exv10w23





EXHIBIT 10.23





FOUNDRY NETWORKS, INC.


2006 STOCK INCENTIVE PLAN




STOCK UNIT AGREEMENT




     This Stock Unit Agreement (the “Agreement”) is made and entered into as of ___,
200___by and between Foundry Networks, Inc., a Delaware corporation (the “Company”), and
___pursuant to the Foundry Networks, Inc. 2006 Stock Incentive Plan (the
“Plan”). To the extent any capitalized terms used in this Agreement are not defined, they shall
have the meaning ascribed to them in the Plan, which is attached to, and made a part of, this
Agreement. In the event of a conflict between the terms and provisions of the Plan and the terms
and provisions of this Agreement, the Plan terms and provisions shall prevail.



     In consideration of the mutual agreements herein contained and intending to be legally bound
hereby, the parties agree as follows:



     1. Restricted Stock Units. Pursuant to the Plan, the Company hereby grants to you,
and you hereby accept from the Company, ______stock units, each of which is a bookkeeping
entry representing the equivalent in value of one (1) Share (the “Restricted Stock Units”), on the
terms and conditions set forth herein and in the Plan.



     2. Vesting of Restricted Stock Units. So long as your Service continues, the
Restricted Stock Units shall vest in accordance with the following schedule: one-third of the
total number of Restricted Stock Units shall vest on ___, 200___(the one-year anniversary
of the vesting commencement date) and one-third of the total number of Restricted Stock Units shall
vest on each one-year anniversary thereafter.



     3. Termination of Service. In the event of the termination of your Service for any
reason, all unvested Restricted Stock Units shall be immediately forfeited without consideration.



     4. Acceleration of Vesting. You agree that the Restricted Stock Units shall not be
subject to the acceleration of vesting provisions



 









 




contained in your Change of Control Severance
Agreement dated as of ___, or any other agreement between you and the Company providing
for acceleration of vesting in connection with the acquisition of the Company by Brocade
Communication Systems, Inc. (“Brocade,” and such transaction, the “Merger”). However, if your
Service is terminated by the Company or Brocade in connection with the Merger prior to the one year anniversary of the vesting commencement date and you are a party
to a Change of Control Severance Agreement with the Company or any other agreement between you and
the Company providing for acceleration of vesting in connection with the Merger, then, upon any
such termination, the vesting of that number of Restricted Stock Units shall be accelerated in an
amount equal to (1) the total number of days elapsed from July 21, 2008 through the date of such
termination, divided by 365, multiplied by (2) the number of Restricted Stock Units that would have
vested one year after the vesting commencement date.



     5. Settlement of Restricted Stock Units. Restricted Stock Units shall be
automatically settled in Shares upon vesting of such Restricted Stock Units, provided that the
Company shall have no obligation to issue Shares pursuant to this Agreement unless and until you
have satisfied any applicable tax withholding obligations pursuant to Section 6 below and
such issuance otherwise complies with all applicable law. Prior to the time the Restricted Stock
Units are settled upon vesting, you will have no rights other than those of a general creditor of
the Company. Restricted Stock Units represent an unfunded and unsecured obligation of the Company.



     Notwithstanding anything in the Plan or this Agreement to the contrary, if you are a
“specified employee” within the meaning of Section 409A at the time of your termination, and the
Restricted Stock Units, if any, that accelerate in accordance with Section 4 above, when considered
together with any other severance payments or separation benefits may be considered deferred
compensation under Section 409A (together, the “Deferred Compensation Separation Benefits”), then
only that portion of the Deferred Compensation Separation Benefits which do not exceed the Section
409A Limit may be made within the first six (6) months following your termination of employment in
accordance with the payment schedule applicable to each payment or benefit. Any portion of the
Deferred Compensation Separation Benefits in excess of the Section 409A Limit otherwise due to you
on or within the six (6) month period



