UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
Amendment No. 1
SCHEDULE TO
TENDER OFFER STATEMENT UNDER SECTION 14(D)(1) OR 13(E)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
Vertrue Incorporated
(Formerly MemberWorks
Incorporated)
(Name of Subject Company (Issuer))
Vertrue Incorporated
(Formerly MemberWorks
Incorporated)
(Name of Filing Person, the Issuer)
COMMON STOCK, $0.01 PAR VALUE
(Title of Class of Securities)
586002 107
(CUSIP Number of Class of Securities)
--------------------------
GEORGE W. M. THOMAS, ESQ.
VERTRUE INCORPORATED
680 WASHINGTON BLVD., SUITE 1100
STAMFORD, CONNECTICUT 06901
(203) 324-7635
(Name, address and telephone number of person
authorized to receive notices and communications on
behalf of filing person)
COPY TO:
STEPHEN T. GIOVE, ESQ.
SHEARMAN & STERLING LLP
599 LEXINGTON AVENUE
NEW YORK, NEW YORK 10022
(212) 848-4000
--------------------------
CALCULATION OF FILING FEE
Transaction valuation* Amount of filing fee
---------------------- --------------------
$17,500,000 $2,217.25
-------------
* Calculated solely for purposes of determining the filing fee. This calculation
assumes the purchase of 500,000 of common stock of MemberWorks Incorporated, par
value $0.01 per share, at the maximum tender offer purchase price of $35.00 per
share in cash.
[x] Check the box if any part of the fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee was previously
paid. Identify the previous filing by registration statement number, or the Form
or Schedule and the date of its filing.
Amount Previously Paid: $2,217.25
Form or Registration No.: Schedule TO
Filing Party: MemberWorks Incorporated
Date Filed: November 15, 2004
[ ] Check the box if the filing relates solely to preliminary
communications made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the
statement relates:
[ ] third party tender offer subject to Rule 14d-1.
[X] issuer tender offer subject to Rule 13e-4.
[ ] going private transaction subject to Rule 13e-3.
[ ] amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the results
of a tender offer: [ ]
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This Amendment No. 1 amends and supplements the tender offer Statement on
Schedule TO originally filed with the Securities and Exchange Commission on
November 15, 2004 (the "Schedule TO") relating to the issuer tender offer of
MemberWorks Incorporated, a Delaware corporation ("MemberWorks"), to purchase up
to 500,000 shares of its common stock, $0.01 par value per share. When the
Schedule TO was filed on November 15, 2004, the Company's name was MemberWorks
Incorporated. The tender offer was also commenced on this date. On November 18,
2004, upon shareholder approval, the Company changed its name to Vertrue
Incorporated. Therefore, all references in this Amendment No. 1, the attached
Offer to Purchase, Letter of Transmittal, the Direction Forms to Participants in
the MemberWorks Incorporated 401(k) Profit Sharing Plan and Employee Stock
Purchase Plan and all related documents to "the Company", "MemberWorks", "we" or
"us" refer to Vertrue Incorporated. The Company is offering to purchase these
shares at a price not greater than $35.00 nor less than $30.00 per share, net to
the seller in cash, without interest, upon the terms and subject to the
conditions set forth in the Offer to Purchase, dated November 15, 2004, (the
"Offer to Purchase"), and in the related Letter of Transmittal, which, as
amended or supplemented from time to time, together constitute the tender offer.
This tender offer Statement on Schedule TO is intended to satisfy the reporting
requirements of Rule 13e-4(c)(1) of the Securities Exchange Act of 1934, as
amended.
The information in the Offer to Purchase and related Letter of Transmittal
originally filed as Exhibits (a)(1)(i) and (a)(1)(ii) respectively, to the
Schedule TO and the Direction Forms to Participants in the MemberWorks
Incorporated 401(k) Profit Sharing Plan and Employee Stock Purchase Plan
originally filed as Exhibits (a)(1)(vi) and (a)(1)(vii) respectively, to the
Schedule TO are hereby amended to the extent specifically provided herein, such
amendments being incorporated herein by reference in response to Items 1-11 of
this Amendment No. 1 and are filed as Exhibits (a)(1)(i), (a)(1)(ii), (a)(1)(vi)
and (a)(1)(vii). This Amendment No. 1 is filed to incorporate revisions made to
the Offer to Purchase, Letter of Transmittal and the Direction Forms to
Participants in the MemberWorks Incorporated 401(k) Profit Sharing Plan and
Employee Stock Purchase Plan.
Items 1-11.
1. The eighth sentence in the paragraph entitled "What will the purchase price
for the shares be and what will be the form of payment?" on page 3 of the
Offer to Purchase is amended to delete the phrase "as soon as practicable"
and substituting the word "promptly."
2. The following sentence in the first paragraph of the Section entitled
"Forward-Looking Statements" on page 8 of the Offer to Purchase is deleted
in its entirety: "These forward-looking statements are made pursuant to
safe harbor provisions of the Private Securities Litigation Reform Act of
1995.
