<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 3, 1997
REGISTRATION NO. 333-20791
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
AMENDMENT NO. 2
TO
FORM SB-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
BEA SYSTEMS, INC.
(Name of small business issuer in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 7372-9907 77-0394711
(State or Other Jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Classification Code Number) Identification
Incorporation or Organization) Number)
</TABLE>
385 MOFFETT PARK DRIVE, SUITE 105
SUNNYVALE, CALIFORNIA 94089-1208
(408) 743-4000
(Address and telephone number of principal executive offices and principal place
of business)
----------------
WILLIAM T. COLEMAN III
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER
385 MOFFETT PARK DRIVE, SUITE 105
SUNNYVALE, CALIFORNIA 94089-1208
(408) 743-4000
(Name, address and telephone number of agent for service)
----------------
COPIES TO:
<TABLE>
<S> <C>
MICHAEL C. PHILLIPS, ESQ. BARRY E. TAYLOR, ESQ.
KEVIN A. FAULKNER, ESQ. ROBERT G. O'CONNOR, ESQ.
CORI M. ALLEN, ESQ. J. RANDALL LEWIS, ESQ.
Morrison & Foerster LLP Wilson Sonsini Goodrich & Rosati
755 Page Mill Road Professional Corporation
Palo Alto, CA 94304-1018 650 Page Mill Road
Palo Alto, CA 94304-1050
</TABLE>
----------------
APPROXIMATE DATE OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
----------------
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
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. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
----------------
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.
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- --------------------------------------------------------------------------------
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
<PAGE>
SUBJECT TO COMPLETION, DATED MARCH 20, 1997
5,000,000 SHARES
[LOGO]
BEA SYSTEMS, INC.
COMMON STOCK
(PAR VALUE $0.001 PER SHARE)
------------------
All of the shares of Common Stock offered hereby are being sold by the
Company. See "Underwriting". Prior to this offering, there has been no public
market for the Common Stock of the Company. It is currently estimated that the
initial public offering price per share will be between $6.50 and $7.50. For
factors to be considered in determining the initial public offering price, see
"Underwriting".
In connection with this offering, the Underwriters have reserved
approximately 535,714 shares of Common Stock for sale at the initial public
offering price to persons associated with the Company, including $2,000,000
worth of Common Stock (or approximately 285,714 shares based on an estimated
initial public offering price of $7.00 per share) that have been reserved for
sale to Digital Equipment Corporation in connection with the acquisition by the
Company of exclusive rights to certain products from Digital Equipment
Corporation.
SEE "RISK FACTORS" ON PAGE 6 FOR CERTAIN CONSIDERATIONS RELEVANT TO AN
INVESTMENT IN THE COMMON STOCK.
Application has been made to have the Common Stock approved for quotation on
the Nasdaq National Market under the symbol "BEAS".
------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------
<TABLE>
<CAPTION>
INITIAL PUBLIC UNDERWRITING PROCEEDS TO
OFFERING PRICE DISCOUNT(1) COMPANY(2)
---------------- ------------- ----------------
<S> <C> <C> <C>
Per Share............................................................ $ $ $
Total(3)............................................................. $ $ $
</TABLE>
- --------------
(1) The Company has agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933.
(2) Before deducting estimated expenses of $2,100,000 payable by the Company.
(3) The Company has granted the Underwriters an option for 30 days to purchase
up to an additional 750,000 shares at the initial public offering price per
share, less the underwriting discount, solely to cover over-allotments. If
such option is exercised in full, the total initial public offering price,
underwriting discount and proceeds to Company will be $ , $
and $ , respectively. See "Underwriting".
------------------
The shares offered hereby are offered severally by the Underwriters, as
specified herein, subject to receipt and acceptance by them and subject to their
right to reject any order in whole or in part. It is expected that certificates
for the shares will be ready for delivery in New York, New York, on or about
, 1997 against payment therefor in immediately available funds.
GOLDMAN, SACHS & CO.
ALEX. BROWN & SONS INCORPORATED
ROBERTSON, STEPHENS & COMPANY
SOUNDVIEW FINANCIAL GROUP, INC.
------------
The date of this Prospectus is , 1997.
<PAGE>
Set forth on the left hand side of the inside front cover page are three
square boxes, side by side, each bearing the inscription "SERVER." Set forth on
top of these squares are twelve other squares of equal size, partially
overlapping each other and connected to the three other boxes by four lines
emanating from each square. Three of the twelve squares bear the inscription
"SERVER." Underneath the graphic is set forth the caption "BEFORE BEA."
Set forth on the right hand side of the inside front cover is an identical
graphic, with the exception of a horizontal rectangular box bearing the caption
"BEA ENTERPRISE TRANSACTION FRAMEWORK" inserted between the lower three squares
and the other twelve squares. The three lower squares are connected to the
rectangular box by three lines, one emanating from each square. The twelve other
squares are connected to the rectangular box by twelve lines, one emanating from
each square. Underneath the graphic is set forth a caption which reads "AFTER
BEA."
Above the two graphics across the length of the page is set forth the
caption "THE BEA ENTERPRISE MIDDLEWARE SOLUTION:." Underneath the two graphics,
across the length of the page is set forth the caption "SIMPLIFYING AND
PROVIDING RELIABILITY TO THE PROCESSING OF COMPLEX BUSINESS TRANSACTIONS." Below
this caption is set forth the following text: "Building, deploying, managing and
expanding distributed mission-critical computer software applications across
large enterprises is an increasingly important business requirement for large
organizations. By coordinating these applications among the many distributed
clients and servers supporting enterprise applications, the BEA Enterprise
Transaction Framework provides an integrated middleware platform that is
scalable, reliable, and flexible."
The Company intends to furnish to its stockholders annual reports containing
audited consolidated financial statements and quarterly reports containing
unaudited consolidated financial information for the first three fiscal quarters
of each fiscal year of the Company.
------------------
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE COMMON STOCK,
INCLUDING OVER-ALLOTMENT, STABILIZING AND SHORT-COVERING TRANSACTIONS IN SUCH
SECURITIES, AND THE IMPOSITION OF A PENALTY BID, DURING AND AFTER THE OFFERING.
SEE "UNDERWRITING".
------------------
BEA, BEA Builder, BEA Connect, BEA Jolt, BEA Manager, Enterprise Middleware
Solutions, BEA MessageQ, BEA ObjectBroker and Jolt are trademarks of the
Company. The Company has licensed worldwide rights to TUXEDO, which is a
registered trademark of Novell, Inc. in the United States and other countries.
This Prospectus contains other product names, trade names and trademarks of the
Company and of other organizations.
<PAGE>
The inside cover gatefold is divided into two equal halves by a horizontal
bar containing the caption "BEA ENTERPRISE TRANSACTION FRAMEWORK." Above the bar
are set forth four clusters of pictures, connected to the dividing bar by four
lines, one emanating from each cluster. The cluster on the left consists of
three identical pictures, partially superimposed, depicting a man working on a
laptop computer. The cluster bears the captions "ELECTRONIC COMMERCE," "INTERNET
BROWSER" and "BEA JOLT." A cloud superimposed by a lightning symbol intersects
the line connecting the cluster to the dividing bar. To the right of this
cluster is set forth a second cluster consisting of two pictures, one of which
depicts a desktop computer and one of which depicts the interior of a warehouse.
This cluster bears the caption "MANUFACTURING," "PC CLIENT" and "BEA TUXEDO." To
the right of this cluster is set forth a third cluster consisting of a picture
of two persons sitting at a desk and talking, and a caption reading "HUMAN
RESOURCES," "PC CLIENT" and "BEA TUXEDO." The cluster on the right contains
three identical, partially superimposed pictures representing a mainframe
computer. The cluster bears the captions "MAINFRAME" and "DATABASES."
Below the dividing bar are set forth five clusters of pictures, connected to
the dividing bar by five lines, one emanating from each cluster. The cluster on
the left consists of three identical, partially superimposed pictures of an
automated check-out counter and a hand sliding a credit card. This cluster bears
the captions "POINT OF SALE" and "PC CLIENT." To the right of this cluster is
set forth a second cluster consisting of a picture of a person working on a
laptop computer and the captions "THIRD PARTY SALES" and "PC CLIENT." To the
right of this cluster is set forth a third cluster depicting a CD superimposed
on a hundred dollar bill, an electronic ticker and a number of documents. The
cluster contains the captions "FINANCE," "PC CLIENT" and "BEA TUXEDO." To the
right of this cluster is set forth a cluster consisting of two pictures, one
depicting a person wearing a head-set and microphone and one depicting a laptop
computer. The cluster contains a caption reading "THIRD PARTY SALES" and "PC
CLIENT." The cluster on the right consists of three identical, partially
superimposed pictures of a computer room containing a number of servers. The
cluster contains the caption "UNIX, NT SERVERS" and "DATABASES."
Set forth in the upper left-hand corner of the gatefold is a caption reading
"LARGE ORGANIZATIONS USE BEA'S MIDDLEWARE AS THE PLATFORM TO RUN THEIR MOST
CRITICAL APPLICATIONS."
In the upper right-hand corner of the gatefold is set forth the following
text: "BEA's products and services are used as the software infrastructure to
support and integrate a company's most important business applications. Using
the BEA Enterprise Transaction Framework as the infrastructure for its
applications, a company provides its business applications with transaction
integrity and security, and integration with widely disparate database, client,
and server technologies. This infrastructure can be used in a wide variety of
distributed computing environments from legacy mainframes to internet clients.
The BEA solution also provides highly scalable technology to handle thousands of
users simultaneously, and integration with packaged software including those
that use BEA's middleware."
<PAGE>
PROSPECTUS SUMMARY
THE FOLLOWING SUMMARY IS QUALIFIED IN ITS ENTIRETY BY THE MORE DETAILED
INFORMATION AND CONSOLIDATED FINANCIAL STATEMENTS AND THE NOTES THERETO
APPEARING ELSEWHERE IN THIS PROSPECTUS. UNLESS OTHERWISE INDICATED, THE
INFORMATION IN THIS PROSPECTUS (I) INCLUDES AS COMMON STOCK 29,406,982 SHARES OF
NONVOTING CLASS B COMMON STOCK INTO WHICH CERTAIN SHARES OF PREFERRED STOCK WILL
BE CONVERTED AND REFLECTS THE CONVERSION OF ALL REMAINING OUTSTANDING SHARES OF
PREFERRED STOCK AND A CONVERTIBLE LOAN INTO SHARES OF COMMON STOCK EFFECTIVE
UPON THE CLOSING OF THE OFFERING AND (II) ASSUMES NO EXERCISE OF THE
UNDERWRITERS' OVER-ALLOTMENT OPTION. SEE "CERTAIN TRANSACTIONS--WARBURG LINE OF
CREDIT," "DESCRIPTION OF CAPITAL STOCK" AND "UNDERWRITING."
THE COMPANY
BEA Systems, Inc. ("BEA" or the "Company") designs, develops, markets and
supports software used by large organizations to enable and support their most
critical business processes. The Company's Enterprise Transaction Framework is
an open, integrated middleware software platform for developing, deploying and
managing distributed mission-critical computer software applications. The core
of the BEA Enterprise Transaction Framework is BEA TUXEDO, a software engine
that manages transactions and communications for enterprise-wide applications,
enabling organizations to realize the benefits offered by distributed computing
environments while preserving the traditional advantages of mainframe-based
systems. BEA products provide a middleware software infrastructure that supports
thousands of simultaneous users distributed worldwide. Through its recent
acquisition of exclusive rights to MessageQ and ObjectBroker from Digital
Equipment Corporation ("Digital"), the Company seeks to extend its Enterprise
Transaction Framework to incorporate comprehensive message-oriented middleware
for application integration and new object-oriented technologies. In addition to
its software products, BEA provides its customers with complete solutions
through a range of professional services offerings.
BEA's products are marketed and sold worldwide, principally through the
Company's direct sales force and also indirectly through third parties. BEA's
products have been adopted in a wide variety of industries, including
telecommunications, banking and finance, manufacturing, retail, technology and
transportation. During the fiscal year ended January 31, 1997, BEA sold new
product licenses to over 170 customers, including over 100 customers that were
newly-developed by the Company. The total number of customers using products
that have been acquired and developed by BEA is greater than 600 worldwide.
These customers include: The AT&T Corp., Bell Communications Research, Inc.,
Damark International Inc., Discover Card Trust, Federal Express Corp., Fidelity
Investments, Gap Inc., J.J. Kenney, McKesson Corp., Motorola Inc., Nippon
Telephone & Telegraph, Northwest Airlines Corp., U.K. Employment Services, Union
Bank of Switzerland, Union Pacific Railroad and Walgreens Co. In addition,
independent software vendors ("ISVs"), such as PeopleSoft Inc. and Clarify,
Inc., embed BEA TUXEDO into their own product offerings in order to improve the
scalability, portability and interoperability of their products.
Over the past decade, the information systems of many organizations have
been evolving from traditional mainframe systems to distributed computing
environments. This evolution has been driven by the benefits offered by
distributed computing, including lower incremental technology costs, faster
application development and deployment, increased flexibility and improved
access to business information. However, the inherent technical and business
limitations of distributed computing have generally precluded its use for
complex, large-scale, mission-critical applications, such as airline
reservations, credit card processing and customer billing and support systems,
that enable and support fundamental business processes. These shortcomings
include the limited scalability, reliability and interoperability of distributed
computing environments. In addition, it has been difficult to integrate
distributed computing technologies with existing mission-critical applications,
limiting organizations' ability to leverage their substantial investments in
legacy systems and existing personnel and skills.
BEA's products and services enable companies to overcome the limitations of
distributed computing for mission-critical applications. BEA's Enterprise
Transaction Framework, based upon time-tested and market-proven BEA TUXEDO
technology, provides a middleware solution that addresses the scalability,
manageability, platform independence, interoperability, integrity, reliability
and security requirements of complex, large-scale, distributed computing in the
heterogeneous environments present in most major organizations. The BEA solution
allows companies to leverage their substantial
3
<PAGE>
investments in legacy systems, significantly extending the useful lives of
mainframe and programmer assets while exploiting the benefits offered by
distributed computing. The incorporation of MessageQ and ObjectBroker into the
Enterprise Transaction Framework will extend its capabilities to include
message-oriented middleware-based and object-oriented programming methodologies.
The Company's objective is to establish its middleware solutions as the
industry standard for developing, deploying and managing distributed
mission-critical applications. To this end, BEA intends to enhance its
technological leadership by adding new functionality to its products; expand its
global distribution facilities to complement its direct sales, services,
training and support capabilities; promote the embedding of BEA TUXEDO into the
product offerings of ISVs to accelerate the acceptance of its products; leverage
strategic partnerships to augment the efforts of its direct sales force; and
provide the software and services necessary to conduct safe, reliable
transactions over the Internet.
The Company acquired worldwide exclusive rights to TUXEDO from Novell, Inc.
in February 1996, acquired Information Management Company and Independence
Technologies, Inc., two leading distributors of TUXEDO, in September 1995 and
November 1995, respectively, and acquired a number of other TUXEDO distribution,
sales and support organizations between May 1996 and December 1996. Such
acquisitions are referred to herein as the "Acquisitions." In March 1997, the
Company acquired exclusive rights to MessageQ, ObjectBroker and other related
products from Digital. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations--Company Background" and Note 13 of Notes to
BEA Systems, Inc. Consolidated Financial Statements.
The Company was incorporated in Delaware in January 1995 under the name BEA
Enterprises, Inc. and changed its name to BEA Systems, Inc. in September 1995.
References herein to "BEA" or the "Company" refer to BEA Systems, Inc., its
subsidiaries and predecessor entities acquired in the Acquisitions. The
Company's headquarters are located at 385 Moffett Park Drive, Sunnyvale,
California 94089-1208, and its telephone number is (408) 743-4000.
RISK FACTORS
For a discussion of considerations relevant to an investment in the Common
Stock, see "Risk Factors."
THE OFFERING
<TABLE>
<S> <C>
Common Stock offered by the Company.......... 5,000,000 shares(1)
Common Stock to be outstanding after the
Offering.................................... 53,425,363 shares(1)(2)
Use of proceeds.............................. For repayment of certain borrowings under a
credit line and payment of certain
obligations incurred in connection with the
Acquisitions and, if consummated, the Digital
acquisition, for possible future acquisitions
and for working capital and general corporate
purposes. See "Use of Proceeds."
Proposed Nasdaq National Market symbol....... BEAS
</TABLE>
- --------------
(1) Excludes 750,000 shares issuable upon exercise of the Underwriters'
overallotment option.
(2) Based on the number of shares of Common Stock outstanding as of January 31,
1997, as calculated on a pro forma basis to give effect to the conversion of
all shares of Preferred Stock and a convertible loan upon completion of the
offering based on an assumed initial public offering price of $7.00.
Excludes (i) 6,681,288 shares issuable upon exercise of options outstanding
as of January 31, 1997, having a weighted average exercise price of $0.996
per share, under the Company's 1995 Flexible Stock Incentive Plan, and (ii)
6,350,000 additional shares authorized for issuance under the Company's 1997
Stock Incentive Plan and 1997 Employee Stock Purchase Plan (collectively,
the "Stock Plans"). See "Management--Stock Plans" and Notes 11 and 14 of
Notes to BEA Systems, Inc. Consolidated Financial Statements.
4
<PAGE>
SUMMARY CONSOLIDATED FINANCIAL INFORMATION
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
YEAR ENDED JANUARY 31,
--------------------------
1996(1) 1997
------------ ------------
<S> <C> <C>
CONSOLIDATED STATEMENTS OF OPERATIONS DATA:
Revenues:
License Revenues.................................................................. $ 3,569 $ 46,839
Service Revenues.................................................................. 1,564 14,759
------------ ------------
Total Revenues(2)............................................................... 5,133 61,598
Total Cost of Revenues(3)........................................................... 2,704 18,607
------------ ------------
Gross Margin........................................................................ 2,429 42,991
Operating Expenses:
Research and Development.......................................................... 3,244 18,183
Sales and Marketing............................................................... 2,572 30,970
General and Administrative........................................................ 3,058 12,732
Write-Off of In-Process Research and Development.................................. 11,194 62,248
------------ ------------
Total Operating Expenses........................................................ 20,068 124,133
------------ ------------
Income (Loss) from Operations....................................................... (17,639) (81,142)
Other Income (Expense).............................................................. 48 4
Interest Expense.................................................................... (89) (6,727)
------------ ------------
Income (Loss) before Income Taxes................................................... (17,680) (87,865)
Provision for Income Taxes.......................................................... 60 800
------------ ------------
Net Income (Loss)................................................................... $ (17,740) $ (88,665)
------------ ------------
------------ ------------
Pro Forma Net Income (Loss) Per Share(4)............................................ $ (1.73)
------------
------------
Shares Used in Computing Pro Forma Net Income (Loss) Per Share(4)................... 51,162
------------
------------
<CAPTION>
JANUARY 31, 1997
--------------------------
AS
ACTUAL ADJUSTED(5)
------------ ------------
<S> <C> <C>
CONSOLIDATED BALANCE SHEET DATA:
Cash and Cash Equivalents........................................................... $ 3,283 $ 20,094
Working Capital Deficit............................................................. (32,798) (6,937)
Total Assets........................................................................ 57,973 74,784
Long-Term Obligations (Less Current Portion)........................................ 49,540 43,951
Stockholders' Equity (Deficit)...................................................... (76,289) (24,059)
</TABLE>
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(1) The consolidated statement of operations data for the year ended January 31,
1996 includes results of operations from incorporation (January 20, 1995)
through January 31, 1995.
(2) If the acquisitions of IMC, ITI, TUXEDO and USL France had occurred on
February 1, 1995, the pro forma revenues would have been $33.6 million and
$62.5 million for the years ended January 31, 1996 and 1997, respectively.
See "Management's Discussion and Analysis of Financial Condition and Results
of Operations."
(3) Includes expenses attributable to amortization of intangible assets
resulting from acquisitions in the amounts of $1.0 million and $8.6 million
for the years ended January 31, 1996 and 1997, respectively.
(4) See Note 1 of Notes to BEA Systems, Inc. Consolidated Financial Statements
for an explanation of the method used to determine the number of shares used
in computing pro forma net income (loss) per share.
(5) Adjusted to reflect the sale of 5,000,000 shares offered by the Company
hereby, based on an assumed initial public offering price of $7.00 per share
and the application of the estimated net proceeds therefrom. Includes the
effect of conversion of all Preferred Stock and the convertible loan into
Common Stock at the closing of the offering. See "Certain Transactions--
Warburg Line of Credit."
5
<PAGE>
RISK FACTORS
IN ADDITION TO THE OTHER INFORMATION CONTAINED IN THIS PROSPECTUS, INVESTORS
SHOULD CAREFULLY CONSIDER THE FOLLOWING RISK FACTORS IN EVALUATING AN INVESTMENT
IN THE COMMON STOCK OFFERED HEREBY. THIS PROSPECTUS CONTAINS CERTAIN
FORWARD-LOOKING STATEMENTS, WITHIN THE MEANING OF SECTION 27A OF THE SECURITIES
ACT OF 1933, AS AMENDED, AND SECTION 21E OF THE SECURITIES EXCHANGE ACT OF 1934,
AS AMENDED, INCLUDING STATEMENTS REGARDING (I) THE EXPECTED IMPACT OF THE
DIGITAL TRANSACTION ON THE COMPANY'S OPERATING RESULTS AND FINANCIAL CONDITION;
(II) THE EXPECTED INCREASES IN LICENSE AND SERVICE REVENUES IN FUTURE PERIODS;
(III) THE PLANNED EXPANSION OF THE COMPANY'S SALES, MARKETING AND RESEARCH AND
DEVELOPMENT ORGANIZATIONS; (IV) THE SPENDING REQUIRED TO DEVELOP ACQUIRED
IN-PROCESS RESEARCH AND DEVELOPMENT INTO VIABLE PRODUCTS; AND (V) THE
SUFFICIENCY OF THE COMPANY'S CURRENT CASH BALANCES, BORROWINGS AVAILABLE UNDER
ITS LINES OF CREDIT AND CASH FLOW FROM OPERATIONS TO MEET ITS WORKING CAPITAL
REQUIREMENTS. THESE STATEMENTS INVOLVE RISKS AND UNCERTAINTIES AND ACTUAL
RESULTS COULD DIFFER MATERIALLY FROM SUCH RESULTS DISCUSSED IN THE
FORWARD-LOOKING STATEMENTS AS A RESULT OF CERTAIN OF THE RISK FACTORS SET FORTH
BELOW AND FOR THE REASONS DESCRIBED ELSEWHERE IN THIS PROSPECTUS.
LIMITED OPERATING HISTORY; NO ASSURANCE OF PROFITABILITY
The Company was incorporated in January 1995 and, accordingly, has a limited
operating history upon which an evaluation of the Company and its prospects can
be based. Revenues generated by the Company to date have been derived primarily
from sales of BEA TUXEDO, a product to which the Company acquired worldwide
rights in February 1996, and from fees for related services. Since its
inception, the Company has acquired a number of businesses and other products in
addition to BEA TUXEDO. Prior to the consummation of these acquisitions, the
Company had no revenues and limited business activities. Accordingly, the
Company is subject to the risks inherent both in the operation of a new business
enterprise and the integration of a number of previously separate and
independent business operations, and there can be no assurance that the Company
will be able to address these risks successfully. Although the Company has
experienced recent substantial revenue growth, the Company has incurred
significant net losses since its inception, including losses of approximately
$17.7 million and $88.7 million during the fiscal years ended January 31, 1996
and 1997, respectively. At January 31, 1997, the Company had an accumulated
deficit of approximately $107.3 million. In addition, in connection with certain
acquisitions, the Company recorded approximately $100.6 million as intangible
assets, approximately $83.4 million of which has already been amortized and
expensed and approximately $17.2 million of which is expected to be amortized
and expensed in future periods through the Company's fiscal year ending January
31, 2001. The amounts of such intangible assets to be expensed in future
periods, which will not be separately reported but will be included primarily in
cost of sales, are expected to be $2.5 million per fiscal quarter in 1997 and
are expected to average $1.4 million per fiscal quarter in 1998. Based on the
Company's acquisition of exclusive rights to certain products from Digital in
March 1997, the amounts to be expensed are expected to increase by approximately
$0.4 to $0.6 million per fiscal quarter in 1997 and 1998, in addition to an
estimated charge ranging from approximately $14 million to $16 million in the
fiscal quarter ending April 30, 1997 for write-off of purchased in-process
research and development. To the extent the Company makes additional
acquisitions of businesses, products and technologies in the future, the Company
may report additional, potentially significant, amortization expenses related
thereto. To the extent future events result in the impairment of any capitalized
intangible assets, amortization expenses may occur sooner than the Company
expects. For the foregoing reasons, there can be no assurance that the Company
will be profitable in any future period, and recent operating results should not
be considered indicative of future financial performance. See "Selected
Consolidated Financial Data" and "Management's Discussion and Analysis of
Financial Condition and Results of Operations."
POTENTIAL FLUCTUATIONS IN QUARTERLY OPERATING RESULTS
The Company expects that it will experience significant fluctuations in
future quarterly operating results as a result of many factors, including, among
others: the size and timing of orders; introduction or enhancement of products
by the Company or its competitors; market acceptance of middleware
6
<PAGE>
products; the lengthy sales and implementation cycle for the Company's products
and the potential for significant delays; market acceptance of new products and
product enhancements; technological changes in computer systems and
environments; the structure and timing of future acquisitions of businesses,
products and technologies, if any; increased competition; the ability of the
Company to develop, introduce and market new products on a timely basis; changes
in the Company's or its competitors' pricing policies; customer order deferrals
in anticipation of future new products and product enhancements, if any; the
Company's success in expanding its sales and marketing programs; mix of products
and services sold; mix of distribution channels; ability to meet the service
requirements of its customers; costs associated with acquisitions; loss of key
personnel; fluctuations in foreign currency exchange rates; and general economic
conditions. As a result of all of these factors, the Company believes that
quarterly revenues and operating results are difficult to forecast and
period-to-period comparisons of its results of operations are not necessarily
meaningful and should not be relied upon as indications of future performance.
Because the Company generally ships software products within a short period
after receipt of an order, it will not at any given time have a material backlog
of unfilled orders, and revenues in any quarter will be substantially dependent
on orders booked and shipped in that quarter. In addition, the Company
historically has recognized, and expects to continue to recognize, a significant
portion of license revenue in the last month of each fiscal quarter. The Company
anticipates that it will derive a substantial portion of its revenues from
increasingly large orders, as customers deploy BEA products throughout their
organizations. Any inability of the Company to generate large orders, or any
delay or loss of such orders in a particular quarter, will materially adversely
affect the Company's revenues and, more significantly on a percentage basis, its
net income or loss in that quarter. The Company's expense levels are based, in
part, on its expectations of future revenues. The Company expects to increase
expense levels in each of the next several quarters, primarily to support
increased sales, services and customer support efforts and research and
development efforts, and to build greater infrastructure in its international
offices, particularly in finance and administration functions. The Company is
generally unable to reduce expenses significantly in the short term to
compensate for any unexpected revenue shortfall. Accordingly, any significant
shortfall of revenues in relation to the Company's expectations or any material
delay of large orders would have a material adverse effect on the Company's
business, operating results and financial condition. Due to all the foregoing
factors, it is likely that in some future quarters the Company's operating
results will not meet the expectations of public stock market analysts and
investors. As a result, the market price of the Company's Common Stock would be
materially adversely affected. See "Management's Discussion and Analysis of
Financial Condition and Results of Operations."
PRODUCT CONCENTRATION; DEPENDENCE ON GROWTH OF MARKET FOR MIDDLEWARE; NOVELL
RELATIONSHIP
Revenues generated by the Company to date have been derived primarily from
sales of BEA TUXEDO, a product to which the Company acquired worldwide rights in
February 1996, and from fees for related services. These products and services
are expected to continue to account for a substantial majority of the Company's
revenues for the foreseeable future. As a result, factors adversely affecting
the pricing of or demand for BEA TUXEDO, such as competition or technological
change, could have a material adverse effect on the Company's business,
operating results and financial condition. The Company's success is dependent in
significant part on the Company's middleware software products achieving market
acceptance by large organizations with substantial legacy mainframe systems. All
of the Company's business is in the market for middleware and related services,
which is still an emerging market that is characterized by continuing
technological developments, evolving industry standards and changing customer
requirements. The Company's future financial performance will depend in large
part on continued growth in the number of companies extending their
mainframe-based, mission-critical applications to an enterprise-wide distributed
computing environment through the use of middleware technology. There can be no
assurance that the market for middleware technology and related services will
continue to grow. If the middleware market fails to grow or grows more slowly
than the Company
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currently anticipates, or if the Company experiences increased competition in
this market, the Company's business, operating results and financial condition
will be materially adversely affected.
Under the terms of the Company's license agreement with Novell, Inc.
("Novell") for the BEA TUXEDO product (the "Novell Agreement"), the Company is
required to make aggregate annual payments to Novell of $32 million and $33
million during the calendar years 1997 and 1998, respectively, and, to acquire
perpetual rights to TUXEDO, a final payment of $12 million in January 1999. In
connection with the Novell Agreement, Warburg, Pincus Ventures, L.P., the
Company's principal stockholder, has guaranteed payment obligations to Novell.
See Note 6 of Notes to BEA Systems, Inc. Consolidated Financial Statements. In
addition, the Novell Agreement requires BEA to employ at least 47 developers
devoted to BEA TUXEDO product development at December 31, 1997 and 62 such
developers at December 31, 1998. There can be no assurance that the Company will
employ the required minimum number of BEA TUXEDO developers. Any failure to make
the required payments or any failure by the Company to achieve minimum
contractual employment levels under the Novell Agreement would result in a loss
of the Company's rights to BEA TUXEDO, which would have a material adverse
effect on the Company's business, operating results and financial condition. See
"--Substantial Future Capital Needs," "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and "Business--Products."
LENGTHY SALES AND IMPLEMENTATION CYCLE
The Company's products are typically used to integrate applications that are
critical to a customer's business, and the purchase of the Company's products is
often part of a customer's implementation of a distributed computing
environment. In such cases, the sales and implementation of the Company's
middleware software products are included in a larger decision-making process
within a customer's organization which can cause orders of the Company's
products to be delayed or be subject to numerous factors beyond the Company's
control. During the fiscal year ended January 31, 1997, license fees per
customer for BEA products generally ranged from $84,000 to $2.6 million and
averaged approximately $395,000. The Company expects that licenses for BEA
TUXEDO will increase in size and the implementation of the Company's products
will become more complex as customers use BEA TUXEDO for larger and more
sophisticated installations. For these and other reasons, the sales and
implementation cycle associated with the licensing of the Company's products is
very lengthy and is subject to a number of significant delays over which the
Company has little or no control. Following the signing of a license contract
for BEA products, a customer's implementation consists of a pre-deployment and a
deployment phase. Approximately 10 to 30 percent of the revenues from most
customers is realized during the pre-deployment phase and is usually weighted
toward professional services and training. The remaining portion of revenues is
realized during the deployment stage and predominantly consists of license fees.
While the sales and implementation cycle varies substantially from customer to
customer, for initial sales it has ranged from 18 to 24 months from the initial
contact to the completion of the deployment phase. Any significant or ongoing
failure by the Company to achieve such sales or any delays in the implementation
process could have a material adverse effect on the Company's business,
operating results and financial condition. See "Business--Sales, Marketing and
Services."
COMPETITION
The market for middleware software and related services is highly
competitive. The Company's competitors are diverse and offer a variety of
solutions directed at various segments of the middleware software marketplace.
These competitors include database vendors such as Oracle Corporation
("Oracle"), IBM Corporation ("IBM") and others, which offer their own
development tools for use with their proprietary databases, as well as companies
offering and developing middleware software products and related services or
application development tools that compete with products offered by the Company.
In addition, internal development groups within prospective customers'
organizations may develop software and hardware systems that may substitute for
those offered by the Company. A
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number of the Company's competitors and potential competitors have longer
operating histories, significantly greater financial, technical, marketing and
other resources, greater name recognition and a larger installed base of
customers than the Company.
The Company's principal competitors currently are database vendors that
advocate client/server networks driven by the database server and software tool
vendors that offer development tools designed to enable customers to create
distributed mission-critical applications. Oracle is the primary relational
database vendor offering products that are intended to serve as alternatives to
the Company's enterprise middleware solutions. Currently, the software
development tool vendors typically emphasize the broad versatility of their
toolsets and, in some cases, offer complementary middleware software that
supports these tools and performs messaging and other basic middleware
functions. There can be no assurance that the Company will compete successfully
with database vendors and software tool vendors, or that the products offered by
such vendors will not achieve greater market acceptance than the Company's
products.
Microsoft has announced that it will provide middleware functionality in
future versions of its Windows NT operating system and has recently announced
the release of a product that includes certain middleware functionality. The
bundling of middleware functionality in Windows NT will require the Company to
compete with Microsoft in the Windows NT marketplace, where Microsoft will have
certain inherent advantages due to its significantly greater financial,
technical, marketing and other resources, greater name recognition, its
substantial installed base and the integration of its enterprise middleware
functionality with Windows NT. If Microsoft successfully incorporates middleware
functionality into Windows NT or separately offers middleware applications, the
Company will need to differentiate its products based on functionality,
interoperability with non-Microsoft platforms, performance and reliability and
establish its products as more effective solutions to customers' needs. There
can be no assurance that the Company will be able to successfully differentiate
its products from those offered by Microsoft, or that Microsoft's entry into the
middleware market will not materially adversely affect the Company's business,
operating results and financial condition.
In addition, current and potential competitors may make strategic
acquisitions or establish cooperative relationships among themselves or with
third parties, thereby increasing the ability of their products to address the
needs of the Company's current and prospective customers. Accordingly, it is
possible that new competitors or alliances among current and new competitors may
emerge and rapidly gain significant market share. Such competition could
materially adversely affect the Company's ability to sell additional licenses
and maintenance and support renewals on terms favorable to the Company. Further,
competitive pressures could require the Company to reduce the price of its
products and related services, which could materially adversely affect the
Company's business, operating results and financial condition. There can be no
assurance that the Company will be able to compete successfully against current
and future competitors, and the failure to do so would have a material adverse
effect upon the Company's business, operating results and financial condition.
See "Business-- Competition."
PAST AND FUTURE ACQUISITIONS
From its inception in January 1995 through March 31, 1997, the Company
concluded the acquisition of eight companies, divisions or products, including
the acquisition in March 1997 of exclusive rights to certain software products
developed by Digital pursuant to an agreement dated January 31, 1997 with
Digital (the "Digital Agreement"). Although the Company anticipates that the
integration of acquired companies, divisions or products will not adversely
affect the Company's operating results, this integration will involve the
assimilation of conflicting operations and products, which will divert the
attention of the Company's management team and may have a material adverse
effect on the Company's operating results in future quarters. In addition, in
connection with the acquisition of certain companies, divisions or products, the
Company is required to make certain future payments. Under the Novell Agreement,
the Company is obligated to make aggregate annual payments to Novell of $32
million and $33 million during the calendar years 1997 and 1998 and a final
payment of
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$12 million in January 1999 in connection with the Company's acquisition of
TUXEDO. Under the Digital Agreement, the Company is obligated to make aggregate
payments to Digital of $22 million through February 2000. Within 30 days of the
consummation of this offering, the Company is obligated to pay $5 million to
Digital. On or before February 1, 1998, 1999 and 2000, BEA is obligated to make
payments to Digital of $2 million, $4 million and $11 million, respectively;
however, at Digital's election, certain portions of these payments may be
converted into shares of the Company's Common Stock at prices ranging from 1.5
to 2.5 times the initial public offering price. Any failure to make such
payments or otherwise perform the Company's other continuing obligations
relative to these acquisitions would result in the Company's loss of certain of
its rights in the acquired businesses or products and would have a material
adverse effect on the Company's business, operating results and financial
condition. The Company intends to make additional acquisitions in the future,
although there can be no assurance that suitable companies, divisions or
products will be available for acquisition. Such acquisitions entail numerous
risks, including an inability to successfully assimilate acquired operations and
products, diversion of management's attention, difficulties and uncertainties in
transitioning the business relationships from the acquired entity to the Company
and loss of key employees of acquired companies. In addition, future
acquisitions by the Company may result in dilutive issuances of equity
securities, the incurrence of debt, large one-time expenses, and the creation of
goodwill or other intangible assets that could result in significant
amortization expense. These factors could have a material adverse effect on the
Company's business, operating results and financial condition. See "--Product
Concentration; Dependence on Growth of Market for Middleware; Novell
Relationship," "--Substantial Future Capital Needs," "Management's Discussion
and Analysis of Financial Condition and Results of Operations" and Note 2 of
Notes to BEA Systems, Inc. Consolidated Financial Statements.
MANAGEMENT OF GROWTH
The Company currently is experiencing a period of rapid and substantial
growth that has placed, and is expected to continue to place, a strain on the
Company's administrative, financial and operational resources. The Company's
revenues have increased from $5.1 million for the fiscal year ended January 31,
1996 to $61.6 million for the fiscal year ended January 31, 1997, and the number
of Company employees has increased from 120 employees in three offices in the
United States at January 31, 1996 to 459 employees in 28 offices in 15 countries
at January 31, 1997. In addition, as a result of the Digital transaction that
closed in March 1997, the Company added a total of approximately 90 employees
and consultants who had responsibility at Digital for the development of the
products acquired from Digital. The Company's ability to manage its staff and
growth effectively will require it to continue to improve its operational,
financial and management controls, reporting systems and procedures, to train,
motivate and manage its employees and, as required, to install new management
information and control systems. In that regard, the Company is currently
installing and implementing a new management information system that is designed
to integrate financial and other reporting among the Company's multiple domestic
and foreign offices. In addition, the Company intends to significantly increase
its administrative staff in its foreign offices, particularly in the area of
finance, and to improve financial reporting and controls for the Company's
international operations. There can be no assurance that the Company will be
able to implement improvements to its management information and control systems
in an efficient or timely manner or that, during the course of this
implementation, deficiencies in existing systems and controls will not be
discovered. If management of the Company is unable to manage growth effectively,
the Company's business, operating results and financial condition will be
materially adversely affected. See "Management's Discussion and Analysis of
Financial Condition and Results of Operations."
USE OF PROCEEDS TO PAY CERTAIN OUTSTANDING INDEBTEDNESS AND ACQUISITION
OBLIGATIONS
The net proceeds of the offering are expected to be used for repayment of
amounts borrowed by the Company under its revolving credit line and for the
payment of certain obligations incurred in connection with the Acquisitions.
