As filed with the Securities and Exchange Commission on May 14, 2001
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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TUT SYSTEMS, INC.
(Exact name of Registrant as specified in its charter)
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Delaware 94-2958543
(State of incorporation) (I.R.S. Employer
Identification Number)
5964 W. Las Positas Blvd.
Pleasanton, California 94588
(Address of principal executive offices)
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1998 STOCK PLAN
1998 EMPLOYEE STOCK PURCHASE PLAN
1999 NONSTATUTORY STOCK OPTION PLAN
(Full title of the plans)
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Salvatore D'Auria
Tut Systems, Inc.
5964 W. Las Positas Blvd.
Pleasanton, California 94588
(Name and address of agent for service)
(925) 460-3900
(Telephone number, including area code, of agent for service)
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Copy to:
STEVEN E. BOCHNER, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
(650) 493-9300
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price per Offering Registration
Registered Registered(1) Share Price Fee
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Common Stock, par value $0.001 per share
Reserved under the 1998 Stock Plan......................... 710,742 shares $2.51 (2) $ 1,783,962.42 $ 445.99
Subject to outstanding options under the 1998 Stock Plan 22,476 shares $3.75 (3) $ 84,285.00 $ 21.07
Reserved under the 1998 Employee Stock Purchase Plan....... 250,000 shares $2.13 (4) $ 532,500.00 $ 133.13
Reserved under the 1999 Nonstatutory Stock Option Plan..... 66,019 shares $2.51 (5) $ 165,707.69 $ 41.43
Subject to outstanding options under the 1999 Nonstatutory
Stock Option Plan.......................................... 758,981 shares $17.74 (6) $13,464,322.94 $3,366.08
TOTAL.................................................... 1,808,218 shares $16,030,778.05 $4,007.69
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(1) For the sole purpose of calculating the registration fee, the number of
shares to be registered under this Registration Statement has been broken
down into 5 subtotals.
(2) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee on the basis of $2.51 per share, the
average of the high and low prices of the Registrant's Common Stock as
reported on the Nasdaq National Market on May 11, 2001.
(3) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee on the basis of the weighted average
exercise price of $3.75 per share for outstanding options to purchase a
total of 22,476 shares of Common Stock.
(4) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee on the basis of $2.13 per share (85% of
the average of the high and the low prices of the Registrant's Common
Stock as reported on the Nasdaq National Market on May 11, 2001). Pursuant
to the 1998 Employee Stock Purchase Plan, shares are sold at 85% of the
lesser of the fair market value of such shares on the first day of each
offering period or the last day of each offering period.
(5) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee on the basis of $2.51 per share, the
average of the high and low prices of the Registrant's Common Stock as
reported on the Nasdaq National Market on May 11, 2001.
(6) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee on the basis of the weighted average
exercise price of $17.74 per share for outstanding options to purchase a
total of 758,981 shares of Common Stock.
TUT SYSTEMS, INC.
REGISTRATION STATEMENT ON FORM S-8
Explanatory Note--Registration of Additional Securities
This Registration Statement is filed pursuant to Item E under the general
instruction to Form S-8 under the Securities Act of 1933, as amended, with
respect to 1,808,218 additional shares of Registrant's Common Stock that may be
issued pursuant to the Registrant's 1998 Stock Plan, 1998 Employee Stock
Purchase Plan and 1999 Nonstatutory Stock Option Plan (collectively, the
"Plans") as a result of certain automatic increases and board authorized
increases in the number of shares authorized under the Plans. Accordingly, the
contents of the Registrant's Form S-8 Registration Statements (Registration
Statement Nos. 333-83495 and 333-92759) filed by the Registrant with the
Securities and Exchange Commission on July 22, 1999 and December 15, 1999
respectively, are incorporated herein by reference.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
We incorporate by reference into this Registration Statement the following
documents and information filed by Tut Systems, Inc. with the Securities and
Exchange Commission:
(a) Our Annual Report on Form 10-K, File No. 000-25291, for the year ended
December 31, 2000, filed on April 2, 2001.
