<PAGE> 1
As filed with the Securities and Exchange Commission on October 19, 2000
Registration No. 333-____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
AUSPEX SYSTEMS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 93-0963760
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
2800 SCOTT BOULEVARD
SANTA CLARA, CALIFORNIA 95050
(408) 566-2000
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
----------------------------
GARY J. SBONA
CHAIRMAN OF THE BOARD OF DIRECTORS AND
CHIEF EXECUTIVE OFFICER
AUSPEX SYSTEMS, INC.
2800 SCOTT BOULEVARD
SANTA CLARA, CALIFORNIA 95050
(408) 566-2000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
----------------------------
Copies to:
HENRY P. MASSEY, JR., ESQ.
ERIC J. FINSETH, ESQ.
GINA M. CHRISTOPHER, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304-1050
(650) 493-9300
----------------------------
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
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, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If the 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 statement number of the earlier effective
registration statement for the same offering. [ ]
If the 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 delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=============================================================================================================
Proposed
Maximum Offering Proposed Amount of
Title of Securities to Amount to be Price Per Maximum Aggregate Registration
be Registered Registered Share(1) Offering Price Fee
-------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 11,320,953 $10.0313 $113,563,309.78 $29,980.71
-------------------------------------------------------------------------------------------------------------
Common Stock issuable
upon exercise of warrants(2) 566,048 $10.0313 $ 5,678,169.00 $ 1,499.04
-------------------------------------------------------------------------------------------------------------
Total 11,887,001 $10.0313 $119,241,478.78 $31,479.75
=============================================================================================================
</TABLE>
<PAGE> 2
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c), based upon the average of the high and low
prices of the common stock on October 17, 2000, as reported by the
Nasdaq National Market.
(2) This registration statement is intended to cover the resale of the
shares acquired by the warrant holder after such holder has exercised
the warrants. The warrants were issued pursuant to a private placement
and are not being separately registered.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION 8(a)
MAY DETERMINE.
================================================================================
<PAGE> 3
The information in this prospectus is not complete and may be changed. The
selling stockholders may not sell the securities offered by this prospectus
until the registration statement filed with the securities and exchange
commission is effective. This prospectus is not an offer to sell these
securities and it is not soliciting an offer to buy these securities in any
state where the offer or sale is not permitted.
PROSPECTUS
(SUBJECT TO COMPLETION)
PRELIMINARY PROSPECTUS DATED OCTOBER 19, 2000
11,887,001 SHARES
AUSPEX SYSTEMS, INC.
-------------------
COMMON STOCK
($.001 PAR VALUE)
-------------------
This prospectus relates to 11,887,001 shares of common stock of Auspex
Systems, Inc. which may be sold from time to time by the selling stockholders
named herein, or their transferees, pledgees, donees or successors.
The shares are being registered to permit the selling stockholders to
sell the shares from time to time in the public market. The stockholders may
sell the common stock through ordinary brokerage transactions, directly to
market makers of our shares or through any other means described in the section
entitled "Plan of Distribution" beginning on page II-10. We cannot assure you
that the selling stockholders will sell all or any portion of the common stock
offered hereby.
We will not receive any of the proceeds from the sale of these shares,
although we have paid the expenses of preparing this prospectus and the related
registration statement.
Our common stock is traded on the Nasdaq National Market under the
symbol "ASPX."
We are a Delaware corporation formed on July 10, 1991. Our principal
executive offices are located at 2800 Scott Boulevard, Santa Clara, California
and our telephone number is (408) 566-2000.
BEFORE PURCHASING ANY OF THE SHARES COVERED BY THIS PROSPECTUS,
CAREFULLY READ AND CONSIDER THE RISK FACTORS INCLUDED IN THE SECTION ENTITLED
"RISK FACTORS" BEGINNING ON PAGE II-3. YOU SHOULD BE PREPARED TO ACCEPT ANY AND
ALL OF THE RISKS ASSOCIATED WITH PURCHASING THE SHARES, INCLUDING A LOSS OF ALL
OF YOUR INVESTMENT.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED THE SALE OF THE COMMON STOCK OR DETERMINED THAT THE
INFORMATION IN THIS PROSPECTUS IS ACCURATE OR COMPLETE. IT IS ILLEGAL FOR ANY
PERSON TO TELL YOU OTHERWISE.
THE DATE OF THIS PROSPECTUS IS ___________________, 2000.
II-1
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<S> <C>
Risk Factors ..............................................................II-3
Use of Proceeds ...........................................................II-7
Selling Security Holders ..................................................II-7
Plan of Distribution ......................................................II-10
Legal Opinions ............................................................II-13
Where You Can Find More Information .......................................II-13
</TABLE>
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY REFERENCE
IN THIS PROSPECTUS AND IN ANY ACCOMPANYING PROSPECTUS SUPPLEMENT. NO ONE HAS
BEEN AUTHORIZED TO PROVIDE YOU WITH DIFFERENT INFORMATION.
