sc13dza

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Fwrkwu/TVJf01MXBEh0H5jLc7QrAxlCXDrTvN/uB0SKU3MMgYO1lpXlYVDwj9f/1 rVSTeeMZwcgRyIENHvE8vg== 0000950134-08-015197.txt : 20080814 0000950134-08-015197.hdr.sgml : 20080814 20080814090309 ACCESSION NUMBER: 0000950134-08-015197 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20080814 DATE AS OF CHANGE: 20080814 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: FOUNDRY NETWORKS INC CENTRAL INDEX KEY: 0001090071 STANDARD INDUSTRIAL CLASSIFICATION: COMPUTER COMMUNICATIONS EQUIPMENT [3576] IRS NUMBER: 770431154 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-58133 FILM NUMBER: 081015514 BUSINESS ADDRESS: STREET 1: 4980 GREAT AMERICA PARKWAY CITY: SANTA CLARA STATE: CA ZIP: 95054 BUSINESS PHONE: 408 207 1700 MAIL ADDRESS: STREET 1: 4980 GREAT AMERICA PARKWAY CITY: SANTA CLARA STATE: CA ZIP: 95054 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: BROCADE COMMUNICATIONS SYSTEMS INC CENTRAL INDEX KEY: 0001009626 STANDARD INDUSTRIAL CLASSIFICATION: COMPUTER PERIPHERAL EQUIPMENT, NEC [3577] IRS NUMBER: 770409517 STATE OF INCORPORATION: DE FISCAL YEAR END: 1027 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 1745 TECHNOLOGY DRIVE CITY: SAN JOSE STATE: CA ZIP: 95110 MAIL ADDRESS: STREET 1: 1745 TECHNOLOGY DRIVE CITY: SAN JOSE STATE: CA ZIP: 95110 SC 13D/A 1 f43069a1sc13dza.htm AMENDMENT TO SCHEDULE 13D sc13dza

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934
(Amendment No. 1 )*

Foundry Networks, Inc.

(Name of Issuer)

Common Stock, par value $ 0.0001 per share

(Title of Class of Securities)

35063R100

(CUSIP Number)

Tyler Wall
Vice President, General Counsel and Corporate Secretary
Brocade Communications Systems, Inc.
1745 Technology Drive
San Jose, CA 95110
(408) 333-8000

(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)

August 11, 2008

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule §§240.13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).


CUSIP No.		35063R100


1	NAMES OF REPORTING PERSONS Brocade Communications Systems, Inc.


2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
	(a) o
	(b) o

3	SEC USE ONLY



4	SOURCE OF FUNDS (SEE INSTRUCTIONS)

	OO WC

5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)

	þ

6	CITIZENSHIP OR PLACE OF ORGANIZATION

	State of Delaware

		7	SOLE VOTING POWER

NUMBER OF			11,019,223 (1)(2)

SHARES		8	SHARED VOTING POWER
BENEFICIALLY
OWNED BY			-0-

EACH		9	SOLE DISPOSITIVE POWER
REPORTING
PERSON			-0-

WITH		10	SHARED DISPOSITIVE POWER

			-0-

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

	11,019,223 (1)(2)

12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)

	o

13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

	7.604%

14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)

	CO

(1) Does not include options to purchase an aggregate of 3,182,328 shares of common stock of Foundry Networks, Inc., which are exercisable within 60 days of August 11, 2008, held by the persons who have entered into Voting Agreements (as defined below) with the reporting person as described herein. Pursuant to the terms of the Voting Agreements, in the event that any such options are exercised prior to the termination of the Voting Agreements, the underlying shares of such options would be subject to the Voting Agreements and would be voted in favor of the approval of the Merger Agreement referred to in Item 3 below and in favor of the Merger and the other transactions contemplated by the Merger Agreement as described in Item 4 below.

(2) As described herein, the reporting person has sole voting power over these shares solely with respect to the specific matters identified in the Voting Agreements and each of the persons who has entered into the Voting Agreements (as defined below) with the reporting person retains sole voting power with respect to all other matters.

Neither the filing of this statement on Schedule 13D nor any of its contents shall be deemed to constitute an admission by Brocade Communications Systems, Inc. that it is the beneficial owner of any of the shares referred to herein for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.

This Amendment No. 1 (the “Amendment”) amends and restates where indicated the Statement on Schedule 13D originally filed on July 31, 2008 (the “Prior Statement”) by Brocade Communications Systems, Inc., a Delaware corporation (“Brocade”). The Amendment and the Prior Statement are collectively referred to herein as the “Schedule 13D”.

Capitalized terms used herein but not defined herein shall have the meaning ascribed to them in the Prior Statement. This Amendment amends the Prior Statement as specifically set forth herein. Except as set forth below, all previous Items in the Prior Statement remain unchanged.

This Amendment No. 1 is being made to disclose the execution of Voting Agreements dated August 11, 2008, between Brocade and each of Celesta Volz Ford, J. Steven Young, Alfred J. Amoroso, C. Nicholas Keating Jr. and Alan L. Earhart in connection with the acquisition by Brocade of Foundry Networks, Inc. (“Foundry”) and to disclose the adoption of a 10b5-1 Plan (as defined below) by Brocade to acquire shares of common stock of Foundry in the open market.

ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Item 3 is hereby amended and restated in its entirety as follows:

On July 21, 2008, Brocade, Falcon Acquisition Sub, Inc., a Delaware corporation and wholly-owned subsidiary of Brocade (“Merger Sub”) and Foundry entered into an Agreement and Plan of Merger (the “Merger Agreement”), pursuant to which, on the terms and subject to the conditions set forth in the Merger Agreement (including, but not limited to, the expiration or early termination of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the adoption of the Merger Agreement by the stockholders of Foundry), Merger Sub will be merged with and into Foundry, with Foundry surviving the merger (the “Merger”) as a wholly-owned subsidiary of Brocade. In the Merger, each outstanding share of Foundry Common Stock will be converted into the right to receive a combination of $18.50 in cash, without interest, and 0.0907 of a share of Brocade common stock, par value $0.001 per share, subject to adjustment for stock splits, stock dividends and similar events. See Brocade’s Current Report on Form 8-K, dated as of July 24, 2008 for a description of the Merger Agreement and the financing commitment letter entered into by Brocade in connection with the Merger Agreement.

As an inducement for Brocade to enter into the Merger Agreement, each of Bobby R. Johnson Jr. (the Chief Executive Officer and President of Foundry), Celesta Volz Ford, J. Steven Young, Alfred J. Amoroso, C. Nicholas Keating Jr. and Alan L. Earhart (collectively, the “Stockholders”) entered into a voting agreement with and in favor of Brocade (the “Voting Agreements”) as described in Item 4 and Item 5 of this Schedule 13D. No consideration was paid in exchange for the Stockholders’ entering into the Voting Agreements. Currently an aggregate of 11,019,223 shares of Foundry Common Stock are subject to the Voting Agreements. Pursuant to the Voting Agreements, if the Stockholders acquire beneficial or record ownership of any additional shares of Foundry, such shares will also be subject to the Voting Agreements. The Stockholders have options to purchase an aggregate of 3,182,328 shares of Foundry Common Stock that are exercisable within 60 days of August 11, 2008 and which would be subject to the Voting Agreement upon exercise.

