As filed with the Securities and Exchange Commission on January 5, 2007.
Registration No. 333-
--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
VERTRUE INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware 06-1276882
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2006 RESTRICTED STOCK PLAN FOR NON-EMPLOYEE DIRECTORS
2005 EQUITY INCENTIVE PLAN
(Full title of the plans)
----------------------
Vertrue Incorporated
Gary A. Johnson
20 Glover Avenue
Norwalk, Connecticut 06850
(203) 324-7635
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered (1) offering price per aggregate offering registration fee
share price
-----------------------------------------------------------------------------------------------------------
Common Stock,
par value $0.01
per share
-----------------------------------------------------------------------------------------------------------
2006 Restricted Stock 7,802 (2) $40.34 (6) $314,733 $33.68
Plan for Non-Employee 142,198 (3) $37.79 (7) $5,373,663 $574.98
Directors --------------- ------------
$5,688,396 $608.66
-----------------------------------------------------------------------------------------------------------
2005 Equity Incentive 4,000 (4) $41.17 (8) $164,680 $17.62
Plan 996,000 (5) $37.79 (9) $37,638,840 $4,027.36
--------------- ------------
$37,803,520 $4,044.98
-----------------------------------------------------------------------------------------------------------
Total: $43,491,916 Total: $4,653.64
-----------------------------------------------------------------------------------------------------------
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the
"Securities Act"), this registration statement on Form S-8 (this
"Registration Statement") shall also cover any additional shares of
Common Stock which become issuable under the Vertrue Incorporated 2006
Restricted Stock Plan (the "Restricted Stock Plan") or the Vertrue
Incorporated 2005 Equity Incentive Plan (the "Equity Incentive Plan")
being registered pursuant to this Registration Statement by reason of any
stock dividend, stock split, recapitalization or any other similar
transaction effected without the receipt of consideration which results
in an increase in the number of the Registrant's outstanding shares of
Common Stock.
(2) Represents the aggregate number of shares of Common Stock of the
Registrant being registered with respect to currently outstanding shares
of restricted stock granted under the Restricted Stock Plan.
(3) Represents the aggregate number of shares of Common Stock of the
Registrant available for issuance under the Restricted Stock Plan.
(4) Represents the aggregate number of shares of Common Stock of the
Registrant being registered with respect to currently stock options
granted under the Equity Incentive Plan.
(5) Represents the aggregate number of shares of Common Stock of the
Registrant available for issuance under the Equity Incentive Plan.
(6) Pursuant to Rule 457(c) and Rule 457(h) under the Securities Act, the
proposed maximum offering price per share as to the 7,802 shares of
Common Stock of the Registrant being registered with respect to currently
outstanding shares of restricted stock granted under the Restricted Stock
Plan is based on the average weighted grant price per share of such
restricted stock and is estimated solely for the purpose of calculating
the registration fee.
(7) Pursuant to Rule 457(c) and Rule 457(h) under the Securities Act, the
proposed maximum offering price per share as to the 142,198 shares of
Common Stock of the Registrant being registered with respect to future
awards granted under the Restricted Stock Plan is based on the average of
the high and low prices of the Class B Common Stock of the Registrant
reported on the National Association of Securities Dealers' Automated
Quotation System ("NASDAQ") on January 3, 2007 and is estimated solely
for the purpose of calculating the registration fee.
(8) Pursuant to Rule 457(h) under the Securities Act, the proposed maximum
offering price per share as to 4,000 shares of Common Stock of the
Registrant registered with respect to currently outstanding options
granted under the Equity Incentive Plan is based on the average weighted
exercise price per share of such options and is estimated solely for the
purpose of calculating the registration fee.
