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As filed with the Securities and Exchange Commission on __________ __, 1999
Registration No. 333-_____
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UNITED STATES
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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MARIMBA, INC.
(Exact name of registrant as specified in its charter)
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<S> <C> <C>
DELAWARE 7372 77-0422318
(State or other jurisdiction (Primary Standard Industrial (IRS Employer
of incorporation or organization) Classification Code Number) Identification No.)
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440 CLYDE AVENUE
MOUNTAIN VIEW, CALIFORNIA 94043
(650) 930-5282
(Address of principal executive offices) (Zip Code)
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MARIMBA, INC. 1996 STOCK PLAN
MARIMBA, INC. 1999 OMNIBUS EQUITY INCENTIVE PLAN
MARIMBA, INC. 1999 EMPLOYEE STOCK PURCHASE PLAN
MARIMBA, INC. INTERNATIONAL EMPLOYEE STOCK PURCHASE PLAN
MARIMBA, INC. 1999 NON-EMPLOYEE DIRECTORS OPTION PLAN
(Full title of the Plans)
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KIM K. POLESE
PRESIDENT AND CHIEF EXECUTIVE OFFICER
MARIMBA, INC.
440 CLYDE AVENUE
MOUNTAIN VIEW, CALIFORNIA 94043
(Name and address of agent for service)
(650) 930-5282
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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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 Price Fee
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1996 Stock Plan
Options 2,961,544 N/A N/A N/A
Common Stock (par value $0.0001) 2,961,544 $20(2) $59,230,880(2) $16,467
1999 Omnibus Equity Incentive Plan
Options 1,250,000 N/A N/A N/A
Common Stock (par value $0.0001) 1,250,000 $20(2) $25,000,000(2) $ 6,950
1999 Employee Stock Purchase Plan(3)
Rights to Purchase 500,000 N/A N/A N/A
Common Stock (par value $0.0001) 500,000 $20(2) $10,000,000(2) $ 2,780
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International Employee
Stock Purchase Plan(3)
Rights to Purchase 500,000 N/A N/A N/A
Common Stock (par value $0.0001) 500,000 N/A N/A N/A
1999 Non-Employee Directors Option
Plan
Options 150,000 N/A N/A N/A
Common Stock (par value $0.0001) 150,000 $20(2) $ 3,000,000(2) $ 834
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1996 Stock Plan, the 1999
Omnibus Equity Incentive Plan, the 1999 Employee Stock Purchase Plan,
the International Employee Stock Purchase Plan and the 1999 Non-Employee
Directors Option Plan 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 Marimba, 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 fair market
value per share of Common Stock of Marimba, Inc. on April 29, 1999.
(3) Combined share pool.
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INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Marimba, 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 prospectus filed with the SEC pursuant to Rule
424(b) of the Securities Act of 1933, as amended (the "1933
Act"), in connection with the Registration Statement No.
333-72353 on Form S-1 filed with the SEC on February 12, 1999,
together with any and all amendments thereto, in which there is
set forth audited financial statements for the Registrant's
fiscal years ended December 31, 1997 and 1998; and
(b) The Registrant's Registration Statement No. 000-25683 on Form
8-A filed with the SEC on March 31, 1999, together with all
amendments thereto, pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended (the "1934 Act") in which there
is described the terms, rights and provisions applicable to the
Registrant's outstanding Common Stock.
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 1933 Act. Article VII,
Section 6, 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 Certificate of Incorporation provides that, pursuant to
Delaware law, its directors shall not be liable for monetary damages for breach
of their fiduciary duty as directors to the Registrant and its stockholders.
This provision in the Certificate of Incorporation does not eliminate the
fiduciary duty of the directors, 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
Registrant 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 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.
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Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
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Exhibit
Number Exhibit
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4 Instrument Defining Rights of Stockholders. Reference is made to
Registrant's Registration Statement No. 000-25683 on Form 8-A,
together with all amendments thereto, 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 Ernst & Young LLP, Independent Auditors.
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-3 of this
Registration Statement.
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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 with or furnished to the SEC by the Registrant pursuant to Section 13 or
Section 15(d) of the 1934 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 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 1996 Stock Plan, 1999 Omnibus
Equity Incentive Plan, 1999 Employee Stock Purchase Plan, International Employee
Stock Purchase Plan and the 1999 Non-Employee Directors Option Plan.
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 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 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.
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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 Mountain View, State of California on this 28th
day of April, 1999.
MARIMBA, INC.
By: /s/ Kim K. Polese
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Kim K. Polese
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Marimba, Inc., a
Delaware corporation, do hereby constitute and appoint Kim K. Polese and Fred M.
Gerson, 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 each 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.
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Signature Title Date
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/s/ Kim K. Polese President, Chief Executive Officer and April 28, 1999
- --------------------------------- Director (Principal Executive Officer)
Kim K. Polese
/s/ Fred M. Gerson Vice President, Finance and Chief April 28, 1999
- --------------------------------- Financial Officer (Principal Financial
Fred M. Gerson and Accounting Officer)
/s/ Arthur A. van Hoff Chief Technology Officer and Director April 28, 1999
- ---------------------------------
Arthur A. van Hoff
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Signature Title Date
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/s/ Aneel Bhusri Director April 26, 1999
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Aneel Bhusri
/s/ Raymond J. Lane Director April 28, 1999
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Raymond J. Lane
/s/ Douglas J. Mackenzie Director April 28, 1999
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Douglas J. Mackenzie
/s/ Stratton D. Sclavos Director April 21, 1999
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Stratton D. Sclavos
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EXHIBIT INDEX
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Exhibit
Number Exhibit
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4 Instrument Defining Rights of Stockholders. Reference is made to
Registrant's Registration Statement No. 000-25683 on Form 8-A,
together with all amendments thereto, 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 Ernst & Young LLP, Independent Auditors.
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-3 of this
Registration Statement.
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Exhibit 5
April 29, 1999
Marimba, Inc.
440 Clyde Avenue
Mountain View, California 94043
Re: Marimba, Inc. (the "Company")
Registration Statement for
an aggregate of 4,861,544 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) 2,961,544 shares of Common
Stock available for issuance under the Company's 1996 Stock Plan, (ii) 1,250,000
shares of Common Stock available for issuance under the Company's 1999 Omnibus
Equity Incentive Plan, (iii) 500,000 shares of Common Stock available for
issuance under the Company's 1999 Employee Stock Purchase Plan and International
Employee Stock Purchase Plan and (iv) 150,000 shares of Common Stock available
for issuance under the Company's 1999 Non-Employee Directors Option Plan. We
advise you that, in our opinion, when such shares have been issued and sold
pursuant to the applicable provisions of the 1996 Stock Plan, the 1999 Omnibus
Equity Incentive Plan, the 1999 Employee Stock Purchase Plan and International
Employee Stock Purchase Plan and the 1999 Non-Employee Directors Option Plan 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
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Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the Marimba, Inc. 1996 Stock Plan, the Marimba, Inc. 1999
Omnibus Equity Incentive Plan, the Marimba, Inc. 1999 Employee Stock Purchase
Plan, the Marimba, Inc. International Employee Stock Purchase Plan and the
Marimba, Inc. 1999 Non-Employee Directors Option Plan of our report dated
January 13, 1999, with respect to the consolidated financial statements of
Marimba, Inc. included in its Registration Statement on Form S-1, filed with the
Securities and Exchange Commission.
Palo Alto, California
April 29, 1999 /s/ Ernst & Young LLP
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Ernst & Young LLP
