As filed with the Securities and Exchange Commission on July 17, 2001
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
MICROSTRATEGY INCORPORATED
(Exact name of registrant as specified in its charter)
DELAWARE 51-0323571
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1861 International Drive, McLean, Virginia 22102
(Address of Principal Executive Offices) (Zip Code)
AMENDED AND RESTATED
1999 STOCK OPTION PLAN
(Full title of the Plan)
Michael J. Saylor
Chairman of the Board of Directors and Chief Executive Officer
MicroStrategy Incorporated
1861 International Drive
McLean, Virginia 22102
(Name and address of agent for service)
(703) 848-8600
(Telephone number, including area code, of agent for service)
Copy to:
Thomas S. Ward, Esq.
Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109
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CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed Amount of
Title of securities Amount to be offering price maximum aggregate registration
to be registered registered per share(1) offering price(1) fee(2)
--------------------------- ----------------------- --------------------- --------------------- ------------------
Class A Common Stock,
$.001 par value per share 12,500,000 shares $3.17 $39,625,000 $9,906.25
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(1) Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457(c) and Rule 457(h) under the Securities Act of 1933, as
amended, based upon the average of the high and low prices reported on the
Nasdaq National Market for shares of the Class A Common Stock on July 11,
2001.
(2) Pursuant to Rule 457(p) of the Securities Act, the registrant hereby
offsets against the filing fee required in connection with this
registration statement a portion of the filing fee of $292,182 paid by the
registrant in connection with the Registration Statement on Form S-3 (File
No. 333-31042), filed by the registrant on February 24, 2000 and withdrawn
on March 22, 2000. Accordingly, no filing fee has been submitted herewith.
EXPLANATORY NOTE
In accordance with the instructional note to Part I of Form S-8, as
promulgated by the Securities and Exchange Commission, the information specified
in Part I of Form S-8 has been omitted from this Registration Statement on Form
S-8 for offers of class A common stock pursuant to the MicroStrategy
Incorporated Amended and Restated 1999 Stock Option Plan (the "Plan"). This
Registration Statement on Form S-8 hereby registers 12,500,000 additional shares
of class A common stock pursuant to the Plan. A Registration Statement on Form
S-8 (File No. 333-44844), registering an aggregate of 11,000,000 shares of class
A common stock (adjusted to reflect a two-for-one stock split effected in
January 2000 in the form of a common stock dividend) under the Plan was filed
with the Securities and Exchange Commission on August 30, 2000.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The registrant is subject to the informational and reporting requirements
of Sections 13(a), 14, and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and in accordance therewith files reports, proxy
statements and other information with the Securities and Exchange Commission
(the "Commission"). The following documents, which are on file with the
Commission, are incorporated in this registration statement by reference:
(a) The registrant's latest annual report filed pursuant to Section 13(a)
or 15(d) of the Exchange Act or the latest prospectus filed pursuant to Rule
424(b) under the Securities Act that contains audited financial statements for
the registrant's latest fiscal year for which such statements have been filed.
(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 the document referred
to in (a) above.
(c) The description of the securities contained in the registrant's
registration statement on Form 8-A filed under the Exchange Act, including any
amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment which indicates that all securities offered hereby 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 part
hereof from the date of the 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 the 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 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.
Hale and Dorr LLP has opined as to the legality of the securities being
offered by this registration statement.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102 of the Delaware General Corporation Law allows a corporation to
eliminate the personal liability of directors of a corporation to the
corporation or its stockholders for monetary damages for a breach of fiduciary
duty as a director, except where the director breached his duty of loyalty,
failed to act in good faith, engaged in intentional misconduct or knowingly
violated a law, authorized the payment of a dividend or approved a stock
repurchase in violation of Delaware corporate law or obtained an improper
personal benefit. MicroStrategy has included such a provision in its
Certificate of Incorporation.
