UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
Amendment No. 2
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: [ ]
2
This Amendment No. 2 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"), as amended by Amendment No. 1 thereto,
filed with the Securities and Exchange Commission on December 1, 2004, 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. 2, and all related documents to "the Company", "MemberWorks", "we"
or "us" refer to Vertrue Incorporated. The Company is offering to purchase these
shares 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
is incorporated in this Amendment No. 2 to the Schedule TO by reference to all
of the applicable items in the Schedule TO, except that such information is
hereby amended and supplemented to the extent specifically provided herein.
Item 4. Terms of the Transaction
Item 4 of the Schedule TO is hereby amended and supplemented by adding the
following language:
The Company announced today that it is increasing the purchase price of its
previously announced self tender offer to purchase up to 500,000 shares of its
common stock. The new purchase price will not be less than $33.50 per share and
not more than $38.50 per share. Previously, the price range of the self tender
offer was from $30.00 to $35.00 per share. In addition, the Company is
extending the tender offer period from 5:00 P.M., New York City time, on
December 15, 2004, until 5:00 P.M., New York City time, on January 7, 2005,
unless the Company extends the tender offer further. Participants in the
Company's Employee Stock Purchase Plan and 401(k) Profit Sharing Plan will have
until 5:00 P.M. New York City time, on January 5, 2005 to send their Direction
Forms.
Item 11. Additional Information
Item 11 of the Schedule TO is hereby amended and supplemented by adding
the following language:
On December 15, 2004, the Company issued a press release announcing the
extension of the tender offer and an increase in the purchase price as described
above under Item 4, a copy of which is filed as Exhibit (a)(5)(iii) to this
Amendment No. 2 to the Schedule TO and is incorporated herein by reference.
3
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.*
(a)(5)(iii) Press release, dated December 15, 2004, announcing the
extension of the expiration date and the increase in purchase
price of the tender offer.
(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
** Filed previously with Amendment No. 1 to Schedule TO on December 1, 2004
Item 13. Information Required by Schedule 13E-3.
Not applicable.
5
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: December 15, 2004
VERTRUE INCORPORATED
By: /s/ George W. M. Thomas
-----------------------------------------
Name: George W. M. Thomas
Title: Senior Vice President, General Counsel
6