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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE TO
(Rule 13e-4)
Tender Offer Statement Under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
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TUT SYSTEMS, INC.
(Name of Subject Company (Issuer) and Filing Person (Offeror)
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Options to Purchase Common Stock, Par Value $0.001 Per Share
(Title of Class of Securities)
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901103101
(CUSIP Number of Class of Securities of Underlying Common Stock)
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Salvatore D'Auria
President and Chief Executive Officer
Tut Systems, Inc.
5964 West Las Positas Blvd.
Pleasanton, California 94588
(925) 460-3900
(Name, address and telephone number of person authorized to receive
notices and
communications on behalf of filing person)
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Copies to:
Steven E. Bochner, Esq.
Jill L. Nissen, Esq.
Wilson Sonsini Goodrich & Rosati,
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
(650) 493-9300
CALCULATION OF FILING FEE
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Transaction Valuation* Amount of Filing Fee
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$4,387,417 $877
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* Calculated solely for purposes of determining the filing fee. This amount
assumes that options to purchase 1,456,114 shares of common stock of Tut
Systems, Inc. having an aggregate value of $4,387,417 as of May 10, 2001
will be exchanged and/or cancelled pursuant to this offer. The aggregate
value of such options was calculated based on the Black-Scholes option
pricing model. The amount of the filing fee, calculated in accordance with
Rule 0-11(b) of the Securities Exchange Act of 1934, as amended, equals
1/50th of one percent of the value of the transaction.
[_] Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form
or Schedule and the date of its filing.
Amount Previously Paid: Not applicable.
Form or Registration No.: Not applicable.
Filing party: Not applicable.
Date filed: Not applicable.
[_] Check box if the filing relates solely to preliminary communications made
before the commencement of a tender offer. Check the appropriate boxes below to
designate any transactions to which the statement relates:
[_] third party tender offer subject to Rule 14d-1.
[X] issuer tender offer subject to Rule 13e-4.
[_] going-private transaction subject to Rule 13e-3.
[_] amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the
results of the tender offer: [_]
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Item 1. Summary Term Sheet.
The information set forth under the caption "Summary Term Sheet" in the
Offer to Exchange, dated May 11, 2001 ("Offer to Exchange"), a copy of which is
attached hereto as Exhibit (a)(1), is incorporated herein by reference.
Item 2. Subject Company Information.
(a) Name and Address.
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The name of the issuer is Tut Systems, Inc., a Delaware corporation
("Tut" or the "Company"), the address of its principal executive office is 5964
West Las Positas Blvd., Pleasanton, California 94588 and the telephone number at
that address is (925) 460-3900. The information set forth in the Offer to
Exchange under the caption "The Offer - Information Concerning Tut " is
incorporated herein by reference.
(b) Securities.
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This Tender Offer Statement on Schedule TO relates to an offer by the
Company to exchange all options outstanding under the Company's 1992 Stock Plan,
1998 Stock Plan and the 1999 Nonstatutory Stock Option Plan to purchase
approximately 1,456,114 shares of the Company's Common Stock, par value $0.001
per share ("Option Shares"), held by eligible employees for new options that
will be granted under the Company's 1998 Stock Plan or the 1999 Nonstatutory
Stock Option Plan (the "New Options"), upon the terms and subject to the
conditions set forth under "The Offer" in the Offer to Exchange. An "eligible
employee" refers to all employees of Tut Systems, Inc. and its U.S. subsidiaries
who are employees at the time the New Options are granted, except all executive
officers, vice-presidents, members of the Board of Directors and employees
receiving Workers' Adjustment and Retraining Notification ("WARN") Act pay are
not eligible to participate in the offer. The number of shares of Common Stock
subject to the New Options will be equal to the number of shares of Common Stock
subject to the unexercised options tendered by such eligible employees and
accepted for exchange and cancelled. The information set forth in the Offer to
Exchange under the captions "Summary Term Sheet", "Introduction", and the
sections under the caption "the Offer" entitled "Number of Options; Expiration
Date", "Acceptance of Options for Exchange and Issuance of New Options", "Source
and Amount of Consideration", and Terms of New Options" is incorporated herein
by reference.
