Securities Registration: Employee Benefit Plan (s-8)
June 03 2016 - 4:26PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on June 3, 2016
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES
ACT OF 1933
BROCADE COMMUNICATIONS SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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77-0409517
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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130 Holger Way
San Jose, CA 95134
(Address of Principal Executive Offices) (Zip Code)
Brocade Communications Systems, Inc. Amended and Restated Inducement Award Plan
Brocade Communications Systems, Inc. 2009 Employee Stock Purchase Plan (as amended and restated on April 7, 2016)
(Full titles of the plans)
Ellen A. O’Donnell
Senior Vice President, General Counsel and Corporate Secretary
Brocade Communications Systems, Inc.
130 Holger Way
San Jose,
California 95134
(408) 333-8000
(Name, address and telephone number, including area code, of agent for service)
Copies to:
Rob R. Carlson, Esq.
Paul Hastings
LLP
1117 S. California Avenue
Palo Alto, California 94304
Indicate by check mark whether
the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting
company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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þ
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Accelerated filer
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¨
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Non-accelerated filer
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¨
(Do not check if a smaller reporting company)
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Smaller reporting company
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¨
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CALCULATION OF REGISTRATION FEE
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Title of securities
to be registered
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Amount
to be
registered
(1)
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Proposed
maximum
offering
price
per share (2)
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Proposed
maximum
aggregate
offering price (2)
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Amount of
registration fee
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Common Stock, par value $0.00001 per share
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- Issuable under the Amended and Restated
Inducement Award Plan
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13,795,761(3)
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$8.615
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$118,850,481.02
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$11,968.25
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- Issuable under the 2009 Employee Stock
Purchase Plan (as amended and restated on April 7, 2016)
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20,000,000(4)
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$8.615
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$172,300,000.00
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$17,350.61
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Total
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33,795,761
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—
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$291,150,481.02
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$29,318.86(5)
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(1)
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Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this registration statement (this “Registration Statement”) shall also cover any additional shares of the
common stock, $0.001 par value per share (the “Common Stock”), of Brocade Communications Systems, Inc. (the “Registrant”) that become issuable under the Brocade Communications Systems, Inc. Amended and Restated Inducement Award
Plan (the “Inducement Plan”) and the Brocade Communications Systems, Inc. 2009 Employee Stock Purchase Plan (as amended and restated on April 7, 2016) (the “ESPP”) by reason of any stock dividend, stock split, recapitalization or
other similar transaction effected without receipt of consideration that increases the number of outstanding shares of Common Stock.
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(2)
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Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c) and Rule 457(h) of the Securities Act. The proposed maximum offering price per share and the proposed maximum
aggregate offering price with respect to the shares are calculated based on $8.615 per share, the average of the high and low prices of the Common Stock, as reported on the Nasdaq Global Select Market on May 27, 2016, a date within five business
days prior to the filing of this Registration Statement.
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(3)
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22,000,000 additional shares of Common Stock were reserved for issuance under the Inducement Plan, including 2,400,000 shares that were assumed by the Registrant under pre-existing plans of Ruckus Wireless, Inc.
(“Ruckus”) pursuant to that certain Agreement and Plan of Merger by and among the Registrant, Stallion Merger Sub Inc. and Ruckus, dated April 3, 2016, 8,204,239 shares of Common Stock of which were registered pursuant to the
Post-Effective Amendment No. 1 to Form S-4 on Form S-8 Registration Statement (File No. 333-211039) filed by the Registrant with the Commission on June 3, 2016 (the “2016 Registration Statement”).
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(4)
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Represents 20,000,000 additional shares of Common Stock reserved for issuance under the ESPP on April 7, 2016.
