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As filed with the Securities and Exchange Commission on November 22, 2000
Registration No. 333-____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
CUSEEME NETWORKS, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation or Organization)
04-3151064
(I.R.S. Employer Identification No.)
542 Amherst Street, Nashua, New Hampshire 03063
(Address of Principal Executive Offices) (Zip Code)
White Pine Software, Inc. 1996 Incentive and Nonqualified Stock Option Plan
(Full Title of the Plan)
Killko A. Caballero
Chief Executive Officer, President and Chairman of the Board
CUseeMe Networks, 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)
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CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
Amount Proposed
To Be Registered Proposed Maximum Maximum
Title of Securities Offering Price Aggregate Offering Amount of
To Be Registered Per Share Price Registration Fee
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Common Stock, $.01 par value.......... 1,850,000 $2.125 (1) $3,931,250 (1) $1,038
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(1) Estimated solely for the purpose of calculating the registration fee,
and based on the average of the high and low prices of the Common Stock
on the Nasdaq National Market on November 21, 2000 in accordance with
Rules 457(c) and 457(h) under the Securities Act of 1933.
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This Registration Statement covers 1,850,000 shares of our common
stock issuable pursuant to our White Pine Software, Inc. 1996 Incentive and
Nonqualified Stock Option Plan. These shares are in addition to the 550,000
shares of common stock registered pursuant to the Registration Statement on
Form S-8, File No. 333-21269, we filed with the Securities and Exchange
Commission on February 6, 1997.
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or
given to participants in the White Pine Software, Inc. 1996 Incentive and
Nonqualified Stock Option Plan pursuant to Rule 428(b)(1) of the Securities Act
of 1933.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Registrant is subject to the informational and reporting
requirements of Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934, and in accordance therewith files reports, proxy statements and
other information with the SEC. The following documents, which are filed with
the SEC, are incorporated in this Registration Statement by reference:
(1) The Registrant's latest prospectus filed pursuant to Rule 424(b)
under the Securities Act of 1933 that contains audited financial
statements for the Registrant's latest fiscal year for which such
statements have been filed.
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 since the end of the fiscal year
covered by the prospectus referred to in (1) above.
(3) The description of the common stock of the Registrant, $.01 par
value per share (the "Common Stock"), contained in the
Registrant's registration statement on Form 8-A filed with the
Commission under Section 12(g) of the Securities Exchange Act of
1934, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant 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
shares of Common Stock offered hereby have been sold or which deregisters all
shares of Common Stock then remaining unsold, shall be deemed to be
incorporated by reference herein and to be part hereof from the date of the
filing of such documents.
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Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Our charter provides that no director shall be personally liable to
us or to any stockholder for monetary damages arising out of such director's
breach of fiduciary duty, except to the extent that the elimination or
limitation of liability is not permitted by Delaware law. The Delaware law,
as currently in effect, permits charter provisions eliminating the liability
of directors for breach of fiduciary duty, except that such provisions do not
eliminate or limit the liability of directors for (a) any breach of the
director's duty of loyalty to a corporation or its stockholders, (b) any acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (c) any payment of a dividend or approval of a
stock purchase that is illegal under Section 174 of the Delaware General
Corporation Law or (d) any transaction from which the director derived an
improper personal benefit. A principal effect of this provision of our
charter is to limit or eliminate the potential liability of our directors for
monetary damages arising from any breach of their duty of care, unless the
breach involves one of the four exceptions described in (a) through (d) above.
Our charter and by-laws further provide for the indemnification of
our directors and officers to the fullest extent permitted by Section 145 of
the Delaware General Corporation Law, including circumstances in which
indemnification is otherwise discretionary. Section 145 of the Delaware
General Corporation Law provides that a corporation has the power to
indemnify a director, officer, employee or agent of the corporation and
certain other persons serving at the request of the corporation in related
capacities against amounts paid and expenses incurred in connection with an
action or proceeding to which he or she is or is threatened to be made a
party by reason of such position, if such person shall have acted in good
faith and in a manner he or she reasonably believed to be in or not opposed
to the best interests of the corporation, and, in any criminal proceeding, if
such person had no reasonable cause to believe his or her conduct was
unlawful; provided that, in the case of actions brought by or in the right of
the corporation, no indemnification shall be made with respect to any matter
as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the adjudicating court
determines that such indemnification is proper under the circumstances.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to our directors, officers and controlling persons
pursuant to the foregoing provisions, or otherwise, we have been advised that
in the opinion of the Securities and Exchange Commission that indemnification
is against public policy as expressed in the Securities Act and is,
therefore, unenforceable.
