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.
(Exact name of issuer as specified in its charter)
Delaware 02-0424252
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
25 Mall Road, Burlington, Massachusetts 01803
(Address of principal executive offices) (Zip Code)
1997 NONQUALIFIED STOCK OPTION PLAN
(Full title of the plan)
Robert N. Goldman
President
Object Design, Inc.
25 Mall Road
Burlington, Massachusetts 01803
(617) 674-5000
(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
CALCULATION OF REGISTRATION FEE
-------------------------------
<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 1,500,000 $7.51(1) $11,265,000(1) $341(1)
(par value $0.001) shares
</TABLE>
<PAGE>
(1) For shares issuable pursuant to stock options available for grant
under the 1997 Nonqualified Stock Option Plan at July 16, 1997, 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 July 16, 1997.
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 Annual Report on Form 10-K of Object Design, Inc. (the
"Company" or the "Registrant") for the fiscal year ended December 31, 1996, as
filed with the Commission on March 31, 1997 as amended by an Annual Report on
Form 10-K/A filed by the Company with the Commission on April 30, 1997; and
(b) the Company's Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 1997, as filed with the Commission on May 14, 1997.
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.
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 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 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.
<PAGE>
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 1997 Nonqualified Stock Option Plan
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)
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) (i) and 2 (a) (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 such securities at that time shall be deemed to be the
initial bona fide offering thereof.
<PAGE>
(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 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 proceding) 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.
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 16th day of July,
1997.
OBJECT DESIGN, INC.
By: /s/ Robert N. Goldman
------------------------------
Robert N. Goldman
President and Chief Executive 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.
<PAGE>
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.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Robert N. Goldman President and Chief July 16, 1997
Executive Officer
- --------------------- (Principal Executive
Robert N. Goldman Officer) and Director
/s/ Lacey P. Brandt Chief Financial Officer July 16, 1997
and Treasurer (Principal
- --------------------- Financial Officer and
Lacey P. Brandt Principal Accounting
Officer)
/s/ Gerald B. Bay Director July 16, 1997
- ---------------------
Gerald B. Bay
/s/ Arthur J. Marks Director July 16, 1997
- ---------------------
Arthur J. Marks
/s/ Scott Sperling Director July 16, 1997
- ---------------------
Scott Sperling
/s/ Steven C. Walske Director July 16, 1997
- ---------------------
Steven C. Walske
</TABLE>
<PAGE>
EXHIBIT INDEX
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Exhibit
No. Description Page
--- ----------- ----
5.1 Opinion of Counsel
10.1 1997 Nonqualified Stock Option Plan
23.1 Consent of Independent Accountants
Exhibit 5.1
FOLEY, HOAG & ELIOT LLP
ONE POST OFFICE SQUARE
BOSTON, MASSACHUSETTS 02109
July 16, 1997
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 1,500,000 shares (the "Shares") of
its Common Stock, par value $0.001 per share (the "Common Stock") issuable
pursuant to the Company's 1997 Nonqualified Stock Option Plan (the "Plan").
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 Plan.
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.
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
required to authorize the issuance and sale of the Shares. When certificates for
the Shares have been duly executed and counter-signed, 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:
-----------------------
A Partner
EXHIBIT 10.1
OBJECT DESIGN, INC.
1997 NONQUALIFIED STOCK OPTION PLAN
-----------------------------------
<PAGE>
OBJECT DESIGN, INC.
-------------------
1997 NONQUALIFIED STOCK OPTION PLAN
-----------------------------------
TABLE OF CONTENTS
-----------------
<TABLE>
<S> <C> <C>
1. PURPOSE OF THE PLAN.............................................................1
2. ADMINISTRATION..................................................................1
3. OPTION SHARES...................................................................2
4. AUTHORITY TO GRANT OPTIONS......................................................3
5. ELIGIBILITY.....................................................................3
6. OPTION PRICE....................................................................3
7. DURATION OF OPTIONS.............................................................3
8. AMOUNT EXERCISABLE..............................................................4
9. EXERCISE OF OPTIONS.............................................................4
10. TRANSFERABILITY OF OPTIONS......................................................5
11. TERMINATION OF EMPLOYMENT OR DEATH OF OPTIONEE..................................6
(a) Temporary Leave...........................................................6
(b) Death or Disability.......................................................6
(c) Retirement................................................................7
12. EMPLOYMENT RELATIONSHIP.........................................................7
13. GENERAL RESTRICTIONS............................................................7
(a) Investment Representations................................................7
(b) Compliance with Securities Laws...........................................7
14. NO RIGHTS AS STOCKHOLDER........................................................8
15. EMPLOYMENT OBLIGATION...........................................................9
16. CHANGES IN THE COMPANY'S CAPITAL STRUCTURE......................................9
(a) Rights of the Company.....................................................9
(b) Recapitalization, Stock Splits, and Dividends.............................9
(c) Merger of Company With No Change of Control..............................10
(d) Sale or Merger of Company Where Company Does Not Survive.................10
(e) Changes to Common Stock Subject to Options...............................11
17. AMENDMENT OR TERMINATION OF THE PLAN...........................................12
18. WRITTEN AGREEMENT..............................................................12
19. EFFECTIVE DATE AND DURATION OF PLAN............................................12
</TABLE>
<PAGE>
OBJECT DESIGN, INC.
