<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 10, 1998
================================================================================
SECURITIES AND EXCHANGE COMMISSION
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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
(425) 882-8080
- --------------------------------------------------------------------------------
(Address, including zip code, and telephone
number including area code, of registrant's principal
executive office)
________________________________________
Robert A. Eshelman
General Counsel
One Microsoft Way
Redmond, Washington 98052-6399
(425) 882-8080
- --------------------------------------------------------------------------------
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
________________________________________
Copies of all communications to:
Richard B. Dodd
Sophie Hager Hume
Preston Gates & Ellis LLP
5000 Columbia Center
701 Fifth Avenue
Seattle, Washington 98104-7078
________________________________________
===============================================================================
<PAGE>
Approximate date of commencement of proposed sale to the public: At such
time or times after the effective date of this Registration Statement as the
Selling Shareholders shall determine.
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: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under he Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
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.
CALCULATION OF REGISTRATION FEE
<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*
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<S> <C> <C> <C> <C>
Common Shares
par value
$.000025 2,769,148 shares $156.69 $433,897,800 $128,000
</TABLE>
*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 February 6, 1998, as reported on the Nasdaq Stock Market.
The Index to Exhibits is located at Page II-4.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
AVAILABLE INFORMATION..................................................... 2
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE......................... 2
THE COMPANY............................................................... 3
USE OF PROCEEDS........................................................... 3
SELLING SHAREHOLDERS...................................................... 3
PLAN OF DISTRIBUTION...................................................... 3
LEGAL MATTERS............................................................. 4
EXPERTS................................................................... 4
OTHER INFORMATION......................................................... 4
INFORMATION NOT REQUIRED IN PROSPECTUS.................................... II-1
SIGNATURES................................................................ II-3
INDEX TO EXHIBITS......................................................... II-4
</TABLE>
<PAGE>
PROSPECTUS
----------
MICROSOFT CORPORATION
2,769,148 Common Shares
Par Value of $.000025 Per Share
________________________________________
This Prospectus relates to up to 2,769,148 shares of common stock (the
"Common Shares") of Microsoft Corporation, a Washington corporation
("Microsoft"), which may be offered from time to time by the selling
shareholders named herein (the "Selling Shareholders"). Microsoft will not
receive any of the proceeds from the sale of the Common Shares. Microsoft will
bear the costs relating to the registration of the Common Shares estimated to be
approximately $145,000.
The Common Shares are registered as a result of (i) the merger of MicroHM,
Inc., a wholly owned Washington subsidiary of Microsoft ("Sub"), with and into
Hotmail Corporation ("Hotmail"), a California corporation; and (ii) the merger
of Microflash, Inc., a Delaware corporation and wholly owned subsidiary of
Microsoft, with and into Flash Communications, Inc., a Delaware corporation
("Flash") (collectively, the "Mergers"). Pursuant to the Mergers, Microsoft
agreed to register the Common Shares received by the Selling Shareholders in
connection with the Mergers. In agreements related to the Mergers, each Selling
Shareholder entered into an investment agreement with Microsoft (the "Investment
Agreement").
The Common Shares are traded on the Nasdaq Stock Market under the symbol
MSFT. The average of the high and low prices of the Common Shares as reported
on the Nasdaq Stock Market on February 6, 1998 was $156.69 per Common Share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
________________________________________
The date of this Prospectus is February 10, 1998.
All of the securities to be registered hereby are to be offered for the
account of security holders.
<PAGE>
AVAILABLE INFORMATION
Microsoft is subject to the reporting requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and files reports and other
information with the Securities and Exchange Commission (the "Commission") in
accordance therewith. Such reports, proxy statements, and other information
filed by Microsoft are available for inspection and copying at the public
reference facilities of the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the Commission's Regional Offices located at 7 World Trade
Center, Suite 1300, New York, New York 10048, and at Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of such
material may be obtained by mail from the Public Reference Section of the
Commission at 450 Fifth St., N.W., Washington, D.C. 20549, at prescribed rates.