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following your termination will accrue during such six (6)
month period and will become payable in a lump sum payment on the date six (6) months and one (1)
day following the date of your termination of employment, unless you die during such six (6) month
period, in which case, such Deferred Compensation Separation Benefits will be paid to your estate
as soon as practicable following your death, subject to Section 6. Notwithstanding the foregoing,
if the payment of any portion of the Deferred Compensation Separation Benefits during the first six
(6) months following your termination of employment would result in the imposition of additional
tax under Section 409A if paid to you on or within this six (6) month period, all Deferred
Compensation Separation Benefits will be accrue during such six (6) month period and will become
payable in a lump sum payment on the date six (6) months and one (1) day following the date of your
termination of employment, unless you die during such six (6) month period, in which case, such
Deferred Compensation Separation Benefits will be paid to your estate as soon as practicable
following your death, subject to Section 6. All subsequent Deferred Compensation Separation
Benefits, if any, will be payable in accordance with the payment schedule applicable to each
payment or benefit. It is the intent of this Agreement to comply with the requirements of Section
409A so that none of the Restricted Stock Units provided hereunder will be subject to the
additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so
comply. For purposes of this Agreement, “Section 409A” means Section 409A of the Internal Revenue
Code of 1986, as amended (the “Code”), and any proposed, temporary or final Treasury Regulations
and Internal Revenue Service guidance thereunder, as each may be amended from time to time. For
purposes of this Agreement, “Section 409A Limit” will mean the lesser of two (2) times: (i) your
annualized compensation based upon the annual rate of pay paid to you during the Company’s taxable
year preceding the Company’s taxable year of your termination of employment as determined under
Treasury Regulation 1.409A-1(b)(9)(iii)(A)(1) and any Internal Revenue Service guidance issued with
respect thereto; or (ii) the maximum amount that may be taken into account under a qualified plan
pursuant to Section 401(a)(17) of the Code for the year in which your employment is
terminated.



     6. Withholding Taxes. You agree to make arrangements



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     satisfactory to the Company for the satisfaction of any applicable withholding tax obligations that arise in connection with
the Restricted Stock Units which, at the sole discretion of the Committee, may include (i) having
the Company withhold Shares from the settlement of the Restricted Stock Units, or (ii) any other
arrangement approved by the Company, in either case, equal in value to
the amount necessary to satisfy any such withholding tax obligations. The Company shall not be
required to issue Shares pursuant to this Agreement unless and until such obligations are
satisfied.



     7. Tax Advice. You represent, warrant and acknowledge that the Company has made no
warranties or representations to you with respect to the income tax consequences of the
transactions contemplated by this Agreement, and you are in no manner relying on the Company or the
Company’s representatives for an assessment of such tax consequences. YOU UNDERSTAND THAT THE TAX
LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. YOU SHOULD CONSULT YOUR OWN TAX ADVISOR REGARDING ANY
RESTRICTED STOCK UNITS. NOTHING STATED HEREIN IS INTENDED OR WRITTEN TO BE USED, AND CANNOT BE
USED, FOR THE PURPOSE OF AVOIDING TAXPAYER PENALTIES.



     8. Non-Transferability of Restricted Stock Units. The Restricted Stock Units shall
not be transferable other than by will or the laws of descent and distribution. The designation of
a beneficiary does not constitute a transfer. The terms of this Agreement shall be binding upon
your executors, administrators, heirs, successors and assigns.



     9. Restriction on Transfer. Regardless of whether the transfer or issuance of the
Shares to be issued pursuant to the Restricted Stock Units have been registered under the
Securities Act or have been registered or qualified under the securities laws of any state, the
Company may impose additional restrictions upon the sale, pledge, or other transfer of the Shares
(including the placement of appropriate legends on stock certificates and the issuance of
stop-transfer instructions to the Company’s transfer agent) if, in the judgment of the Company and
the Company’s counsel, such restrictions are necessary in order to achieve compliance with the
provisions of the Securities Act, the securities laws of any state, or any other law.



