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Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Object Design, Inc.
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(Exact name of issuer as specified in its charter)
Delaware 02-0424252
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
25 Mall Road, Burlington, Massachusetts 01803
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(Address of principal executive offices) (Zip Code)
1996 INCENTIVE AND NONQUALIFIED STOCK OPTION PLAN
1989 INCENTIVE AND NONQUALIFIED STOCK OPTION PLAN
1995 NONQUALIFIED STOCK OPTION PLAN
1996 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
Robert N. Goldman
President
Object Design, Inc.
25 Mall Road
Burlington, Massachusetts 01803
(617) 674-5000
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(Name and address, including zip code, and
telephone number, including area code, of agent for service)
WITH A COPY TO:
John D. Patterson, Jr., Esquire
Robert W. Sweet, Jr., Esquire
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, Massachusetts 02109
(617) 832-1000
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<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
=================================================================================
Proposed
Title of Proposed Maximum
Securities Amount Maximum Aggregate Amount of
to be to be Offering Price Offering Registration
Registered Registered Per Share Price Fee
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<S> <C> <C> <C> <C>
Common Stock 243,550 $10.01(1) $ 2,437,936(1) $ 739(1)
(par value $0.001) shares
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Common Stock 2,456,450 $12.25(2) $30,091,513(2) $9,119(2)
(par value $0.001) shares
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Common Stock 2,309,682 $ 1.25(3) $ 2,887,103(3) $ 875(3)
(par value $0.001) shares
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Common Stock 885,625 $ 0.26(4) $ 230,263(4) $ 70(4)
(par value $0.001) shares
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</TABLE>
<PAGE> 2
<TABLE>
<CAPTION>
Proposed
Title of Proposed Maximum
Securities Amount Maximum Aggregate Amount of
to be to be Offering Price Offering Registration
Registered Registered Per Share Price Fee
- ---------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 300,000 $10.41(5) $ 3,123,000(5) $ 946(5)
(par value $0.001) shares
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Totals 6,195,307 ---- $38,769,815 $11,749
- ---------------------------------------------------------------------------------
<FN>
(1) For shares issuable pursuant to stock options outstanding under the
1996 Incentive and Nonqualified Stock Option Plan at October 21, 1996,
calculated pursuant to Rule 457(h) based on the exercise price of such options.
(2) For shares issuable pursuant to stock options available for grant
under the 1996 Incentive and Nonqualified Stock Option Plan at October 21, 1996,
estimated pursuant to Rule 457 (c) and (h) based on the average of the high and
low prices of the Common Stock as reported on the National Association of
Securities Dealers Automated Quotation National Market System on October 21,
1996.
(3) For shares issuable pursuant to stock options outstanding under the
1989 Incentive and Nonqualified Stock Option Plan at October 21, 1996,
calculated pursuant to Rule 457(h) based on the exercise price of such options.
(4) For shares issuable pursuant to stock options outstanding under the
1995 Nonqualified Stock Option Plan at October 21, 1996, calculated pursuant to
Rule 457(h) based on the exercise price of such options.
(5) For shares issuable pursuant to stock options available for grant
under the 1996 Employee Stock Purchase Plan at October 21, 1996, estimated
pursuant to Rule 457 (c) and (h) based on 85% of the average of the high and low
prices of the Common Stock as reported on the National Association of Securities
Dealers Automated Quotation National Market System on October 21, 1996.
</TABLE>
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") are incorporated in this Registration Statement by reference:
(a) the Prospectus dated July 23, 1996 of Object Design, Inc. (the
"Company" or the "Registrant") included in the Company's Registration Statement
on Form S-1, File No. 333-05241, as declared effective by the Commission; and
(b) the description of the Company's Common Stock contained in the
Registration Statement on Form 8-A filed with the Commission on July 18, 1996
under Section 12 of the Securities Exchange Act of 1934, including any amendment
or report filed for the purpose of updating such description; and
(c) the Company's Quarterly Report on Form 10-Q for the Quarterly Period
ended June 30, 1996, as filed with the Commission on September 5, 1996.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the securities registered hereby is being passed upon for
the Company by Foley, Hoag & Eliot LLP, Boston, Massachusetts. John D.
