<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): February 27, 1997
NETLIVE COMMUNICATIONS, INC.
(Exact name of Registrant as Specified in its Charter)
Delaware 0-28728 13-384-8652
(State or other jurisdiction (Commission (IRS Employer
of incorporation File No.) Identification No.)
584 Broadway, New York, New York 10012
(Address of Principal Executive Office)
Registrant's telephone number, including area code: (212) 343-7082
Not Applicable
(Former name or former address, if changed since last report)
Page 1 of 5
<PAGE>
ITEM 5. OTHER EVENTS.
On February 27, 1997, the Registrant's Board of Directors adopted the
NetLive Communications, Inc. Performance Share Program, an employee deferred
compensation plan (the "Plan"). The purpose of the Plan is to provide an
incentive for, and to help retain, the Registrant's employees and to facilitate
hiring new employees. The Registrant thereafter entered into a Trust Agreement
whereby the Performance Share Program Trust (the "Trust") was created and
issued 300,000 shares of the Registrant's common stock, $.0001 par value (the
"Common Stock"), to the Trust. Prior to vesting and distribution to the
applicable employee, the shares will be voted by the independent trustee of the
Trust, Mr. R. Andrew Lee. To date, the Plan committee of the Registrant's Board
of Directors has made awards to 12 employees (none of whom is an officer or
director) relating to an aggregate of 106,000 shares of Common Stock.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) Exhibits
10.8 NetLive Communications, Inc. Performance Share Program and
Performance Share Program Trust.
Items 1 through 4 and 6 through 9 are not applicable and have been
omitted.
Page 2 of 5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
NETLIVE COMMUNICATIONS, INC.
Dated: March 11, 1997 By: ______________________________
Signature
Name: Laurence M. Rosen
Title: Chief Executive Officer,
President and Treasurer
(Principal Financial Officer)
Page 3 of 5
<PAGE>
EXHIBIT INDEX
TO FORM 8-K
Exhibit Page No.
- ------- --------
10.8 NetLive Communications, Inc. Performance Share Program and 5
Performance Share Program Trust
Page 4 of 5
<PAGE>
NETLIVE COMMUNICATIONS, INC.
PERFORMANCE SHARE PROGRAM
DEFERRED EMPLOYEE COMPENSATION PLAN
Effective February 27, 1997
<PAGE>
INTRODUCTION
The NetLive Communications, Inc. Performance Share Program is
a funded deferred compensation plan for a select group of key employees of
NetLive Communications, Inc.
ARTICLE I
DEFINITIONS
1.1 "Award" shall mean the right granted to a Participant under the
Program to receive a specified number of Shares at a future date if applicable
conditions are satisfied.
1.2 "Board" shall mean the Board of Directors of the Company.
1.3 "Change of Control" shall mean the: (1) purchase or other acquisition
by any person, entity or group of persons, within the meaning of 13(d) or 14(d)
of the Securities Exchange Act of 1934 ("Act"), or any comparable successor
provisions, of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Act) of 30 percent or more of either the outstanding
shares of common stock or the combined voting power of Company's then
outstanding voting securities entitled to vote generally (however, this
definition excludes a proxy or consent solicitation complying with applicable
law); or (2) the approval by the stockholders of Company of a reorganization,
merger, or consolidation, in each case, with respect to which persons who were
stockholders of Company immediately prior to such reorganization, merger or
consolidation do not, immediately thereafter, own more than 50 percent of the
combined voting power entitled to vote generally in the election of directors
of the reorganized, merged or consolidated Company's then outstanding
securities; or (3) a liquidation or dissolution of Company or of the sale of
all or substantially all of Company's assets.
1.4 "Committee" shall mean the Performance Share Program Committee, which
is appointed by the Board, and which shall be composed of three members who
need not be employees of the Company.
1.5 "Company" shall mean NetLive Communications, Inc., a Delaware
corporation.
1.6 "Participant" shall mean an employee of the Company to whom an Award
has been granted. Employees who are members of the Board of Directors of the
Company are not eligible to be Participants in the Plan.
1.7 "Program" shall mean the NetLive Communications, Inc. Performance
Share Program.
1.8 "Share" shall mean either a share of common stock, $.0001 par value,
or a share of preferred stock, issued by the Company.
-1-
<PAGE>
ARTICLE II
AWARDS
2.1 Grant of Awards. The Committee shall, in its discretion, grant awards
to employees of the Company it determines to be key employees. A Participant's
Award shall be determined by the Committee based upon the Participant's
position with the Company, the relative impact of that position upon the
long-term performance of the Company and the number of Shares previously
awarded under the Program and under the Company's several stock option
programs.
