-----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, LEXp9HqRTCX6QTmPbZvvp4RKEbuaDJ/D1IOPSn0QknrAEWThWIWKrmntGIq+/K14 Mq5+oEUikoFfUpMlcgACdw== 0001095811-01-001244.txt : 20010223 0001095811-01-001244.hdr.sgml : 20010223 ACCESSION NUMBER: 0001095811-01-001244 CONFORMED SUBMISSION TYPE: S-4/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20010214 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MACROMEDIA INC CENTRAL INDEX KEY: 0000913949 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 943155026 STATE OF INCORPORATION: DE FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-54930 FILM NUMBER: 1539299 BUSINESS ADDRESS: STREET 1: 600 TOWNSEND ST STREET 2: STE 310 W CITY: SAN FRANCISCO STATE: CA ZIP: 94103 BUSINESS PHONE: 4152522000 MAIL ADDRESS: STREET 1: 600 TOWNSEND ST STREET 2: STE 310W CITY: SAN FRANCISCO STATE: CA ZIP: 94103 S-4/A 1 f68894a1s-4a.txt AMENDMENT NO. 1 TO FORM S-4 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 14, 2001 REGISTRATION NO. 333-54930 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 ------------------------ AMENDMENT NO. 1 TO FORM S-4 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 MACROMEDIA, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 7372 94-3155026 (STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
MACROMEDIA, INC. 600 TOWNSEND STREET SAN FRANCISCO, CALIFORNIA 94103 (415) 252-2000 (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) ROBERT K. BURGESS CHAIRMAN AND CHIEF EXECUTIVE OFFICER MACROMEDIA, INC. 600 TOWNSEND STREET SAN FRANCISCO, CALIFORNIA 94103 (415) 252-2000 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) COPIES TO: ROBERT A. FREEDMAN, ESQ. ROBERT L. BIRNBAUM, ESQ. DOUGLAS N. COGEN, ESQ. WILLIAM R. KOLB, ESQ. MARK E. PORTER, ESQ. JOHN D. HANCOCK, ESQ. ANDREW J. SCHULTHEIS, ESQ. JILL L. BRADFORD, ESQ. FENWICK & WEST LLP FOLEY, HOAG & ELIOT LLP TWO PALO ALTO SQUARE ONE POST OFFICE SQUARE PALO ALTO, CALIFORNIA 94306 BOSTON, MASSACHUSETTS 02109 (650) 494-0600 (617) 832-1000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: Upon consummation of the merger described herein. If the securities being registered on this form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. [ ] If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement number for the same offering. [ ] __________ If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] __________ CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------ TITLE OF EACH CLASS PROPOSED MAXIMUM PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF OF SECURITIES TO AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION BE REGISTERED REGISTERED(1) PER SHARE PRICE(2) FEE(3) - ------------------------------------------------------------------------------------------------------------------------------ Common stock, $0.001 par value 7,828,428 Not Applicable $236,027,087.00 $59,007.00 - ------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------
(1)Based upon the estimated maximum number of shares of common stock of the Registrant that may be issued pursuant to the merger. (2) Computed pursuant to Rules 457(f)(1), 457(f)(3) and 457(c) under the Securities Act based on (a) the average of the high and low per share prices of Allaire common stock on the Nasdaq National Market on January 29, 2001, $9.02 per share, less the aggregate amount of cash expected to be paid by the Registrant in the merger, $3.00 per share, multiplied by (b) the maximum number of shares of Allaire common stock that may be exchanged in the merger, 39,142,137, calculated based on the maximum number of shares of common stock of Allaire to be received by the Registrant from the stockholders of Allaire Corporation, including shares of Allaire common stock underlying all outstanding options and warrants to purchase common stock of Allaire, whether or not exercised before consummation of the merger, based upon the number of shares, options and warrants outstanding as of January 30, 2001. (3) Previously paid. THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2 This amendment is being filed solely to file exhibits previously omitted. No changes have been made to Part I of the Registration Statement. Accordingly, it has been omitted. PART II -- INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 20. INDEMNIFICATION OF OFFICERS AND DIRECTORS As permitted by Section 145 of the Delaware General Corporation Law, the Registrant's Certificate of Incorporation includes a provision that eliminates the personal liability of its directors to the Registrant or its stockholders 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 corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under section 174 of the Delaware General Corporation Law or (iv) for any transaction from which the director derived an improper personal benefit. In addition, as permitted by Section 145 of the Delaware General Corporation Law, the Bylaws of the Registrant provide that: (i) the Registrant is required to indemnify