As filed with the Securities and Exchange Commission on June 30, 1998
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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MICROSTRATEGY INCORPORATED
(Exact name of registrant as specified in its charter)
DELAWARE 51-0323571
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification Number)
8000 TOWERS CRESCENT DRIVE 22182
VIENNA, VIRGINIA (Zip Code)
(Address of Principal Executive
Offices)
MICROSTRATEGY INCORPORATED 1996 STOCK PLAN
MICROSTRATEGY INCORPORATED 1997 STOCK OPTION PLAN FOR FRENCH EMPLOYEES
MICROSTRATEGY INCORPORATED 1997 DIRECTOR OPTION PLAN
MICROSTRATEGY INCORPORATED 1998 EMPLOYEE STOCK PURCHASE PLAN
MR. MICHAEL J. SAYLOR
PRESIDENT AND CHIEF EXECUTIVE OFFICER
MICROSTRATEGY INCORPORATED
8000 TOWERS CRESCENT DRIVE
VIENNA, VIRGINIA 22182
(Name and address of agent for service)
(703) 848-8600
(Telephone number, including area code, of agent for service)
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Copy to:
JOHN D. WATSON
LATHAM & WATKINS
1001 PENNSYLVANIA AVENUE, N.W. SUITE 1300
Washington, D.C. 20004-2505
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CALCULATION OF REGISTRATION FEE
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Title of Each Proposed Maximum Proposed Maximum Amount of
Class of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered Per Share (1) Price (1) Fee
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Class A Common Stock, par value
$0.001 per share (2) 9,200,000 shares $ .50 to $25.50 $97,985,971 $28,905.87
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(1) For purposes of computing the registration fee only. Pursuant to Rule
457(c) and Rule 457(h) under the Securities Act of 1933, the Proposed
Maximum Offering Price Per Share is based upon (i) with respect to
6,007,653 shares that may be acquired pursuant to stock options granted by
MicroStrategy Incorporated (the "Company") under the MicroStrategy
Incorporated 1996 Stock Plan (the "1996 Stock Plan"), the MicroStrategy
Incorporated 1997 Stock Option Plan for French Employees (the "French
Plan") and the MicroStrategy Incorporated 1997 Director Option Plan (the
"Director Option Plan" and, together with the 1996 Stock Plan and the
French Plan, the "Option Plans") prior to the date of this Registration
Statement, the actual price at which such stock options may be exercised;
(ii) with respect to the remaining 2,492,347 shares that may be acquired
pursuant to stock options that may be granted by the Company under the
Option Plans from time to time after the date hereof, $25.50 per share,
which represents the average of the high and low prices reported on the
Nasdaq Stock Market for shares of the Class A Common Stock on June 24,
1998; and (iii) with respect to up to 700,000 shares of Class A Common
Stock that may be issued from time to time under the MicroStrategy
Incorporated 1998 Employee Stock Purchase Plan (the "Purchase Plan" and,
together with the Option Plans, the "Plans"), $25.50 per share, which
represents the average of the high and low prices reported on the Nasdaq
Stock Market for shares of the Class A Common Stock on June 24, 1998.
(2) The Option Plans authorize the issuance of a maximum of 8,500,000 shares of
Class A Common Stock in the aggregate. Of such shares, 5,769,653 are
subject to outstanding options granted under the 1996 Stock Plan as of June
30, 1998, 104,500 are subject to outstanding options granted under the
French Plan as of June 30, 1998 and 135,000 are subject to outstanding
options granted under the Director Option Plan as of June 30, 1998. The
Purchase Plan authorizes the purchase of up to 400,000 shares of Class A
Common Stock, subject to increase under certain circumstances.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be filed with this Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed by the Company with the Securities
and Exchange Commission (the "Commission") are incorporated as of their
respective dates in this Registration Statement on Form S-8 (the "Registration
Statement") by reference:
1. The prospectus contained in Post-Effective Amendment No. 1 to
the Company's Registration Statement on Form S-1 relating to its
initial public offering of Class A Common Stock filed with the
Commission on June 11, 1998 (File No. 333-49899).
2. Description of the Company's Class A Common Stock incorporated
by reference into the Company's Registration Statement on
Form 8-A filed with the Commission on June 10, 1998.
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all securities
then remaining unsold are deemed incorporated by reference in this Registration
Statement and are 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 which 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.
The validity of the shares of Class A Common Stock registered hereunder
will be passed upon for the Company by Latham & Watkins, Washington, D.C. A
partner of Latham & Watkins holds nonstatutory options to purchase approximately
25,000 shares of Class A Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
("Section 145") permits a Delaware corporation to 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 such person 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,
joint venture, trust, or other enterprise, against expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement
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actually and reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or proceedings, had
no reasonable cause to believe such person's conduct was unlawful.
