-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, RMp9lzfVHU2vK7r+MuqboOuYOj+T3kVhGmVenXd0+J84DFNr2v7+w3uAMvXl8HRN OiMAEuPQJkM8Pu+YwCyIyg== /in/edgar/work/20000911/0000912057-00-040845/0000912057-00-040845.txt : 20000922 0000912057-00-040845.hdr.sgml : 20000922 ACCESSION NUMBER: 0000912057-00-040845 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20000911 EFFECTIVENESS DATE: 20000911 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BLUESTONE SOFTWARE INC CENTRAL INDEX KEY: 0001039242 STANDARD INDUSTRIAL CLASSIFICATION: [7372 ] IRS NUMBER: 222964141 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-45564 FILM NUMBER: 720747 BUSINESS ADDRESS: STREET 1: 1000 BRIGGS RD CITY: MT LAUREL STATE: NJ ZIP: 08054 BUSINESS PHONE: 6097274600 MAIL ADDRESS: STREET 1: 1000 BRIGGS ROAD CITY: MT LAUREL STATE: NJ ZIP: 08054 S-8 1 a2025107zs-8.txt FORM S-8 As filed with the Securities and Exchange Commission on September 11, 2000 Registration No. 333-_______ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 BLUESTONE SOFTWARE, INC. (Exact Name of Registrant as Specified in Its Charter) DELAWARE 22-2964141 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification No.) BLUESTONE SOFTWARE, INC. 300 STEVENS DRIVE PHILADELPHIA, PENNSYLVANIA 19113 (Address of Principal Executive Offices) --------------------------------- 2000 EMPLOYEE STOCK PURCHASE PLAN (Full Title of the Plan) --------------------------------- PAUL T. PORRINI, ESQUIRE SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY BLUESTONE SOFTWARE, INC. 300 STEVENS DRIVE PHILADELPHIA, PENNSYLVANIA 19113 (Name and address of agent for service) (610) 915-5005 (Telephone number, including area code, of agent for service) CALCULATION OF REGISTRATION FEE
=============================================================================================================================== AMOUNT OF PROPOSED MAXIMUM PROPOSED MAXIMUM TITLE OF SECURITIES TO SHARES TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF BE REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) REGISTRATION FEE(2) =============================================================================================================================== Common Stock, par value $0.001 600,000 $22.9375 $13,762,500 $3,634 - -------------------------------------------------------------------------------------------------------------------------------
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, this Registration Statement also covers such additional shares as may hereinafter be offered or issued to prevent dilution resulting from stock splits, stock dividends, recapitalization or certain other capital adjustments. (2) Calculated pursuant to Rule 457(h) under the Securities Act of 1933, based upon the average of the high and low sale prices of the Registrant's Common Stock reported on the NASDAQ National Market on September 7, 2000. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents which have been filed by Bluestone Software Inc. ("registrant" or the "Company") with the Securities and Exchange Commission (the "Commission") are incorporated by reference into this Registration Statement: (a) the Company's Annual Report on Form 10-K for the year ended December 31, 1999; (b) the Company's Quarterly Reports on Form 10-Q for the quarters ended March 31 and June 30, 2000; and (c) the description of the Common Stock, of the Company contained in the Company's Registration Statement on Form 8-A dated July 7, 1999, including any amendments or reports filed for the purpose of updating such description. All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") after the date hereof and prior to the filing of a post-effective amendment which indicates that all securities offered pursuant to this Registration Statement have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES. The Common Stock, which is the class of securities offered pursuant to this Registration Statement, is registered under the Exchange Act. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Certain legal matters with respect to the Common Stock offered hereby will be passed upon by Paul T. Porrini, Senior Vice President, General Counsel and Secretary of the Company. Mr. Porrini beneficially owns 1,169 shares of Common Stock and also has options to purchase 135,000 shares of Common Stock, none of which are currently exercisable. Additionally, Mr. Porrini is eligible to participate in the Company's employee benefit plans, including the 2000 Employee Stock Purchase Plan. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 of the Delaware General Corporation Law permits each Delaware business corporation to indemnify its directors, officers, employees and agents against liability for each such person's acts taken in his or her capacity as a director, officer, employee or agent of the corporation if such actions were taken in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the corporation, and with respect to any criminal action, if he or she had no reasonable cause to believe his or her conduct was unlawful. The Registrant's bylaws provide that the Registrant, to the full extent permitted by section 145 of the Delaware General Corporation Law, shall indemnify all past and present directors, officers, employees and agents of the Registrant who were or are parties or are threatened to be made parties to or are involved in any action, suit or proceeding against all expenses, liability and losses in connection with such proceeding. Such expenses may be paid by the Registrant in advance of the final disposition of the action upon receipt of an undertaking to repay the advance if it is ultimately determined that such person is not entitled to indemnification. As permitted by Section 102(b)(7) of the Delaware General Corporation Law, the Registrant's certificate of incorporation provides that no director of the Registrant shall be liable to the Registrant 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 Registrant or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or II-1 a knowing violation of law, (iii) for the unlawful payment of dividends on or redemption of the Registrant's capital stock or (iv) for any transaction from which the director derived an improper personal benefit. The Registrant has obtained a policy insuring it and its directors and officers against certain liabilities, including liabilities under the Securities Act. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. No restricted securities are being reoffered or resold pursuant to this Registration Statement. ITEM 8. EXHIBITS.
Exhibit No. Description 4 2000 Employee Stock Purchase Plan 5 Opinion of Paul T. Porrini, Senior Vice President, General Counsel and Secretary 23.1 Consent of Arthur Andersen LLP 23.2 Consent of Paul T. Porrini (Included in Exhibit 5) 24 Power of Attorney (See Signature Page)
ITEM 9. UNDERTAKINGS. The undersigned registrant hereby undertakes as follows: (1) To file, during any period in which offers or sales are being made pursuant to this Registration Statement, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent post-effective amendment thereof) which, individually or in aggregate, represent a fundamental change in the information set forth in this registration statement. Notwithstanding the foregoing, any increase or decrease in the 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 a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement; provided, however, that paragraphs (i) and (ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, 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. II-2 The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this 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 indemnification for liabilities arising under the Securities Act of 1933 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-3 SIGNATURES Pursuant to the requirements of the Securities Act, 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 Philadelphia, Pennsylvania on the date indicated. BLUESTONE SOFTWARE, INC. Date: September 11, 2000 By: /s/ P. KEVIN KILROY -------------------------------- P. Kevin Kilroy Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Paul T. Porrini and S. Craig Huke and each of them, his true and lawful attorney-in-fact and agent with full power of substitution or resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this Form S-8 and other registration statements related to this Form S-8 by virtue of General Instruction E thereto, and to file the same, with all exhibits thereto, and other documentation in connection therewith, with the SEC, granting unto said attorney-in-fact and agents 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 to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act, this registration statement has been signed below by the following persons on behalf of the registrant in the capacities indicated and on the 11th day of September, 2000.
NAME TITLE - ---- ----- /s/ P. KEVIN KILROY Chief Executive Officer and - -------------------------- Chairman of the Board (Principal Executive Officer) P. Kevin Kilroy /s/ S. CRAIG HUKE Executive Vice President and Chief Financial - -------------------------- Officer (Principal Financial and Accounting Officer) S. Craig Huke /s/ P. MELAN BAIADA Director - -------------------------- P. Melan Baiada /s/ PAUL E. BLONDIN Director - -------------------------- Paul E. Blondin /s/ GREGORY M. CASE Director - -------------------------- Gregory M. Case /s/ ANDREW J. FILIPOWSKI Director - -------------------------- Andrew J. Filipowski /s/ WILLIAM C. HULLEY Director - -------------------------- William C. Hulley
II-4 EXHIBIT INDEX
