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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 13, 2000
REGISTRATION NO. 333-38106
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MCDATA CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C> <C>
DELAWARE 3669 84-1421844
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
310 INTERLOCKEN PARKWAY
BROOMFIELD, CO 80021
(303) 460-9200
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
JOHN F. MCDONNELL
PRESIDENT AND CHIEF EXECUTIVE OFFICER
MCDATA CORPORATION
310 INTERLOCKEN PARKWAY
BROOMFIELD, CO 80021
(303) 460-9200
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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COPIES TO:
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MARGARET A. BROWN, ESQ. PAUL T. DACIER, ESQ. WILLIAM J. SCHNOOR, JR., ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & SENIOR VICE PRESIDENT AND TESTA, HURWITZ & THIBEAULT, LLP
FLOM LLP GENERAL COUNSEL HIGH STREET TOWER
ONE BEACON STREET EMC CORPORATION 125 HIGH STREET
BOSTON, MA 02180 35 PARKWOOD DRIVE BOSTON, MA 02110
(617) 573-4800 HOPKINTON, MA 01748 (617) 248-7000
(508) 435-1000
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
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If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration number of the earlier effective
registration statement for the same offering. [ ] ____________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement of the same
offering. [ ] ____________
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement of the same
offering. [ ] ____________
If a delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT WILL
BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses, other than underwriting discounts and commissions, expected
to be incurred by us in connection with the issuance and distribution of the
securities being registered under this registration statement are estimated to
be as follows:
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Securities and Exchange Commission registration fee......... $
NASD filing fees............................................
The Nasdaq National Market listing fee......................
Printing and engraving expenses.............................
Legal fees and expenses.....................................
Accounting fees and expenses................................
Blue Sky fees and expenses (including legal fees)........... *
Registrar and Transfer agent fees........................... *
Miscellaneous............................................... *
--------
Total..................................................... $ *
========
</TABLE>
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* To be filed by Amendment.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporate Law permits indemnification
of officers, directors and other corporate agents under certain circumstances
and subject to certain limitations. Our amended and restated certificate of
incorporation and our amended and restated by-laws, provide that we shall
indemnify our directors and officers to the fullest extent authorized or
permitted by law.
Our amended and restated certificate of incorporation further provides that
our directors will not be personally liable to us or any stockholder for
monetary damages for breach of fiduciary duty, except to the extent such
exemption is not permitted by law. Section 102 of the Delaware General Corporate
Law provides that officers and directors will not be personally liable for
monetary damages for breach of their fiduciary duties as directors, except
liability for:
- any breach of their duty of loyalty to the corporation or its
stockholders;
- acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; or
- unlawful payments of dividends or unlawful stock repurchases or
redemption.
This provision has no effect on any non-monetary remedies that may be
available to us or our stockholders, nor does it relieve us or our officers or
directors from compliance with federal or state securities laws.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling us
pursuant to the foregoing provisions or otherwise, we have been informed that in
the opinion of the Securities and Exchange Commission, such indemnification is
against public policy as expressed in the Securities Act of 1933 and is
therefore unenforceable.
Our amended and restated by-laws also permit us to purchase and maintain
insurance on behalf of any officer or director for any liability arising out of
his or her actions in such capacity, regardless
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of whether our by-laws would otherwise permit indemnification for that
liability. We currently have directors' and officers' liability insurance which
would indemnify our directors and officers against damages arising out of claims
which might be made against them based on their negligent acts or omissions
while acting in their capacity as officers and directors.
The underwriting agreement provides that the underwriters are obligated,
under certain circumstances, to indemnify our directors, officers and
controlling persons against some liabilities, including liabilities under the
Securities Act of 1933. Reference is made to the form of underwriting agreement
filed as Exhibit 1.1 hereto.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
In the three years preceding the filing of this registration statement, we
have issued the securities set forth below that were not registered under the
Securities Act of 1933. The share amounts and option exercise prices set forth
below have been adjusted to give effect to the 2-for-1 stock split of the common
stock to be effected prior to the closing of this offering.
