<PAGE>
As filed with the Securities and Exchange Commission on June 26, 1996
Registration No. 333-___
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
OPEN MARKET, INC.
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(Exact name of registrant as specified in its charter)
Delaware 04-3214536
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
245 First Street, Cambridge, Massachusetts 02142
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(Address of principal executive offices) (Zip code)
1994 Stock Incentive Plan
1996 Employee Stock Purchase Plan
1996 Director Option Plan
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(Full title of the plans)
Gary B. Eichhorn
President and Chief Executive Officer
Open Market, Inc.
245 First Street, Cambridge, Massachusetts 02142
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(Name and address of agent for service)
(617) 621-9500
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(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Share Price Fee
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<S> <C> <C> <C> <C>
1994 Stock 1,062,259 $ 0.1667(2) $177,078.58 61.06
Incentive Plan 300,000 0.1833(2) 54,990.00 18.96
Common Stock 2,246,247 0.25(2) 561,561.75 193.64
(Par Value $.001) 576,100 1.50(2) 864,150.00 297.98
71,650 4.00(2) 286,600.00 98.83
62,800 5.00)2) 314,000.00 108.28
606,200 10.00(2) 6,062,000.00 2,090.34
435,137 12.00(2) 5,221,644.00 1,800.57
600 35.125(2) 21,075.00 7.27
1,121,029 24.375(1) 27,325,081.88 9,422.44
- -----------------------------------------------------------------------------------------------------
1996 Employee
Stock Purchase
Plan
Common Stock
(Par Value $.001) 250,000 24.375(1) 6,093,750 2,101.29
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1996 Director
Option Plan
Common Stock
(Par Value $.001) 100,000 24.375(1) 2,437,500 840.52
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TOTAL 6,832,022 $49,419,431.21 $17,041.18
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</TABLE>
(1) Price estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and (h) under the Securities Act of 1933, as
amended, and based on the average of the high and low prices of the
Registrant's Common Stock on June 19, 1996 as reported by the Nasdaq
National Market.
(2) All such shares are issuable upon exercise of outstanding options
with fixed exercise prices. Pursuant to Rule 457(h)(1) under the Securities
Act of 1933, the aggregate offering price and the fee have been computed
upon the basis of the price at which the options may be exercised.
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or given
to participants in the 1994 Stock Incentive Plan, 1996 Employee Stock Purchase
Plan and 1996 Director Option Plan of Open Market, Inc., a Delaware corporation
(the "Registrant"), pursuant to Rule 428(b)(1) of the Securities Act of 1933, as
amended (the "Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
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The Registrant is subject to the informational and reporting requirements
of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and in accordance therewith files reports, proxy
statements and other information with the Securities and Exchange Commission
(the "Commission"). The following documents, which are on file with the
Commission, are incorporated in this Registration Statement by reference:
(a) The Registrant's latest annual report filed pursuant to Section
13(a) or 15(d) of the Exchange Act or the latest prospectus filed pursuant to
Rule 424(b) under the Securities Act that contains audited financial statements
for the Registrant's latest fiscal year for which such statements have been
filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual reports or
the prospectus referred to in (a) above.
(c) The description of the Registrant's Common Stock, $.001 par value
per share ("Common Stock"), contained in a registration statement filed under
the Exchange Act, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-
effective amendment which indicates that all securities offered hereby have been
sold or which deregisters all such securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be part hereof from the
date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
<PAGE>
Item 4. Description of Securities
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Not applicable.
Item 5. Interests of Named Experts and Counsel
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The validity of the authorization and issuance of the Common Stock offered
hereby will be passed upon for the Registrant by Hale and Dorr (a partnership
which includes professional corporations), 60 State Street, Boston,
Massachusetts, 02109. Paul P. Brountas, Assistant Secretary of the Company, is
a partner in the law firm of Hale and Dorr. As of the date of this Registration
Statement, H&D Investments II, a partnership comprised of certain partners of
Hale and Dorr, owns 75,000 shares of the Registrant's Common Stock.
