As filed with the Securities and Exchange Commission on November __, 1999
Registration No. __________________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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MICROMUSE INC.
(Exact name of registrant as specified in its charter)
Delaware 75-2649505
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
139 Townsend Street
San Francisco, California 94107
(Address of principal executive offices) (Zip Code)
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MICROMUSE INC.
1997 Stock Option/Stock Issuance Plan
1998 Non-Officer Stock Option/Stock Issuance Plan
1998 Employee Stock Purchase Plan
Stock Option Agreement for Greg Brown
Warrant Agreement to Purchase Stock for Heidrick & Struggles, Inc.
(Full title of the Plans)
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Gregory Q. Brown
Chairman and Chief Executive Officer
MICROMUSE INC.
139 Townsend Street
San Francisco, California 94107
(Name and address of agent for service)
(415) 538-9090
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of Proposed Maximum Proposed Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) per Share(2) Price(2) Fee
---------- ---------- --------- -------- ---
<S> <C> <C> <C> <C>
1997 Stock Option/Stock Issuance Plan
Options to purchase Common Stock 1,608,121 N/A N/A N/A
Common Stock (par value $.01) 1,608,121 shares $105.13 $169,061,760.70 $46,999.17
1998 Non-Officer Stock
Option/Stock Issuance Plan
Options to purchase Common Stock 600,000 N/A N/A N/A
Common Stock (par value $.01) 600,000 shares $105.13 $63,078,000 $17,535.68
1998 Employee Stock Purchase Plan
Rights to purchase Common Stock 160,000 N/A N/A N/A
Common Stock (par value $.01) 160,000 shares $105.13 $16,820,800 $4,676.18
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
Stock Option Agreement for Greg Brown
Options to purchase Common Stock 320,000 N/A N/A N/A
Common Stock (par value $.01) 320,000 shares $105.13 $33,641,600 $9,362.36
Warrant Agreement to Purchase Stock for
Heidrick & Struggles, Inc.
Rights to purchase Common Stock 26,667 N/A N/A N/A
Common Stock (par value $.01) 26,667 shares $105.13 $2,803,501.74 $779.37
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</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1997 Stock Option/Stock
Issuance Plan, 1998 Non-Officer Stock Option/Stock Issuance Plan, 1998
Employee Stock Purchase Plan, Stock Option Agreement for Greg Brown, and
the Warrant Agreement to Purchase Stock for Heindricks & Struggles, Inc.
by reason of any stock dividend, stock split, recapitalization or other
similar transaction effected without the receipt of consideration which
results in an increase in the number of the outstanding shares of Common
Stock of Micromuse Inc.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the average of high
and low prices per share of Common Stock of Micromuse Inc. on November 8,
1999.
<PAGE>
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
Micromuse Inc. (the "Registrant") hereby incorporates by reference into
this Registration Statement the following documents previously filed with
the Securities and Exchange Commission (the "SEC"):
(a) The Registrant's annual report on Form 10-K filed with the SEC on
December 29, 1998 for the fiscal year ended on September 30, 1998,
and any amendments thereto;
(b) The Registrant's quarterly report on Form 10-Q filed with the SEC on
August 5, 1999 for fiscal quarter ended on June 30, 1999, and any
amendments thereto;
(c) The Registrant's quarterly report on Form 10-Q filed with the SEC on
May 17, 1999 for fiscal quarter ended on March 31, 1999, and any
amendments thereto;
(d) The Registrant's quarterly report on Form 10-Q filed with the SEC on
February 11, 1999 for fiscal quarter ended on December 31, 1998, and
any amendments thereto; and
(e) The description of the Registrant's outstanding Common Stock
contained in the Registrant's Registration Statement No. 0-23783 on
Form 8-A filed with the SEC on February 12, 1998 pursuant to Section
12 of the Securities Exchange Act of 1934, as amended (the "1934
Act"), including any amendment or report filed for the purpose of
updating such description.
