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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Tumbleweed Communications Corp.
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(Name of Issuer)
Common Stock, par value $0.001 per share
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(Title of Class of Securities)
899690101
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(CUSIP Number)
Lisa Yano
Morrison & Foerster LLP
AIG Building, 11th Floor 1-1-3 Marunouchi, Chiyoda-ku, Tokyo 100-0005 JAPAN
(03)3214-6522
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(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
August 11, 1999
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule 13d-1(g), check the
following box [ ].
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 1 of 13
Exhibit Index begins on Page 11
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SCHEDULE 13D
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CUSIP No. B899690101 Page 2 of 13 Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Hikari Tsushin, Inc.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS (See Instructions)
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Japan
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7 SOLE VOTING POWER
4,314,989
NUMBER OF ----------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 0
OWNED BY ----------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 4,314,989
PERSON ----------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,314,989
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
(See Instructions)
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.2%
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14 TYPE OF REPORTING PERSON (See Instructions)
CO
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Page 2 of 13
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The information set forth in response to each separate Item
shall be deemed to be a response to all Items where such information is
relevant.
ITEM 1. SECURITY AND ISSUER.
This statement relates to the common stock, par value $0.001
per share (the "Common Stock"), of Tumbleweed Communications Corp., a Delaware
corporation (the "Issuer"). The principal executive offices of the Issuer are
located at 700 Saginaw Drive, Redwood City, California 94063.
ITEM 2. IDENTITY AND BACKGROUND.
The person filing this statement is Hikari Tsushin, Inc. Its
business address is Ohtemachi Nomura Building, 24th Floor, 2-1-1 Ohtemachi,
Chiyoda-ku, Tokyo, Japan. Hikari Tsushin, Inc. is a Japanese company. Its
principal businesses include the sale of cell-phone contracts and equipment;
sales, support and maintenance services on behalf of telecommunications
companies; the resale and development of office equipment and a rental server
business.
During the last five years, Hikari Tsushin, Inc. has not been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors). In addition, Hikari Tsushin, Inc. has not been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction and as
a result of such proceeding was or is subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violation with
respect to such laws.
The names, business addresses, principal businesses and
citizenship of each of the directors and executive officers of Hikari Tsushin,
Inc. are set forth on Schedule I hereto. As of February 28, 1999, Mr. Shigeta,
President and Representative Director of Hikari Tsushin, Inc., directly and
indirectly owned approximately 69.4% of the common stock of Hikari Tsushin, Inc.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
On February 26, 1999, Hikari Tsushin, Inc. acquired beneficial
ownership of 3,914,989 shares of Series C Preferred Stock at $3.576 per share,
using working capital. Hikari Tsushin, Inc. did not purchase any of the
Preferred Stock with borrowed funds. All of these shares of Preferred Stock were
automatically converted into shares of Common Stock on August 11, 1999, in
accordance with the terms of the Preferred Stock. August 11, 1999 was the date
of the closing of the initial public offering of the Issuer's Common Stock.
On August 11, 1999, Hikari Tsushin, Inc. acquired beneficial
ownership of 400,000 shares of Common Stock at $12 per share in the Issuer's
initial public offering, using
Page 3 of 13
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working capital. Hikari Tsushin, Inc. did not purchase any of the Common Stock
with borrowed funds.
None of the persons listed in Schedule I hereto contributed
any funds or other consideration toward the purchase of the Common Stock.
ITEM 4. PURPOSE OF TRANSACTION.
Hikari Tsushin, Inc.'s acquisition of Preferred Stock and
Common Stock was for investment purposes.
Hikari Tsushin, Inc. may, from time to time, increase, reduce
or dispose of its investment in the Issuer, depending on general economic
conditions, the market price of the Common Stock, the availability of funds,
other opportunities available to Hikari Tsushin, Inc. and other considerations.
Hikari Tsushin Inc.'s ability to dispose of all or part of its interests is
subject to restrictions set forth in Item 6 hereof. To the knowledge of Hikari
Tsushin, Inc., each of the persons listed in Schedule I hereto may make the same
evaluation and reserves the same rights.
As of the date of the filing of this statement, none of Hikari
Tsushin, Inc., nor, to the knowledge of Hikari Tsushin, Inc., any of its
executive officers or directors, has any plans or proposals that relate to or
would result in any of the matters referred to in paragraphs (a) through (j) of
Item 4 of Schedule 13D.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) The percentage interest held by Hikari Tsushin, Inc.
presented below and in Row 13 above is based on the number of shares of Common
Stock reported to be outstanding as of August 11, 1999 immediately after the
Issuer's initial public offering, in the Issuer's final prospectus filed
pursuant to Rule 424(b)(4) on August 6, 1999 (the "Outstanding
Shares").
As of the date of the filing of this statement, Hikari
Tsushin, Inc. directly and beneficially owned 4,314,989 shares of Common Stock,
representing approximately 20.2% of the Outstanding Shares of the Issuer
reported to be outstanding as of August 11, 1999.
