Exhibit 10.2
TUT SYSTEMS, INC.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("Agreement") is made as of June 8,
1999, between Tut Systems, Inc., a Delaware corporation ("Parent" or "Tut"), and
the Company Stockholders listed on Exhibit A hereto, pursuant to that certain
Agreement and Plan of Reorganization among Parent, PublicPort, Inc., a Delaware
corporation (the "Company"), PublicPort Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of Parent ("Sub"), and, with respect
to Article VII thereto, Dorey Liefer, as Stockholder Representative, and U.S.
Bank Trust, as Escrow Agent, dated June 7, 1999 (the "Reorganization
Agreement").
1. Definitions. As used in this Agreement:
(a) "Effective Time" means the Effective Time as defined in Article I
of the Reorganization Agreement.
(b) "Form S-3" means such form under the Securities Act as in effect
on the date hereof or any registration form under the Securities Act
subsequently adopted by the SEC which similarly permits inclusion or
incorporation of substantial information by reference to other documents filed
by the Company with the commission.
(c) "Material Event" means the happening of any event during the
period that the registration statement described in Section 2 hereof is required
to be effective as a result of which, in the reasonable judgment of Parent,
such registration statement or the related prospectus contains or may contain
any untrue statement of a material fact or omits or may omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading.
(d) "Registrable Securities" means the Merger Shares issued to the
Company Stockholders (including the Escrow Shares), which are eligible for
registration by Parent pursuant Section 5.1 of the Reorganization Agreement.
(e) "SEC" means the Securities and Exchange Commission.
(f) "Securities Act" means the Securities Act of 1933, as amended.
Terms not otherwise defined herein have the meanings given to them in
the Reorganization Agreement.
2. Registration. Parent shall use commercially reasonable efforts to
cause the Registrable Securities issued to the Company Stockholders to be
registered under the Securities Act no later than October 31, 1999 so as to
permit the resale thereof, and in connection therewith shall prepare and file
with the SEC and shall use commercially reasonable efforts to cause to become
effective, a Form S-3 covering the Registrable Securities; provided, however,
that the Company Stockholders shall provide
all such information and materials relating to the Company Stockholders, as
applicable, and take all such action as may be required in order to permit
Parent to comply with all the applicable requirements of the SEC and to obtain
any desired acceleration of the effective date of such Form S-3, such provision
of information and materials to be a condition precedent to the obligations of
Parent pursuant to this Agreement and the Reorganization Agreement. The
offerings made pursuant to such registrations shall not be underwritten.
Notwithstanding the foregoing, Parent shall not be required to cause the
Registrable Securities to be registered if Parent's legal counsel delivers a
legal opinion to the Company Stockholder seeking to sell all of its Registrable
Securities that such sale may be effected in a single three-month period without
registration under the Securities Act pursuant to Rule 144 under the Securities
Act.
3. Postponement of Registration.
(a) Registration. Notwithstanding Section 2 above, Parent shall be
entitled to postpone the declaration of effectiveness of any Form S-3 prepared
and filed pursuant to Section 2 for a reasonable period of time, but not in
excess of 60 calendar days after the applicable deadline, if the Board of
Directors of Parent, acting in good faith, determines that there exists material
non-public information about TUT.
(b) Material Event. The Company Stockholders agree that, upon receipt
of any notice from Parent of the happening of a Material Event, the Company
Stockholders will forthwith discontinue disposition of the Registrable
Securities pursuant to any Form S-3 described in Section 2 until the Company
Stockholders' receipt of copies of supplemented or amended prospectuses prepared
by Parent (which Parent will use its commercially reasonable efforts to prepare
and file promptly), and, if so directed by Parent, the Company Stockholders will
deliver to Parent all copies in their possession, other than permanent file
copies then in the Company Stockholders' possession, of the prospectus covering
such Registrable Securities current at the time of receipt of such notice. In
no event shall Parent delay causing to be effective a supplement or post-
effective amendment to any Form S-3 pursuant to Section 2 or the related
prospectus, for more than 90 consecutive days or 120 days during any 365
consecutive calendar day period.
