CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is entered into as of February
17, 2000 between White Pine Software, Inc., a Delaware corporation (the
"Company"), and Arthur H. Bruno (the "Consultant").
BACKGROUND
The Consultant previously has served as an officer and director of the
Company for a number of years, and in those capacities has been granted options
to purchase shares of the Company's common stock.
The Consultant possesses an intimate knowledge of the business and affairs
of the Company and its policies, methods, personnel and operations.
The Company and the Consultant have agreed that the Consultant will provide
business consultation services to the Company in exchange for certain
modifications in the terms of options previously granted to the Consultant. The
Company and the Consultant wish to memorialize the terms under which the
consultant will provide services to the Company.
Now, Therefore, the Company and the Consultant hereby agree as follows:
1. TERM OF PERFORMANCE. The Consultant's term of performance under this
Agreement (the "Term") shall commence on February 17, 2000 and shall expire on
December 31, 2000, unless terminated earlier pursuant to Section 5.
2. SCOPE OF WORK. The Consultant shall provide general business
consultation services upon request of the Company from time to time during the
Term. In no event shall the Consultant's services exceed ten hours per week
without his prior consent.
3. PAYMENT. As sole and full consideration for the consulting services to
be provided hereunder, the Company and the Consultant hereby agree that the
terms of the following stock option agreements previously granted to the
Consultant shall be modified as set forth below:
(a) Option number 014, which is fully vested and exercisable to acquire
85,000 shares of the Company's common stock at a price of $0.50 per share,
shall remain exercisable until 15 days after the end of the Term.
(b) Option number 0573, which is partially vested and, when fully
vested, will be exercisable to acquire 35,000 shares of the Company's
common stock at a price of $1.875 per share, (i) shall continue to vest
through the termination of this Agreement, in accordance with the vesting
schedule currently set forth therein, and (ii) shall remain exercisable
until 15 days after the end of the Term.
4. CONFIDENTIALITY. The Consultant acknowledges that in the course of
performing services hereunder he will have access to confidential proprietary
information belonging to the Company and that improper taking, disclosure or use
of such confidential information would cause the Company substantial
loss, damage and irreparable harm. The Consultant agrees that he shall at all
times hold confidential all trade secrets, proprietary information, inventions
and developments, including customer lists, business plans and all other data or
information, (and any tangible evidence, record or representation thereof),
whether prepared, conceived or developed by an employee or consultant of the
Company (including himself) or received by the Company from an outside source,
that is in the possession of the Company and that is maintained in confidence by
the Company or might permit the Company or its clients or customers to obtain a
competitive advantage over competitors who do not have access to such
information (collectively, referred to herein as the "Confidential
Information"). During the Term, the Consultant shall use and disclose
Confidential Information only to the extent necessary to perform the services to
be provided hereunder and for the sole benefit of the Company, and, in any
event, shall not disclose any Confidential Information to any person or entity
outside the Company except as authorized pursuant to a written confidentiality
agreement supplied by the Company or with the prior written direction or written
permission of a duly authorized officer of the Company. The Consultant shall
not, except for one back-up copy where reasonably necessary to conduct the
business of the Company, copy any Confidential Information. The Consultant shall
not remove any copyright or proprietary notices from any Confidential
Information. After the Term, the Consultant shall not disclose to any person or
entity, or make use of, any Confidential Information without the prior written
permission of a duly authorized officer of the Company. This provision shall not
apply to any Confidential Information that the Company has voluntarily disclosed
to the public or has otherwise legally entered the public domain. The Consultant
understands that the Company has from time to time in its possession information
that is claimed by others to be proprietary and that the Company has agreed to
keep confidential. The Consultant agrees that all such information shall be
Confidential Information for purposes of this Agreement.
5. TERMINATION. The Company or the Consultant may terminate the Term in the
event of the breach by the other party of any term or condition of this
Agreement upon ten days' written notice to the breaching party. Notwithstanding
the foregoing, the Company may terminate the Term, effective immediately upon
providing written notice to the Consultant, if the Consultant breaches or
threatens to breach any provision of Section 4.
6. INDEPENDENT CONTRACTOR. The Consultant is an independent contractor and
assumes full responsibility for the payment of all taxes, including Social
Security, unemployment and withholding taxes, for himself and for all persons
engaged by him in the performance of the services hereunder. The Consultant
shall provide workers' compensation coverage and any insurance or other legally
required benefits for himself and all persons engaged by him in the performance
of the services hereunder. The Consultant shall not be entitled to any benefits,
coverages or privileges, including social security, unemployment, medical or
pension payments, made available to employees of the Company. The Consultant is
not and shall not represent himself as authorized to act on behalf of the
Company, except when specifically authorized to do so by the Company in writing.
7. GENERAL.
(a) AMENDMENT. This Agreement may not be amended, modified or supplemented
by the parties hereto in any manner, except by an instrument in writing signed
on behalf of each of the parties.
(b) NOTICES. Any notice, request, instruction or other document to be given
hereunder by any party to the other shall be in writing and delivered personally
or sent by certified mail, postage prepaid, by facsimile (with receipt
confirmed), or by courier service, as follows:
To the Company: White Pine Software, Inc.
542 Amherst Street
Nashua, New Hampshire 03063
Facsimile: (603) 883-7920
Attention: President and Chief Executive Officer
WITH A COPY TO:
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, Massachusetts 02109
Facsimile: (617) 832-7000
Attention: Mark L. Johnson
To the Consultant: Arthur H. Bruno
7 Melendy Hollow Drive
Amherst, New Hampshire 03031
or to such other address of a party as may be designated in writing by such
party, by a notice given as aforesaid.
(c) CONSTRUCTION. The headings in this Agreement are included only for
convenience and shall not affect the meaning or interpretation of this
Agreement. The words "herein" and "hereof" and other words of similar import
refer to this Agreement as a whole and not to any particular part of this
Agreement. The word "including" as used herein shall not be construed so as to
exclude any other thing not referred to or described. In computing any period of
time under this Agreement, the day from which the designated period of time
begins to run shall not be included; the last day of the period so computed
shall be included, unless it is not a business day, in which event the period
shall run until the end of the next day which is a business day.
(d) ENTIRE AGREEMENT, ASSIGNABILITY, ETC. This Agreement (i) constitutes
the entire agreement, and supersedes all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof, (ii) is not intended to confer upon any person other than
the parties hereto any rights or remedies hereunder, and (iii) shall not be
assignable by operation of law or otherwise. No provisions of this Agreement are
intended, nor shall be interpreted, to provide or create any third party
beneficiary rights or any other rights of any kind in any person other than the
parties to this Agreement.
(e) VALIDITY. The invalidity or unenforceability of any provisions of this
Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, each of which shall remain in full force and
effect.
(f) SURVIVAL. The Consultant's obligations under Section 4 shall survive
the expiration or termination of the Term, irrespective of the reasons for such
expiration or termination, and shall not in any way be modified, altered or
otherwise affected by such expiration or termination.
(g) GOVERNING LAW. This Agreement shall be governed by the laws of the
State of New Hampshire
In Witness Whereof, the parties hereto have executed this Agreement as of
February 17, 2000.
WHITE PINE SOFTWARE, INC. ARTHUR H. BRUNO
By: /S/ KILLKO A. CABALLERO /S/ ARTHUR H. BRUNO
Killko A. Caballero
President and Chief Executive Officer