Except as described in this Schedule 13D, none of Hikari
Tsushin, Inc., nor, to the knowledge of Hikari Tsushin, Inc., any of its
executive officers or directors, beneficially owns any Common Stock or
securities convertible into Common Stock.
(b) Hikari Tsushin, Inc. has sole dispositive and voting power
with respect to 4,314,989 shares of Common Stock, all of which are held directly
by it.
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(c) Except as described in this Schedule 13D, none of Hikari
Tsushin, Inc., nor, to the knowledge of Hikari Tsushin, Inc., any of its
executive officers or directors, has effected a transaction in the Common Stock
during the 60 days preceding the date of this statement.
(d) Not applicable.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER.
The Issuer has entered into an investors' rights agreement
(the "Investors' Rights Agreement") with its founders and all of the purchasers
of its preferred stock, including Hikari Tsushin, Inc. Pursuant to the
Investors' Rights Agreement, if the Issuer proposes to register any of its
securities under the Securities Act of 1933, as amended (the "1933 Act"), either
for its own account or for the account of other security holders exercising
registration rights, Hikari Tsushin, Inc. is entitled to notice of this
registration and is entitled to include shares of Common Stock in the
registration. The rights are subject to conditions and limitations, among them
the right of the underwriters of an offering subject to the registration to
limit the number of shares included in the registration. Hikari Tsushin, Inc.
may also require the Issuer to file a registration statement under the 1933 Act
at its expense with respect to its shares of Common Stock ("Demand Registration
Rights"), and the Issuer is required to use reasonable efforts to effect this
registration, subject to conditions and limitations. The Demand Registration
Rights granted to Hikari Tsushin, Inc. may be exercised only after August 6,
2000. Hikari Tsushin, Inc. may require the Issuer to file additional
registration statements on Form S-3, subject to conditions and limitations.
Pursuant to the Investors' Rights Agreement, a director of Hikari Tsushin, Inc.
serves on the board of the Issuer's wholly-owned Japanese subsidiary.
Pursuant to a Lock-up Agreement, dated May 27, 1999, among the
Issuer, the representatives of the underwriters of the initial public offering
and Hikari Tsushin, Inc., Hikari Tsushin, Inc. has agreed, subject to certain
exceptions, not to sell or otherwise dispose of all of its shares of Common
Stock before February 2, 2000, without the prior written consent of Credit
Suisse First Boston. Hikari Tsushin, Inc. is currently able to sell 400,000
shares of Common Stock and, after expiration of the lock-up, will be able to
sell the remaining 3,914,989 shares of Common Stock without registration in
accordance with Rule 144 under the 1933 Act.
The summary descriptions contained in this Statement of
certain agreements and documents are qualified in their entirety by reference to
the complete texts of such agreements and documents filed as Exhibits hereto.
Page 5 of 13
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Except as set forth above, none of Hikari Tsushin, Inc., nor,
to the knowledge of Hikari Tsushin, Inc., any of its executive officers or
directors, is a party to any contracts, arrangements, understandings or
relationships with any person with respect to any securities of the Issuer,
including but not limited to the transfer or voting of any shares of Common
Stock, finder's fees, joint ventures, loan or option arrangements, puts or
calls, guarantees of profits, division of profits or loss, or the giving or
withholding of proxies.
Page 6 of 13
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ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
<TABLE>
<CAPTION>
Page
Number
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<S> <C> <C>
Exhibit 1 Investors' Rights Agreement dated as of February 26, 1999 --
among the Issuer, the Founders and the holders of the Issuer's
Preferred Stock (incorporated by reference to Exhibit 4.2 to
the Issuer's Registration Statement filed on May 28, 1999).
Exhibit 2 Lock-up Agreement, dated May 27, 1999 among the Issuer, 11
the Representatives and Hikari Tsushin, Inc.
</TABLE>
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
Hikari Tsushin, Inc.
Dated: August 18, 1999 By: /s/ Masahide Saito
--------------------------------
Name: Masahide Saito
Title: Director
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SCHEDULE I TO SCHEDULE 13D
Following is a list of each executive officer and director of
Hikari Tsushin, Inc. setting forth the business address and present principal
employment (and the name and address of any corporation or organization in which
such employment is conducted) of each person. The persons named below are
citizens of Japan and have not, during the last five years, been convicted in a
criminal proceeding or been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction as a result of which they are or
were subject to a judgment, decree, or final order enjoining future violations
of, or prohibiting or mandating activities subject to, federal or state
securities laws or finding any violation with respect to such laws.
<TABLE>
<CAPTION>
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POSITION WITH HIKARI PRINCIPAL EMPLOYMENT AND
NAME TSUSHIN, INC. BUSINESS ADDRESS
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<S> <C> <C>
Yasumitsu Shigeta President and Representative Hikari Tsushin, Inc.
Director Ohtemachi Nomura Building, 24th
Floor, 2-1-1 Ohtemachi, Chiyoda-ku,
Tokyo, Japan
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Etsuo Uehara Executive Managing Director Hikari Tsushin, Inc.
