As filed with the Securities and Exchange Commission on July 27, 2000
Registration No. 333-
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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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BLUE MARTINI SOFTWARE, INC.
(Exact name of registrant as specified in its charter)
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Delaware 94-3319751
(State of Incorporation) (I.R.S. Employer
Identification No.)
2600 Campus Drive
San Mateo, CA 94403
(650) 356-4000
(Address of principal executive offices)
(Full title of the plans)
Monte Zweben
Chairman, President and Chief Executive Officer
Blue Martini Software, Inc.
2600 Campus Drive
San Mateo, CA 94403
(650) 356-4000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
James C. Gaither, Esq.
Eric C. Jensen, Esq.
Cooley Godward LLP
3000 El Camino Real
Palo Alto, CA 94036
(650) 843-5000
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Offering Proposed Maximum
Title of Securities to be Amount to be Price Per Share Aggregate Offering Price Amount of Registration
Registered Registered (1) (1) Fee
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Stock Options and Common 18,707,567 shares (See Notes to Calculation of $445,670,908 $117,657
Stock (par value $.001) Registration Fee)
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h) under the Securities Act of 1933,
as amended. The offering price per share and aggregate offering price are
based upon (a) for shares subject to outstanding options granted under the
Company's 2000 Equity Incentive Plan, and the 2000 Non-employee Directors'
Stock Option Plan, the weighted average exercise price for such outstanding
options (pursuant to Rule 457(h) under the Act), or (b) for shares
available for future grant or purchase under the Company's 2000 Equity
Incentive Plan, the 2000 Non-employee Directors' Stock Option Plan, and the
2000 Employee Stock Purchase Plan, the average of the high and low prices
of the Company's Common Stock on July 25, 2000 as reported on the Nasdaq
National Market (pursuant to Rule 457(c) under the Act).
The following chart illustrates the calculation of the registration fee:
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Securities Number of Shares Offering Price Aggregate Offering
Per Share Price
- ---------------------------------------------------------------------------------------------------
Common Stock issuable 6,117,942 $ 4.00 $ 24,471,768
pursuant to outstanding
options under the 2000
Equity Incentive Plan
- ---------------------------------------------------------------------------------------------------
Common Stock reserved for 8,289,625 $49.44 $409,839,060
future issuance pursuant to
the 2000 Equity Incentive
Plan
- ---------------------------------------------------------------------------------------------------
Common Stock issuable 125,000 $20.00 $ 2,500,000
pursuant to outstanding
options under the 2000
Non-employee Directors'
Stock Option Plan
- ---------------------------------------------------------------------------------------------------
Common Stock reserved for 175,000 $49.44 $ 8,652,000
future issuance pursuant to
the 2000 Non-employee
Directors' Stock Option Plan
- ---------------------------------------------------------------------------------------------------
Common Stock reserved for 4,000,000 $42.02 $ 168,080
future issuance pursuant to
the 2000 Employee Stock
Purchase Plan
- ---------------------------------------------------------------------------------------------------
Proposed Maximum Offering $445,630,908
Price
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Registration Fee $ 117,657
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Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
1.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Blue Martini Software, Inc., a Delaware
Corporation (the "Company" or the "Registrant") with the Securities and Exchange
Commission (the "Commission") are incorporated by reference into this
Registration Statement:
(a) The Company's registrant statement on Form S-1 under the Securities
Act of 1933, as amended (the "Securities Act") No. 333-36062.
(b) The description of the Company's Common Stock which is contained in
the Registration Statement on Form 8-A filed June 29, 2000, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), including any amendment
or report filed for the purpose of updating such description.
(c) All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act") prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part of this registration statement
from the date of the filing of such reports and documents.
INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the issuance of the Common Stock offered hereby will be
passed upon for the Company by its counsel, Cooley Godward LLP, Palo Alto,
California. As of the date of this Registration Statement, partners and
associates of Cooley Godward LLP own an aggregate of 178,568 shares of the
Company's Common Stock through an investment partnership, James C. Gaither, a
director of the Company and a partner of Cooley Godward owns an aggregate of
381,844 shares of common stock and an option to purchase 25,000 shares of common
stock and Eric C. Jensen, a partner of Cooley Godward owns 20,000 shares of
common stock for the benefit of partners and associates of Cooley Godward.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law, the Registrant
has broad powers to indemnify its Directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act of 1933, as amended (the "Securities Act").