THE COMMON STOCK IS NOT BEING OFFERED IN ANY JURISDICTION WHERE THE OFFER IS NOT
PERMITTED.
YOU SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS OR ANY PROSPECTUS
SUPPLEMENT IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON THE FRONT OF THE
DOCUMENTS.
II-2
<PAGE> 5
FORWARD-LOOKING STATEMENTS
WE MAKE FORWARD-LOOKING STATEMENTS IN THIS PROSPECTUS THAT MAY NOT PROVE
TO BE ACCURATE
This prospectus contains or incorporates forward-looking statements
including statements regarding, among other items, our business strategy, growth
strategy and anticipated trends in our business. We may make additional written
or oral forward-looking statements from time to time in filings with the
Securities and Exchange Commission or otherwise. When we use the words
"believe," "expect," "anticipate," "project" and similar expressions, this
should alert you that this is a forward-looking statement. We have identified
most, but not all, of these forward-looking statements with an asterisk (*)
symbol. These forward-looking statements are largely based on our expectations.
They are subject to a number of risks and uncertainties, some of which cannot be
predicted or quantified and are beyond our control. Future events and actual
results could differ materially from those set forth in, contemplated by, or
underlying the forward-looking statements. Statements in this prospectus, and in
documents incorporated into this prospectus, including those set forth below in
"Risk Factors," describe factors, among others, that could contribute to or
cause these differences. In light of these risks and uncertainties, there can be
no assurance that the forward-looking information contained in this prospectus
will in fact transpire or prove to be accurate. All subsequent written and oral
forward-looking statements attributable to us or persons acting on our behalf
are expressly qualified in their entirety by this section.
RISK FACTORS
We operate in a dynamic and rapidly changing business environment that
involves numerous risks and uncertainties. The following section lists some, but
not all, of these risks and uncertainties which may have a material adverse
effect on our business, financial condition or results of operations.
RISKS RELATED TO OUR BUSINESS
We Are in the Process of a Restructuring Plan
We are implementing a restructuring plan that includes a significant
reduction in force and a consolidation of Santa Clara-based operations into one
building. While we believe these measures were necessary and that the reduction
in force will not impair any of our critical functions, if we are unable to
retain and recruit employees with critical skills in the future, that could have
a negative impact on our future results.
There Is the Potential for Significant Fluctuations in Our Quarterly
Results
Our operating results may fluctuate significantly from quarter to
quarter due to a combination of factors. These factors include the timing of
orders, the timing of new product introductions by us or our competitors and the
mix of distribution channels through which our products are sold. We generally
realize higher gross margins on sales of systems to end users and on
single-system sales than on systems sold through distributors and OEMs and on
multiple-system sales. In addition, given our focus on highly configured
enterprise class systems, the loss or delay in a given quarter of a relatively
limited number of system sales could adversely affect our revenues.
We have historically recognized a substantial portion of our revenues in
the last month of any given quarter. Because we base our operating expenses on
anticipated revenue levels and because a high percentage
II-3
<PAGE> 6
of our expenses are relatively fixed, a small variation in the timing of the
recognition of our revenues could cause significant variations in operating
results from quarter to quarter.
We Operate in a Highly Competitive Market
The market for our products is highly competitive. We experience
substantial competition, principally from Sun Microsystems, Network Appliance
Corporation, EMC Corporation, Hewlett-Packard Company and SGI, among others.
Some companies have introduced proprietary products to provide network attached
storage. Most of these competitors are better known and have substantially
greater financial, technological, production and marketing resources than we do.
While we believe that the price/performance characteristics of our products are
competitive, price competition in the markets for our products is intense. Any
material reduction in the price of our products without corresponding decreases
in manufacturing costs and increases in unit volume would negatively affect
gross margins, which could in turn have a material adverse effect on our
business, financial condition and results of operations. We also derive a
significant portion of our revenues from sales of product upgrades to our
installed base of customers, including additional processors, memory and disk
drives. Increased competition for our products that results in lower product
sales could also adversely impact our upgrades sales. In addition, decisions by
customers not to increase capacity of their current systems could adversely
impact our revenues and results of operations. Our ability to maintain our
competitive position will depend upon, among other factors, our success in
anticipating industry trends, investing in product engineering and development,
developing new products with improved price/performance characteristics and
effectively managing the introduction of new products into targeted markets.
We Depend on Key Personnel and Have Recently Had Significant Management
Turnover
Competition for employees with technical, management and other skills is
intense in the computer industry and is particularly intense in the San
Francisco Bay Area. We have recently encountered some difficulties in fulfilling
our hiring needs and retaining key employees in this employment market, and
there can be no assurance that we will be successful in hiring and retaining
qualified employees in the future. Our failure to retain the services of key
personnel or to attract additional qualified employees could have a material
adverse effect on our business, financial condition and results of operations.
Recently, we have experienced turnover of several senior members of management.
