<PAGE> 1
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------------------------------------
REGISTRATION STATEMENT
ON FORM S-8
Under
THE SECURITIES ACT OF 1933
COMMISSION FILE NO. 0-14278
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 of registrant's Principal Executive Offices)
MICROSOFT CORPORATION 1997 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
----------------------------------------
Robert A. Eshelman
Associate General Counsel
One Microsoft Way
Redmond, Washington 98052-6399
(206) 882-8080
- --------------------------------------------------------------------------------
(Name and address of agent for service)
Copies of all communications to:
Richard B. Dodd
Christopher H. Cunningham
Preston Gates & Ellis
5000 Columbia Seafirst Center
701 Fifth Avenue
Seattle, WA 98104
(206) 623-7580
<TABLE>
<CAPTION>
Title of each class Proposed maximum Proposed maximum
of securities to be Amount to be offering price per aggregate offering Amount of
registered registered* share* price* registration fee**
---------- ----------- ------ ------ ------------------
<S> <C> <C> <C> <C>
Common shares 10,000,000 $149.125 1,491,250,000 $514,224.14
par value ----------
$.00005
</TABLE>
<PAGE> 2
*Estimated pursuant to Rule 457(c) solely for purposes of calculating
amount of registration fee, based upon the average of the high and low prices
reported on November 15, 1996, as reported on the Nasdaq Stock Market.
The Exhibit Index appears after the Signature Page of this Registration
Statement.
<PAGE> 3
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
The documents containing the information specified in Part I of this
Registration Statement will be sent or given to employees as specified by Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). Such
documents are not required to be and are not filed with the Securities and
Exchange Commission (the "Commission") either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
These documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of this Form S-8, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information.
Upon written or oral request, any of the documents incorporated by
reference in Item 3 of Part II of this Registration Statement (which documents
are incorporated by reference in this Section 10(a) Prospectus), other documents
required to be delivered to eligible employees pursuant to Rule 428(b) or
additional information about the Microsoft Corporation 1997 Employee Stock
Purchase Plan and its administrators are available without charge by contacting:
ESPP Administration
Microsoft Corporation
One Microsoft Way
Redmond, Washington 98052-6399
(206) 882-8080
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Microsoft hereby incorporates by reference into this Registration
Statement the documents listed below. In addition, all documents subsequently
filed pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934 (the "Exchange Act"), 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, shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents:
(a) Microsoft's latest annual report filed pursuant to Section 13(a) or
15(d) of the Exchange Act, or either the latest prospectus filed pursuant to
Rule 424(b) under the Securities Act of 1933, that contains audited financial
statements for Microsoft's latest fiscal year for which such statements have
been filed, or Microsoft's effective Registration Statement on Form 10 filed
under the Exchange Act containing audited financial statements for Microsoft's
latest fiscal year.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by Microsoft's document
referred to in (a) above.
<PAGE> 4
(c) The description of Microsoft's common stock, which is contained in
a Registration Statement of the Company filed on Form S-4, dated February 17,
1995.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the Shares offered hereby will be passed upon for
Microsoft by Preston Gates & Ellis, 5000 Columbia Center, 701 Fifth Avenue,
Seattle, Washington 98104. Attorneys who are partners or employed by Preston
Gates & Ellis who have provided advice with respect to this matter in the
aggregate own less than 50,000 Shares.
Item 6. Indemnification of Directors and Officers.
Article XII of Microsoft's Restated Articles of Incorporation
authorizes Microsoft to indemnify any present or former director, officer,
employee, or agent of Microsoft, or a person serving in a similar post in
another organization at the request of Microsoft, against expenses, judgments,
fines, and amounts paid in settlement incurred by him in connection with any
threatened, pending, or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative, to the fullest extent not prohibited
by the Washington Business Corporation Act, public policy or other applicable
law. Chapter 23B.08.510 and .570 of the Washington Business Corporation Act
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 1933 Act.
In addition, Microsoft maintains directors' and officers' liability
insurance under which Microsoft'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.
Item 7. Exemption from Registration Claimed.
Not Applicable.
<PAGE> 5
Item 8. Exhibits.