1997 NONQUALIFIED STOCK OPTION PLAN
1. PURPOSE OF THE PLAN.
This 1997 Nonqualified Stock Option Plan (the "Plan") of Object Design,
Inc., a Delaware corporation (the "Company"), is designed to provide additional
incentive to present and future non-officer employees of the Company. The
Company intends that this purpose will be effected by the granting of
nonqualified stock options (collectively, the "Options", and individually, an
"Option") under the Plan which afford such non-officer employees an opportunity
to acquire or increase their proprietary interest in the Company through the
acquisition of shares of its Common Stock. By encouraging stock ownership by
such non-officer employees, the Company seeks to attract and retain on a
continuing basis the services of persons of exceptional competence and seeks to
furnish an added incentive for them to increase their efforts on behalf of the
Company. Except as otherwise provided, for all purposes of the Plan the term
"subsidiary" shall mean any corporation of which 50% or more of its outstanding
voting stock is at the time owned by the Company or by one or more subsidiaries
or by the Company and one or more subsidiaries.
ADMINISTRATION.
The Plan shall be administered by the President of the Company. The
President shall have full and final authority to operate, manage and administer
the Plan on behalf of the Company. This authority includes, but is not limited
to: (i) the power to grant Options conditionally or unconditionally; (ii) the
power to prescribe the form or forms of the instruments evidencing Options
granted under the Plan; (iii) the power to interpret the Plan; (iv) the power to
<PAGE>
provide regulations for the operation of the incentive features of the Plan, and
otherwise to prescribe regulations for interpretation, management and
administration of the Plan; (v) the power to delegate responsibility for Plan
operation, management and administration on such terms, consistent with the
Plan, as the President may establish; (vi) the power to delegate to other
persons the responsibility for performing ministerial acts in furtherance of the
Plan's purpose; and (vii) the power to engage the services of persons or
organizations in furtherance of the Plan's purpose, including but not limited to
banks, insurance companies, brokerage firms and consultants.
In addition, as to each Option, the President shall have full and final
authority in his discretion to determine: (i) the number of shares subject to
each Option; (ii) the time or times at which Options will be granted; (iii) the
option price for the shares subject to each Option; and (iv) the time or times
when each Option shall become exercisable, the conditions under which exercise
may be accelerated and the duration of the exercise period.
The President shall not be liable for any action or determination made
in good faith with respect to the Plan or any Option granted hereunder.
OPTION SHARES.
The stock subject to the Options and other provisions of the Plan shall
be shares of the Company's Common Stock, $.001 par value (the "Common Stock").
The total amount of the Common Stock with respect to which Options may be
granted shall not exceed in the aggregate 1,500,000 shares; provided, however,
that the class and aggregate number of shares which may be subject to Options
granted hereunder shall be subject to adjustment in accordance with the
provisions of Paragraph 16 hereof; and, provided further, that (i) no employee
may be awarded Options to purchase more than 30,000 shares pursuant to grants
under the Plan in any twelve (12)
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month period and (ii) the aggregate number of shares subject to grants under the
Plan may not exceed 1,000,000 in any twelve (12) month period. Shares subject to
Options granted hereunder may be treasury shares or authorized but unissued
shares.
In the event that any outstanding Option for any reason shall expire or
terminate prior to exercise, the shares of Common Stock allocable to the
unexercised portion of such Option may again be subject to an Option under the
Plan.
AUTHORITY TO GRANT OPTIONS.