2.2 Participant's Interest. No Participant shall have any right or
interest in or to any Award until such time as payment actually is made to him
in accordance with the provisions of the Program.
2.3 Maximum Number of Shares. The maximum total number of Shares subject
to the grant of Awards under the Program is 300,000 Shares.
2.4 Stock Split. The number of Shares subject to Awards shall be adjusted
to reflect stock splits, stock dividends, and the like.
-2-
<PAGE>
ARTICLE III
PAYMENT OF AWARDS
3.1 Entitlement to Payment. A Participant shall be entitled to the Shares
granted to him in an Award on the first to occur of the following events:
(a) One hundred percent of such Shares upon the completion by the
Participant of the specified number of years of service for the Company
set forth in the Participant's Award certificate, not to exceed ten years
of service, or
(b) Fifty percent of such Shares either upon a Change of Control, or
upon occurrence of such other events related to a Change of Control
specifically set forth in the Participant's Award certificate, or
(c) The applicable percentage of such Shares upon occurrence of any
other events or conditions specifically set forth in the Participant's
Award certificate.
3.2 Distribution. The Shares under an Award shall be distributed to the
Participant on his becoming entitled to them pursuant to Section 3.1.
3.3 Source of Awards. Shares payable under Awards shall be paid directly
to the Participant from the irrevocable trust established by the Company.
3.4 Forfeiture of Awards. A Participant will forfeit all right to an Award
under this Program upon termination of service to the Company by the
Participant for any reason before being entitled to distribution under Section
3.2.
-3-
<PAGE>
ARTICLE IV
ADMINISTRATION
4.1 Administrator. The Board, or a committee it designates, shall be the
Administrator of the Program.
4.2 Duties of the Administrator. The Administrator shall administer the
Program in accordance with its terms and purposes and shall have authority to
interpret the Program, to make any necessary rules and regulations, to
determine benefits and to disburse Shares under the Program. The Administrator
shall also be responsible for complying with statutory reporting and disclosure
requirements. The Administrator's interpretations, determinations, rules and
regulations shall be final and binding on all persons and parties concerned.
The Administrator shall not be subject to liability with respect to the
administration of the Program.
4.3 Claims Procedures/Decision of Administrator. In general, distributions
under this Program are automatic and no claim for benefits needs to be filed.
However, a Participant may submit a claim for benefits under this Program, to
the Administrator, in writing. The following procedure shall apply in such
case:
(a) If such claim for benefits is wholly or partially denied, the
Administrator shall notify the claimant of the denial of the claim within
a reasonable period of time, but no later than 90 days after receipt of
the written claim, unless special circumstances require an extension of
time for processing the claim. In such event, written notice of the
extension shall be furnished to the claimant prior to the end of the 90
day period and shall indicate the special circumstances requiring the
extension and the date by which a final decision is expected. In no event
shall the extension period exceed 90 days from the end of the initial 90
day period. The notice of denial: (i) shall be in writing; (ii) shall be
written in a manner calculated to be understood by the claimant; and (iii)
shall contain (A) the specific reason or reasons for denial of the claim;
(B) a specific reference to the pertinent Program provisions upon which
the denial is based; (C) a description of any additional material or
information necessary for the claimant to perfect the claim; and (D) an
explanation of the Program claims review procedure.
(b) Within 60 days of the receipt by the claimant of the written
notice of denial of the claim, or if the claim has not been granted within
the applicable time period, the claimant may file a written request with
the Administrator that it conduct a full and fair review of the denial of
the claimant's claim for benefits. In connection with the claimant's
appeal of the denial of his benefit, the claimant may review pertinent
documents and may submit issues and comments in writing.
(c) The Administrator shall deliver to the claimant a written
decision on the claim promptly, but not later than 60
-4-
<PAGE>
days after the receipt of the claimant's request for review, except that
if there are special circumstances which require an extension of time for
processing, the 60 day period shall be extended to a maximum of 120 days,
in which case written notice of the extension shall be furnished to the
claimant prior to the end of the 60 day period. The Administrator's
decision shall: (i) be written in a manner calculated to be understood by
the claimant, (ii) include specific reasons for the decision; and (iii)
contain specific references to the pertinent Program provisions upon which
the decision is based. If a written decision on review is not furnished to
the claimant within the applicable time period, the claim shall be deemed
denied on review.
-5-
<PAGE>
ARTICLE V
AMENDMENT AND TERMINATION
5.1 Amendment and Termination of the Program. Although the Company intends
to maintain the Program for as long as necessary, the Company reserves the
right to amend or terminate the Program at any time for whatever purposes it
may deem appropriate. Any amendments shall be in writing, and shall be
authorized by the Board.
