form_s-8.htm
As
filed with the Securities and Exchange Commission on June 22,
2007
Registration
No. 333-
United
States
Securities
and Exchange Commission
Washington,
D.C. 20549
_________________
FORM
S-8
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
_________________
COSTAR
GROUP, INC.
(Exact
name of registrant as specified in its charter)
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(State
or other jurisdiction of
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(I.R.S.
Employer
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incorporation
or organization)
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Identification
No.)
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__________________
2
Bethesda Metro Center
Bethesda,
Maryland 20814
(Address,
including zip code, of principal executive offices)
CoStar
Group, Inc.
2007
Stock Incentive Plan
(Full
Title of the Plan)
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Andrew
C. Florance
CEO
and President
CoStar
Group, Inc.
2
Bethesda Metro Center
Bethesda,
Maryland 20814
(301)
215-8300
Fax: (301)
941-8144
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Jonathan
Coleman, Esq.
General
Counsel
CoStar
Group, Inc.
2
Bethesda Metro Center
Bethesda,
Maryland 20814
(301)
215-8300
Fax: (301)
718-2444
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(Name,
address, and telephone number, including area code, of agent for
service)
_________________
CALCULATION
OF REGISTRATION FEE
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Title
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
(2)
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Common
Stock
$.01
par value
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3,170,000
shares
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$51.86
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$164,396,200
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$5,047
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(1) Pursuant
to Rule 416 under the Securities Act of 1933, as amended, this Registration
Statement also covers an indeterminate number of additional shares as may be
issued under the CoStar Group, Inc. 2007 Stock Incentive Plan, as amended,
as a
result of adjustments to the number of outstanding shares of Common Stock by
reason of any recapitalization, stock split, stock dividend or similar
transaction.
(2)
Pursuant to Rules 457(c) and (h)(1) under the Securities Act of 1933, as
amended, the Registrant has computed the maximum offering price for the
3,170,000 shares to be registered solely for the purpose of computing the
registration fee by reference to the average of the high and low sale prices
for
the Registrant’s Common Stock as quoted on the Nasdaq Global Select Market on
June 20, 2007.
PART
I. INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
Omitted
in accordance with Rule 428 under the Securities Act of 1933, as amended, and
the Introductory Note to Part I of Form S-8.
PART
II. INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
This
Registration Statement on Form S-8
is filed by Costar Group, Inc., a Delaware corporation (the “Registrant” or the
“Company”), relating to 3,170,000 shares of the Company’s Common Stock, par
value $0.01 per share (the “Common Stock”), issuable under the CoStar Group,
Inc. 2007 Stock Incentive Plan, as amended (the “2007 Plan”). The Company is
registering 3,170,000 shares on this Form S-8 because the 2007 Plan authorizes
the issuance of 1,000,000 shares, plus: (i) 121,894 shares, representing the
number of shares available as of June 7, 2007 for issuance in connection with
future awards under the CoStar Group, Inc. 1998 Stock Incentive Plan (the “Prior
Plan”), (ii) shares received upon the cancellation, expiration or forfeiture of
awards issued under the 2007 Plan or the Prior Plan, currently estimated to
be
up to 1,484,133 shares and (iii) shares received by the Company as the result
of
the exchange of shares by a participant in the 2007 Plan as full or partial
payment of the exercise price and/or tax withholding with respect to awards
issued under the 2007 Plan, currently estimated to be up to 563,973
shares.
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Item
3.
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Incorporation
of Documents by Reference.
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The
following documents previously
filed with the Securities and Exchange Commission (the “Commission”) are hereby
incorporated by reference into this registration statement:
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1.
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The
Registrant’s Annual Report on Form 10-K for its fiscal year ended December
31, 2006, filed with the Commission on February 28,
2007.
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2.
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The
Registrant’s Quarterly Report on Form 10-Q for the three months ended
March 31, 2007, filed on May 10,
2007.
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3.
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The
Registrant’s Current Reports on Form 8-K filed on January 8, 2007,
February 22, 2007, February 27, 2007, March 13, 2007, April 26, 2007,
June
6, 2007, June 13, 2007, and June 22, 2007 and Form 8-K/A filed on
April
26, 2007.