its directors and executive officers to the fullest extent permitted by the Delaware General Corporation Law; (ii) the Registrant may, in its discretion, indemnify other officers, employees and agents as set forth in the Delaware General Corporation Law; (iii) upon receipt of an undertaking to repay such advances, if indemnification is determined to be unavailable, the Registrant is required to advance expenses, as incurred, to its directors and executive officers to the fullest extent permitted by the Delaware General Corporation Law in connection with a proceeding (except if a determination is reasonably and promptly made by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to the proceeding or, in certain circumstances, by independent legal counsel in a written opinion that the facts known to the decision-making party demonstrate clearly and convincingly that such person acted in bad faith or in a manner that such person did not believe to be in or not opposed to the best interests of the corporation); (iv) the rights conferred in the Bylaws are not exclusive and the Registrant is authorized to enter into indemnification agreements with its directors, officers, employees and agents; (v) the Registrant may not retroactively amend the Bylaw provisions relating to indemnity; and (vi) to the fullest extent permitted by the Delaware General Corporation Law, a director or executive officer will be deemed to have acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Registrant, and, with respect to any criminal action or proceeding, to have had no reasonable cause to believe that his or her conduct was unlawful, if his or her action is based on the record or books of account of the corporation or on information supplied to him or her by officers of the corporation in the course of their duties or on the advice of legal counsel for the corporation or on information or records given or reports made to the corporation by independent certified public accountants or appraisers or other experts. The Registrant's policy is to enter into indemnification agreements with each of its directors and executive officers. The indemnification agreements provide that directors and executive officers will be indemnified and held harmless to the fullest extent permitted by law including against all expenses (including attorneys' fees), judgments, fines and settlement amounts paid or reasonably incurred by them in any action, suit or proceeding, including any derivative action by or in the right of the Registrant, on account of their services as directors, officers, employees or agents of the Registrant or as directors, officers, employees or agents of any other company or enterprise when they are serving in such capacities at the request of the Registrant. The Registrant will not be obligated pursuant to the agreements to indemnify or advance expenses to an indemnified party with respect to proceedings or claims: (i) initiated by the indemnified party and not by way of defense, except with respect to a proceeding authorized by the Board of Directors and successful proceedings brought to enforce a right to indemnification under the indemnification agreement; (ii) for any amounts paid in settlement of a proceeding unless the Registrant consents to such settlement; (iii) on account of any suit in which judgment is rendered against the indemnified party for an accounting of profits made from the purchase or sale by the indemnified party of securities of the Registrant pursuant to the provisions of Section 16(b) of the Exchange Act and related laws; (iv) on account of conduct by a director that is finally adjudged to have been in bad faith or conduct II-1 3 that the director did not reasonably believe to be in, or not opposed to, the best interests of the Registrant; (v) on account of any criminal action or proceeding arising out of conduct that the director had reasonable cause to believe was unlawful; or (vi) if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful. The indemnification agreements also provide for contribution in certain situations in which the Registrant and a director or executive officer are jointly liable but indemnification is unavailable, such contribution to be based on the relative benefits received and the relative fault of the Registrant and the director or executive officer. Contribution is not allowed in connection with a Section 16(b) judgment, and adjudication of bad faith or conduct that a director or executive officer did not reasonably believe to be in, or not opposed to, the best interest of the Registrant, or a proceeding arising out of conduct a director or executive officer had reasonable cause to believe was unlawful. The indemnification agreements require a director or executive officer to reimburse the Registrant for all expenses advanced only to the extent it is ultimately determined that the director or executive officer is not entitled, under Delaware law, the Bylaws, an indemnification