5.2 Contractual Obligation. Notwithstanding Section 5.1, no Awards granted
under the Program as of the date of amendment or termination shall be
diminished.
-6-
<PAGE>
ARTICLE VI
MISCELLANEOUS
6.1 Employment Rights. Nothing contained in the Program shall be construed
as a contract of employment between the Company and any Participant, or as a
right of any employee to be continued in the employment of the Company, or as a
limitation of the right of the Company to discharge any of its employees, with
or without cause.
6.2 Assignment. No amount payable to or in respect of any participant or
beneficiary at any time under the Program shall be subject in any manner to
alienation by anticipation, sale, transfer, assignment, bankruptcy, pledge,
attachment, charge or encumbrance of any kind, and any attempt to so alienate,
sell, transfer, assign, pledge, attach, charge or otherwise encumber any such
amount, whether presently or thereafter payable, shall be void.
6.3 Program Costs. The Company shall provide for all benefits arising
under this Program and for all costs, charges and expenses relating to the
ongoing administration thereof.
6.4 Severability of Provisions. If any of the provisions of this Program
shall be held invalid, the remainder of this Program shall not be affected
thereby.
6.5 Applicable Law. All questions pertaining to the construction, validity
and effect of the Program shall be determined in accordance with the laws of
the United States and to the extent not preempted by such laws, by the laws of
the State of Delaware.
IN WITNESS WHEREOF, the Company has by its appropriate officer signed this
document, which sets forth the Program adopted as of February 27, 1997, as
amended through and including March 6, 1997, and affixed its seal as of the
6th day of March, 1997, as amended as of March 6, 1997.
WITNESS: NETLIVE COMMUNICATIONS, INC.
By:
--------------------------
Title: Chief Executive Officer
-----------------------
-7-
<PAGE>
NETLIVE COMMUNICATIONS, INC.
PERFORMANCE SHARE PROGRAM TRUST
This Trust Agreement made this 4th day of March, 1997, by and between
NetLive Communications, Inc. ("Company") and R. Andrew Lee(the "Trustee").
WHEREAS, Company has adopted the NetLive Communications, Inc. Performance
Share Program as a nonqualified deferred compensation plan;
WHEREAS, Company wishes to establish a trust (hereinafter called "Trust")
and to contribute to the Trust Company stock that shall be held therein, until
distributed to Plan Participants in such manner and at such times as specified
in the Plan;
WHEREAS, it is the intention of Company to tie performance of the
Participants' Accounts under this Trust to the performance of the Company,
which is, in turn, tied in significant part to the performance of the key
employees participating in the Plan;
NOW, THEREFORE, the parties do hereby establish the Trust and agree that
the Trust shall be comprised, held and disposed of as follows:
Section 1. Establishment of Trust
(a) Company hereby deposits with the Trust in trust 300,000 shares of its
common stock, which shall become the principal of the Trust to be held,
administered and disposed of by Trustee as provided in this Trust Agreement.
(b) The Trust hereby established shall be irrevocable. It shall not be
subject to the claims of the Company's creditors, but shall be maintained for
the exclusive purpose of providing benefits to Plan Participants.
(c) The Trust is not intended to be a grantor trust, but is intended to be
a taxable trust pursuant to Section 641 et seq. of the Internal Revenue Code of
1986, as amended, and shall be construed accordingly. The Trust is a funded
trust and, as such, it is intended that each Participant in respect of whom an
Account is maintained be taxed in accordance with Section 402(b) of the said
Code.
<PAGE>
Section 2. Definitions
(a) "Account" means the separate account established and maintained under
the Fund with respect to each Participant to provide a source of funds for the
benefits payable by the Company to, or with respect to, each such Participant
under the Plan.
(b) "Change of Control" means a change of control of the Company as
defined in Article I, Section 1.3 of the Plan.
(c) "Company" means NetLive Communications, Inc. and any successor
thereto, or to the business thereof, by whatever form or manner resulting.
(d) "Fund" means the stock, and any money and other property held by the
Trustee under this Agreement.
(e) "Participant" means a participant in the Plan.
(f) "Plan" means the NetLive Communications, Inc. Performance Share
Program.
(g) "Share" means common stock and/or preferred stock issued by the
Company.
(h) "Trust" means the trust provided for under this Agreement.
(i) "Trustee" means the trustee of the Trust.
