-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OdMTTVuUyWzHRIS8saTKJbqpnV0jJYxpktxAzk9NfGY1vKQzCq51/RcHPc4JPS5v G7VteXjNwMi/ev+jZadJsg== 0000930661-01-500058.txt : 20010410 0000930661-01-500058.hdr.sgml : 20010410 ACCESSION NUMBER: 0000930661-01-500058 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20010405 EFFECTIVENESS DATE: 20010405 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TUT SYSTEMS INC CENTRAL INDEX KEY: 0000878436 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE & TELEGRAPH APPARATUS [3661] IRS NUMBER: 942958543 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-58352 FILM NUMBER: 1596368 BUSINESS ADDRESS: STREET 1: 5964 W LAS POSITAS CITY: PLEASANTON STATE: CA ZIP: 94588 BUSINESS PHONE: 9256826510 MAIL ADDRESS: STREET 1: 5964 W LAS POSITAS CITY: PLEASANTON STATE: CA ZIP: 94588 S-8 1 ds8.txt FORM S-8 - ORGA STOCK OPTION PLAN As filed with the Securities and Exchange Commission on April 5, 2001 Registration No. 333-____________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ______________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ______________________ TUT SYSTEMS, INC. (Exact name of Registrant as specified in its charter) Delaware 94-2958543 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification Number) 5964 W. Las Positas Blvd. Pleasanton, California 94588 (Address of Principal (Zip Code) Executive Offices) Orga Stock Option Agreement and Plan (Full title of the plan) Salvatore D'Auria 5964 W. Las Positas Pleasanton, California 94588 (Name and address of agent for service) (925) 460-3900 (Telephone number, including area code, of agent for service) ______________________ CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------ Proposed Maximum Proposed Maximum Amount of Title of Securities Amount to be Offering Price Aggregate Offering Registration to be Registered Registered (1) Per Share (2) Price (2) Fee - ------------------------------------------------------------------------------------------------------------------------ Common stock, par value $0.001 per 65,000 $ 2.66 $ 172,900 $ 44 share ========================================================================================================================
(1) Represents the maximum aggregate number of shares that it is anticipated will be purchased under the Plan. (2) Estimated solely for the purpose of computing the registration fee pursuant to Rule 457(c) under the Securities Act of 1933, as amended, and calculated on the basis of the average of the high and low sales prices of the Common Stock on April 4, 2001, as reported on the Nasdaq National Market System. ================================================================================ PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS The documents constituting Part I of this Registration Statement on Form S- 8 will be sent or given to each eligible employee of Tut Systems, Inc. as specified by Rule 428(b)(1) promulgated under the Securities Act of 1933, as amended. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. --------------------------------------- We incorporate by reference the documents listed below and any future filings made with the Securities and Exchange Commission under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, from the date hereof. 1. Our Annual Report on Form 10-K, File No. 000-25291, for the year ended December 31, 2000 filed on April 2, 2001. 2. Our Current Reports filed since January 1, 2001 as follows: . Form 8-K, File No. 000-25291, filed on January 18, 2001. . Form 8-K, File No. 000-25291, filed on March 16, 2001. 3. The description of the common shares contained in our registration statement on Form 8-A, File No. 000-25291, filed on January 22, 1999, under the Exchange Act, including any reports filed under the Exchange Act for the purpose of updating such description. All documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered pursuant to this Registration Statement have been sold or that 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 such documents are filed. Any statement contained in a document incorporated or deemed to be incorporated by reference in this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Item 4. Description of Securities. ------------------------- Not applicable. Item 5. Interests of Named Experts and Counsel. -------------------------------------- Not applicable. Item 6. Indemnification of Directors and Officers. ----------------------------------------- Section 145 of the Delaware General Corporation Law permits a corporation to include in its charter documents, and in agreements between the corporation and its directors and officers, provisions expanding the scope of indemnification beyond that specifically provided by the current law. Our Certificate of Incorporation provides for the indemnification of directors to the maximum extent permissible under Delaware law. In addition, our Bylaws provide that we shall indemnify our directors, officers, employees and other agents to the fullest extent permitted by law. We believe that indemnification under our Bylaws