The Registrant maintains a directors' and officers' insurance policy
that covers certain liabilities of directors and officers of the Registrant,
including liabilities under the Securities Act of 1933. The Registrant
maintains a general liability insurance policy that covers certain
liabilities of directors and officers of the Registrant arising out of claims
based on acts or omissions in their capacities as directors or officers.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS
The following exhibits are filed as part of this Registration
Statement:
4.1 Amended and Restated Certificate of Incorporation of the
Registrant. Incorporated by reference to an exhibit to the
Registrant'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.
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4.2 Amended and Restated By-Laws of the Registrant. Incorporated
by reference to an exhibit to the Registrant'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.
4.2(a) Amendment to Amended and Restated By-Laws of the
Registrant, as adopted on October 30, 2000.
4.3 Specimen certificate for the Registrant's common stock, $.01
par value. Incorporated by reference to an exhibit to the
Registrant'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.
4.4 1996 Incentive and Nonqualified Stock Option Plan of the
Registrant. Incorporated by reference to Registrant's
Registration Statement on Form S-8 (Registration No.
333-21269) filed on February 6, 1997.
5.1 Opinion of Hale and Dorr LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Hale and Dorr LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included in the signature page of this
Registration Statement).
Item 9. UNDERTAKINGS
The Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement 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;
(2) 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 therein, and the offering of such securities at
that time shall be deemed to be the initial BONA FIDE offering
thereof.
(3) 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.
The 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 therein, and the offering of such
securities at that time shall be deemed to be in the initial BONA FIDE
offering thereof.
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
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 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 of 1933 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
twenty-first of November, 2000.
CUSEEME NETWORKS INC.
By: /s/ Christine J. Cox
----------------------------
Christine J. Cox
Chief Financial Officer,
Vice President of Finance,
Treasurer and Assistant Secretary
SIGNATURES AND POWER OF ATTORNEY
We, the undersigned officers and directors of CUseeMe Networks, Inc,
hereby severally constitute and appoint Killko A. Caballero and Christine J.
Cox, and each of them singly, our true and lawful attorneys with full power
to them, and each of them singly, to sign for us and in our names in the
capacities indicated below, the Registration Statement on Form S-8 filed
herewith and any and all subsequent amendments to said Registration
Statement, and generally to do all such things in our names and behalf in our
capacities as officers and directors to enable CUseeMe Networks, Inc. to
comply with all requirements of the Securities and Exchange Commission,
hereby ratifying and confirming our signatures as they may be signed by said
attorneys, or any of them, to said Registration Statement and any and all
amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated, as of November 21, 2000.
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<CAPTION>
NAME TITLE
<S> <C>
/s/ Killko A. Caballero
------------------------------- Chief Executive Officer, President and Director
Killko A. Caballero (Principal Executive Officer)
/s/ Christine J. Cox
------------------------------- Chief Financial Officer, Vice President of Finance,
Christine J. Cox Treasurer and Assistant Secretary
(Principal Financial and Accounting Officer)
/s/ Joseph J. Esposito
------------------------------- Director
Joseph J. Esposito
/s/ Jonathan G. Morgan
------------------------------- Director
Jonathan G. Morgan.
/s/ Adam Stettner
------------------------------- Director
Adam Stettner
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<PAGE>
EXHIBIT INDEX
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EXHIBIT
NUMBER DESCRIPTION
<S> <C>
4.1 Amended and Restated Certificate of Incorporation of the
Registrant. Incorporated by reference to an exhibit to the
Registrant'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.
4.2 Amended and Restated By-Laws of the Registrant. Incorporated by
reference to an exhibit to the Registrant's Registration Statement
on Form SB-2 in the form in which it was declared effective by the
Securities and Exchange Commission File No. 333-09525.
4.2(a) Amendment to Amended and Restated By-Laws of the Registrant, as
adopted on October 30, 2000.
4.3 Specimen certificate for the Registrant's common stock, $.01 par
value. Incorporated by reference to an exhibit to the Registrant's
Registration Statement on Form SB-2 in the form in which it was
declared effective by the Securities and Exchange Commission File
No. 333-09525.
4.4 1996 Incentive and Nonqualified Stock Option Plan of the
Registrant. Incorporated by reference to Registration Statement on
Form S-8 (Registration No. 333-21269) filed on February 6, 1997.
5.1 Opinion of Hale and Dorr LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Hale and Dorr LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included in the signature page of this
Registration Statement).
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