agreement or otherwise to be indemnified for such expenses. The indemnification agreements provide that they are not exclusive of any rights a director or executive officer may have under the Certificate of Incorporation, Bylaws, other agreements, any majority-in-interest vote of the stockholders or vote of disinterested directors, Delaware law or otherwise. The indemnification provision in the Bylaws, and the indemnification agreements entered into between the Registrant and its directors and executive officers, may be sufficiently broad to permit indemnification of the Registrant's executive officers and directors for liabilities arising under the Securities Act. As authorized by the Bylaws, the Registrant, with approval by the Board, has purchased director and officer liability insurance. ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES (a) EXHIBITS
EXHIBIT NUMBER DESCRIPTION - ------- ----------- 2.01 Amended and Restated Agreement and Plan of Merger between the Registrant, Alaska Acquisition Corporation and Allaire dated as of January 16, 2001 and amended and restated as of January 29, 2001 (contained in Annex A to the prospectus/proxy statement that is part of this registration statement).* 4.01 Registrant's Amended and Restated Certificate of Incorporation.(a)* 4.02 Certificate of Amendment of Registrant's Amended and Restated Certificate of Incorporation.(b)* 4.03 Certificate of Amendment of Registrant's Amended and Restated Certificate of Incorporation.(c)* 4.04 Registrant's Bylaws.(d)* 4.05 Amendment to Registrant's Bylaws effective October 15, 1993.(d)* 5.01 Opinion of Fenwick & West LLP.** 8.01 Tax Opinion of Fenwick & West LLP.** 8.02 Tax Opinion of Foley, Hoag & Eliot LLP.** 23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).** 23.02 Consent of Fenwick & West LLP (included in Exhibit 8.01).** 23.03 Consent of Foley, Hoag & Eliot LLP (included in Exhibit 8.02).** 23.04 Consent of KPMG LLP, independent auditors.*
II-2 4
EXHIBIT NUMBER DESCRIPTION - ------- ----------- 23.05 Consent of PricewaterhouseCoopers, LLP, independent accountants.* 24.01 Power of Attorney (see signature pages following Item 22).* 99.01 Consent of Credit Suisse First Boston Corporation.* 99.02 Form of Allaire Proxy Card.*
- ------------------------- (a) Incorporated by reference to the Registrant's registration statement on Form S-8 (File No. 33-89092) filed with the Commission on February 3, 1995. (b) Incorporated by reference to the Registrant's Amendment No. 1 to Registration Statement on Form 8-A filed on October 5, 1995. (c) Incorporated by reference to the Registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2000. (d) Incorporated by reference to the Registrant's Registration Statement on Form S-1 (File No. 33-70624) declared effective by the Commission on December 10, 1993. (*) Previously filed. (**) Filed herewith. (b) FINANCIAL STATEMENT SCHEDULES The information required to be set forth herein is incorporated by reference to Macromedia's Annual Report on Form 10-K for the year ended March 31, 2000 filed with the Securities Exchange Commission on June 27, 2000. (c) FAIRNESS OPINION. The opinion of Credit Suisse First Boston Corporation is attached as Annex D to the prospectus/ proxy statement included in this registration statement. ITEM 22. UNDERTAKINGS (1) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933 (the "Act"), each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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. (2) Insofar as indemnification for liabilities arising under the Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the Certificate of Incorporation, as amended (the "Certificate of Incorporation"), and the bylaws, as amended (the "Bylaws"), of the Registrant, the Delaware General Corporation Law 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 of 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 5 (3) The undersigned Registrant hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to Item 4, 10(b), 11 or 13 of this Form S-4, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the Registration Statement through the date of responding to the request. (4) The undersigned Registrant hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the Registration Statement when it became effective. II-4 6 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1933, the Registrant has duly caused this Amendment No. 1 to the Registration Statement originally filed on February 2, 2001 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Francisco, State of California, on the 12th day of February, 2001. MACROMEDIA, INC. By: /s/ ELIZABETH A. NELSON ------------------------------------- Elizabeth A. Nelson Executive Vice President, Chief Financial Officer and Secretary Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 1 to the Registration Statement originally filed on February 2, 2001 has been signed by the following persons on this page in the capacities and on the date indicated.