Depending upon the level of the Company's borrowings thereunder, up to $10
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million will be used to repay the outstanding borrowings under the revolving
credit line. As of February 28, 1997, the Company had outstanding borrowings of
approximately $8.3 million under the revolving credit line. Approximately $4.6
million will be used to repay the entire amount due at the offering under an 8%
note issued by the Company to the founders of an operating subsidiary acquired
by the Company in September 1995. Under the Digital Agreement, the Company is
obligated to make $5 million in payments to Digital, $3 million of which will be
due on June 20, 1997 and $2 million of which will be due on the earlier of June
20, 1997 or 10 days after the purchase by Digital of $2 million worth of Common
Stock offered hereby. The $12.6 million balance of the net proceeds is expected
to be used to make payments toward the $32 million due to Novell in calendar
year 1997. See "--Substantial Future Capital Needs," "Use of Proceeds" and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations."
SUBSTANTIAL FUTURE CAPITAL NEEDS
The Company will require substantial additional funds to satisfy its payment
obligations to Novell related to its acquisition of TUXEDO. Under the Novell
Agreement, the Company is required to make aggregate payments of $32 million and
$33 million during the years ended December 31, 1997 and 1998, respectively,
and, to acquire perpetual rights to TUXEDO, a final payment of $12 million in
January 1999. Payment obligations have been guaranteed by the Company's
principal stockholder, Warburg, Pincus Ventures L.P. ("Warburg"). See Note 6 of
Notes to BEA Systems, Inc. Consolidated Financial Statements. Under the Digital
Agreement, the Company is obligated to make aggregate payments of $22 million
through February 2000. As of January 31, 1997, the Company had $3.3 million in
cash, cash equivalents and short-term investments. The Company believes that the
net proceeds of the offering, together with its cash, cash equivalents and
short-term investments, the Warburg guaranty, available borrowings under its
lines of credit and cash from operations, will be sufficient to meet its working
capital requirements, including the payment obligations under the Novell
Agreement and Digital Agreement, through at least January 31, 1998. Thereafter,
the Company expects that it will require substantial additional capital to meet
its $33 million and $12 million payment obligations to Novell in 1998 and
January 1999, respectively, and its aggregate payment obligations to Digital of
up to $17 million through February 1, 2000, including an $11 million payment due
on or before February 1, 2000. Depending upon the Company's success in achieving
continued revenue growth from sales of BEA TUXEDO and services related thereto
and the extent to which Digital elects not to convert payment amounts due into
shares of the Company's Common Stock, the Company may require additional equity
or debt financing earlier than currently anticipated in order to fund its
working capital and other requirements. There can be no assurance that
additional financing will be available or, if available, that it will be on
terms satisfactory to the Company. See "Management's Discussion and Analysis of
Financial Condition and Results of Operations--Liquidity and Capital Resources."
DEPENDENCE ON KEY PERSONNEL AND NEED TO HIRE ADDITIONAL PERSONNEL
The Company's future performance depends to a significant degree upon the
continued service of its key members of management, as well as marketing, sales,
consulting and product development personnel. The loss of any of William T.
Coleman III, the Company's President, Chairman and Chief Executive Officer,
Edward W. Scott, Jr., the Company's Executive Vice President of Worldwide Field
Operations, or Alfred S. Chuang, the Company's Chief Technical Officer and
Executive Vice President of Product Development, or one or more of the Company's
other key personnel, would have a material adverse effect on the Company's
business, operating results and financial condition. The Company believes its
future success will also depend in large part upon its ability to attract and
retain highly skilled management, marketing, sales, consulting and product
development personnel. Competition for such personnel is intense, and there can
be no assurance that the Company will be able to retain its key employees or
that it will be successful in attracting, assimilating and retaining them in the
future. As the Company seeks to expand its worldwide support organization,
hiring of qualified technical personnel in foreign countries will be difficult
due to the limited number of qualified professionals. Failure to attract,
assimilate and retain key personnel would have a material adverse effect on the
Company's business,
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operating results and financial condition. In addition, the Novell Agreement
requires the Company to employ a minimum number of research and development
personnel. See "--Product Concentration; Dependence on Growth of Market for
Middleware; Novell Relationship" and "Business--Employees."
EXPANDING DISTRIBUTION CHANNELS AND RELIANCE ON THIRD PARTIES
To date, the Company has sold its products principally through its direct
sales force, as well as through indirect sales channels, such as independent
software vendors ("ISVs"), hardware OEMs, systems integrators, independent
consultants and distributors. Of the Company's revenues in the fiscal year ended
January 31, 1997, approximately $52.2 million resulted from sales by the
Company's direct sales force, and approximately $9.4 million resulted from sales
through indirect channels. The Company's ability to achieve significant revenue
growth in the future will depend in large part on its success in expanding its
direct sales force and in further establishing and maintaining relationships
with distributors, OEMs and ISVs. In particular, a significant element of the
Company's strategy is to embed its technology in products offered by the
Company's ISV customers. The Company intends to seek distribution arrangements
with other ISVs to embed the Company's technology in their products and expects
that these arrangements will account for a significant portion of the Company's
revenues in future periods.
Although the Company is currently investing, and plans to continue to
invest, significant resources to expand its direct sales force and to develop
relationships with distributors and ISVs, the Company has at times experienced
and continues to experience difficulty in recruiting qualified sales personnel
and in establishing necessary third-party relationships. There can be no
assurance that the Company will be able to successfully expand its direct sales
force or other distribution channels, secure license agreements with additional
ISVs on commercially reasonable terms or at all, or otherwise further develop
its relationships with distributors and ISVs, or that any such expansion or
additional license agreements would result in an increase in revenues. Although
the Company believes that its investments in the expansion of its direct sales
force and in the establishment of other distribution channels through third
parties ultimately will improve the Company's operating results, to the extent
that such investments are made and revenues do not correspondingly increase, the
Company's business, operating results and financial condition will be materially
and adversely affected. See "Business--Sales, Marketing and Services."
INTERNATIONAL OPERATIONS
International revenues accounted for 11% and 40% of total revenues in the
fiscal years ended January 31, 1996 and 1997, respectively. Revenues from France
and the United Kingdom accounted for 13% and 10%, respectively, of the Company's
total revenues in the fiscal year ended January 31, 1997. The Company believes
that its success depends upon continued expansion of its international
operations. As of January 31, 1997, the Company had sales and service offices in
Brisbane, CapeTown, Espoo (Finland), Hong Kong, Johannesburg, London, Melbourne,
Munich, Paris, Sao Paulo, Seoul, Stockholm, Sydney, Toronto, Yokohama, Zaventem
(Belgium) and Zurich. At January 31, 1997, the Company also had 13 resellers in
11 locations outside the United States. The Company's international business
involves a number of risks, including lack of acceptance of localized products;
cultural differences in the conduct of business; longer accounts receivable
payment cycles; greater difficulty in accounts receivable collection;
seasonality due to the slow-down in European business activity during the summer
months; unexpected changes in regulatory requirements; royalties and withholding
taxes that restrict the repatriation of earnings; tariffs and other trade
barriers; difficulty hiring qualified personnel; economic and political
conditions in each country; management of an enterprise spread over various
countries; and the burden of complying with a wide variety of foreign laws. In
addition, the Company has acquired or otherwise established 13 foreign offices
since inception and is seeking to integrate each of these offices into the
Company's overall administrative and financial reporting structure, which is
anticipated to result in the hiring of additional personnel in many of these
international offices. The Company's international sales are generated primarily
through its international sales
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subsidiaries, and most are currently denominated in local currency, creating a
risk of foreign currency translation gains and losses. To the extent profit is
generated or losses are incurred in foreign countries, the Company's effective
income tax rate may be materially and adversely affected. In future periods, the
Company may determine to increase the percentage of international sales of its
products at prices denominated in U.S. dollars. In such event, fluctuations in
currency exchange rates may render the price of the Company's products
unaffordable or uncompetitive. Such an event could have a material adverse
effect on the Company's business, financial condition and results of operations.
In some markets, localization of the Company's products is essential to achieve
market penetration. The Company may incur substantial costs and experience
delays in localizing its products, and there can be no assurance that any
localized product will generate significant revenues. There can be no assurance
that any of the factors described herein will not have a material adverse effect
on the Company's future international sales and, consequently, its business,
operating results and financial condition. See "Management's Discussion and
Analysis of Financial Condition and Results of Operations," "Business--Sales,
Marketing and Services" and Note 12 of Notes to BEA Systems, Inc. Consolidated
Financial Statements.
TECHNOLOGICAL CHANGE; DEPENDENCE ON NEW PRODUCTS AND PRODUCT ENHANCEMENTS
The market for the Company's products is highly fragmented, competitive with
alternative computing architectures, and characterized by continuing
technological development, evolving industry standards and changing customer
requirements. The introduction of products embodying new technologies, the
emergence of new industry standards or changes in customer requirements could
render the Company's existing products obsolete and unmarketable. As a result,
the Company's success depends upon its ability to enhance existing products,
respond to changing customer requirements, and develop and introduce in a timely
manner new products that keep pace with technological developments and emerging
industry standards. Customer requirements include, but are not limited to,
operability across distributed and changing heterogeneous hardware platforms,
operating systems, relational databases and networks. For example, although BEA
TUXEDO interoperates with applications on over 40 operating platforms, as
certain of the Company's customers start to utilize emerging platforms, it will
be necessary for the Company to further enhance its products to interoperate
with applications on these emerging platforms. There can be no assurance that
the Company's products will adequately address the changing needs of the
marketplace or that the Company will be successful in developing and marketing
enhancements to its existing products or new products incorporating new
technology on a timely basis. Failure to develop and introduce new products, or
enhancements to existing products, in a timely manner in response to changing
market conditions or customer requirements, will materially and adversely affect
the Company's business, operating results and financial condition.
The Company's BEA Jolt product is designed to enable the extension of
enterprise-wide, mission-critical applications to Internet and intranet
environments. Although BEA Jolt has not accounted for a significant portion of
the Company's revenues to date, the Company intends to release enhanced versions
of BEA Jolt with greater functionality during the fiscal year ended January 31,
1998, and the Company's objective is to increase license revenues from the BEA
Jolt product, both in absolute dollars and as a percentage of the Company's
revenues in future periods, although there can be no assurance of such increase.
The success of BEA Jolt depends upon, among other things, the future growth of
the Internet for commercial transactions. There can be no assurance that
communication or commerce over the Internet will become widespread, or that the
Internet will prove to be a viable commercial marketplace. If BEA Jolt fails to
adequately address customer concerns regarding the use of the Internet
for commerce, or if the Internet otherwise does not prove to be a viable
commercial marketplace, the success of the BEA Jolt product will be materially
and adversely affected. In addition, the current version of BEA Jolt operates
through Java-based applets, and the Company anticipates that future versions of
BEA Jolt will similarly operate through Java. Accordingly, the success of BEA
Jolt depends upon the continued widespread demand for Java-enabled World Wide
Web browsers. See "Business--Products and --Research and Development."
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SOFTWARE DEFECTS
Software products as complex as those offered by the Company frequently
contain errors or defects, especially when first introduced or when new versions
or enhancements are released. Despite product testing, the Company's recently
introduced products or any products may contain defects or software errors and,
as a result, the Company may experience delayed or lost revenues during the
period required to correct any defects or errors. Any such defects or errors
could result in adverse customer reactions, negative publicity regarding the
Company and its products, harm to the Company's reputation, or loss of or delay
in market acceptance, or could require expensive product changes, any of which
could have a material adverse effect upon the Company's business, operating
results and financial condition. See "Business--Products and --Research and
Development."
PRODUCT LIABILITY
The Company markets its products to customers for developing, building,
deploying and managing distributed mission-critical computer software
applications. The Company's license agreements with its customers typically
contain provisions designed to limit the Company's exposure to potential product
liability claims. It is possible, however, that the limitation of liability
provisions contained in the Company's license agreements may not be effective as
a result of existing or future federal, state or local laws or ordinances or
unfavorable judicial decisions. Although the Company has not experienced any
product liability claims to date, the sale and support of its products by the
Company may entail the risk of such claims, which could be substantial in light
of the use of such products in mission-critical applications. A successful
product liability claim brought against the Company could have a material
adverse effect upon the Company's business, operating results and financial
condition.
DEPENDENCE ON PROPRIETARY TECHNOLOGY; RISK OF INFRINGEMENT
The Company's success depends upon its proprietary technology. The Company
relies on a combination of copyright, trademark and trade secret rights,
confidentiality procedures and licensing arrangements to establish and protect
its proprietary rights. The Company presently has three issued patents and two
pending patent applications, as well as an exclusive license to one patent and
one pending patent application. Under the Digital Agreement, the Company has an
exclusive license to one additional U.S. patent and two additional U.S. patent
applications. No assurance can be given that competitors will not successfully
challenge the validity or scope of the Company's patents and that such patents
will provide a competitive advantage to the Company. As part of its
confidentiality procedures, the Company generally enters into non-disclosure
agreements with its employees, distributors and corporate partners, and license
agreements with respect to its software, documentation and other proprietary
information. Despite these precautions, it may be possible for a third party to
copy or otherwise obtain and use the Company's products or technology without
authorization, or to develop similar technology independently. In particular,
the Company has, in the past, provided certain hardware OEMs with access to its
source code, and any unauthorized publication or proliferation of this source
code could materially adversely affect the Company's business, operating results
and financial condition. Policing unauthorized use of the Company's products is
difficult and, although the Company is unable to determine the extent to which
piracy of its software products exists, software piracy can be expected to be a
persistent problem. Effective protection of intellectual property rights is
unavailable or limited in certain foreign countries. There can be no assurance
that the Company's protection of its proprietary rights will be adequate or that
the Company's competitors will not independently develop similar technology,
duplicate the Company's products or design around any patents issued to the
Company or other intellectual property rights of the Company.
The Company is not aware that any of its products infringe the proprietary
rights of third parties. There can be no assurance, however, that third parties
will not claim such infringement by the Company with respect to current or
future products. The Company expects that software product developers will
increasingly be subject to such claims as the number of products and competitors
in the Company's industry segment grows and the functionality of products in the
industry segment overlaps. Any such
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claims, with or without merit, could result in costly litigation that could
absorb significant management time, which could have a material adverse effect
on the Company's business, operating results and financial condition. Such
claims might require the Company to enter into royalty or license agreements.
Such royalty or license agreements, if required, may not be available on terms
acceptable to the Company or at all, which could have a material adverse effect
upon the Company's business, operating results and financial condition. See
"Business--Intellectual Property."
NO PRIOR PUBLIC MARKET; DETERMINATION OF PUBLIC OFFERING PRICE; POSSIBLE
VOLATILITY OF STOCK PRICE
Prior to the offering, there has been no public market for shares of the
Common Stock, and there can be no assurance that an active public trading market
will develop following completion of the offering or, if developed, that such
market will be sustained. The initial public offering price of the shares of
Common Stock will be determined by negotiation between the Company and
representatives of the Underwriters and will not necessarily reflect the market
price of the Common Stock following this offering. See "Underwriting" for a
discussion of the factors to be considered in determining the initial public
offering price.
The market price for the Common Stock following the offering will be
affected by a number of factors, including the announcement of new products or
product enhancements by the Company or its competitors, quarterly variations in
the Company's or its competitors' results of operations, changes in earnings
estimates or recommendations by securities analysts, developments in the
Company's industry, general market conditions and other factors, including
factors unrelated to the operating performance of the Company or its
competitors. In addition, stock prices for many companies in the technology and
emerging growth sectors have experienced wide fluctuations that have often been
unrelated to the operating performance of such companies. Such factors and
fluctuations, as well as general economic, political and market conditions, such
as recessions, may materially adversely affect the market price of the Company's
Common Stock.
POTENTIAL EFFECT OF SHARES ELIGIBLE FOR FUTURE SALE ON MARKET PRICE OF THE
COMMON STOCK
Sales of a substantial number of shares of Common Stock after the offering
could adversely affect the market price of the Common Stock and could impair the
Company's ability to raise capital through the sale of equity securities. Upon
completion of the offering, the Company will have 53,643,864 shares of Common
Stock including 29,406,982 shares of Common Stock issuable upon conversion of
the Class B Common Stock outstanding based on shares outstanding as of February
28, 1997. Of these shares, the 5,000,000 shares sold in the offering will be
freely transferable without restriction under the Securities Act, unless they
are held by "affiliates" of the Company as that term is used under the
Securities Act and the Regulations promulgated thereunder.
The remaining 48,643,864 outstanding shares were sold by the Company in
reliance on exemptions from the registration requirements of the Securities Act
and are restricted securities within the meaning of Rule 144 under the
Securities Act. None of these shares will be eligible for sale in the public
market at the effective date of the Registration Statement of which this
Prospectus is a part (the "Effective Date"). Beginning 180 days after the date
of this Prospectus, approximately 47,443,272 additional shares will become
eligible for sale subject to the provisions of Rule 144 or Rule 701 upon the
expiration of agreements not to sell such shares entered into with Goldman,
Sachs & Co. or the Company. Beginning 180 days after the date of this
Prospectus, 2,007,598 additional shares subject to vested options as of the date
of this Prospectus will be available for sale subject to compliance with Rule
701 and upon the expiration of agreements not to sell such shares entered into
with Goldman, Sachs & Co. or the Company. In addition, 428,571 additional shares
(assuming the consummation of the Digital agreement and an initial offering
price of $7.00 per share) subject to outstanding warrants will be available for
sale 180 days after the date of this prospectus. The remainder of the shares
will be eligible for sale from time to time thereafter upon expiration of their
respective one-year holding periods, subject in each case to the restrictions on
such sales by affiliates of the Company. Any shares subject to lock-up
agreements may be earlier released at any time without notice by Goldman, Sachs
& Co.
15
<PAGE>
As soon as practicable after the Effective Date, the Company intends to file
a registration statement on Form S-8 under the Securities Act to register shares
of Common Stock reserved for issuance under the 1995 Flexible Stock Incentive
Plan, the 1997 Stock Incentive Plan and the 1997 Employee Stock Purchase Plan,
thus permitting the resale of such shares by non-affiliates in the public market
without restriction under the Securities Act unless subject to lock-up
agreements. Such registration statement will become effective immediately upon
filing.
Prior to the offering, there has been no public market for the Common Stock
of the Company, and any sale of substantial amounts in the open market may
adversely affect the market price of the Common Stock offered hereby. See
"Shares Eligible for Future Sale."
ANTITAKEOVER EFFECTS OF CERTIFICATE OF INCORPORATION, BYLAWS AND DELAWARE LAW
The Company's Board of Directors has the authority to issue up to 5,000,000
shares of Preferred Stock and to determine the price, rights, preferences,
privileges and restrictions, including voting and conversion rights, of those
shares without any further vote or action by the stockholders. The rights of the
holders of Common Stock will be subject to, and may be adversely affected by,
the rights of the holders of any Preferred Stock that may be issued in the
future. In addition, the Board of Directors has the authority to issue
undesignated Preferred Stock and, subject to certain limitations, to determine
the rights, preferences, privileges and restrictions, including voting rights,
of such shares without any further vote or action by the stockholders. The
issuance of Preferred Stock could have the effect of making it more difficult
for a third party to acquire a majority of the outstanding voting stock of the
Company. In addition, the Company is subject to the antitakeover provisions of
Section 203 of the Delaware General Corporation Law, which will prohibit the
Company from engaging in a "business combination" with an "interested
stockholder" for a period of three years after the date of the transaction in
which the person became an interested stockholder, unless the business
combination is approved in a prescribed manner. The application of Section 203
also could have the effect of delaying or preventing a change of control of the
Company. Further, certain provisions of the Company's Certificate of
Incorporation and Bylaws and of Delaware law could delay or make more difficult
a merger, tender offer or proxy contest involving the Company, which could
adversely affect the market price of the Company's Common Stock. See
"Description of Capital Stock--Preferred Stock and --Antitakeover Effects of
Provisions of the Certificate of Incorporation, Bylaws and Delaware Law."
CONTROL BY MANAGEMENT AND CURRENT STOCKHOLDERS
After the offering, the Company's officers and directors, and their
affiliates, in the aggregate, will have voting control over approximately 74.0%
of the Company's voting Common Stock. In particular, Warburg will have voting
control over approximately 49.0% of the Company's voting Common Stock and will
beneficially own approximately 77.0% of the Company's Common Stock (which
includes the non-voting Class B Common Stock to be owned by Warburg after the
offering). As a result, these stockholders will be able to control all matters
requiring stockholder approval, including the election of directors and approval
of significant corporate transactions. The voting power of Warburg and the
Company's officers and directors under certain circumstances could have the
effect of delaying or preventing a change in control of the Company. See
"Principal Stockholders" and "Description of Capital Stock."
DILUTION
The initial public offering price will be substantially higher than the book
value per share of Common Stock. Investors purchasing shares of Common Stock in
this offering will experience immediate and substantial dilution in net tangible
book value of $7.77 per share. The Company has issued options at prices
significantly below the public offering price. To the extent outstanding options
to purchase shares of Common Stock are exercised, there will be further dilution
in net tangible book value. See "Dilution."
16
<PAGE>
USE OF PROCEEDS
The net proceeds to the Company from the sale of the shares of Common Stock
being offered hereby are estimated to be approximately $30,450,000 ($35,332,500
if the Underwriters' over-allotment options are exercised in full).
The net proceeds of the offering are expected to be used for repayment of
amounts borrowed by the Company under its revolving credit line and for the
payment of certain obligations incurred in connection with the Acquisitions.
Depending upon the level of the Company's borrowings thereunder, up to $10
million will be used to repay the outstanding borrowings under the revolving
credit line. As of February 28, 1997, the Company had outstanding borrowings of
approximately $8.3 million under the revolving credit line. Approximately $4.6
million will be used to repay the entire amount due at the offering under an 8%
note issued by the Company to the founders of an operating subsidiary acquired
by the Company in September 1995. $5 million will be used to make payments to
Digital, $3 million of which will be due on June 20, 1997 and $2 million of
which will be due on the earlier of June 20, 1997 or 10 days after the purchase
by Digital of $2 million worth of Common Stock offered hereby. The $12.6 million
balance of the net proceeds is expected to be used to make payments toward the
$32 million due to Novell in calendar year 1997. Any remaining proceeds will be
added to working capital and used for general corporate purposes. The Company
may also use a portion of the net proceeds to fund acquisitions of complementary
businesses, products or technologies. Pending such uses, the net proceeds of the
offering will be invested in investment grade, interest-bearing instruments.
The Company believes the net proceeds of the offering together with its
current cash balances, borrowings available under its lines of credit and cash
flow from operations will be sufficient to meet its working capital
requirements, including the payment obligations related to the Acquisitions
through at least January 31, 1998. Thereafter, the Company expects that it will
require substantial additional capital to meet its $33 million and $12 million
payment obligations to Novell in 1998 and January 1999, respectively, and its
aggregate payment obligations to Digital of up to $17 million through February
2000, including an $11 million payment due on or before February 1, 2000. See
"Risk Factors--Past and Future Acquisitions, --Use of Proceeds to Pay Certain
Outstanding Indebtedness and Acquisition Obligations and --Substantial Future
Capital Needs" and "Management's Discussion and Analysis of Financial Condition
and Results of Operations--Liquidity and Capital Resources."
DIVIDEND POLICY
The Company has never declared or paid any cash dividends on its capital
stock. The Company currently intends to retain earnings, if any, to support the
development of its business and does not anticipate paying cash dividends for
the foreseeable future. Payment of future dividends, if any, will be at the
discretion of the Company's Board of Directors after taking into account various
factors, including the Company's financial condition, operating results and
current and anticipated cash needs. In addition, an existing revolving line of
credit agreement prohibits the Company from paying cash dividends without the
lender's consent. See Note 6 of Notes to BEA Systems, Inc. Consolidated
Financial Statements.
17
<PAGE>
CAPITALIZATION
The following table sets forth the capitalization of the Company (i) as of
January 31, 1997, (ii) on a pro forma basis to give effect to the conversion
into Common Stock or Class B Common Stock upon completion of the offering of all
outstanding Preferred Stock and a convertible loan in the principal amount of
$1,000,000 at January 31, 1997, based on an assumed initial public offering
price of $7.00 and the filings of the Company's Amended and Restated Certificate
of Incorporation to authorize 35,000,000 shares of Class B Common Stock and to
adjust the authorized shares of Preferred Stock prior to the Closing of the
offering and (iii) as further adjusted to give effect to the sale by the Company
of 5,000,000 shares of Common Stock offered by the Company hereby at an assumed
initial public offering price of $7.00 per share and the receipt of estimated
net proceeds therefrom. This table should be read in conjunction with the BEA
Systems, Inc. Consolidated Financial Statements and notes thereto and "Selected
Consolidated Financial Data" included elsewhere in this Prospectus.
<TABLE>
<CAPTION>
JANUARY 31, 1997
-----------------------------------------
ACTUAL PRO FORMA AS ADJUSTED
----------- ------------- -------------
(IN THOUSANDS)
<S> <C> <C> <C>
Notes Payable and Capital Lease Obligations(1)......................... $ 49,540 $ 48,540 $ 43,951
Series B Redeemable Convertible Preferred Stock, $0.001 par value;
20,000,000 shares authorized, 19,847,800 shares issued and
outstanding, actual; none authorized, issued and outstanding, pro
forma and as adjusted................................................ 20,780 -- --
Stockholders' Equity:
Preferred Stock, $.001 par value; none authorized, issued and
outstanding, actual; 5,000,000 shares authorized, none issued and
outstanding, pro forma and as adjusted............................. -- -- --
Series A Preferred Stock, $.001 par value; 20,000,000 shares
authorized, 17,166,000 shares issued and outstanding, actual; none
authorized, issued and outstanding, pro forma and as adjusted...... 17 -- --
Common Stock, $.001 par value; 80,000,000 shares authorized,
10,747,787 shares issued and outstanding, actual; 80,000,000 shares
authorized, 19,154,147 shares issued and outstanding pro forma;
80,000,000 shares authorized, 24,154,147 shares issued and
outstanding, as adjusted(2)........................................ 11 19 24
Class B Common Stock: $.001 par value; none authorized and
outstanding actual; 35,000,000 shares authorized, 29,271,216 shares
issued and outstanding pro forma and as adjusted(3)................ -- 29 29
Additional Paid-in Capital............................................. 32,335 54,095 84,540
Notes Receivable from Stockholders..................................... (544) (544) (544)
Cumulative Translation Adjustment...................................... 74 74 74
Deferred Compensation related to Stock Options......................... (845) (845) (845)
Accumulated Deficit.................................................... (107,337) (107,337) (107,337)
----------- ------------- -------------
Total Stockholders' Equity (Deficit)................................. (76,289) (54,509) (24,059)
----------- ------------- -------------
Total Capitalization............................................... $ (5,969) $ (5,969) $ 19,892
----------- ------------- -------------
----------- ------------- -------------
</TABLE>
- --------------
(1) Gives effect to the conversion of the Warburg convertible loan into 153,610
shares of Common Stock or Class B Common Stock (pro forma), and the
repayment of $4,589,000 of notes payable (plus accrued interest) to the
founders of IMC with the proceeds of the offering (as adjusted). See
"Certain Transactions--Warburg Line of credit."
(2) Excludes (i) 6,681,288 shares issuable upon exercise of options outstanding
as of January 31, 1997 having a weighted average exercise price of $0.996
per share under the Company's 1995 Flexible Stock Incentive Plan and (ii)
6,350,000 additional shares authorized for issuance under the Stock Plans.
See "Management--Stock Plans and --Executive Compensation" and Note 11 of
Notes to BEA Systems, Inc. Consolidated Financial Statements.
(3) See "Description of Capital Stock" for a description of the terms of the
Class B Common Stock.
18
<PAGE>
DILUTION
At January 31, 1997, the Company's pro forma net tangible book value was
$(71,735,000) or approximately $(1.48) per share. Pro forma net tangible book
value per share represents the amount of the Company's total assets less net
intangible assets (less total liabilities) divided by 48,425,363 shares of
Common Stock (all computed on a pro forma basis to give effect to the conversion
upon completion of the offering of all shares of Preferred Stock and the
convertible loan based on an assumed initial public offering price of $7.00 per
share) outstanding at January 31, 1997, and assumes the conversion of all Class
B Common Stock into Common Stock. Net tangible book value dilution per share
represents the difference between the amount per share paid by purchasers of
shares of Common Stock in the offering made hereby and the pro forma net
tangible book value per share of Common Stock immediately after completion of
the offering. After giving effect to the sale by the Company of 5,000,000 shares
of Common Stock offered by the Company hereby at an assumed initial public
offering price of $7.00 per share, and the application of the estimated net
proceeds therefrom, the pro forma net tangible book value of the Company as of
January 31, 1997 would have been $(41,285,000) or $(0.77) per share. This
represents an immediate increase in net tangible book value of $0.71 per share
to existing stockholders and an immediate dilution in net tangible book value of
$7.77 per share to the purchasers of Common Stock in the offering, as
illustrated in the following table:
<TABLE>
<S> <C> <C>
Assumed initial public offering price per share.......... $ 7.00
Pro forma net tangible book value per share as of
January 31, 1997..................................... $ (1.48)
Increase attributable to new investors................. .71
-----------
Pro forma net tangible book value per share after the
offering................................................ $ (0.77)
-----------
Dilution per share to new investors...................... $ 7.77
-----------
-----------
</TABLE>
The following table sets forth, on a pro forma basis as of January 31, 1997,
the differences between the existing stockholders and the purchasers of shares
in the offering (at an assumed initial public offering price of $7.00 per share
and before deducting the estimated underwriting discount and offering expenses)
with respect to the number of shares purchased from the Company, the total
consideration paid and the average price per share paid:
<TABLE>
<CAPTION>
SHARES PURCHASED TOTAL CONSIDERATION
-------------------------- --------------------------- AVERAGE PRICE
NUMBER PERCENT AMOUNT PERCENT PER SHARE
------------- ----------- -------------- ----------- ---------------
<S> <C> <C> <C> <C> <C>
Existing stockholders.............. 48,425,363 90.6% $ 52,238,000 59.9% $ 1.08
New investors(1)................... 5,000,000 9.4% 35,000,000 40.1% 7.00
------------- ----- -------------- -----
Total............................ 53,425,363 100.0% $ 87,238,000 100.0%
------------- ----- -------------- -----
------------- ----- -------------- -----
</TABLE>
- --------------
(1) The above computations assume no exercise of options after January 31, 1997.
Excludes (i) 6,681,288 shares issuable upon exercise of options outstanding
as of January 31, 1997 having a weighted average exercise price of $0.996
per share under the Company's 1995 Flexible Stock Incentive Plan and (ii)
6,350,000 additional shares authorized for issuance under the Stock Plans.
To the extent that outstanding options are exercised, there will be further
dilution to new investors. See "Capitalization," "Management--Stock Plans
and --Executive Compensation" and Note 11 of Notes to BEA Systems, Inc.
Consolidated Financial Statements.
19
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA
The following selected consolidated financial data of the Company should be
read in conjunction with the consolidated financial statements and the notes
thereto and Management's Discussion and Analysis of Financial Condition and
Results of Operations included elsewhere herein. The consolidated statements of
operations data of the Company for the years ended January 31, 1996 and 1997 and
the consolidated balance sheet data of the Company at January 31, 1996 and 1997
are derived from, and qualified by reference to, the BEA Systems, Inc.
Consolidated Financial Statements, which have been audited by Ernst & Young LLP,
independent auditors, included elsewhere in this Prospectus.
<TABLE>
<CAPTION>
YEAR ENDED JANUARY 31,
--------------------------
1996(1) 1997
------------ ------------
(IN THOUSANDS, EXCEPT PER
SHARE DATA)
<S> <C> <C>
CONSOLIDATED STATEMENTS OF OPERATIONS DATA:
License Revenues.................................................................. $ 3,569 $ 46,839
Service Revenues.................................................................. 1,564 14,759
------------ ------------
Total Revenues(2)............................................................... 5,133 61,598
Total Cost of Revenues(3)........................................................... 2,704 18,607
------------ ------------
Gross Margin........................................................................ 2,429 42,991
Operating Expenses:
Research and Development.......................................................... 3,244 18,183
Sales and Marketing............................................................... 2,572 30,970
General and Administrative........................................................ 3,058 12,732
Write-Off of In-Process Research and Development.................................. 11,194 62,248
------------ ------------
Total Operating Expenses........................................................ 20,068 124,133
------------ ------------
Income (Loss) from Operations....................................................... (17,639) (81,142)
Other Income (Expense).............................................................. 48 4
Interest Expense.................................................................... (89) (6,727)
------------ ------------
Income (Loss) before Income Taxes................................................... (17,680) (87,865)
Provision for Income Taxes.......................................................... 60 800
------------ ------------
Net Income (Loss)................................................................... $ (17,740) $ (88,665)
------------ ------------
------------ ------------
Pro Forma Net Income (Loss) Per Share(4)............................................ $ (1.73)
------------
------------
Shares Used in Computing Pro Forma Net Income (Loss) Per Share(4)................... 51,162
------------
------------
CONSOLIDATED BALANCE SHEET DATA (AT PERIOD END):
Cash and Cash Equivalents........................................................... $ 4,549 $ 3,283
Working Capital (Deficit)........................................................... 2,510 (32,798)
Total Assets........................................................................ 18,953 57,973
Long-Term Obligations (Less Current Portion)........................................ 4,287 49,540
Stockholders' Equity (Deficit)...................................................... 2,038 (76,289)
</TABLE>
- ------------------
(1) The consolidated statement of operations data for the year ended January 31,
1996 includes results of operations from incorporation (January 20, 1995)
through January 31, 1995.
(2) If the acquisitions of IMC, ITI, TUXEDO and USL France had occurred on
February 1, 1995, the pro forma revenues would have been $33.6 million and
$62.5 million for the years ended January 31, 1996 and 1997, respectively.
See "Management's Discussion and Analysis of Financial Condition and Results
of Operations."
(3) Includes expenses attributable to amortization of intangible assets
resulting from acquisitions in the amounts of $1.0 million and $8.6 million,
for the years ended January 31, 1996 and 1997, respectively.
(4) See Note 1 of Notes to BEA Systems, Inc. Consolidated Financial Statements
for an explanation of the method used to determine the number of shares used
in computing pro forma net income (loss) per share.
20
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
THE FOLLOWING DISCUSSION OF THE FINANCIAL CONDITION AND RESULTS OF
OPERATIONS OF THE COMPANY SHOULD BE READ IN CONJUNCTION WITH THE CONSOLIDATED
FINANCIAL STATEMENTS AND THE NOTES THERETO INCLUDED ELSEWHERE IN THIS
PROSPECTUS. THIS DISCUSSION CONTAINS FORWARD-LOOKING STATEMENTS WITHIN THE
MEANING OF SECTION 27A OF THE SECURITIES ACT OF 1933, AS AMENDED AND SECTION 21E
OF THE EXCHANGE ACT OF 1934, AS AMENDED, INCLUDING STATEMENTS REGARDING (I) THE
EXPECTED IMPACT OF THE DIGITAL TRANSACTION ON THE COMPANY'S OPERATING RESULTS
AND FINANCIAL CONDITION; (II) THE EXPECTED INCREASES IN LICENSE AND SERVICE
REVENUES IN FUTURE PERIODS; (III) THE PLANNED EXPANSION OF THE COMPANY'S SALES,
MARKETING AND RESEARCH AND DEVELOPMENT ORGANIZATIONS; (IV) THE SPENDING REQUIRED
TO DEVELOP ACQUIRED IN-PROCESS RESEARCH AND DEVELOPMENT INTO VIABLE PRODUCTS;
AND (V) THE SUFFICIENCY OF THE COMPANY'S CURRENT CASH BALANCES, BORROWINGS
AVAILABLE UNDER ITS LINES OF CREDIT AND CASH FLOW FROM OPERATIONS TO MEET ITS
WORKING CAPITAL REQUIREMENTS. THESE STATEMENTS INVOLVE RISKS AND UNCERTAINTIES
AND ACTUAL RESULTS COULD DIFFER MATERIALLY FROM THOSE DISCUSSED IN THE
FORWARD-LOOKING STATEMENTS AS A RESULT OF CERTAIN OF THE FACTORS, INCLUDING BUT
NOT LIMITED TO THOSE DISCUSSED IN "RISK FACTORS" AND ELSEWHERE IN THIS
PROSPECTUS.
COMPANY BACKGROUND
The Company was founded in January 1995 to address the growing need of large
organizations to extend mission-critical applications beyond legacy mainframe
systems to distributed computing environments. To address this problem, the
Company evaluated the growing market for middleware solutions in an effort to
identify a robust, scalable software product that would enable interoperable,
seamless processing of applications between the mainframe and distributed
environments within an organization. The Company identified the TUXEDO product,
all rights to which were owned by Novell, as a middleware infrastructure
solution capable of meeting this need and serving as a standard for extending
the functionality of mainframes to distributed computing environments. To
implement its strategy, the Company first acquired two leading United States
resellers of TUXEDO and then acquired a worldwide exclusive license to TUXEDO
from Novell. Through these and a number of subsequent acquisitions, the Company
has built a worldwide organization that now owns or controls substantially all
of the development, distribution and marketing rights to TUXEDO as well as
several other products that comprise the BEA Enterprise Transaction Framework.
From January 1995 to September 1995, the Company pursued the acquisition of
two leading resellers of Novell's TUXEDO product, which culminated in the
acquisition of Information Management Company ("IMC") in September 1995 and
Independence Technologies, Inc. ("ITI") in November 1995. Both IMC and ITI were
authorized resellers of Novell's TUXEDO product line and had established sales
and support organizations that enabled BEA to provide direct sales and support
throughout all of North America. In September 1995, the Company also acquired
the TP Blue product from VI Systems, Inc. TP Blue complements BEA TUXEDO in that
it enables the integration of legacy mainframe applications into distributed
computing environments.
In February 1996, BEA acquired exclusive worldwide rights to TUXEDO from
Novell. Novell had originally obtained TUXEDO through its acquisition in 1993 of
UNIX Systems Laboratories from AT&T, which originally developed TUXEDO in its
Bell Labs division. Under the terms of the Novell Agreement, the Company
obtained worldwide exclusive rights to TUXEDO in exchange for a series of fixed
payments totaling $90 million over the original three-year term of the agreement
and was granted an option, exercisable in January 1999, to acquire perpetual
rights to the TUXEDO product line. Under the terms of the Novell Agreement,
Novell retains the right to market TUXEDO in combination with its Netware
product. The Company is obligated to make payments of $32 million and $33
million in calendar years 1997 and 1998, respectively, and will be required to
pay an additional $12 million on exercise of its January 1999 option. For
financial reporting purposes, the purchase price allocation to assets acquired
in the acquisition of TUXEDO has been determined based on the assumed exercise
by the Company of
21
<PAGE>
its option in January 1999 to acquire the perpetual worldwide rights to TUXEDO.
