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As filed with the Securities and Exchange Commission on January 23, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MemberWorks Incorporated
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(Exact name of registrant as specified in its charter)
Delaware 06-1276882
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
680 Washington Blvd.; Suite 1100; Stamford, Connecticut 06901
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(Address of principal executive offices) (Zip Code)
1995 Non-Employee Directors' Stock Option Plan
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(Full title of the plan)
Gary A. Johnson
President and Chief Executive Officer
MemberWorks Incorporated
680 Washington Blvd., Suite 1100
Stamford, Connecticut 06901
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(Name and address of agent for service)
(203) 324-7635
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Title of Proposed Proposed
Securities Amount to Maximum Maximum Amount of
to be be Offering Price Aggregate Registration
Registered Registered Per Share Offering Price Fee
- --------------- ---------- -------------- -------------- ------------
<S> <C> <C> <C> <C>
Common Stock, 36,000 13.25(1) 477,000(1) $145
$0.01 par value shares
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<FN>
(1) Estimated solely for the purpose of calculating the registration fee,
and based on the average of the high and low prices as reported by Nasdaq on
January 20, 1997, in accordance with Securities Act Rule 457(c) and (h).
</TABLE>
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or given
to participants in the 1995 Non-Employee Directors' Stock Option Plan of
MemberWorks Incorporated, a Delaware corporation (the "Registrant" or the
"Company"), pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended
(the "Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
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The Registrant is subject to the informational and reporting requirements
of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of 1934 (as
amended, the "Exchange Act"), and in accordance therewith files reports, proxy
statements and other information with the Securities and Exchange Commission.
The following documents, which are filed with the Securities and Exchange
Commission, are incorporated in this Registration Statement by reference:
(1) The Company's Prospectus pursuant to Rule 424(b)(1) of the Securities
Act, dated October 18, 1996;
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1996, dated November 14, 1996; and
(3) The description of the Common Stock, $0.01 par value per share ("Common
Stock"), contained in the Company's Registration Statement on Form 8-A as filed
with the Commission on October 11, 1996.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all shares of Common Stock offered
hereby have been sold, or which deregisters all shares of Common Stock then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of the filing of such documents.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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The validity of the Common Stock offered hereby has been passed upon for
the Company by Hale and Dorr LLP, Boston, Massachusetts.
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Item 6. Indemnification of Directors and Officers.
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The Registrant's Certificate of Incorporation contains certain provisions
permitted under the General Corporation Law of Delaware relating to the
liability of directors. These provisions eliminate a director's personal
liability for monetary damages for a breach of fiduciary duty, except in certain
circumstances involving wrongful acts, such as the breach of a director's duty
of loyalty or acts or omissions which involve intentional misconduct or a
knowing violation of the law. The Registrant's Certificate of Incorporation also
contains provisions obligating the Registrant to indemnify its directors and
officers to the fullest extent permitted by the General Corporation Law of
Delaware.
The Registrant has purchased and maintains insurance coverage under a
policy insuring directors and officers of the Registrant against certain
liabilities which they may incur as directors or officers of the Registrant,
which may include coverage for liabilities arising under the Securities Act.
Item 7. Exemption From Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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The Exhibit Index immediately preceding the exhibits is incorporated herein
by reference.
Item 9. Undertakings.
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1. The Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement; and
(iii)To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
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PROVIDED, HOWEVER that paragraphs (i) and (ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
2. The Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be in the initial
bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, executive officers and
controlling persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
executive officer of controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director,
executive officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Stamford, Connecticut, on this 23rd day of January, 1997.
MEMBERWORKS INCORPORATED
By: /s/ Gary A. Johnson
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Gary A. Johnson
President and
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of MemberWorks Incorporated
hereby severally constitute and appoint James B. Duffy and Steven H. Levenherz,
and each of them singly, our true and lawful attorneys with full power to them,
and each of them singly, to sign for us and in our names, in the capacities
indicated below, the Registration Statement on Form S-8 filed herewith and any
and all amendments to said Registration Statement and generally to do all such
things in our name and behalf in our capacities as officers and directors to
enable MemberWorks Incorporated to comply with the provisions of the Securities
Act of 1933, as amended, and all requirements of the Securities and Exchange
Commission, hereby ratifying and confirming our signatures as they may be signed
by our said attorneys, or any of them, to said Registration Statement and any
and all amendments thereto.
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WITNESS our hands and common seal on the date set forth below.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated as of January 23, 1997.
Signature Title
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/s/ Gary A. Johnson President, Chief Executive
------------------------- Officer and Director
Gary A. Johnson (Principal Executive Officer)
/s/ Dennis P. Walker Executive Vice President and Director
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Dennis P. Walker
/s/ James B. Duffy Chief Financial Officer
------------------------- (Principal Financial and Accounting Officer
James B. Duffy
/s/ Stephen J. Clearman Director
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Stephen J. Clearman
/s/ Alec L. Ellison Director
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Alec L. Ellison
/s/ Michael R. O'Brien Director
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Michael R. O'Brien
/s/ Marc S. Tesler Director
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Marc S. Tesler
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EXHIBIT INDEX
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Exhibit
Number
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4.1 Certificate of Incorporation, as amended (1)
4.2 By-Laws (2)
4.3 Specimen Certificate of Common Stock of the Registrant (3)
5.1 Opinion of Hale and Dorr LLP
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5.1)
24.1 Power of Attorney (included in the signature pages of this Registration
Statement)
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(1) Incorporated herein by reference to Exhibits 3.1 through 3.3 to the
Registrant's Registration Statement on Form S-1 (File No. 333-10541).
(2) Incorporated herein by reference to Exhibit 3.4 to the Registrant's
Registration Statement on Form S-1 (File No. 333-10541).
(3) Incorporated herein by reference to Exhibit 4 to the Registrant's
Registration Statement on Form S-1 (File No. 333-10541).
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EXHIBIT 5.1
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HALE AND DORR LLP
Counsellors at Law
60 State Street, Boston, Massachusetts 02109
617-526-6000 FAX 617-526-5000
January 23, 1997
MemberWorks Incorporated
680 Washington Blvd., Suite 1100
Stamford, Connecticut 06901
Re: 1995 Non-Employee Directors' Stock Option Plan
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Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form S-8
(the "Registration Statement") to be filed with the Securities and Exchange
Commission relating to 36,000 shares of Common Stock, $0.01 par value per share
(the "Shares"), of MemberWorks Incorporated, a Delaware corporation (the
"Company"), issuable under the Company's 1995 Non-Employee Directors' Stock
Option Plan (the "Plan").
We have examined the Certificate of Incorporation of the Company and the
By-Laws of the Company, each as amended to date, and originals, or copies
certified to our satisfaction, of all pertinent records of the meetings of the
directors and stockholders of the Company, the Registration Statement and such
other documents relating to the Company as we have deemed material for the
purposes of this opinion.
In our examination of the foregoing documents, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals, the conformity to original documents of all documents submitted
to us as certified or photostatic copies, and the authenticity of the originals
of such latter documents.
Based on the foregoing, we are of the opinion that the Company has duly
authorized for issuance the shares of its Common Stock covered by the
Registration Statement to be issued under the Plan, as described in the
Registration Statement, and such shares, when issued in accordance with the
terms of the Plan, will be legally issued, fully paid and nonassessable.
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We hereby consent to the filing of this opinion with the Securities and
Exchange Commission in connection with the Registration Statement.
Very truly yours,
/s/ Hale and Dorr LLP
HALE AND DORR LLP
