0001193125-07-170777 S-4/A 1 20070803 20070803 VMWARE, INC. 0001124610 7372 943292913 DE 1231 S-4/A 33 333-144424 071024647 3401 HILLVIEW AVENUE PALO ALTO CA 94304 (650) 427-5000 3401 HILLVIEW AVENUE PALO ALTO CA 94304 VMWARE INC 20000923 S-4/A 1 ds4a.htm AMENDMENT NO.3 TO FORM S-4 As filed with the Securities and Exchange Commission on August 3, 2007 Registration No. 333-144424 -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------------------------------------------------------------------------------- Amendment No. 3 to FORM S-4 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------------------------------------------------------------------------- VMWARE, INC. (Exact name of registrant as specified in its charter) -------------------------------------------------------------------------------- DELAWARE 7372 94-3292913 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.) -------------------------------------------------------------------------------- 3401 Hillview Avenue Palo Alto, CA 94304 (650) 427-5000 (Address, including zip code, and telephone number, including area code, of registrantís principal executive offices) -------------------------------------------------------------------------------- Rashmi Garde, Esq. Vice President and General Counsel VMware, Inc. 3401 Hillview Avenue Palo Alto, CA 94304 (650) 427-5000 (Name, address, including zip code, and telephone number, including area code, of agent for service) -------------------------------------------------------------------------------- Copies to: Margaret A. Brown, Esq. Paul T. Dacier, Esq. Skadden, Arps, Slate, Meagher & Flom LLP EMC Corporation One Beacon Street 176 South Street Boston, Massachusetts 02108 Hopkinton, Massachusetts 01748 (617) 573-4800 (508) 435-1000 -------------------------------------------------------------------------------- Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective. If any of the securities being registered on this Form are to be offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box: [ ] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] -------------------------------------------------------------------------------- The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission acting pursuant to said Section 8(a), may determine. -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- Explanatory Note This Amendment No. 3 is being filed solely for the purpose of refiling Exhibit 10.16 to this Registration Statement (Registration No. 333-144424), which Exhibit 10.16 is incorporated by reference to the Registration Statement on Form S-1 of VMware, Inc. (Registration No. 333-142368) filed with the Securities and Exchange Commission on August 3, 2007, and no changes or additions are being made hereby to the Prospectus constituting Part I of this Registration Statement or to Items 20, 21(b) and (c) or 22 of Part II of this Registration Statement. Accordingly, such Prospectus and Items 20, 21(b) and (c) and 22 of Part II have not been included herein. -------------------------------------------------------------------------------- PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 21. Exhibits and Financial Statement Schedules. (a) Exhibit Number Description 1.1 Form of Underwriting Agreement(4) 3.1 Amended and Restated Certificate of Incorporation(3) 3.2 Amended and Restated Bylaws(3) 4.1 Form of specimen common stock certificate(5) 5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP* 10.1 Form of Master Transaction Agreement between the Registrant and EMC(3) 10.2 Form of Administrative Services Agreement between the Registrant and EMC(3) 10.3 Form of Tax Sharing Agreement between the Registrant and EMC(3) 10.4 Form of Intellectual Property Agreement between the Registrant and EMC(2) 10.5 Form of Employee Benefits Agreement between the Registrant and EMC(3) 10.6 Form of Real Estate License Agreement between the Registrant and EMC(3) 10.7 Letter Agreement between the Registrant and Mark Peek+(2) 10.8 Form of Indemnification Agreement for directors and executive officers+(2) 10.9 2007 Equity and Incentive Plan+(2) 10.10 Promissory Note between the Registrant and EMC Corporation(1) 10.11 Form of Insurance Matters Agreement between the Registrant and EMC(3) 10.12 Form of Option Agreement+(2) 10.13 Form of Restricted Stock Unit Agreement+(2) 10.14 2007 Employee Stock Purchase Plan+(2) 10.15 Letter Agreement between the Registrant and Thomas J. Jurewicz+(2) 10.16 Distribution Agreement between the Registrant and Ingram Micro**(6) 10.17 Form of Real Estate Purchase and Sale Agreement between the Registrant and EMC(3) 10.18 Class A Common Stock Purchase Agreement between the Registrant and Intel Capital(3) 10.19 Investor Rights Agreement between the Registrant and Intel Capital(3) 10.20 Form of Early Exercise Option Agreement+(3) 10.21 Class A Common Stock Purchase Agreement among the Registrant, EMC Corporation and Cisco Systems, Inc.(5) 10.22 Investor Rights Agreement between the Registrant and Cisco Systems, Inc.(5) 10.23 Employment Agreement between the Registrant and Diane Greene+(5) 21.1 List of subsidiaries(1) 23.1 Consent of PricewaterhouseCoopers LLP* 23.2 Consent of PricewaterhouseCoopers LLP* 23.3 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1) 24.1 Power of Attorney (included on signature page hereto) 99.1 Form of Letter of Transmittal* 99.2 Form of Notice of Withdrawal* II-1 -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- + Management contract or compensatory plan or arrangement. * Previously filed. ** Confidential treatment requested for certain portions of this Exhibit pursuant to Rule 406 promulgated under the Securities Act, which portions are omitted and filed separately with the Securities and Exchange Commission. (1) Incorporated by reference to the Registration Statement on Form S-1 of VMware, Inc. (Registration Statement No. 333-142368) filed with the Commission on April 26, 2007. (2) Incorporated by reference to the Registration Statement on Form S-1 of VMware, Inc. (Registration Statement No. 