The Commission maintains a World Wide Web site on the Internet at
http://www.sec.gov that contains reports, proxy and information statements and
other information regarding registrants, including Microsoft, that file
electronically with the Commission. The Common Shares are traded as "National
Market Securities" on the Nasdaq National Market. Material filed by Microsoft
can be inspected at the offices of the National Association of Securities
Dealers, Inc., Reports Section, 1735 K Street, N.W., Washington, D.C. 20006.
________________________________________
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by Microsoft with the Commission are
incorporated by reference in this Prospectus:
1. Microsoft's Annual Report on Form 10-K for the year ended June 30,
1997.
2. Microsoft's Proxy Statement dated September 26, 1997.
3. Microsoft's Quarterly Report on Form 10-Q for the period ended
September 30, 1997.
4. The description of the Common Stock of Microsoft which is contained
in the registration statement of Microsoft filed on Form S-3, dated
December 13, 1996.
All documents filed by Microsoft pursuant to Sections 13(a), 13(c),
14, or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Common Shares offered hereby
shall be deemed to be incorporated by reference into this Prospectus and to be a
part hereof.
Microsoft hereby undertakes to provide without charge to each person
to whom this Prospectus has been delivered, upon the written or oral request of
any such person, a copy of any and all of the foregoing documents incorporated
herein by reference (other than exhibits to such documents which are not
specifically incorporated by reference into the information that this Prospectus
incorporates). Written or telephone requests should be directed to Investor
Relations Department, Microsoft Corporation, One Microsoft Way, Redmond,
Washington 98052-6399, telephone number (425) 882-8080.
No dealer, salesman, or any other person has been authorized to give
any information or to make any representation not contained in this Prospectus,
and, if given or made, such information and representation must not be relied
upon as having been authorized by Microsoft. This Prospectus does not
constitute an offer to sell or a solicitation of an offer to buy any of the
securities offered hereby in any state to any person to whom it is unlawful to
make such offer in such state. Neither the delivery of this Prospectus nor any
sales made hereunder shall, under any circumstances, create any implication that
there has been no change in the affairs of Microsoft since the date hereof.
________________________________________
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<PAGE>
This Prospectus constitutes a part of a Registration Statement which
Microsoft has filed with the Commission under the 1933 Act, with respect to the
Common Shares. This Prospectus omits certain of the information contained in
the Registration Statement, and reference is hereby made to the Registration
Statement and related Exhibits thereto for further information with respect to
Microsoft and the securities offered hereby. Such additional information can be
obtained from the Commission's office in Washington, D.C. Any statements
contained herein concerning the provisions of any documents are not necessarily
complete, and, in each instance, reference is made to the copy of such document
filed as an exhibit to the Registration Statement or otherwise filed with the
Commission. Each such statement is qualified in its entirety by such reference.
THE COMPANY
Microsoft was founded as a partnership in 1975 and incorporated in
1981. Microsoft develops, manufactures, licenses, sells, and supports a wide
range of software products, including operating systems for personal computers
("PCs") and servers; server applications for client/server environments;
business and consumer productivity applications; software development tools; and
Internet and intranet software and technologies. Microsoft has recently
expanded its interactive content efforts, including MSN(TM), The Microsoft
Network online service, various Internet-based services, and entertainment and
information software programs. Microsoft also sells personal computer books and
input devices and researches and develops advanced technologies for future
software products. Microsoft's business strategy emphasizes the development of a
broad line of PC and server software products for business and personal use,
marketed through multiple channels of distribution.
Microsoft is a Washington corporation and its principal executive offices
are located at One Microsoft Way, Redmond, Washington 98052-6399, its telephone
number is (425) 882-8080 and its electronic mail address is [email protected].
USE OF PROCEEDS
Microsoft will not receive any proceeds from the sale of the Common
Shares offered hereby; nor will such proceeds be available for Microsoft's use
or benefit.