(a) Issuance of Capital Stock.
On October 1, 1997, we sold 81,000,000 shares of our Class A common stock
in exchange for substantially all of the assets of McDATA Holdings Corporation
pursuant to the Asset Transfer Agreement among us, McDATA Holdings Corporation
and EMC Corporation dated as of October 1, 1997.
On October 1, 1997, we sold 10,000,000 shares of our Class B common stock
for an aggregate purchase price of $10,000,000.
No underwriters were involved in the foregoing sales of securities. The
sales of capital stock were made in reliance upon an exemption from registration
under the Securities Act of 1933 provided by Section 4(2) of the Securities Act,
and its related rules and regulations, regarding sales by an issuer not
involving a public offering. All of the foregoing securities are deemed
restricted securities for purposes of the Securities Act of 1933.
(b) Grants and Exercises of Stock Options.
From inception through April 30, 2000, we granted stock options to purchase
17,910,700 shares of our Class B common stock at exercise prices ranging from
$1.00 to $13.75 per share to employees and directors pursuant to our 1997 Stock
Option Plan.
From inception through April 30, 2000, we issued and sold an aggregate of
2,774,810 shares of our Class B common stock to employees and directors for
aggregate consideration of $2,808,000 pursuant to exercises of options granted
under our 1997 Stock Option Plan.
The issuance of options and the issuance of Class B common stock upon the
exercise of these options was exempt from registration under the Securities Act
of 1933 either pursuant to Rule 701 under the Securities Act of 1933, as a
transaction pursuant to a compensatory benefit plan, or pursuant to this Section
4(2) of the Securities Act of 1933, as a transaction by an issuer not involving
a public offering. All of the foregoing securities are deemed restricted
securities for purposes of the Securities Act of 1933.
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ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) EXHIBITS.
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EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
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1.1* Form of Underwriting Agreement
3.1 Amended and Restated Certificate of Incorporation of the
Registrant, to be effective upon the closing of the offering
made pursuant to this Registration Statement
3.2 Amended and Restated Bylaws of the Registrant, to be
effective upon the closing of the offering made pursuant to
this Registration Statement
4.1* Form of Registrant's Class B Common Stock Certificate
4.2** Investors' Rights Agreement dated as of October 1, 1997 by
and among the Registrant, EMC Corporation, McDATA Holdings
Corporation and Certain Investors
4.3 Amendment No. 1 to the Investors' Rights Agreement dated May
23, 2000 by and among the Registrant, McDATA Holdings
Corporation and certain Investors
5.1* Opinion of Paul T. Dacier, Esq.
10.1** Asset Transfer Agreement dated as of October 1, 1997 by and
among the Registrant, EMC Corporation, and McDATA Holdings
Corporation
10.2** Investors' Rights Agreement dated as of October 1, 1997 by
and among the Registrant, EMC Corporation, McDATA Holdings
Corporation and certain Investors (see Exhibit 4.2)
10.3 Amendment No. 1 to the Investors' Rights Agreement dated May
23, 2000 by and among the Registrant, McDATA Holdings
Corporation and certain Investors (see Exhibit 4.3)
10.4** Services Agreement dated as of October 1, 1997 by and among
EMC Corporation, McDATA Holdings Corporation and the
Registrant
10.5** Letter Agreement dated April 19, 1999 by and between the
Registrant and McDATA Holdings Corporation
10.6** Technology Rights Agreement dated as of October 1, 1997 by
and among the Registrant, EMC Corporation and McDATA
Holdings Corporation
10.7 Amended and Restated Tax Sharing Agreement dated as of May
31, 2000 by and among EMC Corporation, McDATA Holdings
Corporation and the Registrant
10.8** Form of Master Transaction Agreement to be entered into by
and among the Registrant and EMC Corporation
10.9** Form of Indemnification and Insurance Matters Agreement to
be entered into by and among the Registrant and EMC
Corporation
10.10 Master Confidential Disclosure and License Agreement dated
as of May 31, 2000 by and among the Registrant and EMC
Corporation
10.11**+ Reseller Agreement dated as of February 22, 2000 by and
between IBM and the Registrant
10.12+ OEM Purchase and License Agreement dated as of May 19, 2000
by and between EMC Corporation and the Registrant
10.13+ Development Agreement dated as of May 19, 2000 by and
between EMC Corporation and the Registrant
10.14**+ Manufacturing Agreement dated as of June 17, 1996 by and
between SCI Systems, Inc. and the Registrant, Addendum
Number 1 thereto, dated as of May 23, 1996 and Addendum
Number 2 thereto, dated as of April 30, 1998
</TABLE>
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<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------- -----------------------