SIGNATURE TITLE DATE --------- ----- ---- PRINCIPAL EXECUTIVE OFFICER: /s/ ROBERT K. BURGESS Chief Executive Officer, February 12, 2001 - ------------------------------------------------ President and a Director Robert K. Burgess PRINCIPAL FINANCIAL OFFICER AND ACCOUNTING OFFICER: /s/ ELIZABETH A. NELSON Executive Vice President, Chief February 12, 2001 - ------------------------------------------------ Financial Officer and Secretary Elizabeth A. Nelson ADDITIONAL DIRECTORS: * Director February 12, 2001 - ------------------------------------------------ John (Ian) Giffen * Director February 12, 2001 - ------------------------------------------------ Mark D. Kvamme * Director February 12, 2001 - ------------------------------------------------ Donald L. Lucas * Director February 12, 2001 - ------------------------------------------------ Alan Ramadan * Director February 12, 2001 - ------------------------------------------------ William B. Welty *By: /s/ ELIZABETH A. NELSON ------------------------------------------ Elizabeth A. Nelson Executive Vice President, Chief Financial Officer and Secretary, attorney-in-fact
II-5 7 EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION - ------- ----------- 2.01 Amended and Restated Agreement and Plan of Merger between the Registrant, Alaska Acquisition Corporation and Allaire dated as of January 16, 2001 and amended and restated as of January 29, 2001 (contained in Annex A to the prospectus/proxy statement that is part of this registration statement).* 4.01 Registrant's Amended and Restated Certificate of Incorporation.(a)* 4.02 Certificate of Amendment of Registrant's Amended and Restated Certificate of Incorporation.(b)* 4.03 Certificate of Amendment of Registrant's Amended and Restated Certificate of Incorporation.(c)* 4.04 Registrant's Bylaws.(d)* 4.05 Amendment to Registrant's Bylaws effective October 15, 1993.(d)* 5.01 Opinion of Fenwick & West LLP.** 8.01 Tax Opinion of Fenwick & West LLP.** 8.02 Tax Opinion of Foley, Hoag & Eliot LLP.** 23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).** 23.02 Consent of Fenwick & West LLP (included in Exhibit 8.01).** 23.03 Consent of Foley, Hoag & Eliot LLP (included in Exhibit 8.02).** 23.04 Consent of KPMG LLP, independent auditors.* 23.05 Consent of PricewaterhouseCoopers, LLP, independent accountants.* 24.01 Power of Attorney (see signature pages following Item 22).* 99.01 Consent of Credit Suisse First Boston Corporation.* 99.02 Form of Allaire Proxy Card.*
- ------------------------- (a) Incorporated by reference to the Registrant's registration statement on Form S-8 (File No. 33-89092) filed with the Commission on February 3, 1995. (b) Incorporated by reference to the Registrant's Amendment No. 1 to Registration Statement on Form 8-A filed on October 5, 1995. (c) Incorporated by reference to the Registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2000. (d) Incorporated by reference to the Registrant's Registration Statement on Form S-1 (File No. 33-70624) declared effective by the Commission on December 10, 1993. (*) Previously filed. (**) Filed herewith. EX-5.01 2 f68894a1ex5-01.txt EXHIBIT 5.01 1 [FENWICK & WEST LLP LETTERHEAD] EXHIBIT 5.1 February 14, 2001 Macromedia, Inc. 600 Townsend San Francisco, CA 94103 Ladies and Gentlemen: At your request, we have examined the Registration Statement on Form S-4 (the "REGISTRATION STATEMENT") filed by Macromedia, Inc., a Delaware corporation (the "PARENT") with the Securities and Exchange Commission (the "COMMISSION") on or about February 2, 2001, as expected to be amended on February 14, 2001, in connection with the registration under the Securities Act of 1933, as amended, of an aggregate of up to 7,828,428 shares of Parent's common stock (the "SHARES"), which is the maximum amount that Parent anticipates it may issue pursuant to an Agreement and Plan of Merger (the "AGREEMENT"), dated January 16, 2001, as amended January 29, 2001, among Parent, Allaire and Alaska Acquisition Corporation, a Delaware corporation and a wholly owned subsidiary of Parent ("MERGER SUB"). In rendering this opinion, we have examined the following: (1) Parent's Certificate of Incorporation, as filed with the Delaware Secretary of State on February 25, 1992; Parent's Amended and Restated Certificate of Incorporation, as filed with the Delaware Secretary of State on August 17, 1994; the Certificates of Amendment of Parent's Certificate of Incorporation, as filed with the Delaware Secretary of State on September 22, 1995 and August 14, 2000; Merger Sub's Certificate of Incorporation, as filed with the Delaware Secretary of State on January 4, 2001; (2) Parent's amended Bylaws, as adopted on December 13, 1993; Merger Sub's Bylaws, as