AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 11, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
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 (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
542 AMHERST STREET
NASHUA, NEW HAMPSHIRE 03063
(603) 886-9050
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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KILLKO A. CABALLERO
Chief Executive Officer and President
WHITE PINE SOFTWARE, INC.
542 Amherst Street
Nashua, New Hampshire 03063
(603) 886-9050
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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COPIES TO:
MARK L. JOHNSON, ESQ.
RICHARD G. COSTELLO, ESQ.
FOLEY, HOAG & ELIOT LLP
One Post Office Square
Boston, Massachusetts 02109
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / / _________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / / __________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE
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Common stock, $.01 par value 150,000 shares $5.38 $807,000 $225
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(1) Estimated solely for the purpose of determining the registration fee.
In accordance with Rule 457(c) under the Securities Act of 1933, the
above calculation is based on the average of the high and low sale
prices reported in the consolidated reporting system of the Nasdaq
National Market on May 6, 1999.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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The information in this prospectus is not complete and may be changed. The
selling stockholder may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell securities, and the selling stockholder is
not soliciting offers to buy these securities, in any state where the offer or
sale is not permitted.
SUBJECT TO COMPLETION, DATED MAY 11, 1999
150,000 SHARES
WHITE PINE TECHNOLOGY, INC.
COMMON STOCK
The selling stockholder is offering 150,000 shares of our common stock. We will
not receive any of the proceeds from sales of shares by the selling stockholder.
Our common stock trades on the Nasdaq National Market under the symbol "WPNE."
On May 10, 1999, the last reported sale price of our common stock on the Nasdaq
National Market was $6.00 per share.
The selling stockholder may sell these shares from time to time on the Nasdaq
National Market or otherwise. It may sell the shares at prevailing market prices
or at prices negotiated with buyers. The selling stockholder will be responsible
for any commissions or discounts due to brokers or dealers. The amount of those
commissions or discounts will be negotiated before the sales. The selling
stockholder will reimburse us for all offering expenses we incur, which we
estimate will total $20,000.
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INVESTING IN THESE SHARES INVOLVES SIGNIFICANT RISKS.
SEE "RISK FACTORS" BEGINNING ON PAGE 4.
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THE SECURITIES AND EXCHANGE COMMISSION AND STATE SECURITIES REGULATORS HAVE NOT
APPROVED OR DISAPPROVED THESE SHARES OR DETERMINED IF THIS PROSPECTUS IS
TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
, 1999
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS. NEITHER WE
NOR THE SELLING STOCKHOLDER HAS AUTHORIZED ANYONE TO PROVIDE YOU WITH
INFORMATION DIFFERENT FROM THAT CONTAINED IN THIS PROSPECTUS. THE SELLING
STOCKHOLDER IS OFFERING TO SELL, AND SEEKING OFFERS TO BUY, SHARES OF COMMON
STOCK ONLY IN JURISDICTIONS WHERE OFFERS AND SALES ARE PERMITTED.
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TABLE OF CONTENTS
PAGE
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Prospectus Summary......................................................... 3
Risk Factors............................................................... 4
Use of Proceeds............................................................ 11
Selling Stockholder........................................................ 12
Plan of Distribution....................................................... 12
Legal Matters.............................................................. 13
Experts.................................................................... 14
Where You Can Find More Information........................................ 14
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Unless the context requires otherwise, "White Pine," "we," "us" and similar
terms refer to White Pine Software, Inc. and its subsidiary.
CLASSPOINT, CU-SEEME, MEETINGPOINT and WHITE PINE are our trademarks. This
prospectus also contains additional trademarks and trade names of other
companies.
2
PROSPECTUS SUMMARY
BECAUSE THIS IS ONLY A SUMMARY, IT DOES NOT CONTAIN ALL OF THE INFORMATION THAT
MAY BE IMPORTANT TO YOU. YOU SHOULD READ THE ENTIRE PROSPECTUS, INCLUDING "RISK
FACTORS" AND THE INFORMATION INCORPORATED BY REFERENCE, BEFORE DECIDING TO
INVEST IN SHARES OFFERED BY THIS PROSPECTUS.
WHITE PINE SOFTWARE, INC.
OUR BUSINESS: We develop, market and support multiplatform desktop
multimedia software that facilitates worldwide video and
audio communication and data collaboration across the
Internet, intranets, extranets and other networks using the
Internet protocol.
OUR PRODUCTS: Our group conferencing software products, CU-SeeMe and
MeetingPoint, create client-server solutions that allow
users to participate in real-time, multipoint, multimedia
conferences from the users' desktop computers, using
existing Internet, intranet and extranet connections. By
developing multimedia conferencing products that require no
proprietary hardware, we are able to offer multimedia
conferencing at a substantially lower price than vendors of
traditional hardware-based systems and thereby encourage
businesses and others to adopt multimedia conferencing as a
mass communication medium.