4. Obligations of Parent. Except as set forth in Sections 2 and 3,
Parent shall (i) prepare and file with the SEC the Form S-3 in accordance with
Section 2 hereof with respect to the shares of Registrable Securities and shall
use commercially reasonable efforts to cause such Form S-3 to become effective
as provided in Section 2 and to keep such Form S-3 continuously effective until
the earlier to occur of (A) the sale of all of the Registrable Securities so
registered and (B) the first anniversary of the Effective Time; (ii) furnish to
the Company Stockholders such number of copies of any prospectus (including any
preliminary prospectus and any amended or supplemented prospectus), as the
Company Stockholders may reasonably request in order to effect the offering and
sale of the shares of the Registrable Securities to be offered and sold, but
only while Parent shall be required under the provisions hereof to cause such
Form S-3 to remain current; (iii) use its commercially reasonable efforts to
register or qualify the shares of the Registrable Securities covered by such
Form S-3 under the securities or blue sky laws of such jurisdictions as the
Company Stockholders shall reasonably request (provided that Parent shall not be
required in connection therewith or as a condition thereto to qualify to do
business
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or to file a general consent to service of process in any such jurisdiction
where it has not been qualified), and do any and all other acts or things which
may be reasonably necessary or advisable to enable the Company Stockholders to
consummate the public sale or other disposition of the Registrable Securities in
such jurisdictions; (iv) cause all such Registrable Securities to be listed on
each securities exchange or National Association of Securities Dealers, Inc.
Automated Quotation System on which similar securities issued by Parent are then
listed; (v) notify the Company Stockholders upon the happening of any event as a
result of which the prospectus included in such Form S-3, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing; (vi) so long as
the Form S-3 remains effective, promptly prepare, file and furnish to the
Company Stockholders a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of the Registrable Securities, such prospectus shall
not include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing; (vii) notify the
Company Stockholders promptly after it shall receive notice thereof, of the date
and time any Form S-3 and each post-effective amendment thereto has become
effective or a supplement to any prospectus forming a part of such Form S-3 has
been filed; (viii) notify the Company Stockholders promptly of any request by
the SEC for the amending or supplementing of such Form S-3 or prospectus or for
additional information; and (ix) advise the Company Stockholders promptly after
it shall receive notice or obtain knowledge thereof, of the issuance of any stop
order by the SEC suspending the effectiveness of any Form S-3 or the initiation
or threatening of any proceeding for that purpose and promptly use commercially
reasonable efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such stop order should be issued.
5. Expenses. Parent shall pay the expenses incurred by Parent in
connection with any registration of Registrable Securities pursuant to this
Agreement including all SEC, NASD and blue sky registration and filing fees,
printing expenses, transfer agents' and registrars' fees, and the reasonable
fees and disbursements of Parent's outside counsel and independent accountants.
The Company Stockholders shall be responsible for all commissions and transfer
taxes, as well as any other expenses incurred by the Company Stockholders.
6. Indemnification. In the event of any offering registered pursuant to
this Agreement:
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(a) Parent will indemnify each Company Stockholder with respect to any
registration effected pursuant to this Agreement, against all expenses, claims,
losses, damages and liabilities (or actions in respect thereof), including any
of the foregoing incurred in settlement of any litigation, commenced or
threatened, arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any registration statement, or any
amendment or supplement thereto, or prospectus related thereto, incident to any
such registration, or based on any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they are made, not
misleading, or any violation by Parent of any rule or regulation promulgated
under the Securities Act, or state securities laws, or common law, applicable to
Parent in connection with any such registration, and will reimburse such Company
Stockholder, for any legal and any other expenses reasonably incurred in
connection with investigating, preparing or defending any such claim, loss,
damage, liability or action, provided that Parent will not be liable in any such
case (i) to the extent that any such claim, loss, damage, liability or expense
arises out of or is based in any untrue statement or omission or alleged untrue
statement or omission, made in reliance upon and in conformity with written
information furnished to Parent by an instrument duly executed by such Company
Stockholder and stated to be specifically for use therein or (ii) if a copy of
the final prospectus relating to any registration statement (as then amended or
supplemented if Parent shall have furnished any amendments or supplements
thereto) (the "Final Prospectus") was not sent or given by or on behalf of such
Company Stockholder to a purchaser of the Company Stockholder's Registrable
Securities, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Registrable Securities to such
purchaser, and if the final prospectus (as so amended or supplemented) would
have cured the defect giving rise to such loss, claim, damage or liability.