In particular, on February 15, 2000, Mr. Gary J. Sbona replaced our former Chief
Executive Officer and Chairman of the Board of Directors, and we entered into an
agreement with Regent Pacific Management Corporation, a management firm of which
Mr. Sbona is the Chief Executive Officer. Pursuant to the agreement, Regent
Pacific will provide us with management services, including the services of Mr.
Sbona as Chief Executive Officer, one of a five person Regent Pacific management
team, which also includes our Chief Operating Officer and Chief Financial
Officer. The agreement has a one-year term and may be cancelled by us after
expiration of the initial 26-week period, with a minimum compensation to Regent
Pacific of $1,950,000 for that initial period. We rely on Regent Pacific
Management Corporation for the management of Auspex and the loss of these
services could adversely affect our business.
There Are Product Risks Associated with Our Software
We market optional software products in addition to our line of network
file servers. These software products include: NeTservices(TM), DriveGuard(TM),
FastBackup(TM), ServerGuard(TM), ServerGuard Global(TM), DataGuard(TM),
Turbocopy(TM) and TurbocopyReplicator(TM). We also expect to release
enhancements and new features for these products from time to time.* Although we
perform extensive testing prior to releasing
II-4
<PAGE> 7
software products, such products may contain undetected errors or bugs when
first released. These bugs may not be discovered until the product has been used
by customers in different application environments. Failure to discover product
deficiencies or bugs could delay product introductions, require design
modifications to previously shipped products, cause unfavorable publicity or
negatively impact system shipments, any of which could result in a materially
adverse effect on our business, financial condition and results of operations.
New Products Could Delay or Cancel Existing Product Orders
New product introductions by us or our competitors carry the risk that
customers could delay or cancel orders for existing products pending shipment of
the new products. For instance, product transition issues had an adverse impact
on North America, Europe and Pacific Rim revenues in fiscal 2000. Our strategy
is to continue to introduce new products and upgrades to existing products on an
ongoing basis. There can be no assurance that we will not experience
difficulties that delay or prevent the successful development, introduction or
marketing of these products and enhancements or that these new products and
enhancements will adequately address market requirements, achieve market
acceptance or generate substantial sales. Additionally, delays in the launch or
lack of availability of new products could have a material adverse effect on our
business, financial condition and results of operations.
We Depend on Established Standards
The rapid emergence of new or alternate standards such as Linux, which
replace or diminish the market acceptance of UNIX operating systems, Network
File System (NFS) or Windows NT, on which our products are currently based,
could materially and adversely affect our results of operations unless we are
able to incorporate any such standards in our products in a timely manner.
We Depend on Certain Customers and Distributors
For each of fiscal 2000, 1999 and 1998, direct sales of products and
services to Intel represented approximately 7%, 20% and 20%, respectively, of
our revenues. Intel is not obligated to purchase any minimum level of products
from us. Additional significant reductions in product sales to Intel would
materially and adversely affect our business, financial condition and results of
operations.
We Depend on Certain Suppliers
Certain of our products contain critical components supplied by a single
or limited number of third parties. While we have an inventory of these critical
components, any significant or prolonged shortage of these components or the
failure of the third-party suppliers to maintain or enhance these components
could materially or adversely affect our results of operations.
We May Have Problems Managing Excess or Obsolete Inventory
Managing our inventory of components and finished products is a complex
task. A number of factors, including, but not limited to, the need to maintain a
significant inventory of certain components which are in short supply or which
must be purchased in bulk to obtain favorable pricing and the general
unpredictability of demand for specific products and customer requests for quick
delivery schedules, may result in us maintaining large amounts of inventory.
Other factors, including changes in market demand and technology, may cause
inventory to become obsolete. Any excess or obsolete inventory could result in
price reductions and/or inventory write-downs, which in turn could adversely
affect our business and results of operations.
II-5
<PAGE> 8
There Are Substantial Risks in Our International Sales
During fiscal 2000, 1999 and 1998, approximately 37%, 29%, and 31%,
respectively, of our total revenues were derived from markets outside of North
America. We expect that sales to the Pacific Rim and Europe will continue to
represent a significant portion of our business.* However, we cannot assure you
that we will be able to achieve previous levels of success in our Pacific Rim or
European operations.
Our international business may be affected by changes in demand
resulting from localized economic and market conditions. For example, we
experienced a decrease in revenues from the Pacific Rim during fiscal 2000 and
1999 due to further weakness in the Japanese economy. In addition, our
international business may be affected by fluctuations in currency exchange
rates and currency restrictions. We purchase the majority of our materials and
services in U.S. dollars, and most of our foreign sales are transacted in U.S.
dollars. Continued increases in the value of the U.S. dollar relative to foreign
currencies will make our products sold internationally less price competitive.
We have offices in a number of foreign countries, the operating expenses of
which are also subject to the effects of fluctuations in foreign exchange rates.