333-142368) filed with the Commission on June 11, 2007 (3) Incorporated by reference to Amendment No. 2 to the Registration Statement on Form S-1 of VMware, Inc. (Registration Statement No. 333-142368) filed with the Commission on July 9, 2007. (4) Incorporated by reference to Amendment No. 3 to the Registration Statement on Form S-1 of VMware, Inc. (Registration Statement No. 333-142368) filed with the Commission on July 24, 2007. (5) Incorporated by reference to Amendment No. 4 to the Registration Statement on Form S-1 of VMware, Inc. (Registration Statement 333-142368) filed with the Commission on July 27, 2007. (6) Incorporated by reference to Amendment No. 5 to the Registration Statement on Form S-1 of VMware, Inc. (Registration Statement 333-142368) filed with the Commission on August 3, 2007. II-2 -------------------------------------------------------------------------------- SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Amendment No. 3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Palo Alto, State of California, on August 3, 2007. VMWARE, INC. By: /s/ Dianne Tuley-Brown Name: Dianne Tuley-Brown Title: Authorized Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, the undersigned hereby constitute and appoint David I. Goulden and Paul T. Dacier and each of them, his or her true and lawful attorney-in-fact and agent, each with full power 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 Amendment No. 3, or any related registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to file the same, with exhibits thereto, and 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 or necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 3 has been signed by the following persons in the capacities and on the dates indicated. Signature Title Date * President and Chief August 3, 2007 Diane B. Greene Executive Officer (principal executive officer) and Director * Chief Financial Officer August 3, 2007 Mark S. Peek (principal financial officer, principal accounting officer) * Chairman of the Board of August 3, 2007 Joseph M. Tucci Directors * Director August 3, 2007 Michael W. Brown * Director August 3, 2007 John R. Egan * Director August 3, 2007 David I. Goulden * Director August 3, 2007 David N. Strohm *By: /s/ Paul T. Dacier Attorney-in-Fact August 3, 2007 Paul T. Dacier II-3 -------------------------------------------------------------------------------- EXHIBIT INDEX Exhibit Number Description 1.1 Form of Underwriting Agreement(4) 3.1 Amended and Restated Certificate of Incorporation(3) 3.2 Amended and Restated Bylaws(3) 4.1 Form of specimen common stock certificate(5) 5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP* 10.1 Form of Master Transaction Agreement between the Registrant and EMC(3) 10.2 Form of Administrative Services Agreement between the Registrant and EMC(3) 10.3 Form of Tax Sharing Agreement between the Registrant and EMC(3) 10.4 Form of Intellectual Property Agreement between the Registrant and EMC(2) 10.5 Form of Employee Benefits Agreement between the Registrant and EMC(3) 10.6 Form of Real Estate License Agreement between the Registrant and EMC(3) 10.7 Letter Agreement between the Registrant and Mark Peek+(2) 10.8 Form of Indemnification Agreement for directors and executive officers+(2) 10.9 2007 Equity and Incentive Plan+(2) 10.10 Promissory Note between the Registrant and EMC Corporation(1) 10.11 Form of Insurance Matters Agreement between the Registrant and EMC(3) 10.12 Form of Option Agreement+(2) 10.13 Form of Restricted Stock Unit Agreement+(2) 10.14 2007 Employee Stock Purchase Plan+(2) 10.15 Letter Agreement between the Registrant and Thomas J. Jurewicz+(2) 10.16 Distribution Agreement between the Registrant and Ingram Micro**(6) 10.17 Form of Real Estate Purchase and Sale Agreement between the Registrant and EMC(3) 10.18 Class A Common Stock Purchase Agreement between the Registrant and Intel Capital(3) 10.19 Investor Rights Agreement between the Registrant and Intel Capital(3) 10.20 Form of Early Exercise Option Agreement+(3) 10.21 Class A Common Stock Purchase Agreement among the Registrant, EMC Corporation and Cisco Systems, Inc.(5) 10.22 Investor Rights Agreement between the Registrant and Cisco Systems, Inc.(5) 10.23 Employment Agreement between the Registrant and Diane Greene+(5) 21.1 List of subsidiaries(1) 23.1 Consent of PricewaterhouseCoopers LLP* 23.2 Consent of PricewaterhouseCoopers LLP* 23.3 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1) 24.1 Power of Attorney (included on signature page hereto) 99.1 Form of Letter of Transmittal* 99.2 Form of Notice of Withdrawal* -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- + Management contract or compensatory plan or arrangement. * Previously filed. ** Confidential treatment requested for certain portions of this Exhibit pursuant to Rule 406 promulgated under the Securities Act, which portions are omitted and filed separately with the Securities and Exchange Commission. (1) Incorporated by reference to the Registration Statement on Form S-1 of VMware, Inc. (Registration Statement No. 333-142368) filed with the Commission on April 26, 2007. (2) Incorporated by reference to the Registration Statement on Form S-1 of VMware, Inc. (Registration Statement No. 333-142368) filed with the Commission on June 11, 2007. (3) Incorporated by reference to Amendment No. 2 to the Registration Statement on Form S-1 of VMware, Inc. (Registration Statement No. 333-142368) filed with the Commission on July 9, 2007. (4) Incorporated by reference to Amendment No. 3 to the Registration Statement on Form S-1 of VMware, Inc. (Registration Statement No. 333-142368) filed with the Commission on July 24, 2007. (5) Incorporated by reference to Amendment No. 4 to the Registration Statement on Form S-1 of VMware, Inc. (Registration Statement 333-142368) filed with the Commission on July 27, 2007. (6) Incorporated by reference to Amendment No. 5 to the Registration Statement on Form S-1 of VMware, Inc. (Registration Statement 333-142368) filed with the Commission on August 3, 2007.