Item 6. Indemnification of Directors and Officers
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Section 145 of the Delaware General Corporation Law empowers a corporation
to indemnify any person who was or is a party or witness or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that he or she is
or was a director, officer, employee or agent of the corporation or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation or enterprise. Depending on the character of the
proceeding, a corporation may indemnify against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred in connection with such action, suit or proceeding if the person
indemnified acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of the corporation and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his or
her conduct was unlawful. If the person indemnified is not wholly successful in
such action, suit or proceeding, but is successful, on the merits or otherwise,
in one or more but less than all claims, issues or matters in such proceeding,
he or she may be indemnified against expenses actually and reasonably incurred
in connection with each successfully resolved claim, issue or matter. In the
case of an action or suit by or in the right of the corporation, no
indemnification may be made in respect to any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation unless and
only to the extent that the Court of Chancery or the court in which such action
or suit was brought shall determine that despite the adjudication of liability
such person is fairly and reasonably entitled to indemnity for such expenses
which the court shall deem proper. Section 145 provides that to the extent a
director, officer, employee or agent of a corporation has been successful in the
defense of any action, suit or proceeding referred to above or in the defense of
any claim, issue or matter therein, he or she shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him or
her in connection therewith.
<PAGE>
Section 102(b)(7) of the Delaware General Corporation Law enables a
Delaware corporation to provide in its certificate of incorporation for the
elimination or limitation of the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided, however, that a director's liability is not
eliminated or limited: (1) for any breach of the director's duty of loyalty to
the corporation or its stockholders; (2) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law; (3)
pursuant to Section 174 of the Delaware General Corporation Law (which imposes
liability on directors for unlawful payment of dividends or unlawful stock
purchases or redemptions); or (4) for any transaction from which the director
derived an improper personal benefit. The Amended and Restated Certificate of
Incorporation further provides that if the Delaware General Corporation Law is
amended to authorize the further elimination or limitation of the liability of
directors, then the liability of a director shall be eliminated or limited to
the fullest extent permitted by the Delaware General Corporation Law, as
amended.
Article EIGHTH of the Registrant's Amended and Restated Certificate of
Incorporation provides that, except to the extent that the General Corporation
Law of Delaware prohibits the elimination or limitation of liability of
directors for breaches of fiduciary duty, no director of the Registrant shall be
personally liable to the Registrant or its stockholders for monetary damages for
any breach of fiduciary duty as a director.
Article NINTH of the Registrant's Amended and Restated Certificate of
Incorporation provides that the Registrant shall, to the fullest extent
permitted by the General Corporation Law of Delaware, indemnify any person who
was or is a party or is threatened to be made a party to any action, suit or
proceeding of the type described above by reason of the fact that such person is
or was, or has agreed to become a director or officer of the Registrant, or is
or was serving, or has agreed to serve, at the request of the Registrant, as a
director, officer, or trustee of, or in a similar capacity of another
corporation, partnership, joint venture, trust or other enterprise. No expenses
will be paid in advance, except as authorized by the Board of Directors for
expenses incurred while a director or officer was acting in his or her capacity
as a director or officer and upon the condition that such director or officer
previously delivered an understanding to the corporation to repay all amounts
advanced if it should be later determined that such person was not entitled to
indemnification. The indemnification is not exclusive of any other rights to
which the officers or directors may be entitled under any agreement or vote of
stockholders or disinterested directors or otherwise, continues after such
person has ceased to be a director or officer and inures to the benefit of such
person's heirs, executors and administrators.
<PAGE>
Article NINTH of the Registrant's Amended and Restated Certificate of
Incorporation also provides that the Registrant may purchase and maintain
insurance on behalf of any director, officer, employee or agent of the
Registrant, or any person serving at the request of the Registrant as a
director, officer, employee or agent of another enterprise, against any
expenses, liability or loss, incurred by such person in any such capacity or
arising out of his status as such, whether or not the Registrant would have the
power to indemnify such person against any such expense, liability or loss.
The Registrant carries a general liability insurance policy which covers
certain liabilities of directors and officers of the Registrant arising out of
claims based on acts or omissions in their capacity as directors or officers.
Item 7. Exemption from Registration Claimed
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Not applicable.
Item 8. Exhibits
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The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
Item 9. Undertakings
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(a) The Registrant hereby undertakes:
(i) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
A. To include any prospectus required by Section 10(a)(3)
of the Securities Act;
B. 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
C. To include any material information with respect to
the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in
this Registration Statement;
provided, however that paragraphs (A) and (B) of this section do not
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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 with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration Statement.
<PAGE>
(ii) That, for the purpose of determining any liability under the
Securities Act, 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.
(iii) 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.
(b) The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in 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 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 Commission such
indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 City of Cambridge, Commonwealth of Massachusetts, on this
twenty-fourth day of June, 1996.
