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

incorporation or organization)

 

(Primary Standard Industrial

Classification Code Number)

 

(I.R.S. Employer

Identification No.)

 


3401 Hillview Avenue

Palo Alto, CA 94304

(650) 427-5000

(Address, including zip code, and telephone number, including area code, of registrant’s 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.

Skadden, Arps, Slate, Meagher & Flom LLP

One Beacon Street

Boston, Massachusetts 02108

(617) 573-4800

 

Paul T. Dacier, Esq.

EMC Corporation

176 South Street

Hopkinton, Massachusetts 01748

(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

*

Diane B. Greene

  

President and Chief Executive Officer (principal executive officer) and Director

  August 3, 2007

*

Mark S. Peek

  

Chief Financial Officer (principal financial officer, principal accounting officer)

  August 3, 2007

*

Joseph M. Tucci

  

Chairman of the Board of Directors

  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

   Director   August 3, 2007
*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.