adopted on January 5, 2001; (3) the Registration Statement, together with the exhibits filed as a part thereof or incorporated therein by reference; (4) the prospectus prepared in connection with the Registration Statement (the "PROSPECTUS"); (5) the minutes of meetings of Parent's Board of Directors, approving the Agreement, the issuance of the Shares and the filing of the Registration Statement; the written consent of Merger Sub's Board of Directors, approving the Agreement; 2 (6) Parent's Annual Report on Form 10-K for the period ended March 31, 2000; (7) Parent's Quarterly Reports on Form 10-Q, for quarters ended June 30, 2000, September 30, 2000 and December 31, 2000. (8) the Agreement and the Certificate of Merger to be filed by Parent with the Delaware Secretary of State to effect the subject merger; and (9) a Management Certificate executed by Parent, addressed to us and dated of even date herewith, containing certain factual and other representations. In our examination of documents for purposes of this opinion, we have assumed, and express no opinion as to, the genuineness of all signatures on original documents, the authenticity and completeness of all documents submitted to us as originals, the conformity to originals and completeness of all documents submitted to us as copies, the legal capacity of all persons or entities executing the same, the lack of any undisclosed termination, modification, waiver or amendment to any document reviewed by us and the due authorization, execution and delivery of all documents where due authorization, execution and delivery are prerequisites to the effectiveness thereof. We have also assumed that the certificates representing the Shares will be, when issued, properly signed by authorized officers of Parent or their agents. As to matters of fact relevant to this opinion, we have relied solely upon our examination of the documents referred to above and have assumed the current accuracy and completeness of the information obtained from the records and documents referred to above. We have made no independent investigation or other attempt to verify the accuracy of any of such information or to determine the existence or non-existence of any other factual matters; however we are not aware of any facts that would cause us to believe that the opinion expressed herein is not accurate. We are admitted to practice law in the State of California, and we express no opinion herein with respect to, and express no opinion herein concerning the application or effect of the laws of any jurisdiction other than, the existing laws of the United States of America, of the State of California and, with respect to the validity of corporate action and the requirements for the issuance of stock, of the State of Delaware. 3 In connection with our opinion expressed below, we have assumed that, at or prior to the time of the delivery of any of the Shares, the Registration Statement will have been declared effective under the Securities Act of 1933, as amended, that the registration will apply to such Shares and will not have been modified or rescinded and that there will not have occurred any change in law affecting the validity or enforceability of such Shares. Based upon the foregoing, it is our opinion that the Shares to be issued and sold by Parent, when issued, sold and delivered in the manner and for the consideration stated in the Registration Statement and the Prospectus, will be validly issued, fully paid and nonassessable. We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to all references to us, if any, in the Registration Statement, the Prospectus and any amendments thereto. This opinion speaks only as of its date and we assume no obligation to update this opinion should circumstances change after the date hereof. This opinion is intended solely for the your use as an exhibit to the Registration Statement for the purpose of the above sale of the Shares and is not to be relied upon for any other purpose. Very truly yours, FENWICK & WEST LLP By: /s/ Robert A. Freedman ------------------------------------- Robert A. Freedman, a Partner EX-8.01 3 f68894a1ex8-01.txt EXHIBIT 8.01 1 EXHIBIT 8.1 [FENWICK & WEST LLP LETTERHEAD] February 13, 2001 Macromedia, Inc. 600 Townsend St. San Francisco, CA 94103 Attention: Board of Directors Re: Tax Opinion for the Merger Transaction Involving Macromedia, Inc., and Allaire Corporation. Ladies and Gentlemen: We have been requested to render this opinion concerning certain matters of United States federal income tax law in connection with the proposed merger (the "MERGER") involving Allaire Corporation, a corporation organized and existing under the laws of the State of Delaware ("TARGET") and Alaska