On August 13, 2008, Brocade entered into a Stock Purchase Plan and Agreement with Morgan Stanley & Co. Incorporated (“Morgan Stanley”) pursuant to which Brocade adopted a prearranged stock purchase plan under Rule 10b5-1 under the Securities Exchange Act of 1934 (“10b5-1 Plan”) to assist Brocade in the acquisition of up to $250 million of Foundry Common Stock, not to exceed 14,000,000 shares of Foundry Common Stock. Brocade will use its working capital to finance the purchases under the 10b5-1 Plan.

Under the 10b5-1 Plan, Morgan Stanley will have the authority to purchase shares of Foundry Common Stock in the open market, at the prices and in such amounts in accordance with the terms of the 10b5-1 Plan. The 10b5-1 Plan will permit purchases of Foundry Common Stock commencing August 13, 2008 until the 10b5-1 Plan is terminated in accordance with its terms.

The foregoing discussion does not purport to be complete, and is qualified in its entirety by the terms and conditions of the Merger Agreement and the Voting Agreements, copies of which are filed as Exhibits 2.1, 2.2, 2.3, 2.4, 2.5, 2.6 and 2.7 respectively, to this Schedule 13D and are incorporated herein by reference.

ITEM 4. PURPOSE OF TRANSACTION
Item 4 in hereby amended and restated in its entirety as follows:

(a) - (b) The Merger Agreement provides for the acquisition by Brocade of all of the outstanding shares of Foundry Common Stock through a merger of Merger Sub with and into Foundry, as a result of which Foundry will become a wholly-owned subsidiary of Brocade. The information contained in Item 3 is incorporated by reference herein.

Pursuant to the terms of the Voting Agreements, each of the Stockholders has granted an irrevocable proxy (an “Irrevocable Proxy”) in favor of Brocade and certain representatives of Brocade and irrevocably appointed such representatives as his or her attorney and proxy to vote all of the shares of Foundry Common Stock beneficially owned by him or her or that will be owned by him or her before the termination of the Voting Agreements (the “Subject Shares”) (i) in favor of the adoption of the Merger Agreement, in

favor of the Merger and in favor of any other action reasonably necessary to facilitate the Merger; and (ii) against the following actions (other than the Merger and the transactions contemplated by the Merger Agreement): (A) any reorganization, recapitalization, dissolution or liquidation of Foundry (or any of its subsidiaries); (B) any offer or proposal contemplating or otherwise relating to a merger, consolidation, amalgamation, share exchange, business combination, issuance of securities, acquisition of securities, reorganization, recapitalization, tender offer, exchange offer or other similar transaction (1) in which Foundry (or any of its subsidiaries) is a constituent corporation, (2) in which a person acquires beneficial or record ownership of securities representing more than 15% of the outstanding securities of any class of voting securities of Foundry (or any of its subsidiaries), or (3) Foundry (or any of its subsidiaries) issues securities representing more than 15% of the outstanding securities of any class of voting securities of Foundry (or any of its subsidiaries), (C) any offer or proposal contemplating or otherwise relating to a sale, lease, exchange, transfer, license, acquisition or disposition of any business or businesses or assets that constitute or account for 15% or more of the consolidated net revenues, consolidated net income or consolidated assets of Foundry and its subsidiaries, and (D) any other action that is intended, or that would reasonably be expected, to impede, interfere with, discourage, frustrate, delay, postpone, prevent or adversely affect the Merger or any of the other transactions contemplated by the Merger Agreement.

The purpose of entering into the Voting Agreements is to facilitate the adoption of the Merger Agreement by the Foundry stockholders. Each Stockholder’s obligations under such Stockholder’s Voting Agreement will terminate upon the earlier to occur: (i) the valid termination of the Merger Agreement in accordance with its terms, (ii) the effective time of the Merger, (iii) the termination of the Voting Agreement by mutual consent of the parties, or (iv) an amendment to the Merger Agreement that results in a decrease in the merger consideration specified in the Merger Agreement (with certain exceptions set forth in the Voting Agreement).

Pursuant to the 10b5-1 Plan, Morgan Stanley will purchase on behalf of Brocade, shares of Foundry Common Stock in the open market consistent with the terms described in the 10b5-1 Plan described in Item 3 of this Schedule 13D.

(d) Upon consummation of the Merger, Foundry will become a wholly-owned subsidiary of Brocade, and Brocade will subsequently determine the size and membership of the board of directors of Foundry and the officers of Foundry.

(e) The Merger Agreement prohibits Foundry from issuing securities, disposing of securities or changing its capitalization without prior written consent of Brocade, except under limited circumstances set forth therein. The Merger Agreement further prohibits Foundry from declaring, accruing, setting a side or paying any dividend or making any other distribution in respect of any share capital, or repurchasing, redeeming or otherwise reacquiring any share capital or other securities of Foundry without Brocade’s prior written consent except under limited circumstances set forth therein. Upon consummation of the Merger, Foundry will become a wholly-owned subsidiary of Brocade, and will become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act.

(f) Upon consummation of the Merger, Foundry will become a wholly-owned subsidiary of Brocade.

(g) The Merger Agreement contains provisions that limit the ability of Foundry to engage in a transaction that would entail a change of control of Foundry during the pendency of the Merger Agreement.

(h) Upon consummation of the Merger, Foundry Common Stock will cease to be quoted on any quotation system or exchange.

(i) Upon consummation of the Merger, Foundry Common Stock will become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act.

(j) Other than as described above, Brocade currently has no plan or proposal which relates to, or may result in, any of the matters listed in Items 4(a) — (i) of this Schedule 13D (although Brocade reserves the right to develop such plans).

Except as set forth in this Schedule 13D, neither Brocade, nor to the knowledge of Brocade, any of the directors or executive officers of Brocade listed on Schedule I hereto, has any present plans or intentions which would result in or relate to any of the actions described in subparagraphs (a) through (j) of Item 4 of this Schedule 13D.

The description contained in this Item 4 of the transactions contemplated by the Merger Agreement, and the Voting Agreements does not purport to be complete, and is qualified in its entirety by the terms and conditions of the Merger Agreement, and the Voting Agreements, copies of which are filed as Exhibits 2.1, 2.2, 2.3, 2.4, 2.5, 2.6, and 2.7, respectively, to this Schedule 13D and are incorporated herein by reference.

ITEM 5. INTEREST IN SECURITIES OF THE ISSUER

Item 5 is hereby amended and restated in its entirety as follows:

(a)-(b) As described in Item 4 (a)-(b) of this Schedule 13D, as a result of the Voting Agreement, Brocade has the sole power to vote the Subject Shares with respect to certain matters relating to the Merger as set forth in the Voting Agreements (see Item 4 of this

Schedule 13D for details). The Subject Shares currently consist of 11,019,223 shares of Foundry Common Stock, which, according to Foundry, represent approximately 7.604% of the outstanding shares of Foundry Common Stock as of August 11, 2008. The Subject Shares do not include options to purchase an aggregate of 3,182,328 shares of Foundry Common Stock, held by the Stockholders, which are exercisable within 60 days of August 11, 2008. The Stockholders retained the sole power to vote the Subject Shares on all matters other than those identified in the Voting Agreements. Pursuant to the Voting Agreements, and subject to limited exceptions set forth in the Voting Agreements, the Stockholders may not transfer, sale, pledge, encumber, grant an option with respect to, transfer or dispose any Subject Shares or any interest in any Subject Shares to any person prior to the termination of the Voting Agreement.

To Brocade’s knowledge, no shares of Foundry Common Stock are beneficially owned by any of the persons named in Schedule I to this Schedule 13D, except for such beneficial ownership, if any, arising solely from the Voting Agreements and the related Irrevocable Proxies.