As part of the Company's original licensing of TUXEDO, Novell transferred to the
Company approximately 53 employees engaged in the development, marketing and
support of the TUXEDO product line, as well as all of Novell's rights and
obligations under its agreements with worldwide distributors and resellers for
TUXEDO. At January 31, 1997, the Company had a development staff of 105, which
included the original four architects, as well as many of the original
developers, of TUXEDO. See "Risk Factors--Product Concentration; Dependence on
Growth of Market for Middleware; Novell Relationship."
As part of its strategy to rapidly build an international sales and support
organization, BEA further acquired, between May 1996 and December 1996, a number
of sales and support organizations located in France, South Africa, Finland and
Australia. See "Risk Factors--Limited Operating History; No Assurance of
Profitability and --Past and Future Acquisitions."
In March 1997, the Company acquired exclusive worldwide rights to MessageQ,
ObjectBroker and other related products from Digital for an aggregate
consideration of $22 million. Of the aggregate consideration for the products,
$5 million is payable in cash ($3 million of which will be due on June 20, 1997
and $2 million of which will be due on June 20, 1997 or 10 days after the sale
of the Common Stock offered hereby), and $17 million is payable pursuant to a
$17 million non-interest bearing convertible promissory note delivered by the
Company at the closing of that transaction. The promissory note provides for
installments of $2 million, $4 million and $11 million payable on or before
February 1, 1998, 1999 and 2000, respectively, and may be converted into shares
of the Company's Common Stock at the option of Digital at a conversion price of
1.5 times, 1.8 times and 2.5 times the initial public offering price,
respectively; provided, however, that only $5 million of such $11 million is
convertible. In addition, the Company has granted Digital warrants to purchase
$3 million worth of Common Stock at a price equal to the initial public offering
price exercisable for the period beginning 180 days after the date of this
offering and expiring one year thereafter. As part of the Digital transaction,
the Company added a total of approximately 90 employees and contractors who were
primarily responsible for development of the acquired products at Digital.
OVERVIEW
The Company's total revenues consist of license revenues and service
revenues. License revenues are derived primarily from sales of BEA TUXEDO and
accounted for 76% of total revenues in the fiscal year ended January 31, 1997.
Service revenues are derived primarily from a full range of services
complementing the Company's products, including software maintenance and
support, training and consulting projects, and accounted for 24% of total
revenues in the fiscal year ended January 31, 1997. Sales of BEA TUXEDO and
related services are expected to continue to account for a substantial majority
of the Company's revenues for the forseeable future. See "Risk Factors--Product
Concentration; Dependence on Growth of Market for Middleware; Novell
Relationship."
Because the Company generally ships software products within a short period
after receipt of an order, it will not at any given time have a material backlog
of unfilled orders, and revenues in any quarter are substantially dependent on
orders booked and shipped in that quarter. In addition, the Company historically
has recognized, and expects to continue to recognize, a significant portion of
license revenues in the last month of each fiscal quarter. The Company
anticipates that it will derive a substantial portion of its revenues from
increasingly large orders, as customers deploy BEA products throughout their
organizations. Any inability of the Company to generate large orders, or any
delay or loss of large orders in a particular quarter, will materially adversely
affect the Company's revenues and, more significantly on a percentage basis, its
net income or loss in that quarter. See "Risk Factors--Potential Fluctuations in
Quarterly Operating Results."
Historically, the Company's revenues have been generated primarily through
its direct sales force. The Company has also developed strategic relationships
with a number of organizations, including hardware manufacturers, packaged
application software developers, systems integrators and
22
<PAGE>
independent consultants, independent software tool vendors and distributors. For
their sales and marketing efforts, these organizations are typically granted a
discount from the Company's standard list price or are paid a commission on
sales. Revenues and operating margins may fluctuate in any period due to the mix
of license revenues derived from sales for which a discount is granted or for
which commissions are paid. See "Risk Factors--Expanding Distribution Channel
and Reliance on Third Parties."
The Company recognizes license revenues in accordance with American
Institute of Certified Public Accountants Statement of Position 91-1, SOFTWARE
REVENUE RECOGNITION. Revenues from software license agreements are recognized at
the time of product shipment, provided there are no vendor obligations remaining
to be fulfilled and collectibility is probable. Typically, the Company's
software licenses do not include significant ongoing vendor obligations.
Therefore, the Company generally recognizes all revenues from software licenses
in the period in which the product is shipped.
Service revenues from customer maintenance fees for ongoing customer support
and product updates are recognized ratably over the maintenance term, which is
typically twelve months. Payments for maintenance fees are generally received in
advance and recognized ratably. Service revenues from training and consulting
are recognized when the services are performed. Revenues from development
agreements are recognized upon achievement of contractual milestones or on a
percentage of completion basis.
CONSOLIDATED RESULTS OF OPERATIONS
The following table sets forth, as a percentage of total revenues,
historical and pro forma consolidated statements of operations for the periods
indicated:
<TABLE>
<CAPTION>
YEAR ENDED YEAR ENDED
JANUARY 31, JANUARY 31,
1996 1997
----------- -----------
<S> <C> <C>
Revenues:
License Revenues................. 70% 76%
Service Revenues................. 30 24
--- ---
Total Revenues................. 100 100
Total Cost of Revenues(1).......... 53 30
--- ---
Gross Margin....................... 47 70
Operating Expenses:
Research and Development......... 63 30
Sales and Marketing.............. 50 50
General and Administrative....... 60 21
Write-Off of In-Process Research
and Development................ 218 101
--- ---
Total Operating Expenses....... 391 202
--- ---
Income (Loss) from Operations...... (344) (132)
Other Income (Expense)............. 1 --
Interest Expense................... (2) (11)
--- ---
Income (Loss) before Income
Taxes............................ (345) (143)
Provision for Income Taxes......... 1 1
--- ---
Net Income (Loss).................. (346)% (144)%
--- ---
--- ---
</TABLE>
- --------------
(1) Includes amortization of intangibles of 20% and 14% of total revenues,
respectively, as a result of the Acquisitions.
23
<PAGE>
HISTORICAL CONSOLIDATED RESULTS OF OPERATIONS
FISCAL YEARS ENDED JANUARY 31, 1996 AND 1997
REVENUES
The Company's revenues are derived primarily from fees for software licenses
and to a lesser extent from services. The Company's revenues were $5.1 million
and $61.6 million for the fiscal years ended January 31, 1996 and 1997,
respectively.
If the acquisitions of IMC, ITI, TUXEDO and USL Finance, S.A. ("USL
France"), which represent the significant acquisitions made by the Company, had
occurred on February 1, 1995, the Company's pro forma revenues would be
approximately $33.6 million and $62.5 million for the fiscal years ended January
31, 1996 and 1997, respectively, representing an 86% increase. Such pro forma
revenues are derived by combining the historical revenues of IMC, ITI, TUXEDO
and USL France and eliminating any revenues on transactions between the entities
prior to their acquisition by the Company. Pro forma revenues for the fiscal
year ended January 31, 1996 give effect to historical TUXEDO revenues generated
by Novell totaling approximately $20.4 million. As the Company acquired TUXEDO
from Novell at the beginning of its fiscal year 1997, no corresponding revenue
of Novell related to TUXEDO is included in fiscal 1997 pro forma revenue. The
increase in pro forma revenue was due primarily to increased market acceptance
of BEA TUXEDO after its acquisition by the Company, as well as to the increase
in consulting, training and maintenance fees associated with the increased
license revenues.
International revenues, which the Company defines as revenues from sales to
customers outside the United States, accounted for 11% and 40% of total revenues
in the fiscal years ended January 31, 1996 and 1997, respectively. Pro forma
international revenues totalled $15.1 and $25.8 million, or 45% and 41% of total
revenues in the fiscal years ended January 31, 1996 and 1997, respectively. Pro
forma international revenues for the year ended January 31, 1996 include
approximately $13.1 million of international historical TUXEDO revenues
generated by Novell, which comprised 64% of TUXEDO revenues generated by Novell.
Approximately 73% of international historical TUXEDO revenues generated by
Novell related to the European marketplace. See "Risk Factors--International
Operations."
LICENSE REVENUES. License revenues were $3.6 million and $46.8 million for
the fiscal years ended January 31, 1996 and 1997, respectively, representing 70%
and 76% of total revenues in the respective periods. The increase in dollar
amount was primarily due to the Company's inclusion of the results of operations
of IMC and ITI for a full year, acquisitions in the fiscal year ended January
31, 1997 of TUXEDO, USL France and Client Server Technologies OY ("CST"), and
market acceptance of BEA TUXEDO and related products.
SERVICE REVENUES. Service revenues were $1.6 million and $14.8 million for
the fiscal years ended January 31, 1996 and 1997, respectively, representing 30%
and 24% of total revenues in the respective periods. The increase in dollar
amount was primarily due to the Company's inclusion of IMC and ITI for a full
year of operations, and its subsequent acquisitions, as well as to the increase
in consulting, training and maintenance fees associated with the increased sales
of the Company's software licenses. The Company expects that service revenues
will increase as a percentage of total revenues in future periods, as the
Company continues to leverage its existing customer base by providing additional
services to assist customers in enhancing their uses of the Company's products.
COST OF REVENUES
Cost of revenues is comprised of cost of licenses and cost of services.
COST OF LICENSES. Cost of licenses consists primarily of amortization of
intangible assets related to acquisitions and license fees and royalties paid to
third party software providers as well as product
24
<PAGE>
media, product duplication and shipping. Cost of licenses totaled $1.9 million
and $10.3 million for the fiscal years ended January 31, 1996 and 1997,
respectively, representing 54% and 22% of license revenues, respectively. The
increase in absolute dollars was due primarily to the Company's acquisitions and
the amortization of intangibles related to those acquisitions. The decrease as a
percentage of revenues was due primarily to the substantial increase in license
revenues during the period. Amortization of intangible assets resulted from the
acquisition of IMC and ITI in the fiscal year ended January 31, 1996, as well as
to the acquisitions of TUXEDO, USL France and CST in the fiscal year ended
January 31, 1997. Amortization of intangible assets totaled $1.0 million and
$8.6 million in the fiscal years ended January 31, 1996 and 1997, respectively.
In the future, amortization of intangible assets acquired through January 31,
1997 are expected to total $9.9 million for the fiscal year ended January 31,
1998, $5.2 million for the fiscal year ended January 31, 1999 and $1.4 million
for the remaining balance of intangible assets through the fiscal year ended
January 31, 2002. In addition, the recent acquisition of MessageQ and
ObjectBroker from DEC is estimated to add approximately $1.6 million to $2.4
million per year in amortization of intangible assets in the fiscal years ending
January 31, 1998 and 1999. To the extent future events result in the impairment
of any capitalized intangible assets, amortization expenses may occur sooner
than the Company expects. See "Risk Factors--Limited Operating History; No
Assurance of Profitability."
COST OF SERVICES. Cost of services consists primarily of personnel-related
costs incurred in providing consulting services, training and maintenance to
customers. Cost of services were $775,000 and $8.3 million for the fiscal years
ended January 31, 1996 and 1997, respectively, representing 50% and 56% of total
service revenues for each period, respectively. The increase in absolute dollars
was due primarily to the Company's acquisitions and increased operating activity
resulting, in part, from such acquisitions. The increase in costs as a
percentage of related service revenues for the fiscal year ended January 31,
1997 over the same period in 1996 is the result of the hiring of additional
consulting and support personnel in response to an anticipated increase in the
number of customers. The Company has also invested substantial resources in a
worldwide 7x24x365 Customer Support organization to provide a high level of
maintenance service to the Company's customers. The Company expects service
margins to improve to the extent service revenues continue to increase.
OPERATING EXPENSES
SALES AND MARKETING. Sales and marketing expenses include salaries,
commissions, advertising, direct mail, seminars, public relations, trade shows,
travel and other related selling and marketing expenses. Sales and marketing
expenses were $2.6 million and $31.0 million for the fiscal years ended January
31, 1996 and 1997, respectively, representing 50% of total revenues for each
period. The increase in absolute dollars was due primarily to the Company's
acquisitions, expansion of the Company's direct sales force and an increase in
marketing personnel and activities. The Company believes that the dollar amount
of sales and marketing expenses will continue to increase as the Company expands
its sales and marketing organization.
RESEARCH AND DEVELOPMENT. Research and development expenses include
engineering personnel and related expenses as well as consulting costs
associated with new product development and enhancement of existing products. In
accordance with Statement of Financial Accounting Standards No. 86, ACCOUNTING
FOR THE COSTS OF COMPUTER SOFTWARE TO BE SOLD, LEASED OR OTHERWISE MARKETED,
software development costs are expensed as incurred until technological
feasibility has been established, at which time such costs are capitalized until
the product is available for general release to customers. To date, the
establishment of technological feasibility of the Company's products and general
release of such software have substantially coincided. As a result, software
development costs qualifying for capitalization have been insignificant, and
therefore, the Company has not capitalized any software development costs.
Research and development expenses were $3.2 million and $18.2 million for the
fiscal years ended January 31, 1996 and 1997, respectively, representing 63% and
30% of total
25
<PAGE>
revenues in each period, respectively. The increase in dollar amount was
attributed to an increase in personnel and related expenses, including a
significant increase in such expenses resulting from the acquisition of TUXEDO.
The decrease in research and development expenses as a percentage of total
revenues was primarily due to the substantial increase in revenues. The Company
expects that the dollar amount of research and development expenses will
continue to increase as the Company continues to commit substantial resources to
product development and engineering in future periods.
GENERAL AND ADMINISTRATIVE. General and administrative expenses include
personnel costs for administration, finance, human resources, information
technology and general management, as well as amortization of goodwill related
to the purchase of IMC. General and administrative expenses were $3.1 million
and $12.7 million for the fiscal years ended January 31, 1996 and 1997,
respectively, representing 60% and 21% of total revenues for each period,
respectively. The increase in dollar amount was attributed to the expansion of
the Company's general and administrative staff and associated expenses necessary
to manage and support the Company's growth. Amortization of goodwill will total
$187,000 per year through September 30, 2000. To the extent future events result
in the impairment of goodwill, amortization expenses may occur sooner than the
Company expects. The decrease in general and administrative expenses as a
percentage of total revenues was primarily due to the substantial increase in
revenues. The Company expects that the dollar amount of general and
administrative expenses will continue to increase in the future as the Company
expands its staffing and incurs higher costs associated with being a public
company.
WRITE-OFF OF IN-PROCESS RESEARCH AND DEVELOPMENT. As a result of the
Acquisitions, the Company has acquired a number of projects and products that
were considered in-process research and development on the date of acquisition.
The majority of this acquired in-process research and development related to BEA
TUXEDO. At the time of acquisition of the acquired in-process research and
development, the Company estimated that an aggregate of approximately $5.5
million of research and development spending would be required in order to
develop the acquired in-process research and development into viable products.
Actual development costs incurred related to acquired in-process research and
development are included in research and development expense in the period
incurred. At January 31, 1997, the Company believes an additional approximately
$2.2 million of research and development spending continues to be required to
develop the remaining acquired in-process research and development into viable
products. However, there can be no assurance that the Company will be successful
in completing the development of such in-process research and development or
that development efforts will result in viable products.
Write-off of in-process research and development is related to the
Acquisitions and totaled $11.2 million for the fiscal year ended January 31,
1996, consisting of IMC ($5.2 million), VI Systems ($860,000) and ITI ($5.1
million). The total of $62.2 million for the fiscal year ended January 31, 1997
included the acquisitions of TUXEDO ($60.9 million) and CST ($1.3 million). See
Note 2 of Notes to BEA Systems, Inc. Consolidated Financial Statements.
On the basis of the Company's acquisition in March 1997 of exclusive rights
to certain products from Digital, the Company expects to incur an estimated
charge ranging from approximately $14 million to $16 million in the fiscal
quarter ending April 30, 1997 for write-off of purchased in-process research and
development.
PROVISION FOR INCOME TAXES
The Company has experienced operating losses to date and incurred income tax
expense of $60,000 and $800,000 for the fiscal years ended January 31, 1996 and
1997, respectively. The income tax expense is comprised primarily of foreign
income tax withholding.
26
<PAGE>
SELECTED QUARTERLY FINANCIAL DATA (UNAUDITED)
The following tables set forth certain unaudited quarterly financial data
for the five most recent quarters and the percentage of total revenues
represented by each line item. The Company believes that all necessary
adjustments, consisting only of normal recurring adjustments, have been included
in the amounts stated below to present fairly the selected quarterly information
when read in conjunction with the Consolidated Financial Statements and the
Notes thereto included elsewhere herein. In view of the Acquisitions and other
factors, the Company believes that quarterly total revenues and operating
results should not be relied upon as indications of future performance or
results for the fiscal year ending January 31, 1998 or any other future period.
<TABLE>
<CAPTION>
QUARTER ENDED
-------------------------------------------------------
JAN. 31, APR. 30, JUL. 31, OCT. 31, JAN. 31,
1996 1996 1996 1996 1997(1)
--------- ---------- --------- ---------- ---------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
CONSOLIDATED STATEMENT OF OPERATIONS DATA:
Revenues:
License Revenues................................... $ 3,071 $ 5,484 $ 9,678 $ 11,693 $ 19,984
Service Revenues................................... 1,309 1,367 3,804 4,323 5,265
--------- ---------- --------- ---------- ---------
Total Revenues................................... 4,380 6,851 13,482 16,016 25,249
Total Cost of Revenues............................... 2,217 2,494 4,243 5,761 6,109
--------- ---------- --------- ---------- ---------
Gross Margin......................................... 2,163 4,357 9,239 10,255 19,140
Operating Expenses:
Research and Development........................... 2,713 3,097 4,673 4,868 5,545
Sales and Marketing................................ 1,598 3,912 6,450 9,049 11,559
General and Administrative......................... 2,122 2,579 2,778 3,519 3,856
Write-off of In-Process Research and Development... 5,274 60,948 1,300 -- --
--------- ---------- --------- ---------- ---------
Total Operating Expenses......................... 11,707 70,536 15,201 17,436 20,960
--------- ---------- --------- ---------- ---------
Income (Loss) from Operations........................ (9,544) (66,179) (5,962) (7,181) (1,820)
Other Income (Expense)............................... 42 (117) 1 209 (89)
Interest Expense..................................... (68) (1,117) (1,765) (2,059) (1,786)
--------- ---------- --------- ---------- ---------
Income (Loss) before Income Taxes.................... (9,570) (67,413) (7,726) (9,031) (3,695)
Provision for Income Taxes........................... 60 38 116 146 500
--------- ---------- --------- ---------- ---------
Net Income (Loss).................................... $ (9,630) $ (67,451) $ (7,842) $ (9,177) $ (4,195)
--------- ---------- --------- ---------- ---------
--------- ---------- --------- ---------- ---------
Pro Forma Net Income (Loss) Per Share................ $ (0.19) $ (1.35) $ (0.16) $ (0.18) $ (0.08)
--------- ---------- --------- ---------- ---------
--------- ---------- --------- ---------- ---------
Shares Used In Computing Pro Forma Net Income (Loss)
Per Share.......................................... 49,941 50,013 50,376 52,062 52,197
--------- ---------- --------- ---------- ---------
--------- ---------- --------- ---------- ---------
</TABLE>
- --------------
(1) Includes expenses attributable to amortization of intangible assets
resulting from acquisitions in the amount of $2.5 million.
27
<PAGE>
<TABLE>
<CAPTION>
QUARTER ENDED
-----------------------------------------------------
JAN. 31, APR. 30, JUL. 31, OCT. 31, JAN. 31,
1996 1996 1996 1996 1997
-------- --------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
AS A PERCENTAGE OF TOTAL REVENUES:
Revenues:
License Revenues................. 70% 80% 72% 73% 79%
Service Revenues................. 30 20 28 27 21
--- --------- --- --- ---
Total Revenues................. 100 100 100 100 100
Total Cost of Revenues............. 51 36 31 36 24
--- --------- --- --- ---
Gross Margin....................... 49 64 69 64 76
Operating Expenses:
Research and Development......... 62 45 35 31 22
Sales and Marketing.............. 37 57 48 56 46
General and Administrative....... 48 38 20 22 15
Write-off of In-Process Research
and Development................ 120 890 10 -- --
--- --------- --- --- ---
Total Operating Expenses....... 267 1030 113 109 83
--- --------- --- --- ---
Income (Loss) from Operations...... (218) (966) (44) (45) (7)
Other Income (Expense)............. 1 (2) -- 1 (1)
Interest Expense................... (2) (16) (13) (12) (7)
--- --------- --- --- ---
Income (Loss) before Income
Taxes............................ (219) (984) (57) (56) (15)
Provision for Income Taxes......... 1 1 1 1 2
--- --------- --- --- ---
Net Income (Loss).................. (220)% (985)% (58)% (57)% (17)%
--- --------- --- --- ---
--- --------- --- --- ---
</TABLE>
Total revenues have increased each quarter over the past five quarters from
$4.4 million in the quarter ended January 31, 1996 to $25.2 million in the
quarter ended January 31, 1997. These increases were primarily attributable to
the acquisition of BEA TUXEDO in February 1996 and other acquisitions during the
period, increasing market acceptance of BEA TUXEDO and related services, the
expansion of the Company's direct and indirect sales organizations and growth in
order sizes for the Company's products.
Cost of revenues includes the amortization of intangible assets related to
the acquisitions of IMC, ITI, TUXEDO, USL France, CST and Bay. The amounts
included in the five quarters beginning with the quarter ended January 31, 1996
and ending with the quarter ended January 31, 1997 were $809,000 (18% of
revenues); $1.6 million (23% of revenues); $2.2 million (16% of revenues); $2.3
million (14% of revenues); and $2.5 million (10% of revenues) for the respective
periods.
Gross margin increased from 49% in the quarter ended January 31, 1996 to 76%
in the quarter ended January 31, 1997. This increase resulted primarily from the
increase in total revenues during the period as compared to the relatively fixed
level of amortization charges included in cost of revenues during this period.
Total operating expenses have varied substantially both in absolute dollars
and as a percentage of total revenues during the period, due primarily to large
write-offs of in-process research and development. These write-offs occurred in
the quarters ended January 31, 1996, April 30, 1996, and July 31, 1996.
Excluding write-offs for in-process research and development, the dollar amounts
of operating expenses have increased in each successive quarter during the
period. However, such expenses decreased as a percentage of total revenues
during the three quarters ended July 31, 1996. During the quarter ended October
31, 1996, total operating expenses (excluding write-offs of in-process research
and development) increased to 109% of total revenues from 103% of total
revenues. General
28
<PAGE>
and administrative expenses include $47,000 per quarter in all quarters for the
amortization of goodwill expense associated with the acquisition of IMC. While
the Company expects operating expenses to increase in absolute dollars over the
next several quarters, to the extent that revenues increase, management believes
that operating expenses as a percentage of revenues will decline.
The Company expects that it will experience significant fluctuations in
future quarterly operating results as a result of many factors, including, among
others: the size and timing of orders; introduction or enhancement of products
by the Company or its competitors; market acceptance of middleware products; the
lengthy sales and implementation cycle for the Company's products and the
potential for significant delays; market acceptance of new products and product
enhancements; technological changes in computer systems and environments; the
structure and timing of future acquisitions of businesses, products and
technologies, if any; increased competition; the ability of the Company to
develop, introduce and market new products on a timely basis; changes in the
Company's or its competitors' pricing policies; customer order deferrals in
anticipation of future new products and product enhancements, if any; the
Company's success in expanding its sales and marketing programs; mix of products
and services sold; mix of distribution channels; ability to meet the service
requirements of its customers; costs associated with acquisitions; loss of key
personnel; fluctuations in foreign currency exchange rates; and general economic
conditions. As a result of all of these factors, the Company believes that
quarterly revenues and operating results are difficult to forecast and
period-to-period comparisons of its results of operations are not necessarily
meaningful and should not be relied upon as indications of future performance.
LIQUIDITY AND CAPITAL RESOURCES
Since inception, the Company has financed its operations, and acquisitions
of subsidiaries and the distribution rights to TUXEDO, primarily through the
private sale of equity securities of approximately $51 million, notes payable of
approximately $83 million, financing of approximately $1 million under its
equipment lease line, borrowings on a revolving credit arrangement, and an
unsecured credit arrangement with the Company's majority stockholder.
Under the terms of the revolving credit arrangement, the Company has the
ability to borrow up to $10 million and borrowing availability is based on the
aggregate of (i) a percentage of certain accounts receivable and (ii) $4.0
million. At January 31, 1997, the Company had borrowed $9.0 million and had an
additional borrowing availability of $1.0 million. The credit arrangement is
collateralized by the assets of the Company and also contains certain covenants.
As of January 31, 1997, the Company was in compliance with the covenants. The
credit arrangement bears interest at the LIBOR rate plus 5.125% (10.49% in
aggregate at January 31, 1997) and is scheduled to expire in April 1997.
However, the lender has verbally agreed to automatically renew the arrangement
for one year and allow the Company to borrow up to $10 million regardless of the
eligible trade receivable balance.
Under the terms of the unsecured credit arrangement with the Company's
majority stockholder, the Company has the ability to borrow up to $10 million.
At January 31, 1997, the Company had borrowed $1.0 million and had an additional
borrowing availability of $9.0 million. Borrowings under the arrangement are
convertible, at the option of the lender, into shares of Common Stock at a price
equal to the net proceeds per share received by the Company upon the successful
completion of an initial public offering. The credit arrangement bears interest
at 11%. Outstanding borrowings and accrued interest are due upon the earlier of
the successful completion of an initial public offering or July 22, 1998.
During the fiscal year ended January 31, 1996, the Company purchased
businesses and technologies for, in aggregate, $16.1 million in cash, a note
payable for $2.7 million and assumed $5.4 million of other liabilities. For the
fiscal year ended January 31, 1997, the Company purchased businesses and
technologies for, in aggregate, $5.5 million in cash, a note payable for
$916,000 and the assumption of $6.8 million in liabilities. Also during the
fiscal year ended January 31, 1997, the Company
29
<PAGE>
acquired from Novell exclusive rights to TUXEDO for a note payable of $77.3
million, $200,000 in cash and $702,000 in assumed liabilities.
In connection with the acquisition of IMC, the Company issued the $2.7
million note as partial consideration in the acquisition. The note was later
increased as a result of a subsequent bonus payment of $1.4 million due to
revenue levels achieved by IMC subsequent to acquisition. The note accrues
interest at 8%, with the principal and all accrued interest payable on the
earlier of October 2000 or the successful completion of a public offering of the
Company's equity securities. See "Use of Proceeds."
The note issued for the exclusive license of TUXEDO calls for payments
aggregating $89.6 million. Interest was imputed at 8%, which resulted in the
recorded liability of $77.3 million. The note is secured by the rights to the
licensed software. The payments owed to Novell can be discounted by 8% if paid
prior to 30 days before the established due date. However, management does not
currently anticipate any early payments.
The note payable issued for the purchase of Bay Technologies calls for
payments aggregating $1.0 million. Interest was imputed at 8%, which resulted in
the recorded liability of $916,000.
In the fiscal years ending January 31, 1996 and 1997, respectively, the
Company used approximately $67,000 and $4.7 million, respectively, of cash to
purchase property and equipment, primarily for leasehold improvements, computers
and furniture and other office equipment. The Company also acquired equipment
with a cost of approximately $1.0 million under a capital lease line of credit
in fiscal 1997. At January 31, 1997, the Company had available borrowings of
$1.0 million under the capital lease line of credit. The Company had no other
material investing activities. As of January 31, 1997, the Company did not have
any material commitments for capital expenditures. Under the Digital Agreement,
the Company is obligated to make aggregate payments to Digital of $22 million
through February 2000. The Company is obligated to pay $5 million to Digital, $3
million of which is due on June 20, 1997 and $2 million of which is due on the
earlier of June 20, 1997 or 10 days after the purchase by Digital of $2 million
worth of Common Stock offered hereby. On or before February 1, 1998, 1999 and
2000, BEA is obligated to make payments to Digital of $2 million, $4 million and
$11 million, respectively; however, at Digital's election, certain portions of
these payments may be converted into shares of the Company's Common Stock at
prices ranging from 1.5 to 2.5 times the initial public offering price.
At January 31, 1997, the Company had $3.3 million in cash and cash
equivalents and a working capital deficit of $32.8 million.
Due to the relatively large dollar size of individual sales and the fact
that a substantial portion of the Company's accounts receivable from license
revenues have been generated within the last weeks of each quarter, the Company
has experienced significant fluctuations in its average days sales outstanding.
The Company believes that such fluctuations will continue in the future and will
continue to affect its liquidity, working capital and financial condition.
The Company believes that the net proceeds from the offering, together with
its current cash balances, cash available under its lines of credit and cash
from operations will be sufficient to meet its working capital requirements
through January 31, 1998. Although operating activities may provide cash in
certain periods, to the extent that the Company experiences growth in the
future, the Company anticipates that its operating and investing activities may
use cash. Consequently, any such growth may require the Company to obtain
additional equity or debt financing. There can be no assurance that additional
financing will be available or, if available, that it will be on terms
satisfactory to the Company. See "Risk Factors--Substantial Future Capital
Needs."
30
<PAGE>
SELECTED UNAUDITED PRO FORMA OPERATING RESULTS
The selected unaudited pro forma condensed consolidated financial
information for the Company set forth below gives effect to the acquisition of
USL France. The historical and unaudited pro forma financial information set
forth below has been derived from, and is qualified by reference to, the
consolidated financial statements of the Company and USL France and should be
read in conjunction with the respective consolidated financial statements and
the notes thereto. The unaudited pro forma condensed consolidated statements of
operations data for the year ended January 31, 1997 gives effect to the
acquisition as if it had occurred on February 1, 1996. The unaudited pro forma
condensed consolidated financial information set forth below reflects certain
adjustments, including, among others, adjustments (i) to eliminate revenues and
expenses which occurred between the entities prior to the acquisition by the
Company and (ii) to reflect the amortization of purchased intangible assets as
though the business had been combined for the full period. The information set
forth below should be read in conjunction with the other information contained
in "Management's Discussion and Analysis of Financial Condition and Results of
Operations" and the Financial Statements of the Company and USL France. The
unaudited pro forma condensed consolidated financial information set forth below
does not purport to represent what the consolidated results of operations or
financial condition of the Company would have been if it had acquired USL France
on such date or to project the future consolidated results of operations or
financial condition of the Company. See "Risk Factors--Past and Future
Acquisitions."
31
<PAGE>
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENTS OF OPERATION
FOR THE YEAR ENDED JANUARY 31, 1997
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
USL FRANCE
FOR THE PRO FORMA
BEA FOR THE PERIOD FROM PRO FORMA FOR THE YEAR
YEAR ENDED FEBRUARY 1, BUSINESS ENDED
JANUARY 31, 1996 TO MAY COMBINATION JANUARY 31,
1997 5, 1996 ADJUSTMENTS 1997
------------ ------------ --------------- ------------
<S> <C> <C> <C> <C>
Total Revenues........................................ $ 61,598 $ 1,183 $ (260)(a) $ 62,521
Total Cost of Revenues................................ 18,607 886 (7)(a)(b) 19,486
------------ ------------ --------------- ------------
Gross Margin.......................................... 42,991 297 (253) 43,035
Operating Expenses:
Research and Development............................ 18,183 -- 18,183
Sales and Marketing................................. 30,970 341 31,311
General and Administrative.......................... 12,732 42 12,774
Write-off of In-Process Research and Development.... 62,248 62,248
------------ ------------ --------------- ------------
Total Operating Expenses.......................... 124,133 383 -- 124,516
------------ ------------ --------------- ------------
Income (Loss) from Operations......................... (81,142) (86) (253) (81,481)
Interest Expense...................................... (6,727) (10) -- (6,737)
Other Income (Expense)................................ 4 32 -- 36
------------ ------------ --------------- ------------
Income (Loss) before Income Taxes..................... (87,865) (64) (253) (88,182)
Provision for Income Taxes............................ 800 58 858
------------ ------------ --------------- ------------
Net Income (Loss)..................................... $ (88,665) $ (122) $ (253) $ (89,040)
------------ ------------ --------------- ------------
------------ ------------ --------------- ------------
Pro Forma Net Income (Loss) Per Share(c).............. $ (1.74)
------------
------------
Pro Forma Weighted Average Number of Common Shares
Outstanding(c)...................................... 51,162
------------
------------
</TABLE>
- --------------
PRO FORMA ADJUSTMENTS FOR THE UNAUDITED PRO FORMA CONDENSED CONSOLIDATED
STATEMENTS OF OPERATIONS FOR THE YEAR ENDED JANUARY 31, 1997, ARE AS FOLLOWS:
(a) Reflects the elimination of revenues and related cost of revenue on
transactions between the entities prior to acquisition by the Company.
(b) Reflects the amortization of acquired distribution rights as though USL
France had been included for the full period. Additional amortization totals
$253,000 and represents approximately three months of amortization of
acquired distribution rights of $2,672,000 which are being amortized over a
period of thirty months. Amortization subsequent to May 5, 1996 is included
in the historical results of the Company.
(c) Pro forma net income (loss) per share is computed by dividing pro forma net
income (loss) by the pro forma weighted average number of shares used
elsewhere in this Prospectus.
32
<PAGE>
BUSINESS
INTRODUCTION
BEA Systems, Inc. ("BEA" or the "Company") designs, develops, markets and
supports software used by large organizations to enable and support their most
critical business processes. The Company's Enterprise Transaction Framework is
an open, integrated middleware software platform for developing, deploying and
managing distributed mission-critical computer software applications. The core
of the BEA Enterprise Transaction Framework is BEA TUXEDO, a software engine
that manages transactions and communications for enterprise-wide applications,
enabling organizations to realize the benefits offered by distributed computing
environments while preserving the traditional advantages of mainframe-based
systems. BEA products provide a middleware software infrastructure that supports
thousands of simultaneous users distributed worldwide. Through the recent
acquisition of exclusive rights to Digital MessageQ (renamed BEA MessageQ) and
Digital ObjectBroker (renamed BEA ObjectBroker), the Company seeks to extend its
Enterprise Transaction Framework to incorporate comprehensive message-oriented
middleware for application integration and new object-oriented technologies. In
addition to its software products, BEA provides its customers with complete
solutions through a range of professional services offerings.
BEA's products are marketed and sold worldwide, principally through the
Company's direct sales force and also indirectly through third parties. BEA's
products have been adopted in a wide variety of industries, including banking
and finance, manufacturing, retail, technology, telecommunications and
transportation. During the fiscal year ended January 31, 1997, BEA sold new
product licenses to over 170 customers, including over 100 customers that were
not inherited through acquisitions. The total number of customers using products
that have been acquired and developed by BEA is greater than 600 worldwide.
These customers include: The AT&T Corp., Bell Communications Research, Inc.,
Damark International Inc., Discover Card Trust, Federal Express Corp., Fidelity
Investments, Gap Inc., J.J. Kenney, MBNA, McKesson Corp., Motorola Inc., Nippon
Telephone & Telegraph, Northwest Airlines Corp., U.K. Employment Services, Union
Bank of Switzerland, Union Pacific Railroad and Walgreens Co. In addition, ISVs
such as PeopleSoft Inc. and Clarify, Inc. embed BEA TUXEDO into their own
product offerings in order to improve the scalability, portability and
interoperability of their products.
INDUSTRY BACKGROUND
Over the past decade, the information systems of many large organizations
have been evolving from traditional mainframe-based systems to distributed
computing environments. This evolution has been driven by the benefits offered
by distributed computing, including lower incremental technology costs; faster
application development and deployment; increased flexibility; and improved
access to business information. Despite these benefits, large-scale
mission-critical applications that enable and support fundamental business
processes, such as airline reservations, credit card processing and customer
billing and support systems, have largely remained in mainframe environments.
For several decades, the high levels of reliability, scalability, security,
manageability and control required for these complex, transaction-intensive
systems within thousands of organizations have been provided by mainframe
middleware software such as IBM's Customer Information and Control Systems
("CICS"). Today, according to estimates by The Standish Group, there are more
than 50,000 CICS licenses and over two billion lines of CICS code in use for
mission-critical applications worldwide. These mainframe environments, however,
suffer from several shortcomings, including inflexibility, lengthy development
and maintenance cycles and limited, character-based user interfaces.
Increasingly, these shortcomings are forcing many organizations to seek out
technologies that will enable them to overcome the limitations of distributed
computing for mission-critical applications while providing the robust computing
infrastructure previously unavailable outside the mainframe environment.
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THE LIMITATIONS OF DISTRIBUTED COMPUTING FOR LARGE-SCALE MISSION-CRITICAL
APPLICATIONS
While some mission-critical applications have been successfully migrated to
distributed computing environments, the inherent technical and business
limitations of distributed computing have generally precluded its use for the
complex, large-scale, transaction-intensive applications that are critical to
the ongoing operations of many organizations. These limitations include the
following:
LIMITED SCALABILITY, RELIABILITY AND INTEROPERABILITY. Distributed
computing applications are generally limited in scalability to the capacity of
database and application servers. Adding servers requires significant rewriting
of application logic because existing applications are written in such a manner
that each component must know the specific location within the system of all
other components. In addition, in distributed computing environments, a
significant portion of an application's business logic typically resides on the
client (a desktop PC or workstation), while the database resides on one or more
servers. Large amounts of data must travel over the network, limiting network
performance, while application changes or updates must be deployed and monitored
at each client, making effective network administration and management
difficult. As a result of these factors, the addition of more clients and
servers may actually lead to a decrease in system performance. Also, additional
servers exponentially increase the difficulty of managing multiple resources and
dynamically balancing processing loads across the network as a result of several
factors, including: the risk of interruption to critical business processes due
to the inability to make online changes to applications, the complexities that
arise in ensuring that any changes are reflected across the network in a
comprehensive and consistent manner and the need to reoptimize system
performance in light of these changes.
Mission-critical applications must maintain the highest levels of
reliability and data and transaction integrity, all of which are very difficult
to achieve in distributed computing environments. These requirements mandate
comprehensive monitoring and control of all system components in order to verify
the correct completion of each processing step. In addition, most of these
environments are heterogeneous, requiring applications to interoperate across a
variety of hardware and software platforms. The lack of scalability, reliability
and interoperability has greatly limited the use of distributed computing for
large-scale, mission-critical applications.
