of backup withholding, interest paid on the
notes to a Non-U.S. Holder generally will not be subject to U.S. federal income
or withholding tax if:
(1) such interest is not effectively connected with the conduct of a
trade or business within the United States by such Non-U.S. Holder;
35
(2) the Non-U.S. Holder does not actually or constructively own 10% or
more of the total voting power of all classes of our stock entitled to vote
within the meaning of Section 871(h)(3) of the Code;
(3) the Non-U.S. Holder is not a controlled foreign corporation that is
related to us through stock ownership (for this purpose, the holder of notes
would be deemed to own the common stock into which the notes could be
converted); and
(4) (a) the Non-U.S. Holder, under penalty of perjury, certifies that
such Non-U.S. Holder is not a U.S. person (as defined in Section 7701(a)(3) of
the Code) and provides certain identifying information on the applicable IRS
Form W-8BEN (or successor form) or (b) the Non-U.S. Holder holds notes through
certain foreign intermediaries or certain foreign partnerships and the
certification requirements of applicable Treasury Regulations are satisfied.
(These certifications may also be provided by a qualified intermediary on behalf
of one or more beneficial owners (or other intermediaries), provided that such
intermediary has entered into a withholding agreement with the IRS and certain
other conditions are met.)
A Non-U.S. Holder that does not meet the foregoing requirements
generally will be subject to U.S. federal income tax withholding at a rate of
30% on payments of interest on the notes, unless the interest is effectively
connected with the conduct of a U.S. trade or business of the Non-U.S. Holder or
a lower treaty rate applies and, in either case, the Non-U.S. Holder provides us
with proper certification on the applicable IRS Form W-8BEN (or successor form)
as to the holder's exemption from withholding. If the interest is effectively
connected with the conduct of a U.S. trade or business, the Non-U.S. Holder will
be subject to the U.S. federal income tax on the interest on a net income basis,
generally in the same manner as U.S. Holders. In addition, in the case of a
corporate Non-U.S. Holder, a branch profits tax equal to 30% (or lower
applicable treaty rate) may apply to interest that is effectively connected with
the conduct of a U.S. trade or business (subject to certain adjustments).
Sale or Other Taxable Dispositions of Notes or Common Stock
Subject to the discussion below on backup withholding, a Non-U.S.
Holder generally will not be subject to U.S. federal income or withholding tax
on gain recognized on the sale or other taxable disposition of a note, or of the
common stock received upon conversion of a note, unless:
(1) the gain is effectively connected with the conduct of a trade or
business within the United States by such Non-U.S. Holder;
(2) the Non-U.S. Holder is an individual who is present in the United
States for 183 days or more in the year of such sale or other taxable
disposition, and certain other requirements are met;
(3) the Non-U.S. Holder is subject to U.S. federal income tax pursuant to
the provisions of the Code applicable to certain U.S. expatriates; or
(4) if we have been at any time within the five-year period preceding such
sale or other taxable disposition (or within the Non-U.S. Holder's shorter
holding period for a note or common stock) a U.S. real property holding
corporation (a "USRPHC") within the meaning of Section 897(c)(2) of the Code.
We do not believe that we are or have been a USRPHC, although no
assurance can be made in this regard. If we were to become a USRPHC, then a
Non-U.S. Holder would not be subject to U.S. federal income tax in respect of
gain on the sale or other taxable disposition of our notes or common stock if
(a) our stock is regularly traded on an established securities market and (b)
the Non-U.S. Holder did not own actually or constructively more than 5% of our
common stock at any time during the relevant period.
An individual Non-U.S. Holder described in (1) or (4) above will be
subject to U.S. federal income tax on the net gain derived from the sale or
other taxable disposition on a net income basis generally in the same manner as
a U.S. Holder. An individual Non-U.S. Holder described in (2) above will be
subject to a flat 30% U.S. federal income tax on the gain derived from the sale
or other taxable disposition, even though such holder is not considered
36
a resident of the United States. A Non-U.S. Holder that is a foreign corporation
may be subject to a branch profits tax on gain described in (1) or (4) above
(subject to certain adjustments).
Constructive Dividends
Adjustments to the conversion price of a note that increase a Non-U.S.