In the case of an action by or in the right of the corporation, Section 145
permits the corporation to indemnify any person 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 by
reason of the fact that such person 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,
joint venture, trust or other enterprise against expenses (including attorneys'
fees) actually and reasonably incurred by such person in connection with the
defense or settlement of such action or suit if he acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interest of the corporation. No indemnification may be made 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 of
Chancery or 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 the Court of Chancery or such other court
shall deem proper.
To the extent that a present or former director or officer of the
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in the preceding two paragraphs, Section
145 requires that such person be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
therewith.
Section 145 provides that expenses (including attorneys' fees) incurred by
an officer or director in defending any civil, criminal, administrative, or
investigative action, suit or proceeding may be paid by the corporation in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that such person is not entitled to
be indemnified by the corporation as authorized in Section 145.
The Company's Amended and Restated Certificate of Incorporation (the
"Certificate") provides that an officer or director of the Company will not be
personally liable to the Company or its stockholders for monetary damages for
any breach of his fiduciary duty as an officer or director, except in certain
cases where liability is mandated by the DGCL. The provision has no effect on
any non-monetary remedies that may be available to the Company or its
stockholders, nor does it relieve the Company or its officers or directors from
compliance with federal or state securities laws. The Certificate also
generally provides that the Company shall indemnify, to the fullest extent
permitted by law, any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit investigation,
administrative hearing or any other proceeding (each, a "Proceeding") by reason
of the fact that he is or was a director or officer of the Company, or is or was
serving at the request of the Company as a director, officer, employee or agent
of another entity, against expenses incurred by him in connection with such
Proceeding. An officer or director shall not be entitled to indemnification by
the Company if (i) the officer or director did not act in good faith and in a
manner reasonably believed to be in, or not opposed to, the best interests of
the Company, or (ii) with respect to any criminal action or proceeding, the
officer or director had reasonable cause to believe his conduct was unlawful.
The Company has obtained a directors' and officers' insurance and company
reimbursement policy. The policy insures directors and officers against
unindemnified loss arising from certain wrongful acts in their capacities and
reimburses the Company for such loss for which the Company has lawfully
indemnified its directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
The following is a list of exhibits filed as part of this Registration
Statement, which are incorporated herein:
Exhibit No. Description of Exhibit
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4.1 Form of Class A Common Stock certificate (incorporated by reference to Exhibit 4.1 to the Company's
Registration Statement on Form S-1 (File No. 333-49899)).
*5.1 Opinion of Latham & Watkins.
10.1 MicroStrategy Incorporated 1996 Stock Plan (as amended) (incorporated by reference to Exhibit 10.5 to
the Company's Registration Statement on Form S-1 (File No. 333-49899)).
10.2 MicroStrategy Incorporated 1997 Stock Option Plan for French Employees (incorporated by reference to
Exhibit 10.6 to the Company's Registration Statement on Form S-1 (File No. 333-49899)).
10.3 MicroStrategy Incorporated 1997 Director Option Plan (incorporated by reference to Exhibit 10.7 to the
Company's Registration Statement on Form S-1 (File No. 333-49899)).
*10.4 MicroStrategy Incorporated 1998 Employee Stock Purchase Plan.
*23.1 Consent of Latham & Watkins (included as part of their opinion attached as Exhibit 5.1 hereto).
*23.2 Consent of Coopers & Lybrand L.L.P.
*24.1 Power of Attorney (included on page 7 hereto)
____________________
* Filed herewith.
ITEM 9. UNDERTAKINGS.
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, 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 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 Act and will be governed by the final adjudication of
such issue.
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 of 1933;
(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;
(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;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
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apply if the information required to be included in a post-effective
amendment by these paragraphs is contained in periodic reports filed
by the
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registrant pursuant to Section 13 or Section 15(d) of the Securities
and Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
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(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.
The undersigned registrant hereby undertakes 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 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 herein, 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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Vienna, Virginia on June 30, 1998.
MICROSTRATEGY INCORPORATED
By: /s/ Michael J. Saylor
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Michael J. Saylor
Chairman of the Board, Chief Executive
Officer and President
POWERS OF ATTORNEY
Each person whose signature appears below constitutes and appoints Mark S.
Lynch as his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for such person and in his name, place and
stead, in any and all capacities, to sign any or all further amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission granting unto 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 he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue thereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATES INDICATED.
Signatures Title Date
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/s/ Michael J. Saylor Chairman of the Board, Chief Executive June 30, 1998
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Michael J. Saylor Officer and President (Principal Executive
Officer)
/s/ Sanju K. Bansal Executive Vice President, Chief June 30, 1998
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Sanju K. Bansal Operating Officer and Director
/s/ Mark S. Lynch Vice President, Finance and Chief June 30, 1998
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Mark S. Lynch Financial Officer (Principal Financial
and Accounting Officer)
Director June __, 1998
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Frank A. Ingari
/s/ Ralph S. Terkowitz Director June 30, 1998
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Ralph S. Terkowitz
Director June __, 1998
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Jonathan J. Ledecky
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