Patterson, Jr., Secretary of the Company, is a partner at Foley, Hoag & Eliot
LLP.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Amended and Restated Certificate of Incorporation of the Company
contains certain provisions permitted under the General Corporation Law of
Delaware relating to the liability of directors. The provisions eliminate a
director's liability for monetary damages for a breach of fiduciary duty, except
in
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certain circumstances involving wrongful acts, such as the breach of a
director's duty of loyalty or acts or omissions which involve intentional
misconduct or a knowing violation of law. Further, the Amended and Restated
Certificate of Incorporation and the Amended and Restated By-laws of the Company
contain provisions to indemnify the Company's directors and officers to the
fullest extent permitted by the General Corporation Law of Delaware.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Specimen certificate for the Common Stock (included as Exhibit 4.1 to the
Company's Registration Statement on Form S-1, Registration Number
333-05241, and incorporated herein by reference)
5.1 Opinion of Counsel
10.1 1996 Incentive and Nonqualified Stock Option Plan (included as Exhibit
10.3 to the Company's Registration Statement on Form S-1, Registration
Number 333-05241, and incorporated herein by reference)
10.2 1989 Incentive and Nonqualified Stock Option Plan (included as Exhibit
10.1 to the Company's Registration Statement on Form S-1, Registration
Number 333-05241, and incorporated herein by reference)
10.3 1995 Nonqualified Stock Option Plan (included as Exhibit 10.2 to the
Company's Registration Statement on Form S-1, Registration Number
333-05241, and incorporated herein by reference)
10.4 1996 Employee Stock Purchase Plan, as amended on October 18, 1996
23.1 Consent of Independent Accountants
23.2 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (contained on the signature page)
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ITEM 9. UNDERTAKINGS.
1. 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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
2. The undersigned Registrant hereby undertakes:
(a) 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 by 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;
(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 2 (a)(1)(i) and 2 (a)(1)(ii) do not apply if
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 herein.
(b) 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 herein, and the
offering of
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<PAGE> 6
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) 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.
3. 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.
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<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Burlington, Massachusetts, on this 24th day of
October, 1996.
OBJECT DESIGN, INC.
By: /s/ Robert N. Goldman
--------------------------------------
Robert N. Goldman
President and Chief Excecutive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Robert N. Goldman, Justin J. Perreault
and Lacey P. Brandt, and each of them, his true and lawful attorneys-in-fact and
agents with full power of substitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing which they, or any of them, may deem necessary or advisable
to be done in connection with this Registration Statement, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or any
substitute or substitutes for any or all of them, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Robert N. Goldman President and Chief October 24, 1996
- ----------------------- Executive Officer
Robert N. Goldman (Principal Executive
Officer) and Director
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<PAGE> 8
Signature Title Date
- --------- ----- ----
/s/ Lacey P. Brandt Chief Financial Officer October 24, 1996
- ----------------------- and Treasurer (Principal
Lacey P. Brandt Financial Officer and
Principal Accounting
Officer)
/s/ Gerald B. Bay Director October 24, 1996
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Gerald B. Bay
/s/ Arthur J. Marks Director October 24, 1996
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Arthur J. Marks
/s/ Tim R. Palmer Director October 24, 1996
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Tim R. Palmer
/s/ Scott Sperling Director October 24, 1996
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Scott Sperling
/s/ Steven C. Walske Director October 24, 1996
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Steven C. Walske
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EXHIBIT INDEX
-------------
Exhibit
No. Description Page
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5.1 Opinion of Counsel
10.4 1996 Employee Stock Purchase Plan, as amended
23.1 Consent of Independent Accountants
<PAGE> 1
FOLEY, HOAG & ELIOT LLP
ONE POST OFFICE SQUARE
BOSTON, MASSACHUSETTS 02109-2170
TELEPHONE: (617) 832-1000 IN WASHINGTON, D.C.
FACSIMILE: (617) 832-7000 1615 L STREET, N.W.
TELEX 940693 SUITE 850
http://www.fhe.com WASHINGTON, D.C. 20036
TELEPHONE: (202) 775-0600
EXHIBIT 5.1
October 24, 1996
Object Design, Inc.
25 Mall Road
Burlington, Massachusetts 01803
Ladies and Gentlemen:
We are familiar with the Registration Statement on Form S-8 (the "S-8
Registration Statement") filed today by Object Design, Inc., a Delaware
corporation (the "Company") with the Securities and Exchange Commission under
the Securities Act of 1933, as amended. The S-8 Registration Statement relates
to the proposed offering by the Company of 6,195,307 shares (the "Shares") of
its Common Stock, par value $0.001 per share (the "Common Stock"), issuable
pursuant to the Company's 1996 Incentive and Nonqualified Stock Option Plan,
1989 Incentive and Nonqualified Stock Option Plan, 1995 Nonqualified Stock
Option Plan and 1996 Employee Stock Purchase Plan (the "Plans").