Building upon our core CU-SeeMe and MeetingPoint
technologies, we introduced ClassPoint, our distance
learning and training software, in April 1998. ClassPoint is
an instructor-controlled learning environment with
multipoint video and audio, instructor-led Web tours,
Web-based class set-up and scheduling, and whiteboard and
application sharing. We also offer desktop X Windows and
terminal emulation software that allows businesses and other
organizations to access data and applications residing on
host workstations, mini-computers and mainframe computers
from most widely used desktop operating systems.
OUR ADDRESS: Our principal executive offices are located at 542 Amherst
Street, Nashua, New Hampshire 03603. Our telephone number is
(603) 886-9050. Our website is located at www.wpine.com;
information contained in our website is not a part of this
prospectus.
THE OFFERING
COMMON STOCK
OFFERED: All of the 150,000 shares offered by this prospectus are
being sold by the selling stockholder. We issued these
shares as part of the purchase price for assets and
technology we acquired from the selling stockholder in July
1998.
USE OF PROCEEDS: We will not receive any of the proceeds from sales of shares
by the selling stockholder.
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RISK FACTORS
AN INVESTMENT IN SHARES OF OUR COMMON STOCK IS RISKY. YOU SHOULD CONSIDER
CAREFULLY THE FOLLOWING RISK FACTORS IN ADDITION TO THE REMAINDER OF THIS
PROSPECTUS, INCLUDING INFORMATION INCORPORATED BY REFERENCE, BEFORE PURCHASING
SHARES OFFERED BY THIS PROSPECTUS.
SOME OF THE INFORMATION IN THIS PROSPECTUS, INCLUDING INFORMATION INCORPORATED
BY REFERENCE, CONTAINS FORWARD-LOOKING STATEMENTS THAT INVOLVE SUBSTANTIAL RISKS
AND UNCERTAINTIES. YOU CAN IDENTIFY THESE STATEMENTS BY FORWARD-LOOKING WORDS
SUCH AS "MAY," "WILL," "EXPECT," "ANTICIPATE," "BELIEVE," "ESTIMATE," "CONTINUE"
AND SIMILAR WORDS. YOU SHOULD READ STATEMENTS THAT CONTAIN THESE WORDS CAREFULLY
BECAUSE THEY (1) DISCUSS OUR FUTURE EXPECTATIONS, (2) CONTAIN PROJECTIONS OF OUR
FUTURE OPERATING RESULTS OR FINANCIAL CONDITION OR (3) STATE OTHER
FORWARD-LOOKING INFORMATION. WE BELIEVE IT IS IMPORTANT TO COMMUNICATE CERTAIN
OF OUR EXPECTATIONS TO OUR INVESTORS. THERE MAY BE EVENTS IN THE FUTURE,
HOWEVER, THAT WE ARE NOT ACCURATELY ABLE TO PREDICT OR OVER WHICH WE HAVE NO
CONTROL. THE RISK FACTORS LISTED IN THIS SECTION, AS WELL AS ANY OTHER
CAUTIONARY LANGUAGE IN THIS PROSPECTUS, PROVIDE EXAMPLES OF RISKS, UNCERTAINTIES
AND EVENTS THAT MAY CAUSE OUR ACTUAL RESULTS TO DIFFER MATERIALLY FROM THE
EXPECTATIONS WE DESCRIBE IN OUR FORWARD-LOOKING STATEMENTS. BEFORE YOU INVEST IN
OUR COMMON STOCK, YOU SHOULD BE AWARE THAT THE OCCURRENCE OF ANY OF THE EVENTS
DESCRIBED IN THESE RISK FACTORS AND ELSEWHERE IN THIS PROSPECTUS, INCLUDING
INFORMATION INCORPORATED BY REFERENCE, COULD HAVE A MATERIAL ADVERSE EFFECT ON
OUR BUSINESS, FINANCIAL CONDITION AND RESULTS OF OPERATIONS. IN SUCH CASE, THE
TRADING PRICE OF OUR COMMON STOCK COULD DECLINE AND YOU COULD LOSE ALL OR PART
OF YOUR INVESTMENT.
WE MAY NOT BE PROFITABLE IN THE FUTURE
We may never generate significant revenue or be profitable. Since we began
operations, we have incurred substantial losses. In fiscal 1998 we incurred a
net loss of $8,424,000, and in fiscal 1997 we incurred a net loss of $6,826,000.
In the fiscal quarter ended April 2, 1999, we incurred a net loss of $1,304,000.
We expect to incur substantial losses for the foreseeable future, because we
intend to continue investing heavily in the development and marketing of
MeetingPoint and related follow-on applications such as ClassPoint. We expect
that the dollar amount of sales of our legacy connectivity products will
continue to decline for the foreseeable future. Sales of our legacy connectivity
products comprised 22% of total revenue in the fiscal quarter ended April 2,
1999, 29% of total revenue in fiscal 1998 and 35% of total revenue in fiscal
1997. In addition, we expect that revenue from CU-SeeMe will not increase
substantially, and may decrease, during the foreseeable future. We cannot be
certain that sales of MeetingPoint, ClassPoint and other new products will
offset any declines in revenue from CU-SeeMe and our legacy connectivity
products in the remainder of fiscal 1999 or later years.
