AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 7, 2000.
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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TUMBLEWEED COMMUNICATIONS CORP.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 94-3336053
(State or Other Jurisdiction (I.R.S.Employer
of Incorporation or Organization) Identification No.)
700 SAGINAW DRIVE
REDWOOD CITY, CALIFORNIA 94063
(650) 216-2000
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Principal Executive Offices)
2000 NSO INCENTIVE STOCK PLAN
(Full Title of the Plans)
BERNARD J. CASSIDY
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
TUMBLEWEED COMMUNICATIONS CORP.
700 SAGINAW DRIVE
REDWOOD CITY, CALIFORNIA 94063
(650) 216-2000
(Name and Address of Agent for Service)
(650) 216-2000
(Telephone Number, including Area Code, of Agent for Service)
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) PRICE PER SHARE PRICE FEE
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<C> <C> <C> <C> <C>
2000 NSO Incentive Stock 500,000 $47.625 (2) $23,812,500.00 $6,286.50
Plan, Common Stock, par
value $0.001 per share
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</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Plan 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) Estimated in accordance with Rule 457(c) under the Securities Act solely
for the purpose of calculating the registration fee based upon the
average of the high and low sales prices of the Common Stock as reported
on the NASDAQ National Market on August 1, 2000.
The Registration Statement shall become effective upon filing in
accordance with Rule 462(a) under the Securities Act.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
* The document(s) containing the information specified in Part I 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:
(a) Registrant's 424(b)(4) Prospectus filed July 27, 2000.
(b) 1. Registrant's Current Report on Form 8-K dated July 6,
2000 relating to Registrant's proposed acquisition of
Interface Systems, Inc.;
2. Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 2000; and
3. Registrant's Current Report on Form 8-K filed February 1, 2000
relating to Registrant's acquisition of Worldtalk Communications
Corporation.
(c) 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 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 hereof 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 us by Skadden, Arps, Slate, Meagher & Flom LLP, Palo Alto,
California. Two attorneys at Skadden, Arps, Slate, Meagher & Flom own a
total of approximately 40,244 shares of the common stock, of which
approximately 39, 146 shares are owned by Gregory C. Smith, brother of
Jeffrey C. Smith, the President, Chief Executive Officer and Chairman of
the Board of Directors of Tumbleweed.
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:
o for any breach of the director's duty of loyalty to the Company or
its stockholders;
o for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
o under the section 174 of the Delaware General Corporation Law
regarding unlawful dividends and stock purchases; or
o 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:
o the Company must indemnify its directors and officers to the
fullest extent permitted by Delaware law;
o 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
o 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 thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
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 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
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 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.
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 4TH DAY OF AUGUST, 2000.
TUMBLEWEED COMMUNICATIONS CORP.
By: /s/ Jeffrey C. Smith
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Jeffrey C. Smith
President and Chief Executive Officer
Each person whose signature appears below hereby constitutes and
appoints Bernard J. Cassidy 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.
NAME TITLE DATE
/s/ Jeffrey C. Smith Chairman of the Board, President August 4, 2000
----------------------- and Executive Officer (Principal
Jeffrey C. Smith Executive Officer)
/s/ Joseph C. Consul Vice President - Finance and Chief August 4, 2000
----------------------- Financial Officer (Principal
Joseph C. Consul Financial Officer and Principal
Accounting Officer
/s/ David F. Marquardt Director August 4, 2000
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David F. Marquardt
/s/ Timothy C. Draper Director August 4, 2000
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Timothy C. Draper
Director August 4, 2000
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Standish H. O'Grady
/s/ Eric J. Hautemont Director August 4, 2000
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Eric J. Hautemont
/s/ Kenneth R. Klein Director August 4, 2000
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Kenneth R. Klein
/s/ Pehong Chen Director August 4, 2000
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Pehong Chen
EXHIBIT INDEX
EXHIBIT
NUMBER
4.1 (1) Specimen common stock certificate
4.2 (2) Amended and Restated Investor's Rights Agreement, dated as of
January 31, 2000
4.3 (1) 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(3) 2000 NSO Incentive Stock Plan, and forms of agreements thereunder
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(1) Previously filed in Tumbleweed's Registration Statement on Form S-1,
as amended (File No. 333-79687), declared effective August 5, 1999,
and incorporated herein by reference.
(2) Previously filed in Tumbleweed's Registration Statement on Form S-8
(File No. 333-84683), filed February 23, 2000, and incorporated herein
by reference.
(3) Previously filed in Tumbleweed's Registration Statement on Form S-1
(File No. 333-41188), filed July 11, 2000, and incorporated herein by
reference.