(b) Each Company Stockholder will severally indemnify Parent, each of
its directors and officers, each person who controls Parent within the meaning
of Section 15 of the Securities Act, against all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) or a material fact contained in
any registration statement, or any amendment or supplement thereto, or
prospectus related thereto, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such registration statement or prospectus in reliance upon and in
conformity with written information furnished to Parent by an instrument duly
executed by such Company Stockholder and stated to be specifically for use
therein and will reimburse Parent, the remaining Company Stockholders, such
directors, officers, or control persons for any legal or any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or action, but only to the extent, that such
untrue statement (or alleged untrue statement) or omission (or alleged omission)
is made in such registration statement or prospectus, in reliance upon and in
conformity with written information furnished to Parent by an instrument duly
executed by such Company Stockholder and stated to be specifically for use
therein.
(c) Each party entitled to indemnification under this Section 6 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party")
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promptly after such Indemnified Party has notice of any claim as to which
indemnity may be sought, and shall permit the Indemnifying Party to assume the
defense of any such claim or any litigation resulting therefrom, and the
Indemnified Party may participate in such defense at such party's expense, and
provided further that the failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its obligations
under this Agreement, except to the extent, but only to the extent, that the
Indemnifying Party's ability to defend against such claim or litigation is
impaired as a result of such failure to give notice. No Indemnifying Party, in
the defense of any such claim or litigation, shall, except with the consent of
each Indemnified Party, consent to entry of any judgment or enter any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release from all liability
in respect to such claim or litigation. Whether or not the defense of any claim
or action is assumed by the Indemnifying Party, such Indemnifying Party will not
be subject to any liability for any settlement without its consent.
(d) The obligations of Parent and the Company Stockholders under this
Section 6 shall survive the completion of any offering of stock in a
registration statement under this Agreement.
7. Non-Assignment of Registration Rights. The rights to cause Parent to
register Registrable Securities pursuant to this Agreement may not be assigned
by the Company Stockholders to any person or entity; provided, however, that
upon the death of any Company Stockholder, the rights to cause Parent to
register Registrable Securities pursuant to this Agreement shall inure to such
Company Stockholder's devisee, legatee or other designee.
8. Amendment of Registration Rights. This Agreement may be amended by
the holders of a majority of the Registrable Securities and Parent at any time
by execution of an instrument in writing signed on behalf of each of the
parties.
9. Termination. The registration rights set forth in this Agreement
shall terminate as to any Company Stockholder at such time as all of the
Registrable Securities then held by such Company Stockholder can be sold by such
Company Stockholder in a single 3-month period in accordance with Rule 144 under
the Securities Act.
10. Grant of Additional Registration Rights. The Company Stockholders
acknowledge that Parent may acquire other companies and in the course of such
acquisitions may grant the equity owners thereof registration rights with
respect to their shares of Parent on terms which would be negotiated at such
time and may be materially different than the terms of this Agreement.
11. Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be deemed effectively given upon
delivery to the party to be notified in person or by courier service or five
days after deposit with the United States mail, postage prepaid, addressed (a)
if to the Company Stockholders, at the Company Stockholders' addresses as set
forth in the securities register of Sub or Parent as the case may be or (b) if
to Parent at 2495 Estand Way, Pleasant Hill, California 94538, Attention: Chief
Financial Officer.
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12. Governing Law; Interpretation. This Agreement shall be construed in
accordance and governed for all purposes by the laws of the State of California
regardless of the laws that might otherwise govern under applicable principles
of conflicts of laws thereof.
13. Severability; Survival. If any portion of this Agreement is held by a
court of competent jurisdiction to conflict with any federal, state or local
law, or to be otherwise invalid or unenforceable, such portion of this Agreement
shall be of no force or effect, and this Agreement shall otherwise remain in
full force and effect and be construed as if such portion had not been included
in this Agreement.
14. Entire Agreement. This Agreement contains the entire agreement and
understanding of the parties and supersedes all prior discussions, agreement and
understandings relating to the subject matter hereof.
15. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
IN WITNESS WHEREOF, Parent and the Company Stockholders have caused this
Agreement to be executed as of the date first above written.
TUT SYSTEMS, INC.
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Signature of Authorized Signatory
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Print Name and Title
COMPANY STOCKHOLDERS
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Signature of Authorized Signatory
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Print Name of Stockholder
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[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
Exhibit A
Stockholders of PublicPort, Inc.
Lawrence Blunk
David Carson
Wesley Craig
David Katz
Dory Leifer
Allan Rubens
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