(9) Pursuant to Rule 457(c) and Rule 457(h) under the Securities Act, the
proposed maximum offering price per share as to the 996,000 shares of
Common Stock of the Registrant being registered with respect to future
awards granted under the Equity Incentive Plan is based on the average of
the high and low prices of the Common Stock of the Registrant reported on
NASDAQ on January 3, 2007 and is estimated solely for the purpose of
calculating the registration fee.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
----------------
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act and the "Note" to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission are incorporated
in this Registration Statement by reference:
(a) the Registrant's Annual Report on Form 10-K for the fiscal year
ended June 30, 2006;
(b) the Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended September 30, 2006;
(c) the Registrant's Current Reports on Form 8-K filed with the
Commission July 6, 2006, August 1, 2006, and October 31, 2006; and
(d) the description of the Registrant's Common Stock contained in
Amendment No. 4 to Form S-1, filed with the Commission on October
17, 1996, pursuant to Section 12 of the Securities Exchange Act of
1934, as amended (the "Exchange Act").
All other documents subsequently filed by the Registrant pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment to this Registration Statement that indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document that also is or is
deemed to be incorporated by reference herein 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 Registration
Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. 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.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See attached Exhibit list.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) to include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of this 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;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that the undertakings set forth in
paragraphs (1)(i) and (1)(ii) do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liabilities under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act (and where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of
the Exchange Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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 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, officer or controlling person of the Registrant in the
successful defense of any 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 and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Norwalk, State of Connecticut on the 5th day of
January, 2007.
VERTRUE INCORPORATED
By: /s/ Gary A. Johnson
---------------------------------
Name: Gary A. Johnson
Title: President, Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS that each person whose signature to
this Registration Statement appears below hereby constitutes and appoints George
Thomas as such person's true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for such person and in such person's
name, place and stead, in any and all capacities, to sign any and all amendments
to the Registration Statement, including post-effective amendments, and
registrations statements filed pursuant to Rule 462 under the Securities Act,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Commission, and does hereby grant unto each said
attorney-in-fact and agent 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 such person might or could do
in person, hereby ratifying and confirming all that each said attorney-in-fact
and agent, or any substitute therefor, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the
capacities indicated as of the 5th day of January, 2007.
Signature Capacity
/s/ Gary A. Johnson
--------------------------- President, Chief Executive Officer and Director
Gary A. Johnson
/s/ James B. Duffy
--------------------------- Executive Vice President, Chief Financial
James B. Duffy Officer and Chief Operating Officer
/s/ Alec L. Ellison
--------------------------- Director
Alec L. Ellison
/s/ Joseph E. Heid
--------------------------- Director
Joseph E. Heid
/s/ Robert Kamerschen
--------------------------- Director
Robert Kamerschen
/s/ Michael McClorey
--------------------------- Director
Michael T. McClorey
--------------------------- Director
Edward M. Stern
--------------------------- Director
Marc S. Tesler
EXHIBIT INDEX
Number Title of Exhibit
3.1 Restated Certificate of Incorporation of the Registrant
(filed as Exhibit 3.3 to the Company's Registration
Statement on Form S-1, Registration No. 333-10541, filed
on September 6, 1996; Certificate of Amendment of Restated
Certificate of Incorporation of the Registrant (filed as
Exhibit 3.1 to the Company's Quarterly Report on Form
10-Q, File No. 000-21527, filed on February 9, 2005).
3.2 Restated By-laws of the Registrant as amended (filed as
Exhibit 3.3 to the Company's Registration Statement on
Form S-1, Registration No. 333-10541, filed on August 21,
1996).
4.1 Vertrue Incorporated 2006 Restricted Stock Plan for Non-
Employee Directors (filed as Annex D to the Company's
Proxy Statement on Form DEF 14A, File No. 000-21527, filed
on October 12, 2006).
4.2 Vertrue Incorporated 2005 Equity Incentive Plan (filed as
Exhibit 10.10 to the Company's Annual Report on Form 10-K,
File No. 000-21527, filed on September 12, 2006).
23.1* Consent of PricewaterhouseCoopers LLP.
24.1* Power of Attorney (included as part of the signature pages
to this Registration Statement).
--------------------------
* Filed herewith