As filed with the Securities and Exchange Commission on August 3, 2001
File 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
RIVERSTONE NETWORKS, INC.
(Exact name of registrant as specified in its charter)
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Delaware 95-4596178
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
______________________________________
5200 Great America Parkway
Santa Clara, California 95054
(Address of principal executive offices, including zip code)
_______________________________
Riverstone Networks, Inc. 2000 Equity Incentive Plan (Amended and Restated)
Riverstone Networks, Inc. Employee Stock Purchase Plan
(Full title of the plans)
_______________________________________________
Mr. Romulus Pereira
President and Chief Executive Officer
Riverstone Networks, Inc.
5200 Great America Parkway
Santa Clara, California 95054
(408) 878-6500
(Name, Address and Telephone Number, including Area Code, of Agent for Service)
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CALCULATION OF REGISTRATION FEE
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Title Of Securities To Be Amount To Proposed Maximum Proposed Maximum Amount Of
Registered Be Offering Price Aggregate Offering Registration
Registered Per Share (1) Price (1) Fee
2000 Equity Incentive Plan 28,000,000
Common Stock shares $12.70 $355,600,000 $88,900.00
Employee Stock Purchase 3,000,000 $12.70 $ 38,100,000 $ 9,525.00
Plan shares
Common Stock
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(1) Computed in accordance with Rules 457 (c) and (h) under the Securities Act
of 1933, as amended. The Proposed Maximum Offering Price Per Share and
Proposed Maximum Aggregate Offering Price for these shares have been determined
on the basis of the average of the high and low prices of the Common Stock
reported on the Nasdaq National Market on July 31, 2001 to be $13.20 and
$12.20, respectively.
(2) Computed in accordance with Rules 457 (c) and (h) under the Securities Act
of 1933, as amended. The Proposed Maximum Offering Price Per Share and
Proposed Maximum Aggregate Offering Price for these shares have been determined
on the basis of the average of the high and low prices of the Common Stock
reported on the Nasdaq National Market on July 31, 2001 to be $13.20 and
$12.20, respectively.
Pursuant to Rule 416(a) under the Securities Act of 1933, this registration
statement also covers such additional shares of Common Stock as may be issued in
the event of a stock dividend, stock split, recapitalization or other similar
transaction.
PART I
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INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
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Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from this Registration Statement in accordance with Rule 428 under
the Securities Act of 1933, as amended (the "Securities Act"), and the Note to
Part I of Form S-8.
PART II
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INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3. Incorporation of Documents by Reference.
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Riverstone Networks, Inc. (the "Registrant" or the "Company") hereby
incorporates the following documents herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
March 3, 2001 filed with the Securities and Exchange Commission (the
"Commission") on June 1, 2001 pursuant to Section 13(a) of the
Securities Exchange Act of 1934 (the "Exchange Act").
(b) Quarterly Report on Form 10-Q for the fiscal quarter ended June 2,
2001 and filed with the Commission on July 17, 2001 and Current Report
on Form 8-K filed with the Commission on July 20, 2001.
(c) Description of the Company's Common Stock contained in its
Registration Statement on Form 8-A, File No. 000-32269.
All documents subsequently filed by the Registrant pursuant to Section
13(a), Section 13(c), Section 14 and Section 15(d) of the Exchange Act prior to
the filing of a post-effective amendment to this Registration Statement that
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated herein by
reference from the date of filing of such documents.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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Section 145 of the Delaware General Corporation Law, as amended, provides
that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal or investigative (other than an
action by or in the right of the corporation) by reason of the fact that such
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding if such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe such person's conduct was
unlawful. Section 145 further provides that a
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corporation similarly may indemnify any such person serving in any such capacity
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor, against expenses actually and reasonably
incurred in connection with the defense or settlement of such action or suit if
such person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interest of the corporation and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Delaware Court of Chancery or such other
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person in fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
Section 102(b)(7) of the Delaware General Corporation Law, as amended,
permits a corporation to include in its certificate of incorporation a provision
eliminating or limiting the personal liability of a director to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, provided, however, that such provision shall not eliminate or limit
the liability of a director (i) for any breach of the director's duty of loyalty
to the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation Law (relating to
unlawful payment of dividends and unlawful stock purchase and redemption) or
(iv) for any transaction from which the director derived an improper personal
benefit.