(b) Our Quarterly Report on Form 10-Q, File No. 000-25291, for the quarter
ended March 31, 2001, filed on May 11, 2001.
(c) Our Current Reports filed since January 1, 2001 as follows:
. Form 8-K, File No. 000-25291, filed on January 18, 2001.
. Form 8-K, File No. 000-25291, filed on March 16, 2001.
(d) The description of the common shares contained in our Registration
Statement on Form 8-A, File No. 000-25291, filed on January 22, 1999, including
any reports filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), for the purpose of updating such description.
(e) Our Registration Statement on Form S-8, File No. 333-83495, filed on
July 22, 1999.
(f) Our Registration Statement on Form S-8, File No. 333-92759, filed on
December 15, 1999.
(g) Our Schedule TO, File No. 005-58093, filed on May 11, 2001.
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All documents subsequently filed by us pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment to this Registration Statement that includes that all securities
offered pursuant to this Registration Statement have been sold or that
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part of
this Registration Statement from the date of such documents are filed. Any
statement contained in a document incorporated or deemed to be incorporated by
reference in this Registration Statement shall be deemed to be modified or
superceded for purposes of this Registration Statement to the extent that a
statement contained herein modifies or supercedes such statement. Any such
statement so modified or superceded shall not be deemed, except as so modified
or superceded, to constitute a part of this Registration Statement.
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 Section 145 of the Delaware General Corporation Law, our
Certificate of Incorporation includes a provision that eliminates the personal
liability of our directors for monetary damages for breach of their fiduciary
duty as a director to the fullest extent permitted under Delaware General
Corporation Law. In addition, our Bylaws provide that we shall indemnify our
directors and officers and may indemnify our employees and other agents to the
extent permitted under Delaware General Corporation Law. Our bylaws also permit
us to secure insurance on behalf of any director, officer, employee or agent
against any liability arising out of his or her actions in such capacity,
regardless of whether we have the power to indemnify such individual against
such liability under the provisions of the Delaware General Corporation Law.
Our policy is to enter into indemnification agreements with each of our
directors and executive officers that provide the maximum indemnity allowed to
directors and executive officers by Section 145 of the Delaware General
Corporation Law and the Bylaws, as well as certain additional procedural
protections. These agreements, among other things, indemnify our directors and
executive officers against any and all expenses (including attorneys' fees),
judgments, fines, penalties and amounts paid in settlement (if such settlement
is approved in advance by us, which approval shall not be unreasonably
withheld), actually and reasonably incurred, and any federal, state, local or
foreign taxes imposed on the indemnified party as a result of the actual or
deemed receipt of any payments under the indemnification agreement, for any
action arising out of such person's position as our director, officer, employee,
agent or fiduciary, or any of our subsidiary, or in relation to such person's
service at our request as a director, officer, employee, agent or fiduciary of
another corporation, partnership, joint venture, trust or other enterprise.
Pursuant to the indemnification agreements, we will not be obligated to
indemnify the indemnified party: (1) for any expenses or to advance expenses
with respect to proceedings or claims initiated by the indemnified party and not
by way of defense, counterclaim or crossclaim, except with respect to
proceedings specifically authorized by our Board of Directors or brought to
enforce a right to indemnification under the indemnification agreement, the
Bylaws or any statute or law; (2) for any expenses incurred by the indemnified
party with respect to any proceeding instituted by the indemnified party to
enforce or interpret the agreement, if a court determines that each of the
material assertions made by the indemnified party in such proceeding was not
made in good faith or was frivolous; (3) with respect to any proceeding brought
by us against the indemnified party to enforce or interpret the
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agreement, if a court determines that each of the material defenses asserted by
the indemnified party was made in bad faith or was frivolous; (4) on account of
any suit in which judgment is rendered against the indemnified party for the
payments of profits made from the purchase or sale by the indemnified party of
securities in violation of Section 16(b) of the Securities Exchange Act of 1934
and related laws; or (5) for any expenses resulting from acts, omissions or
transactions for which the indemnified party is prohibited from receiving
indemnification under the agreement or applicable law.