Exhibit Number Description
- -------------- -----------
4 Microsoft Corporation 1997 Employee Stock Purchase Plan
5 Opinion of Counsel regarding legality
23.1 Consent of Independent Public Accountant
23.2 Consent of Counsel (included in Exhibit 5)
24 Power of Attorney (Contained within Signature Page)
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:
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;
(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.
(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 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 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.
(c) 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
<PAGE> 6
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.
<PAGE> 7
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 the City of Redmond, State of Washington, on this 12th day of
November, 1996.
MICROSOFT CORPORATION
/s/ William H. Gates III
------------------------------------
William H. Gates III
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints William H. Gates III, his or her
attorney-in-fact, for him or her in any and all capacities, to sign any
amendments to this Registration Statement, and to file the same, with exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that said
attorney-in-fact, or his substitute, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Dated
-----
<S> <C> <C>
/s/ William H. Gates III Chairman, Chief Executive November 12, 1996
- ------------------------ Officer, Director (Principal
William H. Gates III Executive Officer)
/s/ Michael W. Brown Vice President, Finance; Chief November 12, 1996
- ------------------------ Financial Officer (Principal
Michael W. Brown Financial and Accounting
Officer)
/s/ Paul G. Allen Director November 12, 1996
- ------------------------
Paul G. Allen
/s/ Richard A. Hackborn Director November 12, 1996
- ------------------------
Richard A. Hackborn
</TABLE>
<PAGE> 8
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ David F. Marquardt Director November 12, 1996
- ------------------------
David F. Marquardt
/s/ Robert D. O'Brien Director November 12, 1996
- ------------------------
Robert D. O'Brien
/s/ William G. Reed, Jr. Director November 12, 1996
- ------------------------
William G. Reed, Jr.
/s/ Jon A. Shirley Director November 12, 1996
- ------------------------
Jon A. Shirley
/s/ Jill E. Barad Director November 12, 1996
- ------------------------
Jill E. Barad
</TABLE>
<PAGE> 9
EXHIBIT INDEX
Exhibit Number Description
- -------------- -----------
4 Microsoft Corporation 1997 Employee Stock Purchase Plan
5 Opinion of Counsel regarding legality
23.1 Consent of Independent Public Accountant
23.2 Consent of Counsel (included in Exhibit 5)
24 Power of Attorney (Contained within Signature Page)
<PAGE> 1
EXHIBIT 4
MICROSOFT CORPORATION
1997 EMPLOYEE STOCK PURCHASE PLAN
As approved by the Board of Directors
on August 10, 1996 and the
Shareholders on November 12, 1996
<PAGE> 2
MICROSOFT CORPORATION
1997 EMPLOYEE STOCK PURCHASE PLAN
Microsoft Corporation (the "Company") does hereby establish its 1997
Employee Stock Purchase Plan as follows:
1. Purpose of the Plan. The purpose of this Plan is to provide
eligible employees who wish to become shareholders in the Company a convenient
method of doing so. It is believed that employee participation in the ownership
of the business will be to the mutual benefit of both the employees and the
Company.
2. Definitions.
2.1 "Base pay" means regular straight time earnings, plus review
cycle bonuses and overtime payments, payments for incentive compensation, and
other special payments except to the extent that any such item is specifically
excluded by the Board of Directors of the Company (the "Board").
2.2 "Account" shall mean the funds accumulated with respect to an
individual employee as a result of deductions from his paycheck for the purpose
of purchasing stock under this Plan. The funds allocated to an employee's
account shall remain the property of the respective employee at all times but
may be commingled with the general funds of the Company.
3. Employees Eligible to Participate. Any employee of the Company or
any of its subsidiaries who is in the employ of the Company or subsidiary on an
offering commencement date is eligible to participate in that offering, except
(a) employees whose customary employment is less than 20 hours per week, and (b)
employees whose customary employment is for not more than five months in any
calendar year.
4. Offerings. There will be twelve separate consecutive six-month
offerings pursuant to the Plan. The first offering shall commence on January 1,
1997. Thereafter, offerings shall commence on each subsequent July 1 and January
1, and the final offering under this Plan shall commence on July 1, 2002 and
terminate on December 31, 2002. In order to become eligible to purchase shares,
an employee must sign an Enrollment Agreement, and any other necessary papers on
or before the commencement date (January 1 or July 1) of the particular offering
in which he wishes to participate. Participation in one offering under the Plan
shall neither limit, nor require, participation in any other offering.