Financial exposure may result due to the timing of transactions and movement of
exchange rates. Our international business may further be affected by risks such
as trade restrictions, increases in tariff and freight rates and difficulties in
obtaining necessary export licenses and meeting appropriate local regulatory
standards. For example, we have had to modify our products in minor respects in
Japan to comply with local electromagnetic emissions standards, and must also
comply with corresponding European Economic Community standards. In marketing
our products to the European Economic Community, we must also face the
challenges posed by a fragmented market complicated by local distribution
channels and local cultural considerations. For international sales, we have
largely relied on distributors or OEMs, most of whom are entitled to carry
products of our competitors. We cannot assure you that any of the foregoing
risks or issues will not have a material adverse effect on our business,
financial condition and results of operations.
There Are Risks in Protecting Our Intellectual Property and Proprietary
Rights
We currently rely on a combination of patent, copyright, trademark and
trade secret laws and contractual provisions to protect our proprietary rights
in our hardware and software products. We currently hold fourteen United States
patents and have filed applications for additional patents. We also have filed
applications for counterpart patents in foreign countries, including Japan. We
cannot assure you that our present or future competitors will not independently
develop technologies that are substantially equivalent or superior to our
technology. Further, there can be no assurance that our patent applications will
not result in issued patents or that our issued patents will not be upheld if
challenged. Additionally, we cannot assure you that third parties will not
assert intellectual property infringement claims against us in the future with
respect to current or future projects or that any such assertions may not
require us to refrain from the sale of our products, enter into royalty
arrangements or undertake costly litigation.
Our adherence to industry standards with respect to our products limits
our opportunities to provide proprietary features, which may be protected. In
addition, the laws of various countries in which our products may be sold may
not protect our products and intellectual property rights to the same extent as
the laws of the United States.
There Is the Risk of Substantial Stock Market Fluctuations
In recent years, the stock market in general, and the market for
technology stocks in particular, including our common stock, have experienced
extreme price fluctuations. The market price for our common
II-6
<PAGE> 9
stock may be significantly affected by various factors such as quarterly
variations in our operating results, changes in revenue growth rates for us as a
whole or for specific geographic areas or products, changes in earning estimates
by market analysts, the announcements of new products or product enhancements by
our competitors or ourselves, speculation in the press or analyst community and
general market conditions or market conditions specific to particular
industries. We cannot assure you that the market price of our common stock will
not experience significant fluctuations in the future.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the common
stock offered under this prospectus.
SELLING SECURITY HOLDERS
The table below lists the selling stockholders and other information
regarding the beneficial ownership of the common stock by each of the selling
stockholders. The second column lists, for each selling stockholder, the number
of shares of common stock beneficially owned as of October 19, 2000. The third
column lists each selling stockholder's portion of the 11,887,001 shares of
common stock being offered by this prospectus. Except for the ownership of the
common stock, none of the selling stockholders, other than Baruch Halpern, have
had any material relationship with us within the past three years. With respect
to Mr. Halpern, Halpern Capital Management, an entity controlled by Mr. Halpern,
acted as the placement agent for the private placement of 11,320,953 shares of
Common Stock being registered pursuant to this registration statement. The total
number of shares of Auspex common stock outstanding as of October 2, 2000 was
44,875,723.
<TABLE>
<CAPTION>
COMMON SHARES OWNED AFTER OFFERING(1)
COMMON SHARES BENEFICIALLY COMMON SHARES OFFERED BY -------------------------------------
NAME OF SELLING STOCKHOLDER OWNED AS OF OCTOBER 19, 2000 THIS PROSPECTUS NUMBER PERCENTAGE
--------------------------- ---------------------------- ------------------------ ------------ -----------
<S> <C> <C> <C> <C>
21st Century Digital 186,600 125,600 61,000 *
Industries Fund, L.P.