The Registrant's Restated Certificate of Incorporation and Bylaws include
provisions that eliminates the personal liability of its directors for monetary
damages for breach of fiduciary duty as a director, except for liability (1) for
any breach of the director's duty of loyalty to us or our stockholders; (2) for
acts or omissions not in good faith or that involve intentional misconduct or a
knowing violation of law; (3) under Section 174 of the Delaware General
Corporation Law regarding unlawful dividends and stock purchases; or (4) for any
transaction from which the director derived an improper personal benefit.
As permitted by Delaware law, our Fourth Amended and Restated Certificate
of Incorporation provides that (1) we are required to indemnify our directors
and officers to the fullest extent permitted by Delaware law, subject to certain
very limited exceptions; (2) we are permitted to indemnify our other employees
to the extent that we indemnify our officers and directors, unless otherwise
required by law, our Restated Certificate of Incorporation, our bylaws or
agreements; (3) we are required to advance expenses, as incurred, to our
directors and officers in connection with a legal proceeding to the fullest
extent permitted by Delaware law, subject to certain very limited exceptions;
and (4) the rights conferred in the Fourth Amended and Restated Certificate of
Incorporation are not exclusive.
Our Amended and Restated Bylaws provide that we shall indemnify our
directors and executive officers and may indemnify our other offices and
employees and other agents to the fullest extent permitted by law. We believe
that indemnification under our Amended and Restated Bylaws covers at least
negligence and gross negligence on the part of indemnified parties. Our Amended
and Restated Bylaws also permit us to secure insurance on behalf of any officer,
director, employee or other agent for any liability arising out of his or her
actions in such capacity, regardless of whether the Amended and Restated Bylaws
would permit indemnification.
2.
We have entered into agreements to indemnify our directors and executive
officers, in addition to indemnification provided for in our Amended and
Restated Bylaws. These agreements, among other things, indemnify our directors
and executive officers for certain expenses, including attorneys' fees,
judgments, fines and settlement amounts incurred by any such person in any
action or proceeding, including any action by us arising out of such person's
services as our director or executive officer, any of our subsidiaries or any
other company or enterprise to which the person provides services at our
request. We believe that these provisions and agreements are necessary to
attract and retain qualified persons as directors and executive officers.
EXHIBITS
Exhibit
Number
3.1* Fourth Amended and Restated Certificate of Incorporation of
Registrant.
3.2* Amended and Restated Bylaws of Registrant.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of KPMG LLP, Independent Public Accountants.
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1 Power of Attorney is contained on the signature pages.
99.1* 2000 Equity Incentive Plan.
99.2* 2000 Non-employee Directors' Stock Option Plan.
99.3* 2000 Employee Stock Purchase Plan.
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* Documents incorporated by reference from the Company's Registration Statement
on Form S-1, as amended (333-36062).
UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) 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
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the 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 the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
3.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(i) and (a)(ii) do 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 issuer pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference herein.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) 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 offering.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to
be a new registration statement relating to the securities offered herein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Securities 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 Securities Act and will be governed by
the final adjudication of such issue.
4.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Mateo, State of California, on July 27, 2000.
Blue Martini Software, Inc.
By /s/ Monte Zweben
___________________________________
Monte Zweben
Title: Chairman, President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Monte Zweben and John E. Calonico, his
true and lawful attorney-in-fact and agent, 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 Registration Statement, and to file the same, with all 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 and 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 said attorneys-in-fact and agents, or any of them, or their
or his substitutes or substitute, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
/s/ Monte Zweben Chairman, President and Chief Executive July 27, 2000
- ----------------------------------------------- Officer (Principal Executive Officer)
Monte Zweben
/s/ John E. Calonico, Jr. Vice President, Chief Financial Officer July 27, 2000
- ----------------------------------------------- and Secretary (Principal Financial and
John E. Calonico, Jr. Accounting Officer)
/s/ James C. Gaither Director July 27, 2000
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James C. Gaither
Director July __, 2000
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A. Michael Spence
/s/ Andrew W. Verhalen Director July 27, 2000
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Andrew W. Verhalen
5.
/s/ Edward H. Vick Director July 27, 2000
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Edward H. Vick
/s/ William F. Zuendt Director July 27, 2000
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William F. Zuendt
6.
EXHIBIT INDEX
Exhibit
Number Description
3.1* Amended and Restated Certificate of Incorporation of the Company.
3.2* Amended and Restated Bylaws of the Company.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of KPMG LLP, Independent Public Accountants.
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1 Power of Attorney is contained on the signature pages.
99.1* 2000 Equity Incentive Plan.
99.2* 2000 Non-employee Directors' Stock Option Plan.
99.3* 2000 Employee Stock Purchase Plan.
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/*/ Documents incorporated by reference from the Company's Registration
Statement on Form S-1, as amended (333-36062).
7.