As Filed with the Securities and Exchange Commission on February 14, 2001
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.
Individual Option Agreements Granted Under
the Optranet, Inc. 2000 Stock Option Plan and
Assumed by Extreme Networks, Inc.
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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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CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of Securities Amount to be offering price aggregate offering Amount of
to be registered/1/ registered/2/ per share/3/ price/3/ registration fee
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Assumed Options
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Common Stock 608,561 $1.22 $742,444.40 $185.61
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. The prices for the individual option agreements granted under
the Optranet, Inc. 2000 Stock Option Plan and assumed by Extreme Networks, Inc.,
are computed on the basis of the weighted average exercise price.
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 for the year ended July
2, 2000, 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, as filed with the Commission on September 29, 2000.
(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 February 6, 2001, certain attorneys of GCWF
(directly and indirectly) owned approximately 20,024 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 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:
(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.
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 February 13
2001.
Extreme Networks, Inc.
By: /s/ Vito E. Palermo
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Vito E. Palermo
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 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 indicated on February 13 2001.
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/ Vito E. Palermo Officer and Secretary
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Vito E. Palermo (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
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)
EXHIBIT 5
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[LETTERHEAD OF GRAY CARY WARE & FREIDENRICH LLP]
400 Hamilton Avenue, Palo Alto, CA 94301-1825
Phone: 650-833-2000 Fax: 650-327-3699 www.graycary.com
February 13 2001
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 608,561 shares of the
Common Stock, $0.001 par value, of the Company which may be issued pursuant to
the exercise of options granted under the Optranet, Inc. 2000 Stock Option Plan
and assumed by the Company (the "Assumed Options") pursuant to a Voting and
Buyout Agreement dated as of March 17, 2000 (the "Voting and Buyout Agreement"),
by and among the Company and Optranet, Inc., a Delaware corporation.
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 608,561 shares of
Common Stock which may be issued upon the exercise of the Assumed Options 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
Assumed Options and the Voting and Buyout 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
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. Individual Option Agreements
Granted Under the Optranet, Inc. 2000 Option Plan and Assumed by Extreme
Networks, Inc. of our report dated July 18, 2000, except for Note 9, as to which
the date is August 24, 2000, with respect to the consolidated financial
statements and schedule of Extreme Networks, Inc. for the year ended July 2,
2000 included in its Annual Report on Form 10-K, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
Palo Alto, California
February 8, 2001
