<PAGE>
As filed with the Securities and Exchange Commission on April 21, 2000
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, CA 95054
(Address of principal executive offices)
_______________________
TransLink Stock Option Plan
(Full title of the Plan)
_______________________
Jon A. Bode
Chief Financial Officer and
Vice President, Finance and Administration
Active Software, Inc.
3333 Octavius Drive
Santa Clara, CA 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)
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum Maximum Amount of
Amount to be Offering Price Aggregate Registration
Title of Securities to be Registered Registered(1) Per Share Offering Price Fee
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
TransLink Stock Option Plan
Common Stock,
$0.001 par value....................... 43,041 Shares $15.98 (2) $687,857 $181.59
TOTAL 43,041 Shares $15.98 $687,857 $181.59
-----
</TABLE>
_______________________
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Plan 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) Estimated in accordance with Rule 457(h) under the Securities Act solely
for the purpose of calculating the registration fee. There are no
authorized but unissued options under the 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
(the "Commission") are hereby incorporated by reference:
----------
(a) All reports the Registrant has filed with the Commission pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (the "Exchange
--------
Act") since August 13, 1999, including the annual report on Form 10-K filed on
- ---
March 30, 2000.
(b) 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 Exchange Act 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.
-----------------------------------
Item 8. Exhibits.
--------
Exhibit
Number
-------
4.1 TransLink Stock Option Plan.
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).
2
<PAGE>
- ---------------
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]
3
<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 Delaware, 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 April
21, 2000.
Active Software, Inc.
By: /s/ Jon A. Bode
---------------------------------------------
Jon A. Bode
Chief Financial Officer and
Vice President, Finance and Administration
4
<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 or she might or could do in
person, and ratifying and confirming all that the attorneys-in-fact and agents,
or his or her 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 April 21, 2000
- ----------------------------------
R. James Green (Principal Executive Officer) and Director
/s/ Jon A. Bode Chief Financial Officer and Vice President, April 21, 2000
- ----------------------------------
Jon A. Bode Finance and Administration (Principal
Financial and Accounting Officer)
Director April 21, 2000
- ----------------------------------
Rafael Bracho
/s/ Kevin R. Compton Director April 21, 2000
- ----------------------------------
Kevin R. Compton
/s/ James P. Gauer Director April 21, 2000
- ----------------------------------
James P. Gauer
/s/ Michael J. Odrich Director April 21, 2000
- ----------------------------------
Michael J. Odrich
Director April 21, 2000
- ----------------------------------
Conway Rulon-Miller, Jr.
/s/ Roger S. Siboni Director April 21, 2000
- ----------------------------------
Roger S. Siboni
</TABLE>
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number
-------
4.1 TransLink Stock Option Plan.
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).
<PAGE>
EXHIBIT 4.1
TRANSLINK SOFTWARE, INC.
STOCK OPTION PLAN
-----------------
Section 1. Purpose:
- --------------------
The purpose of the TransLink Software, Inc., Stock Option Plan (this
"Plan") is to provide a means whereby selected employees, directors, officers,
agents, consultants, advisors and independent contractors of TransLink Software,
Inc. (the "Company"), or of any parent or subsidiary (as defined in Subsection
5.8 and referred to hereinafter as "related corporations") thereof, may be
granted incentive stock options and/or nonqualified stock options to purchase
the Common Stock (as defined in Section 3) of the Company, in order to attract
and retain the services or advice of such employees, directors, officers,
agents, consultants, advisors and independent contractors and to provide added
incentive to such persons by encouraging stock ownership in the Company.
Section 2. Administration:
- --------------------------
This Plan shall be administered by the Board of Directors of the Company
(the "Board") or, in the event the Board shall appoint and/or authorize a
committee to administer this Plan, by such committee. The administrator of this
Plan shall hereinafter to be referred to as the "Plan Administrator."
In the event a member of the Plan Administrator may be eligible, subject
to the restrictions set forth in Section 4, to participate in this Plan, no
member of the Plan Administrator shall vote with respect to the granting of an
option hereunder to himself or herself, as the case may be, and, if state
corporate law does not permit a committee to grant options to directors, then
any option granted under this Plan to a director for his or her services as such
shall be approved by the full Board.
The members of any committee serving as Plan Administrator shall be
appointed by the Board of such term as the Board may determine. The Board may
from time-to-time remove members from, or add members to, the committee.
