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As filed with the Securities and Exchange Commission on November 15, 2000
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
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)
DELAWARE
(State or other jurisdiction of incorporation or organization)
7372
(Primary Standard Industrial Classification Code Number)
77-0422318
(IRS Employer Identification No.)
440 Clyde Avenue
Mountain View, California 94043
(650) 930-5282
(Address of principal executive offices) (Zip Code)
___________________
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
MARIMBA, INC. 2000 SUPPLEMENTAL STOCK PLAN
WRITTEN COMPENSATION AGREEMENT FOR JOHN F. OLSEN
(Full title of the Plans)
___________________
Kenneth A. Owyang
Vice President and Chief Financial 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)
___________________
CALCULATION OF REGISTRATION FEE
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<TABLE>
<S> <C> <C> <C> <C>
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
------------ ---------------- ------------------ ------------------ --------------
1999 Omnibus Equity Incentive Plan
Options 925,810 N/A N/A N/A
Common Stock (par value $0.0001) 925,810 $4.875 (2) $4,513,323.75 (2) $1,191.52
1999 Employee Stock Purchase Plan(3)
Rights to Purchase 462,905 N/A N/A N/A
Common Stock (par value $0.0001) 462,905 $4.875 (2) $2,256,661.88 (2) $595.76
International Employee
Stock Purchase Plan(3)
Rights to Purchase 462,905 N/A N/A N/A
Common Stock (par value $0.0001) 462,905 N/A N/A N/A
1999 Non-Employee Directors Option Plan
Options 15,000 N/A N/A N/A
Common Stock (par value $0.0001) 15,000 $4.875 (2) $73,125.00 (2) $19.31
2000 Supplemental Stock Plan
Options 3,500,000 N/A N/A N/A
Common Stock (par value $0.0001) 3,500,000 $4.875 (2) $17,062,500.00 (2) $4,504.50
Written Compensation Agreement for John F. Olsen
Options 1,000,000 N/A N/A N/A
Common Stock (par value $0.0001) 1,000,000 $4.875 (2) $4,875,000.00 (2) $1,287.00
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1999 Omnibus Equity Incentive
Plan, 1999 Employee Stock Purchase Plan, International Employee Stock
Purchase Plan, 1999 Non-Employee Directors Option Plan, 2000 Supplemental
Stock Plan and the Written Compensation Agreement for John F. Olsen 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 average of the high
and low price per share of Common Stock of Marimba, Inc. on November 10,
2000.
(3) Combined share pool.
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PART II
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 Annual Report on Form 10-K for the fiscal year ended
December 31, 1999; and
(b) The Registrant's Quarterly Reports on Form 10-Q for the fiscal
quarters ended June 30, 2000 and March 31, 2000; and
(c) 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
Exhibit Number Exhibit
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(c) 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.
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 1999 Omnibus Equity Incentive Plan, 1999 Employee Stock
Purchase Plan, International Employee Stock Purchase Plan, 1999 Non-Employee
Directors Option Plan, 2000 Supplemental Stock Plan and the Written Compensation
Agreement for John F. Olsen.
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 th day of
November, 2000.
MARIMBA, INC.
By: /s/ John F. Olsen
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John F. Olsen
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 John F. Olsen and Kenneth A.
Owyang, 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.
<TABLE>
<S> <C> <C>
Signature Title Date
/s/ John F. Olsen President, Chief Executive Officer and Director November 14, 2000
---------------------------- (Principal Executive Officer)
John F. Olsen
/s/ Kenneth W. Owyang Vice President, Finance and Chief Financial Officer November 14, 2000
---------------------------- Officer (Principal Financial and Accounting Officer)
Kenneth W. Owyang
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/s/ Kim K. Polese Chairman of the Board November 14, 2000
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Kim K. Polese
Director November __, 2000
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Aneel Bhusri
/s/ Raymond J. Lane Director November 14, 2000
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Raymond J. Lane
/s/ Douglas J. Mackenzie Director November 14, 2000
----------------------------
Douglas J. Mackenzie
/s/ Stratton D. Sclavos Director November 14, 2000
----------------------------
Stratton D. Sclavos
</TABLE>
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EXHIBIT INDEX
Exhibit Number Exhibit
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5 Opinion and consent of Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
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Exhibit 5
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November 15, 2000
Marimba, Inc.
440 Clyde Avenue
Mountain View, California 94043
Re: Marimba, Inc. (the "Company")
Registration Statement for
an aggregate of 5,903,715 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) 925,810 shares of Common
Stock available for issuance under the Company's 1999 Omnibus Equity Incentive
Plan, (ii) 462,905 shares of Common Stock available for issuance under the
Company's 1999 Employee Stock Purchase Plan and International Employee Stock
Purchase Plan (iii) 15,000 shares of Common Stock available for issuance under
the Company's 1999 Non-Employee Directors Option Plan, (iv) 3,500,000 shares of
Common Stock available for issuance under the Company's 2000 Supplemental Stock
Plan and (v) 1,000,000 shares of Common Stock available for issuance under the
Written Compensation Agreement for John F. Olsen. We advise you that, in our
opinion, when such shares have been issued and sold pursuant to the applicable
provisions of the 1999 Omnibus Equity Incentive Plan, the 1999 Employee Stock
Purchase Plan, the International Employee Stock Purchase Plan, the 1999
Non-Employee Directors Option Plan, the 2000 Supplemental Stock Plan and the
Written Compensation Agreement for John F. Olsen 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
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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. 1999 Omnibus Equity Incentive Plan, the
Marimba, Inc. 1999 Employee Stock Purchase Plan, the Marimba, Inc. International
Employee Stock Purchase Plan, the Marimba, Inc. 1999 Non-Employee Directors
Option Plan, the Marimba, Inc. 2000 Supplemental Stock Plan and the Written
Compensation Agreement for John F. Olsen of our report dated January 14, 2000
with respect to the consolidated financial statements of Marimba, Inc. included
in its Annual Report on Form 10-K for the year ended December 31, 1999, filed
with the Securities and Exchange Commission.
Palo Alto, California
November 15, 2000
/s/ Ernst & Young LLP
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Ernst & Young LLP