DIFFICULTY IN LEVERAGING INVESTMENTS IN LEGACY TECHNOLOGY. Many
organizations have significant, long-standing investments in their
mainframe-based systems and the mission-critical applications running on these
systems. According to IDC, approximately $250 billion has been spent to date on
mainframe system hardware purchases. Distributed computing technologies have
provided minimal integration or interoperability with existing mission-critical
applications on the mainframe; therefore, achieving the benefits of distributed
computing has generally required organizations to build entirely new
applications. This typically means abandoning previous investments in legacy
applications and increases the risk of costly business interruptions when
organizations attempt to migrate mission-critical applications from the
mainframe.
DIFFICULTY IN LEVERAGING EXISTING PERSONNEL AND SKILLS. Over time,
organizations have invested extensively in mainframe-based programmers and
technology. The Standish Group estimates that there are currently one million
COBOL programmers worldwide. These programmers are well-versed in the business
logic, programming languages and development methodologies necessary to build
mainframe-based mission-critical applications. The successful implementation of
distributed computing, however, requires additional expertise in various other
skill sets and emerging technologies. Organizations that seek to implement
distributed computing for mission-critical applications are thus faced with the
choice of either retraining existing programmers or replacing them with new
programmers possessing the requisite skills, but who must still be trained in
the organization's business processes. These alternatives are extremely costly,
have no guarantee of success and raise the risk of potential disruptions to
critical business processes.
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MIDDLEWARE AS THE MEANS TO IMPLEMENT DISTRIBUTED MISSION-CRITICAL APPLICATIONS
In order to overcome the technical and business limitations of distributed
computing for large-scale, mission-critical applications, organizations are
turning to a new architecture that incorporates middleware--a software
infrastructure that is designed to connect clients, applications and databases.
A sufficiently robust middleware product would enable developers to create
large-scale, mission-critical applications that can be deployed and interoperate
across multiple heterogeneous platforms, databases and operating systems while
providing the flexibility to select those platforms that best suit a particular
application environment. Such a software infrastructure would provide the
traditional benefits of mainframe-based computing--scalability, reliability,
security, manageability and control--while taking advantage of the opportunities
offered by distributed computing.
MARKET OPPORTUNITY
The Company believes that robust middleware software, and the training and
professional services capabilities required to support it, are crucial to
enabling organizations to extend their mission-critical applications to take
advantage of the benefits offered by distributed computing. The Standish Group
estimates that U.S. companies spent over $60 billion in 1996 to modernize their
mainframe-based applications to include distributed client/server and Internet
technologies and that this annual spending rate will double by the year 2000.
The Company believes that the potential benefits to organizations of distributed
computing for mission-critical applications are significant. In order to be
successful, however, distributed computing environments must provide many of the
desirable capabilities of current mainframe-based systems and must preserve and
leverage existing investments in technology and programmers.
THE BEA SOLUTION
BEA's products and services enable companies to overcome the limitations of
distributed computing for mission-critical applications. BEA's Enterprise
Transaction Framework, based upon time-tested and market-proven BEA TUXEDO
technology, provides a middleware solution that addresses the scalability,
manageability, platform independence, interoperability, integrity, reliability
and security requirements of complex, large-scale, distributed computing in the
heterogeneous environments present in most major organizations. The BEA solution
allows companies to leverage their substantial investments in legacy systems,
significantly extending the useful lives of mainframe and programmer assets
while fully exploiting the benefits offered by distributed computing. The
incorporation of BEA MessageQ and BEA ObjectBroker into the Enterprise
Transaction Framework will extend its capabilities to include message-oriented,
middleware-based and object-oriented programming methodologies.
The BEA solution provides the following benefits:
PROVIDES A TESTED, PROVEN INFRASTRUCTURE FOR DISTRIBUTED MISSION-CRITICAL
APPLICATIONS
BEA TUXEDO, the foundation of the BEA Enterprise Transaction Framework, is a
time-tested and market-proven infrastructure for distributed mission-critical
applications. By providing a robust, scalable, cost-effective
infrastructure--formerly available only on mainframe computers--BEA enables
mission-critical applications to run in distributed computing environments. BEA
TUXEDO overcomes the limitations on scalability that characterize distributed
computing environments by providing a messaging and dynamic load balancing
infrastructure that determines the location and syntax of any component without
requiring them to be programmed within an application. This separation of
business logic from location and syntax enables an arbitrary number of servers
to be added to the network with processing loads being balanced dynamically,
thereby providing mainframe-like scalability and flexibility. This separation
also enables applications written using BEA TUXEDO to reflect more closely
underlying business processes, thereby increasing an organization's flexibility
with respect to the design, development, implementation and adaptability of its
mission-critical applications.
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BEA TUXEDO's application, transaction and fault management systems combine
to ensure data and transaction integrity, enabling distributed computing
environments to achieve mainframe-like reliability and security. By using BEA's
products and services, organizations do not have to build their own custom
infrastructure solutions, a costly and time-consuming process that is often
beyond their technical capabilities and resources. Instead, organizations can
focus on developing and deploying their mission-critical applications, with the
assurance that BEA TUXEDO will ensure their scalability, reliability,
interoperability and security. The recent acquisition of BEA MessageQ and BEA
ObjectBroker is intended to extend the capabilities of the Enterprise
Transaction Framework. BEA MessageQ is optimized for integrating disparate
distributed applications across a broad range of hardware platforms and
operating systems, providing a fast and reliable queuing and
publish-and-subscribe system for brokering messages and enabling customers to
communicate among existing applications through one standard enterprise
middleware infrastructure. BEA ObjectBroker allows customers to deploy mission-
critical object-based applications. The planned integration of BEA TUXEDO and
BEA ObjectBroker will enable objects to interoperate with BEA TUXEDO services,
providing a migration path to object technology.
PRESERVES THE VALUE OF INVESTMENTS IN LEGACY SYSTEMS AND SKILLS
BEA products and services preserve an organization's investment in mainframe
technology and programmers while allowing customers to take advantage of the
capabilities of distributed computing. Customers do not need to change or
replace reliable, robust mission-critical applications in which they have made
significant investments; rather, BEA's products and services enable them to
extend and evolve these applications to take advantage of the benefits of
distributed computing. BEA's solutions allow mainframe software to be extended
to distributed computing platforms with minimal change, protecting the
investment in mainframe-based systems while permitting an orderly transition to
a distributed computing environment. Because BEA's products allow the mainframe
to be treated as just another node on the network, programmers can continue to
develop, deploy and maintain mainframe-based applications as before. This allows
current programmers who are well-versed in the business processes and logic of
the organization to work more efficiently without needing to be trained in the
skills necessary to maintain a reliable distributed computing environment.
Additionally, BEA's products enable customers to adopt and integrate new
technologies--such as the Internet and object-oriented development
technologies--as they emerge.
ENABLES INTEROPERABILITY ACROSS A BROAD RANGE OF PLATFORMS
BEA TUXEDO runs on virtually all major commercial platforms, providing
interoperability across heterogeneous computing environments. This allows
organizations to develop mission-critical applications that are independent of
specific hardware, software and networking technologies. This interoperability
enables organizations to avoid the cost, delay and technical risks associated
with rewriting of applications to be compatible with new technologies and
computer systems. By providing an open application programming interface for BEA
TUXEDO, programmers may write applications only to that interface and can then
rely on BEA TUXEDO to execute their applications across multiple platforms. BEA
MessageQ, to which the Company has acquired exclusive rights from Digital, runs
on all major UNIX platforms, Windows NT, Windows 95, Windows 3.1, Open VMS,
Macintosh, OS/2, MS-DOS and selected IBM environments via LU 6.2. BEA
ObjectBroker, which the Company also acquired from Digital, also runs on all
major UNIX platforms, as well as Windows NT, Windows 95, Windows 3.1 and Open
VMS. Currently, BEA TUXEDO supports over 40 operating platforms, including the
market-leading UNIX platforms, Windows NT and IBM MVS. BEA TUXEDO also supports
all XA-compliant relational databases available as of January 31, 1997,
including products from IBM Corporation, Informix Software, Inc., Microsoft
Corporation, Oracle Corporation and Sybase Inc. BEA TUXEDO also works with over
40 development, testing and management tools.
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REDUCES TIME AND COST OF APPLICATION DEVELOPMENT AND DEPLOYMENT
Application development using the BEA Enterprise Transaction Framework
allows programmers to design the business logic in their applications
independent of system deployment issues. Once the business logic has been
programmed, the BEA Enterprise Transaction Framework provides the translations
and interface conversions necessary to run the application in a distributed
computing environment. This reduces the time and cost of developing and
deploying applications because programmers need focus only on the business
logic, while the BEA Enterprise Transaction Framework ensures that these changes
are incorporated automatically in a comprehensive and consistent manner. Because
of this segregation, BEA's products enable an entire worldwide system to be
tuned and administered, servers to be added and deleted and the network
configuration to be altered, without changing the business application.
EXTENDS MISSION-CRITICAL APPLICATIONS TO THE INTERNET AND INTRANETS
BEA Jolt enables the extension of enterprise-wide mission-critical
applications to the Internet and intranets without reprogramming. BEA Jolt
translates between Java applets and BEA TUXEDO, ensuring that transaction
integrity is maintained despite unreliable connections and the Internet's
inherent inability to retain the current state of a transaction. By enabling
Internet and intranet applications to meet the stringent scalability,
reliability and availability requirements for mission-critical applications,
many of the challenges of electronic commerce can be overcome. See "Risk
Factors--Technological Change; Dependence on New Products and Product
Enhancements."
THE BEA STRATEGY
The Company's strategy is to leverage its current leadership position in
distributed transaction processing in order to establish its middleware
solutions as the industry standard for developing, deploying and managing
large-scale mission-critical applications for distributed environments.
The key elements of the Company's strategy are:
ENHANCE BEA'S TECHNOLOGY LEADERSHIP
The BEA Enterprise Transaction Framework is based upon BEA TUXEDO, a
market-tested and proven technology initially developed at AT&T Bell Labs in
1984. The Company, which acquired the rights to TUXEDO in February 1996, intends
to continue to invest in the enhancement of its core BEA TUXEDO technology. BEA
expects to add new functionality to all components of the BEA Enterprise
Transaction Framework. Over the course of the next 12 months, planned releases
of BEA products will complete the integration of BEA TUXEDO with BEA MessageQ
and BEA ObjectBroker, improve electronic commerce capabilities and increase the
number of platforms supported to more than 50.
EXPAND BEA'S GLOBAL SOLUTIONS CHANNEL
Due to the strategic nature of the Company's products, customers require BEA
to provide complete global services and support. As of January 31, 1997, the
Company had 28 offices in 15 countries worldwide and intends to continue to
expand its global distribution facilities to provide the direct sales, services,
training and support necessary to enable customers to develop, deploy and manage
distributed mission-critical applications. In addition, the Company will
continue to develop third-party relationships to augment its sales, services,
training and support capabilities.
PROMOTE THE EMBEDDING OF BEA TUXEDO IN ISV APPLICATIONS
BEA will continue to work with ISVs to embed BEA TUXEDO into their product
offerings. By licensing its products in this manner, the Company aims to
accelerate the acceptance of BEA's products and establish these products as the
de facto standard middleware solution. ISVs can benefit significantly
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from embedding BEA software into their product offerings, enabling them to scale
the number of clients supported, eliminate most hardware porting concerns and
provide interoperability with other applications based on the BEA Enterprise
Transaction Framework. ISVs that have already embedded BEA software into their
products include Clarify Inc., Cycare Systems, Inc., Filoli Information Systems
and PeopleSoft Inc.
LEVERAGE STRATEGIC PARTNERSHIPS
The sale of middleware solutions for distributed mission-critical
applications requires significant expertise and time spent with potential
customers. By leveraging its strategic partnerships with hardware OEMs, ISVs,
systems integrators and consultants, the Company is able to extend the reach of
its direct sales force. The Company intends to strengthen existing relationships
with key industry players, such as Andersen Consulting, Hewlett-Packard
Corporation and Sun Microsystems, as well as develop new relationships, in order
to increase market awareness and demand and shorten the sales cycle for BEA's
products.
FACILITATE THE EMERGENCE OF ELECTRONIC COMMERCE OVER THE INTERNET
The Company intends to provide the software and services necessary to enable
businesses to conduct safe, reliable commercial transactions over the Internet
while making use of their existing mission-critical applications. In order to
provide robust commerce over the Internet, an application must be able to
accommodate unreliable connections, massive scalability requirements and an
inherent inability to retain the current state of a transaction. With BEA Jolt
and the BEA Enterprise Transaction Framework, the Company provides both the
middleware infrastructure and Java-based technology to meet these technical
challenges and to enable an organization to extend its mission-critical
applications to the Internet and intranets without reprogramming. See "Risk
Factors--Technological Changes; Dependence on New Products and Product
Enhancements."
MARKETS AND CUSTOMERS
The total number of licensees using BEA TUXEDO and related products is
greater than 1,200 worldwide. For the fiscal year ended January 31, 1997, BEA
sold new product licenses to over 170 customers, including over 100 customers
that were newly-developed by the Company. The Company's target end-user
customers are organizations with sophisticated, high-end information systems
with numerous, often geographically dispersed users and diverse, heterogeneous
computing environments. Customers are generally mainframe-reliant or have
large-scale client/server implementations that handle very high volumes of
business transactions. The Company's customers use BEA products as a middleware
platform for developing, deploying and managing mission-critical applications
key to the customer's business.
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The following is a representative list of the organizations that accounted
for at least $100,000 in revenues to the Company during the fiscal year ended
January 31, 1997:
<TABLE>
<CAPTION>
TELECOMMUNICATIONS BANKING AND FINANCE GOVERNMENT
- --------------------------- --------------------------- ---------------------------
<S> <C> <C>
Alltel Corp. Banco del Atlantico Finnish Ministry of Labor
Ameritech Corp. Cybercash, Inc. Finnish Post
AT&T Corp. First Datacard Greek Ministry of Finance
AT&T Wireless MBNA Swedish Police
Bell Atlantic Corp. Societe Generale Swedish Tax Office
Bell Communications Swiss Life Swedish Labor Union
Research, Inc. RBC Dominion United Utilities
Cincinnati Bell Information Union Bancaire Privee United States Postal
Systems, Inc. Union Bank of Switzerland Service
Deutsche Telecom DISTRIBUTION AND RETAIL
France Telecom TRANSPORTATION Broadway & Seymour Inc.
Lucent Technologies Inc. Federal Express Corp. Shopright Checkers
MCI Communications Corp. McKesson Corp. Walgreens Co.
Motorola Inc. Northwest Airlines Corp.
Nynex Cablecommunication Renault
Group Inc. Union Pacific Railroad
Nippon Telephone and
Telegraph
Pacific Bell
Southern New England
Telecommunications
Corporation
Telecom Finland
</TABLE>
In addition to direct sales to end-user customers, BEA works with systems
and software integrators that incorporate BEA products for resale. The Company
also sells BEA TUXEDO to software and computer hardware providers to embed into
their application software or software toolsets. These customers include the
following organizations:
<TABLE>
<CAPTION>
SYSTEMS INTEGRATORS/
HARDWARE OEMS ISVS CONSULTANTS
- --------------------------- --------------------------- ---------------------------
<S> <C> <C>
Bull Group CableData Andersen Consulting
Data General Corporation Clarify Inc. Cambridge Technology
Digital Equipment Corp. Cylink Corporation Partners
Fujitsu Filoli Information Systems Computer Science
Hewlett-Packard Minnesota Mining and Corporation
Hyundai Manufacturing Co. Electronic Data Systems
ICL plc Nomad Software Corporation
Lucky Goldstar PeopleSoft Inc. Perot Systems
NEC Sybase Inc. Steria (France)
Samsung Tangent Computer, Inc.
Sequent Computer Systems
Inc.
Siemens-Nixdorf GmbH
Sun Microsystems
Tandem Computers Inc.
Unisys Corp.
</TABLE>
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See "Risk Factors--Expanding Distribution Channels and Reliance on Third
Parties"
The following examples illustrate how some organizations are using BEA
products as a middleware framework to provide the infrastructure for enabling
mission-critical distributed transaction processing applications.
AT&T
AT&T's Consumer Customer Care system for bill inquiry and order entry
supports 7,500 services and 1,500 sales/customer contact positions 24 hours a
day, seven days a week and is key to AT&T's overall customer satisfaction
efforts. When AT&T decided to reengineer these applications to make use of
distributed systems, BEA TUXEDO was selected as the middleware solution to
provide reliable communications among the Customer Care system's many
applications. The decision to use BEA TUXEDO was based on the product's
asynchronous messaging technology and data-dependent routing capabilities, and
its ability to support multiple processors in a flexible configuration. In the
AT&T implementation of BEA TUXEDO, each processor is viewed as an independent
domain. By providing independent application services that can be used by all
domains, BEA TUXEDO isolates the impact of single processor failures, which has
enabled high availability applications to be supported without redundant
hardware. Overall, through this reengineering effort, AT&T is lowering unit
costs and improving customer and employee satisfaction in support of bill
inquiry and order entry functions.
BANCO DEL ATLANTICO
Banco del Atlantico ("B.A."), the fifth largest bank in Mexico, needed an
information system that would allow it to leverage its legacy Unisys platform
with its newly acquired Hewlett-Packard distributed systems. B.A. had over 4,000
personal computers and more than 100 local area networks running on
heterogeneous platforms at its branch banks and headquarters in Mexico City.
B.A. chose to invest in a middleware solution to increase total reliability and
security, allow for more consistent performance, and solve key connectivity
issues relating to integrating legacy and distributed systems. B.A. initially
evaluated BEA TUXEDO and several other products and chose BEA TUXEDO because of
its reliability and ability to provide seamless integration among all of B.A.'s
platforms. BEA TUXEDO provides a common layer in the B.A. infrastructure to
direct the complex interactions between applications and systems. Currently, all
of B.A.'s telephone banking applications and customer information database
applications are supported by BEA TUXEDO.
DAMARK
After years of growth, Damark, a major catalog direct marketing company,
reached an earnings plateau in early 1994, despite increased sales. Damark was
experiencing increasing paper and postage costs, which represent significant
elements of its direct marketing efforts to 10 million prospective customers.
The challenge faced by its IT department was to find the most efficient,
cost-effective way to receive and fill customer orders, which at times reach
fifteen thousand per day. The IT department evaluated middleware solutions that
were capable of handling peak order volume and scaling to incorporate multiple
call centers around the United States. Damark's specific requirements included
guaranteed message delivery for both asynchronous or synchronous communications,
a single development interface for all components, operational manageability and
off-the-shelf, proven technology. Through a solution that combined BEA TUXEDO
and Oracle relational databases, Damark was able to connect its toll-free call
representatives directly to the prospective customer's information database,
thereby significantly improving overall representative efficiency. In addition,
Damark uses BEA TUXEDO to minimize system downtime, as users are transferred
within 30 seconds from a failed node to another node capable of handling the
requested transaction.
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PEOPLESOFT
PeopleSoft, a leading provider of enterprise software supporting human
resources, financial and manufacturing applications on open systems, needed a
software framework to strengthen its ability to implement applications across
multiple sites and computing environments. PeopleSoft investigated multiple
technologies, including a number of middleware products. PeopleSoft decided to
base PeopleSoft Release 6 and future applications on BEA technology, selecting
BEA TUXEDO because of its request/reply and publish/subscribe messaging
capabilities, and its strengths in handling high-volume transaction processing
with high availability and reliability. By using BEA TUXEDO as its middleware
infrastructure, PeopleSoft is able to deliver multi-tier global applications.
PeopleSoft is making use of the multiple communication capabilities within the
BEA TUXEDO framework based on the need of applications to process transactions
in either a real-time or asynchronous mode. In addition, end users can use BEA
TUXEDO to enable custom applications to interoperate with the packaged
PeopleSoft applications. PeopleSoft 6, the first PeopleSoft release using BEA
TUXEDO, began shipping to customers in December 1996.
UNITED KINGDOM EMPLOYMENT SERVICE
In 1996, the United Kingdom Employment Service ("E.S.") determined that it
needed a new software application to support its labor market activities. E.S.'s
existing systems were reaching the end of their product life cycles and did not
have the flexibility to incorporate new technology to enhance functionality.
E.S. selected BEA TUXEDO as the middleware framework for the Labour Market
System ("LMS"), an application designed to replace all existing applications.
LMS now links all 1,067 job centers in Great Britain, using CA-Ingres relational
databases running on Sequent platforms as the core of the system. LMS has become
one of the world's largest distributed systems. Thirty thousand people
throughout E.S. have been trained to use the system, which processes over five
million transactions per day. The integrated system enables immediate searches
and displays of suitable vacancies and opportunities for job seekers, thereby
improving the services that E.S. is able to offer its clients.
PRODUCTS
The BEA Enterprise Transaction Framework is an integrated middleware
software platform for building, deploying and managing distributed
mission-critical applications. The BEA Enterprise Transaction Framework provides
the scalability, manageability, platform independence, interoperability,
integrity, reliability and security requirements of complex, large-scale,
transaction-intensive mission-critical applications in a distributed computing
environment. The core of the BEA Enterprise Transaction Framework is BEA TUXEDO,
a market-proven and time-tested technology first developed at AT&T Bell Labs in
1984. The Company took over development, sales and support of TUXEDO from Novell
in February 1996 and has subsequently shipped BEA TUXEDO Release 6.2, BEA
Connect SNA Version 1.1, BEA Connect TCP Version 1.1, and BEA Jolt Version 1.0.
In March 1997, the Company acquired exclusive rights to BEA MessageQ, BEA
ObjectBroker and other related products from Digital.
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THE BEA ENTERPRISE TRANSACTION FRAMEWORK
Set forth on page is a horizontal rectangular box bearing the caption "BEA
TUXEDO KERNEL." Set forth on top of this box are four square boxes each with a
caption reading, from left to right, "BEA BUILDER," "BEA CONNECT," "BEA TP BLUE"
and "BEA JOLT." Set forth to the left of the five aforementioned boxes is a
vertical rectangular box of equal height as the combined other boxes, with a
caption reading "BEA MANAGER."
BEA TUXEDO
BEA TUXEDO is a robust engine for developing, deploying and managing
mission-critical applications in distributed computing environments. BEA TUXEDO
provides distributed transaction processing and application messaging
capabilities, as well as the full complement of services necessary to build and
run mission-critical applications. It enables developers to create applications
that interoperate across multiple hardware platforms, databases and operating
systems.
BEA TUXEDO provides mainframe-like performance for distributed
mission-critical applications. It allows these applications to accommodate
thousands of worldwide users, high-transaction throughput, multiple concurrent
database access and large volumes of data, while maintaining short response
times, high data integrity and security and 7x24x365 system availability. At the
same time, BEA TUXEDO enables developers and systems managers to take advantage
of the benefits offered by distributed computing environments, such as lower
incremental technology costs, increased flexibility, faster application
development and deployment and improved access to business information.
BEA MESSAGEQ
BEA MessageQ enables messages to be sent from one application to another
through an advanced queued message bus. Queued messaging allows applications to
communicate without interruption, either synchronously or asynchronously,
through queues or publish-and-subscribe mechanisms. BEA MessageQ ensures that
messages on incoming and outgoing queues are recognized and executed only when
the receiving or sending system is ready for processing. The communicating
programs can be on the same computer or on many different computers in an
enterprise-wide network.
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BEA OBJECTBROKER
BEA ObjectBroker is a CORBA-compliant Object Request Broker ("ORB") that
simplifies software integration and the development of new, object-oriented
distributed solutions. BEA ObjectBroker runs on more platforms than any other
ORB and, having first shipped in 1991, is the most mature existing ORB
technology. Throughout its development and ongoing enhancements, BEA
ObjectBroker has focused on high performance and enterprise-level robustness.
BEA JOLT
BEA Jolt extends the capabilities of BEA TUXEDO to the Internet and
intranets, making mission-critical applications immediately accessible through
these media without the need for any additional application programming. It
enables Internet and intranet application developers to take full advantage of
the benefits offered by the BEA Enterprise Transaction Framework and, the
Company believes, provides the means for resolving many of the technical issues
hindering the development of electronic commerce on the Internet. BEA Jolt
ensures that transaction integrity is maintained, notwithstanding the Internet's
inherent inability to retain the current state of any transaction or the
frequently unreliable connections encountered by users. BEA Jolt employs a
Java-based interface that allows programmers to execute service requests from
any Java-enabled web browser without requiring any knowledge of detailed
transaction semantics. BEA Jolt also ensures an application's security, since
neither transactional programming nor semantics are accessible from the Internet
or intranets.
BEA TP BLUE
BEA TP Blue provides mainframe-to-UNIX and mainframe-to-NT application
portability, compatibility and connectivity for CICS-based transaction
processing. With BEA TP Blue, organizations can extend the useful lives of CICS
applications, either by seamlessly sharing the transaction processing load with
UNIX- or NT-based hardware or by migrating applications and data from the
mainframe to a UNIX- or NT-based distributed computing environment. BEA TP Blue
preserves organizations' investments in CICS/COBOL programs and programmers,
while enabling them to take advantage of UNIX- and NT-based technologies.
Programmers can continue to develop and deploy mission-critical applications on
the mainframe using CICS/COBOL and to rely upon BEA TP Blue to connect or
migrate those applications to UNIX and NT whenever necessary.
BEA CONNECT
BEA Connect is a family of connectivity products that allows applications to
extend across heterogeneous hardware and software platforms. Designed to work in
concert with all other BEA products, BEA Connect assures ready, transparent
access to critical information across the network with a single, standard
programming interface. BEA Connect supports a variety of mainframe-based and
distributed transactional technologies, including CICS and IMS, by using
standard network protocols such as TCP/IP, LU6.2/SNA or OSITP. Interfaces can
also be built for connectivity with specific packaged software applications,
such as SAP's R/3. BEA Connect also enables customers to write mission-critical
applications that access remote application services on mainframes or other
hosts via industry-standard communications mechanisms.
BEA BUILDER
BEA Builder enables programmers to use familiar graphical development
environments, such as Visual Basic, Visual C++ and PowerBuilder, in the
development of BEA TUXEDO-based applications. BEA Builder incorporates
application frameworks and code generators that enhance programmers'
productivity, and provides pre-programmed wizards to automate the configuration
and deployment of
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an application. By leveraging developers' familiarity with popular development
environments and adding the capabilities noted above, BEA Builder reduces the
training and development needed to design and deploy distributed
mission-critical applications using BEA TUXEDO.
BEA MANAGER
The BEA Manager family of products extends the native management
capabilities of BEA TUXEDO by enabling it to integrate with, and take advantage
of the capabilities of, various third-party management frameworks, including
Tivoli's TME 10 NetView, Sun's Solstice and Hewlett-Packard's OpenView. BEA
Manager adds application level instrumentation for performance measurement and
centralized message logging, which together provide increased detection and
isolation capabilities for application faults. BEA Manager also provides a set
of customizable intelligent agents that reduce the human involvement required to
handle routine maintenance and fault correction. Finally, BEA Manager can be
deployed by existing operations staff with little additional training required.
To date, the majority of the Company's license revenues have come from the
BEA TUXEDO product. The Company's other products are sold as additional
components of the BEA Enterprise Transaction Framework, often at the time of the
initial BEA TUXEDO license sale. The core BEA TUXEDO product is priced based on
the number of concurrent run-time users and has a U.S. list price of $395 per
user. The additional components of the BEA Enterprise Transaction Framework are
priced and licensed separately. During the fiscal year ended January 31, 1997,
license fees per customer for BEA products generally ranged from $84,000 to $2.6
million and averaged approximately $395,000. Some components of the BEA
Enterprise Transaction Framework, such as BEA Jolt, are priced by server class.
See "Risk Factors--Product Concentration; Dependence on Growth of Market for
Middleware; Novell Relationship."
TECHNOLOGY
TUXEDO was initially developed in 1983 within AT&T Bell Labs and released in
1984. Release 1.0 enabled an application to be partitioned into a set of
cooperating client and server processes and an application programming interface
("API"). Subsequent releases built on this foundation, incorporating
capabilities to support high levels of system availability, highly secured and
widely distributed clients and servers, interoperability across heterogeneous
platforms, a graphical user interface for administration, transactional control
of heterogeneous databases, implementation of both conversational and queued
communications methodologies, enhanced data integrity and security and an event
broker that supports the publish and subscribe paradigm.
The most recent version of BEA TUXEDO, Release 6.2, conforms with
industry-standard interfaces and protocols. BEA TUXEDO's modular architecture is
centered on the Application Transaction Manager Interface ("ATMI"), which
consists of 30 simple calls and has been adopted by The Open Group as a standard
X/Open API. BEA TUXEDO supports the Open Group's Distributed Computing
Environment Remote Procedure Call ("DCE RPC") interface. BEA TUXEDO's
performance is publicly documented in Transaction Processing Performance Council
("TPC") benchmarks and is used by virtually all hardware and database vendors
publishing audited benchmarks of their platforms.
The BEA Enterprise Transaction Framework is a set of inter-related software
technologies that enable the development, deployment and management of
large-scale, mission-critical distributed applications. BEA technologies are
typically used in conjunction with relational database management systems
("RDBMS"). The RDBMS provides a run-time environment for storing and retrieving
data, while BEA provides the application server infrastructure for executing the
business logic. In addition, the recent acquisition of exclusive rights to
MessageQ and ObjectBroker is intended to extend the BEA Enterprise Transaction
Framework's capabilities to include message-oriented middleware-based and
object-oriented programming methodologies. BEA also provides a rich set of
messaging services that enable reliable, efficient communications among
components of a distributed application, as well as
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web-based access to the application services using Java and HTML. BEA
technologies are hardware and operating system independent and are available on
a wide variety of platforms, including Microsoft Windows and Windows NT, all
major versions of UNIX, MVS Open Edition, Tandem NSK and AS/400.
TRANSACTION INTEGRITY AND SECURITY
Transaction integrity and security are fundamental requirements for building
mission-critical applications, particularly in distributed computing
environments where additional burdens are placed on the execution and management
of these applications. BEA TUXEDO, through its transactional kernel, enables the
resolution and execution of distributed application service requests. These
application service requests are implementations of business processes, such as
withdrawals and deposits in a banking application. BEA TUXEDO provides automated
preparation and transmission of the underlying distributed application services
in a real-time manner. It also provides automated propagation of transactions
and security contexts, which enables distributed services to be automatically
invoked without explicit sign-on to each server. BEA TUXEDO also provides
automatic advertisement of available transaction services. This feature is
critical when an application server becomes unavailable, as it prevents an
application from waiting indefinitely for that particular service. The
combination of these capabilities enables applications that incorporate BEA
TUXEDO to achieve mainframe-like transaction integrity and security, while still
taking advantage of the benefits offered by distributed computing environments.
ROBUST MESSAGING--PUBLISH-AND-SUBSCRIBE MODEL
Through the use of the recently developed publish-and-subscribe model, a new
BEA product called the Event Broker allows applications to subscribe to events
about which they are interested. BEA's Event Broker manages these subscriptions
by maintaining a subscription list and managing event posting. The BEA Event
Broker executes subscription actions in which subscriber and publisher maintain
complete anonymity and independence. The Event Broker enables clients and
servers to post events that have occurred and ensures that the appropriate
applications are notified of the occurrence of those events. By combining BEA
TUXEDO asynchronous messaging capability and the Event Broker, network traffic
can be significantly reduced, as applications are only notified of relevant
events. In addition, the complexity associated with incorporating new
applications within a system is simplified by ensuring that existing
applications are notified of updates and that subscription lists and postings
are modified accordingly.
BEA TUXEDO supports five different modes of communication. In addition to
the publish-and-subscribe model, these modes include asynchronous and
synchronous transactions, request/ response, peer-to-peer messaging and reliable
queuing. Each of these can be carried out with or without distributed
transaction semantics and any combination can be utilized within a single
business application. This enables BEA TUXEDO to be utilized as a
message-oriented middleware platform for developing both transactional and
non-transactional distributed applications.
MESSAGE QUEUING-ASYNCHRONOUS TRANSFER MODE
Following the acquisition of exclusive rights to the MessageQ technology
from Digital, the Enterprise Transaction Framework will incorporate a high
performance, reliable asynchronous queuing infrastructure. MessageQ provides a
powerful, easy-to-use programming paradigm for application-to-application
communication through an advanced queued message bus. Queued messaging allows
applications on different platforms to communicate without interruption with the
operations of any existing systems. Messages on incoming and outgoing queues are
consumed and executed only when the receiving or sending system is ready for
processing. BEA plans to incorporate the BEA Event Broker technology into BEA
MessageQ to provide a complete publish-and-subscribe programming mechanism on
top of a high performance, robust and reliable queuing platform.
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OPEN ARCHITECTURE AND PROGRAMMING API
The APIs provided with the BEA Enterprise Transaction Framework are built on
a common set of robust kernel services provided by BEA TUXEDO. These services
provide a level of abstraction between the application programs and the
underlying system facilities. They also enable transparent interoperability
between components developed to different APIs. For example, a Java client can
invoke a CICS transaction or an X/Open-compliant XATMI-based service via the
same API call. This support of multiple programming styles also facilitates the
migration of existing applications to distributed computing environments via the
BEA Enterprise Transaction Framework. In addition, BEA ObjectBroker is an
implementation of the Common Object Request Broker Architecture ("CORBA") as
specified by the Object Management Group ("OMG").
BEA products have been designed from the ground up to conform with
industry-standard interfaces and protocols. These include both formal standards,
such as X/Open, DCE and ISO, and de facto standards, such as SNA, the Java
Virtual Machine, OLE and ActiveX. The Company's product development efforts
continuously reflect the knowledge gained from working with customers to build
large-scale, mission-critical distributed applications. An example of the
benefits to the Company of these efforts is the XA implementation within BEA
TUXEDO, which vendors such as Oracle and Microsoft have selected as the
reference platform for their database integration efforts. The Company's
products support all major RDBMS platforms, which, in addition to Oracle and
Microsoft's SQL Server, include Informix, IBM DB2/6000, Sybase and CA/Ingres.
SYSTEMS SERVICES
BEA products provide a robust set of system services that enable distributed
applications to be developed in a standard and consistent manner. These services
include naming, application activation and deactivation, dynamic application
reconfiguration and system fault management. In addition, the Company's products
also provide a set of application level services. These services include
intra-node and inter-node application communication management, application
transaction management, client/ workstation handling, security management,
application queue management and event management. By providing these system and
application level services, the Company's products significantly reduce the
amount of system and application level programming effort required. These
services also enable applications developed within the BEA Enterprise
Transaction Framework to interoperate across heterogeneous computing
environments.
MANAGEMENT INFORMATION BASE
BEA's products enable distributed transaction system monitoring and
management through a Management Information Base ("MIB"). This system monitors
applications, databases, operating systems and networks; it also provides
logging facilities, and event and performance management. The management
information base enables systems administrators to set pre-defined rules or
allows them to monitor and manages systems interactively through an easy-to-use
graphical interface. In addition, BEA provides a Simple Network Management
Protocol ("SNMP") agent kit to allow the use of any SNMP-based management tool,
such as OpenView or TME.
APPLICATION-TO-APPLICATION CONNECTIVITY
Most connectivity products on the market today only provide a low-level
solution, such as connecting a UNIX system running TCP/IP to a mainframe running
SNA. This leaves most of the application-level connectivity programming to the
IT programmers. BEA's products, however, support high-level
application-to-application connectivity for a wide variety of mainframe and
distributed systems, relieving programmers of the burden previously associated
with systems level programming efforts. These connectivity technologies support
industry-wide networking standards, such as the OSI/TP protocol for application
services or the IBM LU6.2/SNA protocol. In addition, the Company
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provides an IBM syncpoint-enabled transactional connectivity technology for
IMS-based or CICS-based applications. The Company is also currently developing
an IBM-compatible Intersystems Communication ("ISC") protocol-based connectivity
technology for customers who wish to develop mainframe-style applications in a
fully-distributed environment. In addition, BEA MessageQ employs an advanced
queued message bus that enables applications on different computers to exchange
data.
INTERNET/INTRANET EXTENSIBILITY
BEA Jolt extends BEA TUXEDO-based applications to the Internet/intranets
without the need for additional application programming. BEA Jolt provides
object-oriented access, from any Java-enabled browser via Java applets, to BEA
TUXEDO-based applications behind an organization's firewall. Legacy mainframe
environments, such as CICS, are similarly accessible using BEA Jolt and BEA
Connect. BEA Jolt simplifies application design by providing object interfaces
for Java, as well as turn-key access to BEA-developed Java class definitions and
customized Java applets residing in the BEA Jolt repository. For ease of
management, the BEA Jolt server can be administered with the same tools used to
manage any resource within the BEA TUXEDO environment.
THE NOVELL AGREEMENT
Under the terms of the Novell Agreement, BEA acquired worldwide exclusive
rights to TUXEDO from Novell in February 1996 in exchange for a series of fixed
payments totaling approximately $90 million over the original three-year term of
the Novell Agreement. The Novell Agreement grants the Company an option,
exercisable in January 1999, to acquire perpetual rights to the TUXEDO product
line. The Company is obligated to make payments of $32 million and $33 million
in calendar years 1997 and 1998, respectively, and will be required to pay an
additional $12 million on exercise of its January 1999 option. Pursuant to the
Novell Agreement, Novell transferred to the Company approximately 53 employees
engaged in the development, marketing and support of the TUXEDO product line, as
well as all of Novell's rights and obligations under its agreements with
worldwide distributors and resellers for TUXEDO. Pursuant to the Novell
Agreement, Novell retains the right to market and distribute versions of BEA
TUXEDO that are compatible with Novell's Netware product. The Novell Agreement
further provided for Novell and the Company to form a Technology Coordination
Committee to coordinate regarding development of BEA TUXEDO and obtain patents
regarding BEA TUXEDO. The Novell Agreement further provides for BEA to integrate
BEA TUXEDO with Novell's NDS Software. The Novell Agreement is terminable by BEA
on six months notice to Novell and the payment of up to $9 million by BEA as a
termination payment to Novell.
THE DIGITAL AGREEMENT
Pursuant to the Digital Agreement, the Company acquired in March, 1997
exclusive worldwide rights to MessageQ, ObjectBroker and other related products
from Digital for an aggregate consideration of $22 million. Pursuant to the
Digital Agreement, $5 million is payable in cash ($3 million of which will be
due on June 20, 1997 and $2 million of which will be due on June 20, 1997 or 10
days after the sale of the Common Stock offered hereby), and $17 million is
payable pursuant to a $17 million non-interest bearing convertible promissory
note delivered by the Company at the closing of that transaction. The promissory
note provides for installments of $2 million, $4 million and $11 million payable
on or before February 1, 1998, 1999 and 2000, respectively, and may be converted
into shares of the Company's Common Stock at the option of Digital at a
conversion price of 1.5 times, 1.8 times and 2.5 times the initial public
offering price, respectively; provided, however, that only $5 million of such
$11 million is convertible. In addition, the Company has granted Digital
warrants to purchase $3 million worth of Common Stock at a price equal to the
initial public offering price exercisable for the period beginning 180 days
after the date of this offering and expiring one year thereafter. As part of the
Digital transaction, the Company has added a total of approximately 90 employees
and contractors, who were primarily responsible for development of the acquired
products at Digital. Under the Digital Agreement, Digital
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received a non-exclusive, fully paid, perpetual license to certain patents
transferred by Digital to the Company and agreed not to compete with the Company
with respect to the acquired products following the closing of that transaction.