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10.15**+ OEM and License Agreement dated as of April 27, 1999 by and
between Brocade Communication Systems, Inc. and the
Registrant
10.16** Lease dated September 12, 1997 by and between the Registrant
and WHLNF Real Estate Limited Partnership
10.17** Lease dated November 2, 1999 by and between the Registrant
and the Mills Family LLC
10.18** Lease dated May 28, 1997 by and between the Registrant and
1211486 Ontario Limited
10.19** Form of Severance Agreement
10.20 1997 Stock Option Plan
10.21 Form of Stock Option Agreement for 1997 Stock Option Plan
10.22** Description of Registrant's Management Bonus Program
21.1** List of Subsidiaries of the Registrant
23.1** Consent of PricewaterhouseCoopers LLP, Independent
Accountants
23.2* Consent of Counsel (included in Exhibit 5.1)
24.1** Power of Attorney (included on the signature page in Part
II, as previously filed with the Securities and Exchange
Commission)
27.1** Financial Data Schedule
</TABLE>
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* To be filed by amendment.
** Previously filed.
+ Portions of this exhibit have been omitted and filed separately with the
Securities and Exchange Commission pending a request for confidential
treatment.
(b) FINANCIAL STATEMENT SCHEDULE(S).
Schedule II -- Valuation and Qualifying Accounts.
Schedules not listed above have been omitted because the information
required to be set forth therein is not applicable or it is shown in the
consolidated financial statements or notes thereto.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes to provide to the underwriter
at the closing specified in the underwriting agreement, certificates in the
denominations and registered in the names as required by the underwriter to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 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
of 1933 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
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indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
The Registrant hereby undertakes:
(1) That for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act of 1933 is deemed to be
part of this registration statement as of the time it was declared
effective.
(2) That for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form
of prospectus is deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time will be deemed to be the initial bona fide offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment No. 1 to the Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Broomfield, County of Boulder, State of Colorado, on the 13th day of June, 2000.
McDATA CORPORATION
By: /s/ JOHN F. MCDONNELL
------------------------------------
John F. McDonnell
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated and on the dates indicated.
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SIGNATURE TITLE DATE
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/s/ JOHN F. MCDONNELL Chairman of the Board, President and June 13, 2000
--------------------------------------------------- Chief Executive Officer (Principal
John F. McDonnell Executive Officer)
/s/ DEE J. PERRY Chief Financial Officer and Vice June 13, 2000
--------------------------------------------------- President of Finance and
Dee J. Perry Administration (Principal Financial
and Chief Accounting Officer)
* Director June 13, 2000
---------------------------------------------------
David A. Donatelli
* Director June 13, 2000
---------------------------------------------------
John W. Gerdelman
* Director June 13, 2000
---------------------------------------------------
Charles C. Johnston
* Director June 13, 2000
---------------------------------------------------
D. Van Skilling
* Director June 13, 2000
---------------------------------------------------
Thomas M. Uhlman
* Director June 13, 2000
---------------------------------------------------
Laurence G. Walker
</TABLE>
*By: /s/ DEE J. PERRY
--------------------------------
Dee J. Perry
attorney-in-fact
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EXHIBIT INDEX
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<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
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1.1* Form of Underwriting Agreement
3.1 Amended and Restated Certificate of Incorporation of the
Registrant, to be effective upon the closing of the offering
made pursuant to this Registration Statement
3.2 Amended and Restated Bylaws of the Registrant, to be
effective upon the closing of the offering made pursuant to
this Registration Statement
4.1* Form of Registrant's Class B Common Stock Certificate
4.2** Investors' Rights Agreement dated as of October 1, 1997 by
and among the Registrant, EMC Corporation, McDATA Holdings
Corporation and Certain Investors
4.3 Amendment No. 1 to the Investors' Rights Agreement dated May
23, 2000 by and among the Registrant, McDATA Holdings
Corporation and certain Investors
5.1* Opinion of Paul T. Dacier, Esq.