Vacancies on the committee, however caused, shall be filled by the Board.
With respect to grants made under this Plan to individuals who are
subject to Section 16 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), the Plan Administrator shall be constituted at all times so as
to meet the requirements of Rule 16b-3 promulgated under Section 16(b) of the
Exchange Act if any of the Company's equity securities are registered pursuant
to Section 12(b) or 12(g) of the Exchange Act.
1
<PAGE>
2.1 Procedures: The Board shall designate one of the members of
----------
the Plan Administrator as chairman. The Plan Administrator may hold meetings at
such times and places as it shall determine. The acts of a majority of the
members of the Plan Administrator present at meetings at which a quorum exists,
or acts reduced to or approved in writing by all Plan Administrator members,
shall be valid acts of the Plan Administrator.
2.2 Responsibilities: Except for the terms and conditions
----------------
explicitly set forth in this Plan, the Plan Administrator shall have the
authority, in its discretion, to determine all matters relating to the options
to be granted under this Plan, including selection of the individuals to be
granted options, the number of shares to be subject to each option, the exercise
price, and all other terms and conditions of the options. Grants under this Plan
need not be identical in any respect even when made simultaneously. The
interpretation and construction by the Plan Administrator of any terms or
provisions of this Plan or any option issued hereunder, or of any rule or
regulation promulgated in connection herewith shall be conclusive and binding on
all interested parties, so long as such interpretation and construction with
respect to incentive stock options correspond to the requirements of Section 422
of the Internal Revenue Code of 1986, as amended (the "Code"), the regulations
thereunder and any amendments thereto.
2.3 Rule 16b-3 Compliance and Bifurcation of Plan: It is the
---------------------------------------------
intention of the Company that, if any of the Company's equity securities are
registered pursuant to Section 12(b) or 12(g) of the Exchange Act, this Plan
shall comply in all respects with Rule 16b-3 under the Exchange Act. If any Plan
provision is later found not to be in compliance with such Section, the
provision shall be deemed null and void, and in all events this Plan shall be
construed in favor of its meeting the requirements of Rule 16b-3.
Notwithstanding anything in this Plan to the contrary, the Board, in its
absolute discretion, may bifurcate this Plan so as to restrict, limit or
condition the application of any provision of this Plan to participants who are
subject to Section 16 of the Exchange Act without so restricting, limiting or
conditioning this Plan with respect to other participants.
Section 3. Shares Subject to This Plan:
- ----------------------------------------
The shares subject to this Plan shall be the Company's Class A Voting
Common Stock (the "Common Stock"), currently authorized but unissued or
subsequently acquired by the Company. Subject to adjustment as provided in
Section 7, the aggregate amount of Common Stock to be delivered upon the
exercise of all options granted under this Plan shall not exceed nine hundred
forty thousand (940,000) shares, as such Common Stock was constituted on the
effective date of this Plan. If any option granted under this Plan shall expire
or be surrendered, exchanged for another option, canceled or terminated for any
reason without having been exercised in full, the unpurchased shares subject
thereto shall thereupon again be available for purposes of this Plan, including
for replacement options which may be granted in exchange for such expired,
surrendered, exchanged, canceled or terminated options.
Section 4. Eligibility:
- ------------------------
An incentive stock option may be granted only to an individual who, at
the time the option is granted, is an employee of the Company or a related
corporation. A nonqualified stock
2
<PAGE>
option may be granted to any employee, director, officer, agent, consultant,
advisor or independent contractor of the Company or any related corporation,
whether an individual or an entity. Any part to whom an option is granted under
this Plan shall be referred to hereinafter as an "Optionee."
Section 5. Terms and Conditions of Options:
- --------------------------------------------
Options granted under this Plan shall be evidenced by written agreements
which shall contain such terms, conditions, limitations and restrictions as the
Plan Administrator shall deem advisable and which are not inconsistent with this
Plan. Notwithstanding the foregoing, options shall include or incorporate by
reference the following terms and conditions:
5.1 Number of Shares and Price: Of the options available hereunder for
--------------------------
the maximum number of shares prescribed herein, an option to acquire one hundred
thousand (100,000) shares shall be granted to JOHN S. WIBORG ("Wiborg Options").
