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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 16, 1996
REGISTRATION NO. 333-17143
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
TO
REGISTRATION STATEMENT
ON FORM S-3
UNDER
THE SECURITIES ACT OF 1933
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MICROSOFT CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
WASHINGTON 91-1144442
(STATE OR OTHER JURISDICTION (IRS EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
ONE MICROSOFT WAY
REDMOND, WASHINGTON 98052-6399
(206) 882-8080
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICE)
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ROBERT A. ESHELMAN, ESQ.
ONE MICROSOFT WAY
REDMOND, WASHINGTON 98052-6399
(206) 882-8080
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPIES OF ALL COMMUNICATIONS TO:
RICHARD B. DODD, ESQ. ANDREW D. SOUSSLOFF, ESQ.
PRESTON GATES & ELLIS SULLIVAN & CROMWELL
5000 COLUMBIA CENTER 125 BROAD STREET
701 FIFTH AVENUE NEW YORK, NEW YORK 10004-2498
SEATTLE, WASHINGTON 98104-7078
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon
as practicable after the effective date of this Registration Statement.
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, please check the following box: [ ]
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES 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 THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses relating to the distribution will be borne by the registrant.
Such expenses are estimated to be as follows:
Registration Fee -- Securities and Exchange Commission................... $261,364
NASD Filing Fees and Expenses (Including Legal Fees)..................... 37,500
Nasdaq National Market Listing Fee....................................... 50,000
Transfer Agent and Registrar Fees........................................ 3,000
Legal Fees and Expenses.................................................. 180,000
Printing Expenses........................................................ 85,000
Trustee Fees............................................................. 5,000
Accountant's Fees and Expenses........................................... 51,500
Miscellaneous Expenses................................................... 51,636
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Total.......................................................... $725,000
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ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article XII of the Restated Articles of Incorporation of the Company
authorizes the Company to indemnify any present or former director or officer to
the fullest extent not prohibited by the Washington Business Corporation Act,
public policy or other applicable law. The Washington Business Corporation Act
(Sections 23B.08.510 through .570) authorizes a corporation to indemnify its
directors, officers, employees, or agents in terms sufficiently broad to permit
such indemnification under certain circumstances for liabilities (including
provisions permitting advances for expenses incurred) arising under the
Securities Act.
The directors and officers of the Company are entitled to indemnification
by the Underwriters against any cause of action, loss, claim, damage, or
liability to the extent it arises out of or is based upon the failure of each
Underwriter to comply with the Prospectus delivery requirements under the
federal securities laws or any applicable state securities laws or upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in this Registration Statement and the Prospectus contained herein, as the
same shall be amended or supplemented, made in reliance upon and in conformity
with written information furnished to the Company by such Underwriter through
Goldman, Sachs & Co. expressly for use therein.
In addition, the Company maintains directors' and officers' liability
insurance under which the Company's directors and officers are insured against
loss (as defined in the policy) as a result of claims brought against them for
their wrongful acts in such capacities.
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ITEM 16. LIST OF EXHIBITS.
EXHIBIT NO. DESCRIPTION PAGE OR FOOTNOTE
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1.1 Underwriting Agreement............................................
3.1 Restated Articles of Incorporation................................ (1)
3.2 Bylaws............................................................ (2)
4.1 Form of Amendment to the Registrant's Restated Articles of
Incorporation designating the rights and preferences with respect
to the Series A Preferred Shares..................................
4.2 Form of Indenture with respect to the % Convertible
Subordinated Preferred Notes Due 1999.............................
5.1 Opinion of Preston Gates & Ellis..................................
8.1 Opinion of Preston Gates & Ellis..................................
12.1 Computation of Ratio of Earnings to Fixed Charges.................
13.1 Quarterly and Market Information Incorporated by Reference to Page
28 of 1996 Annual Report to Shareholders ("1996 Annual Report")... (3)
13.2 (Intentionally Omitted)...........................................