covers at least negligence and gross negligence on the part of the indemnified parties. Our Bylaws also permit us to secure insurance on behalf of any officer, director, employee or other agent for any liability arising out of his or her actions in such capacity, regardless of whether our Bylaws permit such indemnification. We have entered into agreements to indemnify our directors and executive officers, in addition to the indemnification provided for in our Bylaws. These agreements, among other things, indemnify our directors and executive officers for certain expenses (including attorneys' fees), judgments, fines and settlement amounts incurred by any such person in any action or proceeding, including any action by or in our right arising out of such person's services as our director, officer, employee, agent or fiduciary, any of our subsidiaries or any other company or enterprise to which the person provides services at our request. The agreements do not provide for indemnification in cases where (i) the claim is brought by the indemnified party, (ii) the indemnified party has not acted in good faith; (iii) the claim arises under Section 16(b) of the Exchange Act; or (iv) the indemnified party has engaged in acts, omissions or transactions for which the indemnified party is prohibited from receiving indemnification under the agreement or applicable law. We believe 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 the Index to Exhibits attached to this Registration Statement. Item 9. Undertakings. ------------ 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. The undersigned registrant hereby undertakes: (1) 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. (2) 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. 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 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. (3) 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 therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (4) 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. 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 Pleasanton, state of California, on this 5th day of April, 2001. Tut Systems, Inc. By: /S/ NELSON CALDWELL ------------------------------------------- Nelson Caldwell Vice President, Finance, Chief Financial Officer and Secretary POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and officers of Tut Systems, Inc. hereby constitutes and appoints Nelson Caldwell as his or her true and lawful attorney-in-fact and agent with full power of substitution and resubstitution for him or her and in his or her name and place in any and all capacities, to execute any and all amendments (including post- effective amendments) to this Registration Statement, to sign any Registration Statement filed pursuant to Rule 462(b) of the Securities Act of 1933, as amended, and to cause the same to be filed with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and desirable to be done in and about the premises, as fully and to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all acts and things that said attorney-in-fact and agent 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, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date - -------------------------------------------------- ------------------------------------------ ----------------------- /S/ SALVATORE D'AURIA President, Chief Executive Officer and April 5, 2001 - -------------------------------------------------- Chairman of the Board (Chief Executive Salvatore D'Auria Officer) /S/ NELSON CALDWELL Vice President, Finance, Chief Financial April 5, 2001 - -------------------------------------------------- Officer and Secretary (Chief Financial Nelson Caldwell and Accounting Officer) /S/ SAUL ROSENZWEIG Director April 5, 2001 - -------------------------------------------------- Saul Rosenzweig /S/ NEAL DOUGLAS Director April 5, 2001 - -------------------------------------------------- Neal Douglas /S/ CLIFFORD H. HIGGERSON Director April 5, 2001 - -------------------------------------------------- Clifford H. Higgerson
S-1 /S/ DAVID SPRENG Director April 5, 2001 - -------------------------------------------------- David Spreng /S/ GEORGE M. MIDDLEMAS Director April 5, 2001 - -------------------------------------------------- George M. Middlemas /S/ ROGER H. MOORE Director April 5, 2001 - -------------------------------------------------- Roger H. Moore
