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As filed with the Securities and Exchange Commission on October 25, 2000
Registration No. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
________________
Foundry Networks, Inc.
(Exact name of Registrant as specified in its charter)
Delaware 77-0431154
(State of incorporation) (I.R.S. Employer Identification No.)
2100 Gold Street
P.O. Box 649100
San Jose, CA 95164-9100
(Address of principal executive offices)
_______________________
2000 Non-Executive Stock Option Plan
(Full title of the Plans)
_______________________
Bobby R. Johnson, Jr.
President and Chief Executive Officer
Foundry Networks, Inc.
2100 Gold Street
P.O. Box 649100
San Jose, CA 95164-9100
(408) 586-1700
(Name, address and telephone number, including area code, of agent for service)
_______________________
Copy to:
Joshua L. Green
Venture Law Group
A Professional Corporation
2800 Sand Hill Road
Menlo Park, California 94025
(650) 854-4488
(Calculation of Registration Fee on following page)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum Maximum Amount of
Amount to be Offering Price Aggregate Registration
Title of Securities to be Registered Registered(1) Per Share Offering Price Fee
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<S> <C> <C> <C> <C>
2000 Non-Executive Stock Option Plan
Common Stock,
0.0001 par value................... 1,996,188 Shares $77.19 (2) $154,085,751.72 $40,678.64
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_______________________
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under any of the Plans being registered
pursuant to this Registration Statement by reason of any stock dividend,
stock split, recapitalization or any other similar transaction effected
without the receipt of consideration which results in an increase in the
number of the Registrant's outstanding shares of Common Stock.
(2) Estimated in accordance with Rule 457(h) under the Securities Act solely
for the purpose of calculating the registration fee. The computation with
respect to unissued options is based upon the average high and low sale
prices of the Common Stock as reported on the Nasdaq National Market on
October 19, 2000.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents filed with the Securities and Exchange Commission
(the "Commission") are hereby incorporated by reference:
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(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999 (File No. 000-26689).
(b) The Registrant's Amendment to the Annual Report on Form 10-K/A for the
fiscal year ended December 31, 1999 (File No. 000-26689).
(c) The Registrant's Quarterly Reports on Form 10-Q for the quarters ended
June 30, 2000 (File No. 000-26689) and March 31, 2000 (File No. 000-26689).
(d) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the Commission under
Section 12 of the Securities Exchange Act of 1934 (the "Exchange Act") on July
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13, 1999, including any amendment or report filed for the purpose of updating
such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment which indicates that all securities offered hereby 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 such documents.
Item 4. Description of Securities. Not applicable.
-------------------------
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Item 5. Interests of Named Experts and Counsel.
--------------------------------------
As of the date of this Registration Statement, an investment fund
affiliated with Venture Law Group and attorneys of the firm who work on matters
for the Company beneficially own approximately 16,484 shares of the Company's
Common Stock.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
The Registrant's Certificate of Incorporation limits the liability of
directors to the maximum extent permitted by Delaware law. Delaware law provides
that directors of a corporation will not be personally liable for monetary
damages for breach of their fiduciary duties as directors, except liability for
(i) any breach of their duty of loyalty to the corporation or its stockholders,
(ii) acts or omissions not in good faith or that involve intentional misconduct
or a knowing violation of law, (iii) unlawful payments of dividends or unlawful
stock repurchases or redemptions as provided in Section 174 of the Delaware
General Corporation Law, or (iv) any transaction from which the director derives
an improper personal benefit.
This limitation of liability does not apply to liabilities arising under
the federal securities laws and does not affect the availability of equitable
relief such as injunctive relief or rescission.
The Registrant's bylaws provide that it shall indemnify its directors and
officers and may indemnify its employees and other agents to the full extent
permitted by law. The Registrant believes that indemnification under its bylaws
will cover at least negligence and gross negligence on the part of an
indemnified party. The Registrant's bylaws will also permit it to advance
expenses incurred by an indemnified party in connection with the defense of any
action or proceeding arising out of the party's status or service as a director,
officer, employee or other agent of the Registrant upon an undertaking by the
indemnified party to repay these advances if it is ultimately determined that
the party is not entitled to indemnification.
