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As filed with the Securities and Exchange Commission on October 22, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
OPEN MARKET, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 04-3214536
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
One Wayside Road, Burlington, Massachusetts 01752
(Address of Principal Executive Offices) (Zip Code)
FUTURETENSE, INC. 1996 STOCK INCENTIVE PLAN
(Full Title of the Plan)
Gary B. Eichhorn
Chief Executive Officer
Open Market, Inc.
One Wayside Road
Burlington, MA 01803
(Name and Address of Agent For Service)
(781) 359-3000
(Telephone Number, Including Area Code, of Agent For Service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==========================================================================================
Proposed Proposed
Title of maximum maximum
securities to be Amount to be offering price aggregate Amount of
registered registered per share offering price registration fee
- ---------------- ------------ -------------- -------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, $.001 1,125,000 $12.7815 (1) $14,379,188 (1) $3,998
par value shares
- ------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee, and
based upon the average of the high and low prices of the Common Stock on
the Nasdaq National Market October 18, 1999 in accordance with Rules 457(c)
and 457(h) of the Securities Act of 1933, amended.
================================================================================
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EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed to register the
shares of common stock, $.001 par value per share (the "Common Stock"), of Open
Market, Inc., a Delaware corporation (the "Registrant"), issuable pursuant to
the 1996 Stock Incentive Plan of FutureTense, Inc., a Delaware corporation
("FutureTense"). On October 15, 1999, pursuant to the terms of Section 1.11 of
the Agreement and Plan of Merger among the Registrant, OM/SA Acquisition
Corporation, a Delaware corporation and a wholly owned subsidiary of the
Registrant, and FutureTense, dated as of July 14, 1999, the Registrant assumed
all of the outstanding options to purchase shares of common stock of FutureTense
under the 1996 Stock Incentive Plan of FutureTense.
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 FutureTense, Inc. 1996 Stock Incentive Plan, pursuant to
Rule 428(b)(1) under the Securities Act of 1933, as amended (the "Securities
Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The Registrant is subject to the informational and reporting requirements
of Sections 13(a), 14 and 15(d) of the Securities and 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 filed with the
Commission, are incorporated in this Registration Statement by reference:
(1) 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.
(2) 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 document
referred to in (1) above.
(3) The description of the 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.
2
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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 shares of Common Stock offered
hereby have been sold or which deregisters all shares of Common Stock then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of the 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 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.
Item 4. Description of Securities.
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
The validity of the authorization and issuance of the Common Stock offered
hereby will be passed upon for the Registrant by Hale and Dorr LLP, 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 LLP. As of the date
of this Registration Statement, certain partners of Hale and Dorr LLP own in the
aggregate 28,766 shares of the Registrant's Common Stock distributed to them by
H&D Investments II, a partnership comprised of certain partners of Hale and Dorr
LLP.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was a director, officer, employee or agent of the corporation or
is or was serving at its request in such capacity in another corporation or
business association, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he 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 conduct was unlawful.
Section 102(b)(7) of the Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a director of
the
3
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corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit.
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.
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.
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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.
-----------------------------------
Not applicable.
Item 8. Exhibits.
--------
The Exhibit Index immediately preceding the exhibits is incorporated herein
by reference.
Item 9. Undertakings.
------------
1. The 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;
(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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(i) and (a)(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8, 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
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Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in the Registration Statement.
(b) 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.
(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.
2. The Registrant hereby undertakes that, for the 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 in the initial bona fide offering thereof.
3. 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 of 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.
6
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Burlington, Commonwealth of Massachusetts, on the
22nd day of October, 1999.
OPEN MARKET, INC.
By: /s/ Gary B. Eichhorn
---------------------
Gary B. Eichhorn
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Open Market, Inc. hereby
severally constitute and appoint Gary B. Eichhorn, Betty J. Savage and Paul P.
Brountas, Esq., 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 subsequent 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 all
requirements of the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by said attorneys, or any of
them, to said Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the date indicated.
Signature Title Date
- --------- ----- ----
/s/ Gary B. Eichhorn Chief Executive Officer and October 22, 1999
- ------------------------- Director (Principal Executive
Gary B. Eichhorn Officer)
/s/ Ronald Matros President, Chief Operating October 22, 1999
- ------------------------- Officer and Director
Ronald Matros
7
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/s/ Betty J. Savage Chief Financial Officer October 22, 1999
- ------------------------- (Principal Financial Officer)
Betty J. Savage
/s/ Annmarie Russell Director of Finance October 22, 1999
- ------------------------- (Principal Accounting Officer)
Annmarie Russell
/s/ Gulrez Arshad Director October 22, 1999
- -------------------------
Gulrez Arshad
/s/ Thomas H. Bruggere Director October 22, 1999
- -------------------------
Thomas H. Bruggere
/s/ Shikhar Ghosh Director October 22, 1999
- -------------------------
Shikhar Ghosh
/s/ William S. Kaiser Director October 22, 1999
- -------------------------
William S. Kaiser
/s/ Eugene F. Quinn Director October 22, 1999
- -------------------------
Eugene F. Quinn
/s/ Harland LaVigne Director October 22, 1999
- -------------------------
Harland LaVigne
Director October __, 1999
- -------------------------
Paul Sagan
8
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Exhibit Index
-------------
Exhibit
Number Description
- ------ -----------
4.1(1) -- Amended and Restated Certificate of Incorporation of the
Registrant, as amended
4.2(2) -- Amended and Restated By-Laws of the Registrant
5.1 -- Opinion of Hale and Dorr LLP
23.1 -- Consent of Hale and Dorr LLP (included in Exhibit 5.1)
23.2 -- Consent of Arthur Andersen LLP
24.1 -- Power of Attorney (included in the signature pages of this
Registration Statement)
______________
(1) Incorporated herein by reference to the Registrant's Registration Statement
on Form S-4 (File No. 333-84801).
(2) Incorporated herein by reference to the Registrant's Registration Statement
on Form S-1 (File No. 333-03340).
<PAGE>
[LETTERHEAD OF HALE AND DORR LLP APPEARS HERE]
Exhibit 5.1
-----------
October 22, 1999
Open Market, Inc
One Wayside Road
Burlington, MA 01803
Re: Registration Statement on Form S-8
----------------------------------
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 1,125,000 shares of common stock, $.001
par value per share (the "Shares"), of Open Market, Inc., a Delaware corporation
(the "Company"), issuable under the FutureTense, Inc. 1996 Stock Incentive Plan
(the "Plan").
We have examined the Amended and Restated Certificate of Incorporation and
the Amended and Restated By-Laws of the Company, and 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 certified or photostatic copies, and the authenticity of the originals
of 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 Plan have
been duly and validly authorized for issuance, and when issued in accordance
with the terms of the Plan, will be legally issued, fully paid and
nonassessable.
<PAGE>
Open Market, Inc.
October 22, 1999
Page 2
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an Exhibit to the Registration Statement.
Very truly yours,
/s/ HALE AND DORR LLP
---------------------
HALE AND DORR LLP
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Exhibit 23.2
------------
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 2, 1999
included in Open Market, Inc's Form 10-K/A for the year ended December 31, 1998
and to all references to our Firm included in this Registration Statement.
/s/ Arthur Andersen LLP
-----------------------
Arthur Andersen LLP
Boston, Massachusetts
October 21, 1999