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4.
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The
description of the common stock, $0.01 par value per share, of the
Registrant (the “Common Stock”), contained in the Registrant’s
Registration Statement on Form 8-A filed with the Securities and
Exchange
Commission on June 25, 1998, which incorporates by reference the
description of the Common Stock contained in the Registration Statement
on
Form S-1 (No. 333-47953) (originally filed on March 13, 1998), as
amended,
together with all amendments and reports filed with the Commission
for the
purposes of updating such description.
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All
reports and other documents that
the Registrant subsequently files with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment indicating that all securities offered under this
Registration Statement have been sold or that deregisters all such securities
then remaining unsold, shall be deemed to be incorporated by reference into
this
Registration Statement and to be part hereof from the date of filing of such
report or document. Any statement contained herein or in a document
incorporated or deemed to be incorporated herein by reference 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 subsequently filed document
which also is, or is deemed to be, incorporated by reference herein modifies
or
supersedes such prior 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. The Registrant’s
Exchange Act file number with the Commission is 000-24531.
Item
4. Description
of Securities.
Not
applicable.
Item
5. Interest
of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification
of Directors and Officers.
Section 145
of the Delaware
General Corporation Law (the “DGCL”) provides for, among other
things:
(a) permissive
indemnification for
expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by designated persons, including directors, officers,
employees and agents of a corporation, in the event such persons are parties
to
litigation other than stockholder derivative actions if certain conditions
are
met;
(b) permissive
indemnification for
expenses actually and reasonably incurred by designated persons, including
directors, officers, employees and agents of a corporation, in the event such
persons are parties to stockholder derivative actions if certain conditions
are
met;
(c) mandatory
indemnification for
expenses actually and reasonably incurred by designated persons, including
directors and officers of a corporation, in the event such persons are
successful on the merits or otherwise in litigation covered by (a) and
(b) above; and
(d) that
the indemnification
provided for by Section 145 shall not be deemed exclusive of any other
rights which may be provided under any bylaw, agreement, stockholder or
disinterested director vote, or otherwise.
CoStar
Group, Inc.’s (“CoStar’s”)
restated certificate of incorporation provides that a director shall not be
personally liable to CoStar or its stockholders for monetary damages for breach
of fiduciary duty as a director except for liability (1) for any breach of
the director’s duty of loyalty to CoStar or its stockholders, (2) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (3) for paying a dividend or approving a stock repurchase
or redemption in violation of Section 174 of the DGCL or (4) for any
transaction from which the director derived an improper personal benefit. The
certificate of incorporation also provides that CoStar shall indemnify each
director and officer to the fullest extent permitted by Section 145 of the
DGCL
for all expenses, liabilities and other matters referenced in that Section.
Such
indemnification is not exclusive of any other rights to which such persons
may
be entitled under any bylaw, agreement, vote of stockholders, vote of
disinterested directors or otherwise.
CoStar’s
amended and restated bylaws
provide that each person who was or is made a party to, or is involved in,
any
action, suit or proceeding by reason of the fact that he or she is or was a
director or officer of CoStar (or was serving at the request of CoStar as a
director, officer, employee or agent for another entity) shall be, and employees
and agents may be, indemnified by CoStar, to the fullest extent authorized
by
the DGCL, against all expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred by the person or on his or her behalf in
connection therewith, if the person acted in good faith and in a manner he
or
she reasonably believed to be not opposed to the best interests of CoStar and,
in criminal matters, if the person had no reasonable cause to believe his or
her
conduct was unlawful. When the action, suit or proceeding is brought in favor
of
CoStar, such indemnification rights extend only to expenses, and no
indemnification rights apply to any adjudged liability of the person to CoStar
unless the applicable court determines that the person is fairly and reasonably
entitled to such indemnification. The amended and restated bylaws further
provide that such indemnification rights are contract rights, and indemnified
directors and officers shall have the right to be paid by CoStar for the
expenses incurred in defending the proceedings specified above, in advance
of
their final disposition, upon receipt from the indemnified person of an
undertaking to repay all amounts so advanced if it shall ultimately be
determined that the person is not entitled to be indemnified. Such expenses,
including attorneys’ fees, may be paid with respect to indemnified employees and
agents, as the board of directors deems appropriate. The amended and restated
bylaws provide that the right to indemnification and to the advance payment
of
expenses shall not be exclusive of any other right which any person may have
or
acquire under any agreement, statute, provision of CoStar’s restated bylaws,
certificate of incorporation, or otherwise.
