<PAGE>
As filed with the Securities and Exchange Commission on August 18, 1999
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
________________
ACTIVE SOFTWARE, INC.
(Exact name of Registrant as specified in its charter)
Delaware 94-3232772
(State of incorporation) (I.R.S. Employer Identification No.)
3333 Octavius Drive
Santa Clara, California 95054
(Address of principal executive offices)
_______________________
1999 Stock Plan
1996 Stock Plan
1996A Stock Plan
1999 Directors' Stock Option Plan
1999 Employee Stock Purchase Plan
(Full title of the Plans)
_______________________
Jon A. Bode
Chief Financial Officer and
Vice President, Finance and Administration
ACTIVE SOFTWARE, INC.
3333 Octavius Drive
Santa Clara, California 95054
(408) 988-0414
(Name, address and telephone number, including area code, of agent for service)
_______________________
Copy to:
Mark A. Medearis
Venture Law Group
A Professional Corporation
2800 Sand Hill Road
Menlo Park, California 94025
(650) 854-4488
(Calculation of Registration Fee on following page)
<PAGE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------
Proposed Proposed
Maximum Amount Maximum Maximum Amount of
Title of Securities to be Registered to be Offering Price Aggregate Registration
Registered(1) Per Share Offering Price Fee
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1999 Stock Plan
Common Stock, $0.001 par value... 280,000 shares $12.00 (2) $ 3,360,000.00 $ 934.08
Common Stock, $0.001 par value... 4,220,000 shares $11.00 (3) $46,420,000.00 $12,904.76
1996 & 1996A Stock Plans
Common Stock, $0.001 par value... 3,344,950 shares $ 3.48 (2) $11,648,167.60 $ 3,238.19
Common Stock, $0.001 par value... 1,109 shares $11.00 (3) $ 12,199.00 $ 3.39
1999 Directors' Stock Option Plan
Common Stock, $0.001 par value... 300,000 shares $11.00 (3) $ 3,300,000.00 $ 917.40
1999 Employee Stock Purchase Plan
Common Stock, $0.001 par value... 1,100,000 shares $11.00 (4) $10,285,000.00 $ 2,859.23
TOTAL 9,246,059 shares $75,025,366.60 $20,857.05
----- ================ ============== ==========
</TABLE>
_______________________
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under any of the Plans being registered
pursuant to this Registration Statement by reason of any stock dividend,
stock split, recapitalization or any other similar transaction effected
without the receipt of consideration which results in an increase in the
number of the Registrant's outstanding shares of Common Stock.
(2) Computed in accordance with Rule 457(h) under the Securities Act of 1933
solely for the purpose of calculating the registration fee. Computation
based on the weighted average per share exercise price (rounded to nearest
cent) of outstanding options under the referenced plan, the shares issuable
under which are registered hereby.
(3) Estimated in accordance with Rule 457(h) under the Securities Act of 1933
solely for the purpose of calculating the registration fee. The
computation with respect to unissued options is based upon the proposed
maximum offering price per share as set forth in the Registrant's
Registration Statement on Form S-1/A (File No. 33-81325).
(4) Estimated in accordance with Rule 457(h) under the Securities Act of 1933
solely for the purpose of calculating the registration fee. The
computation is based on the proposed maximum offering price per share as
set forth in the Registrant's Registration Statement on Form S-1/A (File
No. 33-81325), multiplied by 85%, which is the percentage of the trading
purchase price applicable to purchases under the referenced Plan.
<PAGE>
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
are hereby incorporated by reference:
(a) The Registrant's Prospectus filed on August 13, 1999 pursuant to Rule
424(b) of the Securities Act, which contains audited financial statements for
the Registrant's latest fiscal year for which such statements have been filed.
(b) Not Applicable.
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the Commission under
Section 12 of the Securities Exchange Act of 1934 on June 15, 1999, 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 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 such documents.
Item 4. Description of Securities. Not applicable.
-------------------------
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Certain legal matters with respect to the legality of the issuance of the
common stock registered hereby will be passed upon for the Registrant by Venture
Law Group in Menlo Park, California. As of the date of this Registration
Statement, attorneys of Venture Law Group and an investment partnership
controlled by Venture Law Group beneficially own an aggregate of 34,155 shares
of the Registrant's common stock.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
The Registrant's Certificate of Incorporation reduces the liability of
a director to the corporation or its shareholders for monetary damages for
breaches of his or her fiduciary duty of care to the fullest extent permissible
under Delaware law. The Bylaws of the Registrant further provide for
indemnification of corporate agents to the maximum extent permitted by the
Delaware General Corporation Law. In addition, the Registrant has entered into
Indemnification Agreements with its officers and directors.
