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As filed with the Securities and Exchange Commission on September 1, 2000
Registration No. 333-45130
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TURNSTONE SYSTEMS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C> <C>
DELAWARE 3669 77-0473640
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
2220 CENTRAL EXPRESSWAY
SANTA CLARA, CALIFORNIA 95050
(408) 907-1400
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
RICHARD N. TINSLEY
PRESIDENT AND CHIEF EXECUTIVE OFFICER
TURNSTONE SYSTEMS, INC.
2220 CENTRAL EXPRESSWAY
SANTA CLARA, CALIFORNIA 95050
(408) 907-1400
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
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<S> <C>
THOMAS C. DEFILIPPS, ESQ. JOHN L. SAVVA, ESQ.
ROBERT F. KORNEGAY, ESQ. BRIAN W. TANG, ESQ.
SANDRA PAK KNOX, ESQ. JAMES R. OEHLER, ESQ.
CLIFFORD H. W. CHEN, ESQ. SULLIVAN & CROMWELL
WILSON SONSINI GOODRICH & ROSATI 1870 EMBARCADERO ROAD
PROFESSIONAL CORPORATION PALO ALTO, CALIFORNIA 94303-3308
650 PAGE MILL ROAD (650) 461-5600
PALO ALTO, CALIFORNIA 94304
(650) 493-9300
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
OF SECURITIES TO SHARES TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
BE REGISTERED REGISTERED PER SHARE(1) PRICE(1) FEE
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Common Stock ($0.001 par value)...... 4,600,000 $58.32 $268,272,000 $70,824(2)
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(1) Estimated solely for the purpose of computing the amount of the registration
fee pursuant to Rule 457(c) under the Securities Act of 1933, based on the
average of the high and low sale prices of the common stock on the Nasdaq
National Market on August 30, 2000.
(2) Previously paid.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
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EXPLANATORY NOTE
This Amendment No. 1 to the Form S-1 Registration Statement is being filed
for the sole purpose of amending a previously filed exhibit.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by Turnstone Systems in
connection with the sale of common stock being registered. All amounts are
estimates except the SEC registration fee and the NASD filing fee.
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SEC registration fee........................................ $ 70,824
NASD filing fee............................................. 27,328
Nasdaq National Market listing fee.......................... 17,500
Printing and engraving costs................................ 200,000
Legal fees and expenses..................................... 200,000
Accounting fees and expenses................................ 200,000
Blue Sky fees and expenses.................................. 20,000
Transfer Agent and Registrar fees........................... 20,000
Miscellaneous expenses...................................... 244,348
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Total............................................. $1,000,000
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ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law permits a corporation
to include in its charter documents, and in agreements between the corporation
and its directors and officers, provisions expanding the scope of
indemnification beyond that specifically provided by the current law.
Article XI of Turnstone Systems' restated certificate of incorporation
provides for the indemnification of directors to the fullest extent permissible
under Delaware law.
Article VI of Turnstone Systems' bylaws provides for the indemnification of
officers, directors and third parties acting on behalf of Turnstone Systems if
such person acted in good faith and in a manner reasonably believed to be in and
not opposed to the best interest of Turnstone Systems, and, with respect to any
criminal action or proceeding, the indemnified party had no reason to believe
his or her conduct was unlawful.
Turnstone Systems has entered into indemnification agreements with its
directors and executive officers, in addition to indemnification provided for in
Turnstone Systems' bylaws, and intends to enter into indemnification agreements
with any new directors and executive officers in the future.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
Since our incorporation in January 1998, we have issued unregistered
securities to a limited number of persons as described below.
None of these transactions involved any underwriters, underwriting
discounts or commissions, or any public offering, and we believe that each
transaction was exempt from the registration requirements of the Securities Act
by virtue of Section 4(2) thereof, Regulation D promulgated thereunder or Rule
701 pursuant to compensatory benefit plans and contracts relating to
compensation as provided under such Rule 701. The recipients of securities in
each such transaction represented their intention to acquire the securities for
investment only and not with a view to or for sale in connection with any
distribution thereof, and appropriate legends were affixed to the share
certificates and instruments issued in such transactions. All recipients had
adequate access, through their relationships with Turnstone Systems, to
information about Turnstone Systems.
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1. In January 1998, we issued and sold 16,951,000 shares of common stock to
founders for an aggregate purchase price of $8,475.50. These
transactions were exempt from the registration requirements of the
Securities Act by virtue of Section 4(2) in that the shares were issued
to our three founders, each of whom is an officer of Turnstone Systems.
2. Pursuant to our 1998 stock plan, from inception to December 31, 1999 we
issued and sold an aggregate of 5,862,824 shares of common stock to
certain employees, officers, directors and consultants for an aggregate
purchase price of $1,197,229.40. These transactions were exempt from the
registration requirements of the Securities Act by virtue of Rule 701.