During the past five years, to the knowledge of Brocade, no person listed on Schedule I to this Schedule 13D has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

During the past five years, to the knowledge of Brocade, no person listed on Schedule I to this Schedule 13D has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding such person was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activity subject to, Federal or State securities laws or finding any violation with respect to such laws.

(c) Neither Brocade nor, to the knowledge of Brocade, any director or executive officer of Brocade named in Schedule I to this Schedule 13D, has effected any transaction in shares of Foundry Common Stock during the past 60 days, except as disclosed herein.

(d) Not applicable.

(e) Not applicable.

The description contained in this Item 5 of the transactions contemplated by the Merger Agreement, and the Voting Agreements does not purport to be complete, and is qualified in its entirety by the terms and conditions of the Merger Agreement, and the Voting Agreements, copies of which are filed as Exhibits 2.1, 2.2, 2.3, 2.4, 2.5, 2.6 and 2.7 respectively, to this Schedule 13D and are incorporated herein by reference.

ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER

Item 6 is hereby amended and restated in its entirety as follows:

To the knowledge of Brocade there are no contracts, arrangements, understandings or relationships (legal or otherwise) among the persons named in Item 2 of this Schedule 13D and between such persons and any person with respect to any securities of Foundry other than the following:

(a) The Merger Agreement, under which, among other things, Merger Sub will merge with and into Foundry, as a result of which Foundry will become a wholly-owned subsidiary of Brocade. The information contained in Items 3 and 4 of this Schedule 13D is incorporated herein by reference.

(b) The Voting Agreements. The information contained in Items 3, 4 and 5 of this Schedule 13D is incorporated herein by reference.

(c) The 10b5-1 Plan, pursuant to which Morgan Stanley will purchase Foundry Common Stock in the open market on behalf of Brocade. The information contained in Items 3 and 4 of this Schedule 13D is incorporated herein by reference.

The description contained in this Item 6 of the transactions contemplated by the Merger Agreement, and the Voting Agreements does not purport to be complete, and is qualified in its entirety by the terms and conditions of the Merger Agreements and the Voting Agreements, copies of which are filed as Exhibits 2.1, 2.2, 2.3, 2.4, 2.5, 2.6 and 2.7 respectively, to this Schedule 13D and are incorporated herein by reference.

ITEM 7. MATERIAL TO BE FILED AS EXHIBITS


Exhibit
No.		Description
2.1		Agreement and Plan of Merger, dated as of July 21, 2008, by and among Brocade Communications Systems, Inc., Falcon Acquisition Sub, Inc. and Foundry Networks, Inc. (filed as Exhibit 2.1 to Brocade’s Current Report on Form 8-K, dated as of July 24, 2008, and incorporated herein by reference)

2.2		Voting Agreement, dated July 21, 2008, by and between Brocade Communications Systems, Inc. and Bobby R. Johnson, Jr., including Irrevocable Proxy, as of even date, executed by Bobby R. Johnson, Jr. (filed as Exhibit 10.1 to Brocade’s Current Report on Form 8-K, dated as of July 24, 2008, and incorporated herein by reference)

2.3		Voting Agreement, dated August 11, 2008, by and between Brocade Communications Systems, Inc. and Celeste Volz Ford, including Irrevocable Proxy, as of even date, executed by Celeste Volz Ford

2.4		Voting Agreement, dated August 11, 2008, by and between Brocade Communications Systems, Inc. and J. Steven Young, including Irrevocable Proxy, as of even date, executed by J. Steven Young

2.5		Voting Agreement, dated August 11, 2008, by and between Brocade Communications Systems, Inc. and Alfred J. Amoroso, including Irrevocable Proxy, as of even date, executed by Alfred J. Amoroso

2.6		Voting Agreement, dated August 11, 2008, by and between Brocade Communications Systems, Inc. and C. Nicholas Keating Jr., including Irrevocable Proxy, as of even date, executed by C. Nicholas Keating Jr.

2.7		Voting Agreement, dated August 11, 2008, by and between Brocade Communications Systems, Inc. and Alan L. Earhart, including Irrevocable Proxy, as of even date, executed by Alan L. Earhart

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Date: August 13, 2008


	BROCADE COMMUNICATIONS SYSTEMS, INC.
	/s/Richard Deranleau
	Name:	Richard Deranleau
	Title:	Chief Financial Officer and Vice President, Finance

SCHEDULE I

EXECUTIVE OFFICERS OF BROCADE
AS OF AUGUST 11, 2008


		PRINCIPAL OCCUPATION
NAME		OR EMPLOYMENT
Michael Klayko		Chief Executive Officer and Director
Richard Deranleau		Chief Financial Officer and Vice President, Finance
Tejinder (TJ) Grewal		Vice President, Corporate Development
Hugues Meyrath		Vice President and General Manager, Support, Services and Solutions (SSS)
Luc Moyen		Vice President and General Manager, Server Edge and Storage (SES)
Tyler Wall		Vice President, General Counsel and Corporate Secretary
Ian Whiting		Vice President and General Manager, Data Center Infrastructure (DCI)

All individuals named in the above table are employed by Brocade. The address of Brocade’s principal executive offices is 1745 Technology Drive, San Jose, California 95110.

DIRECTORS OF BROCADE
AS OF AUGUST 11, 2008


NAME	PRINCIPAL OCCUPATION OR EMPLOYMENT
John W. Gerdelman	Executive Chairman, Intelliden Corporation
		535 Middlefield Rd Suite 120
		Menlo Park, CA 94025
		USA

David L. House	Chairman of the Board of Directors Brocade Communications Systems, Inc.
		1745 Technology Drive,
		San Jose, California 95110

L. William Krause	President of LWK Ventures (a private investment firm)
		402 25th Avenue,
		San Mateo, CA 94403

Renato (Renny) A.	Director of Brocade Communications Systems, Inc.
DiPentima		1745 Technology Drive,
		San Jose, California 95110

Glenn C. Jones	Director of Brocade Communications Systems, Inc.
		1745 Technology Drive,
		San Jose, California 95110

Michael Rose	Director of Brocade Communications Systems, Inc.
		1745 Technology Drive,
		San Jose, California 95110


NAME	PRINCIPAL OCCUPATION OR EMPLOYMENT
Sanjay Vaswani	Managing partner of the Center for Corporate Innovation, Inc.
		11835 West Olympic Boulevard, Suite 835
		Los Angeles, CA 90064


Exhibit
No.		Description
2.1		Agreement and Plan of Merger, dated as of July 21, 2008, by and among Brocade Communications Systems, Inc., Falcon Acquisition Sub, Inc. and Foundry Networks, Inc. (filed as Exhibit 2.1 to Brocade’s Current Report on Form 8-K, dated as of July 24, 2008, and incorporated herein by reference)

2.2		Voting Agreement, dated July 21, 2008, by and between Brocade Communications Systems, Inc. and Bobby R. Johnson, Jr., including Irrevocable Proxy, as of even date, executed by Bobby R. Johnson, Jr. (filed as Exhibit 10.1 to Brocade’s Current Report on Form 8-K, dated as of July 24, 2008, and incorporated herein by reference)

2.3		Voting Agreement, dated August 11, 2008, by and between Brocade Communications Systems, Inc. and Celeste Volz Ford, including Irrevocable Proxy, as of even date, executed by Celeste Volz Ford

2.4		Voting Agreement, dated August 11, 2008, by and between Brocade Communications Systems, Inc. and J. Steven Young, including Irrevocable Proxy, as of even date, executed by J. Steven Young

2.5		Voting Agreement, dated August 11, 2008, by and between Brocade Communications Systems, Inc. and Alfred J. Amoroso, including Irrevocable Proxy, as of even date, executed by Alfred J. Amoroso

2.6		Voting Agreement, dated August 11, 2008, by and between Brocade Communications Systems, Inc. and C. Nicholas Keating Jr., including Irrevocable Proxy, as of even date, executed by C. Nicholas Keating Jr.