Holder's proportionate share of assets or earnings may in certain circumstances
result in a constructive dividend subject to a 30% U.S. federal withholding tax.
See "U.S. Holders-- Constructive Dividends" above.
Conversion of the Notes
A Non-U.S. Holder generally will not be subject to U.S. federal income
tax on the conversion of a note into shares of common stock. To the extent a
Non-U.S. Holder receives cash in lieu of a fractional share on conversion, such
cash may give rise to gain that would be subject to the rules described above
with respect to the sale or other taxable disposition of a note or common stock.
To the extent a Non-U.S. Holder receives upon conversion common stock that is
attributable to accrued but unpaid interest, such common stock may give rise to
income that would be subject to the rules described above with respect to the
payments of interest to Non-U.S. Holders.
Dividends on Common Stock
Subject to the discussion below on backup withholding, dividends, if
any, paid on the common stock to a Non-U.S. Holder generally will be subject to
a 30% U.S. federal withholding tax, subject to reduction for Non-U.S. Holders
eligible for the benefits of certain income tax treaties. For this purpose,
dividends may include certain constructive dividends as discussed in "U.S.
Holders -- Constructive Dividends" above. A Non-U.S. Holder who wishes to claim
the benefits of an applicable income tax treaty will be required to satisfy
certain certification and other requirements. If dividends on the common stock
are effectively connected with the conduct by the Non-U.S. Holder of a trade or
business within the United States, then the dividend generally will be exempt
from the 30% U.S. federal withholding tax provided certain certification
requirements are met (generally by providing IRS Form W-8ECI), and the Non-U.S.
Holder generally will be subject to U.S. federal income tax on the dividends on
a net income basis, generally in the same manner as a U.S. Holder, unless an
applicable income tax treaty provides otherwise. In addition, if such Non-U.S.
Holder is a foreign corporation, it may also be subject to a branch profits tax
on such effectively-connected income at a 30% rate or such lower rate as may be
specified by an applicable income tax treaty.
Backup Withholding
A U.S. Holder of notes or common stock may be subject to "backup
withholding" with respect to certain "reportable payments," including interest
payments, dividend payments, principal payments on the notes and proceeds from
the sale or other disposition of the notes or common stock. These backup
withholding rules apply if the U.S. Holder, among other things, (i) fails to
furnish a social security number or other taxpayer identification number ("TIN")
certified under penalties of perjury, (ii) furnishes an incorrect TIN, (iii)
fails to report properly interest or dividends or (iv) under certain
circumstances, fails to provide a certified statement, signed under penalties of
perjury, that the TIN furnished is the correct number and that such U.S. Holder
is not subject to backup withholding. Backup withholding will not apply,
however, with respect to payments made to certain U.S. Holders, including
corporations and tax-exempt organizations, provided their exemption from backup
withholding is properly established.
Any amount withheld from a payment to a U.S. Holder under the backup
withholding rules is creditable against the U.S. Holder's U.S. federal income
tax liability, or will otherwise be refundable provided the IRS is furnished
with the proper information.
Under current Treasury Regulations, backup withholding will not apply
to payments made by us or our agent to a Non-U.S. Holder if the Non-U.S. Holder
provides the certification described above under "Non-U.S. Holders -- Payment of
Interest," or otherwise establishes an exemption.
37
SELLING SECURITYHOLDERS
We originally issued the notes in a private placement on September 30,
2003. The notes were resold by the initial purchasers of the notes to qualified
institutional buyers under Rule 144A under the Securities Act of 1933, as
amended. Selling securityholders, including their transferees, pledges or donees
or their successors, may from time to time offer and sell any or all of the
notes and the common stock into which the notes are convertible pursuant to this
prospectus.
The table below sets forth the name of each selling securityholder, the
principal amounts of notes that may be offered by each selling securityholder
under this prospectus and the number of shares of common stock into which the
notes are convertible. Information about the selling securityholders may change
from time to time. Any changed information will be set forth in prospectus
supplements or post-effective amendments, as required.
Because the selling securityholders may offer all or some portion of
the notes or the common stock into which the notes are convertible, we cannot
estimate the amount of notes or common stock that may be held by the selling
securityholders upon the completion of any sales. For information on the
procedure for sales by selling securityholders, read the disclosure under the
heading "Plan of Distribution" below.