CastleRock Partners, L.P. 326,531 326,531 0 *
CastleRock Fund, Ltd. 145,683 145,683 0 *
CastleRock Partners II, L.P. 30,141 30,141 0 *
James E. Crabbe, Trustee, 3,373,000 1,000,000 2,373,000 5.3%
James E. Crabbe Revocable
Trust u/a dated 2/10/99
Norwest Bank FBO: Anschutz 11,100 11,100 0 *
Land & Livestock Co. LLP(2)
Norwest Bank FBO: Antelope 14,700 14,700 0 *
Company(2)
State Street Bank FBO: 289,600 289,600 0 *
Arkansas Teacher Retirement
System(2)
State Street Bank FBO: Bell 30,300 30,300 0 *
South Corporation(3)
Nations/Bank America FBO: 3,900 3,900 0 *
Biskind Family Limited
Partnership(2)
Banc One FBO: Chicago Public 3,000 3,000 0 *
Library Foundation(3)
</TABLE>
II-7
<PAGE> 10
<TABLE>
<CAPTION>
COMMON SHARES OWNED AFTER OFFERING(1)
COMMON SHARES BENEFICIALLY COMMON SHARES OFFERED BY -------------------------------------
NAME OF SELLING STOCKHOLDER OWNED AS OF OCTOBER 19, 2000 THIS PROSPECTUS NUMBER PERCENTAGE
--------------------------- ---------------------------- ------------------------ ------------ -----------
<S> <C> <C> <C> <C>
Norwest Bank FBO: Community 18,600 18,600 0 *
Hospital of Central
California(2)
Marshall & Isley Trust FBO: 21,600 21,600 0 *
Medical College of Wisconsin
Endowment VI(3)
Northern Trust FBO: Advisor 42,900 42,900 0 *
Fund for Employee Benefit
Trusts(3)
Northern Trust FBO: Advisor 28,400 28,400 0 *
Fund for Grantor Trusts(3)
Firstar Bank FBO: Herzfeld 47,400 47,400 0 *
Foundation(2)
Northern Trust FBO: Kenyon 15,800 15,800 0 *
College Endowment(2)
National City Bank FBO: Eve 1,600 1,600 0 *
Klothen & Kenneth Klothen(2)
Bankers Trust FBO: Board of 82,700 82,700 0 *
Pension Commissioners of the
City of Los Angeles(3)
Bankers Trust FBO: Board of 71,300 71,300 0 *
Pension Commissioners of the
City of Los Angeles II(3)
Bankers Trust FBO: PGE-Enron 4,400 4,400 0 *
Foundation(2)
Northern Trust FBO: Portland 10,200 10,200 0 *
General Holdings, Inc.
Employees' Benefit Trust, Fund
II(2)
Northern Trust FBO: Portland 5,000 5,000 0 *
General Holdings, Inc.
Employees' Benefit Trust, Fund
IV(2)
Northern Trust FBO: Portland 35,600 35,600 0 *
General Holdings, Inc. Pension
Plan(2)
Citibank FBO: Employees' 86,500 86,500 0 *
Retirement System of the
Puerto Rico Electric Power
Authority(2)
Norwest Bank FBO: SARCO & 33,800 33,800 0 *
Company LLP(2)
Marshall & Isley Trust FBO: 5,100 5,100 0 *
Stackner Family Foundation(2)
Firstar Bank FBO: Trustees of 800 800 0 *
the John Stackner - Paul
Treiber Family Trust(2)
Firstar Bank FBO: Trustees of 800 800 0 *
the John Stackner - John
Treiber Family Trust(2)
Northern Trust FBO: Oregon 72,000 72,000 0 *
Investment Council(3)
Firstar Bank FBO: Trustees of 800 800 0 *
the John Stackner - Susan
Robinson Family Trust(3)
</TABLE>
II-8
<PAGE> 11
<TABLE>
<CAPTION>
COMMON SHARES OWNED AFTER OFFERING(1)
COMMON SHARES BENEFICIALLY COMMON SHARES OFFERED BY -------------------------------------
NAME OF SELLING STOCKHOLDER OWNED AS OF OCTOBER 19, 2000 THIS PROSPECTUS NUMBER PERCENTAGE
--------------------------- ---------------------------- ------------------------ ------------ -----------
<S> <C> <C> <C> <C>
Firstar Bank FBO: Trustees of 800 800 0 *
the John Stackner - Nancy Lenz
Family Trust(2)
Marshall & Isley Trust FBO: 4,600 4,600 0 *
Steve and Billie Moksnes(3)
Fiduciary Trust FBO: W. Alton 36,500 36,500 0 *
Jones Foundation(2)
Mellon Bank FBO: University of 62,200 62,200 0 *
Colorado Foundation(2)
Northern Trust FBO: The 35,600 35,600 0 *
University of North Carolina
at Chapel Hill Foundation
Investment Fund, Inc. (2)
Marshall & Isley Trust FBO: 19,500 19,500 0 *
Medical College of Wisconsin
Working Capital(3)
Franklin Strategic Series - 2,394,885 2,394,885 0 *
Franklin Small Cap Growth Fund
I
Franklin Templeton Variable 116,889 116,889 0 *
Insurance Products Trust -
Franklin Small Cap Growth Fund
Gruber & McBaine 25,118 25,118 0 *
International(4)
Jon D. Gruber(4) 12,559 12,559 0 *
Lagunitas Partners LP(4) 87,912 87,912 0 *
Mayer Offman 251,178 251,178 0 *
P.A.W. Partners, L.P. 400,000 400,000 0 *
P.A.W. Offshore Fund, Ltd. 500,000 500,000 0 *
FNY Securities Associates, L.P. 100,000 100,000 0 *
Pequot Scout Fund, LP 251,178 251,178 0 *
Porter Partners, LP 100,000 100,000 0 *
EDJ Limited 50,000 50,000 0 *
RS Diversified Growth Fund 625,000 625,000 0 *
The Paisley Fund, L.P. 115,000 115,000 0 *
The Paisley Pacific Fund 265,000 265,000 0 *
State of Wisconsin Investment 7,154,600 2,750,000 4,404,600 9.8%
Board
TCM Partners, L.P. 75,000 75,000 0 *
Donald Wright(5) 20,000 20,000 0 *
Scott Turkel 5,000 5,000 0 *
The Clark Foundation 259,089 125,589 133,500 *
The Scriven Foundation 112,295 62,795 49,500 *
Jane Forbes Clark 120,795 62,795 58,000 *
Lancaster Investment Partners 290,000 150,000 140,000 *
Ben Joseph Partners, L.P. 50,000 50,000 0 *
Baruch and Shoshana Halpern 566,048 566,048 0 *
</TABLE>
II-9
<PAGE> 12
------------------
* Represents holdings of less than one percent.