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(5)
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Pursuant to Rule 457(p) under the Securities Act, the total registration fee due is offset by an aggregate of $29,318.86, comprised of: (a) $5,795.00, the filing fee previously paid by Ruckus, a wholly-owned
subsidiary of the Registrant, that corresponds to 6,254,179 unissued and unsold shares of Ruckus’ common stock (“Ruckus Stock”) registered pursuant to the Registration Statement on Form S-8 (File No. 333-209670) filed by Ruckus with
the Securities and Exchange Commission (the “Commission”) on February 24, 2016 (the “2016 Ruckus Registration Statement”), (b) $7,400.59, the filing fee previously paid by Ruckus that corresponds to 5,957,753 unissued and unsold
shares of Ruckus Stock registered pursuant to the Registration Statement on Form S-8 (File No. 333-202285) filed by Ruckus with the Commission on February 25, 2015 (the “2015 Ruckus Registration Statement”), (c) $10,032.45, the filing fee
previously paid by Ruckus that corresponds to 5,648,420 unissued and unsold shares of Ruckus Stock registered pursuant to the Registration Statement on Form S-8 (File No. 333-194286) filed by Ruckus with the Commission on March 3, 2014 (the
“2014 Ruckus Registration Statement”), and (d) $6,090.82, the filing fee previously paid by Ruckus that corresponds to 2,209,506 unissued and unsold shares of Ruckus Stock registered pursuant to the Registration Statement on Form S-8 (File
No. 333-187054) filed by Ruckus with the Commission on March 5, 2013 (the “2013 Ruckus Registration Statement” and, together with the 2016 Ruckus Registration Statement, the 2015 Ruckus Registration Statement and the 2014 Ruckus
Registration Statement, the “Prior Ruckus Registration Statements”). Accordingly, no registration fee is due. The Registrant is concurrently filing post-effective amendments to the Prior Ruckus Registration Statements to deregister the
unissued and unsold shares of Ruckus Stock registered thereunder.
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REGISTRATION OF ADDITIONAL SECURITIES
The Registrant has prepared this Registration Statement in accordance with the requirements of Form S-8 under the Securities Act to register:
(1) 13,795,761 additional shares of Common Stock issuable pursuant to the Inducement Plan, and (2) 20,000,000 additional shares of Common Stock issuable pursuant to the ESPP.
Pursuant to: (a) the Registration Statement on Form S-8 (File No. 333-192886) filed by the Registrant with the Commission on December 16, 2013
(the “2013 Registration Statement”), the Registrant previously registered 2,400,000 shares of Common Stock issuable pursuant to the Inducement Plan; and (b) the 2016 Registration Statement, the Registrant previously registered 8,204,239
shares of Common Stock issuable pursuant to the Inducement Plan. The Registrant also filed: (i) a Registration Statement on Form
S-8
(File No. 333-158874) with the Commission on April 29, 2009, pursuant to
which the Registrant registered 35,000,000 shares of Common Stock issuable pursuant to the ESPP (the “2009 Registration Statement”); and (ii) a Registration Statement on Form S-8 (File No. 333-181851) with the Commission on June 1, 2012,
pursuant to which the Registrant registered 30,000,000 additional shares of Common Stock issuable pursuant to the ESPP (the “2012 Registration Statement” and, together with the 2013 Registration Statement, the 2016 Registration Statement
and the 2009 Registration Statement, the “Prior Registration Statements”).
This Registration Statement relates to securities of
the same class as that to which the Prior Registration Statements relate, and is submitted in accordance with General Instruction E to Form S-8 regarding Registration of Additional Securities. In accordance with General Instruction E to Form S-8,
the contents of the Prior Registration Statements are hereby incorporated by reference, except as amended hereby.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Commission are hereby incorporated by reference into this Registration Statement:
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(a)
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The Registrant’s Annual Report on Form 10-K for the fiscal year ended October 31, 2015 filed with the Commission on December 22, 2015;
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(b)
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The Registrant’s Quarterly Report on Form 10-Q for the quarter ended January 30, 2016 filed with the Commission on March 4, 2016;
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(c)
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The Registrant’s Quarterly Report on Form 10-Q for the quarter ended April 30, 2016 filed with the Commission on June 3, 2016;
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(d)
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The Registrant’s Current Report on Form 8-K filed with the Commission on January 29, 2016;
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(e)
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The Registrant’s Current Report on Form 8-K filed with the Commission on February 9, 2016;
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(f)
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The Registrant’s Current Report on Form 8-K filed with the Commission on April 4, 2016;
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(g)
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The Registrant’s Current Report on Form 8-K filed with the Commission on April 13, 2016;
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(h)
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The Registrant’s Current Report on Form 8-K filed with the Commission on May 2, 2016 (only with respect to the information filed under Item 8.01 thereof);
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(i)
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The Registrant’s Current Report on Form 8-K filed with the Commission on May 19, 2016 (only with respect to the information filed under Item 8.01 thereof);
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(j)
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The Registrant’s Current Report on Form 8-K filed with the Commission on May 27, 2016; and
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(k)
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The description of the Registrant’s common stock set forth in the Registration Statement on Form 8-A filed with the Commission on March 19, 1999 (File No. 000-25601) pursuant to Section 12(g) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), including any amendments or reports filed for the purpose of updating such description.