CoStar
has entered into indemnification
agreements with each of its directors and certain of its officers, which clarify
and enhance the rights and obligations of CoStar and those directors and
officers with respect to indemnification of such persons. The
agreements provide, among other things, that, subject to certain enumerated
exceptions, CoStar shall indemnify to the fullest extent permitted by the DGCL
each director and officer who is a party to the agreements and who is, or is
threatened to be, made a party to any action, suit, investigation or proceeding
by reason of the fact that he or she is, was or has agreed to become a director,
officer, employee or agent of CoStar or its subsidiaries (or is or was serving,
or has agreed to serve, at the request of
CoStar
as
a director, officer, employee, partner, agent or fiduciary of another entity)
for all costs, damages, losses, judgments, penalties and other expenses actually
and reasonably incurred by the indemnified person in connection with any such
action, suit investigation or proceeding and for any taxes imposed on such
person as a result of payments under the indemnification agreements, provided,
that the indemnified person acted in good faith and in a manner reasonably
believed to be in or not opposed to the best interests of CoStar and, with
respect to any criminal proceeding, had no reasonable cause to believe his
or
her conduct was unlawful. Indemnified parties are presumed to be
entitled to indemnification under the agreements and indemnification shall
be
made by CoStar unless a determination is made, in accordance with the
agreements, that indemnification is not proper. Further, if the
indemnified party is successful in defense of any action, suit or proceeding
or
in defense of a claim, then he or she shall be indemnified against all expenses
in connection therewith (notwithstanding the enumerated exceptions) and may
be
indemnified for some or a portion of the expenses actually and reasonably
incurred if he or she is only entitled to indemnification of that
portion. Pursuant to the indemnification agreements, indemnified
persons are entitled to advancement of expenses, and, in connection therewith,
each such person undertakes to reimburse those amounts if he or she is not
entitled to indemnification of such expenses. Indemnification rights
provided under the indemnification agreements are not exclusive of any other
rights to which the indemnified persons may be entitled under CoStar’s bylaws or
other organizational documents, vote of stockholders or disinterested directors,
provision of law, agreement or otherwise.
Pursuant
to CoStar’s restated
certificate of incorporation and Section 145 of the DGCL, CoStar may also
purchase and maintain insurance on behalf of any director, officer, employee
or
agent of the corporation to the extent permitted by Section 145 of the
DGCL. Pursuant to the indemnification agreements described above, if
CoStar obtains insurance for itself or its officers or directors, it also has
an
obligation to provide coverage for the directors and officers who are parties
to
those agreements to the same extent as any other director of officer of the
corporation.
Item
7. Exemption
From Registration Claimed.
Not
applicable.
Exhibit
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4.1
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Restated
Certificate of Incorporation (Incorporated by reference to Exhibit
3.1 to
Amendment No. 4 to the Registration Statement on Form S-1 of the
Registrant (No. 333-47953) filed with the Commission on March 13,
1998
(the “1998 Form S-1”)).
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4.2
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Certificate
of Amendment of Restated Certificate of Incorporation (Incorporated
by
reference to Exhibit 3.1 to the Quarterly Report for the Period
Ended June
30, 1999 on Form 10-Q, filed with the Commission on August 11,
1999).
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4.3
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Amended
and Restated By-Laws (Incorporated by reference to Exhibit 3.2
to the 1998
Form S-1).
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4.4
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Specimen
Common Stock Certificate (Incorporated by reference to Exhibit
4.1 to the
Registrant’s Annual Report on Form 10-K for the year ended December 31,
1999).