2.7		Voting Agreement, dated August 11, 2008, by and between Brocade Communications Systems, Inc. and Alan L. Earhart, including Irrevocable Proxy, as of even date, executed by Alan L. Earhart

EX-2.3 2 f43069a1exv2w3.htm EXHIBIT 2.3 exv2w3

Exhibit 2.3

VOTING AGREEMENT

This Voting Agreement (“Agreement”) is entered into as of August 11, 2008, by and between Brocade Communications Systems, Inc., a Delaware corporation (“Parent”), and the undersigned stockholder (“Stockholder”) of Foundry Networks, Inc., a Delaware corporation (the “Company”).

Recitals

A. Stockholder Owns certain securities of the Company.

B. Parent, Falcon Acquisition Sub, Inc., a Delaware corporation (“Merger Sub”), and the Company are entering into an Agreement and Plan of Merger of even date herewith (the “Merger Agreement”) which provides (subject to the conditions set forth therein) for the merger of Merger Sub into the Company (the “Merger”).

C. In the Merger, each outstanding share of common stock of the Company is to be converted into the right to receive the consideration set forth in the Merger Agreement.

D. Stockholder is entering into this Agreement in order to induce Parent to enter into the Merger Agreement.

Agreement

The parties to this Agreement, intending to be legally bound, agree as follows:

SECTION 1. Certain Definitions

For purposes of this Agreement:

(a) “Company Common Stock” shall mean the common stock, par value $0.0001 per share, of the Company.

(b) Stockholder shall be deemed to “Own” or to have acquired “Ownership” of a security if Stockholder: (i) is the record owner of such security; or (ii) is the “beneficial owner” (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934) of such security.

(c) “Specified Period” shall mean the period commencing on the date of this Agreement and ending on the Termination Date.

(d) “Subject Securities” shall mean: (i) all securities of the Company (including all shares of Company Common Stock and all options, warrants and other rights to acquire shares of Company Common Stock) Owned by Stockholder as of the date of this Agreement; and (ii) all additional securities of the Company (including all additional shares of Company Common Stock and all additional options, warrants and other rights to acquire shares of

Company Common Stock) of which Stockholder acquires Ownership during the Specified Period; provided, that any Subject Securities transferred as permitted in Section 2.3 shall from and after such transfer cease to be Subject Securities of Stockholder (but shall thereafter be “Subject Securities” under the similar Voting Agreement entered into by the transferee of such securities).

(e) “Termination Date” shall mean the earliest of (i) the date upon which the Merger Agreement is validly terminated in accordance with its terms, (ii) the Effective Time, (iii) the date upon which the parties hereto agree in writing to terminate this Agreement; or (iv) any amendment to the Merger Agreement that results in a decrease in the “Merger Consideration” as set forth in the Merger Agreement (which shall be deemed to exclude any change in the proportionate form of consideration (between cash and shares of Parent Common Stock) to be paid and issued by Parent in the Merger that is intended to maintain the aggregate value of the Merger Consideration, calculated at the time of such amendment); provided, however, that if at or prior to the time the Termination Date would otherwise occur, Parent and Stockholder enter into any amendment or extension of this Agreement that extends the Termination Date to a later date, the “Termination Date” shall not be deemed to have occurred until the date designated as the Termination Date in such amendment or extension.

(f) A Person shall be deemed to have a effected a “Transfer” of a security if such Person directly or indirectly: (i) sells, pledges, encumbers, grants an option with respect to, transfers or disposes of such security or any interest in such security to any Person other than Parent (provided that the exercise by Stockholder of any Company Option held by Stockholder shall not be deemed a Transfer hereunder); or (ii) enters into an agreement or commitment contemplating the possible sale of, pledge of, encumbrance of, grant of an option with respect to, transfer of or disposition of such security or any interest therein to any Person other than Parent.

(g) Capitalized terms used but not otherwise defined in this Agreement have the meanings assigned to such terms in the Merger Agreement.

SECTION 2. Transfer of Subject Securities and Voting Rights

2.1 Restriction on Transfer of Subject Securities. Subject to Section 2.3, during the Specified Period, Stockholder shall not, directly or indirectly, cause or permit any Transfer of any of the Subject Securities to be effected.

2.2 Restriction on Transfer of Voting Rights. During the Specified Period, Stockholder shall not: (a) deposit any Subject Securities into a voting trust; or (b) grant a proxy or enter into a voting agreement or similar agreement (other than this Agreement) with respect to any of the Subject Securities, in each case in a manner which would or would reasonably be expected to (i) prevent or materially hinder the ability of Stockholder to perform any of Stockholder’s obligations hereunder, (ii) limit or reduce any of the rights of Parent hereunder or (iii) be inconsistent with any of the terms of this Agreement.

2.3 Permitted Transfers. Section 2.1 shall not prohibit a transfer of Subject Securities by Stockholder (a) to any member of Stockholder’s immediate family, or to a trust for the benefit of Stockholder or any member of Stockholder’s immediate family, (b) upon the death

of Stockholder, (c) in connection with or for the purpose of personal tax-planning or (d) to a charitable organization qualified under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended; provided, however, that a transfer referred to in this Section 2.3 shall be permitted only if, as a precondition to such transfer, the transferee agrees in writing to be bound by all of the terms of this Agreement.

SECTION 3. Voting of Shares; Proxy;

3.1 Voting Covenant. Stockholder hereby agrees that, during the Specified Period, at any meeting of the stockholders of the Company, however called, and in any written action by consent of stockholders of the Company, unless otherwise directed in writing by Parent and to the extent not voted by the Person(s) appointed pursuant to Section 3.2 hereof, Stockholder shall vote all shares of Company Common Stock owned of record by Stockholder and all other Subject Securities (to the fullest extent of the Stockholder’s right to do so):

(a) in favor of the adoption of the Merger Agreement, in favor of the Merger and in favor of any other action reasonably necessary to facilitate the Merger; and

(b) against the following actions (other than the Merger and the transactions contemplated by the Merger Agreement): (A) any reorganization, recapitalization, dissolution or liquidation of the Company or any subsidiary of the Company; and (B) any Acquisition Proposal (including any Superior Offer) and any other action that is intended, or that would reasonably be expected, to impede, interfere with, discourage, frustrate, delay, postpone, prevent or adversely affect the Merger or any of the other transactions contemplated by the Merger Agreement.

During the Specified Period, Stockholder shall not enter into any agreement or understanding with any Person to vote or give instructions in any manner inconsistent with clause “(a)” or clause “(b)” of the preceding sentence. Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall limit or restrict Stockholder from (i) acting in Stockholder’s capacity as a director or officer of the Company; or (ii) voting in Stockholder’s sole discretion on any matter other than the matters referred to in this Section 3.1.