5. Price. The purchase price per share shall be the lesser of (1) 85%
of the fair market value of the stock on the offering date; or (2) 85% of the
fair market value of the stock on the last business day of the offering. Fair
market value shall mean the
<PAGE> 3
closing bid price as reported on the National Association of Securities Dealers
Automated Quotation System or, if the stock is traded on a stock exchange, the
closing price for the stock on the principal such exchange.
6. Offering Date. The "offering date" as used in this Plan shall be
the commencement date of the offering, if such date is a regular business day,
or the first regular business day following such commencement date. A different
date may be set by resolution of the Board.
7. Number of Shares to be Offered. The maximum number of shares that
will be offered under the Plan is 10,000,000 shares. The shares to be sold to
participants under the Plan will be common stock of the Company. If the total
number of shares for which options are to be granted on any date in accordance
with Section 10 exceeds the number of shares then available under the Plan
(after deduction of all shares for which options have been exercised or are then
outstanding), the Company shall make a pro rata allocation of the shares
remaining available in as nearly a uniform manner as shall be practicable and as
it shall determine to be equitable. In such event, the payroll deductions to be
made pursuant to the authorizations therefor shall be reduced accordingly and
the Company shall give written notice of such reduction to each employee
affected thereby.
8. Participation.
8.1 An eligible employee may become a participant by completing an
Enrollment Agreement provided by the Company and filing it with Shareholder
Services prior to the Commencement of the offering to which it relates.
8.2 Payroll deductions for a participant shall commence on the
offering date, and shall end on the termination date of such offering unless
earlier terminated by the employee as provided in Paragraph 14.
9. Payroll Deductions.
9.1 At the time a participant files his authorization for a
payroll deduction, he shall elect to have deductions made from his pay on each
payday during the time he is a participant in an offering at the rate of 2%, 4%,
6%, 8%, or 10% of his base pay.
9.2 All payroll deductions made for a participant shall be
credited to his account under the Plan. A participant may not make any separate
cash payment into such account nor may payment for shares be made other than by
payroll deduction.
9.3 A participant may discontinue his participation in the Plan as
provided in Section 14, but no other change can be made during an offering and,
<PAGE> 4
specifically, a participant may not alter the rate of his payroll deductions for
that offering.
10. Granting of Option. On the offering date, this Plan shall be
deemed to have granted to the participant an option for as many full shares as
he will be able to purchase with the payroll deductions credited to his account
during his participation in that offering. Notwithstanding the foregoing, no
participant may purchase more than 1,000 shares of stock during any single
offering.
11. Exercise of Option. Each employee who continues to be a
participant in an offering on the last business day of that offering shall be
deemed to have exercised his option on such date and shall be deemed to have
purchased from the Company such number of full shares of common stock reserved
for the purpose of the Plan as his accumulated payroll deductions on such date
will pay for at the option price.
12. Employee's Rights as a Shareholder. No participating employee
shall have any right as a shareholder with respect to any shares until the
shares have been purchased in accordance with Section 11 above and the stock has
been issued by the Company.
13. Evidence of Stock Ownership.
13.1 Promptly following the end of each offering, the number of
shares of common stock purchased by each participant shall be deposited into an
account established in the participant's name at a stock brokerage or other
financial services firm designated by the Company (the "ESPP Broker").
13.2 The participant may direct, by written notice to the Company
at the time of his enrollment in the Plan, that his ESPP Broker account be
established in the names of the participant and one other person designated by
the participant, as joint tenants with right of survivorship, tenants in common,
or community property, to the extent and in the manner permitted by applicable
law.
13.3 A participant shall be free to undertake a disposition (as
that term is defined in Section 424(c) of the Code) of the shares in his account
at any time, whether by sale, exchange, gift, or other transfer of legal title,
but in the absence of such a disposition of the shares, the shares must remain
in the participant's account at the ESPP Broker until the holding period set
forth in Section 423(a) of the Code has been satisfied. With respect to shares
for which the Section 423(a) holding period has been satisfied, the participant
may move those shares to another brokerage account of participant's choosing or
request that a stock certificate be issued and delivered to him.