Pursuant to the Digital Agreement, the Company is to provide certain consulting
services to Digital and is to receive payments from Digital of $2,500,000 on
each of April 30, 1997 and July 1, 1997. Following the initial payments in April
and July of 1997, payments to the Company under the Digital consulting agreement
are based on a time and materials rate and shall not exceed $10 million during
the term of that agreement. Digital was further granted a non-exclusive
distribution right for BEA TUXEDO and the former Digital products acquired by
the Company pursuant to the Digital Agreement and is to pay BEA for any such
products varying discounts from BEA's U.S. list price based on the location of
the Digital customer.
RESEARCH AND DEVELOPMENT
The Company has made substantial investments in technology acquisition and
product development. BEA TUXEDO was originally developed by AT&T Bell Labs, and
had been revised by UNIX System Labs and Novell before BEA became the developer
of the product in February 1996. Important product technology for the BEA
Enterprise Transaction Framework was gained through many of the Company's
acquisitions. The Company will continue to review possible technology
acquisitions when appropriate. See "Risk Factors--Past and Future Acquisitions"
and "Management's Discussion and Analysis of Financial Condition and Results of
Operation."
At January 31, 1997, the Company had a development staff of 105, which
included the original four architects, as well as many of the original
developers, of TUXEDO. In addition, as a result of its recent acquistion of BEA
MessageQ, BEA ObjectBroker and related products from Digital, the Company
acquired the services of approximately 90 product development employees and
contractors. In its fiscal years ended January 31, 1996 and 1997, the Company's
product development expenses were $3.2 million and $18.2 million, respectively.
The Company's product development organization is responsible for product
architecture, core technology and functionality, product testing, user interface
development and expanding the ability of BEA's products to operate with the
leading hardware platforms, operating systems, relational database management
systems ("RDBMSs"), application development and management tools and networking
and communication protocols. To date, the Company has not capitalized any
software development costs and does not anticipate capitalizing any software
development costs. The Company expects to continue to devote substantial
resources to its product development activities, including continued support of
existing and emerging hardware platforms, operating systems, RDBMSs, application
development and management tools, and networking and communication protocols.
BEA shipped BEA TUXEDO Release 6.1, Vol. 2 in July 1996, BEA Connect SNA
Version 1.1 in August 1996, BEA Connect TCP in November 1996, and BEA TUXEDO 6.2
in December 1996. The Company released the first customer shipment of BEA Jolt
Version 1.0, the first product developed exclusively by BEA, in December 1996.
The Company intends to continue to extend the functionality of BEA TUXEDO and
the BEA Enterprise Transaction Framework, to commit significant resources to the
ongoing development of BEA TUXEDO and to support existing and emerging
technologies such as object-oriented technology.
The market for the Company's products is highly fragmented, competitive with
alternative computing architectures, and characterized by continuing
technological development, evolving industry standards and changing customer
requirements. The introduction of products embodying new technologies, the
emergence of new industry standards or changes in customer requirements could
render the Company's existing products obsolete and unmarketable. As a result,
the Company's success depends upon its ability to further enhance existing
products, respond to changing customer requirements, and develop and introduce
in a timely manner new products that keep pace with technological developments
and emerging industry standards. Customer requirements include, but are
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not limited to, operability across distributed and changing heterogeneous
hardware platforms, operating systems, relational databases and networks. For
example, although BEA TUXEDO interoperates with applications on over 40
operating platforms, as certain of the Company's customers start to utilize
emerging platforms, it will be necessary for the Company to further enhance its
products to interoperate with applications on these emerging platforms. There
can be no assurance that the Company's products will adequately address the
changing needs of the marketplace or that the Company will be successful in
developing and marketing enhancements to its existing products or new products
incorporating new technology on a timely basis. Failure to develop and introduce
new products, or enhancements to existing products, in a timely manner in
response to changing market conditions or customer requirements, will materially
and adversely affect the Company's business, operating results and financial
condition.
SALES, MARKETING AND SERVICES
The Company's sales strategy is to pursue opportunities worldwide within
large organizations through its direct sales, professional services and
technical support organizations, complemented by indirect sales channels such as
hardware OEMs, packaged application software developers, systems integrators and
independent consultants, software tool vendors and distributors. The Company
currently intends to add to its direct sales, support and professional services
organizations in all major markets worldwide.
DIRECT SALES ORGANIZATION
BEA markets its software and services primarily through its direct sales
organization. As of January 31, 1997, the Company's direct sales force totaled
87 sales representatives in 26 offices worldwide. At January 31, 1997, the
direct sales force was supported by 26 technical sales engineers worldwide.
Field sales representatives are assigned quotas and compensated for all Company
revenues, both direct and indirect, resulting from their assigned territory.
Leads are generally qualified by a third party and then passed through the field
sales organization.
The Company typically uses a consultative, solution-oriented sales model
that entails the collaboration of technical and sales personnel to formulate
proposals to address specific customer requirements. Because the Company's
products are typically used to integrate applications that are critical to a
customer's business, the Company focuses its initial sales efforts on senior IT
department personnel who are responsible for such applications. Subsequent
efforts often include other senior members of a customer's executive management
team.
PRODUCT SALES AND IMPLEMENTATION CYCLE
The license of the Company's software products is often an enterprise-wide
decision by prospective customers and requires the Company to engage in a
lengthy sales cycle to provide a significant level of education to prospective
customers regarding the use and benefits of the Company's products. The
Company's sales process consists of several phases: lead generation, initial
contact, lead qualification, needs assessment, proposal generation and contract
negotiation. Following the signing of a license contract for BEA products, a
customer's implementation consists of a pre-deployment and a deployment phase.
Approximately 10 to 30 percent of the revenue from a typical customer is
realized during the pre-deployment phase and is usually weighted toward
professional services and training. The remaining portion of revenue is realized
during the deployment stage and predominantly consists of license fees. While
the sales and implementation cycle varies substantially from customer to
customer, for initial sales it has ranged from 18 to 24 months from the initial
contact to the completion of the deployment phase. In many cases, a customer
begins a second development project using BEA products, often with substantially
shortened development and deployment timeframes. Additional
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development projects by a particular customer are often implemented in
progressively abbreviated timeframes. See "Risk Factors--Lengthy Sales and
Implementation Cycle."
STRATEGIC RELATIONSHIPS
An important element of the Company's sales and marketing strategy is to
expand its relationships with third parties to increase the market awareness,
demand and acceptance of BEA and its products. The Company often benefits from
third-party selling assistance and believes that, in a number of instances, its
relationships with strategic partners have substantially shortened the Company's
sales cycle. Partners have often generated and qualified sales leads, made
initial customer contacts, assessed needs and recommended contact with the
Company prior to BEA's introduction. Partners can provide customers with
additional resources and expertise, especially in vertical markets, to help meet
their system application development requirements. Types of partners include:
HARDWARE OEMS. BEA's hardware partners often act as resellers of BEA
TUXEDO, either under the BEA TUXEDO name or integrated with their own software
products, or recommend BEA TUXEDO to their customers and prospects who are
planning to implement high-end, mission-critical applications on their hardware
platform. BEA's relationships with hardware manufacturers include Digital
Equipment Corp., Fujitsu Limited, Hewlett-Packard Corporation, IBM Corporation,
NEC Corporation, Pyramid Technology Corp., Sequent Computer Systems Inc.,
Siemens-Nixdorf Informationssysteme A.G., Sun Microsystems Inc., Unisys and
Tandem Computers Inc.
PACKAGED APPLICATION SOFTWARE DEVELOPERS. BEA licenses its software to
packaged application software vendors. These vendors embed the software as a
middleware infrastructure for the applications they supply, giving these
applications increased distribution, scalability and portability across all
platforms on which BEA TUXEDO runs. Customers can also easily integrate custom
applications built using BEA TUXEDO into these existing packaged applications.
Vendors that embed BEA TUXEDO software in their packaged applications include
CableData, Clarify, Inc., Cycare Systems, Inc., Filoli Information Systems and
PeopleSoft Inc.
SYSTEMS INTEGRATORS AND INDEPENDENT CONSULTANTS. Systems integrators often
refer their customers to BEA and may utilize BEA as a subcontractor in some
situations. BEA TUXEDO has been designated by EDS as a certified framework
product, and BEA seeks similar certification from other systems integrators. BEA
also works cooperatively with independent consulting organizations, often being
referred to prospective customers by professional services organizations with
expertise in high-end transactional applications. In addition to EDS, BEA has
relationships with systems integrators such as Andersen Consulting, Oracle
Consulting and Perot Systems Corporation, as well as many independent
consultants.
INDEPENDENT SOFTWARE TOOL VENDORS. Partner ISVs integrate their tools with
BEA TUXEDO to enable their customers to use these tools to build scalable
distributed applications more easily. BEA has relationships with over 40 tool
vendors, including Borland International Inc., BMC Software Inc., Compuware
Corporation, Dynasty, Mercury Interactive Corporation, Microsoft Corporation,
NAT Systems International, Inc., Oracle Corporation, Passport Communications,
Inc. and Prolifics.
DISTRIBUTORS. The Company uses distributors to sell its products in North
America and major markets in Europe, Asia and Latin America to augment the
efforts of its direct sales force. As of January 31, 1997, the Company was
represented by 13 distributors.
PROFESSIONAL SERVICES
The Company's professional services organization provides a full range of
consulting services to customers developing, deploying and managing
mission-critical applications using BEA products. These services include
architectural assistance, prototyping, implementation, legacy migration,
porting,
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application integration, performance evaluation and tuning, and data
conversions. Because of the complex nature of its customers' mission-critical
applications, the Company believes that its professional services organization
plays a key role in facilitating initial license sales and enabling customers to
successfully develop, deploy and manage such applications. As of January 31,
1997, the Company employed 73 professional services consultants. Fees for
professional services are generally charged on a time and materials basis and
vary depending upon the nature and extent of services to be performed.
TECHNICAL SUPPORT
The Company believes that a high level of customer support is integral to
the successful marketing and sale of BEA products. Mission-critical applications
require rapid support response and problem resolution. The Company's direct
sales to customers include a basic level of maintenance. Comprehensive 7x24x365
support contracts are also available, typically on an annual basis. In addition,
the Company offers introductory and advanced classes and training programs at
the Company's offices, customer sites and training centers worldwide. Telephone
hotline support is offered worldwide at either a standard or around-the-clock
level, depending on customer requirements. The Company maintains product and
technology experts on call at all times worldwide and has support call centers
located in Sunnyvale, California and Paris, France. The Company sponsors user
group conferences in North America and Europe.
MARKETING
The Company's marketing efforts are directed at broadening the market for
BEA TUXEDO and the BEA Enterprise Transaction Framework by increasing awareness
of the benefits of using the Company's products to build mission-critical
distributed applications. Marketing efforts are also aimed at supporting the
Company's worldwide direct and indirect sales channels. Marketing personnel
engage in a variety of activities including conducting public relations and
product seminars, issuing newsletters, sending direct mailings, preparing sales
collateral and other marketing materials, coordinating the Company's
participation in industry trade shows, programs and forums, and establishing and
maintaining close relationships with recognized industry analysts. The Company's
senior executives are frequent speakers at industry forums in many of the major
markets the Company serves.
COMPETITION
The market for middleware software and related services is highly
competitive. The Company's competitors are diverse and offer a variety of
solutions directed at various segments of the middleware software marketplace.
These competitors include database vendors such as Oracle Corporation
("Oracle"), IBM Corporation ("IBM") and others, which offer their own
development tools for use with their proprietary databases, as well as companies
offering and developing middleware software products and related services or
application development tools that compete with products offered by the Company.
In addition, internal development groups within prospective customers'
organizations may develop software and hardware systems that may substitute for
those offered by the Company. A number of the Company's competitors and
potential competitors have longer operating histories, significantly greater
financial, technical, marketing and other resources, greater name recognition
and a larger installed base of customers than the Company.
The Company's principal competitors currently are database vendors that
advocate client/server networks driven by the database server and software tool
vendors that offer development tools designed to enable customers to create
distributed mission-critical applications. Oracle is the primary relational
database vendor offering products that are intended to serve as alternatives to
the Company's enterprise middleware solutions. Currently, the software
development tool vendors typically emphasize the broad versatility of their
toolsets and, in some cases, offer complementary middleware software that
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supports these tools and performs messaging and other basic middleware
functions. There can be no assurance that the Company will compete successfully
with database vendors and software tool vendors, or that the products offered by
such vendors will not achieve greater market acceptance than the Company's
products.
Microsoft has announced that it will provide middleware functionality in
future versions of its Windows NT operating system and has recently announced
the release of a product that includes certain middleware functionality. The
bundling of middleware functionality in Windows NT will require the Company to
compete with Microsoft in the Windows NT marketplace, where Microsoft will have
certain inherent advantages due to its significantly greater financial,
technical, marketing and other resources, greater name recognition, its
substantial installed base and the integration of its enterprise middleware
functionality with Windows NT. If Microsoft successfully incorporates middleware
functionality into Windows NT or separately offers middleware applications, the
Company will need to differentiate its products based on functionality,
interoperability with non-Microsoft platforms, performance and reliability and
establish its products as more effective solutions to customers' needs. There
can be no assurance that the Company will be able to successfully differentiate
its products from those offered by Microsoft, or that Microsoft's entry into the
middleware market will not materially adversely affect the Company's business,
operating results and financial condition.
In addition, current and potential competitors may make strategic
acquisitions or establish cooperative relationships among themselves or with
third parties, thereby increasing the ability of their products to address the
needs of the Company's current and prospective customers. Accordingly, it is
possible that new competitors or alliances among current and new competitors may
emerge and rapidly gain significant market share. Such competition could
materially adversely affect the Company's ability to sell additional licenses
and maintenance and support renewals on terms favorable to the Company. Further,
competitive pressures could require the Company to reduce the price of its
products and related services, which could materially adversely affect the
Company's business, operating results and financial condition. There can be no
assurance that the Company will be able to compete successfully against current
and future competitors, and the failure to do so would have a material adverse
effect upon the Company's business, operating results and financial condition.
The Company believes that the principal competitive factors in the market
for its products are the ability to scale to accommodate a large number of
users, interoperability with major hardware and software platforms and legacy
systems, cost, time to implementation, robustness and support services. Based on
these factors, the Company believes its products compete favorably, although
there can be no assurance that the Company can maintain its competitive position
against current and potential competitors.
In order to be successful in the future, the Company must continue to
respond promptly and effectively to the challenges of technological change and
competitors' innovations. There can be no assurance that the Company will be
able to compete successfully with existing or new competitors or that
competition will not have a material adverse effect on the Company's business,
financial condition and results of operations.
INTELLECTUAL PROPERTY
The Company's success depends upon its proprietary technology. The Company
relies on a combination of copyright, trademark and trade secret rights,
confidentiality procedures and licensing arrangements to establish and protect
its proprietary rights. The Company presently has three issued patents and two
pending patent applications, as well as an exclusive license to one patent and
one pending patent application. In addition, as part of its recent acquisition
of products from Digital, the Company acquired an exclusive license to an
additional U.S. patent and two pending U.S. patent applications. No assurance
can be given that competitors will not successfully challenge the validity or
scope of the Company's patents and that such patents will provide a competitive
advantage to the
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Company. As part of its confidentiality procedures, the Company generally enters
into non-disclosure agreements with its employees, distributors and corporate
partners, and license agreements with respect to its software, documentation and
other proprietary information. Despite these precautions, it may be possible for
a third party to copy or otherwise obtain and use the Company's products or
technology without authorization, or to develop similar technology
independently. In particular, the Company has, in the past, provided certain
hardware OEMs with access to its source code, and any unauthorized publication
or proliferation of this source code could materially adversely affect the
Company's business, operating results and financial condition. Policing
unauthorized use of the Company's products is difficult and, although the
Company is unable to determine the extent to which piracy of its software
products exists, software piracy can be expected to be a persistent problem.
Effective protection of intellectual property rights is unavailable or limited
in certain foreign countries. There can be no assurance that the Company's
protection of its proprietary rights will be adequate or that the Company's
competitors will not independently develop similar technology, duplicate the
Company's products or design around any patents issued to the Company or other
intellectual property rights of the Company.
The Company is not aware that any of its products infringe the proprietary
rights of third parties. There can be no assurance, however, that third parties
will not claim such infringement by the Company with respect to current or
future products. The Company expects that software product developers will
increasingly be subject to such claims as the number of products and competitors
in the Company's industry segment grows and the functionality of products in the
industry segment overlaps. Any such claims, with or without merit, could result
in costly litigation that could absorb significant management time, which could
have a material adverse effect on the Company's business, operating results and
financial condition. Such claims might require the Company to enter into royalty
or license agreements. Such royalty or license agreements, if required, may not
be available on terms acceptable to the Company or at all, which could have a
material adverse effect upon the Company's business, operating results and
financial condition.
EMPLOYEES
At January 31, 1997, the Company had 459 full-time employees of whom 105
were primarily engaged in research and development, 313 in consulting, training,
sales, support and marketing and 41 in administration and finance. In addition,
as part of its recent acquisition of products from Digital, the Company acquired
the services of approximately 90 associated product development employees and
contractors. None of the Company's employees is represented by a collective
bargaining agreement and the Company has never experienced any work stoppage.
The Company considers its relations with its employees to be good. The Company
also employs a number of temporary and contract employees from time to time. At
January 31, 1997, the Company employed approximately 58 temporary and contract
employees.
The Company's future performance depends to a significant degree upon the
continued service of its key members of management, as well as key marketing,
sales, consulting and product development personnel. The loss of any of William
T. Coleman III, the Company's President, Chairman and Chief Executive Officer,
Edward W. Scott, Jr., the Company's Executive Vice President of Worldwide Field
Operations, or Alfred S. Chuang, the Company's Chief Technical Officer and
Executive Vice President of Product Development, or one or more of the Company's
other key personnel, would have a material adverse effect on the Company's
business, operating results and financial condition. The Company believes its
future success will also depend in large part upon its ability to attract and
retain highly skilled management, marketing, sales, consulting and product
development personnel. Competition for such personnel is intense, and there can
be no assurance that the Company can retain its key employees or that it will be
successful in attracting, assimilating and retaining such personnel in the
future. Hiring of qualified technical personnel in foreign countries will be
difficult due to a more limited number of qualified professionals, as the
Company seeks to expand its worldwide support organization. Failure to
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attract, assimilate and retain key personnel would have a material adverse
effect on the Company's business, operating results and financial condition. In
addition, the Novell Agreement requires the Company to employ a minimum number
of research and development personnel.
FACILITIES
The Company's primary offices are located in approximately 38,000 and 18,000
square feet of space in Sunnyvale, California and approximately 61,000 square
feet in Bernards Township, New Jersey under leases expiring in January 31, 2001,
June 30, 1998 and April 31, 2006, respectively. The Company has an option to
extend the lease of the premises in Sunnyvale for an additional five years after
the original expiration date on substantially the same terms. The Company also
leases space for its sales and support offices in Atlanta, Georgia; Boston,
Massachusetts; Brisbane, Australia; CapeTown, South Africa; Dallas, Texas;
Escondido, California; Espoo, Finland; Golden, Colorado; Johannesburg, South
Africa; Kowloon, Hong Kong; London, England; Melbourne, Australia; Minneapolis,
Minnesota; Munich, Germany; Paris, France; Reston, Virginia; San Francisco,
California; Sao Paulo, Brazil; Schaumberg, Illinois; Sydney, Australia; Toronto,
Canada; Yokohama, Japan, Zaventem, Belgium and Zurich, Switzerland. BEA also has
offices in Seoul, Korea and Stockholm, Sweden, which are leased by other
companies. The Company believes that its existing facilities are sufficient to
meet its anticipated needs for the foreseeable future.
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MANAGEMENT
EXECUTIVE OFFICERS AND DIRECTORS
The following table sets forth certain information concerning the executive
officers and directors of the Company as of February 28, 1997:
<TABLE>
<CAPTION>
NAME AGE POSITION(S)
- -------------------------- ----------- --------------------------------------------------------------------------------
<S> <C> <C>
William T. Coleman III 49 President, Chief Executive Officer, Chairman of the Board and Director
Edward W. Scott, Jr. 58 Executive Vice President of Worldwide Field Operations, Assistant Secretary and
Director
Alfred S. Chuang 35 Chief Technical Officer, Executive Vice President of Product Development
Steve L. Brown 44 Executive Vice President, Chief Financial Officer and Secretary
Carol Bartz(1) 48 Director
Cary J. Davis 30 Director
Stewart K.P. Gross(2) 37 Director
William H. Janeway(1) 53 Director
Dean Morton(2) 64 Director
</TABLE>
- --------------
(1) Member of Compensation Committee.
(2) Member of Audit Committee.
MR. COLEMAN was a founder of the Company and has been its President, Chief
Executive Officer and a member of its Board of Directors since the Company's
inception. Prior to founding the Company in January 1995, Mr. Coleman was
employed by Sun Microsystems, Inc. from 1985 to January 1995, where his last
position was Vice President and General Manager of its Sun Integration division.
Mr. Coleman holds a B.S. from the Air Force Academy and an M.S. from Stanford
University.
MR. SCOTT is a founder of the Company and has been a member of its Board of
Directors and its Executive Vice President of Worldwide Field Operations since
the Company's inception. Prior to founding the Company in January 1995, Mr.
Scott was employed by Pyramid Technology, Inc. as its Executive Vice President
of Worldwide Sales and Marketing from September 1988 to April 1995 and by Sun
Microsystems from October 1985 to September 1988. Mr. Scott has a B.A. and an
M.A. from Michigan State University and a Bachelor's Degree from Oxford
University.
MR. CHUANG is a founder of the Company and has been its Chief Technical
Officer and Executive Vice President of Product Development since the Company's
inception. He served as a member of its Board of Directors from the Company's
inception until September 1995. From 1986 to December 1994, Mr. Chuang worked at
Sun Microsystems, Inc. in various positions, including Chief Technology Officer
of Sun Integration Services and Corporate Director of Strategic Systems
Development of Sun's Middleware Group. Mr. Chuang has a B.S. from the University
of San Francisco and an M.S. from U.C. Davis.
MR. BROWN joined the Company in August 1996 and is currently Executive Vice
President, Chief Financial Officer and Secretary. From October 1994 to July
1996, Mr. Brown was employed by MicroUnity Systems Engineering, Inc., where his
last position was Vice President, Finance. From 1978 to 1994, Mr. Brown was
employed at the Hewlett-Packard Corporation in various controller and treasury
positions. He holds a B.A. from San Diego State University and an M.B.A. from
UCLA.
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MS. BARTZ has served as a director of the Company since November 1995. From
April 1992 to present, Ms. Bartz has served as the Chairman and Chief Executive
Officer of Autodesk, Inc. From 1983 to April 1992, Ms. Bartz served in various
positions with Sun Microsystems, Inc., most recently as Vice President of
Worldwide Field Operations. Ms. Bartz is a director of Autodesk, Inc., AirTouch
Communications, Cadence Design Systems, Inc., Cisco Systems, Inc. and Network
Appliance, Inc. Ms. Bartz holds a B.S. from the University of Wisconsin at
Madison.
MR. DAVIS has served as a director of the Company since November 1995. Mr.
Davis is a Vice President of Warburg, Pincus Ventures, LLC, the venture capital
subsidiary of E.M. Warburg, Pincus & Company, LLC, ("EMWP") where he has been
employed since October 1994. From August 1992 to September 1994, Mr. Davis was
employed by Dell Computer Corporation, where his last position was Manager of
Worldwide Desktop Marketing. Mr. Davis holds a B.A. from Yale University and an
M.B.A. from Harvard University.
MR. GROSS has served as a director of the Company since inception. Mr. Gross
is a Managing Director of EMWP and has been employed by EMWP since 1987. Prior
to joining EMWP, Mr. Gross was employed at Morgan Stanley & Co. Mr. Gross is a
director of Vanstar Corporation, OpenVision Technologies, Inc. and several
privately-held companies. Mr. Gross has a B.A. from Harvard University and an
M.B.A. from Columbia University.
MR. JANEWAY has served as a director of the Company since inception. Mr.
Janeway has been a Managing Director of EMWP since July 1988. Prior to joining
EMWP, Mr. Janeway was the Vice President and Director of Corporate Finance at F.
Eberstadt & Co., Inc. from 1979 to July 1988. Mr. Janeway is a director of
ECSoft Group plc, Industri-Matematik Corp., Maxis, Inc., OpenVision
Technologies, Inc., Vanstar Corporation, Zilog, Inc. and several privately-held
companies. Mr. Janeway has a B.A. from Princeton University and a Ph.D. from
Cambridge University, where he studied as a Marshall Scholar.
MR. MORTON has served as a director of the Company since March 1996. Mr.
Morton was Executive Vice President, Chief Operating Officer and a Director of
the Hewlett-Packard Corporation until his retirement in October 1992, where he
held various positions since 1960. Mr. Morton is a director of ALZA Corporation,
Raychem Corporation, Tencor Instruments, The Clorox Company, Centigram
Communications Corporation, and Kaiser Foundation Health Plan, Inc. Hospitals.
He is a trustee of the State Street Research Group of Funds, The State Street
Research Portfolios, Inc. and The Metropolitan Series Fund. Mr. Morton holds a
B.S. from Kansas State University and an M.B.A. from Harvard University.
Currently all directors hold office until the next annual meeting of
stockholders or until their successors are duly qualified. Upon completion of
the offering, the Amended and Restated Certificate of Incorporation of the
Company will provide for the Board of Directors to be divided into three
classes, each with staggered three-year terms. As a result, only one class of
directors will be elected at each annual meeting of stockholders of the Company,
with the other classes continuing for the remainder of their respective
three-year terms. Upon the division of the Board of Directors into three
classes, in the absence of cumulative voting rights, the Company's stockholders
holding a majority of the shares of Common Stock outstanding will be able to
elect all the directors. See "Description of Capital Stock-- Antitakeover
Effects of Provisions of the Company's Charter and Bylaws" and "Risk
Factors--Control by Management and Current Stockholders."
Officers are elected by and serve at the discretion of the Board of
Directors. There are no family relationships among the directors or officers of
the Company.
BOARD COMMITTEES
AUDIT COMMITTEE. The Audit Committee of the Board of Directors reviews the
results and scope of the annual audit and other services provided by the
Company's independent accountants, reviews and
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evaluates the Company's internal audit and control functions, and monitors
transactions between the Company and its employees, officers and directors.
Stewart K.P. Gross and Dean Morton serve as members of the Audit Committee.
COMPENSATION COMMITTEE. The Compensation Committee of the Board of
Directors administers the 1997 Stock Incentive Plan, the 1997 Employee Stock
Purchase Plan and the 1995 Flexible Stock Incentive Plan, and reviews and
approves the compensation and benefits for the Company's executive officers.
Carol Bartz and William H. Janeway serve as members of the Compensation
Committee.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
No interlocking relationship exists between any member of the Company's
Board of Directors or Compensation Committee and any member of the board of
directors or compensation committee of any other company, nor has any such
interlocking relationship existed in the past.
DIRECTOR COMPENSATION
The Company's outside directors are reimbursed for expenses incurred in
connection with attending Board and Committee meetings but are not compensated
for their services as Board members. The Company may also grant to directors
options to purchase Common Stock of the Company pursuant to the terms of the
1997 Stock Incentive Plan and they are eligible to receive bonuses under the
1997 Management Bonus Plan. See "--Stock Plans--1997 Stock Incentive Plan
and--1997 Management Bonus Plan."
EXECUTIVE COMPENSATION
The following table sets forth certain information concerning compensation
of the Company's Chief Executive Officer and each of the four other most highly
compensated executive officers of the Company whose aggregate cash compensation
exceeded $100,000 during the fiscal year ended January 31, 1997 (collectively,
the "Named Executive Officers").
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
ANNUAL COMPENSATION
--------------------------------------------
OTHER ANNUAL
NAME AND PRINCIPAL POSITION YEAR SALARY($) BONUS($) COMPENSATION($)(1)
- ------------------------------------------------------------ --------- --------- ----------- --------------------
<S> <C> <C> <C> <C>
William T. Coleman III ..................................... 1997 177,923(2) 33,255 --
President, Chief Executive Officer, Chairman of the Board 1996 152,885 -- 22,500
and Director
Edward W. Scott, Jr. ....................................... 1997 150,000 22,170 --
Executive Vice President and Director 1996 91,154 -- --
Alfred S. Chuang ........................................... 1997 150,000 22,170 --
Executive Vice President 1996 109,654 -- 16,500
</TABLE>
- --------------
(1) Represents contributions made by the Company to the named individual's
self-employed retirement benefits plan. The named individuals became
ineligible to continue participating in these plans in January 1996 when the
Company qualified to adopt a 401(k) plan, and the Company does not
anticipate making contributions to these plans in future periods.
(2) Mr. Coleman's salary paid in the fiscal year ended January 31, 1997
represents a yearly salary of $180,000 less unpaid time off in the amount of
$2,077.
EMPLOYMENT AGREEMENTS
The Company has entered into employment agreements with William T. Coleman,
Edward W. Scott, Jr. and Alfred S. Chuang (the "Employees"), dated September 28,
1995 (the "Employment Agreements").
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The Employment Agreements provide that Mr. Coleman, Mr. Scott and Mr. Chuang
receive a yearly salary of $180,000, $150,000 and $150,000, respectively (to be
reviewed annually), and reimbursement for certain expenses. The Employees are
also entitled to participate in any pension, bonus, insurance, savings or other
employee benefit plans adopted by the Company.
The Employment Agreements continue until the earlier of (1) September 28,
1999 or (2) termination of employment (i) by the Board of Directors for cause at
any time upon 10 days' written notice, or without cause upon 24 hours' written
notice; (ii) by death; (iii) by the Employee for good reason or following
certain corporate transactions, or at will upon two weeks' notice; or (iv) due
to disability. Upon termination of employment without cause by the Company, or
for good reason by the Employee, the Company will hire the Employee as a
consultant until the end of the period of employment, or for a period of two
years following termination. During the Consultancy Period (as defined in the
Employment Agreements), the Employee is required to be available a maximum of 40
hours per week in return for which he will be entitled to receive a monthly
salary, bonus and benefits equal to the amount that he received immediately
prior to the termination of employment. Upon termination of employment for cause
by the Company, or at will by the Employee, the Company can require the Employee
to provide consulting services for a maximum of 40 hours per week until the end
of the period of employment, during which period the Employee will be paid his
monthly salary on a prorated basis. Upon termination by death or disability, the
Employee or his estate will under certain circumstances receive the Employee's
salary and certain other benefits until the end of the period of employment.
The Employment Agreements contain a covenant not to compete which provides
that during the Consultancy Period, under certain circumstances the Employee
cannot compete with the Company, or accept employment with a competitor of the
Company.
1997 MANAGEMENT BONUS PLAN
In January 1997, the Board approved the 1997 Management Bonus Plan (the
"Bonus Plan") pursuant to the terms of which the Company's officers and a number
of key employees, such as managers and architects, are eligible to receive
bonuses of up to 100% of their current base salary, subject to length of
employment and certain other conditions. The bonus level is determined on a
quarterly basis based upon achievement of specified revenue and contribution
performance objectives.
STOCK PLANS
1995 FLEXIBLE STOCK INCENTIVE PLAN
The Company's 1995 Flexible Stock Incentive Plan (the "1995 Incentive Plan")
was adopted by the Board of Directors and approved by the Company's stockholders
in September 1995. The 1995 Incentive Plan provides for the granting to
employees of the Company and of its subsidiaries of incentive stock options
within the meaning of Section 422A of the Internal Revenue Code of 1986, as
amended (the "Code"), and for the granting to employees, outside directors,
consultants, and independent contractors of nonstatutory stock options. In
addition, the 1995 Incentive Plan provides for the sale or grant of restricted
Common Stock to eligible individuals in connection with the performance of
services for the Company. The Board of Directors and the stockholders have
authorized a total of 9,600,000 shares of Common Stock for issuance pursuant to
the 1995 Incentive Plan of which options to purchase 6,826,291 shares of Common
Stock were outstanding as of February 28, 1997, and 2,152,301 shares of Common
Stock remained available for grant.
The 1995 Incentive Plan may be administered by the Board of Directors or a
committee of the Board (the "Committee"). The Committee has the power to
determine the terms of the options granted, including the exercise price, number
of shares subject to the option and the exercisability thereof, and the form of
consideration payable upon exercise. Options granted under the 1995 Incentive
Plan are not transferable by the optionee other than by will or the laws of
descent or distribution, and each option is exercisable during the lifetime of
the optionee only by such optionee. The exercise price of all incentive
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<PAGE>
stock options granted under the 1995 Incentive Plan must be at least equal to
the fair market value of the Common Stock on the date of grant. The exercise
price of all nonstatutory stock options granted under the 1995 Incentive Plan
must be at least 85% of the fair market value of the Common Stock on the date of
grant. With respect to any participant who owns stock representing more than 10%
of the combined voting power of the Company or certain affiliated entities (a
"10% Stockholder"), the exercise price of any incentive stock option granted
must equal at least 110% of the fair market value on the grant date. The term of
incentive stock options granted under the 1995 Incentive Plan may not exceed ten
years (or five years in the case of an incentive stock option granted to a 10%
Stockholder). No stock option granted under the 1995 Incentive Plan shall vest
at a rate of less than 20% per year over 5 years from the date the option is
granted. The consideration for exercising any option must consist of cash unless
the Board, in its sole discretion, permits payment by check, Company shares, a
promissory note or the assignment of part of the proceeds of the shares acquired
upon exercise of the options.
With certain exceptions, the options terminate upon termination of
employment, disability or death of the employee. In the event of a merger with
or into another corporation, the options will terminate upon the consummation of
a merger, unless assumed or substituted by a successor corporation or its parent
company.
Upon the completion of this offering, the Company will no longer make awards
under the 1995 Incentive Plan.
1997 STOCK INCENTIVE PLAN
The Company's 1997 Stock Incentive Plan (the "1997 Stock Incentive Plan")
was adopted by the Board of Directors in March 1997 and is anticipated to be
approved by the Company's stockholders prior to consummation of the offering.
The purpose of the 1997 Stock Incentive Plan is to attract and retain the best
available personnel for positions of substantial responsibility, to provide
additional incentive to employees, directors and consultants of the Company and
its subsidiaries and to promote the success of the Company's business. The 1997
Stock Incentive Plan provides for the granting to employees of incentive stock
options within the meaning of Section 422 of the Code and the granting of
nonstatutory stock options, stock appreciation rights, dividend equivalent
rights, restricted stock, performance units, performance shares, and other
equity-based rights ("Awards") to employees, directors and consultants of the
Company. Initially, 5,100,000 shares of Common Stock are reserved for issuance
under the plan. Commencing January 2, 1998, the number of shares of Common Stock
reserved for issuance under the 1997 Stock Incentive Plan will be increased by a
number equal to three and one half percent (3.5%) of the number of shares of
Common Stock outstanding as of December 31 of the immediately preceding calendar
year, provided that the number of shares of Common Stock available for grant of
incentive stock options shall be 5,100,000 shares, and such number shall not be
subject to adjustment as described above. The Board of Directors determined the
number of shares to include in the 1997 Stock Incentive Plan based in part on
the number of shares remaining in the 1995 Incentive Plan, which will not be
granted. Where the Award agreement permits the exercise or purchase of the Award
for a certain period of time following the recipient's termination of service
with the Company, disability, or death, the Award will terminate to the extent
not exercised or purchased on the last day of the specified period or the last
day of the original term of the Award, whichever occurs first. To date, no
Awards have been granted under the 1997 Stock Incentive Plan.
With respect to Awards granted to directors or officers, the 1997 Stock
Incentive Plan is administered by the Board of Directors or a committee
designated by the Board of Directors constituted to permit such Awards to be
exempt from Section 16(b) of the Securities Exchange Act of 1934, as amended, in
accordance with Rule 16b-3 thereunder. With respect to Awards granted to other
participants, the 1997 Stock Incentive Plan is administered by the Board of
Directors or a committee designated by the Board of Directors. In each case, the
Board of Directors or such committees (the "Plan Administrator") shall determine
the provisions, terms and conditions of each Award, including, but not limited
to, the Award vesting schedule, repurchase provisions, rights of first refusal,
forfeiture provisions,
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form of payment (cash, shares of Common Stock, or other consideration) upon
settlement of the Award, payment contingencies and satisfaction of any
performance criteria. Incentive stock options are not transferable by the
optionee other than by will or the laws of descent or distribution, and each
incentive stock option is exercisable during the lifetime of the optionee only
by such optionee. Other Awards shall be transferable to the extent provided in
the agreement evidencing the Award. The exercise price of incentive stock
options must be at least equal to the fair market value of the Common Stock on
the date of grant, and the term of the option must not exceed ten years. The
term of other Awards will be determined by the Plan Administrator. With respect
to an employee who owns stock possessing more than 10% of the voting power of
all classes of the Company's outstanding capital stock, the exercise price of
any incentive stock option must equal at least 110% of the fair market value of
the Common Stock on the grant date and the term of the option must not exceed
five years. The exercise or purchase price of other Awards will be such price as
determined by the Plan Administrator. The consideration to be paid for the
shares of Common Stock upon exercise or purchase of an Award will be determined
by the Plan Administrator and may include cash, check, shares of Common Stock, a
promissory note, or the assignment of part of the proceeds from the sale of
shares acquired upon exercise or purchase of the Award.
In the event of an acquisition of the Company through the sale of all or
substantially all of its assets, a merger or other business combination in which
the Company is not the surviving entity, outstanding Awards under the 1997 Stock
Incentive Plan, except as otherwise provided in a specific Award Agreement,
terminates unless assumed by the successor company or its parent.
Unless terminated sooner, the 1997 Stock Incentive Plan will terminate
automatically in 2007. The Board has the authority to amend, suspend or
terminate the 1997 Stock Incentive Plan subject to stockholder approval of
certain amendments and provided no such action may affect Awards previously
granted under the 1997 Stock Incentive Plan.
