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Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
White Pine Software, Inc.
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(Exact Name of Registrant as Specified in Its Charter)
Delaware
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(State or Other Jurisdiction of Incorporation or Organization)
04-3151064
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(I.R.S. Employer Identification No.)
542 Amherst Street, Nashua, New Hampshire 03063
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(Address of Principal Executive Offices) (Zip Code)
White Pine Software, Inc. 1996 Employee Stock Purchase Plan
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(Full Title of the Plan)
Howard R. Berke
President and Chief Executive Officer
542 Amherst Street
Nashua, New Hampshire 03063
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(Name and Address of Agent for Service)
(603) 886-9050
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(Telephone Number, Including Area Code, of Agent For Service)
WITH COPIES TO:
Mark L. Johnson, Esquire
Amy P. Dennin, Esquire
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, Massachusetts 02109
(617) 832-1000
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Securities to Be Amount to Maximum Maximum Amount of
Registered be Offering Aggregate Registration
Registered Price Per Offering Fee(2)
Share(1) Price(1)
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Common Stock, 100,000 Shares $ 2.9375 $ 293,750 $ 76
$.01 par value
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(1) Estimated solely for the purpose of determining the registration fee.
(2) In accordance with Rules 457(c) and (h) under the Securities Act of
1933, the calculation is based on 85% of the average of the high and
low sale prices reported in the consolidated reporting system of the
Nasdaq National Market on May 6, 1997.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission (the
"Commission") by White Pine Software, Inc. (the "Company") are incorporated in
this Registration Statement by reference:
(a) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed with the Commission on
September 6, 1996 under Section 12 of the Securities Exchange Act of 1934,
including any amendment or description filed for the purpose of updating such
description;
(b) the Company's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1996, as filed with the Commission on March 21, 1997; and
(c) all documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, 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, which
documents shall be deemed to be incorporated by reference in this Registration
Statement and to be part hereof from the date of filing thereof.
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 affords a Delaware
corporation the power to indemnify its present and former directors and officers
under certain conditions. Article SEVENTH of the Company's Amended and Restated
Certificate of Incorporation (the "Restated Charter") provides that the Company
shall indemnify each person who at any time is, or shall have been, a director
or officer of the Company, and is threatened to be or is made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or she
is or, was, a director or officer of the Company, is or was serving at the
request of the Company as a director, officer, employee, trustee, or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement incurred in connection with any such action, suit or proceeding to
the maximum extent permitted by the Delaware General Corporation Law.
Section 102(b)(7) of the Delaware General Corporation Law gives a Delaware
corporation the power to adopt a charter provision eliminating or limiting the
personal liability of directors to the corporation or its stockholders for
breach of fiduciary duty as directors, provided that such provision may not
eliminate or limit the liability of directors for (i) any breach of the
director's duty of loyalty to the corporation or its
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stockholders, (ii) any acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, (iii) any payment of a
dividend or approval of a stock purchase that is illegal under Section 174 of
the Delaware General Corporation Law or (iv) any transaction from which the
director derived an improper personal benefit. Article NINTH of the Restated
Charter provides that to the maximum extent permitted by the Delaware General
Corporation Law no director of the Company shall be personally liable to the
Company or to any of its stockholders for monetary damages arising out of such
director's breach of fiduciary duty as a director of the Company. No amendment
to or repeal of the provisions of Article NINTH shall apply to or have any
effect on the liability or the alleged liability of any director of the Company
with respect to any act or failure to act of such director occurring prior to
such amendment or repeal. A principal effect of such Article NINTH is to limit
or eliminate the potential liability of the Company's directors for monetary
damages arising from breaches of their duty of care, unless the breach involves
one of the four exceptions described in (i) through (iv) above.
Section 145 of the Delaware General Corporation Law also affords a Delaware
corporation the power to obtain insurance on behalf of its directors and
officers against liabilities incurred by them in those capacities. The Company
has procured a directors' and officers' liability and company reimbursement
liability insurance policy that (a) insures directors and officers of the
Company against losses (in excess of a deductible amount) arising from certain
claims made against them by reason of certain acts done or attempted by such
directors or officers and (b) insures the Company against losses, (in excess of
a deductible amount) arising from any such claims, but only if the Company is
required or permitted to indemnify such directors or officers for such losses
under statutory or common law or under provisions of the Restated Charter or the
By-Laws of the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1* Amended and Restated Certificate of Incorporation of the Company
4.2* By-Laws of the Company, as amended
4.3* Specimen certificate for Common Stock of the Company
5.1 Opinion of Foley, Hoag & Eliot LLP
10.7* White Pine Software, Inc. 1996 Employee Stock Purchase Plan
23.1 Consent of Ernst & Young LLP
23.2 Consent of Foley, Hoag & Eliot LLP (included in Exhibit 5.1)
24.1 Power of Attorney (contained on the signature page)
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*Filed as an exhibit to the Company's Registration Statement on Form SB-2
(registration number 333-9525), as declared effective by the Commission on
October 10, 1996, and incorporated herein by reference.
