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[LETERHEAD OF VENTURE LAW GROUP]
EXHIBIT 8.2
July 14, 2000
Active Software, Inc.
3333 Octavius Drive
Santa Clara, CA 95054
Ladies and Gentlemen:
We have acted as counsel for Active Software, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and execution of
the Agreement and Plan of Merger dated as of May 20, 2000, by and among the
Company, webMethods, Inc., a Delaware corporation ("Parent"), and Wolf
Acquisition, Inc., a Delaware corporation and a wholly owned subsidiary of
Parent ("Merger Sub"). Pursuant to the Agreement, Merger Sub will merge with and
into the Company (the "Merger"), and the Company will become a wholly owned
subsidiary of Parent. Unless otherwise defined, capitalized terms referred to
herein have the meanings set forth in the Agreement. All section references,
unless otherwise indicated, are to the Internal Revenue Code of 1986, as amended
(the "Code").
You have requested our opinion regarding certain United States
federal income tax consequences of the Merger. In delivering this opinion, we
have reviewed and relied upon (without any independent investigation) the facts,
statements, descriptions and representations set forth in the Agreement
(including Exhibits), the registration statement on Form S-4 filed with the
Securities and Exchange Commission (which includes a joint proxy
statement-prospectus relating to the Merger) (the "Registration Statement"), and
such other documents pertaining to the Merger as we have deemed necessary or
appropriate. We have also relied upon (without any independent investigation)
certificates of officers of Parent, Merger Sub and the Company, respectively
(the "Officers' Certificates") in forms attached hereto as Exhibits A and B.
In connection with rendering this opinion, we have assumed (without
any independent investigation) that:
1. To the extent any expenses relating to the Merger (or the "plan
of reorganization" within the meaning of Treas. Reg. Section 1.368-1(c) with
respect to the Merger) are funded directly or indirectly by a party other than
the incurring party, such expenses will be reorganization expenses within the
guidelines established in Revenue Ruling 73-54, 1973-1 C.B. 187.
2. At all relevant times prior to and including the Effective Date,
(i) no outstanding
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Active Software, Inc.
July __, 2000
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indebtedness of the Company, Parent, or Merger Sub has or will represent equity
for tax purposes; (ii) no outstanding equity of the Company, Parent, or Merger
Sub has represented or will represent indebtedness for tax purposes; (iii) no
outstanding security, instrument, agreement or arrangement that provides for,
contains, or represents either a right to acquire the Company's capital stock
(or to share in the appreciation thereof) constitutes or will constitute "stock"
for purposes of Section 368(c) of the Code.
3. Original documents (including signatures) are authentic,
documents submitted to us as copies conform to the original documents, and there
has been (or will be by the Effective Time) due execution and delivery of all
documents where due execution and delivery are prerequisites to effectiveness
thereof.
4. Any representation or statement referred to above made "to the
knowledge of," "to the best of the knowledge" or otherwise similarly qualified
is correct without such qualification. As to all matters in which a person or
entity making a representation referred to above has represented that such
person or entity either is not a party to, does not have, or is not aware of,
any plan, intention, understanding or agreement, there is in fact no such plan,
intention, understanding or agreement.
5. All statements, descriptions and representations contained in any
of the documents referred to herein or otherwise made to us are true and correct
in all material respects and will continue to be true and correct in all
material respects as of the Effective Time and all other relevant times, and no
actions have been (or will be) taken which are inconsistent with such
representations.
6. The Merger will be reported by Parent and the Company on their
respective federal income tax returns in a manner consistent with the opinion
set forth below.
7. The Merger will be consummated in accordance with the Agreement
(and without any waiver, breach or amendment of any of the provisions thereof)
and will be effective under the applicable state laws.
8. An opinion of counsel, substantially identical in substance to
this opinion, has been delivered to Parent from Shaw Pittman, and will not be
withdrawn prior to the Effective Date.
Based on our examination of the foregoing items and subject to the
assumptions, exceptions, limitations and qualifications set forth herein and in
the Registration Statement, we are of the opinion that if the Merger is
consummated in accordance with the provisions of the Agreement (and without any
waiver, breach or amendment of any of the provisions thereof) and
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July 14, 2000
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the statements set forth in the Officers' Certificates are true and correct as
of the Effective Time, the Merger will be a "reorganization" for federal income
tax purposes within the meaning of Section 368(a) of the Code.
This opinion represents and is based upon our best judgment
regarding the application of federal income tax laws arising under the Code,
existing judicial decisions, administrative regulations and published rulings
and procedures. Our opinion is not binding upon the Internal Revenue Service or
the courts, and there is no assurance that the Internal Revenue Service will not
successfully assert a contrary position. Furthermore, no assurance can be given
that future legislative, judicial or administrative changes, on either a
prospective or retroactive basis, would not adversely affect the accuracy of the
conclusions stated herein. Nevertheless, we undertake no responsibility to
advise you of any new developments in the application or interpretation of the
federal income tax laws.
This opinion concerning certain of the U.S. federal tax consequences
of the Merger is limited to the specific U.S. federal tax consequences presented
above, and does not address any other federal, state, local or foreign tax
consequences that may result from the Merger or any other transaction (including
any transaction undertaken in connection with the Merger).
No opinion is expressed as to any transaction other than the Merger
as described in the Agreement or to any transaction whatsoever, including the
Merger, if all the transactions described in the Agreement are not consummated
in accordance with the terms of such Agreement and without waiver or breach of
any material provision thereof or if all of the representations, warranties,
statements and assumptions upon which we relied are not true and accurate at all
relevant times. In the event any one of the statements, representations,
warranties or assumptions upon which we have relied to issue this opinion is
incorrect, our opinion might be adversely affected and may not be relied upon.
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 S-4 Registration Statement and the references to the
opinion and our firm therein are not
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intended to create liability under applicable state law to any person other than
the Company, our client.
Very truly yours,
VENTURE LAW GROUP
A Professional Corporation