3. The sixth sentence in the fourth full paragraph of the Section entitled
"The Tender Offer -- Number of Shares; Priority of Purchases; Proration"
on page 10 of the Offer to Purchase is amended to delete the phrase "as
soon as practicable" and substituting the word "promptly."
4. The last sentence of the first paragraph of the Section entitled "The
Tender Offer -- Conditions to the Tender Offer" on page 20 of the Offer to
Purchase is amended to delete the following language: "(including any
action or omission to act by us).
5. The language: ", as described in Section 9 of this Offer to Purchase" is
to be inserted in the following places:
a. Paragraph (a)(ii) under the Section entitled "The Tender Offer --
Conditions to the Tender Offer" on page 20 of the Offer to Purchase;
b. Paragraph (b)(iii) under the Section entitled "The Tender Offer --
Conditions to the Tender Offer" on page 20 of the Offer to Purchase;
c. Paragraph (c)(v) under the Section entitled "The Tender Offer --
Conditions to the Tender Offer" on page 20 of the Offer to Purchase
d. Paragraph (f) under the Section entitled "The Tender Offer --
Conditions to the Tender Offer" on page 20 of the Offer to Purchase
6. The following portion of the last full paragraph of the Section entitled
"The Tender Offer -- Information Concerning MemberWorks" on page 25 of the
Offer to Purchase is deleted: "and any future filings made by us with the
SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (excluding
any information furnished pursuant to Item 2.02 or Item 7.01 on any current
report on Form 8-K), subsequent to the date of this Offer to Purchase and
prior to the termination of the offer. The documents we incorporate by
reference are:".
7. The following sentence under the Section "Note: Signatures Must be Provided
on Page 11 Please Read the Accompanying Instructions Carefully" on page 6 of
the Letter of Transmittal is deleted in its entirety: "4. the undersigned
has read and agrees to all of the terms of the tender offer" and has been
substituted by the following paragraph: "Please note that MemberWorks
rescinds the prior language contained in representation number four.
MemberWorks no longer requires the undersigned to covenant, represent and
warrant to MemberWorks that the undersigned has read the terms of the tender
offer."
8. The following sentence under the Section entitled "Conditional Tender" on
page 2 of the Direction Form to the Participants in MemberWorks Incorporated
401(k) Profit Sharing Plan is deleted in its entirety: "I have read and
understand the Offer to Purchase and the related Letter of Transmittal and
the Letter to 401(k) Plan Participants and I agree to be bound by the terms
of the tender offer."
9. The following sentence under the Section entitled "Conditional Tender" on
page 2 of the Direction Form to the Participants in MemberWorks Incorporated
Employee Stock Purchase Plan is deleted in its entirety: "I have read and
understand the Offer to Purchase and the related Letter of Transmittal and
the Letter to ESPP Participants and I agree to be bound by the terms of the
tender offer."
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Item 12. Exhibits.
Exhibit Description
------- -----------
(a)(1)(i) Offer to Purchase.
(a)(1)(ii) Letter of Transmittal.
(a)(1)(iii) Guidelines for Certification of Taxpayer Identification Number
on Substitute Form W-9.*
(a)(1)(iv) Notice of Guaranteed Delivery.*
(a)(1)(v) Instruction form for shares held by brokers, dealers,
commercial banks, trust companies and other nominees.*
(a)(1)(vi) Letter from Bankers Trust Co., NA to the Participants in the
MemberWorks Incorporated 401(k) Profit Sharing Plan with
Direction Form.
(a)(1)(vii) Letter from Computershare Trust Company Incorporated to the
Participants in the MemberWorks Incorporated Employee Stock
Purchase Plan with Direction Form.
(a)(1)(viii) Notice from MemberWorks Incorporated to Holders of Vested
Stock Options.*
(a)(2) None.
(a)(3) None.
(a)(4) None.
(a)(5)(i) Form of letter to brokers, dealers, commercial banks, trust
companies and other nominees.*
(a)(5)(ii) Form of letter to be used by brokers, dealers, commercial
banks, trust companies and other nominees to their clients.*
(d)(i) 1995 Non-Employee Directors' Stock Option Plan. (filed as
Exhibit 10.3 to the Company's Registration Statement on Form
S-1, Registration No. 333-10541, filed on October 18, 1996)
(d)(ii) 1995 Executive Officers Stock Option Plan. (filed as Exhibit
10.2 to the Company's Registration Statement on Form S-1,
Registration No. 333 - 10541, filed on October 18, 1996)
(d)(iii) 1996 Stock Option Plan. (filed as Exhibit 10.4 to the
Company's Registration Statement on Form S-1, Registration No.
333-10541, filed on October 18, 1996)
* Filed previously with Schedule TO on November 15, 2004
Item 13. Information Required by Schedule 13E-3.
Not applicable.
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Date: November 30, 2004
VERTRUE INCORPORATED
By: /s/ George W. M. Thomas
-----------------------------------------
Name: George W. M. Thomas
Title: Senior Vice President, General Counsel
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