<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 6, 1999.
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
TUMBLEWEED COMMUNICATIONS CORP.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 94-3336053
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
700 SAGINAW DRIVE
REDWOOD CITY, CALIFORNIA 94063
(650) 216-2000
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Principal Executive Offices)
1993 STOCK OPTION PLAN
1999 OMNIBUS STOCK INCENTIVE PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plans)
JEFFREY C. SMITH
700 SAGINAW DRIVE
REDWOOD CITY, CALIFORNIA 94063
(Name and Address of Agent for Service)
(650) 216-2000
(Telephone Number, including Area Code, of Agent for Service)
------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
TITLE OF SECURITIES TO BE AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AMOUNT OF
REGISTERED REGISTERED(1) PRICE PER SHARE AGGREGATE OFFERING REGISTRATION
PRICE FEE
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<S> <C> <C> <C> <C>
1993 Stock Option Plan
Common Stock, par value
$0.001 per share 2,860,644 $ 2.08 (2) $ 5,950,140 $ 1,654.14
- ------------------------------------------------------------------------------------------------------------
1999 Omnibus Stock Incentive
Plan, Common Stock, par
value $0.001 per share 4,381,500 $ 12 (3) $52,578,000 $14,616.68
- ------------------------------------------------------------------------------------------------------------
1999 Employee Stock Purchase
Plan, Common Stock, par
value $0.001 per share 500,000 $ 10.2 (4) $ 5,100,000 $ 1,417.80
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Total 7,742,144 $63,628,140 $17,688.62
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</TABLE>
<PAGE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which may become issuable under any of the Plans being
registered pursuant to this Registration Statement by reason of any
stock dividend, stock split, recapitalization or any other similar
transaction effected without the receipt of consideration which results
in an increase in the number of the Registrant's outstanding shares of
Common Stock.
(2) Computed in accordance with Rule 457(h) under the Securities Act of
1933, as amended (the "Securities Act"), solely for the purpose of
calculating the registration fee. The computation is based on the weighted
average per share exercise price (rounded to nearest cent) of outstanding
options under the referenced plan, the shares issuable under which are
registered hereby.
(3) Estimated in accordance with Rule 457(h) under the Securities Act solely
for the purpose of calculating the registration fee. The computation
with respect to unissued options is based upon the initial public
offering price per share of Common Stock as set forth in the
Registrant's final prospectus dated August 5th, 1999 filed pursuant to
Rule 424(b)(4) under the Securities Act.
(4) Estimated in accordance with Rule 457(h) under the Securities Act solely
for the purpose of calculating the registration fee. The computation
with respect to unissued options is based upon the initial public
offering price per share of Common Stock as set forth in the
Registrant's final prospectus dated August 5th, 1999 filed pursuant to
Rule 424(b)(4) under the Securities Act, multiplied by 85%, which is the
percentage of the trading purchase price applicable to purchases under
the referenced Plan.
----------------------
The Registration Statement shall become effective upon filing in
accordance with Rule 462(a) under the Securities Act.
2
<PAGE>
PART I
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
* The document(s) containing the information specified in Part 1 of
Form S-8 have been or will be sent or given to employees as specified by Rule
428(b)(1) under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Tumbleweed Communications Corp. (the "Company" or the "Registrant")
hereby incorporates by reference into this Registration Statement the
following documents:
(1) The Registrant's Prospectus filed on August 6, 1999 pursuant to
Rule 462 under the Securities Act, which contains audited financial
statements for the Registrant's latest fiscal year for which such statements
have been filed.
(2) The description of the Registrant's Common Stock contained in
Amendment No. 1 to the Registrant's Registration Statement on Form 8-A filed
with the Securities and Exchange Commission (the "Commission") under Section
12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act") on
August 2, 1999, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered have
been sold or which 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 filing of such
documents. Statements contained in this Registration Statement or in a
document incorporated by reference may be modified or superseded by later
statements in this Registration Statement or by statements in subsequent
documents incorporated by reference, in which case you should refer to the
later statement.
ITEM 4. DESCRIPTION OF THE SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of Common Stock being offered will be
passed upon for the Company by Skadden, Arps, Slate, Meagher & Flom LLP, Palo
Alto, California. Gregory C. Smith, a partner at Skadden, Arps, beneficially
owns 54,246 shares of the Company's Common Stock
-3-
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 102 of the Delaware General Corporation Law, or the DGCL, as
amended, allows a corporation to eliminate the personal liability of
directors of a corporation to the corporation or its stockholders for
monetary damages for a breach of fiduciary duty as a director, except where
the director breached his duty of loyalty, failed to act in good faith,
engaged in intentional misconduct or knowingly violated a law, authorized the
payment of a dividend or approved a stock repurchase in violation of Delaware
corporate law or obtained an improper personal benefit.