The President may grant Options from time to time to such eligible
employees of the Company as he shall determine. Subject to any applicable
limitations set forth in the Plan or established from time to time by the
President, the number of shares of Common Stock to be covered by any Option
shall be as determined by the President.
ELIGIBILITY.
Options may be granted to non-officer employees of the Company or its
subsidiaries; provided, however, that no such employee may be awarded Options to
purchase more than 30,000 shares pursuant to grants under the Plan in any twelve
(12) month period.
OPTION PRICE.
The price at which shares may be purchased pursuant to Options shall be
specified by the President at the time the Option is granted.
DURATION OF OPTIONS.
The President in his discretion may provide that an Option shall be
exercisable during any specified period of time from the date such Option is
granted.
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<PAGE>
AMOUNT EXERCISABLE.
Each Option may be exercised, so long as it is valid and outstanding,
from time to time in part or as a whole, subject to any limitations with respect
to the number of shares for which the Option may be exercised at a particular
time and to such other conditions as the President in his discretion may specify
upon granting the Option.
EXERCISE OF OPTIONS.
Subject to the provisions of Paragraph 13 hereof, Options shall be
exercised by the delivery of written notice to the Company setting forth the
number of shares with respect to which the Option is to be exercised, together
with (a) cash, certified check, bank draft or postal or express money order
payable to the order of the Company for an amount equal to the option price of
such shares, or, (b) with the consent of the Company, shares of Common Stock of
the Company having a fair market value equal to the option price of such shares,
or, (c) with the consent of the Company, a combination of (a) and (b), and
specifying the address to which the certificates for such shares are to be
mailed. For the purpose of the preceding sentence, the fair market value of the
shares of Common Stock so delivered to the Company shall be the closing price
per share as reported on the date of exercise by the National Association of
Securities Dealers Automated Quotation System, Inc. As promptly as practicable
after receipt of such written notification and payment, the Company shall
deliver to the optionee certificates for the number of shares with respect to
which such Option has been so exercised, issued in the optionee's name;
provided, however, that such delivery shall be deemed effected for all purposes
when a stock transfer agent of the Company shall have deposited such
certificates in the United States mail, addressed to the optionee, at the
address specified pursuant to this Paragraph 9.
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<PAGE>
TRANSFERABILITY OF OPTIONS.
Options shall not be transferable by the optionee otherwise than by
will or under the laws of descent and distribution, and shall be exercisable,
during his lifetime, only by him.
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<PAGE>
TERMINATION OF EMPLOYMENT OR DEATH OF OPTIONEE.
Except as may be otherwise expressly provided herein or as may be
otherwise expressly provided in the terms and conditions of the Option granted
to an optionee, Options may not be exercised after the earlier of:
(i) the date of expiration thereof; or
(ii) the date of termination of the optionee's employment with
the Company if the termination is by the Company for cause (as determined by the
Company), or if voluntarily by the optionee; or
(iii) thirty (30) days after termination of the optionee's
employment with the Company by it without cause.
(a) Temporary Leave. Whether authorized temporary leave of absence, or
absence on military or government service, shall constitute termination of the
employment relationship between the Company and the optionee shall be determined
by the President at the time thereof.
(b) Death or Disability. In the event the optionee's employment with
the Company is terminated while the optionee is an employee in good standing for
reasons of permanent disability under the then established rules of the Company
or due to the death of the optionee and before the date of expiration of such
Option, such Option may be exercised until the earlier of such date of
expiration or one (1) year following the date of such termination for reason of
permanent disability or death. Should such termination for reason of permanent
disability or death occur after the first anniversary of the date on which the
optionee was first employed by the Company, the Option may be exercised for up
to the greater of (i) 50% of all Option shares (and such shares shall be deemed
vested) or (ii) the number of shares that had vested as of the date of such
death or termination due to disability. After the death of the optionee, his
executors,
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<PAGE>
administrators or any person or persons to whom his Option may be transferred by
will or by the laws of descent and distribution, shall have the right to
exercise the Option.
(c) Retirement. If, before the date of expiration of the Option, the
optionee as an employee shall be retired in good standing from the employ of the
Company for reasons of age under the then established rules of the Company, the
Option may be exercised until the earlier of such date of expiration or thirty
(30) days after the date of such retirement, to the extent to which the optionee
was entitled to exercise such Option immediately prior to such retirement.
EMPLOYMENT RELATIONSHIP.