In arriving at the opinion expressed below, we have examined and relied
upon the following documents:
(1) the Amended and Restated Certificate of Incorporation of the Company;
(2) the Amended and Restated By-Laws of the Company;
(3) the records of meetings and consents of the Board of Directors and
stockholders of the Company provided to us by the Company; and
(4) the Plans.
In addition, we have examined and relied upon the originals or copies certified
or otherwise identified to our satisfaction of all such corporate records of the
Company and such other instruments and other certificates of public officials,
officers and representatives of the Company and such other persons, and we have
made such investigations of law, as we have deemed appropriate as a basis for
the opinion expressed below.
<PAGE> 2
Object Design, Inc.
Page 2
Based upon the foregoing, it is our opinion that the Company has corporate
power adequate for the issuance of the Shares in accordance with the S-8
Registration Statement. The Company has taken all necessary corporate action
require to authorize the issuance and sale of the Shares. When certificates for
the Shares have been duly executed and countersigned, and delivered against due
receipt of the exercise price for the Shares as described in the applicable
Plans, the Shares will be legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the S-8
Registration Statement.
Very truly yours,
FOLEY, HOAG & ELIOT LLP
By: /s/ Robert W. Sweet, Jr.
--------------------------------
A Partner
<PAGE> 1
EXHIBIT 10.4
OBJECT DESIGN, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE.
The Object Design, Inc. 1996 Employee Stock Purchase Plan (the
"Plan") is intended to provide a method whereby employees of Object Design, Inc.
(the "Company") will have an opportunity to acquire an ownership interest (or
increase an existing ownership interest) in the Company through the purchase of
shares of the Common Stock of the Company. It is the intention of the Company
that the Plan qualify as an "employee stock purchase plan" under Section 423 of
the Internal Revenue Code of 1986, as amended (the "Code"). The provisions of
the Plan shall, accordingly, be construed so as to extend and limit
participation in a manner consistent with the requirements of that section of
the Code.
2. DEFINITIONS.
(a) "Board" means the Board of Directors of the Company.
(b) "Code" shall have the meaning set forth in Paragraph 1.
(c) "Committee" means the Compensation Committee of the Board.
(d) "Common Stock" means the common stock, par value $.001 per
share, of the Company.
(e) "Company" shall also include any Subsidiary (as hereinafter
defined) of Object Design, Inc. designated as a participant in the Plan by the
Board, unless the context otherwise requires.
(f) "Compensation" means, for the purpose of any Offering
pursuant to this Plan, base pay in effect as of the Offering Commencement Date
(as hereinafter defined). Compensation shall not include any deferred
compensation other than contributions by an individual through a salary
reduction agreement to a cash or deferred plan pursuant to Section 401(k) of the
Code or to a cafeteria plan pursuant to Section 125 of the Code.
(g) "Employee" means any person who is customarily employed by
the Company for more than 20 hours per week and more than five months in any
calendar year.
(h) "Offering" shall have the meaning set forth in Paragraph 4.
(i) "Offering Commencement Date" shall have the meaning set forth
in Paragraph 4.
<PAGE> 2
(j) "Offering Termination Date" shall have the meaning set forth
in Paragraph 4.
(k) "Plan" shall have the meaning set forth in Paragraph 1.
(l) "Subsidiary" shall mean any present or future corporation
which is or would constitute a "subsidiary corporation" as that term is defined
in Section 425 of the Code.
3. ELIGIBILITY.
(a) Participation in the Plan is completely voluntary. Participation
in any one or more of the Offerings under the Plan shall neither limit, nor
require, participation in any other Offering (as hereinafter defined).
(b) Each employee of the Company whose service with the Company
commences on or after November 1, 1996 shall be eligible to participate in the
Plan on the first Offering Commencement Date, as hereinafter defined, following
the completion of six months of continuous service with the Company. Each
employee of the Company whose service with the Company commenced prior to
November 1, 1996 shall be eligible to participate in the Plan on the first
Offering Commencement Date following the commencement of service with the
Company. Notwithstanding the foregoing, no employee shall be granted an option
under the Plan:
(i) if, immediately after the grant, such employee would own
stock, and/or hold outstanding options to purchase stock, possessing 5% or more
of the total combined voting power or value of all classes of stock of the
Company or any Subsidiary; for purposes of this Paragraph, the rules of Section
424(d) of the Code shall apply in determining the stock ownership of any
employee;
(ii) which permits his rights to purchase stock under all
Section 423 employee stock purchase plans of the Company and its Subsidiaries to
exceed $25,000 of the fair market value of the stock (determined at the time
such option is granted) for each calendar year in which such option is
outstanding; for purposes of this Paragraph, the rules of Section 423(b)(8) of
the Code shall apply; or
(iii) if such employee is an officer of the Company, but only
if such employee is a "highly compensated employee" within the meaning of
Section 414(q) of the Code.
