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EXHIBIT 8.1
[Shaw Pittman Letterhead]
July 14, 2000
webMethods, Inc.
3930 Pender Drive
Fairfax, Virginia 22030
Dear Ladies & Gentlemen:
You have requested our opinion, as counsel to webMethods, Inc., a
Delaware corporation ("webMethods"), as to certain United States federal income
tax consequences of the merger (the "Merger") of Wolf Acquisition, Inc., a
Delaware corporation ("Merger Sub"), which is a directly owned subsidiary of
webMethods, with and into Active Software, Inc., a Delaware corporation ("Active
Software"), pursuant to the Agreement and Plan of Merger dated as of May 20,
2000, by and among webMethods, Merger Sub, and Active Software (the "Merger
Agreement"). All capitalized terms used but not defined herein shall have the
meanings ascribed to such terms in the Merger Agreement.
In preparing our opinion, we have with your permission assumed that
(i) the Merger will be consummated in accordance with the terms, conditions and
other provisions of (a) the Merger Agreement, (b) the Stockholders' Agreement
and Irrevocable Proxy dated as of May 20, 2000, (c) the Voting Agreement dated
as of May 20, 2000, (d) the Strategic Relationship Agreement dated as of May 20,
2000, and (e) the Affiliate Agreement dated as of May 20, 2000 (collectively
referred to herein as the "Agreements"), copies of which have been provided to
us; and (ii) all of the factual information, descriptions, representations and
assumptions set forth or referred to (a) in this letter (an advance copy of
which has been provided to you), (b) in the Agreements, and (c) in the Form S-4
Registration Statement filed with the Securities and Exchange Commission in
connection with the solicitation of the approval of the Merger by the
shareholders of webMethods and Active Software, are accurate and complete and
will be accurate and complete at the Effective Time. In addition, we have
assumed that the each of the representations made by Active Software, webMethods
and Merger Sub in the attached letters to us will be true and accurate as of the
Effective Time.
In our examination of such materials, we have assumed the
genuineness of all signatures, the legal capacity of all natural persons, the
authenticity of all documents
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webMethods, Inc.
July 14, 2000
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submitted to us as originals, the conformity to the original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such documents. We have not independently
verified any factual matters relating to the Merger in connection with or apart
from our preparation of this opinion. Accordingly, our opinion does not take
into account any matters not set forth herein which might have been disclosed by
independent verification.
Based on the foregoing, in reliance thereon and subject thereto, it
is our opinion that for United States federal income tax purposes, the Merger
will constitute a "reorganization" within the meaning of Sections 368(a)(1)(A)
and 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended (the "Code")
and that each of WebMethods, Merger Sub and Active Software will be a party to
such reorganization within the meaning of Section 368(b) of the Code.
Our opinion is limited to the foregoing United States federal income
tax consequences of the Merger. We do not address any other United States
federal income tax consequences of the Merger, other matters of federal law, or
matters (including state, local or foreign tax consequences) arising under the
laws of any other jurisdiction. We express no opinion as to the transactions
whatsoever if any of the transactions described in the Merger Agreement are not
consummated in accordance with the terms of the Merger Agreement and without
waiver of any material provision therein. If any of the representations,
warranties, statements and assumptions upon which we have relied is not true and
accurate at all relevant times, our opinion may be adversely affected and should
not be relied upon.
This opinion represents our best judgement as to the probable
federal income tax consequences of the Merger, and is not binding on the
Internal Revenue Service rulings as of the Effective Time. Our opinion is also
based on the Code, Treasury Regulations, case law, and Internal Revenue Service
rulings as of the Effective Time. These authorities are all subject to change
and such change may be made with retroactive effect.
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webMethods, Inc.
July 14, 2000
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This opinion letter is being rendered to you in connection with the
Merger and in satisfaction of the requirement set forth in Section 6.1(f) of the
Merger Agreement. This opinion letter (and the opinion expressed herein) may not
be relied on by you for any other purpose, or relied on by, or furnished to, any
other person, firm or corporation without our prior written consent. We
undertake no responsibility to update or supplement our opinion.
We consent to the use of this opinion as an exhibit to the
Registration Statement, to references to this opinion in the Registration
Statement and to the use of our name in the Registration Statement under the
heading "U.S. Federal Income Tax Consequences of the Merger" therein. In giving
this consent, we do not admit that we are within the category of persons whose
consent is required under Section 7 of the Securities Act of 1933, as amended,
or the rules or regulations promulgated thereunder. The filing of this opinion
as an exhibit to the Registration Statement and the references to the opinion
and our firm therein are not intended to create liability under applicable state
law to any person other than webMethods, our client.
Very truly yours,
Shaw Pittman
By: /s/ Charles B. Temkin, P.C.
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Charles B. Temkin, P.C.