EXHIBIT NUMBERS DESCRIPTION - --------------- ----------- 4 2000 Employee Stock Purchase Plan 5 Opinion of Paul T. Porrini, Senior Vice President, General Counsel and Secretary 23.1 Consent of Arthur Andersen LLP 23.2 Consent of Paul T. Porrini (Included in opinion filed as Exhibit 5) 24 Power of Attorney (See Signature Page)
EX-4 2 a2025107zex-4.txt EXHIBIT 4 Exhibit 4 2000 EMPLOYEE STOCK PURCHASE PLAN 1. PURPOSE. The Bluestone Software, Inc. 2000 Employee Stock Purchase Plan (the "Plan") is broadly based and intended to encourage and facilitate the purchase of Shares of the Common Stock of Bluestone Software, Inc. (the "Company"), by employees of the Company and any Participating Companies, thereby providing employees with a personal stake in the Company and a long range inducement to remain in the employ of the Company and Participating Companies. It is the intention of the Company that the Plan qualify as an "employee stock purchase plan" within the meaning of Section 423 of the Code. 2. DEFINITIONS. (a) "ACCOUNT" means a bookkeeping account established by the Committee on behalf of a Participant to hold Payroll Deductions. (b) "APPROVED LEAVE OF ABSENCE" means a leave of absence that has been approved by the applicable Participating Company in such a manner as the Board may determine from time to time. (c) "BOARD" means the Board of Directors of the Company. (d) "CODE" means the Internal Revenue Code of 1986, as amended. (e) "COMMITTEE" means the Committee appointed pursuant to Section 14 of the Plan. (f) "COMPANY" means Bluestone Software, Inc. and any successor(s). (g) "COMPENSATION" means an Employee's cash compensation payable for services to a Participating Company. (h) "ELECTION FORM" means the form acceptable to the Committee which an Employee shall use to make an election to purchase Shares through Payroll Deductions pursuant to the Plan. (i) "ELIGIBLE EMPLOYEE" means an Employee who meets the requirements for eligibility under Section 3 of the Plan. (j) "EMPLOYEE" means a person who is an employee of a Participating Company. (k) "FAIR MARKET VALUE" means the closing price per Share on the principal national securities exchange on which the shares are listed or admitted to trading or, if not listed or traded on any such exchange, on the National Market System of the National Association of Securities Dealers Automated Quotation System ("NASDAQ"), or if not listed or traded on any such exchange or market, the fair market value as reasonably determined by the Board, which determination shall be conclusive. (l) "FIVE PERCENT OWNER" means an Employee who, with respect to a Participating Company, is described in Section 423(b) of the Code. (m) "OFFERING" means an offering of Shares to Eligible Employees pursuant to the Plan. (n) "OFFERING COMMENCEMENT DATE" means the first day of each January, April, July and October beginning on or after adoption of the Plan by the Board; provided that the Board may delay the first Offering Commencement Date after adoption of the Plan until the first day of any month in the third or fourth calendar quarter in 2000. (o) "OFFERING PERIOD" means the period extending from an Offering Commencement Date through the following Offering Termination Date. (p) "OFFERING TERMINATION DATE" means the last day of each March, June, September and December following an Offering Commencement Date. (q) "OPTION PRICE" means eighty five percent (85%) of the lesser of: (1) the Fair Market Value per Share on the Offering Commencement Date, or if such date is not a trading day, then on the next trading day thereafter or (2) the Fair Market Value per Share on the Offering Termination Date, or if such date is not a trading day, then on the next trading day thereafter. (r) "PARTICIPANT" means an Employee who meets the requirements for eligibility under Section 3 of the Plan and who has timely delivered an Election Form to the Committee. (s) "PARTICIPATING COMPANY" means, as provided in Schedule A, the Company and subsidiaries of the Company, within the meaning of Section 424(f) of the Code, if any, that are approved by the Board from time to time and whose employees are designated as Employees by the Board. (t) "PAYROLL DEDUCTIONS" means amounts withheld from a Participant's Compensation pursuant to the Plan, as described in Section 5 of the Plan. (u) "PLAN" means Bluestone Software, Inc. 2000 Employee Stock Purchase Plan, as set forth in this document, and as may be amended from time to time. (v) "PLAN TERMINATION DATE" means the earlier of: (1) The Offering Termination Date for the Offering in which the maximum number of Shares specified in Section 5 of the Plan have been issued pursuant to the Plan; or (2) The date as of which the Board chooses to terminate the Plan as provided in Section 15 of the Plan. (w) "SHARES" means shares of Common Stock of the Company. (x) "SUCCESSOR-IN-INTEREST" means the Participant's executor or administrator, or such other person or entity to whom the Participant's rights under the Plan shall have passed