3.2 Proxy.

(a) Contemporaneously with the execution of this Agreement: (i) Stockholder shall deliver to Parent a proxy in the form attached to this Agreement as Exhibit A, which shall be irrevocable to the fullest extent permitted by law (at all times prior to the Termination Date) with respect to the shares referred to therein (the “Proxy”); and (ii) if applicable, Stockholder shall cause to be delivered to Parent an additional proxy (in the form attached hereto as Exhibit A) executed on behalf of the record owner of any outstanding shares of Company Common Stock that are owned beneficially (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934), but not of record, by Stockholder.

(b) Stockholder hereby revokes any and all prior proxies or powers of attorney given by the Stockholder with respect to the voting of any Subject Securities inconsistent with the terms of Section 3.1 hereof and agrees not to grant any subsequent proxies

or powers of attorney with respect to the voting of any Subject Securities inconsistent with the terms of Section 3.1 until after the Termination Date.

SECTION 4. Waiver of Appraisal Rights

Stockholder hereby irrevocably and unconditionally waives, and agrees to cause to be waived and to prevent the exercise of, with respect to any shares of Company Common Stock Owned by Stockholder, any rights of appraisal, any dissenters’ rights and any similar rights relating to the Merger that Stockholder or any other Person who is the record owner of such shares of Company Common Stock Owned by Stockholder may have by virtue of any shares of such Company Common Stock; provided, however, that in the event that the Termination Date shall occur prior to the consummation of the Merger, such waiver shall be deemed rescinded in its entirety without any required action on the part of Stockholder.

SECTION 5. No Solicitation

Stockholder agrees that, during the Specified Period, Stockholder shall not, without limiting the last sentence of Section 3.1, directly or indirectly, take or authorize to be taken any action that the Company is prohibited from taking or authorizing to be taken pursuant to Section 4.3 of the Merger Agreement.

SECTION 6. Representations and Warranties of Stockholder

Stockholder hereby represents and warrants to Parent as follows as of the date hereof:

6.1 Authorization, etc. Stockholder has all requisite power, capacity and authority to execute and deliver this Agreement and the Proxy and, with respect to the Subject Securities not transferred in accordance with Section 2.3 hereof, to grant the rights to Parent set forth herein and therein and to perform Stockholder’s obligations hereunder. This Agreement and the Proxy have been duly executed and delivered by Stockholder and, assuming the due authorization, execution and delivery of this Agreement by Parent, constitute legal, valid and binding obligations of Stockholder, enforceable against Stockholder in accordance with their terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.

6.2 No Conflicts or Consents.

(a) The execution and delivery of this Agreement and the Proxy by Stockholder do not, and the performance of this Agreement and the Proxy by Stockholder will not: (i) conflict with or violate any Legal Requirement or Order applicable to Stockholder or by which Stockholder or any of Stockholder’s properties is or may be bound or affected; or (ii) result in the creation of any encumbrance or restriction on any of the Subject Securities Owned by Stockholder, in each case except for any conflict, violation or encumbrance that would not, individually or in the aggregate, adversely affect Stockholder’s ability to exercise his, her or its

voting power under Section 3.1 or grant the Proxy pursuant to Section 3.2 or otherwise grant to Parent the rights granted hereby.

(b) The execution and delivery of this Agreement and the Proxy by Stockholder do not, and the performance of this Agreement and the Proxy by Stockholder will not, require any approval or other Consent of any Person.

6.3 Title to Securities. As of the date of this Agreement: (a) Stockholder holds of record (free and clear of any restrictions or other Encumbrances that would adversely affect Stockholder’s ability to exercise his, her or its voting power under Section 3.1, grant the Proxy pursuant to Section 3.2 or otherwise grant to Parent the rights granted hereby and comply with all of the terms hereof) the number of outstanding shares of Company Common Stock set forth under the heading “Shares Held of Record” on the signature page hereof; (b) Stockholder holds the options, restricted stock units, warrants and other rights to acquire shares of Company Common Stock set forth under the heading “Options and Other Rights” on the signature page hereof; (c) Stockholder owns beneficially and not of record (free and clear of any restrictions or other Encumbrances that would adversely affect Stockholder’s ability to exercise his, her or its voting power under Section 3.1, grant the Proxy pursuant to Section 3.2 or otherwise grant to Parent the rights granted hereby and comply with all of the terms hereof)the additional securities of the Company set forth under the heading “Additional Securities Beneficially Owned” on the signature page hereof; and (d) Stockholder does not directly or indirectly Own any shares of capital stock or other securities of the Company, or any option, restricted stock unit, warrant or other right to acquire (by purchase, conversion or otherwise) any shares of capital stock or other securities of the Company, other than the shares and options, restricted stock units, warrants and other rights set forth on the signature page hereof.

SECTION 7. Miscellaneous

7.1 Stockholder Information. Stockholder hereby agrees to permit Parent and Merger Sub to publish and disclose in the Form S-4 Registration Statement Stockholder’s identity and ownership of shares of Company Common Stock and a description of Stockholder’s obligations under this Agreement.

7.2 Further Assurances. During the Specified Period, Stockholder shall execute and deliver such additional transfers, assignments, endorsements, proxies, consents and other instruments as Parent may reasonably request to carry out the purpose and further the intent of this Agreement.

7.3 Expenses. All costs and expenses incurred in connection with the transactions contemplated by this Agreement shall be paid by the party incurring such costs and expenses.

7.4 Notices. Any notice or other communication required or permitted to be delivered to either party under this Agreement shall be in writing and shall be deemed properly delivered, given and received when received at the address or facsimile telephone number set forth beneath the name of such party below (or at such other address or facsimile telephone number as such party shall have specified in a written notice given to the other party):

if to Stockholder:

at the address set forth on the signature page hereof; and

if to Parent:

Brocade Communications Systems, Inc.
1745 Technology Drive
San Jose, CA 95110
Attn: General Counsel
Fax: (408) 333-5630

7.5 Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions of this Agreement or the validity or enforceability of the invalid or unenforceable term or provision in any other situation or in any other jurisdiction. If a final judgment of a court of competent jurisdiction declares that any term or provision of this Agreement is invalid or unenforceable, the parties hereto agree that the court making such determination shall have the power to limit such term or provision, to delete specific words or phrases or to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be valid and enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the parties hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term or provision.

7.6 Entire Agreement. This Agreement, the Proxy and any other documents referred to herein or delivered pursuant hereto constitute the entire agreement between the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings between the parties with respect thereto and are not intended to confer, and shall not be construed as conferring, upon any person other than the parties hereto any rights or remedies hereunder. No addition to or modification of any provision of this Agreement shall be binding upon either party unless made in writing and signed by both parties.

7.7 Assignment; Binding Effect. Except as provided herein, neither this Agreement nor any of the interests or obligations hereunder may be assigned or delegated by Stockholder, and any attempted or purported assignment or delegation of any of such interests or obligations shall be void. Subject to the preceding sentence, this Agreement shall be binding upon Stockholder and Stockholder’s heirs, estate, executors, successors and assigns, and shall inure to the benefit of Parent and its successors and assigns. Without limiting any of the restrictions set forth in Section 2, Section 3 or elsewhere in this Agreement, this Agreement shall be binding upon any Person to whom any Subject Securities are transferred. Nothing in this Agreement is intended to confer on any Person (other than Parent and its successors and assigns) any rights or remedies of any nature.