Principal
Amount
of Notes Number of
Beneficially Shares of Percentage
Owned Percentage of Common Stock of Common
Name of That May Be Notes That May Be Stock
Selling Securityholder(1) Sold Outstanding Sold(2)(3) Outstanding(4)
----------------------------------------------- -------------- --------------- ------------ --------------
B.C. McCabe Foundation 200,000 * 4,954 *
BNP Paribas Equity Strategies SNC 1,995,000 2.22% 49,423 *
Chrysler Corporation Master Retirement Trust 1,490,000 1.66% 36,913 *
Context Convertible Arbitrage Fund, LP. 1,000,000 1.11% 24,773 *
Context Convertible Arbitrage Offshore Ltd. 1,000,000 1.11% 24,773 *
CooperNeff Convertible Strategies Master Fund,
L.P. 2,004,000 2.23% 49,646 *
Delta Air Lines Master Trust - CV 635,000 * 15,731 *
Delta Pilots Disability & Survivorship Trust - CV 300,000 * 7,432 *
Fore Convertible Master Fund Ltd. 1,075,000 1.19% 26,631 *
Guggenheim Portfolio Company VIII, LLC 215,000 * 5,326 *
Intl. Truck & Engine Corp. Non-Contributory
Retirement Plan Trust 700,000 * 17,341 *
Intl. Truck & Engine Corp. Retirement Plan for
Salaried Employee's Trust 750,000 * 18,580 *
KBC Financial Products USA Inc. 4,700,000 5.22% 116,437 1.08%
KeySpan Foundation 90,000 * *
LDG Limited 32,000 * 792 *
Lexington Vantage Fund c/o TQA Investors LLC 8,000 * 198 *
Lord Abbett Investment Trust - LA Convertible
Fund 490,000 * 12,139 *
Lyxor Convertible Arbitrage Fund 133,000 * 3,294 *
Man Mac 1 Limited 215,000 * 5,326 *
Maystone Continuum Mater Fund, Ltd. 4,250,000 4.72% 105,289 *
McMahan Securities Co. L.P. 500,000 * 12,386 *
Microsoft Corporation 390,000 * 9,662 *
Motion Picture Industry Health Plan
Active Member Fund 155,000 * 3,840 *
Motion Picture Industry Health Plan
Retiree Member Fund 100,000 * 2,477 *
National Bank of Canada 1,000,000 1.11% 24,773 *
National Fuel & Gas Company Retirement Plan 225,000 * 5,574 *
OCM Convertible Trust 1,200,000 1.33% 29,729 *
Oxford, Lord Abbett & Co. 1,545,000 1.72% 38,275 *
Partner Reinsurance Company Ltd. 525,000 * 13,006 *
Qwest Occupational Health Trust 175,000 * 4,335 *
Singlehedge U.S. Convertible Arbitrage Fund 333,000 * 8,249 *
Sphinx Fund 15,000 * 371 *
State Employees' Retirement Fund of the state of
Delaware 695,000 * 17,218 *
Sterling Investment Company 500,000 * 12,389 *
Sturgeon Limited 285,000 * 7,060 *
38
Principal
Amount
of Notes Number of
Beneficially Shares of Percentage
Owned Percentage of Common Stock of Common
Name of That May Be Notes That May Be Stock
Selling Securityholder(1) Sold Outstanding Sold(2)(3) Outstanding(4)
----------------------------------------------- -------------- --------------- ------------ --------------
TD Securities (USA) Inc. 2,145,000 2.38% 53,140 *
Total Fina Elf Finance USA, Inc. 250,000 * 6,193 *
TQA Master Fund, LTD c/o TQA Investors LLC 372,000 * 9,215 *
TQA Master Plus Fund, LTD. c/o TQA Investors
LLC 440,000 * 10,902 *
TQA Special Opportunities Master Fund, LTD.
c/o TQA Investors LLC. 500,000 * 12,389 *
Vanguard Convertible Securities Fund, Inc. 5,835,000 6.48% 144,556 1.34%
Xavex-Convertible Arbitrage 7 Fund 73,000 * 1,808 *
Zurich Institutional Benchmarks Master Fund,
LTD. c/o TQA Investors LLC 60,000 * 1,486 *
Any other holder of notes or future
transferee, pledgee, donee or successor of any
holder 51,400,000 57.11% 1,273,379 11.84%
Total 90,000,000 100% 2,229,651 20.73%
---------------
* Less than 1%
(1) Also includes any sale of the notes and the underlying common stock by
pledgees, donees, transferees or other successors in interest that
receive such securities by pledge, gift, distribution or other
non-sale related transfer from the named selling securityholders.
