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As filed with the Securities and Exchange Commission on May 5, 2000
Registration No. 333-___________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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TURNSTONE SYSTEMS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 77-047640
(STATE OF INCORPORATION) (I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
274 FERGUSON DRIVE
MOUNTAIN VIEW, CALIFORNIA 94043
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES, INCLUDING ZIP CODE)
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1998 STOCK PLAN
2000 STOCK PLAN
2000 EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE PLAN)
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RICHARD N. TINSLEY
PRESIDENT AND CHIEF EXECUTIVE
OFFICER
TURNSTONE SYSTEMS, INC.
274 FERGUSON DRIVE
MOUNTAIN VIEW, CALIFORNIA 94043
(650) 404-0200
(NAME, ADDRESS AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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Copy to:
THOMAS C. DEFILIPPS, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 493-9300
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CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES TO MAXIMUM AMOUNT PROPOSED PROPOSED AMOUNT OF
BE REGISTERED TO BE MAXIMUM MAXIMUM REGISTRATION
REGISTERED(1) OFFERING AGGREGATE FEE
PRICE OFFERING
PER SHARE PRICE
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<S> <C> <C> <C> <C>
Common Stock, $0.001 par value
To be issued under 1998 Stock Plan 3,420,417 shares $ 4.66(2) $ 15,939,143.22 $ 4,207.93
To be issued under 2000 Stock Plan 5,287,876 shares $95.61(3) $505,573,824.36 $133,471.49
To be issued under 2000 Employee
Stock Purchase Plan............ 500,000 shares $24.65(4) $ 12,325,000.00 $ 3,253.80
TOTAL 9,208,293 shares $533,837,967.58 $140,933.22
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(1) For the sole purpose of calculating the registration fee, the number of
shares to be registered under this Registration Statement has been broken
down into three subtotals.
(2) Computed in accordance with Rule 457(h) under the Securities Act. Such
computation is based on the weighted average exercise price of $4.66 per
share covering 3,420,417 outstanding options under our 1998 Stock Plan.
(3) Computed in accordance with Rule 457(h) and Rule 457(c) under the
Securities Act. Such computation is based on the weighted average exercise
price of $102.64 per share covering 441,500 outstanding options and the
estimated exercise price of $94.97 covering 4,846,376 authorized but
unissued shares under our 2000 Stock Plan. The estimated exercise price of
$94.97 per share was computed in accordance with Rule 457(h) by averaging
the high and low prices of a share of Turnstone Systems common stock as
reported by the Nasdaq National Market on May 3, 2000.
(4) The exercise price of $24.65 per share, computed in accordance with Rule
457(h) under the Securities Act, is 85% of the closing price of a share of
Turnstone Systems common stock as reported by the Nasdaq National Market
on February 1, 2000, the current enrollment date. Pursuant to Section
2(j)(iv) of the 2000 Employee Stock Purchase Plan (attached as Exhibit
10.4 hereto), shares are sold at 85% of the lesser of the fair market
value of such shares on the enrollment date or on the exercise date.
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
There are hereby incorporated by reference in this prospectus the
following documents and information heretofore filed with the SEC.
(1) The prospectus filed on February 1, 2000 pursuant to Rule 424(b) of
the Securities Act
(2) The description of our common stock contained in the Registration
Statement on Form 8-A filed January 11, 2000 pursuant to Section 12(g) of the
Exchange Act.
(3) The proxy statement filed on April 12, 2000 pursuant to Section
14(c) of the Exchange Act.
All documents subsequently filed by Turnstone Systems pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities registered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this registration statement and to be
part hereof from the date of filing of such documents.
ITEM 4. Description of Securities.
Not applicable.
ITEM 5. Interests of Named Experts and Counsel.
The validity of the common stock offered hereby has been passed upon for
Turnstone Systems, Inc. by Wilson Sonsini Goodrich & Rosati, Professional
Corporation, Palo Alto, California. As of the date of this prospectus, WS
Investment Company 97B and WS Investment Company 98B, each an investment
partnership composed of certain current and former members of and persons
associated with Wilson Sonsini Goodrich & Rosati, Professional Corporation, in
addition to certain current individual members of Wilson Sonsini Goodrich &
Rosati, Professional Corporation, beneficially own an aggregate of 125,290
shares of Turnstone Systems' Common Stock.
ITEM 6. 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 our Third Amended and Restated Certificate of Incorporation
provides for the indemnification of directors to the fullest extent permissible
under Delaware Law.
Article VI of our bylaws provides for the indemnification of any officer,
director or third party acting on behalf of Turnstone 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, and, with respect to any criminal action or
proceeding, the indemnified party had no reason to believe his conduct was
unlawful.
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We have entered into indemnification agreements with our directors and
executive officers, in addition to the indemnification provided for in our
certificate of incorporation and bylaws, and intend to enter into
indemnification agreements with any new directors and executive officers in the
future.
ITEM 7. Exemption from Registration Claimed.
Not applicable.
ITEM 8. Exhibits.
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EXHIBIT
NUMBER DESCRIPTION
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5.1 Opinion of counsel as to legality of securities being registered.
