As Filed with the Securities and Exchange Commission on January 16, 2002
Registration No. ___________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Extreme Networks, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 77-0430270
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(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
3585 Monroe Street
Santa Clara, California 95051
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(Address of principal executive offices) (Zip code)
Extreme Networks, Inc.
Amended 1996 Stock Option Plan
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(Full title of the plan)
Harold L. Covert
Vice President, Chief Financial Officer and Secretary
Extreme Networks, Inc.
3585 Monroe Street
Santa Clara, California 95051
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: (408) 579-2800.
This registration statement shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Act of 1933, as amended.
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
maximum maximum
Title of Securities to Amount to be offering price aggregate Amount of
be registered/1/ registered/2/ per share/3/ offering price/3/ registration fee
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Amended 1996 Stock Option Plan
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Common Stock 5,601,777 $16.14 $90,412,680.78 $21,608.63
Par Value $0.001
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/1/ The securities to be registered include options and rights to acquire
Common Stock.
/2/ Pursuant to Rule 416(a), this registration statement also covers any
additional securities that may be offered or issued in connection with any stock
split, stock dividend or similar transaction.
/3/ Estimated pursuant to Rule 457(h) solely for purposes of calculating the
registration fee. As to the shares under the Amended 1996 Stock Option Plan the
price is based upon the average of the high and low prices of the Common Stock
on January 11, 2002, as reported on the Nasdaq National Market.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3. Incorporation of Documents by Reference
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Extreme Networks, Inc. (the "Company") hereby incorporates by
reference in this registration statement the following documents:
(a) The Company's annual report on Form 10-K, filed pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act") containing
audited financial statements for the Company's latest fiscal year ended July 1,
2001, as filed with the Commission on September 26, 2001.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the registrant document
referred to in (a) above.
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed pursuant to the Exchange Act
on April 5, 1999.
All documents subsequently filed by the Company pursuant to Sections
12(g), 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this registration statement which indicates that all
securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities
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The class of securities to be offered is registered under Section 12
of the Exchange Act.
Item 5. Interests of Named Experts and Counsel
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Legal Opinion. The validity of the shares of Common Stock to be
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offered hereunder has been passed upon for the Company by Gray Cary Ware &
Freidenrich LLP ("GCWF"). As of January 14, 2002, certain attorneys of GCWF
(directly and indirectly) owned approximately 15,191 shares of the Common Stock
of the Company.
Item 6. Indemnification of Directors and Officers
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Section 102(b) of the Delaware General Corporation Law authorizes a
corporation to provide in its Certificate of Incorporation that a director of
the corporation shall not be personally liable to corporation or its
stockholders for monetary damages for breach or alleged
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breach of the director's "duty of care." While this statute does not change
directors' duty of care, it enables corporations to limit available relief to
equitable remedies such as injunction or rescission. The statute has no effect
on a director's duty of loyalty or liability for acts or omissions not in good
faith or involving intentional misconduct or knowing violations of law, illegal
payment of dividends or stock redemptions or repurchases, or for any transaction
from which the director derives an improper personal benefit. As permitted by
the statute, the Company has adopted provisions in its Certificate of
Incorporation which eliminate to the fullest extent permissible under Delaware
law the personal liability of its directors to the Company and its stockholders
for monetary damages for breach or alleged breach of their duty of care.
Section 145 of the General Corporation Law of the State of Delaware
provides for the indemnification of officers, directors, employees and agents of
a corporation. The Bylaws of the Company provide for indemnification of its
directors, officers, employees and agents to the full extent permitted under
Delaware law, including those circumstances in which indemnification would
otherwise be discretionary under Delaware law. The Company's Bylaws also empower
it to enter into indemnification agreements with its directors and officers and
to purchase insurance on behalf of any person whom it is required or permitted
to indemnify. The Company has entered into agreements with its directors and
certain of its executive officers that require the Company to indemnify such
persons to the fullest extent permitted under Delaware law against expenses,
judgments, fines, settlements and other amounts actually and reasonably incurred
(including expenses of a derivative action) in connection with any proceeding,
whether actual or threatened, to which any such person may be made a party by
reason of the fact that such person is or was a director or an executive officer
of the Company or any of its affiliated enterprises. The indemnification
agreements also set forth certain procedures that will apply in the event of a
claim for indemnification thereunder.
Section 145 of the General Corporation Law of the State of Delaware
provides for indemnification in terms sufficiently broad to indemnify such
individuals, under certain circumstances, for liabilities (including
reimbursement of expenses incurred) arising under the Securities Act.
Item 7. Exemption From Registration Claimed
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Inapplicable.
Item 8. Exhibits
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See Exhibit Index.
Item 9. Undertakings
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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:
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(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; and
(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 (1)(i) and (l)(ii) do not apply if the
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information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) 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 therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(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 offering.
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 therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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 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.
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SIGNATURE
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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 Santa Clara, State of California, on January 14,
2002.
Extreme Networks, Inc.
By: /s/ Harold L. Covert
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Harold L. Covert
Vice President, Chief Financial
Officer and Secretary
SIGNATURES AND POWER OF ATTORNEY
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The officers and directors of Extreme Networks, Inc. whose signatures
appear below, hereby constitute and appoint Gordon L. Stitt and Harold L.
Covert, and each of them, their true and lawful attorneys and agents, with full
power of substitution, each with power to act alone, to sign and execute on
behalf of the undersigned any amendment or amendments to this registration
statement on Form S-8, and each of the undersigned does hereby ratify and
confirm all that each of said attorney and agent, or their or his substitutes,
shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities indicated on January 14, 2002.
Signature Title
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President, Chief Executive Officer
/s/ Gordon L. Stitt And Chairman of the Board
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Gordon L. Stitt (Principal Executive Officer)
Vice President, Chief Financial
/s/ Harold L. Covert Officer and Secretary
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Harold L. Covert (Principal Financial and
Accounting Officer)
/s/ Charles Carinalli Director
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Charles Carinalli
/s/ Promod Haque Director
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Promod Haque
/s/ Lawrence K. Orr Director
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Lawrence K. Orr
/s/ Peter Wolken Director
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Peter Wolken
/s/ Kenneth Levy Director
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Kenneth Levy
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EXHIBIT INDEX
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4.1 Certificate of Incorporation of the Company is incorporated by reference
to Exhibit 3.1 to the Company's Registration Statement on Form S-1 filed
with the Securities and Exchange Commission on February 5, 1999 (No.
333-71921)
4.2 Amended and Restated Bylaws of the Company are incorporated by reference
to Exhibit 3.3 to the Company's Registration Statement on Form S-1 filed
with the Securities and Exchange Commission on February 5, 1999 (No.
333-71921)
4.3 Agreement and Plan of Merger dated March 31, 1999 between Extreme
Networks, a California corporation, and the Company, is incorporated by
reference to Exhibit 2.1 to the Company's Registration Statement on Form
S-1 filed with the Securities and Exchange Commission on February 5, 1999
(No. 333-71921)
5 Legal Opinion of Gray Cary Ware & Freidenrich LLP
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Ernst & Young LLP, Independent Auditors
24 Power of Attorney (included in signature pages to this registration
statement)