(c) Trading Market and Price.
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The information set forth in the Offer to Exchange under the caption
"the Offer - Price Range of Shares Underlying the Options" is incorporated
herein by reference.
Item 3. Identity and Background of Filing Person.
(a) Name and Address.
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The filing person is the issuer. The information set forth under Item
2(a) above is incorporated by reference.
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Item 4. Terms of the Transaction.
(a) Material Terms.
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The information set forth in the Offer to Exchange under the captions
"Summary Term Sheet," "Introduction," and the sections under the caption "The
Offer" entitled "Eligibility", "Number of Options; Expiration Date", "Procedures
for Tendering Options", "Withdrawal Rights and Change of Election", "Acceptance
of Options for Exchange and Issuance of New Options", "Conditions of the Offer",
"Source and Amount of Consideration; Terms of New Options", "Status of Options
Acquired by Us in the Offer; Accounting Consequences of the Offer", "Legal
Matters; Regulatory Approvals", "Material U.S. Federal Income Tax Consequences",
and "Extension of Offer; Termination; Amendment" is incorporated herein by
reference.
(b) Purchases.
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The information set forth in the Offer to Exchange under the caption
"The Offer - Interests of Directors and Officers; Transactions and Arrangements
Concerning the Options" is incorporated herein by reference.
Item 5. Past Contacts, Transactions, Negotiations and Arrangements.
(e) Agreements Involving the Subject Company's Securities.
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The information set forth in the Offer to Exchange under the caption
"The Offer - Interests of Directors and Officers; Transactions and Arrangements
Concerning the Options" is incorporated herein by reference. The eligible option
plans and option agreements attached hereto as Exhibit (d)(1), Exhibit (d)(2)
and Exhibit (d)(3) contain information regarding the subject securities.
Item 6. Purposes of the Transaction and Plans or Proposals.
(a) Purposes.
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The information set forth in the Offer to Exchange under the caption
"The Offer - Purpose of the Offer" is incorporated herein by reference.
(b) Use of Securities Acquired.
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The information set forth in the Offer to Exchange under the captions
"The Offer - Acceptance of Options for Exchange and Issuance of New Options" and
"The Offer - Status of Options Acquired by Us in the Offer; Accounting
Consequences of the Offer" are incorporated herein by reference.
(c) Plans.
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The information set forth in the Offer to Exchange under the caption
"The Offer - Purpose of the Offer" is incorporated herein by reference.
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Item 7. Source and Amount of Funds or Other Consideration.
(a) Source of Funds.
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The information set forth in the Offer to Exchange under the caption
"The Offer - Source and Amount of Consideration," and "Terms of New Options" is
incorporated herein by reference.
(b) Conditions.
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Not applicable.
(d) Borrowed Funds.
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Not applicable.
Item 8. Interest in Securities of the Subject Company.
(a) Securities Ownership.
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The information set forth in the Offer to Exchange under the caption
"The Offer-Interests of Directors and Officers; Transactions and Arrangements
Concerning the Option" is incorporated herein by reference.
(b) Securities Transactions.
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The information set forth in the Offer to Exchange under the caption
"The Offer - Interests of Directors and Officers; Transactions and Arrangements
Concerning the Options" is incorporated herein by reference.
Item 9. Person/Assets, Retained, Employed, Compensated or Used.
(a) Solicitations or Recommendations.
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Not applicable.
Item 10. Financial Statements.
(a) Financial Information.
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The information set forth in the Offer to Exchange under the captions
"The Offer - Financial Information" and "The Offer - Additional Information" and
on pages 37 through 60 of Tut's Annual Report on Form 10-K for its fiscal year
ended December 31, 2000 and on pages 3 through 11 of Tut's Quarterly Report on
From 10-Q for its fiscal quarter ended March 31, 2001 are incorporated herein by
reference. A copy of the Annual Report on Form 10-K and the Quarterly Report on
Form 10-Q will be distributed with the material required under Rule 13c-4(d)(1)
to all potential participants of this Offer. The Annual Report on Form 10-K and
Quarterly Report on Form 10-Q can also be accessed electronically on the
Commission's website at http://www.sec.gov.