1997 EMPLOYEE STOCK PURCHASE PLAN
The Company's 1997 Employee Stock Purchase Plan (the "Stock Purchase Plan"),
which was approved by the Board of Directors in March 1997 and is anticipated to
be approved by the Company's stockholders prior to the consummation of the
offering, is intended to qualify as an "employee stock purchase plan" under
Section 423 of the Code and to provide employees of the Company with an
opportunity to purchase Common Stock through payroll deductions. An aggregate of
1,250,000 shares of the Company's Common Stock are reserved for issuance under
the Stock Purchase Plan and available for purchase thereunder, subject to
adjustment in the event of a stock split, stock dividend or other similar change
in the Common Stock or the capital structure of the Company. All employees of
the Company and its subsidiaries (including officers) whose customary employment
is for more than five months in any calendar year and more than 20 hours per
week are eligible to participate in the Stock Purchase Plan. Outside directors,
consultants and employees subject to the rules or laws of a foreign jurisdiction
that prohibit or make impractical the participation of such individuals in the
Stock Purchase Plan are not eligible to participate in the Stock Purchase Plan.
The Stock Purchase Plan designates Purchase Periods, Accrual Periods and
Exercise Dates. Purchase Periods are generally overlapping periods of 24 months.
A Purchase Period will initiate on the effective date of the Registration
Statement applicable to the offering and additional Purchase Periods will
commence each subsequent January and July. The initial Purchase Period will end
on June 30, 1999. Accrual Periods are generally six months periods. The initial
Accrual Period will commence on the effective date of the offering and end on
June 30, 1997. Thereafter Accrual Periods will commence each January 1 and July
1. The Exercise Dates are the last days of each Accrual Period.
On the first day of each Purchase Period, a participating employee is
granted a purchase right which is a form of option to be automatically exercised
on the forthcoming Exercise Dates within the Purchase Period during which
deductions are to be made from the pay of participants (in accordance with their
authorizations) and credited to their accounts under the Stock Purchase Plan.
When the purchase right
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is exercised, the participant's withheld salary is used to purchase shares of
Common Stock of the Company. The price per share at which shares of Common Stock
are to be purchased under the Stock Purchase Plan during any Accrual Period is
the lesser of (a) 85% of the fair market value (as defined in the Stock Purchase
Plan) of the Common Stock on the date of the grant of the option (the
commencement of the Purchase Period) or (b) 85% of the fair market value of the
Common Stock on the Exercise Date (the last day of an Accrual Period). The
participant's purchase right is exercised in this manner on all four Exercise
Dates arising in the Purchase Period unless, on the first day of any Accrual
Period, the fair market value of the Common Stock is lower than the fair market
value of the Common Stock on the first day of the Purchase Period. If so, the
participant's participation in the original Purchase Period is terminated, and
the participant is automatically enrolled in the new Purchase Period commencing
on that day.
Payroll deductions may range from 1% to 10% (in whole percentage increments)
of a participant's regular base pay, commissions, overtime, bonuses, annual
awards, other incentive payments, and deferred compensation. Participants may
not make direct cash payments to their accounts. The maximum number of shares of
Common Stock which any employee may purchase under the Stock Purchase Plan
during an Accrual Period is 3,000 shares. Certain additional limitations on the
amount of Common Stock which may be purchased during any calendar year are
imposed by the Code.
The Stock Purchase Plan will be administered by the Board of Directors or a
committee designated by the Board, which will have the authority to administer
the Stock Purchase Plan and to resolve all questions relating to its
administration.
LIMITATION OF LIABILITY AND INDEMNIFICATION MATTERS
The Company's Bylaws provide that the Company will indemnify its directors
and executive officers and may indemnify its other officers, employees and other
agents to the fullest extent permitted by the Delaware General Corporation Law,
as amended. The Company is also empowered under its Bylaws to enter into
indemnification agreements with its directors and officers and to purchase
insurance on behalf of any person whom it is required or permitted to indemnify.
The Company has entered into indemnification agreements with each of its
directors and executive officers and intends to obtain a policy of directors'
and officers' liability insurance that insures such persons against the cost of
defense, settlement or payment of a judgment under certain circumstances.
In addition, the Company's Certificate of Incorporation provides that the
liability of the Company's directors for monetary damages shall be eliminated to
the fullest extent permissible under the Delaware General Corporation Law, as so
amended. This provision in the Certificate of Incorporation does not eliminate a
director's duty of care, and in appropriate circumstances equitable remedies
such as an injunction or other forms of non-monetary relief would remain
available. Each director will continue to be subject to liability for breach of
the director's duty of loyalty to the Company, for acts or omissions not in good
faith or involving intentional misconduct or knowing violations of law, for acts
or omissions that the director believes to be contrary to the best interests of
the Company or its stockholders, for any transaction from which the director
derived an improper personal benefit, for improper transactions between the
director and the Company and for improper distributions to stockholders and
loans to directors and officers. This provision also does not affect a
director's responsibilities under any other laws, such as the federal securities
laws or state or federal environmental laws.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable.
There is no pending litigation or proceeding involving a director or officer
of the Company as to which indemnification is being sought, nor is the Company
aware of any pending or threatened litigation that may result in claims for
indemnification by any director or officer.
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PRINCIPAL STOCKHOLDERS
The following table sets forth certain information known to the Company with
respect to beneficial ownership of the Company's Voting Common Stock as of
February 28, 1997, as adjusted to reflect the sale of shares offered hereby, by
(a) each person known by the Company to own beneficially more than 5% of the
outstanding shares of Voting Common Stock, (b) each of the Company's directors,
(c) each Named Executive Officer (see "Management--Executive Compensation") and
(d) all current executive officers and directors as a group.
<TABLE>
<CAPTION>
VOTING SHARES PERCENTAGE PRIOR TO PERCENTAGE AFTER
NAME OF BENEFICIAL OWNER(1)(2) BENEFICIALLY OWNED(2) THE OFFERING THE OFFERING(2)(3)
- ---------------------------------------------------- --------------------- ------------------- -------------------
<S> <C> <C> <C>
Warburg, Pincus Ventures, L.P.(4)................... 11,870,000 61.7% 49.0%
William T. Coleman III(5)........................... 2,506,828 13.0 10.3
Alfred S. Chuang(6)................................. 1,671,586 8.7 6.9
Edward W. Scott, Jr.(7)............................. 1,593,786 8.3 6.6
William H. Janeway(8)............................... 11,870,000 61.7 49.0
Stewart K.P. Gross(8)............................... 11,870,000 61.7 49.0
Cary J. Davis(8).................................... 11,870,000 61.7 49.0
Carol Bartz(9)...................................... 148,750 * *
Dean Morton(10)..................................... 135,208 * *
All executive officers and directors as a
group(9 persons)(11)............................... 17,925,958 92.8% 73.6%
</TABLE>
- --------------
* Less than 1% of the outstanding Voting Common Stock.
(1) To the Company's knowledge, except as set forth in the footnotes to this
table and subject to applicable community property laws, each person named
in the table has sole voting and investment power with respect to the shares
set forth opposite such person's name. Except as otherwise indicated, the
address of each of the persons in this table is as follows: c/o BEA Systems,
Inc., 385 Moffett Park Drive, Suite 105 Sunnyvale, California 94089-1208.
(2) Based on 24,236,882 shares of voting Common Stock outstanding after this
offering. Does not include 29,406,982 shares of nonvoting Class B Common
Stock (including 3,186,062 shares of Class B Common Stock issuable upon
conversion of shares of Series B Preferred Stock assuming an initial public
offering price of $7.00 per share and proceeds to the Company, after
deducting the underwriting discount, of $6.51 per share, which conversion
shall be provided for by the Company's Amended and Restated Certificate of
Incorporation to be filed prior to the completion of the offering) owned by
Warburg, which represents all outstanding Class B Common Stock. See
"Description of Capital Stock." Including such shares, Warburg would hold
41,276,982 shares or 77.0% of the Company's outstanding stock after this
offering.
(3) Assumes no exercise of the underwriters' over-allotment option. If the
over-allotment option is exercised in full, the Company will sell an
aggregate of 5,750,000 shares of Common Stock.
(4) Includes 307,220 shares issuable within 5 days after the Closing of the
offering, at Warburg's option, pursuant to a convertible line of credit
extended to the Company, assuming an initial public offering price of $7.00
per share and proceeds to the Company, after deducting the underwriting
discount, of $6.51 per share. See "Certain Transactions--Warburg Line of
Credit." The sole general partner of Warburg, Pincus Ventures, L.P.
("Warburg") is Warburg, Pincus & Co., a New York general partnership ("WP").
E.M. Warburg, Pincus & Co., LLC, a New York limited liability company
("EMWP"), manages Warburg. The members of EMWP are substantially the same as
the partners of WP. Lionel I. Pincus is the managing partner of WP and the
managing member of EMWP and may be deemed to control both WP and EMWP. WP
has a 15% interest in the profits of Warburg as the general partner, and
also owns approximately 1.5% of the limited partnership interests in
Warburg.
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Messrs. Janeway and Gross, directors of the Company, are Managing Directors
and members of EMWP and general partners of WP. As such, Messrs. Janeway and
Gross may be deemed to have an indirect pecuniary interest (within the
meaning of Rule 16a-1 under the Securities Exchange Act of 1934) in an
indeterminate portion of the shares beneficially owned by Warburg and WP.
See Note 7 below. The address for Warburg, Pincus Ventures, L.P. is 466
Lexington Avenue, New York, New York, 10017.
(5) Represents shares held of record by the Coleman Family Trust, dated July 12,
1995, of which William T. and Claudia L. Coleman are co-trustees. Includes
62,000 shares of which the economic ownership has been transferred to
certain of Mr. Coleman's relatives. Mr. Coleman retains sole voting power
and investment power of these shares.
(6) Includes 90,000 shares of which the economic ownership has been transferred
to certain of Mr. Chuang's relatives. Mr. Chuang retains sole voting power
and investment power of these shares.
(7) Includes shares held by the following trusts, of which Mr. Scott is the sole
trustee (i) 10,000 shares held by the Edward W. Scott, Jr. 1996 Irrevocable
Living Trust for the Benefit of Eneida Sanchez U.D.T. and dated 9/17/96;
(ii) 20,000 shares held by the Edward W. Scott, Jr. 1996 Irrevocable Living
Trust for the Benefit of Carolina Gutierrez U.D.T. and dated 9/17/96; and
(iii) 30,000 shares held by the Edward W. Scott, Jr. 1996 Irrevocable Living
Trust for the Benefit of Reece D. Scott U.D.T. and dated 9/17/96.
(8) All of the shares indicated as owned by Mr. Janeway, Mr. Gross and Mr. Davis
are owned directly by Warburg and are included because of Mr. Janeway's, Mr.
Gross' and Mr. Davis' affiliation with Warburg. Mr. Janeway, Mr. Gross and
Mr. Davis disclaim beneficial ownership of these shares within the meaning
of Rule 13d-3 under the Securities Exchange Act of 1934. The address for Mr.
Janeway, Mr. Gross and Mr. Davis is c/o E.M. Warburg, Pincus & Co., LLC, 466
Lexington Avenue, New York, New York 10017.
(9) Includes 48,750 shares subject to options exercisable within 60 days after
February 28, 1997. The address for Ms. Bartz is c/o Autodesk, Inc., 111
McInnis Parkway, San Rafael, CA 94903.
(10) Includes 35,208 shares subject to options exercisable within 60 days after
February 28, 1997. The address for Mr. Morton is c/o Hewlett-Packard
Corporation, 3200 Hillview Avenue, Palo Alto, California 94304.
(11) Includes 83,958 shares subject to options exercisable within 60 days after
February 28, 1997. Includes 11,870,000 shares beneficially owned by Warburg,
which shares are included because of the affiliation of Mr. Janeway, Mr.
Gross and Mr. Davis with Warburg. Mr. Janeway, Mr. Davis and Mr. Gross each
disclaim beneficial ownership of such shares.
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CERTAIN TRANSACTIONS
PREFERRED STOCK ISSUANCES
On September 28, 1995, Warburg entered into a Stock Purchase Agreement with
the Company which was subsequently amended on October 31, 1995, January 10,
1996, April 16, 1996, July 1, 1996, September 3, 1996 and December 18, 1996. As
a result of purchases under such agreement, Warburg acquired an aggregate of
4,000,000 shares of Common Stock, 17,066,000 shares of Series A Preferred Stock
and 19,847,800 shares of Series B Preferred Stock for an aggregate purchase
price of $50,000,000. In addition, on April 24, 1996, the board approved the
purchase of an aggregate of 100,000 shares of Series A Preferred Stock
(convertible into Voting Common Stock upon the closing of the offering) by Carol
Bartz and Dean Morton, who are directors of the Company. Each share of Series A
Preferred Stock automatically converts into two shares of Common Stock upon the
closing of the offering. Each share of Series B Preferred Stock is mandatorily
redeemable, at a price of $1.00 per share plus accumulated but unpaid dividends,
upon the closing of the offering, unless Warburg elects to convert into Common
Stock at least five days prior to the closing of the offering. If it so elects,
Warburg has the right to convert the Series B Preferred Stock into Common Stock
at a rate of $1.00 per share plus accumulated but unpaid dividends divided by
the initial public offering price per share net of underwriting discounts. Based
on an assumed initial public offering price net of underwriting discount of
$6.51 per share and the dividends accumulated but unpaid to such dates, the
Series B Preferred Stock would have been convertible into 3,191,966 shares of
Common Stock at January 31, 1997 or into 3,209,236 shares at February 28, 1997.
WARBURG ASSIGNMENT AGREEMENT
On September 28, 1995, in connection with the Company's acquisition of its
two main operating subsidiaries, the Company and Warburg, the Company's major
stockholder, entered into an Assignment Agreement, under the terms of which
Warburg assigned to the Company certain rights to acquire stock from
stockholders of the subsidiaries, as well as a number of agreements related to
the acquisitions, such as letters of intent and an Escrow Agreement, enabling
the Company to acquire all outstanding stock of the two operating subsidiaries.
See "Risk Factors--Past and Future Acquisitions" and "Management's Discussion
and Analysis of Financial Conditions and Results of Operations--Company
Background."
WARBURG LINE OF CREDIT
On January 22, 1997, the Company entered into a credit agreement with
Warburg pursuant to the terms of which Warburg granted the Company a
subordinated line of credit of up to $10,000,000. The agreement provides for an
annual interest rate of 11% and is repayable five business days after the
closing of the offering or on July 22, 1998, whichever occurs first. The
principal of and interest on the loan is convertible, at Warburg's option, into
shares of Common Stock within five days after the closing of the offering, at
the initial public offering price net of underwriting discounts. Based on the
principal and interest outstanding at January 31 and February 28, 1997 and an
assumed initial public offering price net of underwriting discount of $6.51 per
share, borrowings under the line of credit would have been convertible into
153,610 and 307,220 shares of Common Stock, respectively.
FOUNDERS STOCK ISSUANCES
On February 1, 1995 and following the incorporation of the Company, the
Company's three founders, William T. Coleman III, the Company's President and
Chief Executive Officer and a member of its Board of Directors, Edward W. Scott,
Jr., the Company's Executive Vice President for Worldwide Sales and a member of
its Board of Directors and Alfred S. Chuang, the Company's Executive Vice
President of Product Development and Chief Technical officer, purchased
1,200,000, 800,000 and 800,000 shares, respectively, of the Company's Common
Stock at a price of $.005 per share. These shares were
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<PAGE>
purchased pursuant to Restricted Stock Purchase Agreements, which provide for
the repurchase of these shares under certain conditions.
On September 28, 1995, Messrs. Coleman, Scott and Chuang purchased
1,306,828, 871,586 and 871,586 shares, respectively, of the Company's Common
Stock at a price per share of $0.285 per share, payable in part in cash and in
part in the form of a full recourse, five-year promissory note secured by the
purchased shares pursuant to a security agreement entered into on the same date.
The original principal amounts of these notes for Messrs. Coleman, Scott and
Chuang were $97,446, $248,402 and $198,402, respectively. The notes bear
interest at 7% per annum. These shares were purchased pursuant to Restricted
Stock Purchase Agreements, which provide for the repurchase at original cost of
these shares in decreasing percentages during the four year period following the
date of issuance of these shares.
REGISTRATION RIGHTS
Certain holders of Common Stock and Warburg, as the holder of shares of
Common Stock issued upon conversion of the Series A and Series B Preferred
Stock, are entitled to certain registration rights. See "Description of Capital
Stock--Registration Rights."
FOUNDERS' LOANS AND EMPLOYMENT AGREEMENTS
On December 12, 1995, Edward W. Scott, the Company's Executive Vice
President of Worldwide Operations issued a promissory note in the amount of
$720,000 in favor of the Company for the purpose of financing real property. The
note bears interest at 7% per annum and is secured by a deed of trust covering
the property acquired by Mr. Scott. Pursuant to its terms, the note is repayable
upon expiration of Mr. Scott's employment agreement with the Company. See
"Management--Employment Agreements."
The Company has entered into employment agreements with certain of its
directors and officers. See "Management--Employment Agreements."
POLICY REGARDING FUTURE AFFILIATE TRANSACTIONS
All future transactions, including loans, between the Company and its
officers, directors, principal stockholders and their affiliates will be
approved by a majority of the Board of Directors, including a majority of the
independent and disinterested outside directors on the Board of Directors.
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DESCRIPTION OF CAPITAL STOCK
Effective upon the closing of the offering, the Company will be authorized
to issue up to 120,000,000 shares, $.001 par value, to be divided into two
classes to be designated, respectively, "Common Stock" and "Preferred Stock." Of
such shares authorized, 115,000,000 shares shall be designated as Common Stock,
of which 35,000,000 shares shall be designated Class B Common Stock, and
5,000,000 as Preferred Stock.
COMMON STOCK
As of February 28, 1997, there were 19,236,882 shares of Common Stock
outstanding that were held of record by approximately 39 stockholders (assuming
conversion of all shares of Preferred Stock and borrowings under the convertible
loan arrangement outstanding as of February 28, 1997). There will be 24,236,882
shares of Common Stock outstanding (assuming no exercise of the Underwriters'
overallotment options and no exercise of outstanding options) after giving
effect to the sale of Common Stock offered to the public by the Company hereby.
The holders of Common Stock are entitled to one vote for each share held of
record on all matters submitted to a vote of the stockholders. The Company does
not have cumulative voting rights in the election of directors, and accordingly,
holders of a majority of the shares voting are able to elect all of the
directors. Subject to preferences that may be granted to any then outstanding
Preferred Stock, holders of Common Stock are entitled to receive ratably such
dividends as may be declared by the Board of Directors out of funds legally
available therefor as well as any distributions to the stockholders. See
"Dividend Policy." In the event of a liquidation, dissolution or winding up of
the Company, holders of Common Stock are entitled to share ratably in all assets
of the Company remaining after payment of liabilities and the liquidation
preference of any then outstanding Preferred Stock. Holders of Common Stock have
no preemptive or other subscription of conversion rights. There are no
redemption or sinking fund provisions applicable to the Common Stock.
CLASS B COMMON STOCK
All 29,406,982 shares of Class B Common Stock will be issued upon conversion
of certain shares of Series A Preferred Stock and Series B Preferred Stock at or
prior to the closing of this offering, and will be held by Warburg. The Class B
Common Stock has the same rights, preferences, privileges and restrictions as
the Common Stock, except that the Class B Common Stock is convertible into
Common Stock, has no voting rights (except as required by Delaware law) and has
no right to vote for the election of directors. The shares of Class B Common
Stock will, upon any transfer of such shares by Warburg, be automatically
converted into a like number of shares of Common Stock, subject to adjustment
upon certain events with respect to the Common Stock. The shares of Class B
Common Stock are also convertible at the option of Warburg into Common Stock, so
long as such conversion results in Warburg holding equal to or less than 49% of
the Company's outstanding voting securities.
PREFERRED STOCK
Effective upon the closing of the offering and pursuant to the Company's
Certificate of Incorporation, the Board of Directors will have the authority,
without further action by the stockholders, to issue up to 5,000,000 shares of
Preferred Stock in one or more series and to fix the rights, preferences,
privileges and restrictions thereof, including dividend rights, conversion
rights, voting rights, terms of redemption, liquidation preferences, sinking
fund terms and the number of shares constituting any series or the designation
of such series, any or all of which may be greater than the rights of Common
Stock, without any further vote or action by stockholders. The issuance of
Preferred Stock could adversely affect the voting power of holders of Common
Stock and the likelihood that such holders will receive dividend payments and
payments upon liquidation and could have the effect of delaying,
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deferring or preventing a change in control of the Company. The Company has no
present plan to issue any shares of Preferred Stock after consummation of the
offering.
REGISTRATION RIGHTS
Pursuant to an investor rights agreement (the "Rights Agreement") entered
into in September 1995 between the Company and holders (the "Holders") of
approximately 47,307,484 shares of the Company's Common Stock, including William
T. Coleman III, Alfred S. Chuang, Edward W. Scott, Jr., and Warburg, the Holders
are entitled to certain rights with respect to the registration of such shares
under the Securities Act of 1933, as amended (the "Securities Act"). In
addition, Warburg has an option, exercisable at Warburg's option within five
days after the closing of the offering, to acquire certain shares of Common
Stock upon conversion of the outstanding amounts under a $10,000,000 line of
credit extended to the Company which shares are also entitled to registration
rights under the Rights Agreement. See "Certain Transactions--Warburg Line of
Credit." If the Company proposes to register any of its securities under the
Securities Act, either for its own account or the account of other security
holders, the Company is required to notify such Holders and to use its best
efforts to effect the registration, and such Holders are entitled to include at
the Company's expense their Registrable Securities (as such term is defined in
the Rights Agreement) in such registration, subject to certain conditions and
limitations. In addition, Holders may also require the Company to file a
registration statement under the Securities Act at the Company's expense with
respect to their shares, and the Company is required to use its diligent
reasonable efforts to effect such registration. Further, Holders may require the
Company to file registration statements on Form S-3 at the Company's expense,
when such form is available for use by the Company. These rights are subject to
certain conditions and limitations, among them the right of the underwriters of
an offering to limit the number of shares included in such registration and the
right of the Company not to effect a requested registration within six months
following a registered offering of the Company's securities, including the
offering made hereby. See "Certain Transactions--Registration Rights."
ANTITAKEOVER EFFECTS OF PROVISIONS OF THE COMPANY'S CHARTER AND BYLAWS
Upon completion of the offering, the Certificate of Incorporation of the
Company will provide for the Board of Directors to be divided into three
classes, with staggered three-year terms. As a result, only one class of
directors will be elected at each annual meeting of stockholders of the Company,
with the other classes continuing for the remainder of their respective
three-year terms. Stockholders will have no cumulative voting rights and the
Company's stockholders representing a majority of the shares of Common Stock
outstanding are able to elect all of the directors. The Company's Bylaws will
also provide that all stockholder action must be effected at a duly called
meeting of stockholders and not by a consent in writing; the Bylaws provide that
only the Company's Chief Executive Officer, the President of the Company and the
Board of Directors may call a special meeting of stockholders.
The classification of the Board of Directors and lack of cumulative voting
will make it more difficult for the Company's existing stockholders to replace
the Board of Directors as well as for another party to obtain control of the
Company by replacing the Board of Directors. Since the Board of Directors has
the power to retain and discharge officers of the Company, these provisions
could also make it more difficult for existing stockholders or another party to
effect a change in management.
These and other provisions may have the effect of deterring hostile
takeovers or delaying changes in control or management of the Company. These
provisions are intended to enhance the likelihood of continued stability in the
composition of the Board of Directors and in the policies furnished by the Board
of Directors and to discourage certain types of transactions that may involve an
actual or threatened change of control of the Company. These provisions are
designed to reduce the vulnerability of the Company to an unsolicited
acquisition proposal. The provisions also are intended to discourage certain
tactics that may be used in proxy fights. However, such provisions could have
the effect of discouraging
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others from making tender offers for the Company's shares and, as a consequence,
they also may inhibit fluctuations in the market price of the Company's shares
that could result from actual or rumored takeover attempts. Such provisions also
may have the effect of preventing changes in the management of the Company. See
"Risk Factors--Antitakeover Effects of Certificate of Incorporation, Bylaws and
Delaware Law."
SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW
The Company is subject to Section 203 or the Delaware General Corporation
Law ("Section 203"), which, subject to certain exceptions, prohibits a Delaware
corporation from engaging in any business combination with any interested
stockholder for a period of three years following the date that such stockholder
became an interested stockholder, unless: (i) prior to such date, the Board of
Directors of the corporation approved either the business combination or the
transaction that resulted in the stockholder becoming an interested holder, (ii)
upon consummation of the transaction that that resulted in the stockholder
becoming an interested stockholder, the interested stockholder owned at least
85% of the voting stock of the corporation outstanding at the time the
transaction commenced, excluding for purposes of determining the number of
shares outstanding those shares owned (a) by persons who are directors and also
officers and (b) by employee stock plans in which employee participants do not
have the right to determine confidentially whether shares held subject to the
plan will be tendered in a tender or exchange offer; or (iii) at or subsequent
to such time, the business combination is approved by the board of directors and
authorized at an annual or special meeting of stockholders, and not by written
consent, by the affirmative vote of at least 66 2/3% of the outstanding voting
stock which is not owned by the interested stockholder.
In general, Section 203 defines business combination to include: (i) any
merger or consolidation involving the corporation and the interested
stockholder, (ii) any sale, transfer, pledge or other disposition of 10% or more
of the assets of the corporation involving the interested stockholder, (iii)
subject to certain exceptions, any transaction that results in the issuance or
transfer by the corporation of any stock of the corporation to the interested
stockholder, (iv) any transaction involving the corporation that has the effect
of increasing the proportionate share of the stock or any class or series of the
corporation beneficially owned by the interested stockholder or (v) the receipt
by the interested stockholder of the benefit of any loss, advances, guarantees,
pledges or other financial benefits by or through the corporation. In general,
Section 203 defines interested stockholder as an entity or person beneficially
owning 15% or more of the outstanding voting stock of the corporation and any
entity or person affiliated with or controlling or controlled by such entity or
person. See "Risk Factors--Antitakeover Effects of Certificate of Incorporation,
Bylaws and Delaware Law."
LISTING
The Common Stock has been approved for quotation on the Nasdaq National
Market under the symbol "BEAS."
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Common Stock of the Company is
Boston EquiServe. Its address is 150 Royall Street, Canton, Massachusetts 02021,
and its telephone number is (617) 575-3120.
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SHARES ELIGIBLE FOR FUTURE SALE
Sales of a substantial number of shares of Common Stock after the offering
could adversely affect the market price of the Common Stock and could impair the
Company's ability to raise capital through the sale of equity securities. Upon
completion of the offering, the Company will have 53,643,864 shares of Common
Stock (including 29,406,982 shares of Common Stock issuable upon conversion of
the Class B Common Stock) outstanding based on shares outstanding as of February
28, 1997. Of these shares, the 5,000,000 shares sold in the offering will be
freely transferable without restriction under the Securities Act, unless they
are held by "affiliates" of the Company as that term is used under the
Securities Act and the Regulations promulgated thereunder.
The remaining 48,643,864 outstanding shares were sold by the Company in
reliance on exemptions from the registration requirements of the Securities Act
and are restricted securities within the meaning of Rule 144 under the
Securities Act. None of these shares will be eligible for sale in the public
market at the effective date of the Registration Statement of which this
Prospectus is a part (the "Effective Date"). Beginning 180 days after the date
of this Prospectus, approximately 47,443,272 additional shares will become
eligible for sale subject to the provisions of Rule 144 or Rule 701 upon the
expiration of agreements not to sell such shares entered into with Goldman,
Sachs & Co. or the Company. The remainder of the shares will be eligible for
sale from time to time thereafter upon expiration of their respective one-year
holding period, subject in each case to the restrictions on such sales by
affiliates of the Company. Beginning 180 days after the date of this Prospectus,
approximately 2,007,598 additional shares subject to vested options as of the
date of this Prospectus will be available for sale subject to compliance with
Rule 701 and upon the expiration of agreements not to sell such shares entered
into with Goldman, Sachs & Co. or the Company. In addition, 428,571 additional
shares (assuming the consummation of the Digital agreement and an initial
offering price of $7.00 per share) subject to outstanding warrants will be
available for sale 180 days after the date of this prospectus. The remainder of
the shares will be eligible for sale from time to time thereafter upon
expiration of their respective one-year holding periods, subject in each case to
the restrictions on such sales by affiliates of the Company. Any shares subject
to lock-up agreements may be released at any time without notice by Goldman,
Sachs & Co.
As soon as practicable after the Effective Date, the Company intends to file
a registration statement on Form S-8 under the Securities Act to register shares
of Common Stock reserved for issuance under the 1995 Flexible Stock Incentive
Plan, the 1997 Stock Incentive Plan and the 1997 Employee Stock Purchase Plan,
thus permitting the resale of such shares by non-affiliates in the public market
without restriction under the Securities Act unless subject to lock-up
agreements. Such registration statement will become effective immediately upon
filing.
Prior to the offering, there has been no public market for the Common Stock
of the Company, and any sale of substantial amounts in the open market may
adversely affect the market price of the Common Stock offered hereby. See "Risk
Factors--Potential Effect of Shares Eligible for Future Sale on Market Price of
Common Stock."
LEGAL MATTERS
The validity of the Common Stock offered hereby will be passed upon for the
Company by Morrison & Foerster LLP, Palo Alto, California. A partner at Morrison
& Foerster LLP owns 50,000 shares of Common Stock of the Company. Certain legal
matters in connection with the offerings will be passed upon for the
Underwriters by Wilson Sonsini Goodrich & Rosati, Professional Corporation, Palo
Alto, California.
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EXPERTS
The consolidated balance sheets of BEA Systems, Inc. as of January 31, 1996
and January 31, 1997, and the consolidated statements of operations, redeemable,
convertible preferred stock and stockholders' equity (deficit) and cash flows
for the years ended January 31, 1996 and 1997, appearing in this Prospectus and
Registration Statement have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon appearing elsewhere herein, and
are included in reliance upon such report given upon the authority of such firm
as experts in accounting and auditing.
The balance sheets of Information Management Company as of December 31, 1994
and September 29, 1995, and the statements of operations and retained earnings
(deficit) and cash flows for the year ended December 31, 1994 and for the nine
months ended September 29, 1995, appearing in this Prospectus and Registration
Statement have been audited by Ernst & Young LLP, independent auditors, as set
forth in their report thereon appearing elsewhere herein, and are included in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
The statements of operations and cash flows of Independent Technologies,
Inc. for the period from January 1, 1995 to November 1, 1995, appearing in this
Prospectus and Registration Statement have been audited by Ernst & Young LLP,
independent auditors, as set forth in their report thereon appearing elsewhere
herein, and are included in reliance upon such report given upon the authority
of such firm as experts in accounting and auditing.
The consolidated balance sheet of USL Finance S.A. as of May 5, 1996, and
the consolidated statements of operations, shareholders' equity and cash flows
for the period from November 1, 1995 to May 5, 1996, appearing in this
Prospectus and Registration Statement have been audited by Ernst & Young Audit,
independent auditors, as set forth in their report thereon appearing elsewhere
herein, and are included in reliance upon such report given upon the authority
of such firm as experts in accounting and auditing.
ADDITIONAL INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission"), Washington, D.C. 20549, a Registration Statement on Form SB-2
under the Securities Act of 1933, as amended, with respect to the Common Stock
offered hereby. This Prospectus does not contain all of the information set
forth in the Registration Statement and the exhibits and schedules thereto.
Certain items are omitted in accordance with the rules and regulations of the
Commission. For further information with respect to the Company and the Common
Stock offered hereby, reference is made to the Registration Statement and the
exhibits and schedules filed as a part thereof. Statements contained in this
Prospectus as to the contents of any contract or any other document referred to
are not necessarily complete, and, in each instance, if such contract or
document is filed as an exhibit, reference is made to the copy of such contract
or document filed as an exhibit to the Registration Statement, each such
statement being qualified in all respects by such reference to such exhibit. The
Registration Statement, including exhibits and schedules thereto, may be
inspected without charge at the public reference facilities maintained by the
Commission in Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the Commission's regional offices located at the North Western Atrium Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and Seven World
Trade Center, 13th Floor, New York, NY 10048, and copies of all or any part
thereof may be obtained from such office after payment of fees prescribed by the
Commission. The Commission maintains a web site at http://www.sec.gov that
contains, reports, proxy and information statements and other information
regarding registrants that file electronically with the Commission.
70
<PAGE>
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<S> <C>
BEA SYSTEMS, INC.
CONSOLIDATED FINANCIAL STATEMENTS--YEARS ENDED JANUARY 31, 1996 AND 1997
Report of Ernst & Young LLP, Independent Auditors.................................... F-2
Consolidated Balance Sheets........................................................ F-3
Consolidated Statements of Operations.............................................. F-4
Consolidated Statements of Redeemable Convertible Preferred Stock and
Stockholders' Equity (Deficit)................................................... F-5
Consolidated Statements of Cash Flows.............................................. F-6
Notes to Consolidated Financial Statements......................................... F-7
INFORMATION MANAGEMENT COMPANY
FINANCIAL STATEMENTS--YEAR ENDED DECEMBER 31, 1994 AND NINE MONTHS ENDED SEPTEMBER
29, 1995
Report of Ernst & Young LLP, Independent Auditors.................................... F-25
Balance Sheets..................................................................... F-26
Statements of Operations and Retained Earnings (Deficit)........................... F-27
Statements of Cash Flows........................................................... F-28
Notes to Financial Statements...................................................... F-29
INDEPENDENCE TECHNOLOGIES, INC.
STATEMENTS OF OPERATIONS AND CASH FLOWS--FOR THE PERIOD FROM JANUARY 1, 1995 TO
NOVEMBER 1, 1995
Report of Ernst & Young LLP, Independent Auditors.................................... F-33
Statement of Operations............................................................ F-34
Statement of Cash Flows............................................................ F-35
Notes to Statements of Operations and Cash Flows................................... F-36
USL FINANCE S.A.
CONSOLIDATED FINANCIAL STATEMENTS--FOR THE PERIOD FROM NOVEMBER 1, 1995 TO
MAY 5, 1996
Report of Ernst & Young Audit, Independent Auditors.................................. F-39
Consolidated Balance Sheet......................................................... F-40
Consolidated Statement of Operations............................................... F-41
Consolidated Statement of Shareholders' Equity..................................... F-42
Consolidated Statement of Cash Flows............................................... F-43
Notes to Consolidated Financial Statements......................................... F-44
</TABLE>
F-1
<PAGE>
REPORT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
The Board of Directors and Stockholders
BEA Systems, Inc.
We have audited the accompanying consolidated balance sheets of BEA Systems,
Inc. as of January 31, 1996 and 1997, and the related consolidated statements of
operations, redeemable convertible preferred stock and stockholders' equity
(deficit), and cash flows for the years then ended. These financial statements
are the responsibility of the Company's management. Our responsibility is to
express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the consolidated financial position of BEA Systems,
Inc. at January 31, 1996 and 1997, and the consolidated results of its
operations and its cash flows for the years then ended, in conformity with
generally accepted accounting principles.
/s/ ERNST & YOUNG LLP
San Jose, California
March 10, 1997, except for Note 14,
as to which the date is March 19, 1997
F-2
<PAGE>
BEA SYSTEMS, INC.
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
JANUARY 31,
-------------------------
1996 1997
----------- -----------
PRO FORMA
STOCKHOLDERS'
EQUITY
(DEFICIT) AT
JANUARY 31,
1997
(SEE NOTE 11)
---------------
(UNAUDITED)
ASSETS
<S> <C> <C> <C>
Current assets:
Cash and cash equivalents..................................................... $ 4,549 $ 3,283
Accounts receivable, net of allowance for doubtful accounts of $400 at January
31, 1996 and $1,095 at January 31, 1997..................................... 3,725 24,778
Prepaid expenses and other current assets..................................... 752 3,083
----------- -----------
Total current assets............................................................ 9,026 31,144
Property and equipment, net..................................................... 456 6,648
Acquired intangible assets, net................................................. 8,751 17,226
Note receivable from officer.................................................... 720 720
Other assets.................................................................... -- 2,235
----------- -----------
Total assets.................................................................... $ 18,953 $ 57,973
----------- -----------
----------- -----------
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)
Current liabilities:
Borrowings under line of credit............................................... $ -- $ 9,050
Accounts payable.............................................................. 772 3,488
Accrued payroll and related liabilities....................................... 800 6,597
Accrued sales tax............................................................. 949 1,573
Other accrued liabilities..................................................... 1,032 6,030
Royalties payable............................................................. 777 327
Deferred revenue.............................................................. 2,146 8,697
Current portion of notes payable and capital lease obligations................ 40 28,180
----------- -----------
Total current liabilities....................................................... 6,516 63,942
Notes payable and capital lease obligations..................................... 4,287 49,540
Commitments.....................................................................
Series B redeemable convertible preferred stock, $0.001 par value:
Authorized shares--20,000,000
Issued and outstanding shares--6,060,000 at January 31, 1996 and 19,847,800 at
January 31, 1997, (none pro forma); liquidation preference of $20,780 at
January 31, 1997............................................................ 6,112 20,780 $--
Stockholders' equity (deficit):
Series A preferred stock, $0.001 par value.................................... 11 17 --
Authorized shares--20,000,000
Issued and outstanding shares--11,100,000 at January 31, 1996 and 17,166,000
at January 31, 1997, (none pro forma); liquidation preference of $29,182
at January 31, 1997.......................................................
Common stock, $0.001 par value................................................ 8 11 48
Authorized shares--80,000,000
Issued and outstanding shares--8,274,000 at January 31, 1996 and 10,747,787
at January 31, 1997, and 48,425,363 pro forma.............................
Additional paid-in capital...................................................... 20,355 32,335 54,095
Notes receivable from stockholders.............................................. (544) (544) (544)
Deferred compensation........................................................... -- (845) (845)
Cumulative translation adjustment............................................... -- 74 74
Accumulated deficit............................................................. (17,792) (107,337) (107,337)
----------- ----------- ---------------
Stockholders' equity (deficit).................................................. 2,038 (76,289) $(54,509)
----------- ----------- ---------------
---------------
Total liabilities and stockholders' equity (deficit)............................ $ 18,953 $ 57,973
----------- -----------
----------- -----------
</TABLE>
See accompanying notes.