7.8 Independence of Obligations. The covenants and obligations of Stockholder set forth in this Agreement shall be construed as independent of any other agreement or arrangement between Stockholder, on the one hand, and the Company or Parent, on the other. The existence of any claim or cause of action by Stockholder against the Company or Parent shall not constitute a defense to the enforcement of any of covenants or obligations of Stockholder under this Agreement. Nothing in this Agreement shall be construed as limiting any of the rights or remedies of Parent under the Merger Agreement or any of the rights or remedies of the Company or Parent or any of the obligations of Stockholder under any agreement between Stockholder and Parent or any certificate or instrument executed by Stockholder in favor of Parent; and nothing the Merger Agreement or in any other such agreement, certificate or instrument shall limit any of Stockholder’s obligations, or any of the rights or remedies of Parent, under this Agreement.

7.9 Specific Performance. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with its specific terms or were otherwise breached. Stockholder agrees that, in the event of any breach or overtly threatened breach by Stockholder of any covenant or obligation contained in this Agreement, Parent shall be entitled (in addition to any other remedy that may be available to it, including monetary damages) to seek and obtain (a) a decree or order of specific performance to enforce the observance and performance of such covenant or obligation, and (b) an injunction restraining such breach or overtly threatened breach. Stockholder further agrees that neither Parent nor any other Person shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 7.9, and Stockholder irrevocably waives any right he or it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.

7.10 Non-Exclusivity. The rights and remedies of Parent and the Stockholder under this Agreement are not exclusive of or limited by any other rights or remedies which it may have, whether at law, in equity, by contract or otherwise, all of which shall be cumulative (and not alternative).

7.11 Governing Law; Jurisdiction; Waiver of Jury Trial.

(a) This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof. In any action between the parties arising out of or relating to this Agreement or any of the transactions contemplated by this Agreement each of the parties irrevocably and unconditionally consents and submits to the jurisdiction and venue of the Chancery Court of the State of Delaware.

(b) EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY LEGAL PROCEEDING (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) RELATING TO THIS AGREEMENT OR THE PROXY OR THE ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT OR THE PROXY.

7.12 Counterparts; Electronic Transmission. This Agreement may be executed in separate counterparts, each of which when so executed and delivered shall be an original, but all

such counterparts shall together constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by facsimile or by electronic delivery shall be sufficient to bind the parties to the terms of this Agreement.

7.13 Captions. The captions contained in this Agreement are for convenience of reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement.

7.14 Waiver. No failure on the part of any party hereto to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any party hereto in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. No party hereto shall not be deemed to have waived any claim available to such party arising out of this Agreement, or any power, right, privilege or remedy of such party under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such party; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.

7.15 Construction.

(a) For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include masculine and feminine genders.

(b) The parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement.

(c) As used in this Agreement, the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.”

(d) Except as otherwise indicated, all references in this Agreement to “Sections” and “Exhibits” are intended to refer to Sections of this Agreement and Exhibits to this Agreement.

[Remainder of page intentionally left blank.]

In Witness Whereof, Parent and Stockholder have caused this Agreement to be executed as of the date first written above.


	Brocade Communications Systems, Inc.
	By /s/ Tyler Wall
	Title Vice President, General Counsel and General Corporate Secretary


	Stockholder
	/s/ Celeste Volz Ford
	Signature
	Celeste Volz Ford
	Printed Name


		Address:		235 Nathhorst Avenue


				Portola Valley, CA 94028





		Facsimile:		650-473-9867


		Additional Securities
Shares Held of Record	Options and Other Rights	Beneficially Owned
0	140,000	0

Signature Page to Voting Agreement

Exhibit A
Form Of Irrevocable Proxy

The undersigned stockholder (the “Stockholder”) of Foundry Networks, Inc., a Delaware corporation (the “Company”), hereby irrevocably (to the fullest extent permitted by law) appoints and constitutes Tyler Wall, Tom MacMitchell and Brocade Communications Systems, Inc., a Delaware corporation (“Parent”), and each of them, the attorneys and proxies of the Stockholder, with full power of substitution and resubstitution, to vote and exercise all voting rights (to the fullest extent of the Stockholder’s rights to do so) with respect to: (i) the outstanding shares of capital stock of the Company owned of record by the Stockholder as of the date of this proxy, which shares are specified on the final page of this proxy; and (ii) any and all other shares of capital stock of the Company which the Stockholder may acquire of record on or after the date hereof. (The shares of the capital stock of the Company referred to in clauses “(i)” and “(ii)” of the immediately preceding sentence are collectively referred to as the “Shares.”) Upon the execution hereof, all prior proxies given by the Stockholder with respect to the voting of any Shares inconsistent with the terms of this proxy and Section 3.1 of the Voting Agreement (as defined below) are hereby revoked, and the Stockholder agrees that no subsequent proxies will be given with respect to the voting of any Shares inconsistent with the terms of this proxy and Section 3.1 of the Voting Agreement until after the Termination Date.

This proxy is irrevocable, is coupled with an interest and is granted in connection with, and as security for Stockholder’s performance under, the Voting Agreement, dated as of the date hereof, between Parent and the Stockholder (the “Voting Agreement”), and is granted in consideration of Parent entering into the Agreement and Plan of Merger, dated as of the date hereof, among Parent, Falcon Acquisition Sub, Inc., a wholly-owned subsidiary of Parent, and the Company (the “Merger Agreement”). This proxy will terminate on the Termination Date (as defined in the Voting Agreement). Capitalized terms used in this Proxy and not defined in this Proxy have the meanings set forth in the Voting Agreement.

Each of the attorneys and proxies named above will be empowered, and may exercise this proxy, to vote the Shares at any time until the Termination Date at any meeting of the stockholders of the Company, however called, and in connection with any written action by consent of stockholders of the Company:

(e) in favor of the adoption of the Merger Agreement, in favor of the Merger and in favor of any other action reasonably necessary to facilitate the Merger; and

(f) against the following actions (other than the Merger and the transactions contemplated by the Merger Agreement): (A) any reorganization, recapitalization, dissolution or liquidation of the Company or any subsidiary of the Company; and (B) any Acquisition Proposal (including any Superior Offer) and any other action that is intended, or that would reasonably be expected, to impede, interfere with, discourage, frustrate, delay, postpone, prevent or adversely affect the Merger or any of the other transactions contemplated by the Merger Agreement.

The Stockholder may vote the Shares on all other matters not referred to in this proxy, and the attorneys and proxies named above may not exercise this proxy with respect to such other matters.

B-1

This proxy shall be binding upon the heirs, estate, executors, successors and assigns of the Stockholder (including any transferee of any of the Shares).

Any term or provision of this proxy that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions of this proxy or the validity or enforceability of the invalid or unenforceable term or provision in any other situation or in any other jurisdiction. If a final judgment of a court of competent jurisdiction declares that any term or provision of this proxy is invalid or unenforceable, the court making such determination shall have the power to limit such term or provision, to delete specific words or phrases or to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this proxy shall be valid and enforceable as so modified.

Dated: August 4, 2008


	Stockholder
	/s/ Celeste Volz Ford
	Signature
	Celeste Volz Ford

	Number of shares of common stock of the Company owned of record as of the date of this proxy:

Signature Page to Proxy

EX-2.4 3 f43069a1exv2w4.htm EXHIBIT 2.4 exv2w4

Exhibit 2.4

VOTING AGREEMENT

Recitals

A. Stockholder Owns certain securities of the Company.

C. In the Merger, each outstanding share of common stock of the Company is to be converted into the right to receive the consideration set forth in the Merger Agreement.