Except as modified by the provisions of Section 6 hereof, which provisions shall
be controlling, the Wiborg Options shall be subject to the terms and conditions
of this Section 5. Of the remaining eight hundred forty thousand (840,000)
shares authorized to be issued pursuant to options granted under this Plan, the
maximum number of shares that may be purchased pursuant to the exercise of each
such option shall be as established by the Plan Administrator. As to all options
except the Wiborg Options, the price per share (the "Exercise Price") shall be
equal to the fair market value for such shares on the date each option is
granted, which fair market value shall be determined by the Board of Directors
of the Company. Notwithstanding the foregoing, the Exercise Price shall not be
less than twenty-seven cents ($0.27) per share.
5.2 Term and Maturity: Subject to the provisions contained in Section 6
-----------------
with respect to the Wiborg Options, the term of each stock option shall be ten
years from the date it is granted. To ensure that the Company or a related
corporation will achieve the purpose and receive the benefits contemplated by
this Plan, but excluding the Wiborg Options which are exercisable in accordance
with Section 6, any option granted to Optionee hereunder shall, unless the
condition of this sentence is waived or modified in the agreement evidencing the
option or by resolution adopted at any time by the Plan Administrator, be
exercisable as follows:
Portion of Total Option
Which Is Exercisable
Period of Optionee's Continuous --------------------
Relationship With the Company or
Related Corporation From the Date
the Option Is Granted
---------------------------------
after one year 25 %
after one year six months 37.5%
after two year 50 %
after two years six months 62.5%
after three years 75 %
after three years six months 87.5%
after four years 100 %
3
<PAGE>
5.3 Exercise: Subject to the vesting schedule described in Subsection
---------
5.2 (or in Subsection 6.1 as to the Wiborg Options), each option may be
exercised in whole or in part at any time and from time-to-time; provided,
however, that no fewer than one hundred (100) shares (or the remaining shares
then purchasable under the option, if less than one hundred (100) shares) may be
purchased upon any exercise of option hereunder and that only whole shares will
be issued pursuant to the exercise of any option. An Option shall be exercised
by delivery to the Company of notice of the number of shares with respect to
which the option is exercised, together with payment of the exercise price.
5.4 Payment of Exercise Price: Payment of the option exercise price
-------------------------
shall be made in full at the time the notice of exercise of the option is
delivered to the Company and shall be in cash, bank certified or cashier's
check, or personal check ( unless at the time of exercise the Plan Administrator
in a particular case determines not to accept a personal check) for the shares
being purchased.
The Plan Administrator can determine at any time before exercise that
additional forms of payment will be permitted. To the extent permitted by the
Plan Administrator and applicable laws and regulations (including, but not
limited to, federal tax and securities laws and regulations and state corporate
law), an option may be exercised by delivery of shares of Common Stock of the
Company held by an Optionee having a fair market value equal to the exercise
price, such fair market value to be determined in good faith by the Plan
Administrator; provided, however, that payment in stock held by an Optionee
shall not be made unless the stock shall have been owned by the Optionee for a
period of at least six (6) months.
5.5 Withholding Tax Requirement: The Company or any related corporation
---------------------------
shall have the right to retain and withhold from any payment of cash or shares
of Common Stock under this Plan the amount of taxes required by any government
to be withheld or otherwise deducted and paid with respect to such payment. At
its discretion, the Company may require an Optionee receiving shares of Common
Stock to reimburse the Company for any such taxes required to be withheld by the
Company and withhold any distribution in whole or in part until the Company is
so reimbursed. In lieu thereof, the Company shall have the right to withhold
from any other cash amounts due or to become due from the Company to the
Optionee an amount equal to such taxes. The Company may also retain and withhold
or the Optionee may elect subject to approval by the Company at its sole
discretion, to have the Company retain and withhold a number of shares having a
market value not less than the amount of such taxes required to be withheld by
the Company to reimburse the Company for any such taxes and cancel (in whole or
in part) any such shares so withheld. In order to qualify such election for
exemption under Rule 16b-3 promulgated under Section 16(b) of the Exchange Act
any individual who is subject to Section 16 under the Exchange Act must exercise
the option during the quarterly ten (10) day window period required under
Section 16(b) of the Exchange Act for exercises of stock appreciation rights,
and the election relating to such option exercise must be (i) an irrevocable
election made six (6) months prior to the date the option exercise becomes
taxable; (ii) an election that is made during a window period; or (iii) an
election that is made prior to a window period, provided the election becomes
effective as of the next window period.