13.4 A participant who is not subject to payment of U.S. income
taxes may move his shares to another brokerage account of his choosing or
request that a
<PAGE> 5
stock certificate be issued and delivered to him at any time, without regard to
the satisfaction of the Section 423(a) holding period.
14. Withdrawal.
14.1 An employee may withdraw from an offering, in whole but not
in part, at any time prior to the last business day of such offering by
delivering a Withdrawal Notice to the Company, in which event the Company will
refund the entire balance of his deductions as soon as practicable thereafter.
14.2 To re-enter the Plan, an employee who has previously
withdrawn must file a new Enrollment Agreement in accordance with Section 8.1.
The employee's re-entry into the Plan will not become effective before the
beginning of the next offering following his withdrawal, and if the withdrawing
employee is an officer of the Company within the meaning of Section 16 of the
Securities Exchange Act of 1934 he may not re-enter the Plan before the
beginning of the second offering following his withdrawal.
15. Carryover of Account. At the termination of each offering the
Company shall automatically re-enroll the employee in the next offering, and the
balance in the employee's account shall be used for option exercises in the new
offering, unless the employee has advised the Company otherwise. Upon
termination of the Plan, the balance of each employee's account shall be
refunded to him.
16. Interest. No interest will be paid or allowed on any money in the
accounts of participating employees.
17. Rights Not Transferable. No employee shall be permitted to sell,
assign, transfer, pledge, or otherwise dispose of or encumber either the payroll
deductions credited to his account or any rights with regard to the exercise of
an option or to receive shares under the Plan other than by will or the laws of
descent and distribution, and such right and interest shall not be liable for,
or subject to, the debts, contracts, or liabilities of the employee. If any such
action is taken by the employee, or any claim is asserted by any other party in
respect of such right and interest whether by garnishment, levy, attachment or
otherwise, such action or claim will be treated as an election to withdraw funds
in accordance with Section 14.
18. Termination of Employment. Upon termination of employment for any
reason whatsoever, including but not limited to death or retirement, the balance
in the account of a participating employee shall be paid to the employee or his
estate.
19. Amendment or Discontinuance of the Plan. The Board shall have the
right to amend, modify, or terminate the Plan at any time without notice,
provided that no employee's existing rights under any offering already made
under Section 4 hereof may be adversely affected thereby, and provided further
that no such amendment of
<PAGE> 6
the Plan shall, except as provided in Section 20, increase above 10,000,000
shares the total number of shares to be offered unless shareholder approval is
obtained therefor.
20. Changes in Capitalization. In the event of reorganization,
recapitalization, stock split, stock dividend, combination of shares, merger,
consolidation, offerings of rights, or any other change in the structure of the
common shares of the Company, the Board may make such adjustment, if any, as it
may deem appropriate in the number, kind, and the price of shares available for
purchase under the Plan, and in the number of shares which an employee is
entitled to purchase.
21. Share Ownership. Notwithstanding anything herein to the contrary,
no employee shall be permitted to subscribe for any shares under the Plan if
such employee, immediately after such subscription, owns shares (including all
shares which may be purchased under outstanding subscriptions under the Plan)
possessing 5% or more of the total combined voting power or value of all classes
of shares of the Company or of its parent or subsidiary corporations. For the
foregoing purposes the rules of Section 425(d) of the Internal Revenue Code of
1986 shall apply in determining share ownership. In addition, no employee shall
be allowed to subscribe for any shares under the Plan which permits his rights
to purchase shares under all "employee stock purchase plans" of the Company and
its subsidiary corporations to accrue at a rate which exceeds $25,000 of the
fair market value of such shares (determined at the time such right to subscribe
is granted) for each calendar year in which such right to subscribe is
outstanding at any time.
