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As filed with the Securities and Exchange Commission on January 16, 2001
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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BROCADE COMMUNICATIONS SYSTEMS, INC.
(Exact name of Registrant as specified in its charter)
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Delaware 77-0059429
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
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1745 Technology Drive
San Jose, California 95110
(408) 487-8000
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
1999 STOCK PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
1999 NONSTATUTORY STOCK OPTION PLAN
(Full title of the plans)
Michael J. Byrd
Chief Financial Officer
BROCADE COMMUNICATIONS SYSTEMS, INC.
1745 Technology Drive
San Jose, California 95110
(Telephone number, including area code, of agent for service)
(408) 487-8000
Copy to:
Alisande M. Rozynko, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
(650) 493-9300
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AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
BE REGISTERED REGISTERED PER SHARE PRICE REGISTRATION FEE
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Common Stock to be issued under the 1999
Stock Plan (1) 11,127,934 $76.1563 $847,462,280.08 $211,865.57
Common Stock to be issued under the 1999
Employee Stock Purchase Plan (2) 5,563,966 $64.7329 $360,171,654.60 $ 90,042.91
Common Stock to be issued under the 1999
Nonstatutory Stock Option Plan (1) 8,400,000 $76.1563 $639,712,920.00 $159,928.23
TOTAL: 12,545,950 $461,836.71
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(1) Estimated in accordance with Rule 457(c) promulgated under the Securities
Act of 1933, as amended, solely for the purpose of calculating the amount
of the registration fee based on the average of the high and low prices per
share of the Common Stock as reported on the Nasdaq National Market on
January 8, 2001.
(2) Estimated in accordance with Rule 457(c) of the Securities Act solely for
the purpose of calculating the registration fee based on 85% of the average
of the high and low prices per share of the Common Stock as reported on the
Nasdaq National Market on January 8, 2001.
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BROCADE COMMUNICATIONS SYSTEMS, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INFORMATION INCORPORATED BY REFERENCE.
There are hereby incorporated by reference in this Registration Statement
the following documents and information heretofore filed with the Securities and
Exchange Commission:
1. The Company's Prospectus filed May 25, 1999 pursuant to Rule 424(b)(1)
of the Securities Act of 1933, as amended (the "Securities Act") relating to the
Company's initial public offering of its Common Stock.
2. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A dated March 19, 1999, filed
pursuant to Section 12 of the Securities Exchange Act of 1934 (the "Exchange
Act"), and any further amendment or report filed hereafter for the purpose of
updating such description.
3. The Company's Annual Report on Form 10-K/A for the fiscal year ended
October 31, 1999.
4. The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended January 29, 2000.
5. The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended April 29, 2000.
6. The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended July 29, 2000.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act on or after the date of this Registration
Statement and 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 in this
Registration Statement and to be part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Larry W. Sonsini, a director of the Registrant, is a member of Wilson
Sonsini Goodrich & Rosati, which has given an opinion upon the validity of the
securities being registered by this Registration Statement.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145(a) of the Delaware General Corporation Law (the "DGCL")
provides in relevant part that "[a] corporation shall have power to indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
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enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding if the person acted in good
faith and in a manner the person reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe the person's conduct was
unlawful." With respect to derivative actions, Section 145(b) of the DGCL
provides in relevant part that "[a] corporation shall have power to indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor...[by reason of the person's
service in one of the capacities specified in the preceding sentence] against
expenses (including attorneys' fees) actually and reasonably incurred by the
person in connection with the defense or settlement of such action or suit if
the person acted in good faith and in a manner the person reasonably believed to
be in or not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper."
The Company's Amended and Restated Certificate of Incorporation provides
that to the fullest extent permitted by the DGCL, no director of the Company
shall be personally liable to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director. The Restated Certificate of
Incorporation also provides that no amendment or repeal of such provision shall
apply to or have any effect on the right to indemnification permitted thereunder
with respect to claims arising from acts or omissions occurring in whole or in
part before the effective date of such amendment or repeal whether asserted
before or after such amendment or repeal.
The Company's Bylaws provide for the indemnification of officers, directors
and third parties acting on behalf of the Company if such person acted in good
faith and in a manner reasonably believed to be in and not opposed to the best
interest of the Company, and, with respect to any criminal action or proceeding,
the indemnified party had no reason to believe his or her conduct was unlawful.
The Company has entered into indemnification agreements with its directors and
executive officers and intends to enter into indemnification agreements with any
new directors and executive officers in the future.
The Company carries officer and director liability insurance with respect
to certain matters, including matters arising under the Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
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Exhibit
Number Description
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4.1* 1999 Stock Plan
4.2* 1999 Employee Stock Purchase Plan
4.4* 1999 Nonstatutory Stock Option Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation
23.1 Consent of Arthur Andersen, LLP, Independent Public Accountants
23.2 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (see page 6)
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* Incorporated by reference to the Registration Statement on Form S-8
(Commission File No. 333-95653) filed January 28, 2000.
ITEM 9. UNDERTAKINGS.
A) 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 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.
2) That, for the purpose of determining any liability under the
Securities Act, 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.
B) 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.
C) 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.
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SIGNATURES
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 San Jose, State of California, on January 12, 2001.
BROCADE COMMUNICATIONS SYSTEMS, INC.
By: /s/ Michael J. Byrd
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Michael J. Byrd,
Chief Financial Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Gregory L. Reyes and Michael J. Byrd, 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 to perform any acts necessary in order to file such amendments, and each
of the undersigned does hereby ratify and confirm all that said attorneys and
agents, 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 and on the dates indicated.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed on January 12, 2001 by the following persons in the
capacities indicated.
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SIGNATURE TITLE
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/s/ Gregory L. Reyes Director, President and Chief Executive Officer
--------------------------- (Principal Executive Officer)
Gregory L. Reyes
/s/ Michael J. Byrd Chief Financial Officer
--------------------------- (Principal Financial and Accounting Officer)
Michael J. Byrd
/s/ Seth Neiman Chairman of the Board
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Seth Neiman
/s/ Neal Dempsey Director
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Neal Dempsey
/s/ Mark Leslie Director
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Mark Leslie
/s/ Larry W. Sonsini Director
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Larry W. Sonsini
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INDEX TO EXHIBITS
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Exhibit
Number Description
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5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation
23.1 Consent of Independent Public Accountants
23.2 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (see page 6)
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