D. Stockholder is entering into this Agreement in order to induce Parent to enter into the Merger Agreement.

Agreement

The parties to this Agreement, intending to be legally bound, agree as follows:

SECTION 1. Certain Definitions

For purposes of this Agreement:

(a) “Company Common Stock” shall mean the common stock, par value $0.0001 per share, of the Company.

(c) “Specified Period” shall mean the period commencing on the date of this Agreement and ending on the Termination Date.

(g) Capitalized terms used but not otherwise defined in this Agreement have the meanings assigned to such terms in the Merger Agreement.

SECTION 2. Transfer of Subject Securities and Voting Rights

SECTION 3. Voting of Shares; Proxy;

(a) in favor of the adoption of the Merger Agreement, in favor of the Merger and in favor of any other action reasonably necessary to facilitate the Merger; and

3.2 Proxy.

or powers of attorney with respect to the voting of any Subject Securities inconsistent with the terms of Section 3.1 until after the Termination Date.

SECTION 4. Waiver of Appraisal Rights

SECTION 5. No Solicitation

SECTION 6. Representations and Warranties of Stockholder

Stockholder hereby represents and warrants to Parent as follows as of the date hereof:

6.2 No Conflicts or Consents.

voting power under Section 3.1 or grant the Proxy pursuant to Section 3.2 or otherwise grant to Parent the rights granted hereby.

SECTION 7. Miscellaneous

7.3 Expenses. All costs and expenses incurred in connection with the transactions contemplated by this Agreement shall be paid by the party incurring such costs and expenses.

if to Stockholder:

at the address set forth on the signature page hereof; and

if to Parent:

Brocade Communications Systems, Inc.
1745 Technology Drive
San Jose, CA 95110
Attn: General Counsel
Fax: (408) 333-5630

7.11 Governing Law; Jurisdiction; Waiver of Jury Trial.

7.12 Counterparts; Electronic Transmission. This Agreement may be executed in separate counterparts, each of which when so executed and delivered shall be an original, but all

7.15 Construction.

(d) Except as otherwise indicated, all references in this Agreement to “Sections” and “Exhibits” are intended to refer to Sections of this Agreement and Exhibits to this Agreement.

[Remainder of page intentionally left blank.]

In Witness Whereof, Parent and Stockholder have caused this Agreement to be executed as of the date first written above.


	Brocade Communications Systems, Inc.
	By /s/ Tyler Wall
	Title Vice President, General Counsel and General Corporate Secretary


	Stockholder
	/s/ J. Steven Young
	Signature
	J. Steven Young
	Printed Name


		Address:		2153 Waverly Street


				Palo Alto, CA 94301





		Facsimile:		650-321-7733


		Additional Securities
Shares Held of Record	Options and Other Rights	Beneficially Owned
0	721,250	0

Signature Page to Voting Agreement

Exhibit A
Form Of Irrevocable Proxy

(e) in favor of the adoption of the Merger Agreement, in favor of the Merger and in favor of any other action reasonably necessary to facilitate the Merger; and

The Stockholder may vote the Shares on all other matters not referred to in this proxy, and the attorneys and proxies named above may not exercise this proxy with respect to such other matters.

B-1

This proxy shall be binding upon the heirs, estate, executors, successors and assigns of the Stockholder (including any transferee of any of the Shares).

Dated: August 5, 2008


	Stockholder
	/s/ J. Steven Young
	Signature
	J. Steven Young

	Number of shares of common stock of the Company owned of record as of the date of this proxy:

Signature Page to Proxy

EX-2.5 4 f43069a1exv2w5.htm EXHIBIT 2.5 exv2w5

Exhibit 2.5

VOTING AGREEMENT

Recitals

A. Stockholder Owns certain securities of the Company.

C. In the Merger, each outstanding share of common stock of the Company is to be converted into the right to receive the consideration set forth in the Merger Agreement.

D. Stockholder is entering into this Agreement in order to induce Parent to enter into the Merger Agreement.

Agreement

The parties to this Agreement, intending to be legally bound, agree as follows:

SECTION 1. Certain Definitions

For purposes of this Agreement:

(a) “Company Common Stock” shall mean the common stock, par value $0.0001 per share, of the Company.

(c) “Specified Period” shall mean the period commencing on the date of this Agreement and ending on the Termination Date.

(g) Capitalized terms used but not otherwise defined in this Agreement have the meanings assigned to such terms in the Merger Agreement.

SECTION 2. Transfer of Subject Securities and Voting Rights

SECTION 3. Voting of Shares; Proxy;

(a) in favor of the adoption of the Merger Agreement, in favor of the Merger and in favor of any other action reasonably necessary to facilitate the Merger; and

3.2 Proxy.

or powers of attorney with respect to the voting of any Subject Securities inconsistent with the terms of Section 3.1 until after the Termination Date.

SECTION 4. Waiver of Appraisal Rights

SECTION 5. No Solicitation

SECTION 6. Representations and Warranties of Stockholder

Stockholder hereby represents and warrants to Parent as follows as of the date hereof:

6.2 No Conflicts or Consents.

voting power under Section 3.1 or grant the Proxy pursuant to Section 3.2 or otherwise grant to Parent the rights granted hereby.

SECTION 7. Miscellaneous

7.3 Expenses. All costs and expenses incurred in connection with the transactions contemplated by this Agreement shall be paid by the party incurring such costs and expenses.

if to Stockholder:

at the address set forth on the signature page hereof; and

if to Parent:

Brocade Communications Systems, Inc.
1745 Technology Drive
San Jose, CA 95110
Attn: General Counsel
Fax: (408) 333-5630

7.11 Governing Law; Jurisdiction; Waiver of Jury Trial.

7.12 Counterparts; Electronic Transmission. This Agreement may be executed in separate counterparts, each of which when so executed and delivered shall be an original, but all

7.15 Construction.

(d) Except as otherwise indicated, all references in this Agreement to “Sections” and “Exhibits” are intended to refer to Sections of this Agreement and Exhibits to this Agreement.

[Remainder of page intentionally left blank.]

In Witness Whereof, Parent and Stockholder have caused this Agreement to be executed as of the date first written above.


	Brocade Communications Systems, Inc.
	By /s/ Tyler Wall
	Title Vice President, General Counsel and General Corporate Secretary


	Stockholder
	/s/ Alfred J. Amoroso
	Signature
	Alfred J. Amoroso
	Printed Name


		Address:		NW Mission Corner of


				Santa Lucia Avenue


				Carmel by the Sea, CA 93921


		Facsimile:		408-567-1807


		Additional Securities
Shares Held of Record	Options and Other Rights	Beneficially Owned
0	640,000	1,000

Signature Page to Voting Agreement

Exhibit A
Form Of Irrevocable Proxy

(e) in favor of the adoption of the Merger Agreement, in favor of the Merger and in favor of any other action reasonably necessary to facilitate the Merger; and

The Stockholder may vote the Shares on all other matters not referred to in this proxy, and the attorneys and proxies named above may not exercise this proxy with respect to such other matters.

B-1

This proxy shall be binding upon the heirs, estate, executors, successors and assigns of the Stockholder (including any transferee of any of the Shares).

Dated: August , 2008


	Stockholder
	/s/ Alfred J. Amoroso, Jr.
	Signature
	Alfred J. Amoroso, Jr.

	Number of shares of common stock of the Company owned of record as of the date of this proxy:

Signature Page to Proxy

EX-2.6 5 f43069a1exv2w6.htm EXHIBIT 2.6 exv2w6

Exhibit 2.6

VOTING AGREEMENT

Recitals

A. Stockholder Owns certain securities of the Company.

C. In the Merger, each outstanding share of common stock of the Company is to be converted into the right to receive the consideration set forth in the Merger Agreement.