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     10. Stock Certificate Restrictive Legends. Stock certificates evidencing the Shares
issued pursuant to the Restricted Stock Units may bear such restrictive legends as the Company and
the Company’s counsel deem necessary under applicable law or pursuant to this Agreement.



     11. Representations, Warranties, Covenants, and Acknowledgments. You hereby agree
that in the event the Company and the Company’s counsel deem it necessary or advisable in the
exercise of their discretion, the transfer or issuance of the Shares issued pursuant to the
Restricted Stock Units may be conditioned upon you making certain representations, warranties, and
acknowledgments relating to compliance with applicable securities laws.



     12. Voting and Other Rights. Subject to the terms of this Agreement, you shall not
have any voting rights or any other rights and privileges of a stockholder of the Company unless
and until the Restricted Stock Units are settled upon vesting.



     13. No Employment Rights. Neither the Plan nor this Stock Unit Award shall be deemed
to give you a right to remain an Employee, Consultant or director of the Company, a Parent, a
Subsidiary or an Affiliate. The Company and its Parents and Subsidiaries and Affiliates
reserve the right to terminate your Service at any time, with or without cause, and for any reason,
subject to applicable laws.



     14. Notices. Any notice required or permitted by this Agreement shall be in writing
and shall be deemed sufficient when delivered personally or sent by telegram or fax or 48 hours
after being deposited in the U.S. mail, as certified or registered mail, with postage prepaid, and
addressed to the Company at its principal corporate offices and to you at the address maintained
for you in the Company’s records.



     15. Entire Agreement; Enforcement of Rights. This Agreement, together with the Plan,
sets forth the entire agreement and understanding of the parties relating to the subject matter
herein and therein and merges all prior discussions between the parties. Except as contemplated
under the Plan, no modification of or amendment to this Agreement, nor any waiver of any rights
under this Agreement, shall be effective unless in writing signed by the parties to this Agreement.
The failure by either



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party to enforce any rights under this Agreement shall not be construed as a
waiver of any rights of such party.



     16. Governing Law. This Agreement and all acts and transactions pursuant hereto and
the rights and obligations of the parties hereto shall be governed, construed and interpreted in
accordance with the laws of the State of California, without giving effect to principles of
conflicts of law.



     17. Severability. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, the parties agree to renegotiate such provision in good faith.
In the event that the parties cannot reach a mutually agreeable and enforceable replacement for
such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of
this Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of
this Agreement shall be enforceable in accordance with its terms.



     18. Successors and Assigns. The rights and benefits of this Agreement shall inure to
the benefit of, and be enforceable by the Company’s successors and assigns. The rights and
obligations of you under this Agreement may not be assigned without the prior written consent of
the Company.



     19. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall constitute one instrument.



* * * *




(Signature Page Follows)




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     IN WITNESS WHEREOF, the parties hereto have executed this Agreement on this ___day of
___, 200___.


FOUNDRY NETWORKS, INC.



	 	 	 
	By:

	 	 
	 

	 	 
	 

	 	(Signature)
	 
	 	 
	Name:
	 	 
	 

	 	 
	 
	 	 
	Title:
	 	 
	 

	 	 
	 
	 	 
	RECIPIENT:
	 	 
	 
	 	 
	 
	 
	 	 
	By:
	 	 
	 

	 	 
	 

	 	(Signature)
	 
	 	 
	Address:
	 	 
	 

	 	 
	 
	 	 
	 





	 	 	 
	Telephone Number:

	 	 
	 

	 	 
	 
	 	 
	Email Address:

	 	 
	 

	 	 




I, ___, spouse of ___, have read and hereby approve the foregoing
Agreement. In consideration of the Company’s granting my spouse the right to the Restricted Stock
Units as set forth in the Agreement, I hereby agree to be bound irrevocably by the Agreement and
further agree that any community property or other such interest that I may have in the Restricted
Stock Units and the underlying Shares shall hereby be similarly bound by the Agreement. I hereby
appoint my spouse as my attorney-in-fact with respect to any amendment or exercise of any rights
under the Agreement.


 


Spouse of Recipient




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