4. OFFERING DATES.
The right to purchase stock hereunder shall be made available by a
series of six-month offerings (the "Offering" or "Offerings") to employees
eligible in accordance with Paragraph 3 hereof. The Committee will, in its
discretion, determine the applicable date of commencement ("Offering
Commencement Date") and termination date ("Offering
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<PAGE> 3
Termination Date") for each Offering. Participation in any one or more of the
Offerings under the Plan shall neither limit, nor require, participation in any
other Offering.
5. PARTICIPATION.
Any eligible employee may become a participant by completing a
payroll deduction authorization form provided by the Company and filing it with
the Company's Treasurer 20 days prior to each applicable Offering Commencement
Date, as determined by the Committee pursuant to Paragraph 4.
6. PAYROLL DEDUCTIONS.
(a) At the time a participant files an authorization for a payroll
deduction, the participant shall elect to have deductions made from his or her
pay on each payday during any Offering in which he or she is a participant, at a
specified percentage of his or her Compensation as determined on the applicable
Offering Commencement Date; said percentage shall be in increments of one
percent up to a maximum percentage of six percent.
(b) Payroll deductions for a participant shall commence on the
Offering Commencement Date when the applicable authorization for a payroll
deduction becomes effective and shall end on the Offering Termination Date of
the Offering to which such authorization is applicable, unless sooner terminated
by the participant as provided in Paragraph 9.
(c) All payroll deductions made for a participant shall be credited
to his or her account under the Plan. A participant may not make any separate
cash payment into such account.
(d) A participant may withdraw from the Plan at any time during the
applicable Offering period.
7. GRANTING OF OPTION.
(a) On the Offering Commencement Date of each Offering, a
participating employee shall be deemed to have been granted an option to
purchase a maximum number of shares of the Common Stock equal to an amount
determined as follows: (i) 85% of the market value per share of the Common Stock
on the applicable Offering Commencement Date shall be divided into an amount
equal to the sum of (x) the percentage of the employee's Compensation which he
or she has elected to have withheld (multiplied by the employee's Compensation
over the Offering period) plus (y) any amounts in the employee's account on the
Offering Commencement Date that have been carried forward from prior Offerings;
multiplied by (ii) two. Such market value per share of the Common Stock shall be
determined as provided in clause (i) of Paragraph 7(b).
(b) The option price of the Common Stock purchased with payroll
deductions made during each such Offering for a participant therein shall be the
lower of:
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<PAGE> 4
(i) 85% of the average of the bid and the asked prices as
reported by Nasdaq in the Wall Street Journal, or, if the Common Stock is
designated as a national market security by the National Association of
Securities Dealers, Inc. ("NASD"), the last trading price of the Common Stock as
reported by the Nasdaq National Market System in the Wall Street Journal, or, if
the Common Stock is listed on an exchange, the closing price of the Common Stock
on the exchange on the Offering Commencement Date applicable to such Offering
(or on the next regular business date on which shares of the Common Stock shall
be traded, in the event that no shares of the Common Stock have been traded on
the Offering Commencement Date); or if the Common Stock is not quoted on Nasdaq,
not designated as a Nasdaq national market security and not listed on an
exchange, 85% of the fair market value on the Offering Commencement Date as
determined by the Committee; and
(ii) 85% of the average of the bid and the asked prices as
reported by Nasdaq in the Wall Street Journal, or, if the Common Stock is
designated as a national market security by the NASD, the last trading price of
the Common Stock as reported by the Nasdaq National Market System in the Wall
Street Journal, or, if the Common Stock is listed on an exchange, the closing
price of the Common Stock on the exchange on the Offering Termination Date
applicable to such Offering (or on the next regular business date on which
shares of the Common Stock shall be traded, in the event that no shares of the
Common Stock shall have been traded on the Offering Termination Date); or if the
Common Stock is not quoted on Nasdaq, not designated as a Nasdaq national market
security and not listed on an exchange, 85% of the fair market value on the
Offering Termination Date as determined by the Committee.