The indemnification provision in the Certificate of Incorporation, Bylaws
and the indemnification agreements entered into between us and our directors and
executive officers, may be sufficiently broad to permit indemnification of our
officers and directors for liabilities arising under the 1933 Act.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
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4.1* Second Amended and Restated Certificate of Incorporation of
Registrant.
4.2* Bylaws of Registrant.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, PC.
10.1* 1998 Stock Plan and forms of Stock Option Agreement and Stock
Purchase Agreement thereunder.
10.2** 1998 Employee Stock Purchase Plan, as amended.
10.3*** 1999 Nonstatutory Stock Option Plan, as amended.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Wilson Sonsini Goodrich & Rosati, P.C. (included in its
opinion filed as Exhibit 5.1 to this Registration Statement).
24.1 Power of Attorney (included on signature page of this Registration
Statement).
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* Incorporated by reference to Registrant's Registration Statement on
Form S-1 (File No. 333-60419) as declared effective by the Securities
and Exchange Commission on January 28, 1999.
** Incorporated by reference to the Registrant's Quarterly Report on Form 10-
Q (File No. 000-25291) filed on May 14, 1999.
*** Incorporated by reference to the Registrant's Schedule TO (File No.
005-58093) filed on May 11, 2001.
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Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(i) 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.
(ii) 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.
(iii) 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 of 1933,
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 of 1933 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 of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Pleasanton, State of California, on this 14th day of
May, 2001.
TUT SYSTEMS, INC.
By: /s/ Nelson Caldwell
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Nelson Caldwell
Vice President, Finance,
Chief Financial Officer and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Salvatore D'Auria and Nelson Caldwell,
and each of them, as his attorney-in-fact, with full power of substitution in
each, for him in any and all capacities to sign any amendments to this
Registration Statement on Form S-8, and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that said attorney-in-fact, or
his substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
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/s/ Salvatore D'Auria President, Chief Executive Officer and May 14, 2001
- ----------------------------- Chairman of the Board (Chief Executive
Salvatore D'Auria Officer)
/s/ Nelson Caldwell Vice President, Finance, Chief Financial May 14, 2001
- ----------------------------- Officer and Secretary (Chief Financial and
Nelson Caldwell Accounting Officer)
/s/ Saul Rosenzweig Director May 14, 2001
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Saul Rosenzweig
/s/ Neal Douglas Director May 14, 2001
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Neal Douglas
/s/ Clifford H. Higgerson Director May 14, 2001
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Clifford H. Higgerson
/s/ David Spreng Director May 14, 2001
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David Spreng
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/s/ George M. Middlemas Director May 14, 2001
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George M. Middlemas
/s/ Roger H. Moore Director May 14, 2001
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Roger H. Moore
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INDEX TO EXHIBITS
Exhibit
Number Description
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4.1* Second Amended and Restated Certificate of Incorporation of
Registrant.
4.2* Bylaws of Registrant.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, PC.
10.1* 1998 Stock Plan and forms of Stock Option Agreement and Stock
Purchase Agreement thereunder.
10.2** 1998 Employee Stock Purchase Plan, as amended.
10.3*** 1999 Nonstatutory Stock Option Plan, as amended.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Wilson Sonsini Goodrich & Rosati, P.C. (included in its
opinion filed as Exhibit 5.1 to this Registration Statement).
24.1 Power of Attorney (included on signature page of this Registration
Statement).
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* Incorporated by reference to Registrant's Registration Statement on
Form S-1 (File No. 333-60419) as declared effective by the Securities
and Exchange Commission on January 28, 1999.
** Incorporated by reference to the Registrant's Quarterly Report on Form 10-Q
(File No. 000-25291) filed on May 14, 1999.
*** Incorporated by reference to the Registrant's Schedule TO (File No. 005-
58093) filed on May 11, 2001.