13.3 Management's Discussion and Analysis of Financial Condition and
Results of Operations Incorporated by Reference to Pages 16-19,
22, and 23 of 1996 Annual Report.................................. (3)
13.4 Financial Statements Incorporated by Reference to Pages 1, 15, 20,
21, 24-29, and 31 of 1996 Annual Report........................... (3)
23.1 Consent of Deloitte & Touche LLP.................................. (1)
23.2 Consent of Preston Gates & Ellis.................................. (4)
24.1 Power of Attorney................................................. II-4
25.1 Statement of Eligibility of Trustee...............................
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(1) Filed previously with the Registrant's Registration Statement on Form S-3
(Commission File No. 333-17143).
(2) Incorporated by reference to Microsoft's Form 10-K for the fiscal year ended
June 30, 1994.
(3) Incorporated by reference to Microsoft's Form 10-K for the fiscal year ended
June 30, 1996.
(4) Contained within Exhibit 5.1.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) 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 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to 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 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.
(2) That the undersigned registrant hereby undertakes to deliver or
cause to be delivered with the prospectus, to each person to whom the
prospectus is sent or given, the latest annual report to security holders
that is incorporated by reference in the prospectus and furnished
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pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under
the Securities Exchange Act of 1934; and, where interim financial
information required to be presented by Article 3 of Regulation S-X are not
set forth in the prospectus, to deliver, or cause to be delivered to each
person to whom the prospectus is sent or given, the latest quarterly report
that is specifically incorporated by reference in the prospectus to provide
such interim financial information.
(3) That, 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,
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 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 a controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by a final
adjudication of such issue.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of this registration statement as of the time it was declared
effective.
(5) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form
of prospectus 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.
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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-3 and has duly caused this Amendment No. 2 to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Redmond, State of Washington on December 16,
1996.
MICROSOFT CORPORATION
/s/ MICHAEL W. BROWN
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Michael W. Brown,
Vice President, Finance; Chief
Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this amendment
to registration statement has been signed below on December 16, 1996 by the
following persons in the capacities indicated.
SIGNATURES TITLE
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/s/ MICHAEL W. BROWN Vice President, Finance; Chief
- ---------------------------------------- Financial Officer (Principal
Michael W. Brown Financial and Accounting
Officer)
* Chairman, Chief Executive
- ---------------------------------------- Officer, Director (Principal
William H. Gates Executive Officer)
* Director
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Paul G. Allen
* Director
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Jill E. Barad
* Director
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Richard A. Hackborn
* Director
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David F. Marquardt
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SIGNATURES TITLE
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* Director
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Robert D. O'Brien
* Director
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William G. Reed, Jr.
* Director
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Jon A. Shirley
*By /s/ MICHAEL W. BROWN
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Michael W. Brown
Attorney-in-Fact
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INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION PAGE OR FOOTNOTE
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1.1 Underwriting Agreement............................................
3.1 Restated Articles of Incorporation................................ (1)
3.2 Bylaws............................................................ (2)
4.1 Form of Amendment to the Registrant's Restated Articles of
Incorporation designating the rights and preferences with respect
to the Series A Preferred Shares..................................
4.2 Form of Indenture with respect to the % Convertible
Subordinated Notes Due 1999.......................................
5.1 Opinion of Preston Gates & Ellis..................................
8.1 Opinion of Preston Gates & Ellis..................................
12.1 Computation of Ratio of Earnings to Fixed Charges.................
13.1 Quarterly and Market Information Incorporated by Reference to Page
28 of 1996 Annual Report to Shareholders ("1996 Annual Report")... (3)
13.2 (Intentionally Omitted)...........................................
13.3 Management's Discussion and Analysis of Financial Condition and
Results of Operations Incorporated by Reference to Pages 16-19,
22, and 23 of 1996 Annual Report.................................. (3)
13.4 Financial Statements Incorporated by Reference to Pages 1, 15, 20,
21, 24-29, and 31 of 1996 Annual Report........................... (3)
23.1 Consent of Deloitte & Touche LLP.................................. (1)
23.2 Consent of Preston Gates & Ellis.................................. (4)
24.1 Power of Attorney................................................. II-4
25.1 Statement of Eligibility of Trustee...............................
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(1) Filed previously with the Registrant's Registration Statement on Form S-3
(Commission File No. 333-17143).
(2) Incorporated by reference to Microsoft's Form 10-K for the fiscal year ended
June 30, 1994.
(3) Incorporated by reference to Microsoft's Form 10-K for the fiscal year ended
June 30, 1996.
(4) Contained within Exhibit 5.1.