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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 26, 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
TUMBLEWEED COMMUNICATIONS CORP.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 94-3336053
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
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)
INTERFACE SYSTEMS, INC. 1992 STOCK OPTION PLAN
INTERFACE SYSTEMS, INC. 1993 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
INTERFACE SYSTEMS, INC. EMPLOYEE STOCK PURCHASE 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
(Name and Address of Agent for Service)
(650) 216-2000
(Telephone Number, including Area Code, of Agent for Service)
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CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
PROPOSED MAXIMUM PROPOSED MAXIMUM
AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED (1) PER SHARE PRICE REGISTRATION FEE
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Interface Systems, Inc. 1992 Stock Option
Plan (shares issuable pursuant to
outstanding options), Common Stock, par
value $0.001 per share 190,040 $16.29 (2) $3,095,752 $817.28
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Interface Systems, Inc. 1992 Stock Option
Plan (shares available for issuance),
Common Stock, par value $0.001 per
share 304,023 $20.13 (3) $6,119,983 $1,615.68
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Interface Systems, Inc. 1993 Stock Option
Plan for Non-Employee Directors,
Common Stock, par value $0.001 per
share 45,672 $30.76 (2) $1,404,871 $370.89
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Interface Systems, Inc. Employee Stock
Purchase Plan, Common Stock, par value
$0.001 per share 31,776 $17.11 (4) $543,687 $143.53
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Total 571,511 $11,164,293 $2,947.38
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(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 solely for the purposes of calculating the registration fee
pursuant to Rules 457(c) and (h) under the Securities Act on the basis of
the average of the high and low sale prices for a share of common stock of
Tumbleweed Communications Corp. as reported on the Nasdaq National Market
on October 23, 2000.
(4) Estimated solely for the purposes of calculating the registration fee
pursuant to Rules 457(c) and (h) under the Securities Act on the basis of
the average of the high and low sale prices for a share of common stock of
Tumbleweed Communications Corp. as reported on the Nasdaq National Market
on October 23, 2000, 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.
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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 "Registrant")
hereby incorporates by reference into this Registration Statement the
following documents:
(a) The Registrant's 424(b) prospectus, filed August 3, 2000, which
contains audited consolidated financial statements for the Registrant's
latest fiscal year for which such statements have been filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act")
since the end of the fiscal year covered by the Registrant document
referred to in (a) above.
(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 Securities and Exchange Commission (the "Commission")
under Section 12 of the Exchange Act on August 2, 2000, 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 indicating that all securities
offered have been sold or deregistering 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
Skadden, Arps, Slate, Meagher & Flom LLP ("Skadden, Arps") will
issue an opinion regarding the validity of the shares of the Company's
Common Stock offered hereby. Gregory C. Smith, a partner at Skadden,
Arps and the brother of Jeffrey C. Smith, President and Chief Executive
Officer of the Company and Chairman of its board of directors,
beneficially owns 39,146 shares.
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.
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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'
fees, judgments, 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 certificate of incorporation includes a provision that
limits the liability of its directors to the maximum extent permitted by
Delaware law. Delaware law provides that directors will not be personally liable
for monetary damages for breach of their fiduciary duties as directors, except
liability for:
- any breach of their duty of loyalty to the corporation or
its stockholders;
- acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law;
- unlawful payments of dividends or unlawful stock repurchases
or redemptions; or
- any transaction from which the director derived an improper
personal benefit.
The Company's certificate of incorporation and bylaws generally
provide that the Company will indemnify, to the fullest extent permitted by
Section 145 of the DGCL, any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit,
investigation, administrative hearing or any other proceeding by reason of the
fact that he or she is or was a director or officer of ours, or is or was
serving at the Company's request as a director, officer, employee or agent of
another entity, against expenses incurred by him or her in connection with that
proceeding. An officer or director will not be entitled to indemnification by
the Company if:
- the officer or director did not act in good faith and in a
manner reasonably believed to be in, or not opposed to, the
Company's best interests; or
- with respect to any criminal action or proceeding, the
officer or director had reasonable cause to believe his or
her conduct was unlawful.
The Company has entered into indemnification agreements with the
Company's directors containing provisions which require us, among other things,
to indemnify the Company's directors against various liabilities that may arise
by virtue of their status or service as directors and to advance their expenses
incurred as a result of any proceeding against them as to which they could be
indemnified. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling
the Company pursuant to the foregoing provisions or otherwise, the Company has
been informed 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.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
See Exhibit Index.
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 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.
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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 REDWOOD CITY, STATE OF CALIFORNIA, ON THE 25TH DAY OF
OCTOBER, 2000.
TUMBLEWEED COMMUNICATIONS CORP.
/s/ Jeffrey C. Smith
By:---------------------------
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.
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NAME TITLE DATE
---- ----- ----
<S> <C> <C>
/s/ Jeffrey C. Smith
------------------------------- Chairman of the Board, President and Chief October 25, 2000
Jeffrey C. Smith Executive Officer (Principal Executive
Officer)
/s/ Joseph C. Consul
------------------------------- Vice President - Finance and Chief October 25, 2000
Joseph C. Consul Financial Officer (Principal Financial
Officer and Principal Accounting Officer)
/s/ Pehong Chen
------------------------------- Director October 25, 2000
Pehong Chen
/s/ Timothy C. Draper
------------------------------- Director October 25, 2000
Timothy C. Draper
------------------------------- Director October __, 2000
Eric J. Hautemont
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<S> <C> <C>
/s/ Kenneth R. Klein
------------------------------ Director October 25, 2000
Kenneth R. Klein
/s/ David F. Marquardt
------------------------------ Director October 25, 2000
David F. Marquardt
/s/ Standish H. O'Grady
------------------------------ Director October 25, 2000
Standish H. O'Grady
</TABLE>
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EXHIBIT INDEX
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EXHIBIT NO. DESCRIPTION OF EXHIBIT
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4.1 (1) Specimen Common Stock Certificate
4.2 (1) 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 (1) Warrant to Purchase Stock, dated November 30, 1998, issued to
Silicon Valley Bank
4.4 (1) Amended and Restated Certificate of Incorporation of the
Company
4.5 (1) Amended and Restated Bylaws of the Company
4.6 (2) Amended and Restated Investors' Rights Agreement, dated as
of January 31, 2000, among the Registrant, the Founders, the
Investors and the Acquisition Stockholders
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding
the legality of the securities being registered
23.1 Consent of KPMG LLP, Independent Auditors
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included
in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
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(1) Previously filed in Registrant'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 Registrant's Registration Statement on Form S-8, as
amended (File No. 333-84683), declared effective August 6, 1999, and
incorporated herein by reference.