Acquisition Corporation, a corporation organized and existing under the laws of State of Delaware ("COMPANY"), which is a wholly owned first tier subsidiary of Macromedia, Inc., a corporation organized and existing under the laws of the State of Delaware ("PARENT"). The Merger is further described in and is in accordance with the Securities and Exchange Commission Form S-4 Registration Statement filed on February 2, 2001, as amended from time to time thereafter ("S-4 REGISTRATION STATEMENT"). Our opinion has been requested in connection with the filing of the S-4 Registration Statement with the Securities and Exchange Commission with respect to the Merger. The Merger is structured as a statutory merger of the Company with and into Target, with Target surviving the merger and remaining a wholly-owned subsidiary of Parent, all pursuant to the applicable corporate laws of the States of Delaware and in accordance with the Amended and Restated Agreement and Plan of Merger by and among Company, Parent, and Target, dated as of January 29, 2001, and exhibits thereto (collectively, the "AGREEMENT"). Except as otherwise indicated, capitalized terms used herein have the meanings set forth in the Agreement. All section references, unless otherwise indicated, are to the Internal Revenue Code of 1986, as amended (the "CODE"). 2 We have acted as legal counsel to Parent in connection with the Merger. As such, and for the purpose of rendering this opinion, we have examined and are relying upon (without any independent investigation or review thereof) the truth and accuracy, at all relevant times, of the statements, covenants, representations and warranties contained in the following documents (including all schedules and exhibits thereto), among others: 1. The Agreement; 2. A Tax Representation Certificate of Parent and Company dated February 13, 2001, signed by an authorized officer of each of Parent and Company and delivered to us from Parent and Company and incorporated herein by reference. 3. A Tax Representation Certificate of Target dated February 13, 2001, signed by an authorized officer of Target and delivered to us from Target and incorporated herein by reference. In connection with rendering this opinion, we have obtained representations and are relying thereon (without any independent investigation or review thereof) that: (1) Original documents (including signatures) are authentic, documents submitted to us as copies conform to the original documents, and there has been (or will be by the Effective Time of the Merger) due execution and delivery of all documents where due execution and delivery are prerequisites to the effectiveness thereof; (2) Any representation or statement referred to above made "to the best knowledge of" or otherwise similarly qualified is correct without such qualification, and all statements and representations, whether or not qualified are true and will remain true through the Effective Date and thereafter where relevant; (3) The Merger will be consummated pursuant to the Agreement and will be effective under the laws of the States of California and Delaware; (4) At all relevant times prior to and including the Effective Date, (i) no outstanding indebtedness of Target has or will represent equity for tax purposes; (ii) no outstanding equity of Target has represented or will represent indebtedness for tax purposes; (iii) no outstanding security, instrument, agreement or arrangement that provides for, contains, or represents either a right to acquire Target capital stock (or to share in the appreciation thereof) constitutes or will constitute "stock" for purposes of Section 368(c) of the Code; and (5) The Merger will be reported by Parent, Company and Target on their respective federal income tax returns in a manner consistent with the opinion set forth below. 2 3 Based on the foregoing documents, materials, assumptions and information, and subject to the qualifications and assumptions set forth herein, we are of the opinion that, if the Merger is consummated in accordance with the provisions of the Agreement (and without any waiver, breach or amendment of any of the provisions thereof): (a) The Merger will be a "reorganization" for federal income tax purposes within the meaning of Section 368(a) of the Code; and (b) Parent, Company and Target each will be a "party to the reorganization" within the meaning of Section 368(b) of the Code. Our opinion set forth above is based on the existing provisions of the Code, Treasury Regulations (including Temporary Treasury Regulations) promulgated under the Code, published Revenue Rulings, Revenue Procedures and other announcements of the Internal Revenue Service (the "SERVICE") and existing court decisions, any