Information about other selling securityholders will be set forth in
prospectus supplements, post-effective amendments or in other
documents that we file from time to time with the Securities and
Exchange Commission that are incorporated by reference in this
prospectus, if required. See "Where You Can Find More Information."
(2) Assumes conversion of all of the selling securityholder's notes at a
conversion rate of 24.7739 per note and a cash payment in lieu of the
issuance of any fractional share interest. However, this conversion
rate is subject to adjustment as described under "Description of the
Notes -- Conversion Rights." As a result, the number of shares of
common stock issuable upon conversion of the notes may increase or
decrease in the future.
(3) Reflects rounding down of fractional common stock issuable to each
selling securityholder upon conversion of the notes.
(4) Calculated based on Rule 13d-3 of the Securities Exchange Act of 1934,
using 10,755,000 shares of common stock outstanding as of November 11,
2003. In calculating this amount, we did not treat as outstanding the
common stock issuable upon conversion of notes.
None of the selling securityholders listed above has, or within the
past three years had, any position, office or any material relationship with us
or any of our affiliates.
To the extent that any of the selling securityholders identified above
are broker-dealers, they are deemed to be, under interpretations of the
Securities and Exchange Commission, "underwriters" within the meaning of the
Securities Act.
With respect to selling securityholders that are affiliates of
broker-dealers, we believe that such entities acquired their notes or underlying
common stock in the ordinary course of business and, at the time of the purchase
of the notes or the underlying common stock, such selling securityholders had no
agreements or understandings, directly or indirectly, with any person to
distribute the notes or underlying common stock. To the extent that we become
aware that such entities did not acquire their notes or underlying common stock
in the ordinary course of
39
business or did have such an agreement or understanding, we will file a
post-effective amendment to the registration statement of which this prospectus
forms a part to designate such affiliate as an "underwriter" within the meaning
of the Securities Act.
Only selling securityholders identified above who beneficially own the
notes set forth opposite each such selling securityholder's name in the
foregoing table on the effective date of the registration statement, of which
this prospectus forms a part, may sell such securities pursuant to the
registration statement. Prior to any use of this prospectus in connection with
an offering of the notes or the underlying common stock by any holder not
identified above, the name and aggregate amount of notes beneficially owned by
the selling securityholder intending to sell such notes or the underlying common
stock and the aggregate amount of notes or the number of shares of the
underlying common stock to be offered will be set forth in prospectus
supplements or post-effective amendments. The prospectus, supplement or
post-effective amendment will also disclose whether any selling securityholder
has held any position or office with, has been employed by or otherwise has had
a material relationship with us during the three years prior to the date of the
prospectus if such information has not been disclosed herein.
40
PLAN OF DISTRIBUTION
The notes and the underlying common stock are being registered to
permit the resale of such securities by the holders of them from time to time
after the date of this prospectus. We will not receive any of the proceeds from
the sale by the selling securityholders of the notes and common stock.
The selling securityholders may offer and sell the notes and the common
stock into which the notes are convertible from time to time in one or more
transactions at fixed prices, at prevailing market prices at the time of sale,
at varying prices determined at the time of sale or at negotiated prices. Such
sales may be effected by a variety of methods, including the following:
o in market transactions;
o in privately negotiated transactions;
o through the writing of options;
o in a block trade in which a broker-dealer will attempt to sell a block
of securities as agent but may position and resell a portion of the
block as principal to facilitate the transaction;
o if we agree to it prior to the distribution, through one or more
underwriters on a firm commitment or best-efforts basis;
o through broker-dealers, which may act as agents or principals;
o directly to one or more purchasers;
o through agents; or
o in any combination of the above or by any other legally available
means.