Section 3. Accounts
(a) At the time the Company allocates Shares contributed to the Trust for
a Participant, it shall notify the Trustee of such fact and an Account shall be
established by the Trustee under the Fund with respect to such Participant and
the amount so contributed or directed to be allocated shall be credited to such
Account. Any subsequent contributions to the Trust with respect to the benefits
of such Participant and all earnings thereon also shall be credited to such
Account. Any taxes or other expenses paid with respect to an Account shall be
debited to that Account. The Company shall provide the Trustee with such
information or reports as are necessary to credit contributions to the Account
maintained with respect to each Participant.
(b) The Trustee shall have responsibility for the maintenance of Account
records.
(c) Any benefits becoming payable under the Plan to a Participant shall be
paid from the Fund and charged against the Account maintained with respect to
the benefits of such Participant. No payment shall be made from the Fund to or
with respect to a Participant to the extent that such payment would
-2-
<PAGE>
exceed the balance then remaining in the Account maintained with respect to the
benefits of such Participant.
(d) Once established, an Account shall be maintained with respect to the
benefits of each Participant until it has been liquidated through distribution
to the Participant, or a beneficiary thereof.
Section 4. Distributions to Plan
Participants and Their Beneficiaries
(a) Company shall deliver to Trustee a schedule (the "Distribution
Schedule") that indicates the distributions in respect to each Plan
participant, that provides instructions acceptable to Trustee for determining
what is to be distributed, the form in which such amount is to be paid (as
provided for or available under the Plan), and the time of distribution. Except
as otherwise provided herein, Trustee shall make distributions to the Plan
Participants in accordance with such Distribution Schedule. The Trustee shall
make provision for the reporting and withholding of any federal, state or local
taxes that may be required to be withheld with respect to the distribution of
benefits pursuant to the terms of the Plan.
(b) The entitlement of a Plan participant to benefits under the Plan shall
be determined by Company or such party as it shall designate under the Plan,
and any claim for such benefits shall be considered and reviewed under the
procedures set out in the Plan.
Section 5. Return to Company
Company shall have no right or power to direct Trustee to return to
Company or to divert to others any of the Trust assets before all distribution
of benefits have been made to Plan Participants pursuant to the terms of the
Plan. Any Shares forfeited by a Participant when such Participant's service to
the Company is terminated, or upon occurrence of any other forfeiture event set
forth in the Participant's Award certificate, shall revert to the Trust and
shall not be returned to the Company. Such forfeited Shares shall be available
for future award to Participants under the Plan.
-3-
<PAGE>
Section 6. Investment Authority
(a) Trustee shall hold the Shares deposited in the Trust and any dividends
of Shares received by the Fund. All voting or other rights associated with
Shares held in the Fund shall be exercised by Trustee or the person designated
by Trustee, and shall in no event be exercisable by or rest with Plan
Participants or the Company.
(b) Trustee shall reinvest any cash dividends on Shares as Trustee deems
appropriate.
Section 7. Disposition of Income
During the term of this Trust, all income received by the Trust, net of
expenses and taxes, shall be accumulated and reinvested.
Section 8. Accounting by Trustee
Trustee shall keep accurate and detailed records of all investments,
receipts, disbursements, and all other transactions required to be made,
including such specific records as shall be agreed upon in writing between
Company and Trustee. Within 60 days following the close of each calendar year
and within 60 days after the removal or resignation of Trustee, Trustee shall
deliver to Company a written account of its administration of the Trust during
such year or during the period from the close of the last preceding year to the
date of such removal or resignation, setting forth all investments, receipts,
disbursements and other transactions effected by it, including a description of
all securities and investments purchased and sold with the cost or net proceeds
of such purchases or sales (accrued interest paid or receivable being shown
separately), and showing all cash, securities and other property held in the
trust at the end of such year or as of the date of such removal or resignation,
as the case may be.
Section 9. Responsibility of Trustee
(a) Trustee shall act with the care, skill, prudence and diligence under
the circumstances then prevailing that a prudent person acting in like capacity
and familiar with such matters would use in the conduct of an enterprise of a
like character and with like aims, provided, however, that Trustee shall incur
no liability to any person for any action taken pursuant to a direction,
request or approval given by Company which is contemplated by, and in
conformity with, the terms of the Plan or this Trust and is given in writing by
Company. In the event of a dispute between Company and a party, Trustee may
apply to a court of competent jurisdiction to resolve the dispute.
-4-
<PAGE>
(b) If Trustee undertakes or defends any litigation arising in connection
with this Trust, Company agrees to indemnify Trustee against Trustee's costs,
expenses and liabilities (including, without limitation, attorneys' fees and
expenses) relating thereto and to be primarily liable for such distributions.
If Company does not pay such costs, expenses and liabilities in a reasonably
timely manner, Trustee may obtain payment from the Trust, including without
limitation by disposing of any Shares in the Trust not awarded to Participants.