Item 7. Exemption from Registration Claimed. Not applicable.
-----------------------------------
<PAGE>
Item 8. Exhibits.
--------
<TABLE>
<CAPTION>
Exhibit No.
-----------
<S> <C>
5.1 Opinion of Venture Law Group, a Professional Corporation.
23.1 Consent of Venture Law Group, a Professional Corporation (included in Exhibit 5.1).
23.2 Consent of Independent Auditors.
24.1 Powers of Attorney (see signature page).
</TABLE>
Item 9. Undertakings.
------------
The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement 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.
(2) that, for purposes 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.
(3) 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.
The undersigned 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 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.
Insofar as the 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 a
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered hereunder, the Registrant will, unless in the opinion of its counsel
the question has already 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.
[Signature Pages Follow]
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
ACTIVE SOFTWARE, INC., a corporation organized and existing under the laws of
the State of California, 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 Santa Clara, State of California, on
this August 18, 1999.
ACTIVE SOFTWARE, INC.
By: /s/ Jon A. Bode
-----------------------------------
Jon A. Bode
Chief Financial Officer and
Vice President, Finance and Administration
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints R. James Green and Jon A. Bode, jointly
and severally, his or her attorneys-in-fact and agents, each with the power of
substitution and resubstitution, for him or her and in his or her name, place or
stead, in any and all capacities, to sign any amendments to this Registration
Statement on Form S-8, and to file such amendments, together with exhibits and
other documents in connection therewith, with the Securities and Exchange
Commission, granting to each attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as he might or could do in
person, and ratifying and confirming all that the attorneys-in-fact and agents,
or his substitute or substitutes, may do or cause to be done by virtue hereof.
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/ R. James Green President and Chief Executive Officer August 18, 1999
- ------------------------------------- (Principal Executive Officer) and Director
R. James Green
/s/ Jon A. Bode Chief Financial Officer and Vice President, August 18, 1999
- ------------------------------------- Finance and Administration (Principal
Jon A. Bode Financial and Accounting Officer)
/s/ Rafael Bracho Chief Technology Officer, Executive Vice August 18, 1999
- ------------------------------------- President and Director
Rafael Bracho
/s/ Kevin R. Compton Director August 18, 1999
- -------------------------------------
Kevin R. Compton
/s/ James P. Gauer Director August 18, 1999
- -------------------------------------
James P. Gauer
/s/ Michael J. Odrich Director August 18, 1999
- -------------------------------------
Michael J. Odrich
Director
- -------------------------------------
Conway Rulon-Miller, Jr.
/s/ Roger S. Siboni Director August 18, 1999
- -------------------------------------
Roger S. Siboni
</TABLE>
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number
-------
<S> <C>
5.1 Opinion of Venture Law Group, a Professional Corporation.
23.1 Consent of Venture Law Group, a Professional Corporation.
(included in Exhibit 5.1).
23.2 Independent Auditors' Consent.
24.1 Powers of Attorney (see signature page).
</TABLE>
<PAGE>
EXHIBIT 5.1
August 18, 1999
ACTIVE SOFTWARE, INC.
3333 Octavius Drive
Santa Clara, CA 95054
Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the "Registration
Statement") filed by you with the Securities and Exchange Commission (the
"Commission") on or about August 18, 1999 in connection with the registration
under the Securities Act of 1933, as amended, of a total of 9,246,059 shares of
your Common Stock (the "Shares") reserved for issuance under the 1999 Stock
Plan, the 1996 and 1996A Stock Plans, the 1999 Directors' Stock Option Plan, and
the 1999 Employee Stock Purchase Plan. As your counsel in connection with this
transaction, we have examined the proceedings taken and are familiar with the
proceedings proposed to be taken by you in connection with the sale and issuance
of the Shares.
It is our opinion that upon conclusion of the proceedings being taken or
contemplated by us, as your counsel, to be taken prior to the issuance of the
Shares, and upon completion of the proceedings being taken in order to permit
such transactions to be carried out in accordance with the securities laws of
the various states where required, the Shares when issued and sold in the manner
described in the Registration Statement will be legally and validly issued,
fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement, including the Prospectus constituting a part thereof,
and in any amendment thereto.
Very truly yours,
/s/ Venture Law Group
VENTURE LAW GROUP
A Professional Corporation
<PAGE>
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Active Software, Inc. on Form S-8 of our reports dated January 22, 1999 (August
5, 1999 as to Note 10 and July 15, 1999 as to Note 11) appearing in the
Registration Statement No. 333-80549 on Form S-1 of Active Software, Inc.
/s/ Deloitte & Touche LLP
Santa Jose, California
August 16, 1999