Section 145 of the DGCL provides, among other things, that the
Company may indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or
proceeding (other than an action by or in the right of the Company) by reason
of the fact that the person is or was a director, officer, agent or employee
of the Company or is or was serving at the Company's request as a director,
officer, agent, or employee of another corporation, partnership, joint
venture, trust or other enterprise, against expenses, including attorneys'
ties, judgment, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with the action, suit or proceeding. The
power to indemnify applies (a) if the person is successful on the merits or
otherwise in defense of any action, suit or proceeding, or (b) if the person
acted in good faith and in a manner he reasonably believed to be in the best
interest, or not opposed to the best interest, of the Company, and with
respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The power to indemnify applies to actions
brought by or in the right of the Company as well, but only to the extent of
defense expenses (including attorneys' fees but excluding amounts paid in
settlement) actually and reasonably incurred and not to any satisfaction of
judgment or settlement of the claim itself, and with the further limitation
that in these actions no indemnification shall be made in the event of any
adjudication of negligence or misconduct in the performance of his duties to
the Company, unless the court believes that in light of all the circumstances
indemnification should apply.
Section 174 of the DGCL provides, among other things, that a
director, who willfully or negligently approves of an unlawful payment of
dividends or an unlawful stock purchase or redemption, may be held liable for
these actions. A director who was either absent when the unlawful actions
were approved or dissented at the time, may avoid liability by causing his or
her dissent to these actions to be entered in the books containing the
minutes of the meetings of the board of directors at the time the action
occurred or immediately after the absent director receives notice of the
unlawful acts.
The Company's Amended and Restated Certificate of Incorporation
includes a provision that eliminates the personal liability of its directors
for monetary damages for breach of fiduciary duty as a director, except for
liability:
- for any breach of the director's duty of loyalty to the Company or
its stockholders;
- for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law;
- under the section 174 of the Delaware General Corporation Law
regarding unlawful dividends and stock purchases; or
- for any transaction from which the director derived an improper
personal benefit.
These provisions are permitted under Delaware law.
The Company's Amended and Restated Bylaws provide that:
-4-
<PAGE>
- the Company must indemnify its directors and officers to the
fullest extent permitted by Delaware law;
- the Company must indemnify its other employees and agents to the
same extent that it indemnified its officers and directors, unless otherwise
determined by the Company's board of directors; and
- the Company must advance expenses, as incurred, to its directors
and executive officers in connection with a legal proceeding to the fullest
extent permitted by Delaware Law.
The indemnification provisions contained in the Company's Amended
and Restated Certificate of Incorporation and Amended and Restated Bylaws are
not exclusive of any other rights to which a person may be entitled by law,
agreement, vote of stockholders or disinterested directors or otherwise. In
addition, the Company maintains insurance on behalf of its directors and
executive officers insuring them against any liability asserted against them
in their capacities as directors or officers or arising out of this status.
The Company has entered or intends to enter into agreements to
indemnify its directors and executive officers, in addition to
indemnification provided for in the Company's bylaws. These agreements, among
other things, will provide for indemnification of the Company's directors and
executive officers for expenses, judgments, fines and settlement amounts
incurred by any such person in any action or proceeding arising out of the
person's services as a director or executive officer or at the Company's
request. The Company believes that these provisions and agreements are
necessary to attract and retain qualified persons as directors and executive
officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
See Index to Exhibits.
ITEM 9. UNDERTAKINGS
1. The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) 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 to this Registration Statement) 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.
(iii) 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;
PROVIDED, HOWEVER, that paragraphs (a)(i) and (a)(ii) do not apply if
the Registration Statement is on Form S-3 or Form S-8, and, the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Registrant
-5-
<PAGE>
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(b) 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 herein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) 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.
2. The undersigned 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 herein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
3. 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 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.
-6-
<PAGE>
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 REDWOOD CITY, STATE OF CALIFORNIA,
ON THE 5TH DAY OF AUGUST, 1999.
TUMBLEWEED COMMUNICATIONS CORP.
By: /s/ Jeffrey C. Smith
---------------------------------------
Jeffrey C. Smith
President and Chief Executive Officer
Each person whose signature appears below hereby constitutes and
appoints Jeffrey C. Smith and Joseph C. Consul, and each of them, his true
and lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place, and stead, in any and all
capacities, to sign any and all amendments (including post-effective
amendments) and additions to this Registration Statement, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or his
substitute or substitutes may lawfully 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.
<TABLE>
<CAPTION>
NAME TITLE DATE
---- ----- ----
<S> <C> <C>
/s/ Jeffrey C. Smith Chairman of the Board, President and Chief August 5, 1999
- ------------------------------- Executive Officer (Principal Executive Officer)
Jeffrey C. Smith
/s/ Joseph C. Consul Vice President - Finance and Chief August 5, 1999
- ------------------------------- Financial Officer (Principal Financial
Joseph C. Consul Officer and Principal Accounting Officer
/s/ David F. Marquardt Director August 5, 1999
- -------------------------------
David F. Marquardt
/s/ Timothy C. Draper Director August 5, 1999
- -------------------------------
Timothy C. Draper
/s/ Standish O'Grady Director August 5, 1999
- -------------------------------
Standish O'Grady
/s/ Eric J. Hautemont Director August 5, 1999
- -------------------------------
Eric J. Hautemont
</TABLE>
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER
4.1 Specimen common stock certificate*
4.2 Investors' Rights Agreement, dated as of February 26, 1999, among the
Registrant, the Founders, and the holders of the Registrant's preferred
stock*
4.3 Warrant to Purchase Stock, dated November 30, 1998, issued to Silicon
Valley Bank*
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
23.1 Consent of KPMG LLP
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in
Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
99.1 1993 Stock Option Plan, as amended, and form of agreements thereunder*
99.2 1999 Omnibus Stock Incentive Plan and form of stock option thereunder*
99.3 1999 Employee Stock Purchase Plan*
* Incorporated by reference to the Registrant's Registration Statement on
Form S-1 (file no. 333-76987), declared effective August 5, 1999.