S-2 INDEX TO EXHIBITS Exhibit Number Description of Exhibits - ------ ----------------------- 4.1* -- Non-Qualified Stock Option Agreement, dated December 6, 2000, by and between Frank M. Orga and Registrant. 4.2 -- Second Amended and Restated Certificate of Incorporation of Registrant, incorporated by reference to our Registration Statement on Form S-1 (File No. 333-60419) as declared effective by the Securities and Exchange Commission on January 28, 1999. 4.3 -- Bylaws of Registrant, incorporated by reference to our Registration Statement on Form S-1 (File No. 333-60419) as declared effective by the Securities and Exchange Commission on January 28, 1999. 4.4 -- Specimen Certificate for shares of the common stock, par value $0.001 per share, of Registrant, incorporated by reference to our Registration Statement on Form S-1 (File No. 333-60419) as declared effective by the Securities and Exchange Commission on January 28, 1999. 5* -- Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P. 23.1* -- Consent of PricewaterhouseCoopers LLP. 23.2* -- Consent of Akin, Gump, Strauss, Hauer & Feld L.L.P. (included in its opinion filed as Exhibit 5 to this Registration Statement) 24* -- Power of Attorney (included on signature page of this Registration Statement). _______________________________ * Filed herewith EX-4.1 2 dex41.txt NON-QUALIFIED STOCK OPTION AGREEMENT EXHIBIT 4.1 TUT SYSTEMS, INC. NON-QUALIFIED STOCK OPTION AGREEMENT This NON-QUALIFIED STOCK OPTION AGREEMENT (the "Agreement") is made as of the 6th day of December, 2000, by and between Tut Systems, Inc., a Delaware corporation (the "Company"), and Frank M. Orga ("Employee"). PRELIMINARY STATEMENTS: ---------------------- A. The Company has determined that it is in the best interests of the Company and its stockholders to encourage ownership in the Company by employees and officers of the Company and its affiliates and other persons contributing to the success of the Company, thereby providing additional incentive for them to continue in the employ of the Company or its affiliates. To that end, a non- qualified stock option is granted to Employee on the following terms and conditions: STATEMENT OF AGREEMENT ---------------------- 1. Defined Terms. Unless otherwise defined herein or, unless the context ------------- requires a different definition, the following capitalized terms, when used herein, shall have the meanings assigned to them below. "Board" means the Board of Directors of the Company. "Code" means the Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder. "Common Stock" means the Company's common stock, par value $0.001 per share. "Date of Grant" means the Date of Grant set forth on Exhibit A hereto. "Expiration Date" means the Expiration Date set forth on Exhibit A hereto. "Fair Market Value" means, if the Common Stock is publicly traded, the closing price of the Common Stock on the relevant date as reported on the NASDAQ composite tape or, if the Common Stock is not traded on such exchange, as reported on any other national securities exchange on which the Common Stock may be traded. If the Common Stock is not publicly traded, then Fair Market Value shall be determined by the Board in good faith consistent with Code Section 422(b)(4) or any successor provisions. "Option" means the option described in Section 2 below. --------- "Option Price" means the purchase price per share of the Common Stock subject to the Option that is set forth on Exhibit A hereto. --------- "Parent" means a parent corporation of the Company as defined in Section 424(e) of the Code. "Subsidiary" means a subsidiary corporation of the Company as defined in Section 424(f) of the Code. 2. Shares Optioned, Option Price and Time of Exercise. -------------------------------------------------- (a) The Company grants to Employee as of the Date of Grant, the right and option to purchase all or any part of the number of shares set forth in Exhibit A of the Common Stock at the Option Price set forth in Exhibit A --------- --------- (the "Option"). (b) The Option is exercisable in accordance with the Exercise Schedule set forth on Exhibit A, as modified by the provisions of this --------- Agreement. (c) Neither the Option nor any other rights granted under this Agreement may be exercised after the Expiration Date set forth on Exhibit A --------- and, before such time, the Option may be terminated as provided herein. Once Employee becomes entitled to purchase any of the shares subject to the Option he shall be entitled to purchase such shares at any time thereafter, subject to the terms and restrictions set forth in this Agreement, including Exhibit A hereto. --------- 3. Exercise Procedure and Withholding. ---------------------------------- (a) Employee shall exercise the Option by notifying the Company of the number of shares that he desires to purchase and by delivering with such notice the full payment for the purchase price of the shares being purchased. Such purchase price shall be payable in cash, in Common Stock that has been held for at least six months or in a combination of cash and Common Stock that has been for at least six months. For purposes of determining the amount, if any, of the purchase price satisfied by payment in Common Stock, such Common Stock shall be valued at its Fair Market Value on the date of exercise. Any Common Stock delivered in satisfaction of all or a portion of the purchase price shall be appropriately endorsed for transfer and assignment to the Company. (b) The Company will, as soon as is reasonably possible, notify Employee of the amounts that must be withheld under federal, state and local law due to exercise of the Option. The Company shall have no obligation to deliver certificates for the shares purchased until such withholding