by will or the laws of descent and distribution. (y) "TERMINATION FORM" means the form acceptable to the Committee which an Employee shall use to withdraw from an Offering pursuant to Section 8 of the Plan. 3. ELIGIBILITY AND PARTICIPATION. (a) INITIAL ELIGIBILITY. Except as provided in Section 3(b) of the Plan, each individual who is an Employee on an Offering Commencement Date shall be eligible to participate in the Plan. (b) INELIGIBILITY. An Employee shall not be eligible to participate in the Plan if such Employee: (1) Is a Five Percent Owner; (2) Is a temporary Employee; or (3) Is restricted from participating under Section 3(d) of the Plan. (c) LEAVE OF ABSENCE. A Participant who goes on an Approved Leave of Absence before an Offering Termination Date after having filed an Election Form with respect to such Offering shall continue to be eligible to participate in the Plan through the end of such Offering Period. Termination by the Participating Company of an Employee's Approved Leave of Absence, other than termination or return to non-temporary employment, shall terminate an Employee's employment for all purposes of the Plan and shall terminate such Employee's participation in the Plan and the right to exercise any option. An Approved Leave of Absence shall be considered active employment for purposes of Section 3(b)(3) of the Plan. (d) RESTRICTIONS ON PARTICIPATION. Notwithstanding any provisions of the Plan to the contrary, no Employee shall be granted an option to participate in the Plan if: (1) Immediately after the grant, such Employee would be a Five Percent Owner; or (2) Such option would permit such Employee's rights to purchase stock under all employee stock purchase plans of the Participating Companies which meet the requirements of Section 423(b) of the Code to accrue at a rate which exceeds $25,000 in fair market value (as determined pursuant to Section 423(b)(8) of the Code) for each calendar year in which such option is outstanding. (e) COMMENCEMENT OF PARTICIPATION. An Employee who meets the eligibility requirements of Sections 3(a) and 3(b) of the Plan and whose participation is not restricted under Section 3(d) of the Plan shall become a Participant by completing an Election Form and filing it with the Committee on or before the 15th day of the month immediately preceding the Offering Commencement Date for the first Offering to which such Election Form applies or such other date as specified by the Committee. Payroll Deductions for a Participant shall commence on the applicable Offering Commencement Date when his or her authorization for Payroll Deductions becomes effective, and shall end on the Plan Termination Date, unless sooner terminated by the Participant pursuant to Section 8 of the Plan. 4. SHARES PER OFFERING. The Plan shall be implemented by a series of Offerings that shall terminate on the Plan Termination Date. Offerings shall be made with respect to Compensation payable for each Offering Period occurring on or after adoption of the Plan by the Board and ending with the Plan Termination Date. Shares available for any Offering shall be the difference between the maximum number of Shares that may be issued under the Plan, as determined pursuant to Section 10(a) of the Plan, for all of the Offerings, less the actual number of Shares purchased by Participants pursuant to prior Offerings. If the total number of Shares for which options are exercised on any Offering Termination Date exceeds the maximum number of Shares available, the Committee shall make a pro rata allocation of Shares available for delivery and distribution in as nearly a uniform manner as practicable, and as it shall determine to be fair and equitable, and the unapplied Account balances shall be returned to Participants as soon as practicable following the Offering Termination Date. 5. PAYROLL DEDUCTIONS. (a) AMOUNT OF PAYROLL DEDUCTIONS. An Eligible Employee who wishes to participate in the Plan shall file an Election Form with the Committee at least 15 days before the Offering Commencement Date for the first Offering for which such Election Form is effective or such other date as specified by the Committee, on which he or she may elect to have Payroll Deductions of such amounts designated by the Committee on the Election Form from time to time made from his or her Compensation on each regular payday during the time he or she is a Participant in the Plan, provided that the rules established by the Committee shall be consistent with Section 423(b)(5) of the Code. (b) PARTICIPANTS' ACCOUNTS. All Payroll Deductions with respect to a Participant pursuant to Section 5(a) of the Plan shall be credited to the Participant's Account under the Plan. (c) CHANGES IN PAYROLL DEDUCTIONS. A Participant may discontinue his or her participation in the Plan as provided in Section 8(a) of the Plan, but no other change can be made during an