5.6 Holding Periods:
---------------
4
<PAGE>
5.6.1 Securities and Exchange Act Section 16: If an individual
--------------------------------------
subject to Section 16 of the Exchange Act sells shares of Common Stock obtained
upon the exercise of a stock option within six (6) months after the date the
option was granted, such sale may result in short-swing profit recovery under
Section 16(b) of the Exchange Act.
5.6.2 Taxation of Stock Options: In order to obtain certain tax
-------------------------
benefits afforded to incentive stock options under Section 422 of the Code, an
Optionee must hold the shares issued upon the exercise of an incentive stock
option for two (2) years after the date of grant of the option and one (1) year
from the date of exercise. An Optionee may be subject to the alternative minimum
tax at the time of exercise of an incentive stock option.
The Plan Administrator may require an Optionee to give the Company prompt
notice of any disposition of shares acquired by the exercise of an incentive
stock option prior to the expiration of such holding periods.
Tax advice should be obtained by an Optionee when exercising any option and
prior to the disposition of the shares issued upon the exercise of any option.
5.7 Transferability of Options: Options granted under this Plan and the
--------------------------
rights and privileges conferred hereby may not be transferred, assigned, pledged
or hypothecated in any manner (whether by operation of law or otherwise) other
than by will or by the applicable laws of descent and distribution and shall not
be subject to execution, attachment or similar process. During an Optionee's
lifetime, any options granted under this Plan are personal to him or her and are
exercisable solely by such Optionee. Any attempt to transfer, assign, pledge,
hypothecate or otherwise dispose of any option under this Plan or of any right
or privilege conferred hereby, contrary to the Code or to the provisions if this
Plan, or the sale or levy or any attachment or similar process upon the rights
and privileges conferred hereby shall be null and void. Notwithstanding the
foregoing, to the extent permitted by Rule 16b-3 under the Exchange Act and
other applicable law and regulation, the Plan Administrator may permit an
Optionee to (i) during the Optionee's lifetime, designate a person who may
exercise the option after the Optionee's death by giving written notice of such
designation to the Company (such designation may be changed from time-to-time by
the Optionee by giving written notice to the Company revoking any earlier
designation and making a new designation) or (ii) with respect to nonqualified
stock options, transfer the option and the rights and privileges conferred
hereby.
5.8 Termination of Relationship: If the Optionee's relationship with the
---------------------------
Company or any related corporation ceases for any reason other than termination
for cause, death or total disability, and unless by its terms the option sooner
terminates or expires, then the Optionee may exercise, for a thirty (30) day
period, that portion of the Optionee's option which is exercisable at the time
of such cessation, but the Optionee's option shall terminate at the end of such
period following such cessation as to all shares for which it has not
theretofore been exercised, unless such provision is waived in the agreement
evidencing the option. If, in the case of an incentive stock option, an
Optionee's relationship with the Company or any related corporation changes
(i.e., from employee to nonemployee, such as a consultant), such change shall
constitute a termination of an Optionee's employment with the Company or any
related corporation and the
5
<PAGE>
Optionee's incentive stock option shall terminate in accordance with this
Subsection 5.8. Upon the expiration of the three (3) month period following
cessation of employment in the case of an incentive stock option, or at any time
prior to the expiration of the option in the case of a nonqualified stock
option, the Plan Administrator shall have sole discretion in a particular
circumstance to extend the exercise period following such cessation to any date
up to the termination or expiration of the option. If, however, in the case of
an incentive stock option, the Optionee does not exercise the Optionee's option
within three (3) months after cessation of employment, the option will no longer
qualify as an incentive stock option under the Code.
If an Optionee is terminated for cause, each option granted hereunder shall
automatically terminate as of the first discovery by the Company of any reason
for termination for cause, and such Optionee shall thereupon have no right to
purchase any shares pursuant to such option. "Termination for cause" shall mean,
including the meaning given such term or similar term in any employment
agreement to which the terminated Optionee is subject, dismissal for dishonesty,
conviction or confession of a crime (except minor violations), fraud, misconduct
or disclosure of confidential information. If an Optionee's relationship with
the Company or any related corporation is suspended pending an investigation of
whether or not the Optionee shall be terminated for cause, the Optionee's rights
under each option granted hereunder likewise shall be suspended during the
period of investigation.