obligations are satisfied and Employee satisfies any requirements of applicable law and any agreements to which the Company may be a party applicable to the shares so delivered. Any certificates so delivered will contain all legends required by federal and state securities laws. The Board may, in its sole discretion, (a) require Employee to remit to the Company a cash amount sufficient to 2 satisfy, in whole or in part, any federal, state, and local withholding tax requirements prior to the delivery of any certificate for shares pursuant to the exercise of the Option; (b) grant to Employee the right to satisfy, in whole or in part, any such withholding tax requirements by electing to require that the Company, upon any exercise of the Option, withhold from the shares of Common Stock issuable to Employee upon the exercise of the Option, that number of full shares of Common Stock having a Fair Market Value equal to the amount or portion of the minimum required statutory federal, state and local amounts required to be withheld; or (c) satisfy such withholding requirements through another lawful method, including through additional withholdings against Employee's other wages from the Company. 4. Loans. If approved by the Board, the Company or any Parent or ----- Subsidiary may lend money or guarantee loans by third parties to Employee to finance the exercise of the Option. If the Company or any Parent or Subsidiary lends money to Employee pursuant to this Section 4, the loan shall be a full- --------- recourse, market rate interest bearing promissory note payable in one or more installments. The terms of any such promissory note shall be established by the lender in its sole discretion. In no event may the maximum credit available to Employee exceed the sum of (i) the Option Price plus (ii) any federal, state and local income and employment tax liability incurred by Employee in connection with the exercise of the Option. 5. Termination of Employment. In the event of the termination of the ------------------------- employment of Employee for any reason other than death, Employee may exercise the Option at any time within three months after such termination of employment (or within one year after termination of employment due to disability within the meaning of Code Section 422(c)(6)), or within such other time period as the Board shall authorize, but in no event after the Expiration Date and only to the extent of the number of vested shares for which such Option was exercisable by him at the date of the termination of employment. The Option shall not be affected by any change of employment so long as Employee continues to be an employee of the Company, a Subsidiary or a Parent. This Agreement shall not confer on Employee any right to continue to be an employee of the Company or any of its Subsidiaries or Parents or interfere in any way with the right of the Company or any of its Subsidiaries or Parents to terminate his employment at any time. 6. Death. In the event Employee dies during, or within three months after ----- the termination of, his employment by the Company or a Subsidiary or Parent, the Option (unless it shall have been previously terminated pursuant to the provisions of this Agreement) may be exercised to the extent of the number of vested shares for which the Option was exercisable at the date of Employee's death by the executor or administrator of Employee's estate or by the person or persons to whom Employee shall have transferred the Option by will or by the laws of descent and distribution at any time within a period of 12 months after his death, but not after the Expiration Date. 7. Non-Assignability and Term of Option. ------------------------------------ (a) Without the prior written consent of the Company, which may be given or withheld in the Company's sole discretion, the Option shall not be transferable or 3 assignable by Employee otherwise than by will or the laws of descent and distribution, and the Option shall be exercisable during Employee's lifetime only by him or, during periods of legal disability, by his legal representative; provided, however, that the Board may in its sole -------- ------- discretion permit the transfer of some or all of Employee's rights under this Agreement in connection with certain estate planning transactions of Employee that are approved by the Company. Any transfer may be conditioned on Employee's agreement to enter into an indemnification agreement with the Company in a form and manner prescribed by the Company for all claims arising in connection with the transfer. The Option shall not be subject to execution, attachment or similar process. (b) In no event may the Option be exercisable to any extent by anyone after the Expiration Date specified in Exhibit A. It is expressly agreed --------- that, anything contained herein to the contrary notwithstanding, this Agreement shall not constitute, or be evidence of, any agreement or understanding, express or implied, that the Company will employ Employee for any period of time or in any position or for any particular compensation. 