Offering, including, but not limited to, changes in the amount of Payroll Deductions for such Offering. A Participant may change the amount of Payroll Deductions for subsequent Offerings by giving written notice of such change to the Committee on or before the 15th day of the month immediately preceding the Offering Commencement Date for the Offering for which such change is effective or such other date as specified by the Committee. (d) LEAVE OF ABSENCE. A Participant who goes on an Approved Leave of Absence before the Offering Termination Date after having filed an Election Form with respect to such Offering may: (1) Withdraw the balance credited to his or her Account pursuant to Section 8(b) of the Plan; (2) Discontinue contributions to the Plan but remain a Participant in the Plan through the Offering Termination Date; or (3) Remain a Participant in the Plan during such Approved Leave of Absence through the Offering Termination Date and continue the authorization for the Participating Company to make Payroll Deductions for each payroll period out of continuing payments to such Participant, if any. 6. GRANTING OF OPTIONS. On each Offering Termination Date, each Participant shall be deemed to have been granted an option to purchase a minimum of one (1) Share and a maximum number of Shares that shall be a number of whole Shares equal to the quotient obtained by dividing the balance credited to the Participant's Account as of the Offering Termination Date, by the Option Price. 7. EXERCISE OF OPTIONS. (a) AUTOMATIC EXERCISE. With respect to each Offering, a Participant's option for the purchase of Shares granted pursuant to Section 6 of the Plan shall be deemed to have been exercised automatically on the Offering Termination Date applicable to such Offering. (b) FRACTIONAL SHARES AND MINIMUM NUMBER OF SHARES. Fractional Shares shall not be issued under the Plan. Amounts credited to an Account remaining after the application of such Account to the exercise of options for a minimum of one (1) full Share shall be credited to the Participant's Account for the next succeeding Offering, or, at the Participant's election, returned to the Participant as soon as practicable following the Offering Termination Date, without interest. (c) TRANSFERABILITY OF OPTION. No option granted to a Participant pursuant to the Plan shall be transferable other than by will or by the laws of descent and distribution, and no such option shall be exercisable during the Participant's lifetime other than by the Participant. (d) DELIVERY OF CERTIFICATES FOR SHARES. The Company shall deliver certificates for Shares acquired on the exercise of options during an Offering Period as soon as practicable following the Offering Termination Date. 8. WITHDRAWALS. (a) WITHDRAWAL OF ACCOUNT. A Participant may elect to withdraw the balance credited to the Participant's Account by providing a Termination Form to the Committee at any time before the Offering Termination Date applicable to any Offering. (b) AMOUNT OF WITHDRAWAL. A Participant may withdraw all, but not less than all, of the amounts credited to the Participant's Account by giving a Termination Form to the Committee. All amounts credited to such Participant's Account shall be paid as soon as practicable following the Committee's receipt of the Participant's Termination Form, and no further Payroll Deductions will be made with respect to the Participant. (c) TERMINATION OF EMPLOYMENT. Upon termination of a Participant's employment for any reason other than death, including termination due to disability or continuation of a leave of absence beyond 90 days, all amounts credited to such Participant's Account shall be returned to the Participant. In the event of a Participant's (1) termination of employment due to death or (2) death after termination of employment but before the Participant's Account has been returned, all amounts credited to such Participant's Account shall be returned, without interest, to the beneficiary designated by the Participant in accordance with the procedures specified by the Committee, or if no beneficiary is designated, to the Participant's Successor-in-Interest without interest. (d) LEAVE OF ABSENCE. A Participant who is on an Approved Leave of Absence shall, subject to the Participant's election pursuant to Section 5(d) of the Plan, continue to be a Participant in the Plan until the end of the first Offering ending after commencement of such Approved Leave of Absence. A Participant who has been on an Approved Leave of Absence for more than 90 days shall not be eligible to participate in any Offering that begins on or after the commencement of such Approved Leave of Absence so long as such leave of absence continues. 9. INTEREST. No interest shall be paid or allowed with respect to amounts paid into the Plan or credited to any Participant's Account. 