8. EXERCISE OF OPTION.
(a) Unless a participant gives written notice to the Treasurer of
the Company as hereinafter provided, his or her option for the purchase of
Common Stock with payroll deductions made during any Offering will be deemed to
have been exercised automatically on the Offering Termination Date applicable to
such Offering for the purchase of the number of full shares of Common Stock
which the accumulated payroll deductions in his or her account at that time
(plus any amounts in his or her account that have been carried forward from
prior Offerings) will purchase at the applicable option price (but not in excess
of the number of shares for which options have been granted to the employee,
pursuant to Paragraph 7(a)), and any excess in his account at that time will be
automatically carried forward to the next Offering unless the participant
elects, by written notice to the Treasurer of the Company, to have the excess
returned to the participant.
(b) Fractional shares will not be issued under the Plan and any
accumulated payroll deductions which would have been used to purchase fractional
shares shall be automatically carried forward to the next Offering unless the
participant elects, by written notice to the Treasurer of the Company, to have
the excess cash returned to the participant.
9. WITHDRAWAL AND TERMINATION.
(a) Prior to the Offering Termination Date for an Offering, any
participant may withdraw the payroll deductions credited to his or her account
under the Plan for such
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<PAGE> 5
Offering by giving written notice to the Treasurer of the Company. All of the
participant's payroll deductions credited to such account will be paid to the
participant promptly after receipt of notice of withdrawal, without interest,
and no future payroll deductions will be made from his or her pay during such
Offering. The Company will treat any attempt to borrow by a participant on the
security of accumulated payroll deductions as an election to withdraw such
deductions.
(b) A participant's election not to participate in, or withdrawal
from, any Offering will not have any effect upon his or her eligibility to
participate in any succeeding Offering or in any similar plan which may
hereafter be adopted by the Company.
(c) Upon termination of the participant's employment for any
reason, including retirement but excluding death, the payroll deductions
credited to his or her account will be returned to the participant, or, in the
case of his or her death, to the person or persons entitled thereto under
Paragraph 13.
(d) Upon termination of the participant's employment because of
death, his or her beneficiary (as defined in Paragraph 13) shall have the right
to elect, by written notice given to the Company's Treasurer prior to the
expiration of a period of 90 days commencing with the date of the death of the
participant, either:
(i) to withdraw all of the payroll deductions credited to the
participant's account under the Plan; or
(ii) to exercise the participant's option for the purchase of
stock on the Offering Termination Date next following the date of the
participant's death for the purchase of the number of full shares which the
accumulated payroll deductions in the participant's account at the date of the
participant's death will purchase at the applicable option price, and any excess
in such account will be returned to said beneficiary. In the event that no such
written notice of election shall be duly received by the office of the Company's
Treasurer, the beneficiary shall automatically be deemed to have elected to
withdraw the payroll deductions credited to the participant's account at the
date of the participant's death and the same will be paid promptly to said
beneficiary.
10. INTEREST.
No interest will be paid or allowed on any money paid into the Plan
or credited to the account of any participating employee.
11. STOCK.
(a) The maximum number of shares of Common Stock available for
issuance and purchase by employees under the Plan, subject to adjustment upon
changes in capitalization of the Company as provided in Paragraph 16, shall be
300,000 shares of Common Stock, $.001 par value per share, of the Company. If
the total number of shares for which options are exercised on any Offering
Termination Date in accordance with Paragraph 8 exceeds the number of shares
that remain available for issuance and purchase by
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<PAGE> 6
employees under the Plan, the Company shall make a pro rata allocation of the
shares available for delivery and distribution in an equitable manner, with the
balances of payroll deductions credited to the account of each participant under
the Plan returned to each participant.
(b) The participant will have no interest in the stock covered by
his or her option until such option has been exercised.
12. ADMINISTRATION.
The Plan shall be administered by the Committee. The interpretation
and construction of any provision of the Plan and adoption of rules and
regulations for administering the Plan shall be made by the Committee.
Determinations made by the Committee with respect to any matter or provision
contained in the Plan shall be final, conclusive and binding upon the Company
and upon all participants, their heirs or legal representatives. Any rule or
regulation adopted by the Committee shall remain in full force and effect unless
and until altered, amended, or repealed by the Committee.