Section 145 of the Delaware General Corporation Law provides that a
corporation has the power to indemnify a director, officer, employee or agent of
the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he is or is threatened to be
made a party by reason of such position, if such person shall have acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, in any criminal proceeding, if such person
had no reasonable cause to believe his conduct was unlawful; provided that, in
the case of actions brought by or in the right of the corporation, no
indemnification shall be made with respect to any matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the
extent that the adjudicating court determines that such indemnification is
proper under the circumstances.
MicroStrategy's certificate of incorporation provides that an officer or
director of MicroStrategy will not be personally liable to MicroStrategy 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
Delaware General Corporation Law. The provision has no effect on any non-
monetary remedies that may be available to MicroStrategy or its stockholders,
nor does it relieve MicroStrategy or its officers or directors from compliance
with federal or state securities laws. MicroStrategy's certificate of
incorporation also generally provides that MicroStrategy 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 by reason
of the fact that he is or was a director or officer of MicroStrategy, or is or
was serving at the request of MicroStrategy 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 MicroStrategy if 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 MicroStrategy, or with respect to any criminal action or
proceeding, the officer or director had reasonable cause to believe his conduct
was unlawful.
MicroStrategy has purchased directors' and officers' liability insurance
which would indemnify its directors and officers against damages arising out of
certain kinds of claims which might be made against them based on their
negligent acts or omissions while acting in their capacity as such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibit Index immediately preceding the exhibits is incorporated herein
by reference.
ITEM 9. UNDERTAKINGS.
1. 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 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;
and
(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 (i) and (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 the registration statement.
(2) That, for the purpose of determining any liability 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.
(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.
2. 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 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.
3. 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 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 McLean, Virginia, on July 17, 2001.
MICROSTRATEGY INCORPORATED
By: /s/ Michael J. Saylor
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Michael J. Saylor
Chairman of the Board of Directors and
Chief Executive Officer
POWER OF ATTORNEY AND SIGNATURES
Each person whose signature appears below constitutes and appoints Michael
J. Saylor, Sanju K. Bansal, Eric F. Brown, Jonathan F. Klein and Thomas S. Ward
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 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, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Michael J. Saylor Chairman of the Board July 17, 2001
--------------------- of Directors and Chief
Michael J. Saylor Executive Officer (Principal
Executive Officer)
/s/ Eric F. Brown President and Chief July 17, 2001
-------------------- Financial Officer (Principal
Eric F. Brown Financial and
Accounting Officer)
/s/ Sanju K. Bansal Director July 17, 2001
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Sanju K. Bansal
/s/ F. David Fowler Director July 17, 2001
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F. David Fowler
/s/ Frank A. Ingari Director July 17, 2001
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Frank A. Ingari
/s/ Jonathan J. Ledecky Director July 17, 2001
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Jonathan J. Ledecky
/s/ Stuart B. Ross Director July 17, 2001
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Stuart B. Ross
/s/ John W. Sidgmore Director July 17, 2001
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John W. Sidgmore
/s/ Ralph S. Terkowitz Director July 17, 2001
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Ralph S. Terkowitz
EXHIBIT INDEX
Exhibit
Number Description
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4.1 Amended and Restated Certificate of Incorporation of the
Registrant, as amended (Filed as Exhibit 3.1 to the Registrant's
Registration Statement on Form S-1, as amended (File No. 333-
49899) and incorporated by reference herein).
4.2 Certificate of Amendment to the Amended and Restated Certificate
of Incorporation of the Registrant (Filed as Exhibit 3.2 to the
Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended June 30, 2000 (File No. 000-24435) and incorporated
by reference herein).
4.3 Amended and Restated By-Laws of the Registrant (Filed as Exhibit
3.2 to the Registrant's Registration Statement on Form S-1, as
amended (File No. 333-49899) and incorporated by reference
herein).
5.1 Opinion of Hale and Dorr LLP
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney (included on the signature page of this
Registration Statement)