The notes originally issued in the private placement are eligible for
trading on the PORTAL market. However, notes sold pursuant to this prospectus
will no longer be eligible for trading on the PORTAL market. Accordingly, no
assurance can be given as to the development of liquidity or any trading market
for the notes.
If a material arrangement with any underwriter, broker, dealer or other
agent is entered into for the sale of any notes and the common stock into which
the notes are convertible through a secondary distribution or a purchase by a
broker or dealer, or if other material changes are made in the plan of
distribution of the notes and the common stock into which the notes are
convertible, a prospectus supplement will be filed, if necessary, under the
Securities Act disclosing the material terms and conditions of such arrangement.
The underwriter or underwriters with respect to an underwritten offering of
notes and the common stock into which the notes are convertible and the other
material terms and conditions of the underwriting will be set forth in a
prospectus supplement relating to such offering and, if an underwriting
syndicate is used, the managing underwriter or underwriters will be set forth on
the cover of the prospectus supplement. In connection with the sale of the notes
and the common stock into which the notes are convertible, underwriters will
receive compensation in the form of underwriting discounts or commissions and
may also receive commissions from purchasers of notes and underlying common
stock for whom they may act as agent. Underwriters may sell to or through
dealers, and such dealers may receive compensation in the form of discounts,
concessions or commissions from the underwriters or commissions from the
purchasers for whom they may act as agent.
To our knowledge, there are currently no plans, arrangements or
understandings between any selling securityholders and any underwriter,
broker-dealer or agent regarding the sale of the notes or the underlying common
stock by the selling securityholders. Selling securityholders may decide not to
sell all or a portion of the notes or the underlying common stock offered by
them pursuant to this prospectus or may decide not to sell notes or the
underlying common stock under this prospectus. In addition, any selling
securityholder may transfer, devise or
41
give the notes or the underlying common stock by other means not described in
this prospectus. Any notes or underlying common stock covered by this prospectus
that qualify for sale pursuant to Rule 144 or Rule 144A of the Securities Act
may be sold under Rule 144 or Rule 144A rather than pursuant to this prospectus.
The selling securityholders and any underwriters, broker-dealers or
agents participating in the distribution of the notes and the common stock into
which the notes are convertible may be deemed to be "underwriters" within the
meaning of the Securities Act, and any profit on the sale of the notes or common
stock by the selling securityholders and any commissions received by any such
underwriters, broker-dealers or agents may be deemed to be underwriting
commissions under the Securities Act. If the selling securityholders were deemed
to be underwriters, the selling securityholders may be subject to statutory
liabilities including, but not limited to, those of Sections 11, 12 and 17 of
the Securities Act and Rule 10b-5 under the Exchange Act.
The selling securityholders and any other person participating in the
distribution will be subject to the Exchange Act and the rules and regulations
under the Exchange Act, including, without limitation, Regulation M, which may
limit the timing of purchases and sales of any of the notes and the common stock
into which the notes are convertible by the selling securityholders and any
other relevant person. Furthermore, Regulation M may restrict the ability of any
person engaged in the distribution of the notes and the common stock into which
the notes are convertible to engage in market-making activities with respect to
the particular notes and the common stock into which the notes are convertible
being distributed. All of the above may affect the marketability of the notes
and the common stock into which the notes are convertible and the ability of any
person or entity to engage in market-making activities with respect to the notes
and the common stock into which the notes are convertible.
Under the registration rights agreement, we and the selling
securityholders will each indemnify the other against certain liabilities,
including certain liabilities under the Securities Act, or will be entitled to
contribution in connection with these liabilities.
We have agreed to pay substantially all of the expenses incidental to
the registration, offering and sale of the notes and the underlying common stock
to the public other than commissions, fees and discounts of underwriters,
brokers, dealers and agents.
LEGAL MATTERS
The validity of the notes offered hereby will be passed upon for us by
Shearman & Sterling LLP, New York.
EXPERTS
The financial statements incorporated in this prospectus by reference
to the Annual Report on Form 10-K for the year ended June 30, 2003 have been so
incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. Our SEC filings are available to the public over
the Internet at the SEC's website at http://www.sec.gov. You may also read and
copy any document we file with the SEC at its public reference facilities at 450
Fifth Street, N.W., Washington, D.C. 20549, and obtain copies of our filings at
prescribed rates by writing to the Public Reference Section of the SEC at 450
Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the operation of the public reference
facilities.