OPEN MARKET, INC.
By:/s/ Gary B. Eichhorn
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Gary B. Eichhorn
President and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Open Market, Inc., hereby
severally constitute and appoint Gary B. Eichhorn, Regina O. Sommer and Paul P.
Brountas, 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-8 filed
herewith, and any and all amendments to said Registration Statement and
generally to do all such things in our names and behalf in our capacities as
officers and directors to enable Open Market, Inc. to comply with the Securities
Act, 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, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title (Capacity) Date
--------- ---------------- ----
<S> <C> <C>
/s/ Gary B. Eichhorn
- ----------------------------- President, Chief Executive June 24, 1996
Gary B. Eichhorn Officer and Director
(Principal Executive
Officer)
/s/ Regina O. Sommer
- ----------------------------- Chief Financial Officer June 24, 1996
Regina O. Sommer (Principal Financial Officer
and Principal Accounting Officer)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Gulrez Arshad Director June 24, 1996
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Gulrez Arshad
/s/ Shikhar Ghosh Director June 24, 1996
- ------------------------------
Shikhar Ghosh
/s/ David K. Gifford Director June 24, 1996
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David K. Gifford
/s/ Bruce Judson Director June 24, 1996
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Bruce Judson
/s/ William S. Kaiser Director June 24, 1996
- ------------------------------
William S. Kaiser
/s/ Ray Stata Director June 24, 1996
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Ray Stata
/s/ Robert J. Tarr, Jr. Director June 24, 1996
- ------------------------------
Robert J. Tarr, Jr.
/s/ Eugene F. Quinn Director June 24, 1996
- ------------------------------
Eugene F. Quinn
</TABLE>
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Exhibit
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4.1* Amended and Restated Certificate of
Incorporation of the Registrant
4.2* Amended and Restated By-Laws of the Registrant
4.3* Specimen Stock Certificate of Common
Stock of the Registrant
5.1 Opinion of Hale and Dorr, counsel to
the Registrant
23.1 Consent of Hale and Dorr
(included in Exhibit 5.1)
23.2 Consent of Arthur Anderson LLP
24.1 Power of Attorney (included in the
signature pages of this Registration
Statement)
- ---------------------
* Previously filed with the Commission as an Exhibit to the Registrant's
Registration Statement on Form S-1, File No. 333-03340, which was
originally filed with the Commission April 10, 1996 and is incorporated
herein by reference.
<PAGE>
Exhibit 5.1
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June 24, 1996
Open Market, Inc.
245 First Street
Cambridge, MA 02142
Re: 1994 Stock Incentive Plan, 1996 Employee Stock
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Purchase Plan and 1996 Director Option Plan
--------------------------------------------
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on
Form S-8 (the "Registration Statement") to be filed with the Securities and
Exchange Commission relating to an aggregate of 6,832,022 shares of Common
Stock, $.001 par value per share (the "Shares"), of Open Market, Inc., a
Delaware corporation (the "Company"), issuable under the Company's 1994 Stock
Incentive Plan, 1996 Employee Stock Purchase Plan and 1996 Director Option Plan
(the "Plans").
We have examined the Amended and Restated Certificate of Incorporation
and By-laws of the Company and all amendments thereto, the Registration
Statement and originals, or copies certified to our satisfaction, of such
records of meetings, written actions in lieu of meetings or resolutions adopted
at meetings of the directors of the Company, and such other documents and
instruments as in our judgment are necessary or appropriate to enable us to
render the opinions expressed below.
In our examination of the foregoing documents, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals, the conformity to original documents of all documents submitted
to us as copies, and the authenticity of the originals of all such documents.
Based upon and subject to the foregoing, we are of the opinion that
the shares covered by the Registration Statement to be issued under the Plans
have been duly and validly authorized for issuance and, when issued and paid for
in accordance with the terms of the Plans, will be legally issued, fully paid
and nonassessable.
We hereby consent to the filing of this opinion with the Securities
and Exchange Commission in connection with the Registration Statement.
Very truly yours,
HALE AND DORR
<PAGE>
Exhibit 23.2
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our report dated
February 5, 1996 (except with respect to the matter discussed in Note 6
regarding Series C redeemable convertible preferred stock as to which the date
is March 16, 1996) included in Open Market, Inc.'s Registration Statement No.
333-03340 and to all references to our firm included in this Registration
Statement.
Arthur Andersen LLP
Boston, Massachusetts
June 20, 1996