22. Administration. The Plan shall be administered by the Board. The
Board may delegate any or all of its authority hereunder to such committee of
the Board or officer of the Company as it may designate. The administrator shall
be vested with full authority to make, administer, and interpret such rules and
regulations as it deems necessary to administer the Plan, and any determination,
decision, or action of the administrator in connection with the construction,
interpretation, administration, or application of the Plan shall be final,
conclusive, and binding upon all participants and any and all persons claiming
under or through any participant.
23. Notices. All notices or other communications by a participant to
the Company under or in connection with the Plan shall be deemed to have been
duly given when received by Shareholder Services of the Company or when received
in the form specified by the Company at the location, or by the person,
designated by the Company for the receipt thereof.
24. Termination of the Plan. This Plan shall terminate at the
earliest of the following:
24.1 December 31, 2002;
<PAGE> 7
24.2 The date of the filing of a Statement of Intent to Dissolve
by the Company or the effective date of a merger or consolidation wherein the
Company is not to be the surviving corporation, which merger or consolidation is
not between or among corporations related to the Company. Prior to the
occurrence of either of such events, on such date as the Company may determine,
the Company may permit a participating employee to exercise the option to
purchase shares for as many full shares as the balance of his account will allow
at the price set forth in accordance with Section 5. If the employee elects to
purchase shares, the remaining balance of his account will be refunded to him
after such purchase.
24.3 The date the Board acts to terminate the Plan in accordance
with Section 19 above.
24.3 The date when all shares reserved under the Plan have
been purchased.
25. Limitations on Sale of Stock Purchased Under the Plan. The Plan is
intended to provide common stock for investment and not for resale. The Company
does not, however, intend to restrict or influence any employee in the conduct
of his own affairs. An employee, therefore, may sell stock purchased under the
Plan at any time he chooses, subject to compliance with any applicable Federal
or state securities laws. THE EMPLOYEE ASSUMES THE RISK OF ANY MARKET
FLUCTUATIONS IN THE PRICE OF THE STOCK.
26. Governmental Regulation. The Company's obligation to sell and
deliver shares of the Company's common stock under this Plan is subject to the
approval of any governmental authority required in connection with the
authorization, issuance, or sale of such shares.
<PAGE> 1
EXHIBIT 5
OPINION OF COUNSEL REGARDING LEGALITY AND CONSENT OF COUNSEL
{LETTERHEAD OF PRESTON GATES & ELLIS}
November 21, 1996
Microsoft Corporation
One Microsoft Way
Redmond, Washington 98052-6399
Re: Microsoft Corporation 1997 Employee Stock Purchase Plan
Ladies and Gentlemen:
We have acted as counsel to Microsoft Corporation (the "Company") in
connection with the registration with the Securities and Exchange Commission on
Form S-8 of shares of Microsoft's common stock, without par value (the
"Shares"), which will be issuable upon exercise of options granted under the
above-referenced plan (the "Plan"). In connection with that registration, we
have reviewed the proceedings of the Board of Directors of Microsoft relating to
the registration and proposed issuance of the common stock, the Articles of
Incorporation of Microsoft and all amendments thereto, the Bylaws of Microsoft
and all amendments thereto, and such other documents and matters as we have
deemed necessary to the rendering of the following opinion.
Based upon that review, it is our opinion that the Shares, when issued
in conformance with the terms and conditions of the Plan, will be legally
issued, fully paid, and nonassessable under the Washington Business Corporation
Act.
We do not find it necessary for the purposes of this opinion to cover,
and accordingly we express no opinion as to, the application of the securities
or blue sky laws of the various states as to the issuance and sale of the
Shares.
We consent to the use of this opinion in the registration statement
filed with the Securities and Exchange Commission in connection with the
registration of the Shares and to the reference to our firm under the heading
"Interests of Named Experts and Counsel" in the registration statement.
Very truly yours,
PRESTON GATES & ELLIS
By /s/ RICHARD B. DODD
-----------------------
Richard B. Dodd
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
Microsoft Corporation:
We consent to the incorporation by reference in this Registration Statement of
Microsoft Corporation on Form S-8 of our report dated July 22, 1996 appearing
in and incorporated by reference in the Annual Report on Form 10-K of Microsoft
Corporation for the year ended June 30, 1996.
Deloitte & Touche LLP
Seattle, Washington
November 19, 1996
