As filed with the Securities and Exchange Commission on December 15, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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TUT SYSTEMS, INC.
(Exact name of Registrant as specified in its charter)
Delaware ______________ 94-2958543
(State of incorporation) 2495 Estand Way (I.R.S. Employer
Pleasant Hill, CA 94523 Identification Number)
(Address of principal executive offices)
______________
1999 Nonstatutory Stock Option Plan
(Full title of the plans)
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Nelson Caldwell
Vice President, Finance and
Chief Financial Officer
TUT SYSTEMS, INC.
2495 Estand Way
Pleasant Hill, CA 94523
(925) 982-6510
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
______________
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
Securities Maximum Offering Aggregate Amount of
to be Amount to Price Per Offering Registration
Registered be Registered Share Price Fee
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Common Stock, par value $0.0001
X reserved under 1999 Nonstatutory Stock Option Plan 1,000,000 shares $40.125 (1) $40,125,000 $11,154.75
TOTAL 1,000,000 shares $40,125,000 $11,154.75
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(1) Estimated in accordance with Rule 457(h) under the Securities Act of
1933, as amended, solely for the purpose of calculating the
registration fee on the basis of $40.125 per share, which is the
average of the high and low prices of Registrant's Common Stock as
reported on the Nasdaq National Market on December 8, 1999.
TUT SYSTEMS, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
Item 3. Incorporation of Documents by Reference.
There are hereby incorporated by reference into this Registration Statement
the following documents and information heretofore filed by Tut Systems, Inc.
(the "Registrant") with the Securities and Exchange Commission (the
"Commission"):
(a) The Registrant's Registration Statement on Form S-1 (File No. 333-
60419) declared effective by the Securities and Exchange Commission on
January 28, 1999.
(b) The Registrant's Form 10-Q for the quarterly period ended March 31,
1999 as filed on May 14, 1999 pursuant to Section 13 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
(c) The Registrant's Form 10-Q for the quarterly period ended June 30,
1999 as filed on August 16, 1999 pursuant to Section 13 of the
Exchange Act.
(d) The Registrant's Form 10-Q for the quarterly period ended September
30, 1999 as filed on November 5, 1999 pursuant to Section 13 of the
Exchange Act.
(e) The description of Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed on January 22,
1999 pursuant to Section 12(g) of the Exchange Act, including any
amendment or report filed for the purpose of updating such
description.
(f) All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Exchange Act since January 28, 1999.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date hereof and prior to the filing of a
post-effective amendment which indicates that the securities offered hereby have
been sold or which deregisters the securities covered hereby then remaining
unsold shall also be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof commencing on the respective
dates on which such documents are filed.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
The Registrant's Certificate of Incorporation limits, to the maximum extent
permitted by Delaware law, the personal liability of directors for monetary
damages for breach of their fiduciary duties as a director. The Registrant's
Bylaws provide that the Company shall indemnify its officers and directors and
may indemnify its employees and other agents to the fullest extent permitted by
Delaware law. The Registrant has entered into indemnification agreements with
its officers and directors containing provisions which are in some respects
broader than the specific indemnification provisions contained in the Delaware
General Corporation Law. The indemnification agreements require the Registrant,
among other things, to indemnify such officers and directors against certain
liabilities that may arise by reason of their status or service as directors or
officers (other than liabilities arising from willful misconduct of a culpable
nature), to advance their 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. The Registrant believes
that these agreements are necessary to attract and retain qualified persons as
directors and officers.
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify a director, officer, employee or agent made a party to
an action by reason of that fact that he or she was a director, officer,
employee or agent of the corporation or was serving at the request of the
corporation, against expenses actually and reasonable incurred by him or her in
connection with such action if he or she acted in good faith and in a manner he
or she reasonably believed to be in, or not opposed to, the best interests of
the corporation and with respect to any criminal action, had no reasonable cause
to believe his or her conduct was unlawful.
The Registrant has obtained directors and officers insurance providing
indemnification for certain of the Registrant's directors, officers, affiliates,
partners or employees for certain liabilities.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
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3.2 Restated Certificate of Incorporation*
3.5 Bylaws*
5.1 Opinion of counsel as to legality of securities being
registered.
10.1 1999 Nonstatutory Stock Option Plan
23.1 Consent of Wilson Sonsini Goodrich & Rosati, P.C. (contained
in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP, independent
accountants
24.1 Power of Attorney (see signature page)
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*Incorporated by reference to the exhibits of the same number filed as part of
Registrant's Registration Statement on S-1 declared effective on January 28,
1999.
Item 9. Undertakings.
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(a) The Registrant hereby undertakes:
(i) To file, during any period 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 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 Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to law, the Registrant's Amended
and Restated Certificate of Incorporation, Bylaws or indemnification
agreements, 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 a successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered
hereunder, 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 of 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 Pleasant Hill, State of California, on this 15th
day of December, 1999.
TUT SYSTEMS, INC.
By: /s/ Nelson Caldwell
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Nelson Caldwell
Vice President, Finance and
Chief Financial Officer
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, 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 December 15, 1999
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Salvatore D'Auria Director (Principal Executive Officer)
/s/ Nelson Caldwell Vice President, Finance and Chief December 15, 1999
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Nelson Caldwell Financial Officer (Principal Financial
Officer and Accounting Officer)
/s/ Matthew Taylor Chairman and Chief Technical Officer December 15, 1999
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Matthew Taylor
/s/ Clifford H. Higgerson Director December 15, 1999
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Clifford H. Higgerson
/s/ Saul Rosenzweig Director December 15, 1999
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Saul Rosenzweig
/s/ David Spreng Director December 15, 1999
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David Spreng
_____________________________ Director
George Middlemas
/s/ Brion Applegate Director December 15, 1999
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Brion Applegate
/s/ Roger Moore Director
_____________________________ December 15, 1999
Roger Moore
/s/ Neal Douglas Director December 15, 1999
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Neal Douglas
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INDEX TO EXHIBITS
Exhibit
Number Description
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3.2 Restated Certificate of Incorporation*
3.5 Bylaws*
5.1 Opinion of counsel as to legality of securities being
registered
10.1 1999 Nonstatutory Stock Option Plan
23.1 Consent of Wilson Sonsini Goodrich & Rosati, P.C. (contained
in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP, independent
accountants
24.1 Power of Attorney (see signature page)
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*Incorporated by reference to the exhibits of the same number filed as part
of Registrant's Registration Statement on S-1 declared effective on January 28,
1999.