3. On January 12, 1998 and February 27, 1998, we issued and sold a total of
11,680,000 shares of Series A preferred stock to a total of 13 investors
for an aggregate purchase price of $5,840,000. These transactions were
exempt from the registration requirements of the Securities Act by
virtue of Section 4(2) and Regulation D based on the representations of
each of the investors that it was accredited under Rule 501.
4. On June 1, 1998, in connection with a credit facility, we issued to one
party a warrant to purchase 45,000 shares of our Series A preferred
stock for an aggregate exercise price of $22,500. This transaction was
exempt from the registration requirements of the Securities Act by
virtue of Section 4(2) in that the issuance was made to an investor
which was a sophisticated financial institution.
5. One July 29, 1998, in connection with certain equipment leases, we
issued to one party a warrant to purchase 90,000 shares of our Series A
preferred stock for an aggregate exercise price of $45,000. This
transaction was exempt from the registration requirements of the
Securities Act by virtue of Section 4(2) in that the issuance was made
to an investor, which was a sophisticated financial institution.
6. On January 12, 1999 and June 21, 1999, we issued and sold a total of
3,176,930 shares of Series B preferred stock to a total of 12 investors
for an aggregate purchase price of $6,195,013.50. These transactions
were exempt from the registration requirements of the Securities Act by
virtue of Section 4(2) and Regulation D based on the representations of
each of the investors that it was accredited under Rule 501.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULE
(a) EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
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1.1* Form of Underwriting Agreement
3.1** Amended and Restated Certificate of Incorporation of
Turnstone Systems
3.2** Amended and Restated Bylaws of Turnstone Systems
4.1** Form of Common Stock certificate
4.2** Registration Rights Agreement, dated January 12, 1998, by
and among Turnstone Systems and certain stockholders of
Turnstone Systems named therein, as amended as of January
12, 1999 and November 21, 1999
4.3*** Form of Founder's Restricted Stock Purchase Agreement
entered into as of January 2, 1998, between Turnstone
Systems and each of P. Kingston Duffie, M. Denise Savoie and
Richard N. Tinsley
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation
10.1** Form of Indemnification Agreement entered into by Turnstone
Systems with each of its directors and executive officers
10.2** 1998 Stock Plan and forms of agreement thereunder
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<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
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10.3** 2000 Stock Plan and forms of agreement thereunder
10.4* 2000 Nonstatutory Stock Plan and forms of agreement
thereunder
10.5*** 2000 Employee Stock Purchase Plan and forms of agreement
thereunder
10.6*** Manufacturing Agreement dated as of October 16, 1998,
between Turnstone Systems and A-Plus Manufacturing
Corporation
10.7*** OEM Purchase Agreement, dated effective as of September 1,
1999, between Turnstone Systems and Lucent Technologies
Inc., as amended as of September 28, 1999 and December 9,
1999
10.8** Sublease dated June 16, 1999, between Turnstone Systems and
Finisar Corporation
10.9* Lease dated April 28, 2000, between Turnstone Systems and
South Bay/San Tomas Associates
10.10*** Application Services Agreement, dated effective as of
December 23, 1999, between Turnstone Systems and AristaSoft
Corporation
10.11**** Agreement relating to sale and purchase of all the shares in
Paragon Solutions Limited, dated July 19, 2000, among
Turnstone Systems, each vendor listed in Schedule I thereto
and Graham Parkins, as the vendor's representative.
21.1* Subsidiaries of Turnstone Systems
23.1 Consent of KPMG LLP
23.2A* Consent of Sherwin Chan & Walshe, independent auditors
23.2B* Consent of Sherwin Chan & Walshe, independent auditors
23.3* Consent of Counsel (included in Exhibit 5.1)
24.1* Power of Attorney
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* Previously filed.
** Incorporated by reference herein to the Registration Statement of Form S-1
and all amendments thereto filed with the Securities and Exchange
Commission on November 22, 1999 and declared effective January 31, 2000.
*** Confidential treatment requested and received as to certain portions. These
exhibits are incorporated by reference herein to the Registration Statement
of Form S-1 and all amendments thereto filed with the Securities and
Exchange Commission on November 22, 1999 and declared effective January 31,
2000.
**** Incorporated by reference herein to Exhibit 2.1 of our Current Report on
Form 8-K filed with the Securities and Exchange Commission on August 11,
2000.
(b) FINANCIAL STATEMENT SCHEDULES
Independent Auditors' Report on Financial Statement Schedule
Schedule II -- Valuation and Qualifying Accounts
Schedules not listed above have been omitted because the information
required to be set forth therein is not applicable or is shown in the financial
statements or notes thereto.