The Registrant's restated certificate of incorporation, as amended,
provides that the Company's directors shall not be liable to the Registrant or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for the extent that exculpation from liabilities is not
permitted under the Delaware General Corporation Law as in effect at the time
such liability is determined. The restated certificate of incorporation, as
amended, further provides that the registrant shall indemnify its directors and
officers to the full extent permitted by the law of the state of Delaware.
Item 7. Exemption From Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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Exhibit Description
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Number
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3.1* Form of Amended and Restated Certificate of Incorporation of the
Registrant.
3.2* Form of Amended and Restated By-Laws of the Registrant.
4.1* Form of the Registrant's Common Stock Certificate.
4.2 Riverstone Networks, Inc. 2000 Equity Incentive Plan
(Amended and Restated).
4.3 Riverstone Networks, Inc. Employee Stock Purchase Plan.
5.1 Opinion of Ropes & Gray.
23.1 Consent of Ropes & Gray (Included within Exhibit 5.1).
23.2 Consent of KPMG LLP.
24.1 Power of Attorney (Included on Signature Page).
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* Incorporated by reference to the same numbered exhibit to the Registrant's
Registration Statement on Form S-1, File No. 333-45958.
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Item 9. Undertakings.
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(a) 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
of 1933, (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 (a)(1)(i) and
(a)(1)(ii) shall not apply if the 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 Securities Exchange Act of 1934 that are incorporated by reference in
the registration statement;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
herein, 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 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.
(c) 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 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 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 Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
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 on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Santa Clara, The State of California, on this
3rd day of August, 2001.
RIVERSTONE NETWORKS, INC.
By: /s/ Robert Stanton
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Name: Robert Stanton
Title: Secretary
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POWER OF ATTORNEY
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Pursuant to the requirement of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature appears
below hereby authorizes and constitutes Romulus Pereira, Robert Stanton and
Piyush Patel, and each of them singly, his or her true and lawful attorneys with
full power to them, and each of them singly, to sign for him or her and in his
or her name in the capacities indicated below any and all amendments (including
post-effective amendments) to this Registration Statement and to file the same,
with exhibits thereto, and other documents in connection therewith, and he or
she hereby ratifies and confirms his or her signature as it may be signed by
said attorneys, or any of them, to any and all such amendments.
Signature Capacity in Which Signed Date
------------------------------- ------------------------------- -------------------------------
/s/ Romulus Pereira President, Chief Executive August 3, 2001
----------------------------- Officer and Director
/s/ Robert Stanton Executive Vice President of August 3, 2001
----------------------------- Finance and Chief Financial
Robert Stanton Officer (principal financial
and accounting officer)
/s/ Piyush Patel Chairman of the Board August 3, 2001
-----------------------------
Piyush Patel
/s/ Eric Jaeger Assistant Secretary and August 3, 2001
----------------------------- Director
Eric Jaeger
/s/ C. Lee Cox Director August 3, 2001
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C. Lee Cox
/s/ Jorge A. del Calvo Director August 3, 2001
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Jorge A. del Calvo
/s/ Christopher Paisley Director August 3, 2001
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Christopher Paisley
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EXHIBIT INDEX
Number Title of Exhibit
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3.1* Amended and Restated Certificate of Incorporation of
the Registrant.
3.2* Amended and Restated By-Laws of the Registrant.
4.1* Form of Stock Certificate of the Registrant.
4.2 Riverstone Networks, Inc. 2000 Equity Incentive Plan
(Amended and Restated).
4.3 Riverstone Networks, Inc. Employee Stock Purchase
Plan.
5.1 Opinion of Ropes & Gray.
23.1 Consent of Ropes & Gray (Included within Exhibit
5.1).
23.2 Consent of KPMG LLP.
24.1 Power of Attorney (Included on Signature Page).
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* Incorporated by reference to Registrant's Registration Statement on Form S-1,
File No. 333-45948.