<PAGE>
Exhibit 5.1
[SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP LETTERHEAD]
August 6, 1999
Tumbleweed Communications Corp.
700 Saginaw Drive
Redwood City, CA 94063
Re: Tumbleweed Communications Corp.
Registration on Form S-8
-------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Tumbleweed Communications
Corp., a Delaware corporation (the "Company"), in connection with the
registration of 7,742,144 shares (the "Shares") of the Company's common
stock, par value $0.001 per share (the "Common Stock"), issuable pursuant to
the Company's 1993 Stock Option Plan (the "1993 Plan"), the Company's 1999
Omnibus Stock Incentive Plan (the "Incentive Plan") and the Company's 1999
Employee Stock Purchase Plan (together with the 1993 Plan and the Incentive
Plan, the "Plans").
This opinion is being furnished in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended
(the "Act").
In connection with this opinion, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of (i) the
Registration Statement on Form S-8 as filed with the Securities and Exchange
Commission (the "Commission") on August 6, 1999 under the Act (the
"Registration Statement"); (ii) a specimen certificate representing the
Common Stock; (iii) the Amended and Restated Certificate of Incorporation of
the Company, as presently in effect; (iv) the Bylaws of the Company, as
presently in effect; (v) the Plans; (vi) certain resolutions of the Board of
Directors of the Company and the Compensation Committee of the Board of
Directors relating to the issuance and sale of the Shares and related
matters; and (vii) certain resolutions of the stockholders of the Company
relating to the Plans. We have also examined originals or copies, certified
or otherwise identified to our satisfaction, of such records of the Company
and such agreements, certificates of public officials, certificates of
officers or other representatives of the Company and others, and such other
documents, certificates and records as we have deemed necessary or
appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents
of all documents submitted to us as certified, conformed or photostatic
copies and the authenticity of the originals of such latter documents. In
making our examination of documents executed or to be executed by parties
other than the Company, we have assumed that such parties had or will have
the power, corporate or other, to enter into and perform all obligations
thereunder and have also assumed the due authorization by all requisite
action, corporate or other, and execution and delivery by such parties of
such documents and the validity and binding effect thereof. As to any facts
material to the opinions expressed herein which we have not independently
established or verified, we have relied upon statements and representations
of officers and other representatives of the Company and others. In rendering
the
<PAGE>
opinion set forth below, we have assumed that the certificates representing
the Shares will be manually signed by one of the authorized officers of the
transfer agent and registrar for the Common Stock and registered by such
transfer agent and registrar and will conform to the specimen thereof
examined by us.
We have also assumed that each award agreement setting forth the
terms of each grant of options or other awards under the Incentive Plan will
be consistent with the Incentive Plan and will be duly authorized and validly
executed and delivered by the parties thereto, and that the consideration
received by the Company for the Shares delivered pursuant to the Plans will
be in an amount at least equal to the par value of such Shares.
Members of our firm are admitted to the bar in the State of
California, and we do not express any opinion with respect to the law of any
jurisdiction other than Delaware corporate law.
Based upon and subject to the foregoing, we are of the opinion that
the Shares have been duly authorized for issuance by the Company and, when
issued and paid for in accordance with the terms and conditions of the Plans,
the Shares will be validly issued and, subject to any restrictions imposed by
the Plans, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Commission
as an exhibit to the Registration Statement. We also consent to the reference
to our firm under the caption "Legal Matters" in the Registration Statement.
In giving this consent, we do not thereby admit that we are included in the
category of persons whose consent is required under Section 7 of the Act or
the rules and regulations of the Commission.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
<PAGE>
Exhibit 23.1
Consent of Independent Auditors
The Board of Directors and Stockholders
Tumbleweed Communications Corp.:
We consent to incorporation by reference in this registration statement on
Form S-8 dated August 6, 1999 of Tumbleweed Communications Corp. of our
report dated March 18, 1999, except as to Note 10 which is as of August 3,
1999, relating to the consolidated balance sheets of Tumbleweed
Communications Corp. and subsidiary as of December 31, 1998 and 1997, and the
related consolidated statements of operations, stockholders' equity, and cash
flows for each of the years in the three-year period ended December 31, 1998,
which report appears in the registration statement on Form S-1 (No.
333-79687) of Tumbleweed Communications Corp.
/s/ KPMG LLP
San Francisco, California
August 6, 1999