SELLING SHAREHOLDERS
All of the Common Shares described in this Prospectus will be owned
immediately after registration by all of the former shareholders of Hotmail and
all of the former shareholders of Flash (the "Selling Shareholders"). All of
the shares offered by the Selling Shareholders were acquired in connection with
the Mergers. Such shares do not exceed one percent (1%) of Microsoft's
outstanding capitalization. None of the Selling Shareholders has a material
relationship with Microsoft, except that certain Selling Shareholders are or
will be non-officer employees of Hotmail, Flash or Microsoft.
PLAN OF DISTRIBUTION
Microsoft has been advised by each Selling Shareholder that, subject
to the terms of the Investment Agreement, each Selling Shareholder expects to
offer his, her or its Common Shares to or through brokers and dealers and
underwriters to be selected by the Selling Shareholder from time to time. In
addition, the Common Shares may be offered for sale through the Nasdaq Stock
Market, in the over-the-counter market, through a market maker, in one or more
private transactions, or a combination of such methods of sale, at prices and on
terms then prevailing, at prices related to such prices, or at negotiated
prices. Each Selling Shareholder may pledge all or a portion of the Common
Shares owned by him, her or it as collateral in loan transactions. Upon default
by any such Selling Shareholder, the pledgee in such loan transaction would have
the same rights of sale as such Selling Shareholder under this Prospectus. Each
Selling Shareholder also may enter into exchange traded listed option
transactions which require the delivery of the Common Shares listed hereunder.
Subject to the terms of the Investment Agreement, each Selling Shareholder may
also transfer Common Shares owned by him, her or it in other ways not involving
market makers or established trading markets, including directly by gift,
distribution, or other transfer without consideration, and upon any such
transfer the transferee would have the same rights of sale
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<PAGE>
as such Selling Shareholder under this Prospectus. In addition, any securities
covered by this Prospectus which qualify for sale pursuant to Rule 144 of the
Securities Act of 1933, as amended (the "1933 Act"), may be sold under Rule 144
rather than pursuant to this Prospectus. Finally, each Selling Shareholder and
any brokers and dealers through whom sales of the Common Shares are made may be
deemed to be "underwriters" within the meaning of the 1933 Act, and the
commissions or discounts and other compensation paid to such persons may be
regarded as underwriters' compensation.
LEGAL MATTERS
The validity of the Common Shares offered hereby will be passed upon
for Microsoft by Preston Gates & Ellis LLP, 5000 Columbia Center, 701 Fifth
Avenue, Seattle, Washington 98104. As of the date hereof, attorneys in Preston
Gates & Ellis LLP who have worked on substantive matters for Microsoft own less
than 250,000 Common Shares.
EXPERTS
The consolidated financial statements of Microsoft for each of the
three years in the period ended June 30, 1997, incorporated by reference in this
Prospectus from Microsoft's Annual Report on Form 10-K, have been audited by
Deloitte & Touche LLP, independent public accountants, as stated in their report
which is incorporated herein by reference, and have been so incorporated in
reliance upon such report given upon the authority of said firm as experts in
accounting and auditing.
OTHER INFORMATION
Microsoft revenue and net income for the month ended January 31, 1998 were
$1.22 billion and $403 million. This information includes one month of combined
operations with Hotmail, which merged in share for share exchange with Microsoft
on December 30, 1997. Such transaction has been accounted for as a pooling of
interests. This information is reported for purposes of complying with the
Securities and Exchange Commission's Accounting Series Release 135. In the
opinion of management, this information includes all adjustments (consisting
only of normal recurring items) necessary for its fair presentation. Interim
results are not necessarily indicative of the results of operations for
Microsoft's third quarter or entire year of fiscal 1998.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
- ------------------------------------------------------
The expenses relating to the registration of Shares will be borne by
the registrant. Such expenses are estimated to be as follows:
<TABLE>
<CAPTION>
<S> <C>
Registration Fee --
Securities and Exchange Commission $128,000
Accountants' Fees 5,000
Legal Fees 10,000
Miscellaneous 2,000
--------
$145,000
</TABLE>
Item 15. Indemnification of Directors and Officers.