D. Stockholder is entering into this Agreement in order to induce Parent to enter into the Merger Agreement.

Agreement

The parties to this Agreement, intending to be legally bound, agree as follows:

SECTION 1. Certain Definitions

For purposes of this Agreement:

(a) “Company Common Stock” shall mean the common stock, par value $0.0001 per share, of the Company.

(c) “Specified Period” shall mean the period commencing on the date of this Agreement and ending on the Termination Date.

(g) Capitalized terms used but not otherwise defined in this Agreement have the meanings assigned to such terms in the Merger Agreement.

SECTION 2. Transfer of Subject Securities and Voting Rights

SECTION 3. Voting of Shares; Proxy;

(a) in favor of the adoption of the Merger Agreement, in favor of the Merger and in favor of any other action reasonably necessary to facilitate the Merger; and

3.2 Proxy.

or powers of attorney with respect to the voting of any Subject Securities inconsistent with the terms of Section 3.1 until after the Termination Date.

SECTION 4. Waiver of Appraisal Rights

SECTION 5. No Solicitation

SECTION 6. Representations and Warranties of Stockholder

Stockholder hereby represents and warrants to Parent as follows as of the date hereof:

6.2 No Conflicts or Consents.

voting power under Section 3.1 or grant the Proxy pursuant to Section 3.2 or otherwise grant to Parent the rights granted hereby.

SECTION 7. Miscellaneous

7.3 Expenses. All costs and expenses incurred in connection with the transactions contemplated by this Agreement shall be paid by the party incurring such costs and expenses.

if to Stockholder:

at the address set forth on the signature page hereof; and

if to Parent:

Brocade Communications Systems, Inc.
1745 Technology Drive
San Jose, CA 95110
Attn: General Counsel
Fax: (408) 333-5630

7.11 Governing Law; Jurisdiction; Waiver of Jury Trial.

7.12 Counterparts; Electronic Transmission. This Agreement may be executed in separate counterparts, each of which when so executed and delivered shall be an original, but all

7.15 Construction.

(d) Except as otherwise indicated, all references in this Agreement to “Sections” and “Exhibits” are intended to refer to Sections of this Agreement and Exhibits to this Agreement.

[Remainder of page intentionally left blank.]

In Witness Whereof, Parent and Stockholder have caused this Agreement to be executed as of the date first written above.


	Brocade Communications Systems, Inc.
	By /s/ Tyler Wall
	Title Vice President, General Counsel and General Corporate Secretary


	Stockholder
	/s/ C. Nicholas Keating, Jr.
	Signature
	C. Nicholas Keating, Jr.
	Printed Name


		Address:		2477 Jackson Street


				San Francisco, CA 94115





		Facsimile:		510-574-4000


		Additional Securities
Shares Held of Record	Options and Other Rights	Beneficially Owned
0	440,000	0

Signature Page to Voting Agreement

Exhibit A
Form Of Irrevocable Proxy

(e) in favor of the adoption of the Merger Agreement, in favor of the Merger and in favor of any other action reasonably necessary to facilitate the Merger; and

The Stockholder may vote the Shares on all other matters not referred to in this proxy, and the attorneys and proxies named above may not exercise this proxy with respect to such other matters.

B-1

This proxy shall be binding upon the heirs, estate, executors, successors and assigns of the Stockholder (including any transferee of any of the Shares).

Dated: , 2008


	Stockholder
	/s/ C. Nicholas Keating
	Signature
	C. Nicholas Keating

	Number of shares of common stock of the Company owned of record as of the date of this proxy:

Signature Page to Proxy

EX-2.7 6 f43069a1exv2w7.htm EXHIBIT 2.7 exv2w7

Exhibit 2.7

VOTING AGREEMENT

Recitals

A. Stockholder Owns certain securities of the Company.

C. In the Merger, each outstanding share of common stock of the Company is to be converted into the right to receive the consideration set forth in the Merger Agreement.

D. Stockholder is entering into this Agreement in order to induce Parent to enter into the Merger Agreement.

Agreement

The parties to this Agreement, intending to be legally bound, agree as follows:

SECTION 1. Certain Definitions

For purposes of this Agreement:

(a) “Company Common Stock” shall mean the common stock, par value $0.0001 per share, of the Company.

(c) “Specified Period” shall mean the period commencing on the date of this Agreement and ending on the Termination Date.

(g) Capitalized terms used but not otherwise defined in this Agreement have the meanings assigned to such terms in the Merger Agreement.

SECTION 2. Transfer of Subject Securities and Voting Rights

SECTION 3. Voting of Shares; Proxy;

(a) in favor of the adoption of the Merger Agreement, in favor of the Merger and in favor of any other action reasonably necessary to facilitate the Merger; and

3.2 Proxy.

or powers of attorney with respect to the voting of any Subject Securities inconsistent with the terms of Section 3.1 until after the Termination Date.

SECTION 4. Waiver of Appraisal Rights

SECTION 5. No Solicitation

SECTION 6. Representations and Warranties of Stockholder

Stockholder hereby represents and warrants to Parent as follows as of the date hereof:

6.2 No Conflicts or Consents.

voting power under Section 3.1 or grant the Proxy pursuant to Section 3.2 or otherwise grant to Parent the rights granted hereby.

SECTION 7. Miscellaneous

7.3 Expenses. All costs and expenses incurred in connection with the transactions contemplated by this Agreement shall be paid by the party incurring such costs and expenses.

if to Stockholder:

at the address set forth on the signature page hereof; and

if to Parent:

Brocade Communications Systems, Inc.
1745 Technology Drive
San Jose, CA 95110
Attn: General Counsel
Fax: (408) 333-5630

7.11 Governing Law; Jurisdiction; Waiver of Jury Trial.

7.12 Counterparts; Electronic Transmission. This Agreement may be executed in separate counterparts, each of which when so executed and delivered shall be an original, but all

7.15 Construction.

(d) Except as otherwise indicated, all references in this Agreement to “Sections” and “Exhibits” are intended to refer to Sections of this Agreement and Exhibits to this Agreement.

[Remainder of page intentionally left blank.]

In Witness Whereof, Parent and Stockholder have caused this Agreement to be executed as of the date first written above.


	Brocade Communications Systems, Inc.
	By /s/ Tyler Wall
	Title Vice President, General Counsel and General Corporate Secretary


	Stockholder
	/s/ Alan L. Earhart
	Signature
	Alan L. Earhart
	Printed Name


		Address:		1370 Pritchett Court


				Los Altos, CA 94024





		Facsimile:


		Additional Securities
Shares Held of Record	Options and Other Rights	Beneficially Owned
0	389,000	0

Signature Page to Voting Agreement

Exhibit A
Form Of Irrevocable Proxy

(e) in favor of the adoption of the Merger Agreement, in favor of the Merger and in favor of any other action reasonably necessary to facilitate the Merger; and

The Stockholder may vote the Shares on all other matters not referred to in this proxy, and the attorneys and proxies named above may not exercise this proxy with respect to such other matters.

B-1

This proxy shall be binding upon the heirs, estate, executors, successors and assigns of the Stockholder (including any transferee of any of the Shares).

Dated: August 6, 2008


	Stockholder
	/s/ Alan L. Earhart
	Signature
	Alan L. Earhart

	Number of shares of common stock of the Company owned of record as of the date of this proxy:

Signature Page to Proxy

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