WE MUST RAISE CAPITAL IN FISCAL 1999
We expect that we will need to raise capital in fiscal 1999, either through a
private or public offering of debt or equity or as part of a strategic
partnership or joint venture. Our cash and cash equivalents decreased
substantially during fiscal 1998 and the first quarter of fiscal 1999, from
$14,704,000 at December 31, 1997 to $4,574,000 at April 2, 1999. We continue to
experience a significant negative cash flow each month.
We cannot assure you that financing will be available on acceptable terms or at
all. If we are unable to raise funds, we may be unable to support our projected
operations and may be required to defer, for a period of time or indefinitely,
our research and development activities or our continued roll out of new
products and product versions. We have effected two focused personnel reductions
during the past two fiscal years in order to control costs, and we may be
required to effect further reductions if we are unsuccessful in raising
additional capital during
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fiscal 1999. Our capital requirements may vary materially from those we now
anticipate depending on a number of factors, including:
- the level of our research and development activities;
- the rate of market acceptance of our software offerings; and
- the success of our sales, marketing and distribution strategy.
If we do not meet our goals with respect to revenue or if our costs are higher
than anticipated, substantial additional funds may be required.
WE FACE INTENSE COMPETITION FROM MANY PARTICIPANTS IN THE GROUP CONFERENCING
INDUSTRY
The market for multimedia conferencing products and services is extremely
competitive. Because the barriers to entry in the multimedia conferencing market
are relatively low and the potential market is large, we expect continued growth
in the industry and the entrance of new competitors in the future. Our
competitors vary among our different group conferencing products:
- In offering CU-SeeMe, we compete, or expect to compete, with (a)
traditional hardware-based videoconferencing companies such as
PictureTel and VTEL, (b) vendors of operating systems and browsers such
as Microsoft, which offers NetMeeting, a product that competes directly
with CU-SeeMe and is bundled with Windows 98, (c) group conferencing
support companies such as VideoServer, Lucent Technologies and Accord
and (d) distance learning solution vendors such as Centra Software and
Lotus.
- A number of companies have announced multimedia conferencing server
products that compete directly with MeetingPoint, including PictureTel,
VideoServer and RADVision.
- ClassPoint competes with other distance learning and distance training
products, including (a) Contigo Itinerary, which features Web-based
Java PowerPoint delivery, (b) Lotus LearningSpace, which has
Domino-based materials delivery and asynchronous discussions, (c)
RealNetworks, which provides for one-to-many streaming video and media,
(d) PlaceWare Auditorium, which delivers interactive presentations to
multiple sites, and (e) Ilinc's LearnLinc, which has
instructor-controlled, multipoint audio and Web tours, with
point-to-point video supplied by Intel at an additional cost.
Many of our current and potential competitors in the multimedia conferencing
market, particularly Intel, Microsoft, PictureTel and VideoServer, have
significantly longer operating histories and significantly greater managerial,
financial, marketing, technical and other competitive resources, as well as
greater name recognition, than we do. As a result, these companies may be able
to adapt more quickly to new or emerging technologies and changes in customer
requirements and may be able to devote greater resources to the promotion and
sale of their conferencing products and services.
As a result, we cannot assure you that we will be able to compete successfully
with existing or new competitors in the multimedia conferencing market. We
believe that our ability to compete successfully in this market will depend on a
number of factors both within and outside our control, including:
- the adoption and evolution of industry standards;
- the pricing policies of our competitors and suppliers;
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- the timing of the introduction of new software products and services
by us and our competitors; and
- our ability to hire and retain highly qualified employees.
To remain competitive in the multimedia conferencing market, we must continue to
invest heavily in research and development and in sales and marketing. We may
not have sufficient resources to make those investments, or we may not be able
to make the technological advances necessary to continue to be competitive. In
addition, current and potential competitors have established or may establish
collaborative relationships among themselves and with third parties to increase
the visibility and utility of their products and services. Accordingly, it is
possible that new competitors or alliances may emerge and rapidly acquire a
significant market share, which could have a material adverse effect on our
business.
WE MUST MARKET MEETINGPOINT AND CLASSPOINT SUCCESSFULLY
We expect that sales of our legacy connectivity products will decline during the
foreseeable future and that sales of CU-SeeMe will not increase significantly,
and may decline, during the foreseeable future. As a result, our future success
will depend significantly on our ability to market MeetingPoint and ClassPoint.
MeetingPoint was first released in November 1997 and ClassPoint was first
released in April 1998, and we have had only a limited opportunity to determine
the extent to which these software products will succeed in the marketplace.
Moreover, the market for these products is developing and changing rapidly, and
there is a high level of uncertainty about the demand for and market acceptance
of these products.
In the longer term, our success will also depend upon our ability to develop and
introduce additional products based on our core technology and to continue to
improve the performance, features and reliability of our products, including
MeetingPoint and ClassPoint. We cannot assure you that we will be successful in
introducing these new and improved products, particularly if our limited capital
requires us to reduce our projected research and development activities.