F-3
<PAGE>
BEA SYSTEMS, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
YEAR ENDED JANUARY 31,
--------------------------
1996 1997
------------ ------------
<S> <C> <C>
Revenues:
License............................................................................. $ 3,569 $ 46,839
Service............................................................................. 1,564 14,759
------------ ------------
Total revenues.................................................................... 5,133 61,598
Cost of revenues:
License............................................................................. 1,929 10,287
Service............................................................................. 775 8,320
------------ ------------
Total cost of revenues............................................................ 2,704 18,607
------------ ------------
Gross margin.......................................................................... 2,429 42,991
Operating expenses:
Research and development............................................................ 3,244 18,183
Sales and marketing................................................................. 2,572 30,970
General and administrative.......................................................... 3,058 12,732
Write-off of in-process research and development.................................... 11,194 62,248
------------ ------------
Total operating expenses.............................................................. 20,068 124,133
------------ ------------
Income (loss) from operations......................................................... (17,639) (81,142)
Interest expense...................................................................... (89) (6,727)
Other income (expense)................................................................ 48 4
------------ ------------
Income (loss) before income taxes..................................................... (17,680) (87,865)
Provision for income taxes............................................................ 60 800
------------ ------------
Net income (loss)..................................................................... $ (17,740) $ (88,665)
------------ ------------
------------ ------------
Pro forma net income (loss) per share................................................. $ (1.73)
------------
------------
Shares used in computing pro forma net income (loss) per share........................ 51,162
------------
------------
</TABLE>
See accompanying notes.
F-4
<PAGE>
BEA SYSTEMS, INC.
CONSOLIDATED STATEMENT OF REDEEMABLE CONVERTIBLE PREFERRED STOCK AND
STOCKHOLDERS' EQUITY (DEFICIT)
YEARS ENDED JANUARY 31, 1996 AND 1997
(IN THOUSANDS, EXCEPT SHARES)
<TABLE>
<CAPTION>
STOCKHOLDERS' EQUITY (DEFICIT)
SERIES B ------------------------------------------------------------------
REDEEMABLE CONVERTIBLE
SERIES A
PREFERRED STOCK PREFERRED STOCK COMMON STOCK ADDITIONAL
----------------------- ------------------ ------------------ PAID-IN ACCUMULATED
SHARES AMOUNT SHARES AMOUNT SHARES AMOUNT CAPITAL DEFICIT
---------- ----------- ---------- ------ ---------- ------ ---------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Issuance of common stock...... -- $-- -- $-- 8,000,000 $ 8 $ 1,446 $ --
Exercise of stock options..... -- -- -- -- 100,000 -- 1 --
Issuance of preferred stock... -- -- 11,100,000 11 -- -- 18,859 --
Issuance of Series B
redeemable convertible
preferred stock.............. 6,060,000 6,060 -- -- -- -- -- --
Accretion of cumulative
dividends on Series B
redeemable convertible
preferred stock.............. -- 52 -- -- -- -- -- (52)
Issuance of common stock for
services..................... -- -- -- -- 174,000 -- 49 --
Net loss...................... -- -- -- -- -- -- -- (17,740)
---------- ----------- ---------- ------ ---------- ------ ---------- -----------
Balance at January 31, 1996... 6,060,000 6,112 11,100,000 11 8,274,000 8 20,355 (17,792)
Issuance of preferred stock... -- -- 6,066,000 6 -- -- 10,306 --
Issuance of common stock...... -- -- -- -- 2,000,000 2 568 --
Exercise of stock options..... -- -- -- -- 403,787 1 113 --
Issuance of Series B
redeemable convertible
preferred stock.............. 13,787,800 13,788 -- -- -- -- -- --
Accretion of cumulative
dividends on Series B
redeemable convertible
preferred stock.............. -- 880 -- -- -- -- -- (880)
Issuance of common stock for
services..................... -- -- -- -- 70,000 -- 20 --
Deferred compensation related
to grant of stock options.... -- -- -- -- -- -- 973 --
Amortization of deferred
compensation................. -- -- -- -- -- -- -- --
Translation adjustment........ -- -- -- -- -- -- -- --
Net loss...................... -- -- -- -- -- -- -- (88,665)
---------- ----------- ---------- ------ ---------- ------ ---------- -----------
Balance at January 31, 1997... 19,847,800 $20,780 17,166,000 $17 10,747,787 $11 $32,335 $(107,337)
---------- ----------- ---------- ------ ---------- ------ ---------- -----------
---------- ----------- ---------- ------ ---------- ------ ---------- -----------
<CAPTION>
STOCKHOLDERS' EQUITY (DEFICIT)
---------------------------------------------------------
NOTES TOTAL
RECEIVABLE CUMMULATIVE STOCKHOLDERS'
FROM DEFERRED TRANSLATION EQUITY
STOCKHOLDERS COMPENSATION ADJUSTMENT (DEFICIT)
------------ ------------ ----------- -------------
<S> <C> <C> <C> <C>
Issuance of common stock...... $(544) $-- --$ $ 910
Exercise of stock options..... -- -- -- 1
Issuance of preferred stock... -- -- -- 18,870
Issuance of Series B
redeemable convertible
preferred stock.............. -- -- -- --
Accretion of cumulative
dividends on Series B
redeemable convertible
preferred stock.............. -- -- -- (52)
Issuance of common stock for
services..................... -- -- -- 49
Net loss...................... -- -- -- (17,740)
------ ------ --- -------------
Balance at January 31, 1996... (544) -- -- 2,038
Issuance of preferred stock... -- -- -- 10,312
Issuance of common stock...... -- -- -- 570
Exercise of stock options..... -- -- -- 114
Issuance of Series B
redeemable convertible
preferred stock.............. -- -- -- --
Accretion of cumulative
dividends on Series B
redeemable convertible
preferred stock.............. -- -- -- (880)
Issuance of common stock for
services..................... -- -- -- 20
Deferred compensation related
to grant of stock options.... -- (973) -- --
Amortization of deferred
compensation................. -- 128 -- 128
Translation adjustment........ -- -- 74 74
Net loss...................... -- -- -- (88,665)
------ ------ --- -------------
Balance at January 31, 1997... $(544) $(845) $74 $ (76,289)
------ ------ --- -------------
------ ------ --- -------------
</TABLE>
See accompanying notes.
F-5
<PAGE>
BEA SYSTEMS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
YEAR ENDED
JANUARY 31,
--------------------
1996 1997
--------- ---------
<S> <C> <C>
OPERATING ACTIVITIES
Net loss.................................................................................... $ (17,740) $ (88,665)
Adjustments to reconcile net loss to net cash used in operating activities:
Depreciation and amortization............................................................. 39 1,490
Amortization of deferred compensation..................................................... -- 128
Amortization of intangible assets acquired and write-off of in-process research and
development............................................................................. 12,302 71,054
Issuance of note for compensation......................................................... 1,429 --
Issuance of common stock for services..................................................... 49 20
Changes in assets and liabilities:
Interest accrued........................................................................ 89 329
Accounts receivable..................................................................... (1,510) (13,968)
Prepaid expenses and other current assets............................................... (576) (2,024)
Other assets............................................................................ -- (2,231)
Accounts payable........................................................................ 772 2,598
Accrued payroll and related liabilities................................................. 80 5,797
Other accrued liabilities............................................................... (4,261) (2,743)
Accrued sales tax....................................................................... 949 622
Royalties payable....................................................................... 777 (450)
Deferred revenue........................................................................ 2,146 6,378
--------- ---------
Net cash used in operating activities....................................................... (5,455) (21,665)
--------- ---------
INVESTING ACTIVITIES
Acquisition of property and equipment....................................................... (67) (4,667)
Acquisition of businesses, net of cash acquired............................................. (15,050) (2,566)
Note receivable from officer................................................................ (720) --
--------- ---------
Net cash used in investing activities....................................................... (15,837) (7,233)
--------- ---------
FINANCING ACTIVITIES
Borrowings under line of credit............................................................. -- 9,050
Repayment of principal on notes payable and capital lease obligations....................... -- (7,540)
Proceeds from debt issuances................................................................ -- 1,264
Proceeds from issuance of common and preferred stock........................................ 25,841 24,784
--------- ---------
Net cash provided by financing activities................................................... 25,841 27,558
--------- ---------
Net increase (decrease) in cash and cash equivalents........................................ 4,549 (1,340)
Cumulative translation adjustment........................................................... -- 74
Cash and cash equivalents at beginning of period............................................ -- 4,549
--------- ---------
Cash and cash equivalents at end of period.................................................. $ 4,549 $ 3,283
--------- ---------
--------- ---------
SUPPLEMENTAL CASH FLOW INFORMATION
Cash paid during the period for interest.................................................... $ -- $ 6,285
--------- ---------
--------- ---------
Cash paid for income taxes.................................................................. $ -- $ 230
--------- ---------
--------- ---------
Incurrence of capital lease obligations related to acquisition of equipment................. $ -- $ 1,001
--------- ---------
--------- ---------
Notes issued to acquire businesses.......................................................... $ 2,730 $ 78,217
--------- ---------
--------- ---------
</TABLE>
See accompanying notes.
F-6
<PAGE>
BEA SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
DESCRIPTION OF BUSINESS
BEA Systems, Inc. (the "Company" or "BEA"), a Delaware corporation, was
incorporated on January 20, 1995. The Company designs, develops, markets, and
supports the BEA Enterprise Transaction Framework, an integrated middleware
software platform for building, deploying, and managing distributed
mission-critical computer software applications. In addition to its software
products, the Company provides customer solutions through a range of
professional services offerings.
BASIS OF PRESENTATION
On September 30, 1995, the Company acquired all of the shares of Information
Management Company ("IMC") for approximately $10,420,000. The transaction was
recorded using the purchase method of accounting. Accordingly, a new basis of
accounting was established based on the purchase price. See Note 2.
The accompanying consolidated financial statements include the accounts of
the Company and its wholly owned subsidiaries. All intercompany transactions and
balances have been eliminated. Operations of businesses acquired and accounted
for as purchases are consolidated as of the date of acquisition. The Company had
no operating activity from inception through January 31, 1995. Accordingly,
operating results for the year ending January 31, 1996 reflect the period from
incorporation (January 20, 1995) to January 31, 1996.
The Company has incurred operating losses to date, including a net loss of
approximately $88.7 million for the year ended January 31, 1997. At January 31,
1997, the Company had a stockholders' deficit of approximately $76.3 million and
current liabilities exceeded current assets by approximately $32.8 million. The
majority shareholder of the Company has guaranteed certain payment obligations
of the Company as discussed in Note 6. In addition, in January 1997, the Company
received a $10,000,000 unsecured line of credit from the majority stockholder.
The Company anticipates additional equity funding will be needed to finance
expected operations in the fiscal year ending January 31, 1998 and for existing
obligations. If such additional equity funding is not available, management
believes, based on anticipated operations, that available resources combined
with the majority shareholder line of credit and debt payment guaranty will
provide sufficient resources to enable the Company to meet its obligations
through at least January 31, 1998. If anticipated operations are not achieved,
management has the intent and believes it has the ability to delay or reduce
expenditures so as not to require additional financial resources if such
resources were not available.
USE OF ESTIMATES
The preparation of the financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amount of assets and liabilities at the
date of the financial statements and the reported amounts of revenues and
expenses during the reporting period. Actual results could differ from those
estimates.
CONCENTRATION OF CREDIT RISK
The Company sells its products to customers, typically large corporations,
in a variety of industries in North America, Europe, and Asia/Pacific. The
Company performs ongoing credit evaluations of its
F-7
<PAGE>
BEA SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
customers and generally does not require collateral. The Company maintains
reserves for estimated credit losses and such losses have been within
management's expectations.
FOREIGN CURRENCY TRANSLATION
The functional currency of the Company's foreign subsidiaries is the local
currency of the respective subsidiary. The Company translates the assets and
liabilities of its foreign subsidiaries to U.S. dollars at the rates of exchange
in effect at the end of the period, while revenues and expenses are translated
at average rates during the period. Gains and losses from currency translation
are included in stockholders' equity (deficit). Currency transaction gains or
losses are recognized in current operations.
CASH AND CASH EQUIVALENTS
Cash and cash equivalents include cash and highly liquid investments with
insignificant interest rate risk and maturities of three months or less at the
date of purchase.
PROPERTY AND EQUIPMENT
Property and equipment are stated at cost. Depreciation is computed using
the straight-line method over the estimated useful lives of the assets which
range from three to five years. Assets under capital leases and leasehold
improvements are amortized over the shorter of the asset life or the remaining
lease term. The related amortization expense is included in depreciation
expense.
INTANGIBLE ASSETS
Intangible assets consist of developed technology, distribution rights,
trademarks and tradenames and goodwill related to acquisitions accounted for by
the purchase method. See Note 2. Amortization of these purchased intangibles is
provided on the straight-line basis over the respective useful lives of the
assets ranging from twenty-four to thirty months for developed technology and
distribution rights to sixty months for trademarks and tradenames and goodwill.
Acquired in-process research and development without alternative future use is
expensed when acquired.
FAIR VALUE OF FINANCIAL INSTRUMENTS
The estimated fair value amounts discussed below have been determined by the
Company using available market information and appropriate valuation
methodologies. However, considerable judgment is required in interpreting market
data to develop the estimates of fair value. Accordingly, the estimates
presented herein are not necessarily indicative of the amounts that the Company
could realize in a current market exchange.
The Company maintains its cash and cash equivalents principally with major
banks. At January 31, 1996 and 1997, the Company had $3.8 million and $19,000,
respectively, of cash and cash equivalents invested in money market mutual funds
which invest in various short-term corporate debt instruments and U.S. Treasury
bills. The carrying value of these investments by the Company approximate their
market value, and therefore, no unrealized gains or losses exist at January 31,
1996 or 1997.
At January 31, 1997, the carrying value of notes receivable from
stockholders approximates their fair value. The fair values of notes receivable
from officers and stockholders are estimated using discounted
F-8
<PAGE>
BEA SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
cash flow analyses, based on interest rates currently being offered for loans
with similar terms to borrowers of similar credit quality.
The fair value of short-term and long-term debt is estimated based on
current interest rates available to the Company for debt instruments with
similar terms, the degree of risk, and remaining maturities. The carrying values
of the loans approximate their respective fair values.
PRODUCT CONCENTRATION
The Company currently derives the majority of its revenue from the licensing
of products in its BEA TUXEDO product line and fees from related services. These
products and services are expected to continue to account for the majority of
the Company's revenue for the foreseeable future. Furthermore, under the terms
of its agreement with Novell, Inc., the Company is obligated to make certain
payments to Novell through January 1999 as discussed in Note 6 to acquire
perpetual rights to the TUXEDO product. Failure by the Company for any reason to
make these payments could terminate the Company's continuing rights to BEA
TUXEDO. A reduction in demand for, or an increase in competition on these
products, or a decline in sales of such products, would adversely affect
operating results.
REVENUE RECOGNITION
The Company recognizes revenues in accordance with American Institute of
Certified Public Accountants Statement of Position 91-1, SOFTWARE REVENUE
RECOGNITION. Revenues from software license agreements are recognized at the
time of product shipment, provided there are no vendor obligations remaining to
be fulfilled and collectibility is probable. Ongoing license royalties are
recognized on an as-reported basis by the Company's licensees.
Service revenues include consulting services, post-contract customer support
and training. Consulting revenues and the related cost of these revenues are
generally recognized on a time and materials basis; however, revenue from
certain fixed price contracts are recognized on the percentage of completion
basis, which involves the use of estimates. Actual results could differ from
those estimates and, as a result, future profitability on such contracts may be
more or less than planned. The amount of consulting contracts recognized on a
percentage of completion basis has not been material to date. Post-contract
customer support revenues are recognized ratably over the term of the support
period (generally one year), and training and other service revenues are
recognized as the related services are provided. The unrecognized portion of
amounts paid in advance for licenses and services is reported as deferred
revenues.
RESEARCH AND DEVELOPMENT
Research and development expenditures are generally charged to operations as
incurred. Statement of Financial Accounting Standards No. 86, ACCOUNTING FOR THE
COSTS OF COMPUTER SOFTWARE TO BE SOLD, LEASED OR OTHERWISE MARKETED, requires
the capitalization of certain software development costs subsequent to the
establishment of technological feasibility. Based on the Company's product
development process, technological feasibility is established upon the
completion of a working model. Costs incurred by the Company between the
completion of the working model and the point at which the product is ready for
general release have been insignificant. Accordingly, the Company has charged
all such costs to research and development expense in the period incurred.
F-9
<PAGE>
BEA SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
STOCK-BASED COMPENSATION
In October 1995, the FASB issued Statement of Financial Accounting Standards
No. 123, ACCOUNTING FOR STOCK-BASED COMPENSATION ("FAS 123"). FAS 123 allows
companies that have stock-based compensation arrangements with employees to
adopt a new fair-value basis of accounting for stock options and other equity
instruments, or to continue to apply the existing accounting rules under APB
Opinion No. 25, ACCOUNTING FOR STOCK ISSUED TO EMPLOYEES ("APB 25"), but with
additional financial statement disclosure. The Company has continued to account
for stock-based compensation arrangements under APB 25; therefore, FAS 123 did
not have a material impact on its financial position, results of operations or
cash flows.
NET LOSS PER SHARE
Except as noted below, historical net loss per share is computed using the
weighted average number of common shares outstanding. Common equivalent shares
from common stock options and convertible preferred stock are excluded from the
computation as their effect is antidilutive, except that, pursuant to the
Securities and Exchange Commission ("SEC") Staff Accounting Bulletins, common
and common equivalent shares issued during the period commencing twelve months
prior to the initial filing of a proposed public offering at prices below the
assumed public offering price have been included in the calculation as if they
were outstanding for all periods presented (using the treasury stock method at
an assumed offering price per share for stock options and the if-converted
method for preferred stock). Per share information calculated on the above noted
basis is as follows:
<TABLE>
<CAPTION>
YEAR ENDED JANUARY
31,
--------------------
1996 1997
--------- ---------
Net loss per share......................................................... $(0.74) $(3.09)
<S> <C> <C>
--------- ---------
Shares used in calculating net loss per share (in thousands)............... 24,128 28,962
--------- ---------
--------- ---------
</TABLE>
Pro forma net loss per share has been computed as described above and also
gives effect, pursuant to SEC policy, to common equivalent shares from
convertible preferred stock issued more than twelve months from the proposed
initial public offering that will convert upon completion of the Company's
initial public offering (using the if-converted method) from the original date
of issuance.
2. BUSINESS COMBINATIONS AND TECHNOLOGY ACQUISITIONS
ACQUISITION OF INFORMATION MANAGEMENT COMPANY
On September 30, 1995, the Company acquired 100% of the outstanding shares
of Information Management Company ("IMC"). The purchase price (including direct
acquisition costs) was approximately $10,420,000 and consisted of cash and the
issuance of notes payable to the founders of IMC totaling approximately
$2,730,000. The Company has accounted for the acquisition using the purchase
method, and the results of operations of IMC are included in the Company's
operations since acquisition.
F-10
<PAGE>
BEA SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
2. BUSINESS COMBINATIONS AND TECHNOLOGY ACQUISITIONS (CONTINUED)
The following is a summary of the purchase price allocation (IN THOUSANDS):
<TABLE>
<S> <C>
Current assets and other tangible assets.......................... $ 1,438
Liabilities assumed............................................... (2,131)
Acquired in-process research and development...................... 5,200
Developed technology.............................................. 4,780
Trademarks and tradenames......................................... 200
Goodwill.......................................................... 933
---------
$ 10,420
---------
---------
</TABLE>
ACQUISITION OF INDEPENDENCE TECHNOLOGIES, INC.
On November 2, 1995, the Company acquired 100% of the outstanding shares of
Independence Technologies, Inc. ("ITI"). The purchase price (including direct
acquisition costs) was approximately $7,520,000 which was paid in cash. The
Company has accounted for the acquisition using the purchase method, and the
results of operations of ITI are included in the Company's operations since
acquisition.
The following is a summary of the purchase price allocation (IN THOUSANDS):
<TABLE>
<S> <C>
Current assets and other tangible assets.......................... $ 1,681
Liabilities assumed............................................... (3,241)
Acquired in-process research and development...................... 5,134
Developed technology.............................................. 3,946
---------
$ 7,520
---------
---------
</TABLE>
ACQUISITION OF TUXEDO PRODUCT LINE
On February 23, 1996, the Company entered into a license agreement with
Novell, Inc. ("Novell") and acquired exclusive rights to distribute and make
enhancements to Novell's TUXEDO product on UNIX, Windows NT, and all non-NetWare
platforms. In addition, the Company has assumed Novell's obligations and rights
under all contracts with TUXEDO partners, distributors and customers, and has
exclusive rights to the TUXEDO trademark. The purchase price (including direct
acquisition costs) was approximately $77,500,000 and consists primarily of a
note payable to Novell with fixed payment terms. See Note 6.
The following is a summary of the purchase price allocation (IN THOUSANDS):
<TABLE>
<S> <C>
Receivables and other tangible assets............................. $ 4,270
Liabilities assumed............................................... (702)
Acquired in-process research and development...................... 60,948
Developed technology.............................................. 9,825
Trademarks and tradenames......................................... 3,159
---------
$ 77,500
---------
---------
</TABLE>
F-11
<PAGE>
BEA SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
2. BUSINESS COMBINATIONS AND TECHNOLOGY ACQUISITIONS (CONTINUED)
ACQUISITION OF USL FINANCE, S.A., A FRENCH CORPORATION
On May 5, 1996, the Company acquired 100% of the outstanding shares of USL
Finance, S.A. ("USL"), a distributor of BEA TUXEDO in France. The purchase price
(including direct acquisition costs) was approximately $3,250,000 which was paid
in cash. The Company has accounted for the acquisition using the purchase
method, and the results of operations of USL are included in the Company's
operations since acquisition.
The following is a summary of the purchase price allocation (IN THOUSANDS):
<TABLE>
<S> <C>
Current assets and other tangible assets........................... $ 6,060
Liabilities assumed................................................ (5,482)
Distribution rights................................................ 2,672
---------
$ 3,250
---------
---------
</TABLE>
ACQUISITION OF CLIENT SERVER TECHNOLOGIES, OY, A FINNISH CORPORATION
On June 12, 1996, the Company acquired 100% of the outstanding shares in
Client Server Technologies, OY ("CST"), a distributor of BEA TUXEDO in Finland.
The purchase price (including direct acquisition costs) was approximately
$2,163,000 which was paid in cash. The Company has accounted for the acquisition
using the purchase method, and the results of operations of CST are included in
the Company's operations since acquisition.
The following is a summary of the purchase price allocation (IN THOUSANDS):
<TABLE>
<S> <C>
Current assets and other tangible assets........................... $ 1,483
Liabilities assumed................................................ (1,067)
In-process research and development................................ 1,300
Distribution rights................................................ 389
Trademarks and tradenames.......................................... 58
---------
$ 2,163
---------
---------
</TABLE>
ACQUISITION OF BAY TECHNOLOGIES PTY. LIMITED.
On December 23, 1996, the Company acquired 100% of the outstanding shares in
Bay Technologies Pty., Limited ("Bay"), a distributor of BEA Tuxedo in
Australia. The purchase price (including direct acquisition costs) was
approximately $1,006,000 and consisted primarily of a note payable of $915,800.
The Company has accounted for the acquisition using the purchase method, and the
results of operations of Bay Technologies are included in the Company's
operations since acquisition.
F-12
<PAGE>
BEA SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
2. BUSINESS COMBINATIONS AND TECHNOLOGY ACQUISITIONS (CONTINUED)
The following is a summary of the purchase price allocation (IN THOUSANDS):
<TABLE>
<S> <C>
Current assets and other tangible assets........................... $ 121
Liabilities assumed................................................ (293)
Distribution Rights................................................ 1,178
---------
$ 1,006
---------
---------
</TABLE>
OTHER
On August 1, 1995, the Company purchased certain technology of VI Systems,
Inc. for $860,000 in cash. The entire purchase price has been charged to
operations as acquired in-process research and development on the date of
acquisition as substantially all of the technology was to be incorporated in
products under development and had no alternative future use.
PRO FORMA INFORMATION
The following unaudited pro forma summary represents the consolidated
results of operations of the Company as if the acquisitions of TUXEDO from
Novell and USL had occurred at the beginning of the periods presented and does
not purport to be indicative of what would have occurred had the acquisitions
been made as of those dates or the results which may occur in the future. The
operating results of the acquisitions of CST and Bay have not been included in
the below pro forma amounts as the effect is immaterial.
<TABLE>
<CAPTION>
YEAR ENDED
JANUARY 31,
1997
-----------
(UNAUDITED,
IN
THOUSANDS)
<S> <C>
Pro forma net revenues......................................... $ 62,521
-----------
-----------
Pro forma net loss............................................. $ (89,040)
-----------
-----------
Pro forma net loss per share................................... $ (1.74)
-----------
-----------
</TABLE>
The unaudited pro forma results include the historical operations of the
Company and the historical operations of the acquired businesses adjusted to
reflect the amortization of the excess purchase prices and an increase in
interest expense resulting from additional debt used to finance the
acquisitions. The pro forma results do not include any adjustments for the
Company's proposed initial public offering.
3. ACQUIRED INTANGIBLE ASSETS
Values assigned to acquired in-process research and development,
distribution rights, developed technology, and trademarks and tradenames were
generally determined by independent appraisals using discounted cash flow
analysis. To determine the value of the in-process research and development, the
Company considered, among other factors, the state of development of each
project, the time and cost needed to complete each project, expected income, and
associated risks which included the inherent difficulties and uncertainties in
completing the project and thereby achieving technological feasibility and risks
related to the viability of and potential changes to future target markets.
F-13
<PAGE>
BEA SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
3. ACQUIRED INTANGIBLE ASSETS (CONTINUED)
This analysis results in amounts assigned to in-process research and development
projects that had not yet reached technological feasibility (as defined and
utilized by the Company in assessing software capitalization) and does not have
alternative future uses. To determine the value of the distribution rights, the
Company considered, among other factors, the size of the current and potential
future customer base, quality of existing relationships with customers, the
expected income, and associated risks. Associated risks included the inherent
difficulties and uncertainties in transitioning the business relationships from
the acquired entity to the Company, and risks related to the viability of and
potential changes to future target markets. To determine the value of the
developed technology, the expected future cash flows of each existing technology
product were discounted taking into account risks related to the characteristics
and applications of each product, existing and future markets, and assessments
of the life cycle stage of each product. Based on this analysis, the existing
technology that had reached technological feasibility was capitalized.
<TABLE>
<CAPTION>
JANUARY 31,
--------------------
1996 1997
--------- ---------
(IN THOUSANDS)
<S> <C> <C>
Developed technology and distribution rights........................... $ 8,726 $ 22,790
Trademarks and tradenames.............................................. 200 3,417
Goodwill............................................................... 933 933
--------- ---------
9,859 27,140
Accumulated amortization............................................... (1,108) (9,914)
--------- ---------
Acquired intangible assets, net........................................ $ 8,751 $ 17,226
--------- ---------
--------- ---------
</TABLE>
4. PROPERTY AND EQUIPMENT
Property and equipment consist of the following:
<TABLE>
<CAPTION>
JANUARY 31,
--------------------
1996 1997
--------- ---------
(IN THOUSANDS)
<S> <C> <C>
Computer equipment......................................................... $ 442 $ 2,920
Software................................................................... 4 1,013
Furniture and fixtures..................................................... 11 1,576
Vehicles and other......................................................... 38 40
Leasehold improvements..................................................... -- 1,474
Equipment under capital leases............................................. -- 1,154
--------- ---------
495 8,177
Accumulated depreciation and amortization.................................. (39) (1,529)
--------- ---------
$ 456 $ 6,648
--------- ---------
--------- ---------
</TABLE>
The accumulated amortization of equipment under capital leases at January
31, 1996 and 1997, was $0 and $154, respectively.
F-14
<PAGE>
BEA SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
5. OTHER ASSETS
Included in other assets at January 31, 1997 is $1,450,000 invested in bank
certificates of deposit (CDs) at interest rates ranging from 3.90% to 4.25%. The
CDs' support letters of credit that are required as a security deposits under
certain of the Company's facilities leases and other credit arrangements.
6. LINE OF CREDIT, NOTES PAYABLE AND CAPITAL LEASE OBLIGATIONS
LINES OF CREDIT
At January 31, 1997, the Company had borrowed $9.0 million pursuant to a
revolving line of credit with a commercial lender. The maximum credit available
is $10,000,000 and borrowing availability is based on the aggregate of (i) a
percentage of certain accounts receivable and (ii) $4.0 million. Additional
borrowings available under the line totaled $1.0 million at January 31, 1997.
Borrowings under the credit arrangement bear interest adjusted monthly at the
LIBOR plus 5.125% (10.49% in aggregate at January 31, 1997) and is secured by
substantially all assets of the Company. In addition, the credit agreement
prohibits the Company from paying dividends without the lender's approval. The
credit agreement has a maturity date of April, 1997. However, the lender has
verbally agreed to automatically renew the arrangement through April, 1998 and
allow the Company to borrow up to $10 million regardless of the eligible trade
receivable balance. The credit arrangement was not in place at January 31, 1996.
The Company has available capital lease lines totaling $999,000 at January
31, 1997, which availability expires June 30, 1997.
F-15
<PAGE>
BEA SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
6. LINE OF CREDIT, NOTES PAYABLE AND CAPITAL LEASE OBLIGATIONS (CONTINUED)
NOTES PAYABLE AND CAPITAL LEASE OBLIGATIONS
Notes payable and capital lease obligations consist of the following:
<TABLE>
<CAPTION>
JANUARY 31, JANUARY 31,
1996 1997
------------ ------------
(IN THOUSANDS)
<S> <C> <C>
Subordinated notes payable to founders of IMC bearing interest at 8%. Principal and
interest is payable upon the earlier of a successfully completed public offering of
the Company's common stock generating net proceeds of at least $20,000,000 or
September 2000. Accrued interest of $89 and $430 is included at January 31, 1996 and
1997, respectively.................................................................. $ 4,248 $ 4,589
Note payable to Novell with interest imputed at 8%. The note is due in quarterly
installments of various amounts totalling $64,550,000, which are guaranteed by the
majority shareholder of the Company, with a final payment of $12,000,000 due in
January 1999 upon the Company's exercise of an option to purchase perpetual rights
to TUXEDO........................................................................... -- 69,900
Credit arrangement from the Company's majority stockholder. Borrowings under the
arrangement are unsecured and bear interest at 11%. The maximum credit available is
$10 million. The borrowings under the arrangement are convertible, at the option of
the lender, into shares of Common Stock at the price equal to the borrowings
outstanding divided by the proceeds per share (net of underwriting commissions)
received by the Company upon the successful completion of an initial public
offering. The outstanding borrowings and accrued interest are due upon the earlier
of the successful completion of an initial public offering or July 22, 1998......... -- 1,000
Notes payable to the former shareholders of Bay Technologies Pty., Limited, with
interest imputed at 8% and is payable in quarterly installments ranging from $107 to
$123 during the next two years...................................................... -- 928
Other notes payable, bearing interest ranging from 9%-12% per annum, payable in
installments through October 31, 1997............................................... 79 299
Capital lease obligations............................................................. -- 1,004
------------ ------------
4,327 77,720
Less amounts due within one year...................................................... (40) (28,180)
------------ ------------
Long-term debt and capital obligations due after one year............................. $ 4,287 $ 49,540
------------ ------------
------------ ------------
</TABLE>
F-16
<PAGE>
BEA SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
6. LINE OF CREDIT, NOTES PAYABLE AND CAPITAL LEASE OBLIGATIONS (CONTINUED)
Scheduled maturities of notes payable and capital lease obligations are as
follows:
<TABLE>
<CAPTION>
CAPITAL
NOTES LEASES
PAYABLE OBLIGATIONS
--------- -----------
(IN THOUSANDS)
<S> <C> <C>
Fiscal year ending January 31,
1998................................................................. $ 27,880 $ 422
1999................................................................. 44,199 395
2000................................................................. 4,637 413
--------- -----------
Total................................................................ $ 76,716 1,230
---------
---------
Less amount representing interest.................................... (226)
-----------
Present value of net minimum lease payments.......................... 1,004
Less current portion................................................. (300)
-----------
Noncurrent obligations under capital leases.......................... $ 704
-----------
-----------
</TABLE>
7. NOTES RECEIVABLE FROM SHAREHOLDERS
In September 1995, the Company issued 3,050,000 shares of common stock to
certain officers in exchange for, in aggregate, cash of $325,000 and notes
receivable of $544,250. The notes bear interest at 7% compounded semi-annually
and are due upon the earlier of September 28, 2000 or on thirty days or one year
after termination of employment, depending upon the circumstances of the
termination of employment.
In December 1995, the Company loaned $720,000 to an officer and founder of
the Company for the financing of real property. The note receivable, which is
secured by a deed of trust on the real property, bears interest at 7% per annum
and is due and payable on the earlier of January 1, 2001 or termination of the
founder's employment with the Company. The note may be repaid at any time prior
to the due date.
8. OPERATING LEASE COMMITMENTS
The Company leases its facilities under operating lease arrangements.
Certain of the leases provide for certain specified annual rent increases as
well as options to extend the lease beyond its initial term. Approximate annual
minimum operating lease commitments are as follows (in thousands):
<TABLE>
<S> <C>
Fiscal year ending January 31,
1998.............................................................. $ 3,532
1999.............................................................. 2,686
2000.............................................................. 2,462
2001.............................................................. 1,621
2002.............................................................. 1,585
Thereafter........................................................ 8,248
---------
Total minimum lease payments...................................... $ 20,134
---------
---------
</TABLE>
Total rental expense charged to operations for the years ended January 31,
1996 and 1997 was approximately $184,000, and $3.3 million, respectively.
F-17
<PAGE>
BEA SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
9. INCOME TAXES
The provisions for income taxes of $60,000 and $800,000 for the years ended
January 31, 1996 and 1997, respectively, represent primarily foreign withholding
taxes for which no U.S. tax benefit is currently recognizable.
The reconciliation of income tax attributable to continuing operations
computed at the U.S. federal statutory tax rate (34%) to income tax expense is
as follows (in thousands):
<TABLE>
<CAPTION>
JANUARY 31, JANUARY 31,
1996 1997
------------ ------------
<S> <C> <C>
Tax credit at U.S. statutory rate................................. $ (6,011) $ (29,874)
Nondeductible amortization of intangibles......................... 1,770 11,842
Valuation allowance............................................... 4,241 18,304
Foreign withholding taxes, net.................................... 60 528
------------ ------------
60 800
------------ ------------
------------ ------------
</TABLE>
Deferred income taxes reflect the net tax effects of temporary differences
between the carrying amounts of assets and liabilities for financial reporting
purposes and the amounts used for income tax purposes. Significant components of
the Company's deferred tax assets for federal and state income taxes are as
follows (in thousands):
<TABLE>
<CAPTION>
1996 1997
---------- ----------
<S> <C> <C>
Deferred tax assets:
Net operating loss carryforwards................................... $ 1,545 $ 7,279
Deferred revenue................................................... 468 82
Accruals and reserves.............................................. 580 3,193
Property and equipment and intangible assets....................... 2,549 17,547
---------- ----------
Total deferred tax assets...................................... 5,142 28,101
Valuation allowance.................................................. (5,142) (28,101)
---------- ----------
Net deferred tax assets.............................................. $ -- $ --
---------- ----------
---------- ----------
</TABLE>
Realization of deferred tax assets is dependent on future taxable income,
the timing and amount of which are uncertain. Accordingly, a valuation
allowance, in an amount equal to the net deferred tax assets at January 31, 1996
and 1997, has been established to reflect these uncertainties. The valuation
allowance increased by $22,959,000 in the year ended January 31, 1997.
Approximately $728,000 of the valuation allowance at January 31, 1996 and 1997
relates to acquired net operating loss carryforwards, the benefit of which will
be credited to intangible assets when realized.
As of January 31, 1996 and 1997, the Company had net operating loss
carryforwards for federal tax purposes of approximately $4,100,000 and
$19,800,000, respectively, that will expire from 2010 through 2012. The Company
also has state net operating loss carryforwards at January 31, 1996 and 1997 of
approximately $2,300,000 and $8,900,000, respectively, expiring from 2000
through 2002. Utilization of net operating loss carryforwards may be subject to
substantial limitations due to the ownership change and other limitations
provided by the Internal Revenue Code and similar state provisions. These
limitations may result in the expiration of net operating loss carryforwards
before full utilization.
F-18
<PAGE>
BEA SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
10. SERIES B REDEEMABLE CONVERTIBLE PREFERRED STOCK
Holders of Series B Redeemable Convertible Preferred Stock (the "Series B
Stock") are entitled to annual dividends, when and if declared by the Board of
Directors, of $0.07 per share, payable prior and in preference to any
declaration or payment of any dividend on the Series A Convertible Preferred
Stock (the "Series A Stock") and the Common Stock. The right to receive such
dividends are cumulative and will accrue to the extent that such dividends are
not declared or paid in any year. No dividends have been declared or paid by the
Company on the Series B Stock. Total accumulated dividends on the Series B Stock
were approximately $932,000 at January 31, 1997.
In the event of liquidation of the Company, holders of Series B Stock are
entitled to receive a liquidation preference of $1.00 per share, plus all
accumulated but unpaid dividends, prior and in preference to any payments made
to holders of Series A Stock and common stock. The Series B Stock carries no
voting rights.
Each share of Series B Stock is convertible, at the option of the holder,
into that number of shares of common stock obtained by dividing the amount
payable to such holder in the event of liquidation by the fair value of the
Company's common stock, as determined by the Board of Directors, or, in the
event of a conversion in connection with an initial public offering, by the per
share initial public offering price, net of underwriting commissions.
Each holder of Series B Stock has the right, exercisable at any time
following September 30, 2001, to require the Company to redeem all or a portion
of such holder's Series B Stock for $1.00 per share, plus accumulated and unpaid
dividends (the "Redemption Price"). However, upon the closing of an initial
public offering of the Company's common stock at an offering price of not less
than $5.00 per share and gross proceeds to the Company of at least $10,000,000,
each share of Series B Stock will be redeemed for the Redemption Price unless
converted, at the option of the holder, into shares of common stock of the
Company. Additionally, the Company may, at its option, redeem at any time any or
all of the outstanding shares of the Series B Stock at the Redemption Price.
11. STOCKHOLDERS' EQUITY
CONVERTIBLE PREFERRED STOCK
Series A Stock holders are entitled to noncumulative annual dividends, when
and if declared by the Board of Directors, of $0.12 per share, payable in
preference to common stock dividends, but after all cumulative dividends payable
with respect to the Series B Stock have been declared and paid. No dividends
have been declared or paid by the Company on the Series A Stock.
In the event of liquidation of the Company, Series A Stock holders are
entitled to receive a liquidation preference of $1.70 per share, plus all
declared but unpaid dividends, after payment of the full liquidation preference
has been made on the Series B Stock prior and in preference to any payments made
to holders of common stock.
Each share of Series A Stock votes equally with shares of common stock on an
"if-converted" basis. Each share of Series A Stock is convertible at any time at
the option of the shareholder into two shares of common stock. The conversion
ratio is subject to upward adjustment upon the occurrence of certain events.