If an Optionee's relationship with the Company or any related corporation
ceases because of a total disability, the Optionee's option shall not terminate
or, in the case of an incentive stock option, cease to be treated as an
incentive stock option until the end of the twelve (12) month period following
such cessation (unless by its terms it sooner terminates or expires). As used in
this Plan, the term "total disability" refers to a mental or physical impairment
of the Optionee which is expected to result in death or which has lasted or is
expected to last for a continuous period of twelve (12) months or more and which
causes the Optionee to be unable, in the opinion of the Company and one (1)
independent physician or other qualified health care professional, to perform
his or her duties for the Company and to be engaged in any substantial gainful
activity. Total disability shall be deemed to have occurred on the first day
after the Company and the independent physician have asserted their opinion of
total disability to the Plan Administrator.
Options granted under the Plan shall not be affected by any change of
relationship with the Company so long as the Optionee continues to be an
employee, director, officer, agent, consultant, advisor or independent
contractor of the Company or of a related corporation; however, a change in an
Optionee's status from an employee to a nonemployee (e.g., consultant or
independent contractor) shall result in the termination of an outstanding
incentive stock option held by such Optionee. The Plan Administrator, in its
absolute discretion, may determine all questions of whether particular leaves of
absence constitute a termination of services; provided, however, that with
respect to incentive stock options, such determination shall be subject to any
requirements contained in the Code. The foregoing notwithstanding, with respect
to incentive stock options, employment shall not be deemed to continue beyond
the first ninety (90) days of such leave, unless the Optionee's reemployment
rights are guaranteed by statute or by contract.
As used herein, the term "related corporation," when referring to a
subsidiary corporation, shall mean any corporation (other than the Company) in,
at the time of the granting of the option,
6
<PAGE>
an unbroken chain of corporations ending with the Company, if stock possessing
fifty percent (50%) or more of the total combined voting power of all classes of
stock of each of the corporations other than the Company is owned by one of the
other corporations in such chain. When referring to a parent corporation, the
term "related corporation" shall mean any corporation in an unbroken chain of
corporations ending with the Company if, at the time of the granting of the
option, each of the corporations other than the Company owns stock possessing
fifty percent (50%) or more of the total combined voting power of all classes of
stock in one of the other corporations in such chain.
5.9 Death of Optionee: If an Optionee dies while he or she has a
-----------------
relationship with the Company or any related corporation or within the thirty
(30) day period (or twelve (12) month period in the case of totally disabled
Optionees) following cessation of such relationship, any option held by such
Optionee to the extent that the Optionee would have been entitled to exercise
such option, may be exercised within one (1) year after his or her death by the
personal representative of his or her estate or by the person or persons to whom
the Optionee's rights under the option shall pass (i) by will or by the
applicable laws of descent and distribution or (ii) by a designation or transfer
pursuant to Section 5.7.
5.10 No Status, as Shareholder: Neither the Optionee nor any party to
-------------------------
which the Optionee's rights and privileges under the option may pass shall be,
or have any of the rights or privileges of, a shareholder of the Company with
respect to any of the shares issuable upon the exercise of any option granted
under this Plan unless and until such option has been exercised.
5.11 Continuation of Relationship: Nothing in this Plan or in any option
----------------------------
shall confer upon any Optionee any right to continue in the employ or other
relationship of the Company or of a related corporation, or to interfere in any
way with the right of the Company or of any such related corporation to
terminate his or her employment or other relationship with the Company at any
time.
5.12 Limitation on Value for Incentive Stock Options: As to all incentive
-----------------------------------------------
stock options granted under the terms of this Plan, to the extent that the
aggregate fair market value of the shares (determined at the time the incentive
stock option is granted) with respect to which incentive stock options are
exercisable for the first time by the Optionee during any calendar year (under
this Plan and all other incentive stock option plans of the Company, a related
corporation or a predecessor corporation) exceeds One Hundred Thousand Dollars
($100,000.00), such options shall be treated as nonqualified stock options. The
previous sentence shall not apply if the Internal Revenue Service issues a
public rule, issues a private ruling to the Company, any Optionee or any
legatee, personal representative or distribute of an Optionee or issues
regulations changing or eliminating such annual limit.
Section 6. Wiborg Options:
- ---------------------------
6.1 Term of Wiborg Options: An option for one hundred thousand (100,000)
----------------------
shares of stock of the Company have been issued to JOHN S. WIBORG. The term of
such stock option shall be ten (10) years from the date such option is granted.