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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 of 1933;
(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; and
(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 2 (a)(1)(i) and 2 (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference herein;
(b) that, for the purpose of determining any liability under the Securities
Act of 1933, 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; and
(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 of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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
of 1933 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 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 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 Nashua, New Hampshire, on this seventh day of
May, 1997.
WHITE PINE SOFTWARE, INC.
By: /s/ Howard R. Berke
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Howard R. Berke
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Howard R. Berke, Christine J. Cox and
Robert Putman, and each of them, true and lawful attorneys-in-fact and agents
with full power of substitution, for and in name, place and stead, in any and
all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and all documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and every act and
thing that they, or any of them, may deem necessary or advisable to be done in
connection with this Registration Statement, 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 any of them, or any
substitute or substitutes for him, any or all of them, 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 as of May 7, 1997.
Signature Title
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/s/ Howard R. Berke President, Chief Executive Officer and
_______________________ Director (Principal Executive Officer)
Howard R. Berke
/s/ Christine J. Cox Controller (Principal Financial and
_______________________ Accounting Officer)
Christine J. Cox
/s/ Killko A. Caballero Director
_______________________
Killko A. Caballero
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Signature Title
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/s/ Arthur H. Bruno Director
_________________________
Arthur H. Bruno
/s/ Jonathan G. Morgan Director
_________________________
Jonathan G. Morgan
/s/ Pierre-Gabriel Vallee Director
_________________________
Pierre-Gabriel Vallee
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EXHIBIT INDEX
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Exhibit
No. Description Page
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4.1* Amended and Restated Certificate of Incorporation of
the Company
4.2* By-Laws of the Company, as amended
4.3* Specimen certificate for Common Stock of the Company
5.1 Opinion of Foley, Hoag & Eliot LLP
10.7* White Pine Software, Inc. 1996 Employee Stock Purchase Plan
23.1 Consent of Ernst & Young LLP
23.2 Consent of Foley, Hoag & Eliot LLP (included in Exhibit 5.1)
24.1 Power of Attorney (contained on the signature page)
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* Filed as an exhibit to the Company's Registration Statement on Form SB-2
(file number 333-9525), as declared effective by the Commission on October 10,
1996, and incorporated herein by reference.
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Exhibit 5.1
FOLEY, HOAG & ELIOT LLP
One Post Office Square
Boston, Massachusetts 02109-2170
Telephone: (617) 832-1000
Facsimile: (617) 832-7000
Telex 940693
http://www.fhe.com
May 12, 1997
WHITE PINE SOFTWARE, INC.
542 Amherst Street
Nashua, New Hampshire 03063
Ladies and Gentlemen:
We have acted as counsel for White Pine Software, Inc., a Delaware corporation
(the "Company"), in connection with the preparation and filing with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
of a Registration Statement on Form S-8 (the "Registration Statement") relating
to the offering by the Company of 100,000 shares (the "Shares") of its Common
Stock, $0.01 par value, issuable pursuant to the White Pine Software, Inc. 1996
Employee Stock Purchase Plan (the "Plan").
In arriving at the opinions expressed below, we have examined and relied on
the following documents:
(i) the Registration Statement;
(ii) the Plan;
(iii) the Amended and Restated Certificate of Incorporation of the
Company;
(iv) the By-Laws of the Company, as amended as of the date hereof; and
(v) the records of meetings and consents of the Board of Directors and
stockholders of the Company provided to us by the Company.
In addition, we have examined and relied on the originals or copies certified or
otherwise identified to our satisfaction of all such other records, documents
and instruments of the Company and such other persons, and we have made such
investigations of law, as we have deemed appropriate as a basis for the opinions
expressed below. We have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
the original documents of all documents submitted to us as certified or
photostatic copies.
We express no opinion other than as to the General Corporation Law of the
State of Delaware.
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WHITE PINE SOFTWARE, INC.
May 12, 1997
Page Two
Based upon the foregoing, we are of the opinion that:
1. The Company has the corporate power necessary for the issuance of the
Shares under the Plan, as contemplated by the Registration Statement.
2. The Shares have been duly authorized and, when issued against payment of
the agreed consideration therefor in accordance with the respective
exercise prices therefor as described in the Plan, will be validly
issued, fully paid and non-assessable.
We consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
FOLEY, HOAG & ELIOT LLP
By /s/ Mark L. Johnson
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A Partner
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Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the White Pine Software, Inc. 1996 Employee Stock
Purchase Plan, of our report dated January 26, 1997, with respect to the
consolidated financial statements of White Pine Software, Inc. included in its
Annual Report (Form 10-KSB) for the year ended December 31, 1996, filed with
the Securities and Exchange Commission.
ERNST & YOUNG LLP
Manchester, New Hampshire
May 7, 1997
