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As Filed with the Securities and Exchange Commission on July 26, 1999
Registration No. 333-_________
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,
1999 Employee Stock Purchase Plan and
an Individual Stock Option Agreement
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(Full title of the plan)
Vito E. Palermo
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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<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum maximum Amount of
Securities to be Amount to be offering price aggregate registration
registered/1/ registered/2/ per share/3/ offering price/3/ fee
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<S> <C> <C> <C> <C>
Amended 1996 Stock Option Plan
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Common Stock 4,681,267 $ 4.4394 $ 20,782,016.72
Par Value $0.001 194,750 $45.5426 $ 8,869,421.35
5,435,717 $ 59.09 $321,196,517.53
1999 Employee Stock Purchase Plan
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Common Stock 1,000,000 $ 50.23 $ 50,230,000.00
Par Value $0.001
Individual Stock Option Agreement for Tiho Strbac
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Common Stock 2,500 $ 1.00 $ 2,500.00
Par Value $0.001
TOTALS 11,314,234 $401,080,455.60 $111,500.37
</TABLE>
__________________________
/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 solely for purposes of calculating the
registration fee. As to shares subject to outstanding but unexercised options
under the Amended 1996 Stock Option Plan and the Individual Employee Stock
Option Agreement, the price is computed on the basis of the weighted average
exercise price. As to the remaining 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 July 20, 1999, as reported on the Nasdaq National Market. The
1999 Employee Stock Purchase Plan establishes a purchase price equal to 85% of
the fair market value of the Company's Common Stock, and, therefore, the price
for shares under this plan is based upon 85% of the average of the high and low
prices of the Common Stock on July 20, 1999, as reported on the Nasdaq National
Market.
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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 latest prospectus filed pursuant to Rule 424(b)
under the Securities Act of 1933, as amended (the "Securities Act") containing
audited financial statements for the Company's latest fiscal year ended June 30,
1998 and six months ended December 31, 1998. The prospectus was filed on Form
424B4 (No. 000-25711, effective April 9, 1999).
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (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-A12G filed on April 5, 1999 under the
Exchange Act.
All documents subsequently filed by the Company pursuant to Sections
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 July 19, 1999, certain attorneys of GCWF
(directly and indirectly) owned approximately 84,500 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 by 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
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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 July 23, 1999.
Extreme Networks, Inc.
By: /s/ VITO E. PALERMO
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Vito E. Palermo
Vice President, Chief Financial Officer
and Secretary
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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 Vito E. Palermo,
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 and on the dates indicated.
Signature Title Date
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/s/ GORDON L. STITT President, Chief Executive Officer July 23, 1999
- ------------------------- And Chairman of the Board
Gordon L. Stitt (Principal Executive Officer)
/s/ VITO E. PALERMO Vice President, Chief Financial July 23, 1999
- ------------------------- Officer and Secretary
Vito E. Palermo (Principal Financial and Accounting
Officer)
Director
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Charles Carinalli
/s/ PROMOD HAQUE Director July 23, 1999
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Promod Haque
/s/ LAWRENCE K.ORR Director July 18, 1999
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Lawrence K. Orr
/s/ PETER WOLKEN Director July 22, 1999
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Peter Wolken
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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 3.2 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 Opinion re legality
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)
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EXHIBIT 5
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[LETTERHEAD OF GRAY CARY WARE & FREIDENRICH LLP]
400 Hamilton Avenue, Palo Alto, CA 94301-1825
Phone: 650-328-6561 Fax: 650-327-3699 www.gcwf.com
July 23, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for Extreme Networks, Inc., a Delaware corporation (the
"Company"), we are rendering this opinion in connection with the registration
under the Securities Act of 1933, as amended, of up to 11,314,234 shares of the
Common Stock, $0.001 par value, of the Company which may be issued pursuant to
the exercise of options and purchase rights granted under the Amended 1996 Stock
Option Plan and 1999 Employee Stock Purchase Plan (the "Plans") and a certain
individual stock option agreement (the "Agreement").
We have examined all instruments, documents and records which we deemed relevant
and necessary for the basis of our opinion hereinafter expressed. In such
examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. We are admitted to
practice only in the State of California and we express no opinion concerning
any law other than the law of the State of California, the corporation laws of
the State of Delaware and the federal law of the United States. As to matters
of Delaware corporation law, we have based our opinion solely upon our
examination of such laws and the rules and regulations of the authorities
administering such laws, all as reported in standard, unofficial compilations.
We have not obtained opinions of counsel licensed to practice in jurisdictions
other than the State of California.
Based on such examination, we are of the opinion that the 11,314,234 shares of
Common Stock which may be issued under the Plans and the Agreement are duly
authorized shares of the Company's Common Stock, and, when issued against
receipt of the consideration therefor in accordance with the provisions of the
Plans and Agreement, will be validly issued, fully paid and nonassessable. We
hereby consent to the filing of this opinion as an exhibit to the Registration
Statement referred to above and the use of our name wherever it appears in said
Registration Statement.
Respectfully submitted,
/s/ Gray Cary Ware & Freidenrich LLP
GRAY CARY WARE & FREIDENRICH LLP
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EXHIBIT 23.2
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Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Extreme Networks, Inc. Amended 1996 Stock Option Plan,
1999 Employee Stock Purchase Plan and an Individual Stock Option Agreement of
our report dated February 3, 1999, with respect to the consolidated financial
statements of Extreme Networks, Inc. included in its Registration Statement on
Form S-1, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Palo Alto, California
July 23, 1999