of which could be changed at any time. Any such changes might be retroactive with respect to transactions entered into prior to the date of such changes and could significantly modify the opinion set forth above. Nevertheless, we undertake no responsibility to advise you of any subsequent developments in the application, operation or interpretation of the U.S. federal income tax laws. Our opinion concerning certain of the U.S. federal tax consequences of the Merger is limited to the specific U.S. federal tax consequences presented above. No opinion is expressed as to any transaction other than the Merger, including any transaction undertaken in connection with the Merger. In addition, this opinion does not address any estate, gift, state, local or foreign tax consequences that may result from the Merger. In particular, we express no opinion regarding: (i) the amount, existence, or availability after the Merger, of any of the U.S. federal income tax attributes of Parent, Company or Target; (ii) any transaction which Target Common Stock is acquired or Parent Common Stock is disposed other than pursuant to the Merger; (iii) the potential application of the "disqualifying disposition" rules of Section 421 of the Code to dispositions of Target Common Stock; (iv) the effects of the Merger and Parent's assumption of outstanding options to acquire Target stock on the holders of such options under any Target employee stock option or stock purchase plan, respectively; (v) the effects of the Merger on any Target stock acquired by the holder subject to the provision of Section 83(a) of the Code; (vi) the effects of the Merger on any payment which is or may be subject to the provisions of Section 280G of the Code; and (vii) the application of the collapsible corporation provisions of Section 341 of the Code to Parent, Company or Target as a result of the Merger; (viii) any special application of the alternative minimum tax provisions in the Code; and (ix) any special tax consequences applicable to insurance companies, securities dealers, financial institutions, tax exempt organizations or foreign persons. 3 4 No ruling has been or will be requested from the Service concerning the U.S. federal income tax consequences of the Merger. In reviewing this opinion, you should be aware that the opinion set forth above represents our conclusions regarding the application of existing U.S. federal income tax law to the instant transaction. If the facts vary from those relied upon (including if any representations, covenant, warranty or assumption upon which we have relied is inaccurate, incomplete, breached or ineffective), our opinions contained herein could be inapplicable. You should be aware that an opinion of counsel represents only counsel's best legal judgment, and has no binding effect or official status of any kind, and that no assurance can be given that contrary positions may not be taken by the Service or that a court considering the issues would not hold otherwise. This opinion is being delivered solely for the purpose of being included as an exhibit to the S-4 Registration Statement; it may not be relied upon or utilized for any other purpose (including without limitation, satisfying any conditions in the Agreement) or by any other person or entity, and may not be made available to any other person or entity, without our prior written consent. We do, however, consent to the use of this opinion as an exhibit to the S-4 Registration Statement and to the use of our name in the S-4 Registration Statement where it appears. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules or regulations of the Securities and Exchange Commission promulgated thereunder. The filing of this opinion as an exhibit to the Registration Statement and the references to such opinion and Fenwick & West LLP therein is not intended to create liability under applicable state law to any person other than Company, our client. Very truly yours, /s/ FENWICK & WEST -------------------------------------------- FENWICK & WEST LLP A LIMITED LIABILITY PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS 4 EX-8.02 4 f68894a1ex8-02.txt EXHIBIT 8.02 1 EXHIBIT 8.02 [FOLEY, HOAG & ELIOT LLP LETTERHEAD] February 13, 2001 ALLAIRE CORPORATION 275 Grove Street Newton, MA 02466 Re: Proposed Merger of Allaire Corporation and Macromedia, Inc. Ladies and Gentlemen: We have acted as counsel to Allaire Corporation, a Delaware corporation (the "Company"), in connection with the proposed merger (the "Merger") of the Company with and into Alaska Acquisition Corporation, a Delaware corporation (the "Merger Sub"), a wholly-owned first tier subsidiary of Macromedia, Inc., a Delaware corporation (the "Parent") in accordance with