8. Adjustments. The Board, in its discretion, may make such adjustments ----------- in the Option Price and the number of shares covered by the Option if such adjustments are required to prevent any dilution or enlargement of the rights of Employee that would otherwise result from any reorganization, recapitalization, stock split, stock dividend, combination of shares, merger, consolidation, issuance of rights, or other change in the capital structure of the Company. 9. Restrictions on Issuing Shares. The exercise of the Option shall be ------------------------------ subject to the condition that if at any time the Company shall determine in its discretion that the satisfaction of withholding tax or other withholding liabilities, or that the listing, registration, or qualification of any shares otherwise deliverable upon such exercise upon any securities exchange or under any state or federal law, or that the consent or approval of any regulatory body, is necessary or desirable as a condition of, or in connection with, such exercise or the delivery or purchase of shares pursuant thereto, then in any such event, such exercise shall not be effective unless such withholding, listing, registration, qualification, consent, or approval shall have been effected or obtained free of any conditions not acceptable to the Company. 10. Rights of Employee in Stock. Neither Employee, nor his successor-in- --------------------------- interest, shall have any of the rights of a stockholder of the Company with respect to the shares for which the Option is exercisable until such shares are issued by the Company. 11. Notices. Any notice to be given hereunder shall be in writing and ------- shall be addressed, if given to the Company, to the Board of Directors, c/o Tut Systems, Inc., 2495 Estand Way, Pleasant Hill, California 94523; or if given to Employee, to the address designated below Employee's signature below; or at such other address as either party may hereafter designate in writing to the other. Any such notice shall have been deemed duly given when enclosed in a properly sealed envelope, addressed as aforesaid, registered or certified, and deposited (with the proper postage and registration or certificate fee prepaid) in the United States mail. 4 12. Successors or Assigns of the Company. The Option shall be binding ------------------------------------ upon and shall inure to the benefit of any successor of the Company. 13. Miscellaneous. ------------- (a) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY ALL APPLICABLE ------------- FEDERAL LAW AND THE LAW OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF THAT WOULD OTHERWISE REQUIRE THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. (b) Headings. The inclusion of headings in this Agreement is for -------- convenience of reference only and shall not affect the construction or interpretation hereof. (c) Gender and Number. In this Agreement, unless the context ----------------- otherwise requires, words importing the singular include the plural and vice versa and words importing gender include all genders. (d) Currency. Except as expressly provided in this Agreement, all -------- amounts in this Agreement are stated and shall be paid in United States currency. (e) Invalidity of Provisions. Each of the provisions contained in ------------------------ this Agreement is distinct and severable and a declaration of invalidity or unenforceability of any such provision by a court of competent jurisdiction shall not affect the validity or enforceability of any other provision hereof. If any provision of this Agreement is held to be illegal, invalid or unenforceable, it shall be deemed to be modified to the extent necessary to render it valid and enforceable, and if no such modification shall render it valid and enforceable, this Agreement shall be construed as if not containing such provision. (f) Entire Agreement. This Agreement constitutes the entire agreement ---------------- between the parties pertaining to the subject matter of this Agreement. There are no warranties, representations or agreements between the parties in connection with such subject matter except as specifically set forth or referred to in this Agreement. (g) Waiver; Amendment. Except as expressly provided in this ----------------- Agreement, no amendment to or waiver of this Agreement shall be binding unless executed in writing by the party to be bound thereby. No waiver of any provision of this Agreement shall constitute a waiver of any other provision nor shall any waiver of any provision of this Agreement constitute a continuing waiver unless otherwise expressly provided. (h) Submission to Jurisdiction. Each of the parties hereto agrees -------------------------- that any suit, action or proceeding against it or any of its assets out of or relating to this Agreement may be brought in a competent court of the State of California (or, at the option of the party bringing the suit, action or proceeding, in the Federal District Court in California, if within that court's jurisdiction), and each party hereto hereby irrevocably