INCORPORATION BY REFERENCE
We are "incorporating by reference" into this prospectus the
information we have filed with the SEC, which means that we can disclose
important information to you by referring you to those documents. The
information incorporated by reference is considered to be part of this
prospectus, and information in documents that
42
we file later with the SEC will automatically update and supersede information
in this prospectus. We incorporate by reference the documents listed below into
this prospectus, and any future filings made by us with the SEC under Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, or
the Exchange Act (excluding any information furnished pursuant to Item 9 or Item
12 on any current report on Form 8-K), until our offering is complete. The
documents we incorporate by reference are:
o Our Annual Report on Form 10-K for the year ended June 30, 2003 filed
on September 15, 2003.
o Our Quarterly report on form 10-Q for the fiscal quarter ending
September 30, 2003 filed on November 13, 2003.
o Our Current Reports on Form 8-K filed on September 22, 2003, September
25, 2003, September 30, 2003
o Our Proxy Statement on Form 14A filed with the SEC on October 3, 2003.
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
MemberWorks Incorporated
680 Washington Boulevard
Stamford, Connecticut 06901
Attention: Investor Relations
Telephone: (203) 324-7635
Any statement contained in a document incorporated by reference, or
deemed to be incorporated by reference, in this prospectus shall be deemed to be
modified or superseded for purposes of this prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is incorporated by reference in this prospectus 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 prospectus.
Statements contained in this prospectus as to the contents of any contract or
other document referred to in this prospectus do not purport to be complete, and
where reference is made to the particular provisions of such contract or other
document, such provisions are qualified in all respects by reference to all of
the provisions of such contract or other document.
43
PART II
Information Not Required In Prospectus
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the various expenses payable by the
registrant in connection with the issuance and distribution of the notes and
underlying common stock being registered hereby, other than underwriting
discounts and commissions. All the amounts shown are estimates, except the SEC
registration fee.
Securities and Exchange Commission registration fee................... $7,281
Accountant's fees and expenses........................................ $60,000
Legal fees and expenses............................................... $300,000
Printing fees and expenses............................................ $60,000
Trustee's fees and expenses........................................... $13,000
NASDAQ listing fees................................................... $22,297
-------------------
Total........................................................ $462,578
===================
Item 15. .........Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation) by reason of the fact that he
is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership or other enterprise, against all
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by them in connection with such
action, suit or proceeding if he or she acted in good faith and in a manner he
or she reasonably believed to be in or not opposed to the best interest of the
corporation and, with respect to any criminal action or proceeding, if he or she
had no reasonable cause to believe their conduct was unlawful. Section 145
further provides that a corporation similarly may indemnify any such person
serving in any such capacity who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the corporation to procure a judgment in its favor, against expenses
(including attorneys' fees) actually and reasonably incurred in connection with
the defense or settlement of the action or suit if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification may be made
against expense in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation, unless and only to the
extent that the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which such court shall deem proper.
Our certificate of incorporation and by-laws provide that we shall, to
the maximum extent permitted under Delaware law, indemnify any director or
officer of the corporation who is or was made a party to any action or
proceeding by reason of the fact that he or she is or was an agent of the
corporation, against liability incurred in connection with such action or
proceeding. We have entered into agreements with our directors, executive
officers and some of our other officers implementing such indemnification. In
addition, our certificate of incorporation limits, to the fullest extent
permitted by Delaware law, the liability of directors for monetary damages for
breach of fiduciary duty. We may also purchase and maintain insurance policies
insuring our directors and officers against certain liabilities they may incur
in their capacity as directors and officers.
44
Item 16. Exhibits
The exhibits to this registration statement are listed in the Exhibit
Index to this registration statement, which Exhibit Index is hereby incorporated
by reference.
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(a) (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;
(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 in the registration statement. 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% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(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 the undertakings set forth in clauses (i) and
(ii) above do not apply if the information required to be included in
a post-effective amendment by those clauses is contained in periodic
reports filed with or furnished to the Commission by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in this registration
statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be
deemed to be a
45
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 of 1933 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 of 1933 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 such 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 of 1933
and will be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee to act
under subsection (a) of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the Commission
under Section 305(b)(2) of the Trust Indenture Act.