OUR QUARTERLY RESULTS MAY FLUCTUATE AND CAUSE THE PRICE OF OUR COMMON STOCK TO
FALL
Our quarterly revenue and operating results are difficult to predict and have
fluctuated significantly from quarter to quarter. If our quarterly revenue or
operating results fall below the expectations of investors or public market
analysts, the price of our common stock could fall substantially. Our quarterly
operating results may vary significantly depending on a number of factors, some
of which are outside of our control. These factors include:
- the timing of the introduction or acceptance of new products offered
by us or our competitors;
- changes in demand for Internet services;
- changes in the mix of products sold by us;
- announcements of new products, services or technologies by us or our
competitors that cause customers to defer or cancel purchases of our
products;
- changes in pricing strategies by us or our competitors;
- changes in regulations affecting the multimedia conferencing industry;
and
- changes in currency exchange rates.
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As a result of these factors, we may not be able to predict our operating
results accurately. In addition, MeetingPoint and ClassPoint continue to undergo
long evaluation and sale cycles by potential users. The lengths of these cycles,
combined with the newness of these software products, make it particularly
difficult for us to predict the amount and timing of revenue from these
products.
We base our expense levels on our product development plans and our estimates of
future revenue. To a large extent, our expenses are fixed. We may be unable to
adjust our spending in time to compensate for any unexpected revenue shortfall,
thus magnifying the adverse effect of any revenue shortfall.
WE RELY ON TWO DISTRIBUTORS FOR A SIGNIFICANT PORTION OF OUR TOTAL REVENUE
Sales to Ingram Micro represented 26% of our total revenue in fiscal 1998 and
14% of our total revenue in fiscal 1997. Sales to Tech Data represented 14% of
our total revenue in fiscal 1997. The loss of, or a significant curtailment of
purchases by, these distributors, including a loss or curtailment due to factors
outside of our control, would have a material adverse effect on our business.
WE MAY BE UNABLE TO PROTECT OUR PROPRIETARY TECHNOLOGY
Our business could be seriously harmed if we are unable to protect adequately
our proprietary software and our other proprietary intellectual property rights.
We may be unable to deter misappropriation of our proprietary technology, detect
unauthorized use and take appropriate steps to enforce our intellectual property
rights. Our competitors could, without violating our proprietary rights, develop
technologies that are as good as or better than our technology.
Our multimedia conferencing products are licensed to customers under "shrink
wrap" licenses included as part of the product packaging. In most cases our
shrink wrap licenses are not negotiated with or signed by individual licensees.
Some of the provisions of our shrink wrap licenses, including provisions
limiting our liability and protecting us against unauthorized use, copying,
transfer and disclosure of the licensed program, may be unenforceable under the
laws of certain jurisdictions. Also, we have delivered technical data and
information relating to CU-SeeMe and MeetingPoint to the United States
government, and as a result, the United States government may have unlimited
rights to use the technical data and information or to authorize others to use
the technical data and information. We can not assure you that the United States
government will not authorize others to use our technical data and information
for purposes competitive with our products. In addition, the laws of some
foreign countries do not protect our proprietary rights to the same extent as do
laws in the United States.
Because the protection of intellectual property rights is often critically
important to the success of companies in the multimedia conferencing industry,
our competitors or others could assert claims that our technologies infringe
their proprietary rights. From time to time, we have received and may receive in
the future notice of claims of infringement of other parties' proprietary
rights. Many participants in the software industry have an increasing number of
patents and have frequently demonstrated a readiness to commence litigation
based on allegations of patent or other intellectual property infringement. For
example, a third party has objected to our use of the name "MeetingPoint." We
may not have the financial resources necessary to pursue any resulting
litigation to a final judgment, and we may not prevail in any litigation. In
defending against such litigation, we could incur significant legal and other
expenses and our management could be distracted from our principal business
operations. If any party making a claim against us were to prevail in litigation
against us, we may have to pay substantial damages. The court could also grant
injunctive or other equitable relief that could prevent us from offering our
products and services without a license or other permission from others. Any of
these outcomes could seriously harm our business.
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WE FACE ADDITIONAL RISKS FROM OUR INTERNATIONAL OPERATIONS
Our international business involves a number of risks that could hurt our
operating results or contribute to fluctuations in those results. Our revenue
from international sales represented 27% of our total revenue during the fiscal
quarter ended April 2, 1999, 26% of our total revenue during fiscal 1998 and 27%
of our total revenue during fiscal 1997. We intend to seek opportunities to
expand our product and service offerings into additional international markets,
although we cannot be certain that we will succeed in developing localized
versions of our products for new international markets or in marketing or
distributing products and services in those markets.