(1) Assumes that all of the shares being offered by the selling stockholder
under this prospectus are sold, and that the selling stockholder acquires no
additional shares of common stock before the completion of this offering.
(2) Daruma Asset Management is the investment manager of this selling
stockholder and has voting control and investment discretion over securities
held by this selling stockholder.
(3) Daruma Asset Management is the investment manager of this selling
stockholder and has investment discretion over securities held by this
selling stockholder.
(4) Gruber & McBaine Capital Management is the investment manager of this
selling stockholder and has voting control and investment discretion over
securities held by this selling stockholder.
(5) Scott J. Turkel is the investment manager of this selling stockholder and
has voting control and investment discretion over securities held by this
selling stockholder.
PLAN OF DISTRIBUTION
RESALES BY SELLING STOCKHOLDERS
We are registering the resale of the shares on behalf of the selling
stockholders. The selling stockholders may offer and resell the shares from time
to time, either in increments or in a single transaction. They may also decide
not to sell all the shares they are allowed to resell under this prospectus. The
selling stockholders will act independently of us in making decisions with
respect to the timing, manner and size of each sale.
DONEES AND PLEDGEES
The term "selling stockholders" includes donees, i.e. persons who
receive shares from a selling stockholder after the date of this prospectus by
gift. The term also includes pledgees, i.e. persons who, upon contractual
default by a selling stockholder, may seize shares which the selling stockholder
pledged to such person. If a selling stockholder notifies us that a donee or
pledgee intends to sell more than 500 shares, we will file a supplement to this
prospectus.
COSTS AND COMMISSIONS
We will pay all costs, expenses, and fees in connection with the
registration of the shares. The selling stockholders will pay all brokerage
commissions and similar selling expenses, if any, attributable to the sale of
shares.
TYPES OF SALE TRANSACTIONS
The selling stockholders may sell the shares in one or more types of
transactions (which may include block transactions):
- on the Nasdaq National Market,
- in the over-the-counter market,
- in negotiated transactions,
- through put or call option transactions,
- through short sales, or
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<PAGE> 13
- any combination of such methods of sale.
The shares may be sold at market prices prevailing at the time of sale,
or at negotiated prices. Such transactions may or may not involve brokers or
dealers. The selling stockholders have informed us that they have not entered
into any agreements, understandings or arrangements with any underwriters or
broker-dealers regarding sale of the shares. They have also informed us that no
one is acting as underwriter or coordinating broker in connection with the
proposed sale of shares.
SALES TO OR THROUGH BROKER-DEALERS
The selling stockholders may conduct such transactions either by selling
shares directly to purchasers, or by selling shares to, or through,
broker-dealers. Such broker-dealers may act either as an agent of a selling
stockholder, or as a principal for the broker-dealer's own account. Such
broker-dealers may receive compensation in the form of discounts, concessions,
or commissions from the selling stockholders and/or the purchasers of shares.
This compensation may be received both if the broker-dealer acts as an agent or
as a principal. This compensation might also exceed customary commissions.
DEEMED UNDERWRITING COMPENSATION
The selling stockholders and any broker-dealers that act in connection
with the sale of shares might be deemed to be "underwriters" within the meaning
of Section 2(a)(11) of the Securities Act. Any commissions received by such
broker-dealers, and any profit on the resale of shares sold by them while acting
as principals, could be deemed to be underwriting discounts or commissions under
the Securities Act.
INDEMNIFICATION
We have agreed to indemnify each selling stockholder against certain
liabilities, including liabilities arising under the Securities Act. The selling
stockholders may agree to indemnify any agent, dealer or broker-dealer that
participates in transactions involving sales of shares against certain
liabilities, including liabilities arising under the Securities Act.
PROSPECTUS DELIVERY REQUIREMENTS
Because they may be deemed underwriters, the selling stockholders must
deliver this prospectus and any supplements to this prospectus in the manner
required by the Securities Act. This might include delivery through the
facilities of the Nasdaq National Market in accordance with Rule 153 under the
Securities Act. Auspex has informed the selling stockholders that their sales in
the market may be subject to the antimanipulative provisions of Regulation M
under the Exchange Act.