The Registrant has also entered into indemnification agreements with its
officers and directors containing provisions that are in some respects broader
than the specific indemnification provisions contained in the Delaware General
Corporation Law. The indemnification agreements require the Registrant to
indemnify officers and directors against liabilities that may arise by reason of
their status or service as officers and directors, but not for liabilities
arising from willful misconduct of a culpable nature, and to advance their
expenses incurred as a result of any proceeding against them as to which they
could be indemnified. The Registrant also maintains liability insurance for the
benefit of its officers and directors.
Item 7. Exemption from Registration Claimed. Not applicable.
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Item 8. Exhibits.
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Exhibit
Number
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4.1 2000 Non-Executive Stock Option Plan
4.2 Form of Notice of Stock Option Grant and Nonstatutory Stock
Option Agreement for 2000 Non-Executive Stock Option Plan
5.1 Opinion of Venture Law Group, a Professional Corporation.
23.1 Consent of Venture Law Group, a Professional Corporation
(included in Exhibit 5.1).
23.2 Consent of Independent Public Accountants.
24.1 Power of Attorney (see page II-5).
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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 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 purposes 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 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 the 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 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 a
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered hereunder, the Registrant will, unless in the opinion of its counsel
the question has already been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question of 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.
[Signature Pages Follow]
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Foundry Networks, Inc., a corporation organized and existing under the laws of
the State of Delaware, 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 this October
25, 2000.
Foundry Networks, Inc.
By: /s/ Timothy D. Heffner
-------------------------
Timothy D. Heffner
Vice President, Finance &
Administration,
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 Bobby R. Johnson, Jr. and Timothy D.
Heffner, jointly and severally, his or her attorneys-in-fact and agents, each
with the power of substitution and resubstitution, for him or her and in his or
her name, place or stead, in any and all capacities, to sign any amendments to
this Registration Statement on Form S-8, and to file such amendments, together
with exhibits and other documents in connection therewith, with the Securities
and Exchange Commission, granting to each attorney-in-fact and agent, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully as he or she might or
could do in person, and ratifying and confirming all that the attorneys-in-fact
and agents, or his or her substitute or substitutes, may do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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Signature Title Date
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<S> <C> <C>
/s/ Bobby R. Johnson, Jr. President, Chief Executive Officer and October 25, 2000
--------------------------- Chairman of the Board of Directors
Bobby R. Johnson, Jr. (Principal Executive Officer)
/s/ Timothy D. Heffner Vice President, Finance & Administration, October 25, 2000
--------------------------- Chief Financial Officer (Principal
Timothy D. Heffner Financial and Accounting Officer)
/s/ Seth D. Neiman Director October 25, 2000
---------------------------
Seth D. Neiman
/s/ Andrew K. Ludwick Director October 25, 2000
---------------------------
Andrew K. Ludwick
/s/ Alfred J. Amoroso Director October 25, 2000
---------------------------
Alfred J. Amoroso
/s/ C. Nicholas Keating, Jr. Director October 25, 2000
---------------------------
C. Nicholas Keating, Jr.
/s/ Steven Young Director October 25, 2000
---------------------------
Steven Young
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INDEX TO EXHIBITS
Exhibit
Number
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4.1 2000 Non-Executive Stock Option Plan
4.2 Form of Notice of Stock Option Grant and Nonstatutory Stock Option
Agreement for 2000 Non-Executive Stock Option Plan
5.1 Opinion of Venture Law Group, a Professional Corporation.
23.1 Consent of Venture Law Group, a Professional Corporation (included in
Exhibit 5.1).
23.2 Consent of Independent Public Accountants.
24.1 Power of Attorney (see page II-5).