The majority of our sales are currently denominated in U.S. dollars, but there
can be no assurance that a significantly higher level of future sales will not
be denominated in foreign currencies. To the extent we make sales denominated in
currencies other than U.S. dollars, fluctuations in exchange rates may render
our products less competitive relative to local product offerings or result in
foreign exchange losses. We have no experience in implementing hedging
techniques that might minimize our risks from exchange rate fluctuations.
Our international business also involves a number of other difficulties and
risks, including risks associated with: changing economic conditions in foreign
countries; export restrictions; export controls relating to technology;
compliance with existing and changing regulatory requirements; tariffs and other
trade barriers; difficulties in staffing and managing international operations;
longer payment cycles; problems in collecting accounts receivable; software
piracy; political instability; seasonal reductions in business activity in
Europe and certain other parts of the world during the summer months; and
potentially adverse tax consequences.
OUR SYSTEMS MAY NOT BE YEAR 2000 COMPLIANT
Many currently installed computer systems and software products only accept two
digits to identify the year in any date. These systems and products might
interpret the year 2000 as 1900. This could result in system failures, delays or
miscalculations. Systems or software that have not been developed or enhanced
recently may need to be upgraded or replaced to comply with Year 2000
requirements.
Our computer systems and software products may not be fully Year 2000 compliant.
Based on our Year 2000 testing program, we believe that the portions of our
systems and software that we have developed are Year 2000 compliant. We have not
received Year 2000 readiness statements from a number of our system vendors. In
the event that vendors are not fully year 2000 compliant prior to December 31,
1999, we could experience disruption and delays that could have a material
adverse impact on operations. We have determined that some of our older legacy
connectivity products are not Year 2000 compliant. We expect to discontinue
sales of these products. In addition, certain of the third-party software or
hardware used by our customers in conjunction with our software products may not
be Year 2000 compliant. For example, the host computers to which our legacy
connectivity products are connected may not be Year 2000 compliant.
Based upon our testing to date, we do not expect that our business will be
materially adversely affected by any failure of third-party software or hardware
to interpret Year 2000 data correctly. We cannot be certain, however, that we
will not be required to make significant expenditures as the result of Year
2000.
OUR SOFTWARE PRODUCTS MAY CONTAIN UNDETECTED DEFECTS
Software developed and incorporated by us may contain significant undetected
errors when first released or as new versions are released. Although we test our
software before commercial release, we cannot be certain that errors in the
software will not be found after customers begin to use the software. Our
current versions of CU-SeeMe and MeetingPoint were released in the last six
months. These releases correct a number of errors in prior releases, support
relevant standards and incorporate new features. Any defects in these versions
of CU-SeeMe or MeetingPoint or in ClassPoint may result in significant decreases
in revenue or increases in expenses because of
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adverse publicity, reduced orders, product returns, uncollectible accounts
receivable, delays in collecting accounts receivable, and additional and
unexpected costs of further product development to correct the defects.
OUR SUCCESS DEPENDS ON THE PERFORMANCE OF PARTICIPANTS IN OUR DISTRIBUTION
CHANNELS
We market our group conferencing products by forming channel relationships in
key markets with major distributors. We also license our group conferencing
products to original equipment manufacturers, value-added resellers and
additional distributors for bundling with their products and services. We expect
that our future success will depend in large part upon these original equipment
manufacturers, value-added resellers and distributors. The performance of these
original equipment manufacturers, value-added resellers and distributors is
outside our control, and we are unable to predict the extent to which these
organizations will be successful in marketing and selling our group conferencing
products or products incorporating our group conferencing products. We cannot
assure you that we will be successful in establishing relationships with
original equipment manufacturers, value-added resellers and distributors, and if
we fail, our business could be seriously harmed.
Our distributors typically carry the products of some of our competitors of
White Pine. The distributors have limited capital to invest in inventory, and
their decisions to purchase our products and, in the case of retail stores, to
give them critical shelf space, are partly a function of pricing, terms and
special promotions offered by our competitors, which we cannot predict or
control.
We distribute certain of our products directly over the Internet. By
distributing our products over the Internet, we may increase the likelihood of
unauthorized copying and use of our software.
GOVERNMENT REGULATION AND LEGAL UNCERTAINTIES MAY ADVERSELY AFFECT OUR BUSINESS
The increasing popularity of the Internet may lead to significant government
regulation of video and voice communications over the Internet, which could
adversely affect our business. Several foreign countries currently prohibit
Internet telephony, and other foreign countries regulate the use of Internet
telephony. In particular, efforts by the federal government, including the FCC,
to prohibit or regulate Internet telephony could seriously harm our business.
Several efforts have been made to enact federal legislation that would regulate
services provided over the Internet. State public utility commissions may also
retain jurisdiction to regulate the provision of intrastate Internet telephony
services, and could initiate proceedings to do so. The regulations could relate
to content distribution, performance and copying, network security, encryption,
the use of key escrow data, privacy protection, caching of content, electronic
authentication of identity, illegal, obscene or indecent content, access charges
and retransmission activities.