(c) Trustee may consult with legal counsel (who may also be counsel for
Company generally) with respect to any of its duties or obligations hereunder.
(d) Trustee may hire agents, accountants, actuaries, investment advisors,
financial consultants or other professionals to assist it in performing any of
its duties or obligations hereunder.
(e) Trustee shall have, without exclusion, all powers conferred on
Trustees by applicable law, unless expressly provided otherwise herein.
(f) Notwithstanding any powers granted to Trustee pursuant to this Trust
Agreement or to applicable law, Trustee shall not have any power that could
give this Trust the objective of carrying on a business and dividing the gains
therefrom, within the meaning of section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Internal Revenue Code.
Section 10. Compensation of Trustee
Company shall pay all administrative and Trustee's fees and expenses. If
not so paid, the fees and expenses shall be paid from the Trust.
Section 11. Resignation and Removal of Trustee
(a) Trustee may resign at any time by written notice to Company, which
shall be effective 30 days after receipt of such notice unless Company and
Trustee agree otherwise.
(b) Trustee may be removed by the affirmative vote of a majority of the
Board of Directors on 30 days notice or upon shorter notice accepted by
Trustee.
(c) Upon a Change of Control, Trustee may not be removed by Company for
eighteen months.
(d) Upon resignation or removal of Trustee and appointment of a successor
Trustee, all assets shall subsequently be transferred to the successor Trustee.
The transfer shall be
-5-
<PAGE>
completed within 30 days after receipt of notice of resignation, removal or
transfer unless Company extends the time limit.
(e) If Trustee resigns or is removed, a successor shall be appointed, in
accordance with Section 12 hereof, by the effective date of resignation or
removal under paragraph(s) (a) or (b) of this section. If no such appointment
has been made, Trustee may apply to a court of competent jurisdiction for
appointment of a successor or for instructions. All expenses of Trustee in
connection with the proceeding shall be allowed as administrative expenses of
the Trust.
Section 12.
Appointment of Successor
(a) If Trustee resigns [or is removed] in accordance with Section 11(a) or
(b) hereof, the Board of Directors may appoint any third party, such as a bank
trust department or other party that may be granted corporate trustee powers
under state law, or an individual permitted to serve as trustee under state
law, as a successor to replace Trustee upon resignation or removal. The
appointment shall be effective when accepted in writing by the new Trustee, who
shall have all of the rights and powers of the former Trustee, including
ownership rights in the Trust Assets. The former Trustee shall execute any
instrument necessary or reasonably requested by Company or the successor
Trustee to evidence the transfer.
(b) The successor Trustee need not examine the records and acts of any
prior Trustee and may retain or dispose of existing Trust assets, subject to
Sections 7 and 8 hereof. The successor Trustee shall not be responsible for and
Company shall indemnify and defend the successor Trustee from any claim or
liability resulting from any action or inaction of any prior Trustee or from
any other past event, or any condition existing at the time it becomes
successor Trustee.
Section 13. Amendment
or Termination
(a) This Trust Agreement may be amended by a written instrument executed
by Trustee and Company, provided that no such amendment shall conflict with the
terms of the Plan or make the Trust revocable.
(b) The Trust shall not terminate until the date on which Plan
Participants are no longer entitled to benefits pursuant to the terms of the
Plan. Upon termination of the Trust any assets remaining in the Trust shall be
returned to Company.
(c) Upon written approval of Participants entitled to distribution of
benefits pursuant to the terms of the Plan, Company may terminate this Trust
prior to the time all benefit
-6-
<PAGE>
distributions under the Plan have been made. All assets in the Trust at
termination shall be returned to Company.
Section 14. Miscellaneous
(a) Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
(b) Benefits payable to Plan Participants under this Trust Agreement may
not be anticipated, assigned (either at law or in equity), alienated, pledged,
encumbered or subjected to attachment, garnishment, levy, execution or other
legal or equitable process.
(c) This Trust Agreement shall be governed by and construed in accordance
with the laws of Delaware.
Section 15. Effective Date
The effective date of this Trust Agreement shall be
March 4, 1997.
IN WITNESS WHEREOF, the Company has by its authorized officer
signed this agreement and affixed its seal and the Trustee has by its
appropriate officer signed this Agreement and affixed its seal on and as of the
day and year written below.
WITNESS NETLIVE COMMUNICATIONS, INC.
By:
---------------------------
Title: Chief Executive Officer
------------------------
WITNESS
- --------------------------- -------------------------------
Trustee
- --------------------------- -------------------------------
Trustee
- --------------------------- -------------------------------
Trustee