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4.5*
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CoStar
Group, Inc. 2007 Stock Incentive Plan, as
amended.
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5.1*
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Opinion
of Gibson, Dunn & Crutcher LLP.
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23.1*
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Consent
of Independent Registered Public Accounting
Firm.
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23.2*
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Consent
of Gibson, Dunn & Crutcher LLP (Contained in Exhibit
5.1).
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24.1*
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Powers
of Attorney (Included in the Signature Pages to the Registration
Statement).
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________________
*
Filed
herewith
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 of
1933;
(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. 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 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 the Registration Statement or any material change to
such information in the Registration Statement;
Provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission
by
the Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this 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 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to 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
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 of 1933
may
be permitted to directors, officers and controlling persons of the Registrant
pursuant to the provisions set forth in Item 6 of this Registration Statement,
or otherwise, the Registrant has been advised that in the opinion of the
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 Bethesda, State of Maryland, on June 22,
2007.
COSTAR
GROUP,
INC.
By: /s/
Andrew C.
Florance
Andrew
C.
Florance
Chief
Executive Officer and
President
KNOW
ALL
PERSONS BY THESE PRESENTS, that each individual whose signature appears below
constitutes and appoints Andrew C. Florance and Brian J. Radecki, and each
of
them, his true and lawful attorneys-in-fact and agents, each acting alone,
with
full powers of
substitution and resubstitution, for him and in his name, place and stead,
in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement, and to file the same, with all
exhibits thereto and all other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, 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 might or could be done in
person, hereby ratifying and confirming all that
said
attorneys-in-fact and agents, each acting alone, or any of them, or his or
their
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration
Statement has been signed by the following persons in the capacities and on
the
dates indicated.
SIGNATURE CAPACITY DATE
/s/
Michael R. Klein Chairman
of the Board
June
21,
2007
Michael
R. Klein
/s/
Andrew C. Florance Chief
Executive Officer, June
22,
2007
Andrew
C.
Florance
President, and a Director
(Principal
Executive Officer)
/s/
Brian J. Radecki Chief
Financial Officer
June 22, 2007
Brian
J.
Radecki (Principal
Financial
Officer)
/s/
David Bonderman Director
June 21, 2007
David
Bonderman
/s/
Warren H.
Haber
Director June
21, 2007
Warren
H.
Haber
/s/
Josiah O. Low,
III
Director
June 21, 2007
Josiah
O.
Low, III
/s/
Christopher J.
Nassetta Director
June
21,
2007
Christopher
J. Nassetta
/s/
Catherine B.
Reynolds Director
June 21, 2007
Catherine
B. Reynolds
INDEX
TO EXHIBITS
Exhibit
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4.1
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Restated
Certificate of Incorporation (Incorporated by reference to Exhibit
3.1 to
Amendment No. 4 to the Registration Statement on Form S-1 of the
Registrant (No. 333-47953) filed with the Commission on March 13,
1998
(the “1998 Form S-1”)).
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4.2
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Certificate
of Amendment of Restated Certificate of Incorporation (Incorporated
by
reference to Exhibit 3.1 to the Quarterly Report for the Period Ended
June
30, 1999 on Form 10-Q, filed with the Commission on August 11,
1999).
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4.3
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Amended
and Restated By-Laws (Incorporated by reference to Exhibit 3.2 to
the 1998
Form S-1).
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4.4
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Specimen
Common Stock Certificate (Incorporated by reference to Exhibit 4.1
to the
Registrant’s Annual Report on Form 10-K for the year ended December 31,
1999).
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4.5*
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CoStar
Group, Inc. 2007 Stock Incentive Plan, as
amended.
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5.1*
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—
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Opinion
of Gibson, Dunn & Crutcher LLP.
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23.1*
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—
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Consent
of Independent Registered Public Accounting
Firm.
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23.2*
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—
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Consent
of Gibson, Dunn & Crutcher LLP (Contained in Exhibit
5.1).
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24.1*
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—
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Powers
of Attorney (Included in the Signature Pages to the Registration
Statement).
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________________
*
Filed
herewith