STATE REQUIREMENTS
Some states require that any shares sold in that state only be sold
through registered or licensed brokers or dealers. In addition, some states
require that the shares have been registered or qualified for sale in that
state, or that there exist an exemption from the registration or qualification
requirement and that the exemption has been complied with.
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<PAGE> 14
SALES UNDER RULE 144
Selling stockholders may also resell all or a portion of the shares in
open market transactions in reliance upon Rule 144 under the Securities Act. To
do so, they must meet the criteria and conform to the requirements of Rule 144.
DISTRIBUTION ARRANGEMENTS WITH BROKER-DEALERS
If a selling stockholder notifies us that any material arrangement has
been entered into with a broker-dealer for the sale of shares through:
- a block trade,
- special offering,
- exchange distribution or secondary distribution, or
- a purchase by a broker or dealer,
we will then file, if required, a supplement to this prospectus under Rule
424(b) under the Securities Act.
The supplement will disclose:
- the name of each such selling stockholder and of the participating
broker-dealer(s),
- the number of shares involved,
- the price at which such shares were sold,
- the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable,
- that such broker-dealer(s) did not conduct any investigation to
verify the information in this prospectus, and
- any other facts material to the transaction.
The SEC may deem the selling stockholders and any underwriters,
broker-dealers or agents that participate in the distribution of the shares of
common stock to be "underwriters" within the meaning of the Securities Act. The
SEC may deem any profits on the resale of the shares of common stock and any
compensation received by any underwriter, broker-dealer or agent to be
underwriting discounts and commissions under the Securities Act. Each selling
stockholder has purchased the shares of common stock in the ordinary course of
its business, and at the time the selling stockholder purchased the shares of
common stock, it was not a party to any agreement or other understanding to
distribute the securities, directly or indirectly.
UNDER THE EXCHANGE ACT, ANY PERSON ENGAGED IN THE DISTRIBUTION OF THE SHARES OF
COMMON STOCK MAY NOT SIMULTANEOUSLY ENGAGE IN MARKET-
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<PAGE> 15
MAKING ACTIVITIES WITH RESPECT TO THE COMMON STOCK FOR FIVE BUSINESS DAYS PRIOR
TO THE START OF THE DISTRIBUTION. IN ADDITION, EACH SELLING STOCKHOLDER AND ANY
OTHER PERSON PARTICIPATING IN A DISTRIBUTION WILL BE SUBJECT TO THE EXCHANGE
ACT, WHICH MAY LIMIT THE TIMING OF PURCHASES AND SALES OF COMMON STOCK BY THE
SELLING STOCKHOLDER OR ANY SUCH OTHER PERSON.
LEGAL OPINIONS
Our counsel, Wilson Sonsini Goodrich & Rosati, Professional Corporation,
650 Page Mill Road, Palo Alto, California 94304-1050, has rendered an opinion to
the effect that the common stock offered hereby is duly and validly issued,
fully paid and non-assessable.
WHERE YOU CAN FIND MORE INFORMATION
GOVERNMENT FILINGS: We file annual, quarterly and special reports and
other information with the Securities and Exchange Commission. You may read and
copy any document that we file at the Commission's Public Reference Room at 450
Fifth Street, N.W., Room 1024, Washington, D.C. 20549, and at its regional
offices located at 7 World Trade Center, 13th Floor, New York, New York 10048,
and at Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Please call the Commission at 1-800-SEC-0330 for more
information about the Public Reference Rooms. Most of our filings are also
available to you free of charge at the Commission's web site at
http://www.sec.gov.
STOCK MARKET: Our common stock is listed on the Nasdaq National Market
and similar information can be inspected and copied at the offices of the
National Association of Securities Dealers, Inc., 1735 K Street, N.W.,
Washington, D.C. 20006.
REGISTRATION STATEMENT: We have filed a registration statement under the
Securities Act with the Commission with respect to the common stock offered
under this prospectus. This prospectus is a part of the registration statement.
However, it does not contain all of the information contained in the
registration statement and its exhibits. You should refer to the registration
statement and its exhibits for further information about Auspex Systems, Inc.
and the common stock offered under this prospectus.
INFORMATION INCORPORATED BY REFERENCE: The Commission allows us to
"incorporate by reference" the information we file with it, which means that we
can disclose important information to you by referring you to those documents.
The information incorporated by reference is an important part of this
prospectus, and information that we file later with the Commission will
automatically update and supersede this information. We have filed the following
documents with the Commission and they are incorporated by reference into this
prospectus:
- our Annual Report on Form 10-K/A for the fiscal year ended June 30,
2000;
- our Proxy Statement for the 2000 Special Meeting of Stockholders,
dated July 14, 2000;
- our Proxy Statement for the 2000 Annual Meeting of Stockholders,
dated October 12, 2000;
- our Current Report on Form 8-K, including Exhibits, filed October 2,
2000;
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<PAGE> 16
- our Current Report on Form 8-K, including Exhibits, filed July 19,
2000;
- our Registration Statement on Form 8-A, filed March 26, 1993;
- our Registration Statement on Form 8-A, filed April 19, 1995.
