As
filed with the Securities and Exchange Commission on June 18, 2010
Registration
No. 333-______
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
_____________________
FORM
S-8
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
_____________________
MSCI
Inc.
(Exact
Name of Registrant as Specified in its Charter)
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Delaware
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13-4038723
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(State
or Other Jurisdiction of
Incorporation
or Organization)
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(I.R.S.
Employer
Identification
No.)
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88
Pine Street
New
York, NY 10005
(212)
804-3900
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(Address
of Principal Executive Offices)
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RISKMETRICS
GROUP, INC. 2007 OMNIBUS INCENTIVE
COMPENSATION
PLAN
(as
amended from time to time)
(Full
Titles of the Plan(s))
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Frederick
W. Bogdan
General
Counsel
MSCI
Inc.
88
Pine Street
New
York, NY 10005
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(Name
and Address of Agent for Service)
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(212)
804-3990
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(Telephone
Number, Including Area Code, of Agent for Service)
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With
a copy to:
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Jean
M. McLoughlin
Davis
Polk & Wardwell
450
Lexington Avenue
New
York, NY 10017
(212)
450-4000
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Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
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Large
accelerated filer x
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Non-accelerated
filer o
(Do not check if a smaller reporting
company)
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Smaller
reporting company o
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CALCULATION
OF REGISTRATION FEE
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Title
of Each Class of Securities to be Registered
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Amount
to Be Registered (1)
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Proposed
Maximum Offering Price Per Share(2)
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Proposed
Maximum Aggregate Offering Price(2)
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Amount
of Registration Fee(3)
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Class
A Common Stock, par value $0.01 per share, to be issued under the
RiskMetrics Group, Inc. 2007 Omnibus Incentive Compensation
Plan
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3,060,090
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$29.24
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$89,477,031.60
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$6,379.72
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(1)
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This
Registration Statement on Form S-8 (this “Registration Statement”) covers
shares of Class A Common Stock, par value $0.01 per share (“Common
Stock”), of MSCI Inc. (the “Company” or the “Registrant”) (i) to be issued
in the future under the RiskMetrics Group, Inc. 2007 Omnibus Incentive
Compensation Plan (the “Plan”) and (ii) pursuant to Rule 416(a) under the
Securities Act of 1933, as amended (the “Securities Act”), any additional
shares of Common Stock that become issuable under the Plan by reason of
any stock dividend, stock split, or other similar
transaction. These shares represent shares available for grant
under the Plan (assumed by the Registrant as a result of a merger
transaction), appropriately adjusted to reflect the terms of the merger
transaction.
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(2)
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Estimated
pursuant to Rule 457(c) and Rule 457(h) under the Securities Act, solely
for the purpose of computing the registration fee, based on the average of
the high and low prices reported for a share of Common Stock on the New
York Stock Exchange on June 11,
2010.
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(3)
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Rounded
up to the nearest penny.
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PART
I
The
information specified in Item 1 and Item 2 of Part I of Form S-8 is omitted from
this filing in accordance with the provisions of Rule 428 under the Securities
Act and the introductory note to Part I of the Form S-8
instructions. The documents containing the information specified in
Part I have been delivered to the participants in the Plan as required by Rule
428(b)(1).
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The
following documents are incorporated herein by reference:
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(a)
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The
Registrant’s Annual Report on Form 10-K for
the fiscal year ended November 30,
2009;
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(b)
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All
reports filed pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”) subsequent to the
filing of the form referred to in (a) above;
and
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(c)
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The
description of the Registrant’s capital stock contained in the
Registrant’s Registration Statement on Form S-4 (File No. 333-165888),
including any amendments or supplements
thereto.
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In
addition, all documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment to
this Registration Statement 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 in this Registration Statement and to be
a 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 purposes of
this Registration Statement to the extent that a statement contained herein, (or
in any other subsequently filed document which also is incorporated or 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.
Not
applicable.