Ohtemachi Nomura Building, 24th
Floor, 2-1-1 Ohtemachi, Chiyoda-ku,
Tokyo, Japan
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Kazuaki Baba Executive Managing Director Hikari Tsushin, Inc.
Ohtemachi Nomura Building, 24th
Floor, 2-1-1 Ohtemachi, Chiyoda-ku,
Tokyo, Japan
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Kouki Sakurada Executive Managing Director Hikari Tsushin, Inc.
Ohtemachi Nomura Building, 24th
Floor, 2-1-1 Ohtemachi, Chiyoda-ku,
Tokyo, Japan
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Shuichi Kukita Executive Managing Director Hikari Tsushin, Inc.
Ohtemachi Nomura Building, 24th
Floor, 2-1-1 Ohtemachi, Chiyoda-ku,
Tokyo, Japan
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Tomoko Miyashita Director Hikari Tsushin, Inc.
Ohtemachi Nomura Building, 24th
Floor, 2-1-1 Ohtemachi, Chiyoda-ku,
Tokyo, Japan
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Takeshi Tamamura Director Hikari Tsushin, Inc.
Ohtemachi Nomura Building, 24th
Floor, 2-1-1 Ohtemachi, Chiyoda-ku,
Tokyo, Japan
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</TABLE>
Page 9 of 13
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<TABLE>
<CAPTION>
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POSITION WITH HIKARI PRINCIPAL EMPLOYMENT AND
NAME TSUSHIN, INC. BUSINESS ADDRESS
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<S> <C> <C>
Koh Gidoh Director Hikari Tsushin, Inc.
Ohtemachi Nomura Building, 24th
Floor, 2-1-1 Ohtemachi, Chiyoda-ku,
Tokyo, Japan
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Masahide Saito Director Hikari Tsushin, Inc.
Ohtemachi Nomura Building, 24th
Floor, 2-1-1 Ohtemachi, Chiyoda-ku,
Tokyo, Japan
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</TABLE>
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EXHIBIT INDEX
<TABLE>
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Page
Number
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Exhibit 1 Investors' Rights Agreement dated as of February 26, 1999 --
among the Issuer, the Founders and the holders of the Issuer's
Preferred Stock (incorporated by reference to Exhibit 4.2 to
the Issuer's Registration Statement filed on May 28, 1999).
Exhibit 2 Lock-up Agreement, dated May 27, 1999 among the Issuer, 13
the Representatives and Hikari Tsushin, Inc.
</TABLE>
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Exhibit 2
May 27, 1999
Tumblweed Software, Inc.
2010 Broadway Avenue
Redwood City, California 94063
Credit Suisse First Boston Corporation
Hambrecht & Quist LLC
ING Baring Furman Selz LLC
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue
New York, N.Y. 10010-3639
Ladies and Gentlemen:
As an inducement to you to execute an underwriting agreement (the
"Underwriting Agreement"), pursuant to which an offering will be made that is
intended to result in the establishment of a public market for shares of Common
Stock, $0.001 par value per share (the "Securities"), of Tumblweed Software
Corporation (the "Company"), the undersigned hereby agrees that, for a period
of 180 days after the date of the initial public offering (the "Commencement
Date") of the Securities pursuant to the Underwriting Agreement to which you are
or expect to become parties, the undersigned will not offer, sell, contract to
sell, pledge or otherwise dispose of, directly or indirectly, any shares of
Securities or securities convertible into or exchangeable or exercisable for any
shares of Securities, or publicly disclose the intention to make any such offer,
sale, pledge or disposal, without the prior written consent of Credit Suisse
First Boston Corporation.
The foregoing paragraph shall not apply to (a) transactions relating to
shares of Securities or other securities convertible into or exchangeable or
exercisable for any shares of Securities acquired in the initial public offering
or in open market transactions after the Commencement Date, (b) transfers of
shares of Securities or any securities convertible into or exchangeable or
exercisable for any shares of Securities to a member of the undersigned's
immediate family or to a trust of which the undersigned or any immediate family
member is the beneficiary (either one an "Individual Transferee") or (c)
distributions or transfers of shares of Securities or any securities convertible
into or exchangeable or exercisable for any shares of Securities to limited
partners, affiliates or employees of institutional securityholders (any such
transferee an "Institutional Transferee"), provided that upon any such transfer,
the Individual Transferee or Institutional Transferee, as applicable, shall sign
a letter substantially similar to this letter agreement agreeing not to sell,
grant any option to purchase, or otherwise transfer of dispose of any such
Securities or any securities convertible into or exchangeable or exercisable for
any shares of Securities for the remainder of the above-referenced 180-day
period.
In furtherance of the foregoing, the Company and its transfer agent and
registrar are hereby authorized to decline to make any transfer of shares of
Securities if such transfer would constitute a violation or breach of this
Agreement.
This Agreement shall be binding on the undersigned and the respective
successors, heirs, personal representatives and assigns of the undersigned. This
agreement shall lapse and become null and void if the Commencement Date shall
not have occurred on or before October 31, 1999.
Very truly yours,
Hikari Tsushin, Inc.
/s/ Masahide Saito
Director
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Name of holder