the Agreement and Plan of Merger by and among the Company, the Merger Sub and the Parent made as of January 29, 2001 (the "Agreement"). Capitalized terms used but not defined herein shall have the respective meanings ascribed to them in the Agreement. We have examined the law and such papers, including the Agreement, as deemed necessary to render the opinion expressed below. As to questions of fact material to our opinion we have relied on representations of the Company, the Merger Sub and the Parent contained in letters addressed to us and attached to this letter (the "Letters of Representation"), without undertaking to verify the same by independent investigation; upon representations set forth in the Agreement (including the Exhibits); and upon such other documents pertaining to the Merger as we have deemed appropriate and necessary. In our examination we have assumed that (i) the Merger will be consummated in accordance with the terms of the Agreement; (ii) each entity that is a party to any of the documents (the "Documents") described in the preceding paragraphs has been duly organized under the laws of its state or country of organization, is validly existing and in good standing under such laws, and is duly qualified and in good standing in each jurisdiction in which it is required to be qualified to engage in the transactions contemplated by the Documents; (iii) each such entity has full power, authority, capacity and legal right to enter into and perform the terms of the Documents and the transactions contemplated thereby; (iv) the copies or originals of the Documents furnished to us are authentic (if originals) or accurate (if copies), those that are contracts or instruments are enforceable and effective in accordance with their terms against all 2 ALLAIRE CORPORATION February 13, 2001 Page 2 parties thereto, and all signatures are genuine; (v) any representations made in the Documents are, and will continue to be, true and complete, and no default exists under any of the Documents; (vi) the business and affairs of each of the entities that is a party to any of the Documents will be conducted in accordance with the Documents and all relevant laws; (vii) no actions will be taken, no change in any of the Documents will occur, and no other events will occur, after the date hereof, that would have the effect of altering the facts, Documents or assumptions upon which this opinion is based; and (viii) the business reasons for the Merger will constitute a valid business purpose, within the meaning of Treasury Regulation section 1.368-1(b) and (c), for the Merger. The opinion rendered herein is based upon the provisions of the Internal Revenue Code of 1986, as amended (the "Code"), Treasury Department temporary and final regulations, judicial decisions, and rulings and administrative interpretations of the Internal Revenue Service, as each of the foregoing exists on the date hereof. The opinion rendered below is not binding on the Internal Revenue Service or a court of law, and no assurance can be given that legislative or administrative action or judicial decisions that differ from the opinion rendered below will not be forthcoming. Any such differences could be retroactive to transactions or business operations prior to such action or decisions. We express no opinion as to the federal income tax consequences other than that described below, if any, or as to the effect of the Merger on other transactions, or as to any state, local or foreign income or other tax consequences with respect to the Merger. Based on the foregoing, we are of opinion, as of the date hereof and under existing law, that the Merger will constitute a reorganization within the meaning of section 368(a) of the Code; and that each of the Company, Merger Sub and Parent will be a "party to the reorganization" within the meaning of Section 368(b) of the Code. We undertake no responsibility to update or supplement our opinion. We are furnishing this letter to you solely for the purpose of satisfying Section 6.3(d) of the Agreement and in support of the information set forth under the heading "Federal income tax consequences of the merger" in the Registration Statement. We hereby consent to the filing of this opinion with the Securities and Exchange Commission as an exhibit to the Registration Statement and to the reference to our firm under such heading in the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended. This letter is not to be used, circulated, quoted or otherwise referred to for any other purpose without our prior written consent. Very truly yours, Foley, Hoag & Eliot LLP By: /s/ LEONARD SCHNEIDMAN ----------------------------------- A Partner -----END PRIVACY-ENHANCED MESSAGE-----