An employment relationship between the Company and the optionee shall
be deemed to exist during any period in which the optionee is employed by the
Company or a subsidiary of the Company.
GENERAL RESTRICTIONS.
(a) Investment Representations. The Company may require any individual
to whom an Option is granted, as a condition of exercising such Option, to give
written assurances in substance and form satisfactory to the Company to the
effect that such individual is acquiring the hares subject to the Option for his
or her own account for investment and not with a view to the resale or
distribution thereof, and to such other effects as the Company deems necessary
or advisable in order to comply with the Securities Act of 1933, as now in
effect or hereafter amended (the "Act") and applicable state securities laws.
(b) Compliance with Securities Laws. The Company shall not be required
to sell or issue any shares under any Option if the issuance of such shares
shall constitute a violation by the optionee or by the Company of any provision
of any law, regulation or order of any governmental authority. Without limiting
the generality of the foregoing, upon exercise of any
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<PAGE>
Option, the Company shall not be required to issue such shares unless the
Company has received evidence satisfactory to it to the effect that the holder
of such Option will not transfer such shares except pursuant to a registration
statement in effect under the Act, and under the applicable securities laws of
any State, unless the Company has received an opinion of counsel satisfactory to
the Company to the effect that such registration is not required. Any
determination in this connection by the Company shall be final, binding and
conclusive. In the event the shares issuable on exercise of an Option are not
registered under the Act, the Company may imprint the following legend or any
other legend which counsel for the Company considers necessary or advisable to
comply with the Act or other applicable laws:
"The shares of stock represented by this certificate have not
been registered under the Securities Act of 1933 or under the
securities laws of any State and may not be sold or
transferred expect upon such registration or upon receipt by
the Corporation of an opinion of counsel satisfactory to the
Corporation, in form and substance satisfactory to the
Corporation, that registration is not required for such sale
or transfer."
The Company may, but shall in no event be obligated to, register any
securities covered hereby pursuant to the Act; and in the event any shares are
so registered the Company may remove any legend on certificates representing
such shares. The Company shall not be obligated to take any other affirmative
action in order to cause the exercise of an Option or the issuance of shares
pursuant thereto to comply with any other law, regulation or order of any
governmental authority.
NO RIGHTS AS STOCKHOLDER.
No optionee shall have rights as a stockholder with respect to shares
covered by his Option until the date of issuance of a stock certificate for such
shares; and, except as otherwise provided in Paragraph 16 hereof, no adjustment
for dividends, or otherwise, shall be made if the record date therefor is prior
to the date of issuance of such certificate.
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<PAGE>
EMPLOYMENT OBLIGATION.
The granting of any Option shall not impose upon the Company any
obligation to employ or continue to employ any optionee; and the right of the
Company to terminate the employment of any employee shall not be diminished or
affected by reason of the fact that an Option has been granted to him.
CHANGES IN THE COMPANY'S CAPITAL STRUCTURE.
(a) Rights of the Company.
The existence of outstanding Options shall not affect in any way the
right or power of the Company or its stockholders to make or authorize any or
all adjustments, recapitalizations, reorganizations or other changes in the
Company's capital structure or its business, or any merger or consolidation of
the Company, or any issue of bonds, debentures, preferred or prior preference
stock ahead of or affecting the Common Stock or the rights thereof, or the
dissolution or liquidation of the Company, or any sale or transfer of all or any
part of its assets or business, or any other corporate act or proceeding,
whether of a similar character or otherwise.
(b) Recapitalization, Stock Splits, and Dividends.
If the Company shall effect a subdivision or consolidation of shares or
other capital readjustment, the payment of a stock dividend, or other increase
or reduction of the number of shares of the Common Stock outstanding, without
receiving compensation therefor in money, services or property, then (i) the
number, class, and per share price of shares of stock subject to outstanding
Options hereunder shall be appropriately adjusted in such a manner as to entitle
an optionee to receive upon exercise of an Option, for the same aggregate cash
consideration, the same total number and class of shares as he would have
received as a result of the event requiring the adjustment had he exercised his
Option in full immediately prior to such event; and (ii) the
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<PAGE>
number and class of shares with respect to which Options may be granted under
the Plan shall be adjusted by substituting for the total number of shares of
Common Stock then reserved that number and class of shares of stock that would
have been received by the owner of an equal number of outstanding shares of
Common Stock as the result of the event requiring the adjustment.