13. DESIGNATION OF BENEFICIARY.
A participant shall file with the Treasurer of the Company a written
designation of a beneficiary who is to receive any Common Stock and/or cash
under the Plan. Such designation of beneficiary may be changed by the
participant at any time by written notice. Upon the death of a participant and
upon receipt by the Company of proof of the identity and existence of a
beneficiary validly designated by the participant under the Plan, the Company
shall deliver such Common Stock and/or cash to such beneficiary. In the event of
the death of a participant and in the absence of a beneficiary validly
designated under the Plan who is living at the time of such participant's death,
the Company shall deliver such Common Stock and/or cash to the executor or
administrator of the estate of the participant. No beneficiary shall, prior to
the death of the participant by whom he or she has been designated, acquire any
interest in the Common Stock and/or cash credited to the participant under the
Plan.
14. TRANSFERABILITY.
Neither payroll deductions credited to a participant's account nor
any rights with regard to the exercise of an option or to receive Common Stock
under the Plan may be assigned, transferred, pledged, or otherwise disposed of
in any way by the participant other than by will or the laws of descent and
distribution. Any such attempted assignment, transfer, pledge, or other
disposition shall be without effect, except that the Company may treat such act
as an election to withdraw funds in accordance with Paragraph 8(b).
15. USE OF FUNDS.
All payroll deductions received or held by the Company under this
Plan may be used by the Company for any corporate purpose, and the Company shall
not be obligated to segregate such payroll deductions.
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16. EFFECT OF CHANGES OF COMMON STOCK.
If the Company shall subdivide or reclassify the Common Stock which
has been or may be optioned under this Plan, or shall declare thereon any
dividend payable in shares of such Common Stock, or shall take any other action
of a similar nature affecting such Common Stock, then the number and class of
shares of Common Stock which may thereafter be optioned (in the aggregate and to
any participant) shall be adjusted accordingly and in the case of each option
outstanding at the time of any such action, the number and class of shares which
may thereafter be purchased pursuant to such option and the option price per
share shall be adjusted to such extent as may be determined by the Committee,
following consultation with the Company's independent public accountants and
counsel, to be necessary to preserve the rights of the holder of such option.
17. AMENDMENT OR TERMINATION.
The Board may at any time terminate or amend the Plan. No such
termination shall affect options previously granted, nor may an amendment make
any change in any option theretofore granted which would adversely affect the
rights of any participant holding options under the Plan.
18. NOTICES.
All notices or other communications by a participant to the Company
under or in connection with the Plan shall be deemed to have been duly given
when received by the Treasurer of the Company.
19. MERGER OR CONSOLIDATION.
If the Company shall at any time merge into or consolidate with
another corporation, the holder of each option then outstanding will thereafter
be entitled to receive at the next Offering Termination Date, upon the exercise
of such option and for each share as to which such option shall be exercised,
the securities or property which a holder of one share of the Common Stock was
entitled to upon and at the time of such merger or consolidation. In accordance
with this Paragraph and Paragraph 16, the Committee shall determine the kind and
amount of such securities or property which such holder of an option shall be
entitled to receive. A sale of all or substantially all of the assets of the
Company shall be deemed a merger or consolidation for the foregoing purposes.
20. APPROVAL OF STOCKHOLDERS.
The Plan is subject to the approval of the stockholders of the
Company by written consent or at their next annual meeting or at any special
meeting of the stockholders for which one of the purposes of such a special
meeting shall be to act upon the Plan.
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21. GOVERNMENTAL AND OTHER REGULATIONS.
The Plan, and the grant and exercise of the rights to purchase
shares hereunder, and the Company's obligation to sell and deliver shares upon
the exercise of rights to purchase shares, shall be subject to all applicable
federal, state and foreign laws, rules and regulations, and to such approvals by
any regulatory or governmental agency as may, in the opinion of counsel for the
Company, be required. The Plan shall be governed by, and construed and enforced
in accordance with, the provisions of Sections 421, 423 and 424 of the Code and
the substantive laws of The Commonwealth of Massachusetts. In the event of any
inconsistency between such provisions of the Code and any such laws, said
provisions of the Code shall govern to the extent necessary to preserve the
favorable federal income tax treatment afforded employee stock purchase plans
under Section 423 of the Code.
* * *
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Object Design, Inc. on Form S-8 of our report dated May 23, 1996, on our audits
of the consolidated financial statements of the Object Design, Inc. as of
December 31, 1995 and 1994 and for each of the three years in the period ended
December 31, 1995 which report is included in the registration statement on
Form S-1 (File No. 333-05241) of Object Design, Inc. filed with the SEC
pursuant to the Securities act of 1933.
/s/ COOPERS & LYBRAND L.L.P.
--------------------------------
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
October 24, 1996