All reports and definitive proxy or information statements filed pursuant
to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of
this Registration Statement and 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 into this Registration Statement
and to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law authorizes a court to
award or a corporation's board of directors to grant indemnification to
directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933,
as amended (the "1933 Act"). Article IX, Section 1, of the Registrant's Bylaws
provides for mandatory indemnification of its directors and officers and
permissible indemnification of employees and other agents to the maximum extent
permitted by the Delaware General Corporation Law. The Registrant's Restated
Certificate of Incorporation provides that, pursuant to Delaware law, its
directors shall not be liable for monetary damages for breach of the directors'
fiduciary duty as directors to the Company and its stockholders. This provision
in the Restated Certificate of Incorporation does not eliminate the directors'
fiduciary duty, and in appropriate circumstances equitable remedies such as
injunctive or other forms of non-monetary relief will remain available under
Delaware law. In addition, each director will continue to be subject to
liability for breach of the director's duty of loyalty to the Company for acts
or omissions not in good faith or involving intentional misconduct, for knowing
violations of law, for actions leading to improper personal benefit to the
director, and for
<PAGE>
payment of dividends or approval of stock repurchases or redemptions that are
unlawful under Delaware law. The provision also does not affect a director's
responsibilities under any other law, such as the federal securities laws or
state or federal environmental laws. The Registrant has entered into
Indemnification Agreements with its officers and directors. The Indemnification
Agreements provide the Registrant's officers and directors with further
indemnification to the maximum extent permitted by the Delaware General
Corporation Law.
The Registrant's Bylaws provide that the Registrant shall indemnify its
directors and officers to the fullest extent permitted by Delaware law,
including in circumstances in which indemnification is otherwise discretionary
under Delaware law. The Registrant has also entered into indemnification
agreements with its officers and directors containing provisions that may
require the Company, among other things, to indemnify such officers and
directors against certain liabilities that may arise by reason of their status
or service as directors or officers (other than liabilities arising from willful
misconduct of a culpable nature), to advance their expenses incurred as a result
of any proceeding against them as to which they could be indemnified, and to
obtain directors' and officers' insurance if available on reasonable terms.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Exhibit Number Exhibit
- -------------- -------
4 Instruments Defining Rights of Stockholders. Reference is made
to Registrant's Registration Statement No. 0-23783 on Form
8-A, which is incorporated herein by reference pursuant to
Item 3(b) of this Registration Statement.
5 Opinion and consent of Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP.
23.1 Consent of KPMG LLP, Independent Accountants.
23.2 Consent of Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
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 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 aggregate, represent a fundamental
change in the information set forth in this Registration Statement and
(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 clauses (1)(i) and (1)(ii) shall 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 Section 15(d) of the 1934 Act that are
incorporated by reference into 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 and (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 Registrant's 1997 Stock
Option/Stock Issuance Plan, 1998 Non-Officer Stock Option/Stock Issuance
Plan, 1998 Employee Stock Purchase Plan, Stock Option Agreement for Greg
Brown, and/or Warrant
II-2
<PAGE>
Agreement to Purchase Stock for Heindrick & Struggles, Inc.
B. The undersigned Registrant hereby undertakes that, 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 1934 Act that is incorporated by reference into 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 1933
Act may be permitted to directors, officers or controlling persons of the
Registrant pursuant to the indemnification provisions summarized in Item 6
or otherwise, the Registrant has been advised that, in the opinion of the
SEC, 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 1933 Act and will be governed by the
final adjudication of such issue.
II-3
<PAGE>
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 San Francisco, State of California on this 8th
day of November, 1999.
MICROMUSE INC.
By: /s/ Gregory Q. Brown
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Gregory Q. Brown
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Micromuse Inc., a Delaware
corporation, do hereby constitute and appoint Gregory Q. Brown and Stephen A.
