<PAGE> 1
THE INDEX TO EXHIBITS IS ON PAGE 7 OF THIS DOCUMENT.
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 12, 2000
REGISTRATION NO. 333-
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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)
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<S> <C>
DELAWARE 93-0963760
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(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
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2300 CENTRAL EXPRESSWAY
SANTA CLARA, CALIFORNIA 95050
(ADDRESS, INCLUDING ZIP CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
1993 EMPLOYEE STOCK PURCHASE PLAN
1998 NON-STATUTORY STOCK OPTION 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
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<CAPTION>
CALCULATION OF REGISTRATION FEE
=====================================================================================================================
TITLE OF EACH CLASS PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
OF SECURITIES TO AMOUNT TO BE OFFERING AGGREGATE REGISTRATION
BE REGISTERED REGISTERED PRICE PER SHARE OFFERING PRICE FEE
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
$0.001 par value, previously issued or
to be issued under the 1993 Employee
Stock Purchase Plan...................... 800,000 shares(1) $ 7.5445(2) $ 6,035,600 $ 1,618
Common Stock
$0.001 par value, previously issued or
to be issued under the 1998 Non-Statutory
Stock Option Plan........................ 2,250,000 shares(1) $ 7.1468(3) $ 16,080,300 $ 4,270
Total........................... 3,050,000 shares $ 7.2511 $ 22,115,900 $ 5,888
=====================================================================================================================
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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 is the number of
additional shares authorized to be issued under the 1993 Employee Stock
Purchase Plan and the number of additional shares authorized to be issued
under the 1998 Non-Statutory Stock Option Plan.
(2) Estimated in accordance with Rule 457(h) under the Securities Act of 1933,
as amended, solely for the purpose of calculating the registration fee. The
price of $7.5445 represents the weighted average exercise price based on
(i) the weighted average exercise price of $6.1094 per share for options to
purchase a total of 119,635 shares of Common Stock outstanding under the
1993 Employee Stock Purchase Plan and (ii) $7.7969 per share (the average
of the high and low reported prices on the Nasdaq National Market as of
January 11, 2000) for 680,365 shares of Common Stock reserved for issuance
under the 1993 Employee Stock Purchase Plan. The price in (ii) of the
preceding sentence is being used because the exercise prices of options to
be granted in the future are not currently determinable.
(3) Estimated in accordance with Rule 457(h) under the Securities Act of 1933,
as amended, solely for the purpose of calculating the registration fee. The
price of $7.1468 represents the weighted average exercise price based on
(i) the weighted average exercise price of $6.8549 per share for options to
purchase a total of 1,552,787 shares of Common Stock outstanding under the
1998 Non-Statutory Stock Option Plan and (ii) $7.7969 per share (the
average of the high and low reported prices on the Nasdaq National Market
as of January 11, 2000) for 697,213 shares of Common Stock reserved for
issuance under the 1998 Non-Statutory Stock Option Plan. The price in (ii)
of the preceding sentence is being used because the exercise prices of
options to be granted in the future are not currently determinable.
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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"), filed on September 27, 1999 pursuant to Section 13 of the
Securities and Exchange Act of 1934, as amended (the "Exchange Act").
ITEM 3(B)
The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended September 30, 1999, filed on November 12, 1999 pursuant to Section 13
of the Exchange Act.
ITEM 3(C)
The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form S-1, filed on May 11, 1993
pursuant to Rule 424(b)(1) of the Securities Act of 1933, as amended (the
"Securities Act").
The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A, filed pursuant to Section
12 of the Exchange Act on March 26, 1993, as amended.
The description of the Registrant's Preferred Share Purchase Rights
contained in Exhibit 1 to 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.
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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 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
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Exhibit
Number Document
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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 6).
99.1(3) 1993 Employee Stock Purchase Plan and forms of Option Agreements, as
amended to date.
99.2(3) 1998 Non-Statutory Stock Option Plan and form of Stock Option Agreement.
</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 Registration Statement on Form 8-A, which was filed on April
20, 1995.
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(3) Incorporated by reference to exhibits filed in connection with the
Registrant's Proxy Statement for the 1999 Annual Meeting of Stockholders,
which was filed on October 8, 1999.
ITEM 9 UNDERTAKINGS
A. The undersigned Registrant 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. 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 January 12,
2000.
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.
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.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Bruce N. Moore President, Chief Executive Officer January 12, 2000
- ----------------------------- and Director
(Bruce N. Moore)
/s/ R. Marshall Case Vice President of Finance and January 12, 2000
- ----------------------------- Chief Financial Officer (Principal
(R. Marshall Case) Financial and Accounting Officer)
/s/ R. Stephen Cheheyl Director January 12, 2000
- -----------------------------
(R. Stephen Cheheyl)
/s/ W. Frank King Director January 12, 2000
- -----------------------------
(W. Frank King)
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INDEX TO EXHIBITS
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<CAPTION>
Exhibit Page
Number Document No.
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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 6).
99.1(3) 1993 Employee Stock Purchase Plan and forms of Option Agreements, as
amended to date.
99.2(3) 1998 Non-Statutory Stock Option Plan and form of Stock Option Agreement.
</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 Registration Statement on Form 8-A, which was filed on April
20, 1995.
(3) Incorporated by reference to exhibits filed in connection with the
Registrant's Proxy Statement for the 1999 Annual Meeting of Stockholders,
which was filed on October 8, 1999.
<PAGE> 1
EXHIBIT 5.1
January 12, 2000
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
Auspex Systems, Inc. (the "Company") with the Securities and Exchange Commission
on or about January 12, 2000 (the "Registration Statement") in connection with
the registration under the Securities Act of 1933, as amended, of an aggregate
of 3,050,000 shares of the Company's Common Stock (the "Shares") reserved for
issuance under the 1993 Employee Stock Purchase Plan and the 1998 Non-Statutory
Stock Option Plan (collectively, the "Plans"). 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 under the
Plans.
It is our opinion that, upon completion of the proceedings being taken or
contemplated by us to be taken prior to the issuance and sale of the Shares
pursuant to the Plans, and upon completion of the proceedings being taken in
order to permit each transaction to be carried out in accordance with the
securities laws of the various states where required, the Shares, when issued
and sold in the manner referred to in the Plans and the Registration Statement,
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, including the prospectus constituting a part thereof,
and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
<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 report dated July 23, 1999,
included in the Form 10-K of Auspex Systems, Inc. for the year ended June 30,
1999.
/s/ ARTHUR ANDERSEN LLP
San Jose, California
January 12, 2000