10. SHARES. (a) MAXIMUM NUMBER OF SHARES. No more than 600,000 Shares may be issued under the Plan. Such Shares may be unissued shares or treasury shares of the Company or may be outstanding shares purchased in the open market or otherwise on behalf of the Plan upon such terms as the Committee may approve for delivery under the Plan. The number of Shares available for any Offering and all Offerings shall be adjusted if the number of outstanding Shares of the Company is increased or reduced by split-up, reclassification, stock dividend or the like. All Shares issued pursuant to the Plan shall be validly issued, fully paid and nonassessable. (b) PARTICIPANT'S INTEREST IN SHARES. A Participant shall have no interest in Shares subject to an option until such option has been exercised. (c) REGISTRATION OF SHARES. Shares to be delivered to a Participant under the Plan shall be registered in the name of the Participant. (d) RESTRICTIONS ON EXERCISE. The Board may, in its discretion, require as conditions to the exercise of any option such conditions as it may deem necessary to assure that the exercise of options is in compliance with applicable securities laws. 11. EXPENSES. The Participating Companies shall pay all fees and expenses incurred (excluding individual Federal, state, local or other taxes) in connection with the Plan. No charge or deduction for any such expenses will be made to a Participant upon the termination of his or her participation under the Plan or upon the distribution of certificates representing Shares purchased with his or her contributions. 12. TAXES. The Participating Companies shall have the right to withhold from each Participant's Compensation an amount equal to all Federal, state, city or other taxes as the Participating Companies shall determine are required to be withheld by them. In connection with such withholding, the Participating Companies may make any such arrangements as are consistent with the Plan as it may deem appropriate, including the right to withhold from Compensation paid to a Participant other than in connection with the Plan and the right to withdraw such amount from the amount standing to the credit of the Participant's Account. 13. PLAN AND CONTRIBUTIONS NOT TO AFFECT EMPLOYMENT. The Plan shall not confer upon any Eligible Employee any right to continue in the employ of the Participating Companies. 14. ADMINISTRATION. The Plan shall be administered by the Board, which may delegate responsibility for such administration to a committee of the Board (the "Committee") or to a third party administrator under Board or Committee supervision. If the Board fails to appoint the Committee, any references in the Plan to the Committee shall be treated as references to the Board. The Board, or the Committee, shall have authority to interpret the Plan, to prescribe, amend and rescind rules and regulations relating to it, to delegate administrative functions to a third party administrator and to make all other determinations deemed necessary or advisable in administering the Plan, with or without the advice of counsel. The determinations of the Board or the Committee on the matters referred to in this Section 14 shall be conclusive and binding upon all persons in interest. 15. AMENDMENT AND TERMINATION. The Board may terminate the Plan at any time and may amend the Plan from time to time in any respect; provided, however, that upon any termination of the Plan, all Shares or Payroll Deductions (to the extent not yet applied to the purchase of Shares) under the Plan shall be distributed to the Participants, provided further, that no amendment to the Plan shall affect the right of a Participant to receive his or her proportionate interest in the Shares or his or her Payroll Deductions (to the extent not yet applied to the purchase of Shares) under the Plan, and provided further that the Company may seek stockholder approval of an amendment to the Plan if such approval is determined to be required by or advisable under the regulations of the Securities and Exchange Commission or the Internal Revenue Service, the rules of any stock exchange or system on which the Shares are listed or other applicable law or regulation. 16. EFFECTIVE DATE. The Plan shall be effective on February 15, 2000 and will be implemented in the third calendar quarter of 2000. In the event that the Plan is not approved by the Company's stockholders within one year of the adoption of the Plan by the Board, the tax treatment of Section 423 of the Code may not apply with respect to Shares transferred to Participants on the exercise of options pursuant to Section 7 of the Plan. 17. GOVERNMENT AND OTHER REGULATIONS. (a) IN GENERAL. The purchase of Shares under the Plan shall be subject to all applicable laws, rules and regulations, and to such approvals by any governmental agencies as may be required. (b) SECURITIES LAW. The Committee shall have the power to make each grant under the Plan subject to such conditions as it deems necessary or appropriate to comply with the then-existing requirements of the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended, including Rule 16b-3 (or any similar rule) of the Securities and Exchange Commission. 