- ---------------------------------------------------
Article XII of the Restated Articles of Incorporation of Microsoft
authorizes Microsoft to indemnify any present or former director or officer to
the fullest extent not prohibited by the WBCA, public policy or other applicable
law. Chapter 23B.8.510 and .570 of the WBCA 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.
The directors and officers of Microsoft are entitled to indemnification
by each of the Selling Shareholders against any cause of action, loss, claim,
damage, or liability to the extent it arises out of or is based upon the failure
of any Selling Shareholder (or his donees, legatees, or pledgees) and 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 or in conformity
with written information furnished to Microsoft by such Selling Shareholder or
such underwriter.
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 16. List of Exhibits.
- --------------------------
The Exhibits to this registration statement are listed in the Index to
Exhibits on page II-4.
Item 17. Undertakings.
- ----------------------
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
1933 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
II-1
<PAGE>
aggregate, represent a fundamental change in the information set forth in
this registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective 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 this registration statement;
provided, however, that 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 by Microsoft 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 liability under the 1933 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.
(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.
(4) For purposes of determining any liability under the 1933 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.
(5) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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
1933 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.
[Remainder of Page Intentionally Omitted]
II-2
<PAGE>
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 registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Redmond, State of Washington on February 10, 1998.
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 attorney-in-fact, for
him 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/ Gregory B. Maffei Vice President, Finance; Chief Financial February 10, 1998
- ---------------------------------- Officer (Principal Financial and
Gregory B. Maffei Accounting Officer)
/s/ William H. Gates III Chairman, Chief Executive Officer, February 10, 1998
- ---------------------------------- Director (Principal Executive Officer)
William H. Gates III
/s/ Paul G. Allen Director February 10, 1998
- ----------------------------------
Paul G. Allen
/s/ Jill E. Barad Director February 10, 1998
- ----------------------------------
Jill E. Barad
/s/ Richard A. Hackborn Director February 10, 1998
- ----------------------------------
Richard A. Hackborn
/s/ David F. Marquardt Director February 10, 1998
- ----------------------------------
David F. Marquardt
/s/ William G. Reed, Jr. Director February 10, 1998
- ----------------------------------
William G. Reed, Jr.
/s/ Jon A. Shirley Director February 10, 1998
- ----------------------------------
Jon A. Shirley
</TABLE>
II-3
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description Page or Footnote
- ----------- ----------- ----------------
<C> <S> <C>
5 Opinion of Counsel re: legality See attached.
23.1 Consent of Deloitte & Touche LLP as Independent Accountants See attached.
23.2 Consent of Preston Gates & Ellis LLP See footnote /(1)/
24 Power of Attorney See page II-3
</TABLE>
_____________________________
/1/ Contained within Exhibit 5
II-4
<PAGE>
Exhibit 5
OPINION OF PRESTON GATES & ELLIS LLP
February 10, 1998
Microsoft Corporation
One Microsoft Way
Redmond, WA 98052
Re: Registration Statement on Form S-3
----------------------------------
Ladies and Gentleman:
In connection with the registration of 2,769,148 shares of common stock,
par value $.000025 per share (the "Common Shares") of Microsoft Corporation (the
"Company") with the Securities and Exchange Commission on a Registration
Statement on Form S-3 (the "Registration Statement"), relating to the sales, if
any, of the Common Shares by the selling shareholders, we have examined such
documents, records and matters of law as we have considered relevant. Based upon
such examination and upon our familiarity as counsel for the Company with its
general affairs, it is our opinion that:
The Common Shares being registered are legally issued, fully paid, and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
PRESTON GATES & ELLIS LLP
By /s/ Richard B. Dodd
--------------------------
Richard B. Dodd
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement on
Form S-3 of Microsoft Corporation of our report dated July 17, 1997, (August 1,
1997, as to Acquisition Note) appearing in and incorporated by reference in the
Annual Report on Form 10-K of Microsoft Corporation for the year ended June 30,
1997, and to the reference to us under the heading "Experts" in the Prospectus,
which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
Seattle, Washington
February 10, 1998