10.2* 1998 Stock Plan and forms of agreement thereunder
10.3* 2000 Stock Plan and forms of agreement thereunder
10.4* 2000 Employee Stock Purchase Plan and forms of agreement thereunder
23.1 Consent of counsel (contained in Exhibit 5.1).
23.2 Independent Auditors' Consent (see page II-5).
24.1 Power of Attorney (see page II-3).
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* Incorporated by reference to the exhibit bearing the same number filed
with Turnstone Systems, Inc.'s Registration Statement on Form S-1, as
amended (No. 333-91427), which the SEC declared effective on January 31,
2000.
ITEM 9. Undertakings.
A. Turnstone Systems hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment 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.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. Turnstone Systems hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of Turnstone
Systems's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of Turnstone Systems pursuant to law, Turnstone Systems's certificate of
incorporation, bylaws, indemnification agreements, or otherwise, Turnstone
Systems has been advised that in the opinion of the SEC such indemnification is
against public policy as expressed in the
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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 successful defense of any action, suit or
proceeding) is asserted by such 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 already been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
question of 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Mountain View, State of California, on this 5th day
of May, 2000.
TURNSTONE SYSTEMS, INC.
By: /s/ Richard N. Tinsley
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Richard N. Tinsley
President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard N. Tinsley and M. Denise Savoie,
and each of them, as his attorney-in-fact, with full power of substitution in
each, for him in any and all capacities to sign any amendments to this
Registration Statement on Form S-8, and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that said attorney-in-fact, or
his substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below 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 Officer and May 5, 2000
- ---------------------------- Director (Principal Executive Officer)
Richard N. Tinsley
/s/ P. Kingston Duffie Chief Technology Officer and Director May 5, 2000
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P. Kingston Duffie
/s/ M. Denise Savoie Chief Financial Officer and Vice May 5, 2000
- ---------------------------- President, Business Operations (Principal
M. Denise Savoie Financial and Accounting Officer)
/s/ Robert J. Finocchio, Jr. Director May 5, 2000
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Robert J. Finocchio, Jr.
/s/ John K. Peters Director May 5, 2000
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John K. Peters
/s/ Andrew W. Verhalen Director May 5, 2000
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Andrew W. Verhalen
/s/ Geoffrey Y. Yang Director May 5, 2000
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Geoffrey Y. Yang
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CONSENT OF INDEPENDENT AUDITORS
To Board of Directors and Stockholders
Turnstone Systems, Inc.:
We consent to the incorporation by reference in the registration statement on
Form S-8 of Turnstone Systems, Inc. filed on or about May 5, 2000 of our report
dated January 6, 2000, relating to the balance sheets of Turnstone Systems, Inc.
as of December 31, 1999 and 1998, and the related statements of operations,
stockholders' equity, and cash flows for the period from January 2, 1998
(inception) to December 31, 1998, and the year ended December 31, 1999, which
report appears in the registration statement (No. 333-91427) on Form S-1 of
Turnstone Systems, Inc.
/s/ KPMG LLP
Mountain View, California
May 5, 2000
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INDEX TO EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION
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5.1 Opinion of counsel as to legality of securities being registered
10.2* 1998 Stock Plan and forms of agreement thereunder
10.3* 2000 Stock Plan and forms of agreement thereunder
10.4* 2000 Employee Stock Purchase Plan and forms of agreement thereunder
23.1 Consent of counsel (contained in Exhibit 5.1)
23.2 Independent Auditors' Consent (see page II-5)
24.1 Power of Attorney (see page II-4)
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* Incorporated by reference to the exhibit bearing the same number filed
with Turnstone Systems, Inc.'s Registration Statement on Form S-1, as
amended (No. 333-91427), which the SEC declared effective on January 31,
2000.
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EXHIBIT 5.1
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304-1050
TELEPHONE 650-493-9300 FACSIMILE 650-493-6811
WWW.WSGR.COM
May 5, 2000
Turnstone Systems, Inc.
274 Ferguson Drive
Mountain View, California 94043
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on May 5, 2000 (as such may
thereafter be amended or supplemented, the "Registration Statement"), in
connection with the registration under the Securities Act of 1933, as amended,
of 9,208,293 shares of your Common Stock, $0.001 par value (the "Shares"), of
which 3,420,417 shares are reserved for future issuance under the Company's
1998 Stock Plan, 5,287,876 shares are reserved for future issuance under the
Company's 2000 Stock Plan and 500,000 shares are reserved for future issuance
under the Company's 2000 Employee Stock Purchase Plan. As your legal counsel, we
have examined the proceedings taken, and are familiar with the proceedings
proposed to be taken, by you in connection with the sale and issuance of the
Shares.
It is our opinion that, upon completion of the proceedings being taken or
contemplated by us, as your counsel, to be taken prior to the issuance of the
Shares, the Shares, when issued and sold in the manner described in the
Registration Statement and in accordance with the resolutions adopted by the
Board of Directors of the Company, will be legally and validly issued, fully
paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement, including the Prospectuses constituting a part thereof,
and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
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