Please note that all other documents and reports filed under Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act following the date of this
prospectus and prior to the termination of this offering will be deemed to be
incorporated by reference into this prospectus and to be made a part of it from
the date of the filing of our reports and documents.
You may request free copies of these filings by writing or telephoning
us at the following address:
Investor Relations
Auspex Systems, Inc.
2800 Scott Boulevard
Santa Clara, California 95050
(408) 566-2213.
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<PAGE> 17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14 - OTHER EXPENSES OF INSURANCE AND DISTRIBUTION
The following are the estimated expenses in connection with the issuance
and distribution of the securities being registered, all of which will be paid
by Auspex Systems, Inc.
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee $ 31,479.75
-----------
Nasdaq Listing Fee $ 17,500
Legal Fees and Expenses $ 75,000
Accounting Fees and Expenses $ 10,000
Transfer Agent Fees and Expenses $ 10,000
===========
TOTAL $143,979.75
-----------
</TABLE>
ITEM 15 - INDEMNIFICATION OF DIRECTORS AND OFFICERS
LIMITATION OF LIABILITY AND INDEMNIFICATION MATTERS
We have included in our Certificate of Incorporation a provision to
eliminate the personal liability of our directors for monetary damages for
breach or alleged breach of their fiduciary duties as directors, subject to
certain exceptions as permitted by the Delaware General Corporation Law. In
addition, our Bylaws provide that we are required to indemnify our officers and
directors under certain circumstances, including those circumstances in which
indemnification would otherwise be discretionary. Further, we are required to
advance expenses to our officers and directors as incurred in connection with
proceedings against them for which they may be indemnified. We have entered into
indemnification agreements with our 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 us, among other things, to indemnify such officers and
directors against 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. We believe
that our charter provisions and indemnification agreements are necessary to
attract and retain qualified persons as directors and officers.
We understand that the staff of the Securities and Exchange Commission
is of the opinion that statutory, charter and contractual provisions as are
described above have no effect on claims arising under the federal securities
laws.
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<PAGE> 18
ITEM 16 - EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number
-------
<S> <C>
4.1 Share Purchase Agreement dated September 19, 2000
4.2 Amendment to Share Purchase Agreement dated October 13, 2000
5.1 Opinion of Wilson Sonsini Goodrich & Rosati
23.1 Consent of Independent Public Accountants
23.2 Consent of Wilson Sonsini Goodrich & Rosati (included in Exhibit 5.1)
24.1 Power of Attorney (contained on Page II-18)
</TABLE>
ITEM 17 - UNDERTAKINGS
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 prospectus required by Section 10(a)(3) of the
Securities Act of 1933. To reflect in the prospectus any facts or
events arising after the effective date of the registration
statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental
change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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, 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.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's Annual Report under Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual
report under Section 15(d) of the Securities Exchange Act of 1934)
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.
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<PAGE> 19
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 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 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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<PAGE> 20
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, Auspex Systems, Inc., a corporation organized and existing under the
laws of the State of Delaware, certifies that it has reasonable cause to believe
that it meets all of the requirements for filing on Form S-3 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
the 19th day of October 2000.
AUSPEX SYSTEMS, INC.
By: /s/ Gary J. Sbona
-----------------------------------------
Gary J. Sbona
Chairman of the Board of Directors and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each person whose signature
appears below constitutes and appoints Henry P. Massey, Jr., Gary J. Sbona and
Peter R. Simpson, jointly and severally, his or her attorneys-in-fact, each with
the power of substitution, for him or her in any and all capacities, to sign any
amendment to this Registration Statement on Form S-3, 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 or her substitute or 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 on behalf
of the Registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ GARY J. SBONA Chairman of the Board of Directors and Chief October 19, 2000
--------------------------------- Executive Officer (Principal Executive Officer)
Gary J. Sbona
/s/ PETER R. SIMPSON Chief Financial Officer (Principal Financial October 19, 2000
--------------------------------- Officer and Principal Accounting Officer)
Peter R. Simpson
/s/ RICHARD E. CHAPMAN Director October 19, 2000
---------------------------------
Richard E. Chapman
/s/ JOHN E. MCNULTY Director October 19, 2000
---------------------------------
John E. McNulty
/s/ KARL C. POWELL Director October 19, 2000
---------------------------------
Karl C. Powell
</TABLE>
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<PAGE> 21
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Page
Number No.
-------
<S> <C> <C>
4.1 Share Purchase Agreement dated September 19, 2000......................
4.2 Amendment to Share Purchase Agreement dated October 13, 2000...........
5.1 Opinion of Wilson Sonsini Goodrich & Rosati............................
23.1 Consent of Independent Public Accountants..............................
23.2 Consent of Wilson Sonsini Goodrich & Rosati (included in Exhibit 5.1)..
24.1 Power of Attorney (contained on Page II-18)............................
</TABLE>
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