ITEM 17. UNDERTAKINGS
Insofar as indemnification by Turnstone Systems for liabilities arising
under the Securities Act may be permitted to directors, officers and controlling
persons of Turnstone Systems pursuant to the provisions referenced in Item 14 of
this registration statement or otherwise, Turnstone Systems has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act, and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by Turnstone Systems of
expenses incurred or paid by a director, officer, or controlling person of
Turnstone Systems in the
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successful defense of any action, suit or proceeding) is asserted by a director,
officer or controlling person in connection with the securities being registered
hereunder, Turnstone Systems will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
Turnstone Systems hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by Turnstone Systems pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment No. 1 to the Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the city of
Santa Clara, State of California, on the 1st day of September 2000.
TURNSTONE SYSTEMS, INC.
By: /s/ RICHARD N. TINSLEY
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Richard N. Tinsley
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed by the following persons in
the capacities and on the dates indicated:
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SIGNATURE TITLE DATE
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/s/ RICHARD N. TINSLEY President, Chief Executive September 1, 2000
----------------------------------------------------- Officer and Director
Richard N. Tinsley (Principal Executive
Officer)
* Chief Technology Officer September 1, 2000
----------------------------------------------------- and Director
P. Kingston Duffie
/s/ TERRENCE J. SCHMID Chief Financial Officer September 1, 2000
----------------------------------------------------- (Principal Financial and
Terrence J. Schmid Accounting Officer)
* Director September 1, 2000
-----------------------------------------------------
Robert J. Finocchio, Jr.
* Director September 1, 2000
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John K. Peters
* Director September 1, 2000
-----------------------------------------------------
Andrew W. Verhalen
* Director September 1, 2000
-----------------------------------------------------
Geoffrey Y. Yang
*By: /s/ RICHARD N. TINSLEY
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Richard N. Tinsley
Attorney-in-Fact
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INDEX TO EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
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1.1* Form of Underwriting Agreement
3.1** Amended and Restated Certificate of Incorporation of
Turnstone Systems
3.2** Amended and Restated Bylaws of Turnstone Systems
4.1** Form of Common Stock certificate
4.2** Registration Rights Agreement, dated January 12, 1998 by and
among Turnstone Systems and certain stockholders of
Turnstone Systems named therein, as amended as of January
12, 1999 and November 19, 1999
4.3** Form of Founder's Restricted Stock Purchase Agreement
entered into as of January 2, 1998, between Turnstone
Systems and each of P. Kingston Duffie, M. Denise Savoie and
Richard N. Tinsley
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation
10.1** Form of Indemnification Agreement entered into by Turnstone
Systems with each of its directors and executive officers
10.2** 1998 Stock Plan and forms of agreement thereunder
10.3** 2000 Stock Plan and forms of agreement thereunder
10.4* 2000 Nonstatutory Stock Plan and forms of agreement
thereunder
10.5*** 2000 Employee Stock Purchase Plan and forms of agreement
thereunder
10.6*** Manufacturing Agreement dated as of October 16, 1998,
between Turnstone Systems and A-Plus Manufacturing
Corporation
10.7*** OEM Purchase Agreement, dated effective as of September 1,
1999, between Turnstone Systems and Lucent Technologies
Inc., as amended as of September 28, 1999 and December 9,
1999
10.8** Sublease dated June 16, 1999, between Turnstone Systems and
Finisar Corporation
10.9* Lease dated April 28, 2000, between Turnstone Systems and
South Bay/San Tomas Associates
10.10*** Application Services Agreement, dated effective as of
December 23, 1999, between Turnstone Systems and AristaSoft
Corporation
10.11**** Agreement relating to sale and purchase of all the shares in
Paragon Solutions Limited, dated July 19, 2000, among the
Registrant, each vendor listed in Schedule I thereto and
Graham Parkins, as the vendor's representative.
21.1* Subsidiaries of Turnstone Systems
23.1 Consent of KPMG LLP
23.2A* Consent of Sherwin Chan & Walshe, independent auditors
23.2B* Consent of Sherwin Chan & Walshe, independent auditors
23.3* Consent of Counsel (included in Exhibit 5.1)
24.1* Power of Attorney
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* Previously filed.
** Incorporated by reference herein to the Registration Statement of Form S-1
and all amendments thereto filed with the Securities and Exchange
Commission on November 22, 1999 and declared effective January 31, 2000.
*** Confidential treatment requested and received as to certain portions. These
exhibits are incorporated by reference herein to the Registration Statement
of Form S-1 and all amendments thereto filed with the Securities and
Exchange Commission on November 22, 1999 and declared effective January 31,
2000.
**** Incorporated by reference herein to Exhibit 2.1 of our Current Report on
Form 8-K filed with the Securities and Exchange Commission on August 11,
2000.
