<PAGE> 1
THE INDEX TO EXHIBITS IS ON PAGE 8 OF THIS DOCUMENT.
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 8, 1998
REGISTRATION NO. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AUSPEX SYSTEMS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 93-0963760
- ------------------------ ------------------------------------
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
2300 CENTRAL EXPRESSWAY
SANTA CLARA, CALIFORNIA 95050
(ADDRESS, INCLUDING ZIP CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
1993 EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE PLAN)
BRUCE N. MOORE
PRESIDENT AND CHIEF EXECUTIVE OFFICER
AUSPEX SYSTEMS, INC.
2300 CENTRAL EXPRESSWAY
SANTA CLARA, CALIFORNIA 95050
(408) 566-2000
(NAME, ADDRESS, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
HENRY P. MASSEY, JR., ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304-1050
(650) 493-9300
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================
PROPOSED PROPOSED
TITLE OF EACH CLASS AMOUNT MAXIMUM MAXIMUM AMOUNT OF
OF SECURITIES TO TO BE OFFERING AGGREGATE REGISTRATION
BE REGISTERED REGISTERED PRICE OFFERING FEE
<S> <C> <C> <C> <C>
Common Stock
$0.001 par value............... 500,000 shares(1) $4.91(2) $2,455,000 $724.23
===========================================================================================================
</TABLE>
(1) For the sole purpose of calculating the registration fee, the number of
shares to be registered under this Registration Statement is the number of
additional shares authorized to be issued under the 1993 Employee Stock
Purchase Plan.
(2) Estimated in accordance with Rule 457(h) under the Securities Act of 1933,
as amended, solely for the purpose of calculating the total registration
fee. Computation based upon the average of the high and low prices of the
Common Stock as reported on The Nasdaq National Market on June 5, 1998
because the prices at which shares will be purchased in the future are not
currently determinable.
<PAGE> 2
PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3 INFORMATION INCORPORATED BY REFERENCE
The following documents and information heretofore filed with the Securities
and Exchange Commission (the "Commission") are hereby incorporated by reference:
ITEM 3(a)
The Annual Report on Form 10-K of Auspex Systems, Inc. (the
"Registrant"), Commission file no. 0-21432, filed on September 26, 1997
pursuant to Section 13 of the Securities and Exchange Act of 1934, as
amended (the "Exchange Act"), which contains audited financial statements
for the Registrant's latest fiscal year ended June 30, 1997, as amended by
Amendment No. 1 to Form 10-K on Form 10-K/A filed October 1, 1997.
ITEM 3(b)
The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1998, filed on May 14, 1998 pursuant to Section 13 of the
Exchange Act.
The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended December 31, 1997, filed on February 12, 1998 pursuant to Section 13
of the Exchange Act.
The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended September 30, 1997, filed on November 13, 1997 pursuant to Section 13
of the Exchange Act.
ITEM 3(c)
Items 1 and 2 of the Registrant's Registration Statement on Form 8-A
filed on April 20, 1995 pursuant to Section 12 of the Exchange Act.
All documents subsequently filed by the Registrant 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 offered 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
Not Applicable.
ITEM 6 INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by the Delaware General Corporation Law, the Registrant has
included in its Certificate of Incorporation a provision to eliminate the
personal liability of its directors for monetary damages for breach or alleged
breach of their fiduciary duties as directors, subject to certain exceptions. In
addition, the By-laws of the Registrant provide that the
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Registrant is required to indemnify its officers and directors under certain
circumstances, including those circumstances in which indemnification would
otherwise be discretionary, and the Registrant is required to advance expenses
to its officers and directors as incurred in connection with proceedings against
them for which they may be indemnified. The Registrant has entered into
indemnification agreements with its officers and directors containing provisions
that are in some respects broader than the specific indemnification provisions
contained in the Delaware General Corporation Law. The indemnification
agreements may require the Registrant, among other things, to indemnify such
officers and directors against certain liabilities that may arise by reason of
their status or service as directors or officers (other than liabilities arising
from willful misconduct of a culpable nature), to advance expenses incurred as a
result of any proceeding against them as to which they could be indemnified, and
to obtain directors' and officers' insurance if available on reasonable terms.