(b) Pro Forma Information.
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Not applicable.
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Item 11. Additional Information.
(a) Agreements, Regulatory Requirements and Legal Proceedings.
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The information set forth in the Offer to Exchange under the caption
"The Offer - Legal Matters; Regulatory Approvals" is incorporated herein by
reference.
(b) Other Material Information.
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Not applicable.
Item 12. Exhibits.
(a) (1) Offer to Exchange, dated May 11, 2001.
(2) Memorandum from Janice Ramsey to Tut's employees dated May
11, 2001.
(3) Election Form.
(4) Notice to Change Election from Accept to Reject.
(5) Form of Promise to Grant New Stock Option.
(6) Tut Systems, Inc. Quarterly Report on Form 10-Q for its
quarter ended March 31, 2001, filed with the Securities and
Exchange Commission on May 11, 2001 and incorporated herein
by reference.
(7) Tut Systems, Inc. Annual Report on Form 10-K for its fiscal
year ended December 31, 2000, filed with the Securities and
Exchange Commission on April 2, 2001 and incorporated herein
by reference.
(b) Not applicable.
(d) (1) Tut Systems, Inc. 1992 Stock Plan and form of agreement
thereunder filed as Exhibit 10.1, to the Company's Registration
Statement on Form S-1 declared effective on January 28, 1999 and
incorporated herein by reference.
(2) Tut Systems, Inc. 1998 Stock Plan and form of agreement
thereunder filed as Exhibit 10.2, to the Company's Registration
Statement on Form S-1 declared effective on January 28, 1999 and
incorporated herein by reference.
(3) Tut Systems, Inc. 1999 Nonstatutory Stock Option Plan and
form of agreement thereunder filed.
(4) Tut Systems, Inc. 1998 Stock Plan Prospectus.
(5) Tut Systems, Inc. 1999 Nonstatutory Stock Option Plan
Prospectus.
(g) Not applicable.
(h) Not applicable.
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Item 13. Information Required by Schedule 13E-3.
(a) Not applicable.
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this Schedule TO is true, complete and
correct.
TUT SYSTEMS, INC.
/s/ Nelson Caldwell
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Nelson Caldwell
Chief Financial Officer
Date: May 11, 2001
INDEX TO EXHIBITS
Exhibit
Number Description
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(a)(1) Offer to Exchange all Outstanding Options for New Options dated
May 11, 2001.
(a)(2) Memorandum from Janice Ramsey to Tut's employees dated May 11,
2001.
(a)(3) Election Form.
(a)(4) Notice to Change Election from Accept to Reject.
(a)(5) Form of Promise to Grant New Stock Option.
(a)(6) Tut Systems, Inc. Quarterly Report on Form 10-Q for its quarter
ended March 31, 2001, filed with the Securities and Exchange
Commission on May 11, 2001 and incorporated herein by
reference.
(a)(7) Tut Systems, Inc. Annual Report on Form 10-K for its fiscal
year ended December 31, 2000, filed with the Securities and
Exchange Commission on April 2, 2001 and incorporated herein by
reference.
(d)(1) Tut Systems, Inc. 1992 Stock Plan and form of agreement
thereunder filed as Exhibit 10.1, to the Company's Registration
Statement on Form S-1 declared effective on January 28, 1999
and incorporated herein by reference.
(d)(2) Tut Systems, Inc. 1998 Stock Plan and form of agreement
thereunder filed as Exhibit 10.2, to the Company's Registration
Statement on Form S-1 declared effective on January 28, 1999
and incorporated herein by reference.
(d)(3) Tut Systems, Inc. 1999 Nonstatutory Stock Option Plan and form
of agreement thereunder.
(d)(4) Tut Systems, Inc. 1998 Stock Plan Prospectus.
(d)(5) Tut Systems, Inc. 1999 Nonstatutory Stock Option Plan
Prospectus.