Such option shall be wholly exercisable on the date the option is granted and
the option holder may exercise all or any portion
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of his purchase rights thereunder at such time or times and in such blocks,
subject to Subsection 5.3 hereof, as the option holder shall elect during such
option term. The price per share for the Wiborg Options shall be Two and 63/100
Dollars ($2.63).
6.2 Conflicting Provisions: The provisions contained in this Section 6
----------------------
and subsections thereto shall control not withstanding any contrary terms
contained herein and in particular Section 5 hereof and subsections thereto.
Section 7. Adjustments Upon Changes in Capitalization:
------------------------------------------
The aggregate number and class of shares for which options may be granted
under this Plan, the number and class of shares covered by each outstanding
option, including the Wiborg Options, and the exercise price per share thereof
(but not the total price), and each such option, shall all be proportionately
adjusted for any increase or decrease in the number of issued shares of Common
Stock of the Company resulting from a split-up or consolidation of shares or any
like capital adjustment or the payment of any stock dividend.
7.1 Effect of Liquidation or Reorganization:
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7.1.1 Cash, Stock or Other Property for Stock: Except as provided
---------------------------------------
in Subsection 7.1.2, upon a merger (other than a merger of the Company in which
the holders of shares of Common Stock immediately prior to the merger have the
same proportionate ownership of shares of Common Stock in the surviving
corporation immediately after the merger), consolidation, acquisition of
property or stock, separation, reorganization (other than a mere reincorporation
or the creation of a holding company) or liquidation of the Company, as a result
of which the shareholders of the Company receive cash, stock or other property
in exchange for or in connection with their shares of Common Stock, any option
granted hereunder shall terminate, but the Optionee shall have the right
immediately prior to any such merger, consolidation, acquisition of property or
stock, separation, reorganization or liquidation to exercise such Optionee's
option to the extent the vesting requirements set forth in the option agreement
have been satisfied. All non-vested and unexercised options shall expire
coincidental with such merger, consolidation, acquisition of property or stock,
separation, reorganization or liquidation.
7.1.2 Conversion of Options on Stock for Stock Exchange: If the
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shareholders of the Company receive capital stock of another corporation
("Exchange Stock") in exchange for their shares of Common Stock in any
transaction involving a merger (other than a merger of the Company in which the
holders of Common Stock immediately prior to the merger have the same
proportionate ownership of Common Stock in the surviving corporation immediately
after the merger), consolidation, acquisition of property or stock, separation
or reorganization (other than a mere reincorporation or the creation of a
holding company), all options granted hereunder shall be converted into options
to purchase shares of Exchange Stock unless the Company and the corporation
issuing the Exchange Stock, in their sole discretion, determine that any or all
such options granted hereunder shall not be converted into options to purchase
shares of Exchange Stock but instead shall terminate in accordance with the
provisions of Subsection 7.1.1. The amount and price of converted options shall
be determined by adjusting the amount and price of the options granted hereunder
in the same proportion as used for
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determining the number of shares of Exchange Stock the holders of the shares of
Common Stock receive in such merger, consolidation, acquisition of property or
stock, separation or reorganization. Unless accelerated by the Board, the
vesting schedule set forth in the option agreement shall continue to apply to
the options granted for the Exchange Stock.
7.2 Fractional Shares: In the event of any adjustment in the number of
-----------------
shares covered by any option, any fractional shares resulting from such
adjustment shall be disregarded and each such option shall cover only the number
of full shares resulting from such adjustment.
7.3 Determination of Board to Be Final: All Section 7 adjustments shall
----------------------------------
be made by the Board, and its determination as to what adjustments shall be
made, and the extent thereof, shall be final, binding and conclusive. Unless an
optionee agrees otherwise, any change or adjustment to an incentive stock option
shall be made in such a manner so as not to constitute a "modification" as
defined in Code Section 425(h) and so as not to cause his or her incentive stock
option issued hereunder to fail to continue to qualify as an incentive stock
option as defined in Code Section 422(b).
Section 8. Securities Regulation:
- ----------------------------------
Shares shall not be issued with respect to an option granted under this
Plan unless the exercise of such option and the issuance and delivery of such
shares pursuant thereto shall comply with all relevant provisions of law
including, without limitation, any applicable state securities laws, the
Securities Act of 1933, as amended, the Exchange Act, the rules and regulations
promulgated thereunder, and the requirements of any stock exchange upon which
the shares may then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance, including the
availability, if applicable, of an exemption from registration for the issuance
and sale of any shares hereunder. Inability of the Company to obtain, from any
regulatory body having jurisdiction, the authority deemed by the Company's
counsel to be necessary for the lawful issuance and sale of any shares hereunder
or the unavailability of an exemption from registration for the issuance and
sale of any shares hereunder shall relieve the Company of any liability in
respect of the nonissuance or sale of such shares as to which such requisite
authority shall not have been obtained.
