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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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WHITE PINE SOFTWARE, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 04-3151064
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
542 AMHERST STREET, NASHUA, NEW HAMPSHIRE 03063
(Address of Principal Executive Offices) (Zip Code)
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WHITE PINE SOFTWARE, INC. AMENDED AND RESTATED 1996 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
KILLKO A. CABALLERO
PRESIDENT AND CHIEF EXECUTIVE OFFICER
WHITE PINE SOFTWARE, INC.
542 AMHERST STREET
NASHUA, NEW HAMPSHIRE 03063
(Name and Address of Agent for Service)
(603) 886-9050
(Telephone Number, Including Area Code, of Agent For Service)
With copies to:
Mark L. Johnson, Esq.
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, Massachusetts 02109
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CALCULATION OF REGISTRATION FEE
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PROPOSED
PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT MAXIMUM OFFERING AGGREGATE REGISTRATION
TO BE REGISTERED TO BE REGISTERED PRICE PER SHARE(1) OFFERING PRICE(1) FEE
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Common stock, $.01 par value 100,000 shares $4.57 $457,000 $128
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(1) Calculated in accordance with Rules 457(h)(1) and 457(c) under the
Securities Act of 1933, based on 85% of the average of the high and low
sale prices of the common stock as reported on the Nasdaq National
Market on May 6, 1999.
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This Registration Statement covers 100,000 shares of our common
stock issuable pursuant to our Amended and Restated 1996 Employee Stock
Purchase Plan. These shares are in addition to the 100,000 shares of common
stock registered pursuant to the Registration Statement on Form S-8, File No.
333-26973, we filed with the Securities and Exchange Commission on May 13,
1997.
The contents of our Registration Statement on Form S-8, File No.
333-26973, are incorporated herein by reference.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 8. EXHIBITS.
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Exhibit
No. Description
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4.1(1) Amended and Restated Certificate of Incorporation of White
Pine Software, Inc.
4.2(1) Amended and Restated By-Laws of White Pine Software, Inc.
4.3(1) Specimen certificate for common stock, $.01 par value, of
White Pine Software, Inc.
4.4(2) White Pine Software, Inc. Amended and Restated 1996 Employee
Stock Purchase Plan
5.1 Opinion of Foley, Hoag & Eliot LLP
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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(1) Incorporated by reference to White Pine's Registration Statement on
Form SB-2 (File No. 333-09525) in the form in which it was declared
effective by the Securities and Exchange Commission.
(2) Incorporated by reference to White Pine's Annual Report on Form 10-KSB
for the fiscal year ended December 31, 1998.
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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 May 7, 1999.
White Pine Software, Inc.
By /s/ Killko A. Caballero
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Killko A. Caballero
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS that each individual whose signature appears
below hereby constitutes and appoints Killko A. Caballero and Christine J. Cox
and each of them, his or her true and lawful attorneys-in-fact and agents with
full power of substitution, for him or her and in his or her 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 which 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 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 and on the dates indicated.
SIGNATURE TITLE DATE
/s/ Killko A. Caballero
- ----------------------- President, Chief Executive Officer and May 7, 1999
Killko A. Caballero Director
(Principal Executive Officer)
/s/ Christine J. Cox
- ----------------------- Chief Financial Officer and May 7, 1999
Christine J. Cox Vice President of Finance
(Principal Financial and
Accounting Officer)
/s/ Arthur H. Bruno
- ----------------------- Chairman of the Board and Directo May 7, 1999
Arthur H. Bruno
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/s/ Jonathan G. Morgan
- ----------------------- Director May 7, 1999
Jonathan G. Morgan
/s/ Adam Stettner
- ----------------------- Director May 7, 1999
Adam Stettner
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EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION
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4.1(1) Amended and Restated Certificate of Incorporation of White
Pine Software, Inc.
4.2(1) Amended and Restated By-Laws of White Pine Software, Inc.
4.3(1) Specimen certificate for common stock, $.01 par value, of
White Pine Software, Inc.
4.4(2) White Pine Software, Inc. Amended and Restated 1996 Employee
Stock Purchase Plan
5.1 Opinion of Foley, Hoag & Eliot LLP
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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(1) Incorporated by reference to White Pine's Registration Statement on
Form SB-2 (File No. 333-09525) in the form in which it was declared
effective by the Securities and Exchange Commission.
(2) Incorporated by reference to White Pine's Annual Report on Form
10-KSB for the fiscal year ended December 31, 1998.
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EXHIBIT 5.1
FOLEY, HOAG & ELIOT LLP
ONE POST OFFICE SQUARE
BOSTON, MASSACHUSETTS 02109-2170
TELEPHONE 617-832-1000 1747 PENNSYLVANIA AVE., N.W.
FACSIMILE 617-832-7000 WASHINGTON, D.C. 20006
http://www.fhe.com TEL: 202-223-1200
FAX: 202-785-6687
May 6, 1999
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, $.01 par value, issuable pursuant to the White Pine Software, Inc.
Amended and Restated 1996 Employee Stock Purchase Plan, as amended and restated
on December 16, 1998 (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
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WHITE PINE SOFTWARE, INC.
May 6, 1999
Page Two
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.
Based upon the foregoing, we are of the opinion that:
1. The Company has the corporate power necessary to issue 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 (Form S-8) pertaining to the White Pine Software, Inc. Amended and
Restated 1996 Employee Stock Purchase Plan of our report dated March 30, 1999,
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, 1998, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Manchester, New Hampshire
May 6, 1999