Allott, and either of them, the lawful attorneys-in-fact and agents with full
power and authority to do any and all acts and things and to execute any and all
instruments which said attorneys and agents, and either one of them, determine
may be necessary or advisable or required to enable said corporation to comply
with the Securities Act of 1933, as amended, and any rules or regulations or
requirements of the Securities and Exchange Commission in connection with this
Registration Statement. Without limiting the generality of the foregoing power
and authority, the powers granted include the power and authority to sign the
names of the undersigned officers and directors in the capacities indicated
below to this Registration Statement, to any and all amendments, both
pre-effective and post-effective, and supplements to this Registration
Statement, and to any and all instruments or documents filed as part of or in
conjunction with this Registration Statement or amendments or supplements
thereof, and either of the undersigned hereby ratifies and confirms all that
said attorneys and agents, or either one of them, shall do or cause to be done
by virtue hereof. This Power of Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Gregory Q. Brown Chairman and Chief Executive Officer November 8, 1999
- ----------------------- (Principal Executive Officer)
Gregory Q. Brown
/s/ Stephen A. Allott President and Chief Financial Officer November 8, 1999
- ----------------------- (Principal Financial and
Stephen A. Allott Accounting Officer)
II-4
<PAGE>
/s/ David C. Schwab Director November 8, 1999
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David C. Schwab
/s/ Michael E. W. Jackson Director November 8, 1999
- --------------------------
Michael E. W. Jackson
/s/ Kathleen Wallman Director November 8, 1999
- --------------------------
Kathleen Wallman
II-5
<PAGE>
EXHIBIT INDEX
Exhibit Number Exhibit
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4 Instruments Defining Rights of Stockholders. Reference is made
to Registrant's Registration Statement No. 0-23783 on Form
8-A, which is incorporated herein by reference pursuant to
Item 3(b) of this Registration Statement.
5 Opinion and consent of Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP.
23.1 Consent of KPMG LLP, Independent Accountants.
23.2 Consent of Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
EXHIBIT 5
November 8, 1999
Micromuse Inc.
139 Townsend Street
San Francisco, CA 94107
Re: Micromuse Inc. Registration Statement for Offering of
an aggregate of 2,714,788 Shares of Common Stock
Ladies and Gentlemen:
We refer to your registration on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended, of (i) 1,608,121
shares of Common Stock under the 1997 Stock Option/Stock Issuance Plan, (ii)
600,000 shares of Common Stock under the 1998 Non-Officer Stock Option/Stock
Issuance Plan, (iii) 160,000 shares of Common Stock under the 1998 Employee
Stock Purchase Plan, (iv) 320,000 shares of Common Stock under the Stock Option
Agreement for Greg Brown, and (v) 26,667 shares of Common Stock under a Warrant
Agreement to Purchase Stock for Heindrick & Struggles, Inc. We advise you that,
in our opinion, when such shares have been issued and sold pursuant to the
applicable provisions of the 1997 Stock Option/Stock Issuance Plan, 1998
Non-Officer Stock Option/Stock Issuance Plan, 1998 Employee Stock Purchase Plan,
Stock Option Agreement for Greg Brown, and the Warrant Agreement to Purchase
Stock for Heindrick & Struggles, Inc and in accordance with the Registration
Statement, such shares will be validly issued, fully paid and nonassessable
shares of the Company's Common Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP
Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP
CONSENT OF KPMG LLP, INDEPENDENT ACCOUNTANTS
We consent to incorporation herein by reference of or report dated October 27,
1998, relating to the consolidated balance sheets of Micromuse Inc. and
subsidiaries as of September 30, 1997 and 1998, and the related consolidated
statements of operations, stockholders' equity (deficit), and cash flows for
each of the years in the three-year period ended September 30, 1998, which
report appears in the September 30, 1998, annual report on Form 10-K of
Micromuse Inc.
/s/ KPMG LLP
Mountain View, California
November 17, 1999