The FCC currently is considering whether to regulate or impose surcharges on
providers of Internet telephony services. Any such regulation or charges could
substantially reduce the advantages that Internet telephony has over traditional
telephony, and could dramatically reduce the use of the Internet for video and
voice communications. These changes could substantially reduce demand for our
products and services and could seriously harm our business.
In April 1998, the FCC indicated in a report to Congress that it would examine
the question of whether any forms of "phone-to-phone" Internet telephony are
information services or telecommunications services. The FCC further indicated
that it had not then developed an adequate record on which to make any
definitive pronouncements, but that the record before it suggested that some
forms of phone-to-phone Internet telephony appear to have the same functionality
as non-Internet telecommunications services. A February 1999 ruling by the FCC
further suggested that the FCC may begin to regulate Internet telephony
providers as traditional telecommunications companies. If the FCC determines
that any forms of Internet telephony services are subject to FCC regulations as
telecommunications services, the FCC may require Internet service providers to
make universal service
9
contributions, pay access charges or comply with traditional common carrier
regulations. Any of these developments could have an adverse effect on our
business.
In addition, the application of other laws to the Internet is uncertain and may
take years to resolve, particularly with respect to property ownership, user
privacy, freedom of expression, pricing, characteristics and quality of products
and services, taxation, advertising, intellectual property rights, information
security and the convergence of traditional telecommunications services with
Internet communications. We cannot predict the manner in which these laws may be
applied to the Internet. These or other laws could subject us or our customers
to potential liability or could decrease the growth of the Internet, either of
which could have an adverse effect on our business.
THE MARKET PRICE OF OUR COMMON STOCK MAY BE VOLATILE
The market price of our common stock may be volatile for many reasons,
including:
- actual or anticipated variations in our revenue and operating results;
- announcements of the development of improved technology;
- changes in estimates of our financial performance, or the dropping of
coverage, by securities analysts;
- conditions and trends in the Internet and group conferencing
industries;
- adoption of new accounting standards; and
- general market conditions.
Recently the stock markets have experienced extreme price and volume
fluctuations that have dramatically affected the market prices of the stocks of
many technology companies, particularly companies associated with the Internet.
These fluctuations often have been unrelated or disproportionate to the
operating performance of those companies. These factors may adversely affect the
market price of our common stock.
VOLATILITY IN OUR STOCK PRICE MAY LEAD TO LITIGATION
Stockholders frequently commence securities class action litigation against a
company after a significant decrease in the company's stock price. If our stock
price drops and our stockholders commence litigation against us, we could incur
significant legal and other expenses defending the litigation and our management
could be distracted from our principal business operations. Either of these
outcomes could seriously harm our business.
DELAWARE LAW AND OUR CHARTER DOCUMENTS CONTAIN ANTI-TAKEOVER AND INDEMNIFICATION
PROVISIONS THAT MAY ADVERSELY AFFECT STOCKHOLDERS
Delaware corporate law and our charter documents contain provisions that could
delay or prevent a change of control, merger or other form of takeover that our
stockholders might find attractive. Certain of these provisions:
- prohibit us from engaging in certain types of business combinations
with certain "interested stockholders" for a period of three years
after the date of the transaction in which the person becomes an
interested stockholder, unless the business combination is approved in
a prescribed manner;
- provide that stockholders may act only at meetings of stockholders and
not by written consent in lieu of a stockholders' meeting;
10
- provide that special meetings of our stockholders may be called by our
President and must be called by our President or Secretary at the
written request of a majority of the directors;
- provide that nominations for directors may not be made by a stockholder
at any annual or special meeting thereof unless the stockholder
intending to make a nomination notifies us of its intentions a
specified number of days in advance of the meeting and furnishes us
with certain information regarding itself and the intended nominee;
- require a stockholder to provide our Secretary with advance notice
of business to be brought by the stockholder before any annual or
special meeting of stockholders as well as certain information
regarding the stockholder and others known to support such proposal and
any material interest they may have in the proposed business; and
- authorize our board to cause us to issue shares of common stock and
preferred stock that, if issued, could dilute and adversely affect
various rights of the holders of our common stock and, in addition,
could be used to discourage an unsolicited attempt to acquire control
of White Pine.
These provisions could limit the price that investors will pay for shares of our
common stock.
Our charter documents require us to indemnify our officers and directors against
certain liabilities and expenses that they may incur while defending lawsuits
brought against them as officers or directors. In most cases, these
indemnification provisions will prevent our stockholders from recovering damages
from our officers and directors for their acts or omissions on our behalf.
USE OF PROCEEDS
All of the shares of common stock offered by this prospectus are being offered
by the selling stockholder. For information about the selling stockholder, see
"Selling Stockholder."
We will not receive any proceeds from sales of these shares. The selling
stockholder will reimburse us for all offering expenses we incur, which we
estimate will total $20,000.
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SELLING STOCKHOLDER
The selling stockholder, Labtam Communications Pty. Ltd., is offering 150,000 of
the shares it received as payment for assets and technology we purchased from it
on July 8, 1998.