46
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
we certify that we have reasonable grounds to believe that we meet all of the
requirements for filing on Form S-3 and have duly caused this registration
statement to be signed on our behalf by the undersigned, thereunto duly
authorized, in the City of Stamford, State of Connecticut, on December 2, 2003.
MEMBERWORKS INCORPORATED
By: /s/ Gary A. Johnson
---------------------------
Gary A. Johnson
President, Chief Executive Officer and Director
POWER OF ATTORNEY
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 December 3, 2003.
Each individual whose signature appears below constitutes and appoints
Gary A. Johnson and James B. Duffy, and each of them singly, his or her true and
lawful attorneys-in-fact and agents with full power of substitution, for him or
her and in his or her name, place and stead, in any and all capacities, to sign
this registration statement and any and all amendments thereto, including
post-effective amendments, and to file other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them 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 to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all the said
attorneys-in-fact and agents may lawfully do or cause to be done by virtue
hereof.
Signature Title
--------- -----
/s/ Gary A. Johnson President, Chief Executive Officer and Director
---------------------------------
Gary A. Johnson
/s/ James B. Duffy Executive Vice President and Chief Financial
---------------------------------
James B. Duffy Officer
/s/ Alec L. Ellison Director
---------------------------------
Alec L. Ellison
'
/s/ Scott N. Flanders Director
---------------------------------
Scott N. Flanders
/s/ Robert Kamerschen Director
---------------------------------
Robert Kamerschen
/s/ Michael T. McClorey Director
---------------------------------
Michael T. McClorey
/s/ Edward M. Stern Director
---------------------------------
Edward M. Stern
/s/ Marc S. Tesler Director
---------------------------------
Marc S. Tesler
47
EXHIBIT INDEX
Exhibit No. Description of Exhibits
------------ -------------------------
3.1 Restated Certificate of Incorporation of MemberWorks Incorporated,
(filed as Exhibit 3.3 to the Company's Registration Statement on Form
S-1, Registration No. 333-10541, filed on October 18, 1996, and
incorporated herein by reference).
3.2 Restated By-laws of MemberWorks Incorporated, as amended (filed as
Exhibit 3.4 to the Company's Registration Statement on Form S-1,
Registration No. 333-10541, filed on October 18, 1996, and
incorporated herein by reference).
4.1 Indenture dated as of September 30, 2003 between MemberWorks
Incorporated and Deutsche Bank Trust Company Americas, Trustee
relating to the 5.50% Convertible Senior Subordinated Notes due 2010,
including the form of notes. (filed as Exhibit 4.1 to the Company's
Quarterly Report on Form 10-Q, Registration No. 333-10541, filed on
November, 13 2003 and incorporated herein by reference).
4.2 Registration Rights Agreement dated as of September 30, 2003 between
MemberWorks Incorporated and Lehman Brothers Inc. and CIBC World
Markets Corp (filed as Exhibit 4.2 to the Company's Quarterly Report
on Form 10-Q, Registration No. 333-10541 filed on November 13, 2003
and incorporated herein by reference).
4.3 Amended and Restated Registration Rights Agreement, dated September 9,
1994 between MemberWorks Incorporated and Brown Brothers Harriman &
Co. (filed as Exhibit 4.3 to the Company's Registration Statement on
Form S-1, Registration No. 333-10541, filed on October 18, 1996 and
incorporated herein by reference).
4.4 Registration Rights Agreement dated as of September 20, 1995 among
MemberWorks Incorporated and the Stockholders set forth on Schedule I
thereto. (filed as Exhibit 4.4 to the Company's Registration Statement
on Form S-1, Registration No. 333-10541, filed on October 18, 1996
incorporated herein by reference).
5.1* Opinion of Shearman & Sterling LLP
12.1* Computation of Ratio of Earnings to Fixed Charges.
23.1* Consent of PricewaterhouseCoopers LLP, as independent accountants.
24.1* Power of Attorney (contained on signature page).
25.1* Form T-1 Statement of Eligibility of Trustee under the Trust
Indenture Act of 1939 of Deutsche Bank Trust Company Americas.
------------------
* Filed herewith.
48