(c) Merger of Company With No Change of Control.
After a merger of one or more corporations into the Company, or after a
consolidation of the Company with one or more corporations in which (i) the
Company shall be the surviving corporation and (ii) the stockholders of the
Company prior to such merger of consolidation hold at least fifty percent (50%)
of the voting shares of the Company after such merger or consolidation, each
holder of an outstanding Option shall, at no additional cost, be entitled upon
exercise of such Option to receive (subject to any required action by
stockholders) in lieu of the number of shares as to which such Option shall then
be so exercisable, the number and class of shares of stock or other securities
to which such holder would have been entitled pursuant to the terms of the
agreement of merger or consolidation if, immediately prior to such merger or
consolidation, such holder had been the holder of record of a number of shares
of Common Stock equal to the number of shares as to which such Option shall be
so exercised.
(d) Sale or Merger of Company Where Company Does Not Survive.
If the Company is merged into or consolidated with another corporation
under circumstances where the Company is not the surviving corporation, or if
there is a merger or consolidation where the Company is the surviving
corporation and the stockholders of the Company prior to such merger or
consolidation do not hold at least fifty percent (50%) of the voting shares of
the Company after such merger or consolidation occurs, or if the Company is
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liquidated, or sells or otherwise disposes of substantially all its assets to
another corporation while unexercised Options remain outstanding under the Plan,
(i) subject to the provisions of clause (iii) below, after the effective date of
such merger, consolidation or sale, as the case may be, each holder of an
outstanding Option shall be entitled, upon exercise of such Option, to receive,
in lieu of shares of Common Stock, shares of such stock or other securities,
cash or property as the holders of shares of Common Stock received pursuant to
the terms of the merger, consolidation or sale; (ii) the President may
accelerate the time for exercise of all unexercised and unexpired Options to and
after a date prior to the effective date of such merger, consolidation,
liquidation or sale, as the case may be; or (iii) all outstanding Options may be
canceled by the President as of the effective date of any such merger,
consolidation, liquidation or sale, provided that (x) notice of such
cancellation shall be given to each holder of an Option and (y) each holder of
an Option shall have the right to exercise such Option to the extent that the
same is then exercisable or, if the President shall have accelerated the time
for exercise of all unexercised and unexpired Options, in full during the thirty
(30) day period preceding the effective date of such merger, consolidation,
liquidation, sale or acquisition.
(e) Changes to Common Stock Subject to Options.
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Except as herein before expressly provided, the issue by the Company of
shares of stock of any class, or securities convertible into shares of stock of
any class, for cash or property, or for labor or services either upon direct
sale or upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into such shares
or obligations of the Company convertible into such shares or other securities,
shall not affect, and no adjustment by reason thereof shall be made with respect
to, the number or price of shares of Common Stock then subject to outstanding
Options.
AMENDMENT OR TERMINATION OF THE PLAN.
The President may terminate the Plan at any time, and may amend the
Plan at any time and from time to time, subject to the limitation that, except
as provided in Paragraph 16 hereof, rights and obligations under any Option
granted before termination or amendment of the Plan shall not be altered or
impaired by such termination or amendment except with the consent of the
optionee.
WRITTEN AGREEMENT.
Each Option granted hereunder shall be embodied in a written option
agreement which shall be subject to the terms and conditions prescribed above
and shall be signed by the President, any Vice President or the Treasurer of the
Company for and in the name and on behalf of the Company. Such option agreement
shall contain such other provisions as the President in his discretion shall
deem available.
EFFECTIVE DATE AND DURATION OF PLAN.
The effective date of the Plan is April 22, 1997, the date of its
adoption by the Board of Directors of the Company. Options may not be granted
under the Plan more
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than ten (10) years after said effective date. The Plan shall terminate (i) when
the total amount of the Common Stock with respect to which Options may be
granted shall have been issued upon the exercise of Options or (ii) by action of
the President pursuant to Paragraph 17 hereof, whichever shall first occur.
***
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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 reports dated February 11, 1997, on our
audits of the consolidated financial statements and financial statement schedule
of Object Design, Inc. as of December 31, 1996 and 1995, and for the three years
in the period ended December 31, 1996, which reports are included in the Annual
Report on Form 10-K, as amended by the Annual Report on Form 10-K/A.
/s/ COOPERS & LYBRAND L.L.P.
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COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
July 15, 1997