10.1** Asset Transfer Agreement dated as of October 1, 1997 by and
among the Registrant, EMC Corporation, and McDATA Holdings
Corporation
10.2** Investors' Rights Agreement dated as of October 1, 1997 by
and among the Registrant, EMC Corporation, McDATA Holdings
Corporation and certain Investors (see Exhibit 4.2)
10.3 Amendment No. 1 to the Investors' Rights Agreement dated May
23, 2000 by and among the Registrant, McDATA Holdings
Corporation and certain Investors (see Exhibit 4.3)
10.4** Services Agreement dated as of October 1, 1997 by and among
EMC Corporation, McDATA Holdings Corporation and the
Registrant
10.5** Letter Agreement dated April 19, 1999 by and between the
Registrant and McDATA Holdings Corporation
10.6** Technology Rights Agreement dated as of October 1, 1997 by
and among the Registrant, EMC Corporation and McDATA
Holdings Corporation
10.7 Amended and Restated Tax Sharing Agreement dated as of May
31, 2000 by and among EMC Corporation, McDATA Holdings
Corporation and the Registrant
10.8** Form of Master Transaction Agreement to be entered into by
and among the Registrant and EMC Corporation
10.9** Form of Indemnification and Insurance Matters Agreement to
be entered into by and among the Registrant and EMC
Corporation
10.10 Master Confidential Disclosure and License Agreement dated
as of May 31, 2000 by and among the Registrant and EMC
Corporation
10.11**+ Reseller Agreement dated as of February 22, 2000 by and
between IBM and the Registrant
10.12+ OEM Purchase and License Agreement dated as of May 19, 2000
by and between EMC Corporation and the Registrant
10.13+ Development Agreement dated as of May 19, 2000 by and
between EMC Corporation and the Registrant
10.14**+ Manufacturing Agreement dated as of June 17, 1996 by and
between SCI Systems, Inc. and the Registrant, Addendum
Number 1 thereto, dated as of May 23, 1996 and Addendum
Number 2 thereto, dated as of April 30, 1998
10.15**+ OEM and License Agreement dated as of April 27, 1999 by and
between Brocade Communication Systems, Inc. and the
Registrant
10.16** Lease dated September 12, 1997 by and between the Registrant
and WHLNF Real Estate Limited Partnership
</TABLE>
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<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
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10.17** Lease dated November 2, 1999 by and between the Registrant
and the Mills Family LLC
10.18** Lease dated May 28, 1997 by and between the Registrant and
1211486 Ontario Limited
10.19** Form of Severance Agreement
10.20 1997 Stock Option Plan
10.21 Form of Stock Option Agreement for 1997 Stock Option Plan
10.22** Description of Registrant's Management Bonus Program
21.1** List of Subsidiaries of the Registrant
23.1** Consent of PricewaterhouseCoopers LLP, Independent
Accountants
23.2* Consent of Counsel (included in Exhibit 5.1)
24.1** Power of Attorney (included on the signature page in Part
II, as previously filed with the Securities and Exchange
Commission)
27.1** Financial Data Schedule
</TABLE>
-------------------------
* To be filed by amendment.
** Previously filed.
+ Portions of this exhibit have been omitted and filed separately with the
Securities and Exchange Commission pending a request for confidential
treatment.