18. NON-ALIENATION. No Participant shall be permitted to assign, alienate, sell, transfer, pledge or otherwise encumber his or her interest under the Plan prior to the distribution to him or her of Share certificates. Any attempt at assignment, alienation, sale, transfer, pledge or other encumbrance shall be void and of no effect. 19. NOTICES. Any notice required or permitted hereunder shall be sufficiently given only if delivered personally, telecopied, or sent by first class mail, postage prepaid, and addressed: IF TO THE COMPANY: Bluestone Software, Inc. 300 Stevens Drive, 3rd Floor Philadelphia, PA 19113 Attn: Employee Stock Purchase Plan Committee Or any other address provided pursuant to written notice. IF TO THE PARTICIPANT: At the address on file with the Company from time to time, or to such other address as either party may hereafter designate in writing by notice similarly given by one party to the other. 20. SUCCESSORS. The Plan shall be binding upon and inure to the benefit of any successor, successors or assigns of the Company. 21. SEVERABILITY. If any part of this Plan shall be determined to be invalid or void in any respect, such determination shall not affect, impair, invalidate or nullify the remaining provisions of this Plan which shall continue in full force and effect. 22. ACCEPTANCE. The election by any Eligible Employee to participate in this Plan constitutes his or her acceptance of the terms of the Plan and his or her agreement to be bound hereby. 23. APPLICABLE LAW. This Plan shall be construed in accordance with the laws of the state of Delaware, to the extent not preempted by applicable Federal law. EX-5 3 a2025107zex-5.txt EXHIBIT 5 Exhibit 5 [BLUESTONE LETTERHEAD] September 11, 2000 Bluestone Software, Inc. 300 Stevens Drive Philadelphia, PA 19113 Re: 2000 Employee Stock Purchase Plan Registration Statement on Form S-8 Gentlemen: I am the General Counsel for Bluestone Software, Inc., a Delaware corporation (the "Company"), and have acted in such capacity in connection with the registration under the Securities Act of 1933, as amended (the "Act") of 600,000 shares of the Company's common stock, $0.001 par value (the "Common Stock"), to be offered pursuant to the Company's 2000 Employee Stock Purchase Plan (the "Plan") upon the terms and subject to the conditions set forth in the Registration Statement on Form S-8 (the "Registration Statement") relating thereto to be filed with the Securities and Exchange Commission on September 11, 2000. In connection therewith, I have examined originals or copies certified or otherwise identified to my satisfaction of the Certificate of Incorporation of the Company, the By-laws of the Company, the corporate proceedings with respect to the offering of the shares and such other documents and instruments as I have deemed necessary or appropriate for the expression of the opinion contained herein. I have assumed the authenticity and completeness of all records, certificates and other instruments submitted to me as originals, the conformity to original documents of all records, certificates and other instruments submitted to me as copies, the authenticity and completeness of the originals of those records, certificates and other instruments submitted to me as copies and the correctness of all statements of fact contained in all records, certificates and other instruments that I have examined. Based on the foregoing, and giving due regard to such legal considerations as I have deemed relevant, I am of the opinion that the shares of Common Stock that may be issued by the Company pursuant to the Plan have been duly and validly authorized for issuance and, when issued and paid for in accordance with the Plan and the Registration Statement, and subject to the Registration Statement becoming effective under the Act and to compliance with such state securities rules, regulations and laws as may be applicable, will be duly and validly issued, fully paid and nonassessable. I hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ PAUL T. PORRINI ----------------------------- Paul T. Porrini Senior Vice President, General Counsel and Secretary EX-23.1 4 a2025107zex-23_1.txt EXHIBIT 23.1 Exhibit 23.1 CONSENT OF INDEPENDENT AUDITORS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our reports dated January 31, 2000 included in Bluestone Software, Inc.'s Form 10-K for the year ended December 31, 1999 and to all references to our Firm included in this registration statement. /s/ ARTHUR ANDERSEN LLP ----------------------- Philadelphia, Pennsylvania September 11, 2000 -----END PRIVACY-ENHANCED MESSAGE-----