As a condition to the exercise of an option, the Company may require the
Optionee to represent and warrant at the time of any such exercise that the
shares are being purchased only for investment and without any present intention
to sell or distribute such shares if, in the opinion of counsel for the Company,
such a representation is required by any relevant provision of the
aforementioned laws. At the option of the Company, a stop-transfer order against
any shares of stock may be placed on the official stock books and records of the
Company, and a legend indicating that the stock may not be pledged, sold or
otherwise transferred, unless an opinion of counsel if provided (concurred in by
counsel for the Company) stating that such transfer is not in violation of any
applicable law or regulation, may be stamped on stock certificates in order to
assure exemption from registration. The Plan Administrator may also require such
other action or agreement by the Optionees as may from time-to-time be necessary
to comply with the federal and state securities laws. THIS PROVISION SHALL NOT
OBLIGATE THE COMPANY TO UNDERTAKE REGISTRATION OF THE OPTIONS OR STOCK
HEREUNDER.
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Should any of the Company's capital stock of the same class as the stock
subject to options granted hereunder be listed on a national securities
exchange, all stock issued hereunder if not previously listed on such exchange
shall be authorized by that exchange for listing thereon prior to the issuance
thereof.
Section 9. Amendment and Termination:
- --------------------------------------
9.1 Board Action: The Board may at any time suspend, amend or terminate
------------
this Plan, provided that, to the extent required for compliance with Rule 16b-3
promulgated under Section 16(b) of the Exchange Act Section 422 of the Code or
by any applicable law or regulation, the Company's shareholders must approve any
amendment which will:
(a) increase the number of shares that may be issued under this Plan;
(b) with respect to nonqualified stock options, materially modify the
requirements as to eligibility for participation in this Plan or, with respect
to incentive stock options, change the designation of the participants or class
of participants eligible for participation in this Plan;
(c) materially increase the benefits accruing to the participants
under this Plan; or
(d) otherwise require shareholder approval under any applicable law or
regulation.
Such shareholder approval must be obtained (i) within twelve (12) months of
the adoption by the Board of such amendment or (ii) if earlier, and to the
extent required for compliance with Rule 16b-3 promulgated under Section 16(b)
of the Exchange Act, at the next annual meeting of shareholders after such
adoption by the Board.
Any amendment made to this Plan which would constitute a "modification" to
incentive stock options outstanding on the date of such amendment shall not be
applicable to such outstanding incentive stock options, but shall have
prospective effect only, unless the Optionee agrees otherwise.
9.2 Automatic Termination: Unless sooner terminated by the Board, this
---------------------
Plan shall terminate ten (10) years from the earlier of (a) the date on which
this Plan is adopted by the Board or (b) the date on which this Plan is approved
by the shareholders of the Company. No option may be granted after such
termination or during any suspension of this Plan. The amendment or termination
of this Plan shall not without the consent of the option holder, alter or impair
any rights or obligations under any option theretofore granted under this Plan.
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Section 10. Effectiveness of This Plan:
- ----------------------------------------
This Plan shall become effective upon adoption by the Board so long as it
is approved by the Company's shareholders at any time within twelve (12) months
of such adoption of this Plan or, if earlier, and to the extent required for
compliance with Rule 16b-3 under the Exchange Act, at the next annual meeting of
shareholders after adoption by the Board.
Plan adopted by the Board of Directors on June 25, 1997, and approved
-------
by the shareholders on August 28, 1997.
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EXHIBIT 5.1
April 21, 2000
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 April 21, 2000 in connection with the registration
under the Securities Act of 1933, as amended, of a total of 43,041 shares of
your Common Stock (the "Shares") reserved for issuance under the TransLink Stock
Option 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 21, 2000
(February 27, 2000 as to Note 12), appearing in the Annual Report on Form 10-K
of Active Software, Inc. for the year ended December 31, 1999.
/s/ DELOITTE & TOUCHE LLP
San Jose, California
April 19, 2000