and 5 unconditionally attorns and submits to the jurisdiction of such courts over the subject matter of any such suit, action or proceeding. Each party hereto irrevocably waives and agrees not to raise any objection it might now or hereafter have to any such suit, action or proceeding in any such court including, without limitation, any objection that the place where such court is located is an inconvenient forum or that there is any other suit, action or proceeding in any other place relating in whole or in part to the same subject matter. (i) Public Announcements. Except as required by law, no party hereto -------------------- shall issue any press release or make any other public statement or announcement relating to or in connection with or arising out of this Agreement, the matters contained herein, or the business or affairs of the Company or any Subsidiary of the Company. Any significant public statement or announcement of the Company out of the ordinary course of business shall be approved by the Board of the Company. (j) Counterparts. This Agreement may be signed in counterparts and ------------ each of such counterparts shall constitute an original document and such counterparts, taken together, shall constitute one and the same instrument. (k) Schedules and Exhibits. All schedules and exhibits referred to in ---------------------- this Agreement are hereby incorporated herein for all purposes. [SIGNATURE PAGE FOLLOWS] 6 IN WITNESS WHEREOF, this Agreement has been executed by the Company and Employee as of the date and year first written above. TUT SYSTEMS, INC. By: ______________________________________________ Name: ________________________________________ Title: _______________________________________ _________________________________________________ Frank M. Orga Address: _________________________________________ __________________________________________________ __________________________________________________ 7 EXHIBIT A --------- TUT SYSTEMS, INC. NON-QUALIFIED STOCK OPTION AGREEMENT 1. Date of Grant: December 6, 2000 2. Employee: Frank M. Orga 3. Number of Shares: 65,000 shares of Common Stock 4. Option Price per Share: $7.437 5. Exercise Schedule: Option is exercisable as to twenty- five percent (25%) of the aggregate number of shares granted on the date one year from 11/02/2000 (the "Vesting Commencement Date") and to the extent of 1/36/th/ of the remaining shares for each month that expires from that date. 6. Expiration Date: December 6, 2010 EX-5 3 dex5.txt OPINION OF AKIN, GUMP, STRAUSS, HAUER & FELD EXHIBIT 5 [LETTERHEAD OF AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.] April 5, 2001 Tut Systems, Inc. 5964 W. Las Positas Blvd. Pleasanton, California 94588 Ladies and Gentlemen: We have acted as counsel to Tut Systems, Inc., a Delaware corporation (the "Company"), in connection with the proposed registration of 65,000 shares of the Company's common stock, par value $0.001 per share (the "Common Stock"), as described in a registration statement on Form S-8 relating to the Common Stock to be issued under the Company's Orga Stock Option Plan (the "Plan"), which registration statement is to be filed with the Securities and Exchange Commission (the "Registration Statement"). We have, as counsel, examined such corporate records, certificates and other documents and reviewed such questions of law as we have deemed necessary, relevant or appropriate to enable us to render the opinions listed below. In rendering such opinions, we have assumed the genuineness of all signatures and the authenticity of all documents examined by us. As to various questions of fact material to such opinions, we have relied upon representations of the Company. Based upon such examination and representations, we advise you that, in our opinion: A. The shares of Common Stock to be issued under the Plan that are to be registered pursuant to the Registration Statement have been duly and validly authorized by the Company. B. The shares of Common Stock to be issued under the Plan that are to be registered pursuant to the Registration Statement, when issued and delivered in accordance with the Plan, will be validly issued, fully paid and non-assessable. Akin, Gump, Strauss, Hauer & Feld, L.L.P. Tut Systems, Inc. April 5, 2001 Page 2 We consent to the reference to this firm in the Registration Statement and to the filing of this opinion as Exhibit 5 to the Registration Statement. Sincerely, /s/ AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P. AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P. EX-23.1 4 dex231.txt CONSENT OF PRICEWATERHOUSECOOPERS LLP EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS ---------------------------------- We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 26, 2001, relating to the financial statements and financial statement schedule of Tut Systems, Inc. which appears in Tut Systems, Inc.'s Annual Report on Form 10-K for the year ended December 31, 2000. /s/ PricewaterhouseCoopers LLP PricewaterhouseCoopers LLP San Jose, California April 2, 2001 -----END PRIVACY-ENHANCED MESSAGE-----