Item
6. Indemnification of Directors and Officers.
The
following is only a general summary of certain aspects of Delaware law and
MSCI’s amended and restated certificate of incorporation and amended and
restated bylaws, referred to as the MSCI charter and MSCI bylaws, respectively,
related to indemnification of directors and officers, and does not purport to be
complete. It is qualified in its entirety by reference to the
detailed provisions of Sections 145 and 102(b)(7) of the General Corporation Law
of the State of Delaware, or the DGCL, Articles 8 and 9 of the MSCI charter and
Section 6.07 of the MSCI bylaws.
Section 145
of the DGCL generally provides that all directors and officers (as well as other
employees and individuals) may be indemnified by the corporation against
expenses (including attorneys’ fees), judgments, fines and amounts paid in
settlement in connection with certain specified actions, suits or proceedings,
whether civil,
criminal,
administrative or investigative (other than an action by or in the right of the
corporation, or a derivative action), if they acted in good faith and in a
manner they reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar standard of
care is applicable in the case of derivative actions, except that
indemnification extends only to expenses (including attorneys’ fees) incurred in
connection with defense or settlement of an action, and the DGCL requires court
approval before there can be any indemnification where the person seeking
indemnification has been found liable to the corporation. The MSCI charter and
MSCI bylaws provide that MSCI will indemnify to the fullest extent permitted by
the DGCL, and any other laws in effect, 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 by
reason of the fact that he or she or a person of whom he or she is the legal
representative, is or was a director or officer of MSCI or a director or officer
of a subsidiary of MSCI; provided that MSCI will indemnify such person in
connection with a proceeding (or part thereof) initiated by such person only if
such proceeding (or part thereof) was authorized by the board of directors or is
a proceeding to enforce such person’s claim to indemnification pursuant to the
rights granted in the MSCI charter and MSCI bylaws.
Section 145
of the DGCL also provides that the rights conferred thereby are not exclusive of
any other right to which any person may be entitled under any bylaw, agreement,
vote of stockholders or disinterested directors or otherwise, and permits a
corporation to advance expenses to or on behalf of a person entitled to be
indemnified upon receipt of an undertaking to repay the amounts advanced if it
is determined that the person is not entitled to be indemnified. The MSCI bylaws
provide that MSCI will advance expenses incurred by any person who may seek
indemnification under the MSCI bylaws in defending any threatened or pending
action, suit or proceeding in advance of its final disposition upon receipt of
an undertaking to repay such amounts (unless the MSCI board of directors waives
the requirement to the extent permitted by applicable law) if it is ultimately
determined that the indemnified person is not entitled to
indemnification.
The MSCI
charter and the MSCI bylaws provide that no amendment or repeal of the
provisions of the MSCI charter and the MSCI bylaws relating to indemnification
and the advancement of expenses, nor to the fullest extent permitted by
applicable law, any modification of law, will adversely affect any right or
protection existing at, or with respect to any events that occurred prior to,
such amendment, repeal or modification.
Section 102(b)(7)
of the DGCL permits a corporation to provide in its certificate of incorporation
that a director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except (i) for liability for any breach of the
director’s duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) for unlawful payments of dividends or
unlawful stock repurchases, redemptions or other distributions, or (iv) for
any transaction from which the director derived an improper personal benefit.
The MSCI charter provides that, to the fullest extent permitted by Delaware law,
no director will be liable to MSCI or its stockholders for monetary damages for
breach of fiduciary duty as a director. The MSCI charter additionally provides
that if the DGCL is amended to authorize corporate action further eliminating or
limiting the personal liability of directors, the liability of directors of MSCI
will be eliminated or limited to the fullest extent permitted by the DGCL, as
amended.