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All other reports and other documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 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 into this Registration
Statement and to be a part of this Registration Statement from the
date of the filing of such reports and documents, except as to any portion of any future annual or quarterly
report to stockholders or document or current report furnished under Items 2.02, 7.01 or 9.01 of Form 8-K that is not deemed filed under such provisions.
For the purposes of this Registration Statement, any statement contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded to the extent that a statement contained herein or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
You may contact the Registrant in writing or orally to request copies of the above-referenced filings, without charge (excluding exhibits to
such documents unless such exhibits are specifically incorporated by reference into the information incorporated into this Registration Statement). Requests for such information should be directed to:
Brocade Communications Systems, Inc.
130 Holger Way
San Jose,
California 95134
(408) 333-8000
Attn: Corporate Secretary
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 June 3, 2016.
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BROCADE COMMUNICATIONS SYSTEMS, INC.
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By:
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/s/ Daniel W. Fairfax
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Name:
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Daniel W. Fairfax
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Title:
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Senior Vice President and Chief Financial Officer
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POWER OF ATTORNEY
K
NOW
A
LL
P
ERSONS
B
Y
T
HESE
P
RESENTS
, that each person whose signature appears below constitutes and appoints Lloyd A. Carney and Daniel W. Fairfax, and each or any one of them, as his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his
substitutes or substitute, may lawfully 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
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TITLE
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DATE
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/s/ Lloyd A. Carney
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Director and Chief Executive Officer
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June 3, 2016
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Lloyd A. Carney
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(Principal Executive Officer)
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/s/ Daniel W. Fairfax
Daniel W. Fairfax
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Senior Vice President and Chief Financial Officer
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June 3, 2016
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(Principal Financial and Accounting Officer)
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/s/ David L. House
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Chairman of the Board of Directors
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June 3, 2016
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David L. House
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/s/ Judy Bruner
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Director
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June 3, 2016
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Judy Bruner
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/s/ Renato A. DiPentima
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Director
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June 3, 2016
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Renato A. DiPentima
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/s/ Alan L. Earhart
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Director
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June 3, 2016
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Alan L. Earhart
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/s/ John W. Gerdelman
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Director
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June 3, 2016
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John W. Gerdelman
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/s/ Kim C. Goodman
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Director
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June 3, 2016
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Kim C. Goodman
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/s/ L. William Krause
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Director
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June 3, 2016
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L. William Krause
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/s/ David E. Roberson
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Director
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June 3, 2016
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David E. Roberson
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/s/ Sanjay Vaswani
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Director
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June 3, 2016
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Sanjay Vaswani
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EXHIBIT INDEX
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Exhibit
Number
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Description
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10.1
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Brocade Communications Systems, Inc. Amended and Restated Inducement Award Plan (incorporated by reference to Exhibit 10.1 from the Registrant’s Post-Effective Amendment No. 1 to Form S-4 on Form S-8 Registration Statement
(File No. 333-211039) filed with the Commission on June 3, 2016)
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10.2
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Brocade Communications Systems, Inc. 2009 Employee Stock Purchase Plan, as amended and restated on April 7, 2016 (incorporated by reference to Exhibit 10.2 from the Registrant’s Current Report on Form 8-K filed with the
Commission on April 13, 2016)
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5.1*
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Opinion of Paul Hastings LLP
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23.1*
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Consent of KPMG LLP, Independent Registered Public Accounting Firm
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23.2*
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Consent of Paul Hastings LLP is contained in Exhibit 5.1 to this Registration Statement
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24.1*
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Power of Attorney is contained on the signature page
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