At present, the Registrant is not aware of any pending or threatened litigation
or proceeding involving a director, officer, employee or agent of the Registrant
in which indemnification would be required or permitted. The Registrant believes
that its charter provisions and indemnification agreements are necessary to
attract and retain qualified persons as directors and officers.
ITEM 7 EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8 EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Document
------- --------
<S> <C>
4.1(1) Registration and Information Rights Agreement dated January 31,
1992.
4.2(2) Preferred Shares Rights Agreement between the Registrant and the
First National Bank of Boston as Rights Agent dated April 19,
1995.
5.1 Opinion of Counsel as to Legality of Securities Being Registered.
23.1 Consent of Independent Public Accountants.
23.2 Consent of Counsel (contained in Exhibit 5.1 hereto).
24.1 Power of Attorney (see page 5).
</TABLE>
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(1) Incorporated by reference to exhibits filed in response to Item 16(a),
"Exhibits," of the Registrant's Registration Statement on Form S-1, as
amended (File No. 33-60052), which was declared effective on May 11, 1993.
(2) Incorporated by reference to Exhibit 1 filed in connection with the
Registrant's Form 8-A, which was filed on April 20, 1995.
ITEM 9 UNDERTAKINGS
A. The undersigned Registrant hereby undertakes:
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(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 of 1933, as amended (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. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant'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 the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the 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 the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the 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, the Registrant, Auspex
Systems, Inc., a corporation organized and existing under the laws of the State
of Delaware, 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 Santa Clara, State of California, on May 15,
1998.
AUSPEX SYSTEMS, INC.
By: /s/ Bruce N. Moore
--------------------------------
Bruce N. Moore, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Bruce N. Moore and R. Marshall Case, jointly and
severally, as his attorneys-in-fact, each with the power of substitution, 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 each of said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue hereof.
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Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Bruce N. Moore President, Chief Executive Officer and May 15, 1998
- ------------------------------- Director
(Bruce N. Moore)
/s/ R. Marshall Case Vice President of Finance and Chief Financial May 15, 1998
- ------------------------------- Officer (Principal Financial and Accounting
(R. Marshall Case) Officer)
/s/ R. Stephen Cheheyl Director May 15, 1998
- -------------------------------
(R. Stephen Cheheyl)
/s/ W. Frank King Director May 21, 1998
- -------------------------------
(W. Frank King)
/s/ David S. Marquardt Director May 15, 1998
- -------------------------------
(David F. Marquardt)
</TABLE>
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<PAGE> 7
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------------------------------
EXHIBITS
------------------------------------------------------
Registration Statement on Form S-8
AUSPEX SYSTEMS, INC.
June 8, 1998
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<PAGE> 8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Page
Number No.
<S> <C> <C>
4.1(1) Registration and Information Rights Agreement dated January 31,
1992.
4.2(2) Preferred Shares Rights Agreement between the Registrant and the
First National Bank of Boston as Rights Agent dated April 19,
1995.
5.1 Opinion of Counsel as to Legality of Securities Being Registered.
23.1 Consent of Independent Public Accountants.
23.2 Consent of Counsel (contained in Exhibit 5.1 hereto).
24.1 Power of Attorney (see page 5).
</TABLE>
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(1) Incorporated by reference to exhibits filed in response to Item 16(a),
"Exhibits," of the Registrant's Registration Statement on Form S-1, as
amended (File No. 33-60052), which was declared effective on May 11, 1993.
(2) Incorporated by reference to Exhibit 1 filed in connection with the
Registrant's Form 8-A, which was filed on April 20, 1995.
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<PAGE> 1
Exhibit 5.1
June 5, 1998
Auspex Systems, Inc.
2300 Central Expressway
Santa Clara, California 95050
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 or about June 8, 1998 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of an additional 500,000 shares of your
Common Stock reserved for issuance under the 1993 Employee Stock Purchase Plan,
as amended (the "Plan"). As legal counsel for Auspex Systems, Inc., 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 under the
Plan.
It is our opinion that, when issued and sold in the manner referred to in
the Plan and pursuant to the respective agreement which accompanies each grant
under the Plan, the Shares 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 it appears in the
Registration Statement and any amendments to it.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
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<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our reports dated
July 28, 1997, included in the Form 10-K of Auspex Systems, Inc.
for the year ended June 30, 1997.
/s/ ARTHUR ANDERSEN LLP
San Jose, California
June 4, 1998
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