The
merger agreement dated as of February 28, 2010 among the Registrant, RiskMetrics
Group, Inc. (“RMG”) and Crossway, Inc., a wholly-owned subsidiary of the
Registrant (the “Merger Agreement”), pursuant to which Crossway, Inc. merged
with and into RMG (the “Merger”), provides that, for the later to occur of (i)
six years following the completion of the Merger and (ii) the expiration of any
statute of limitations applicable to any claim, action, suit, proceeding or
investigation with respect to an act or omission referred to below, RMG (as the
surviving corporation in the Merger) will (and the Registrant will cause RMG to)
indemnify and hold harmless, and provide advancement of expenses to, the present
and former officers and directors of RMG in respect of acts or omissions
occurring at or prior to the completion of the Merger to the fullest extent
permitted by DGCL or any other applicable law or provided under RMG certificate
of incorporation and bylaws in effect on the date of the Merger Agreement or
indemnification agreements with directors of RMG in effect on the date of the
Merger Agreement. MSCI and RMG have further agreed that, for a period
of six years after the completion of the Merger, the certificate of
incorporation
and
bylaws of RMG (as the surviving corporation in the Merger) will contain
provisions no less favorable with respect to indemnification, advancement of
expenses and exculpation of former or present directors and officers than are
set forth in the RMG certificate of incorporation and bylaws as of the date of
the Merger Agreement.
Section 145(g)
of the DGCL provides, in general, that a corporation may purchase or maintain
insurance on behalf of any person who 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 agents of any other enterprise, against any
liability asserted against, and incurred by, such person in any such capacity,
or arising out of such person’s status as such, whether or not the corporation
would have the power to indemnify such person against such liability under
Section 145 of the DGCL.
MSCI
maintains standard policies of insurance that insure directors and officers of
MSCI against liability asserted against such persons, whether or not such
directors or officers have the right to indemnification pursuant to the MSCI
charter, the MSCI bylaws or otherwise.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
See
Exhibit Index, which is incorporated herein by reference.
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:
(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 this 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 this 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
(a)(1)(i) and (a)(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 the Registrant pursuant to Section 13 or 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 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.
(b) 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 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 this
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.
(c) 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, as amended, 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 New York, State of New York, on the 18th day of June,
2010.
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MSCI
INC.
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By:
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/s/ Henry
A. Fernandez |
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Name:
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Henry
A. Fernandez
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Title:
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Chief
Executive Officer, President and Director
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Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration
Statement has been signed this 18th day of
June, 2010 by the following persons in the following
capacities.
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Signature
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Title
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Date
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June
18, 2010 |
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Henry
A. Fernandez
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Chief
Executive Officer, President and Director (Principal Executive
Officer)
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| * |
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June
18, 2010 |
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David
Obstler
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Chief
Financial Officer, (Principal Financial Officer and Principal Accounting
Officer)
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| * |
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June
18, 2010 |
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Benjamin
F. duPont
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Director
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June
18, 2010 |
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Alice
W. Handy
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Director
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June
18, 2010 |
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Catherine
Kinney
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Director
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June
18, 2010 |
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Linda
H. Riefler
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Director
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June
18, 2010 |
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George
W. Siguler
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Director
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June
18, 2010 |
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Scott
M. Sipprelle
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Director
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June
18, 2010 |
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Rodolphe
M. Vallee
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Director
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| Patrick
J. Tierney |
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Director
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* By:
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/s/ Gary Retelny |
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Gary
Retelny
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Attorney-in-Fact
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EXHIBIT
INDEX
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4.1
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Amended
and Restated Certificate of Incorporation of MSCI Inc. (incorporated
herein by reference to Exhibit 3.1 to MSCI Inc.’s Annual Report on Form
10-K for the year ended November 30, 2007)
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4.2
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Amended
and Restated By-laws of MSCI, Inc. (incorporated herein by reference to
Exhibit 3.2 to MSCI Inc.’s Annual Report on Form 10-K for the year ended
November 30, 2007)
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5
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Opinion
of Davis Polk & Wardwell
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23.1
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Consent
of Deloitte & Touche LLP, Independent Registered Public Accounting
Firm of MSCI Inc.
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23.2
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Consent
of Davis Polk & Wardwell (included in
Exhibit 5)
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24
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Powers
of Attorney
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99.1
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RiskMetrics
Group, Inc. 2007 Omnibus Incentive Compensation Plan (incorporated herein
by reference to Exhibit 99.4 to Post-Effective Amendment No. 1 on Form S-8
to Form S-4 filed June 3, 2010)
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