The following table sets forth certain information with respect to the
beneficial ownership of our common stock by the selling stockholder as of May
10, 1999 and as adjusted to reflect the sale of the shares of common stock
offered by this prospectus.
SHARES TO BE
SHARES BENEFICIALLY OWNED
BENEFICIALLY OWNED NUMBER AFTER OFFERING IF
PRIOR TO OFFERING OF SHARES ALL SHARES SOLD
--------------------- BEING ---------------------
NAME AND ADDRESS NUMBER PERCENT OFFERED NUMBER PERCENT
- ------------------- ---------- -------- ---------- --------- ---------
Labtam Communications Pty. Ltd.
Dawson N. Johns and Anthony J. Oxley.................... 900,000 8.5% 150,000 750,000 7.1%
33 Malcolm
Braeside, Victoria, Australia
The percentage of beneficial ownership is based on 10,549,125 shares of common
stock outstanding as of the close of business on May 10, 1999.
The information reported regarding the selling stockholder, Dawson N. Johns
and Anthony J. Oxley relates to shares issued to the selling stockholder in
exchange for assets and technology sold to us in July 1998. The selling
stockholder is controlled by Messrs. Johns and Oxley. The information includes
225,000 shares subject to certain escrow arrangements, which will not terminate
until July 8, 1999.
PLAN OF DISTRIBUTION
The shares offered by this prospectus may be sold by the selling stockholder
from time to time. The selling stockholder may sell the shares on the Nasdaq
National Market or otherwise, at market prices or at negotiated prices. It may
sell shares by one or a combination of the following:
- a block trade in which a broker or dealer will attempt to sell the
shares as agent, but may position and resell a portion of the block as
principal to facilitate the transaction;
- purchases by a broker or dealer as principal and resale by the broker
or dealer for its account pursuant to this prospectus; and
- ordinary brokerage transactions and transactions in which a broker
solicits purchasers.
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In effecting sales, brokers or dealers engaged by the selling stockholder may
arrange for other brokers or dealers to participate. Brokers or dealers will
receive commissions or discounts from selling stockholders in amounts to be
negotiated prior to the sale. The selling stockholder and any broker-dealers
that participate in the distribution may be deemed to be "underwriters" within
the meaning of Section 2(11) of the Securities Act of 1933, and any proceeds or
commissions received by them, and any profits on the resale of shares sold by
broker-dealers, may be deemed to be underwriting discounts and commissions.
If the selling stockholder notifies us that a material arrangement has been
entered into with a broker-dealer for the sale of shares through a block trade,
special offering, exchange distribution or secondary distribution or a purchase
by a broker or dealer, we will file a prospectus supplement, if required by Rule
424(c) under the Securities Act of 1933, setting forth:
- the name of each participating broker-dealer,
- the number of shares involved,
- the price at which the shares were sold,
- the commissions paid or discounts or concessions allowed to the
broker-dealers, where applicable,
- a statement to the effect that no broker-dealer conducted any
investigation to verify the information set out or incorporated by
reference in this prospectus, and
- any other facts material to the transaction.
The selling stockholder has entered into an agreement with us in which it
agreed that it would not, directly or indirectly, transfer or otherwise
dispose of any shares of our common stock prior to December 31, 1999, except
for:
- the sale of shares of common stock offered by this prospectus,
- the sale of up to 150,000 additional shares of common stock during
the period beginning July 8, 1999 and ending September 31, 1999,
- the sale of up to 150,000 additional shares of common stock during
the period beginning October 1, 1999 and ending December 31, 1999, and
- any other transaction effected with our prior written consent.
LEGAL MATTERS
Foley, Hoag & Eliot LLP, Boston, Massachusetts, has advised us with respect to
the validity of the shares of common stock offered by this prospectus.
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EXPERTS
Our consolidated balance sheets as of December 31, 1997 and 1998 and our related
consolidated statements of operations, stockholders' equity and cash flows for
the years ended December 31, 1997 and 1998 incorporated by reference in this
prospectus from our Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1998 have been audited by Ernst & Young LLP, independent public
accountants, to the extent and for the periods indicated in their reports
included in that Form 10-KSB, and are incorporated by reference in this
prospectus in reliance upon the authority of Ernst & Young LLP as experts in
giving those reports.
WHERE YOU CAN FIND MORE INFORMATION
We file annual reports, quarterly reports, current reports, proxy statements and
other information with the Securities and Exchange Commission. You may read and
copy our Securities and Exchange Commission filings at the Securities and
Exchange Commission's public reference room at 450 Fifth Street, N.W.,
Washington D.C. 20549. You may call the Securities and Exchange Commission at
1-800-SEC-0330 for further information about the public reference room. Our
Securities and Exchange Commission filings also are available on the Securities
and Exchange Commission's website at http://www.sec.gov.
