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Lawyers at Fenwick & West helped Marimba Inc. dance to the altar with BMC Software Inc.

BMC Software is paying $8.25 in cash for each of Marimba’s shares, reflecting a purchase price of approximately $239 million. However, after adjusting for Marimba’s expected net cash balance, as of March 31, the net purchase price is approximately $187 million. The companies announced the deal April 29.

“There’s been a fair amount of consolidation in this particular space so that was a factor,” said Fenwick & West partner David Healy, who led the deal team. “The transaction made strategic sense for both sides, and the parties set a good tone in the negotiations.”

Founded in 1996 by a team of software engineers at Sun Microsystems Inc., Marimba initially sought to combine Sun’s Java programming language with “push” technology that would push information from the Internet to desktop PCs. The Mountain View-based Marimba subsequently banished the word from its marketing campaign, and by the time it went public in 1999, had recast itself as a network software management company. Its products automate tasks such as deployment of applications and operating system patches and replication of code and content.

Based in Houston, BMC is a leading provider of enterprise management software that enables companies to manage enterprise servers, monitor databases and eliminate outages.

Fenwick partners Mark Ostrau and Ronald Schrotenboer and associates Marissa Song and Thomas Hall assisted on the transaction.

Vinson & Elkins partner Doug McWilliams represented BMC Software, along with partner Jeffery Floyd and associate William Matthew Strock. Christopher Chaffin, senior legal counsel at BMC Software, also assisted on the deal.

Brenda Sandburg


Finisar Corp. is on a shopping spree, and Gray Cary Ware & Freidenrich is pushing the cart.

The Sunnyvale-based fiber optics equipment maker is acquiring Infineon Technologies AG, a German fiber optics business unit, for roughly $263 million in Finisar stock.

The deal, which was priced on April 28, involves the transfer of Infineon’s fiber optic development, manufacturing and marketing activities and roughly 1,200 employees. After receiving shareholder and regulatory approval, the transaction is expected to close in the third quarter of 2004.

This acquisition is the fourth deal East Palo Alto-based Gray Cary has helped Finisar execute in the last year. In April 2003, Gray Cary guided Finisar through its acquisition of Genoa Inc., a privately held Fremont-based company for $5.5 million. The following October, Gray Cary assisted the company with its offering of $150 million in convertible subordinated notes. And in February 2004, Finisar acquired Honeywell’s VCSEL Optical Products business for approximately $75 million.

“A lot of consolidation is going on in the [fiber optics] industry. It’s pretty clear that there were too many players in the market,” said partner Dennis Sullivan who led Gray Cary’s team. “Honeywell and Infineon are representative of that.”

Sullivan said the deal was somewhat complex because it involved multiple jurisdictions and because Finisar was bidding against other companies for Infineon.

“It alters the way you strategize,” he noted.

Freshfields Bruckhaus Deringer of Munich, led by Ferdinand Fromholzer, advised Infineon.

In addition to Sullivan, Gray Cary’s team included partner Joe Sorenson and associates Benjamin Griebe, John Saia and Andrew Thornborrow. Also helping out were special counsel Michael McNeely, associate Eric Wang, and partners David Colker, Sang Kim and David Plewa.

Adrienne Sanders


O’Melveny & Myers represented Sirna Therapeutics Inc. in an $18 million PIPE deal.

The private transaction, expected to close this week, sold up to 5.8 million shares of Sirna’s common stock at $3.25 a share to a handful of institutional investors.

In a PIPE, or private-investment-public-equity deal, a company does not have to file a registration statement before the stock sale.

“One of the main attractions of PIPEs is that they can be extremely quick,” said Samuel Zucker, a partner at O’Melveny’s Menlo Park office who worked on the deal. “The other thing is, they can be targeted” to a much smaller group of investors.

JP Morgan Securities and Thomas Weisel Partners served as the lead and co-placement agents, respectively, introducing Sirna to the investors and helping to arrange the sale. As is common in PIPE deals, the banks were not represented by outside counsel.

Sirna is a Boulder, Col.-based biotech company that develops nucleic acid-based drugs and treatments. O’Melveny represented the company last summer in a $5 million rights offering to company shareholders.

In addition to Zucker, O’Melveny partner Warren Lazarow and associates Gene Levoff and Eric Zabinski were also involved in the PIPE transaction.

Alexei Oreskovic

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