The Securities and Exchange Commission allows us to "incorporate by reference"
information from certain of our other Securities and Exchange Commission
filings. This means that we can disclose information to you by referring you to
those other filings, and the information incorporated by reference is considered
to be part of this prospectus. In addition, certain information that we file
with the Securities and Exchange Commission after the date of this prospectus
will automatically update, and in some cases supersede, the information
contained or otherwise incorporated by reference in this prospectus. We are
incorporating by reference the information contained in the following Securities
and Exchange Commission filings:
- our Annual Report on Form 10-KSB for the fiscal year ended December
31, 1998 (as filed on March 31, 1999);
- the description of our common stock contained in our Registration
Statement on Form 8-A (as filed on September 23, 1996); and
- any filings we make with the Securities and Exchange Commission under
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934 after the date of this prospectus (information in these filings
will be incorporated as of the filing date).
You may request copies of these filings, at no cost, by writing or telephoning
our Chief Financial Officer and Vice President of Finance:
White Pine Software, Inc.
542 Amherst Street
Nashua, New Hampshire 03603
Telephone: (603) 886-9050
This prospectus is part of a Registration Statement on Form S-3 we filed with
the Securities and Exchange Commission under the Securities Act of 1933. This
prospectus does not contain all of the information contained in the Registration
Statement.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses to be paid by the selling
stockholder in connection with the issuance and distribution of the shares of
common stock being registered. All amounts shown are estimates except for the
Securities and Exchange Commission registration fee. The selling stockholder
will pay, either directly or by reimbursing the Registrant, all expenses in
connection with the distribution of the shares of common stock being sold,
including any commissions or discounts due to any broker or dealer in connection
with sales of shares offered by this prospectus.
Securities and Exchange Commission registration fee ...... $ 225
Accounting fees and expenses ............................. 2,500
Legal fees and expenses .................................. 12,500
Printing, EDGAR formatting and mailing expenses .......... 1,000
Miscellaneous ............................................ 3,775
-------
Total ............................................ $20,000
-------
-------
ITEM 15. 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 Registrant's Amended and
Restated Certificate of Incorporation provides that the Registrant shall
indemnify each person who at any time is, or shall have been, a director or
officer of the Registrant, 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 is, or
was, a director or officer of the Registrant, or is or was serving at the
request of the Registrant 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 (a) any breach of the
director's duty of loyalty to the 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. Article NINTH of the Registrant's Amended and Restated Certificate of
Incorporation provides that to the maximum extent permitted by the Delaware
General Corporation Law, no director of the Registrant shall be personally
liable to the Registrant or to any of its stockholders for monetary damages
arising out of such director's breach of fiduciary duty as a director of the
Registrant. No amendment to or repeal of the provisions of Article NINTH shall
apply to or have any effect of the liability or the alleged liability of any
director of the Registrant 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
Registrant's directors for monetary damages arising from breaches of their duty
of care, unless the breach involves one of the four exceptions described in (a)
through (d) above.
II-1
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
Registrant intends to procure a directors' and officers' liability and company
reimbursement liability insurance policy that will (a) insure directors and
officers of the Registrant against losses (above 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) insure the Registrant against
losses (above a deductible amount) arising from any such claims, but only if the
Registrant is required or permitted to indemnify such directors or officers for
such losses under statutory or common law or under provisions of the
Registrant's Amended and Restated Certificate of Incorporation or By-Laws.
ITEM 16. EXHIBITS
EXHIBIT NO.
- -----------
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 Powers of Attorney (included on page II-4)
ITEM 17. UNDERTAKINGS
(a) The undersigned 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;
(i) To include any prospectus required to 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 (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8, or Form
F-3, and 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 in
this 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.
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(b) 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 that is incorporated by reference to
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 the initial bona fide
offering thereof.
(c) 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.
II-3
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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Nashua, State of New Hampshire, as of May 3, 1999.
WHITE PINE SOFTWARE, INC.
By /s/ Killko A. Caballero
-------------------------
KILLKO A. CABALLERO
Chief Executive Officer and President
POWER OF ATTORNEY
We, the undersigned officers and directors of White Pine Software, 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-3 filed herewith and any and all
pre-effective and post-effective amendments to said Registration Statement and
generally to do all such things in our names and on our behalf in our capacities
as officers and directors to enable White Pine Software, Inc. to comply with the
provisions of the Securities Act of 1933 and all requirements of the Securities
and Exchange Commission, hereby ratifying and confirming our signatures as they
may be signed by our 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 May 3, 1999.
SIGNATURE TITLE
--------- -----
/s/ Killko A. Caballero Chief Executive Officer, President and Director
- ------------------------------------------------------ (Principal Executive Officer)
KILLKO A. CABALLERO
/s/ Christine J. Cox Chief Financial Officer and Vice President of
- ------------------------------------------------------ Finance (Principal Financial and Accounting Officer)
CHRISTINE J. COX
/s/ Arthur H. Bruno Chairman of the Board and Director
- ------------------------------------------------------
ARTHUR H. BRUNO
/s/ Jonathan G. Morgan Director
- ------------------------------------------------------
JONATHAN G. MORGAN
/s/ Adam Stettner Director
- ------------------------------------------------------
ADAM STETTNER
II-4