Upon conversion, all declared and unpaid dividends will be paid in cash. Each
share of Series A Stock automatically converts into common stock at the
then-effective conversion rate in the event of an underwritten initial public
offering of the Company's common stock at an offering price of not less than
F-19
<PAGE>
BEA SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
11. STOCKHOLDERS' EQUITY (CONTINUED)
$5.00 per share and gross proceeds to the Company of at least $10,000,000, or
upon the written consent of two-thirds of the then outstanding Series A Stock.
COMMON STOCK REPURCHASE RIGHTS
The Company has stock repurchase agreements with certain individuals
whereby, if the stockholder ceases to be a consultant or employee of the
Company, the Company has the right to repurchase the stock at the original
issuance price. Such repurchase rights generally lapse over four to five years
from the original date of issuance. Certain of the repurchase rights lapse upon
the successful completion of an initial public offering. Common stock subject to
repurchase totaled 5,889,964 shares with an aggregate repurchase price of
$23,127,606 as of January 31, 1997. Series A Stock subject to repurchase at
January 31, 1997 was 100,000 shares at an aggregate price of $170,000.
COMMON STOCK RESERVED FOR FUTURE ISSUANCE
At January 31, 1997, the Company had reserved shares of common stock for
future issuance as follows:
<TABLE>
<S> <C>
Conversion of Series A convertible preferred stock............. 34,332,000
1995 Flexible Stock Incentive Plan............................. 9,026,213
</TABLE>
In addition, the Company has reserved sufficient shares of common stock for
the conversion of Series B redeemable convertible preferred stock and borrowings
outstanding under the credit arrangement with the Company's majority
stockholder.
STOCK OPTION PLAN
The Company has elected to follow APB 25 and related interpretations in
accounting for its employee stock options because, as discussed below, the
alternative fair value accounting provided for under FAS 123, requires use of
option valuation models that were not developed for use in valuing employee
stock options. Under APB 25, because the exercise price of the Company's
employee stock options equals the market price of the underlying stock on the
date of grant, no compensation expense is recorded.
The fair value option valuation models were developed for use in estimating
the fair value of traded options which have no vesting restrictions and are
fully transferable. In addition, option valuation models require the input of
highly speculative assumptions including the expected stock price volatility.
Because the Company's employee stock options have characteristics significantly
different from those of traded options, and because changes in the subjective
input assumptions can materially affect the fair value estimate, in management's
opinion, the existing models do not necessarily provide a reliable single
measure of the fair value of its employee stock options.
Pro forma information regarding net income and earnings per share is
required by FAS 123 which also requires that the information be determined as if
the Company has accounted for its employee stock options granted subsequent to
December 31, 1994 under the fair value method of that statement. The fair value
for these options was estimated at the date of grant using a minimum
value-pricing model with a risk free interest rate of 5.0%, no dividend yield
and an estimated life of 48 months. The effect of applying the minimum value
method to the stock option activity did not result in pro forma net loss and
loss per share that are materially different from historical amounts reported.
Therefore, such pro forma information is not separately presented herein. Future
pro forma net income or loss and earnings or loss
F-20
<PAGE>
BEA SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
11. STOCKHOLDERS' EQUITY (CONTINUED)
per share may be materially different from actual amounts reported. The Company
will not use the minimum value-pricing model when granting options when the
Company becomes a public company.
The Company's 1995 Flexible Stock Incentive Plan (the "Plan") provides for
the grant of incentive and nonstatutory stock options, as determined by the
Board of Directors. Options are generally granted at an exercise price of not
less than the fair value per share of the common stock on the date of grant. The
vesting and exercise provision are determined by the Board of Directors with a
maximum term of ten years. Options granted under the Plan are immediately
exercisable and generally vest over a four-year period with 25% vesting after
one year and 2.08% each month thereafter. Unvested shares are subject to
repurchase by the Company. There were 404,959 shares vested at January 31, 1997,
at an average exercise price of $0.285. At January 31, 1997, 2,344,925 shares of
common stock were reserved for future grants under the Plan. The Plan also
provides for the sale or bonus of common stock to eligible individuals in
connection with the performance of services for the Company. During the year
ended January 31, 1997, the Company issued under the Plan 70,000 shares of
Common Stock as payment for services.
Information with respect to option activity in the Plan is summarized as
follows:
<TABLE>
<CAPTION>
WEIGHTED
OPTIONS PRICE AVERAGE
OUTSTANDING PER SHARE PRICE
------------ -------------- -----------
<S> <C> <C> <C>
Balance at January 20, 1995............................................ -- $ --
Granted.............................................................. 2,344,200 $.01 - $.285 $ 0.273
Exercised............................................................ (100,000) $0.01 $ 0.010
------------
Balance at January 31, 1996............................................ 2,244,200 $ 0.285
Granted.............................................................. 4,016,550 $0.285 $ 0.285
186,750 $1.000 $ 1.000
235,500 $2.000 $ 2.000
452,525 $4.000 $ 4.000
476,925 $6.000 $ 6.000
Exercised............................................................ (403,787) $0.285 $ 0.285
Forfeited............................................................ (527,375) $0.655 $ 0.655
------------
Balance at January 31, 1997............................................ 6,681,288 $ 0.996
------------
------------
</TABLE>
The assumed weighted average remaining contractual life of options at
January 31, 1997 is as follows:
<TABLE>
<CAPTION>
OUTSTANDING OPTIONS
- -------------------------------------
WEIGHTED
AVERAGE REMAINING
PRICE CONTRACTUAL
PER SHARE LIFE MONTHS
- ---------- -------------------------
<S> <C>
$0.285 107
$1.00 115
$2.00 116
$4.00 117
$6.00 119
</TABLE>
The weighted average fair value of options granted in fiscal 1996 and 1997
was $0.273 and $1.37, respectively.
F-21
<PAGE>
BEA SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
11. STOCKHOLDERS' EQUITY (CONTINUED)
The Company has recorded deferred compensation of $973,000 for the
difference between the grant price and the deemed fair value of certain of the
Company's common stock options granted in the year ended January 31, 1997. This
amount is being amortized over the vesting period of the individual options,
generally four years. Compensation expense recognized in the year ended January
31, 1997 totaled $128,000 and at January 31, 1997, deferred compensation totaled
$845,000.
UNAUDITED PRO FORMA STOCKHOLDERS' EQUITY
Unaudited pro forma stockholders' equity at January 31, 1997 gives effect to
the conversion of all shares of Series A Stock into common stock upon the close
of the Company's initial public offering as well as the conversion based on an
assumed initial public offering price, of all shares of Series B Stock and
amounts outstanding at January 31, 1997 under the credit arrangement with the
Company's majority stockholder, as the holder has indicated intent to convert
such shares and outstanding amounts under the credit arrangement upon the close
of the Company's initial public offering.
INITIAL PUBLIC OFFERING
In January 1997, the Board of Directors authorized management of the Company
to file a registration statement with the SEC, offering its common stock to the
public.
12. INDUSTRY AND GEOGRAPHIC SEGMENT INFORMATION
The Company operates in one industry segment (the development and marketing
of computer software and related services) and markets its products and services
internationally through subsidiaries in Europe and Asia, and through independent
distributors and resellers located worldwide. Export sales totaled $553,000 for
the year ended January 31, 1996 and $3.2 million for the year ended January 31,
1997. Transfers between geographic areas are accounted for at estimated amounts
which are generally above cost. Such transfers are eliminated in the
consolidated financial statements. Identifiable assets
F-22
<PAGE>
BEA SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
12. INDUSTRY AND GEOGRAPHIC SEGMENT INFORMATION (CONTINUED)
are those assets that can be directly associated with a particular geographic
area. The following is a summary of operations within geographic areas.
<TABLE>
<CAPTION>
YEAR ENDING
JANUARY 31,
----------------------
1996 1997
---------- ----------
<S> <C> <C>
Revenues from unaffiliated customers
United States................................................................ $ 5,133 $ 40,182
Europe....................................................................... -- 17,922
Asia and other............................................................... -- 3,494
---------- ----------
Total revenues............................................................. $ 5,133 $ 61,598
---------- ----------
---------- ----------
Income (loss) from operations
United States................................................................ $ (17,740) $ (78,328)
Europe....................................................................... -- (874)
Asia and other............................................................... -- (1,940)
---------- ----------
Total income (loss) from operations........................................ $ (17,740) $ (81,142)
---------- ----------
---------- ----------
Identifiable assets (at end of year)
United States................................................................ $ 18,953 $ 41,348
Europe....................................................................... -- 13,041
Asia and other............................................................... -- 3,584
---------- ----------
Total identifiable assets.................................................. $ 18,953 $ 57,973
---------- ----------
---------- ----------
</TABLE>
13. TRANSACTION WITH DIGITAL EQUIPMENT CORPORATION ("DIGITAL")
On January 31, 1997, the Company entered into an agreement with Digital to
acquire exclusive worldwide rights to MessageQ, ObjectBroker and other related
products from Digital for an aggregate consideration of $22 million. The Digital
transaction closed in March 1997. Of the aggregate
consideration for the products, $5 million is payable in cash ($3 million of
which will be due on June 20, 1997 and $2 million of which will be due on the
earlier of June 20, 1997 or 10 days after the purchase by Digital of $2 million
worth of Common Stock offered hereby), and $17 million is payable by delivery of
a $17 million non-interest bearing convertible promissory note. The promissory
note provides for installments of $2 million, $4 million and $11 million payable
on or before February 1, 1998, 1999 and 2000, respectively, and may be converted
into shares of the Company's Common Stock at the option of Digital at a
conversion price of 1.5 times, 1.8 times and 2.5 times the initial public
offering price, respectively; provided, however, that only $5 million of such
$11 million is convertible. In addition, the Company has granted Digital
warrants to purchase $3 million worth of Common Stock at a price equal to the
initial public offering price exercisable for the period beginning 180 days
after the date of this offering and expiring one year thereafter. The closing of
the Digital transaction is subject to certain conditions, and no assurance can
be made that such transaction will be consummated and that the various Digital
products will be acquired by the Company.
F-23
<PAGE>
BEA SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
14. SUBSEQUENT EVENTS
On March 19, 1997, the Company's Board of Directors authorized, subject to
stockholder approval, 35,000,000 shares of an additional class of common stock
("Class B Common Stock"), and amended the terms of conversion of the shares of
Series A and Series B Preferred Stock. Assuming conversion into Common Stock or
Class B Common Stock of all outstanding shares of Series A and Series B
Preferred Stock, approximately 29.4 million shares of Class B Common Stock will
be issued upon conversion of certain shares of Series A Preferred Stock and all
shares of Series B Preferred Stock at or prior to the closing of the Company's
initial public offering. All outstanding shares of Class B Common Stock will be
held by the Company's majority stockholder. The Class B Common Stock has the
same rights, preferences, privileges and restrictions as the Common Stock,
except that the Class B Common Stock is convertible into Common Stock, has no
voting rights except as required by Delaware law and has no right to vote for
the election of directors. The shares of Class B Common Stock will, upon any
transfer of such shares, be automatically converted into a like number of shares
of Common Stock, subject to adjustment upon certain events with respect to the
Common Stock. The shares of Class B Common Stock are also convertible at the
option of the holder thereof into Common Stock, so long as such conversion
results in the stockholder holding equal to or less than 49% of the Company's
outstanding voting securities.
On March 19, 1997, the Company's Board of Directors adopted, subject to
stockholder approval, the 1997 Stock Incentive Plan under which the Company is
initially authorized to grant up to 5,100,000 stock options with similar terms
to the 1995 Flexible Stock Incentive Plan. The Company will not grant additional
stock options under the 1995 Flexible Stock Incentive Plan subsequent to the
effective date of the 1997 Stock Option Plan.
In addition, on March 19, 1997, the Company's Board of Directors adopted,
subject to stockholder approval, the 1997 Employee Stock Purchase Plan under
which an aggregate of 1,250,000 shares of Common Stock will be reserved.
F-24
<PAGE>
REPORT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
The Board of Directors
Information Management Company
We have audited the accompanying balance sheets of Information Management
Company as of December 31, 1994 and September 29, 1995, and the related
statements of operations and retained earnings (deficit) and cash flows for the
year and nine months then ended, respectively. These financial statements are
the responsibility of the Company's management. Our responsibility is to express
an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of Information Management
Company at December 31, 1994 and September 29, 1995, and the results of its
operations and its cash flows for the year and nine months then ended,
respectively, in conformity with generally accepted accounting principles.
/s/ Ernst & Young LLP
MetroPark, New Jersey
January 10, 1997
F-25
<PAGE>
INFORMATION MANAGEMENT COMPANY
BALANCE SHEETS
ASSETS
<TABLE>
<CAPTION>
DECEMBER 31, SEPTEMBER 29,
1994 1995
-------------- --------------
<S> <C> <C>
Current assets:
Cash and cash equivalents...................................................... $ 30,783 $ --
Accounts receivable, less allowance for doubtful accounts of $49,000 in 1994
and $200,000 in 1995......................................................... 1,255,269 1,334,324
Prepaid expenses and other current assets...................................... 13,419 47,414
-------------- --------------
Total current assets............................................................. 1,299,471 1,381,738
Property and equipment, net...................................................... 54,936 56,402
-------------- --------------
$ 1,354,407 $ 1,438,140
-------------- --------------
-------------- --------------
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)
Current liabilities:
Cash overdraft................................................................. $ -- $ 123,380
Line of credit................................................................. -- 522,123
Accounts payable............................................................... 37,223 259,071
Accrued compensation and related payroll liabilities........................... 213,804 107,656
Accrued royalties.............................................................. 310,102 154,545
Accrued sales taxes............................................................ 350,000 600,000
Other accrued liabilities...................................................... 55,676 112,298
Deferred revenue............................................................... 334,126 505,133
-------------- --------------
Total current liabilities........................................................ 1,300,931 2,384,206
Commitments
Stockholders' equity (deficit):
Common stock, no par value, 1,500 shares authorized, issued and outstanding.... 200 200
Retained earnings (deficit).................................................... 53,276 (946,266)
-------------- --------------
Total stockholders' equity (deficit)............................................. 53,476 (946,066)
-------------- --------------
$ 1,354,407 $ 1,438,140
-------------- --------------
-------------- --------------
</TABLE>
See accompanying notes.
F-26
<PAGE>
INFORMATION MANAGEMENT COMPANY
STATEMENTS OF OPERATIONS AND RETAINED EARNINGS (DEFICIT)
<TABLE>
<CAPTION>
NINE MONTHS
YEAR ENDED ENDED
DECEMBER 31, SEPTEMBER 29,
1994 1995
-------------- --------------
<S> <C> <C>
Revenues:
License........................................................................ $ 4,365,735 $ 2,753,789
Service........................................................................ 1,069,221 1,858,759
-------------- --------------
Total revenues................................................................... 5,434,956 4,612,548
Cost of revenues:
License........................................................................ 1,623,565 734,233
Service........................................................................ 887,296 1,407,760
-------------- --------------
Total cost of revenues........................................................... 2,510,861 2,141,993
-------------- --------------
Gross profit..................................................................... 2,924,095 2,470,555
Operating expenses:
Research and development....................................................... 111,504 726,615
Sales and marketing............................................................ 1,513,185 1,223,783
General and administrative..................................................... 996,411 1,505,275
-------------- --------------
Total operating expenses......................................................... 2,621,100 3,455,673
-------------- --------------
Income (loss) from operations.................................................... 302,995 (985,118)
Interest expense................................................................. 22,634 12,543
Other expense.................................................................... 691 1,881
-------------- --------------
Net income (loss)................................................................ 279,670 (999,542)
Retained earnings (deficit) at beginning of period............................... (226,394) 53,276
-------------- --------------
Retained earnings (deficit) at end of period..................................... $ 53,276 $ (946,266)
-------------- --------------
-------------- --------------
</TABLE>
See accompanying notes.
F-27
<PAGE>
INFORMATION MANAGEMENT COMPANY
STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
NINE MONTHS
YEAR ENDED ENDED
DECEMBER 31, SEPTEMBER 29,
1994 1995
-------------- --------------
<S> <C> <C>
OPERATING ACTIVITIES
Net income (loss)................................................................ $ 279,670 $ (999,542)
Adjustments to reconcile net income (loss) to net cash provided by (used in)
operating activities:
Depreciation and amortization.................................................. 768 44,746
Changes in assets and liabilities:
Accounts receivable, net..................................................... (1,014,717) (79,055)
Prepaid expenses and other current assets.................................... 14,325 (33,995)
Accounts payable and accrued expenses........................................ 26,927 172,322
Deferred revenue............................................................. 250,276 171,007
Royalties payable............................................................ 310,102 (155,557)
Sales taxes payable.......................................................... 350,000 250,000
-------------- --------------
Net cash provided by (used in) operating activities.............................. 217,351 (630,074)
INVESTING ACTIVITIES
Purchases of property and equipment.............................................. (47,362) (46,212)
-------------- --------------
Net cash used in investing activities............................................ (47,362) (46,212)
-------------- --------------
FINANCING ACTIVITIES
Borrowing under line of credit................................................... 1,341,627 1,646,015
Payments on line of credit....................................................... (1,481,949) (1,123,892)
Cash overdraft................................................................... 123,380
-------------- --------------
Net cash (used in) provided by financing activities.............................. (140,322) 645,503
-------------- --------------
Net increase (decrease) in cash and cash equivalents............................. 29,667 (30,783)
Cash and cash equivalents at beginning of period................................. 1,116 30,783
-------------- --------------
Cash and cash equivalents at end of period....................................... $ 30,783 $ --
-------------- --------------
-------------- --------------
SUPPLEMENTAL CASH FLOW INFORMATION
Cash paid during the period for interest......................................... $ 22,634 $ 12,543
-------------- --------------
-------------- --------------
</TABLE>
See accompanying notes.
F-28
<PAGE>
INFORMATION MANAGEMENT COMPANY
NOTES TO FINANCIAL STATEMENTS
SEPTEMBER 29, 1995
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
DESCRIPTION OF BUSINESS
Information Management Company (the "Company") was incorporated in the state
of Delaware in July 1990 and is located in Liberty Corner, New Jersey. The
Company is engaged in providing standards-based, enterprise-wide client/server
products and services.
Effective September 30, 1995, the Company was purchased by BEA Systems, Inc.
("BEA"); (see Note 7). The accompanying financial statements have been prepared
on the Company's historical cost basis, and do not reflect any adjustments
resulting from the acquisition.
REVENUE RECOGNITION
Revenues from end user software license agreements are recognized at the
time of product shipment, provided there are no vendor obligations remaining to
be fulfilled and collectibility is probable. License fees from resellers are
also recognized as revenue when the software has been shipped, provided that no
significant vendor obligations remain to be fulfilled, certain customer criteria
established by the Company have been met, and the fees are payable within twelve
months.
Services revenues include consulting services, post-contract customer
support, and training. Consulting revenues and the related cost of these
revenues are recognized on a time and materials basis. Support revenues are
recognized pro rata over the term of the service period and training or other
revenues are recognized as the related services are provided. The unrecognized
portion of amounts billed or paid in advance for such services is reported as
deferred revenues.
CASH EQUIVALENTS
The Company considers all highly liquid short-term investments with original
maturities of 90 days or less when purchased to be cash equivalents.
CONCENTRATION OF CREDIT RISK
The Company sells its products to customers, typically large corporations,
in a variety of industries, primarily in North America. The Company performs
ongoing credit evaluations of its customers and generally does not require
collateral. The Company maintains reserves for potential credit losses and such
losses have been within management's expectations.
PROPERTY AND EQUIPMENT
Property and equipment are stated at cost. Depreciation and amortization are
computed using the double-declining balance method.
The estimated useful lives used in computing depreciation are as follows:
<TABLE>
<S> <C>
Machinery and equipment.................................. 3-5 years
Furniture and fixtures................................... 7 years
Leasehold improvements................................... 10 years
Vehicles................................................. 5 years
</TABLE>
F-29
<PAGE>
INFORMATION MANAGEMENT COMPANY
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
SEPTEMBER 29, 1995
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
INCOME TAXES
The Company has elected, with the consent of its shareholders, to be treated
as an S Corporation under the Internal Revenue Code. The shareholder of an S
Corporation includes the Company's income in its own income for income tax
purposes. Accordingly, no federal income taxes are provided for in the
accompanying financial statements. Effective January 1, 1995, the Company has
also elected S Corporation status under the applicable sections of the New
Jersey income tax laws.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the amounts reported in the financial statements and
accompanying notes. Actual results could differ from those estimates.
RESEARCH AND DEVELOPMENT
Research and development expenditures are generally charged to operations as
incurred. Statement of Financial Accounting Standards No. 86, "Accounting for
the Costs of Computer Software to be Sold, Leased or Otherwise Marketed,"
requires the capitalization of certain software development costs subsequent to
the establishment of technological feasibility. Based on the Company's product
development process, technological feasibility is established upon the
completion of a working model. Costs incurred by the Company between the
completion of the working model and the point at which the product is ready for
general release have been insignificant. Accordingly, the Company has charged
all such costs to research and development expenses in the accompanying
statements of operations.
PRODUCT CONCENTRATION
The Company derives the majority of its revenue from the licensing of
products in the TUXEDO product line, to which the Company has certain
distribution rights from Novell Inc. ("Novell"), and fees from related services.
These products and services are expected to continue to account for a majority
of the Company's revenue for the foreseeable future. Consequently, a reduction
in demand or an increase in competition for these products due to market factors
or a decline in sales of such products would affect operating results adversely.
During the year ended December 31, 1994 and the nine months ended September
29, 1995, the amount of royalties due to Novell totalled $982,500 and $687,440,
respectively, and are included in cost of sales in the accompanying statements
of operations.
F-30
<PAGE>
INFORMATION MANAGEMENT COMPANY
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
SEPTEMBER 29, 1995
2. TRANSACTIONS WITH SIGNIFICANT CUSTOMERS
Customers that comprise greater than 10% of the Company's total revenues in
the periods presented are as follows:
<TABLE>
<CAPTION>
YEAR ENDED NINE MONTHS ENDED
DECEMBER 31, SEPTEMBER 29,
1994 1995
----------------- -----------------
<S> <C> <C>
Customer A................................................ 22% 10%
Customer B................................................ 15% --
Customer C................................................ -- 12%
</TABLE>
Revenues generated from these customers were less than 10% of total revenue
in the periods where percentages are not shown.
3. PROPERTY AND EQUIPMENT
The components of property and equipment at December 31, 1994 and September
29, 1995 are as follows:
<TABLE>
<CAPTION>
1994 1995
--------- -----------
<S> <C> <C>
Machinery and equipment.............................................. $ 60,012 $ 82,558
Furniture and fixtures............................................... 14,486 18,685
Leasehold improvements............................................... 9,112 21,578
Vehicles............................................................. 1,060 8,061
--------- -----------
84,670 130,882
Less accumulated depreciation and amortization....................... 29,734 74,480
--------- -----------
$ 54,936 $ 56,402
--------- -----------
--------- -----------
</TABLE>
4. LINE OF CREDIT
In March 1995, the Company entered into an accounts receivable revolving
loan facility with a bank with availability up to $750,000 and renewable
annually. Borrowings are limited to the borrowing base (as defined); however,
the full amount of the facility was available to the Company at September 29,
1995. Advances bear interest at 1.5% above the bank's floating base rate (8% at
September 29, 1995), and the Company is required to pay a fee for the unused
portion equal to .5%, payable quarterly and calculated monthly. Borrowings under
the facility is secured by substantially all assets of the Company and is
personally guaranteed by the principal stockholders.
Management estimates that the carrying value of the revolving loan facility
approximates its fair value.
During 1994, the Company maintained a line of credit with another bank in
the amount of $350,000. This line was increased to $550,000 in January 1995
before it was replaced with the facility discussed above.
F-31
<PAGE>
INFORMATION MANAGEMENT COMPANY
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
SEPTEMBER 29, 1995
5. LEASES
The Company leases its operating facility, certain equipment and vehicles
under noncancellable operating leases that expire in 1997. The leases provide
for all real estate taxes and operating expenses to be paid by the Company.
Under the lease of the operating facility, the Company has the option to renew
for additional terms at specified rentals. Minimum future rental payments under
such leases as of September 29, 1995 are as follows:
<TABLE>
<S> <C>
Three months ending December 31, 1995.................... $ 79,851
Year ending December 31, 1996............................ 308,779
Year ending December 31, 1997............................ 178,396
---------
Total minimum future rental payments..................... $ 567,026
---------
---------
</TABLE>
Total rent expense charged to operations was $107,600 and $184,221, during
the year ended December 31, 1994 and the nine months ended September 29, 1995,
respectively.
6. GENERAL AND ADMINISTRATIVE EXPENSES
During the nine months ended September 29, 1995, the Company incurred
various professional fees in conjunction with negotiations for the sale of the
Company to prospective buyers, including BEA (see Note 7). These fees totaled
$213,000 for the period and are included in general and administrative expenses
in the accompanying statement of operations.
7. SUBSEQUENT EVENT
Effective September 30, 1995, the Company was purchased by BEA, a company
which develops and markets middleware solution platforms. The purchase price,
excluding liabilities assumed and direct acquisition costs, was $10,010,000 of
which $7,280,000 was paid in cash at the closing and $2,730,000 is payable
through the issuance of a subordinated promissory note. The interest rate on
this note is 8%.
F-32
<PAGE>
REPORT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
The Board of Directors
BEA Systems, Inc.
We have audited the accompanying statements of operations and cash flows of
Independence Technologies, Inc. for the period from January 1, 1995 to November
1, 1995. These statements of operations and cash flows are the responsibility of
BEA Systems, Inc.'s management. Our responsibility is to express an opinion on
these statements of operations and cash flows based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. These standards require that we plan and perform the audit to obtain
reasonable assurance about whether the statements of operations and cash flows
are free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the statements of operations
and cash flows. An audit also includes assessing the accounting principles used
and significant estimates made by management, as well as evaluating the overall
presentation of the statements of operations and cash flows. We believe that our
audit provides a reasonable basis for our opinion.
The accompanying statements of operations and cash flows were prepared for
the purpose of complying with the rules and regulations of the Securities and
Exchange Commission for inclusion in the registration statement on Form SB-2 of
BEA Systems, Inc. as described in Note 1, and are not intended to be a complete
presentation of the financial position and results of operations of Independence
Technologies, Inc.
In our opinion, the statements of operations and cash flows referred to
above present fairly, in all material respects, the results of operations and
cash flow of Independence Technologies, Inc. for the period from January 1, 1995
to November 1, 1995, in conformity with generally accepted accounting
principles.
/s/ Ernst & Young LLP
San Jose, California
January 20, 1997
F-33
<PAGE>
INDEPENDENCE TECHNOLOGIES, INC.
STATEMENT OF OPERATIONS
FOR THE PERIOD FROM JANUARY 1, 1995 TO NOVEMBER 1, 1995
<TABLE>
<S> <C>
Revenues:
License...................................................................... $ 3,756,574
Service...................................................................... 1,960,103
-----------
Total revenues............................................................. 5,716,677
-----------
Cost of revenues:
License...................................................................... 1,188,482
Service...................................................................... 1,239,911
-----------
Total cost of revenues..................................................... 2,428,393
-----------
Gross profit................................................................... 3,288,284
Operating expenses:
Research and development..................................................... 1,493,622
Sales and marketing.......................................................... 1,777,710
General and administrative................................................... 1,290,768
-----------
Total operating expenses................................................... 4,562,100
-----------
Loss from operations........................................................... (1,273,816)
Interest income.............................................................. 15,693
Interest expense............................................................. (31,382)
-----------
Loss before extraordinary item................................................. (1,289,505)
Extraordinary item--forgiveness of debt........................................ 1,035,000
-----------
Net loss....................................................................... $ (254,505)
-----------
-----------
</TABLE>
See accompanying notes.
F-34
<PAGE>
INDEPENDENCE TECHNOLOGIES, INC.
STATEMENT OF CASH FLOWS
FOR THE PERIOD FROM JANUARY 1, 1995 TO NOVEMBER 1, 1995
<TABLE>
<CAPTION>
OPERATING ACTIVITIES
<S> <C>
Net loss....................................................................... $ (254,505)
Adjustments to reconcile net income to net cash provided by operating
activities:
Depreciation and amortization................................................ 365,417
Gain on forgiveness of debt.................................................. (1,035,000)
Changes in assets and liabilities:
Accounts receivable........................................................ 33,711
Prepaid expenses and other current assets.................................. 61,126
Accounts payable........................................................... 236,063
Accrued liabilities........................................................ 714,529
-----------
Net cash provided by operating activities...................................... 121,341
-----------
INVESTING ACTIVITIES
Acquisition of property and equipment.......................................... (88,963)
Advances to stockholders....................................................... (2,621)
-----------
Net cash used in investing activities.......................................... (91,584)
-----------
FINANCING ACTIVITIES
Repayments of long-term debt................................................... (14,433)
Payments on capital lease obligations.......................................... (13,905)
Net proceeds from issuance of common stock and warrants........................ 48,312
-----------
Net cash provided by financing activities...................................... 19,974
Net increase in cash........................................................... 49,731
Cash, beginning of period...................................................... 250,508
-----------
Cash, end of period............................................................ $ 300,239
-----------
-----------
SUPPLEMENTAL CASH FLOW INFORMATION
Cash paid during the period for interest....................................... $ 18,216
-----------
-----------
Conversion of debt to common stock............................................. $ 2,466,536
-----------
-----------
</TABLE>
See accompanying notes.
F-35
<PAGE>
INDEPENDENCE TECHNOLOGIES, INC.
NOTES TO STATEMENTS OF OPERATIONS AND CASH FLOWS
FOR THE PERIOD FROM JANUARY 1, 1995 TO NOVEMBER 1, 1995
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
DESCRIPTION OF BUSINESS
Independence Technologies, Inc. (the "Company") which was incorporated in
July 1988 provides object-oriented software, programming products, and
consulting services primarily for large, distributed on-line transaction
processing applications based on the UNIX operating system. The Company also
acts as a distributor of certain third party software products.
BASIS OF PRESENTATION
On November 1, 1995, the Company was acquired by Information Management
Company ("IMC"), a wholly owned subsidiary of BEA Systems, Inc. ("BEA") for
approximately $7,266,000 in cash and the assumption of certain liabilities. The
accompanying financial statements have been prepared on the Company's historical
cost basis, and do not reflect any adjustments resulting from the acquisition.
The accompanying statements of operations and cash flows were prepared for
the purpose of complying with the rules and regulations of the Securities and
Exchange Commission for inclusion in the registration statement on Form-SB-2 of
BEA and are not intended to be a complete presentation of the financial position
and results of operations of Independence Technologies, Inc.
USE OF ESTIMATES
The preparation of the financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amount of assets and liabilities at the
date of the financial statements and the reported amounts of revenues and
expenses during the reporting period. Actual results could differ from those
estimates.
CONCENTRATION OF CREDIT RISK
The Company sells its products to customers, typically large corporations,
in a variety of industries. The Company performs ongoing credit evaluations of
its customers and generally does not require collateral. The Company maintains
reserves for potential credit losses and such losses have been within
management's expectations.
REVENUE RECOGNITION
Revenues from end user software license agreements and license fees from
third-party distributors and value-added resellers are recognized at the time of
product shipment, provided there are no significant vendor obligations remaining
to be fulfilled and collectibility is probable. Consulting revenues and the
related costs are generally recognized on a time and materials basis; however,
certain fixed price contracts are recognized on the percentage of completion
basis which involves the use of estimates. Actual results could differ from
those estimates and, as a result, future profitability on such contracts may be
more or less than estimated. The amount of consulting contracts recognized on a
percentage of completion basis has not been material to date. Support revenues
are recognized prorata over the term of the service period. Training and other
service revenues are recognized as the related services are performed. The
unrecognized portion of amounts paid for such consulting, support, and other
services is reported as deferred revenues.
F-36
<PAGE>
INDEPENDENCE TECHNOLOGIES, INC.
NOTES TO STATEMENTS OF OPERATIONS AND CASH FLOWS (CONTINUED)
FOR THE PERIOD FROM JANUARY 1, 1995 TO NOVEMBER 1, 1995
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
PROPERTY AND EQUIPMENT
Property and equipment are recorded at cost. Depreciation is computed using
the straight-line method over the estimated useful lives of the assets ranging
from three to seven years. Assets under capital leases and leasehold
improvements are amortized over the shorter of the asset life or the remaining
lease term. The related amortization expense is included in depreciation
expense.
RESEARCH AND DEVELOPMENT
Research and development expenditures are generally charged to operations as
incurred. Statement of Financial Accounting Standards No. 86, "Accounting for
the Costs of Computer Software to be Sold, Leased or Otherwise Marketed,"
requires the capitalization of certain software development costs subsequent to
the establishment of technological feasibility. Based on the Company's product
development process, technological feasibility is established upon the
completion of a working model. Costs incurred by the Company between the
completion of the working model and the point at which the product is ready for
general release have been insignificant. Accordingly, the Company has charged
all such costs to research and development expenses in the accompanying
statements of operations.
PRODUCT CONCENTRATION
The Company derives a majority of its revenue from the licensing of products
in the TUXEDO product line, to which the Company has certain distribution rights
from Novell, Inc. and fees from related services. These products and services
are expected to continue to account for a majority of the Company's revenue for
the foreseeable future. Consequently, a reduction in demand or an increase in
competition for these products due to market factors, or a decline in sales of
such products, would affect operating results adversely.
2. EXTRAORDINARY ITEM
On June 27, 1995, the Company entered into a settlement agreement to resolve
all disputes with respect to a loan agreement with one of its creditors. In
connection with this settlement agreement, the Company realized an extraordinary
gain of approximately $1,035,000, representing the forgiveness of both principal
and accrued interest due on the loan.
3. LEASE COMMITMENTS
Facilities are leased under operating leases expiring at various dates
through November 30, 1999. Certain leases have escalating rental payments and
options for renewal for additional terms. Future minimum rental payments for the
years ended and period ended December 31, are as follows:
<TABLE>
<S> <C>
November 2 through December 31, 1995............................. $ 27,000
1996............................................................. 164,000
1997............................................................. 171,000
1998............................................................. 176,000
1999............................................................. 162,000
---------
Total............................................................ $ 700,000
---------
---------
</TABLE>
F-37
<PAGE>
INDEPENDENCE TECHNOLOGIES, INC.
NOTES TO STATEMENTS OF OPERATIONS AND CASH FLOWS (CONTINUED)
FOR THE PERIOD FROM JANUARY 1, 1995 TO NOVEMBER 1, 1995
3. LEASE COMMITMENTS (CONTINUED)
Rent expense was $147,916 for the period from January 1, 1995 to November 1,
1995.
4. INCOME TAXES
Due to the Company's loss position, there is no provision for income taxes
for the period from January 1, 1995, to November 1, 1995.
Deferred income taxes reflect the net tax effects of temporary differences
between the carrying amounts of assets and liabilities for financial reporting
purposes and the amounts used for income tax purposes. Significant components of
the Company's deferred tax assets for federal and state income taxes are as
follows:
<TABLE>
<CAPTION>
NOVEMBER 1,
1995
--------------
<S> <C>
Deferred tax assets:
Net operating loss carryforwards............................................ $ 743,000
Deferred revenue............................................................ 554,000
Accruals and reserves....................................................... 527,000
Fixed assets................................................................ 39,000
--------------
Total deferred tax assets................................................. 1,863,000
Valuation allowance......................................................... (1,863,000)
--------------
Net deferred tax assets....................................................... $ 0
--------------
--------------
</TABLE>
Based upon the weight of available evidence, which includes the Company's
historical operating performance, the reported cumulative net loss for the prior
three years, and the uncertainties regarding future results of operations of the
Company, the Company has provided a full valuation allowance against its net
deferred tax assets as at this time it is more likely than not that the deferred
tax assets will not be realized. The change in the valuation allowance was an
increase of $7,000 for the period ended November 1, 1995.
As of November 1, 1995, the Company had net operating loss carryforwards for
federal and state tax purposes of approximately $2,100,000 and $200,000 which
will expire from 1998 through 2009. Utilization of net operating loss
carryforwards may be subject to a substantial annual limitation due to the
ownership change limitations provided by the Internal Revenue Code of 1986, as
amended, and similar state provisions. The annual limitation may result in the
expiration of net operating loss carryforwards before full utilization.
5. OTHER
During the period from August 1995 through October 1995 approximately
$2,000,000 of convertible debentures and approximately $467,000 of accrued
royalties were converted into common stock of the Company.
F-38
<PAGE>
REPORT OF ERNST & YOUNG AUDIT, INDEPENDENT AUDITORS
The Board of Directors
USL Finance S.A.
We have audited the accompanying consolidated balance sheet of USL Finance
S.A. as of May 5, 1996 and the related consolidated statements of operations,
shareholders' equity, and cash flows for the period from November 1, 1995
through May 5, 1996. These financial statements are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
financial statements based on our audit.
We conducted our audit in accordance with United States generally accepted
auditing standards. Those standards require that we plan and perform the audit
to obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall financial statement
presentation. We believe that our audit provides a reasonable basis for our
opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the consolidated financial position of
USL Finance S.A. as of May 5, 1996, and the consolidated results of its
operations, and its cash flows for the period from November 1, 1995 to May 5,
1996, in conformity with United States generally accepted accounting principles.
/s/ ERNST & YOUNG Audit
Paris, France
December 24, 1996
F-39
<PAGE>
USL FINANCE S.A.
CONSOLIDATED BALANCE SHEET
MAY 5, 1996
(IN THOUSANDS OF U.S. DOLLARS)
ASSETS
<TABLE>
<S> <C>
Current assets:
Cash and cash equivalents........................................................ $ 2,259
Accounts receivable.............................................................. 2,875
Prepaid expenses and other current assets........................................ 284
---------
Total current assets......................................................... 5,418
---------
Leasehold improvements and equipment, net........................................ 642
---------
Distribution rights, net of amortization......................................... 294
---------
Total assets................................................................. $ 6,354
---------
---------
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable................................................................. $ 405
Accrued expenses................................................................. 350
Payable to BEA Systems Inc. ..................................................... 3,091
Value-added tax payable.......................................................... 277
Deferred revenues................................................................ 411
---------
Total current liabilities.................................................... 4,534
Net deferred tax liabilities....................................................... 5
Deferred revenues.................................................................. 750
Long-term debt..................................................................... 541
Minority interests................................................................. 76
Commitments........................................................................
Shareholders' equity:
Common stock, FF 100 par value; 13,220 shares issued and
outstanding.................................................................... 270
Capital in excess of par value................................................... 131
Cumulative translation adjustment................................................ (24)
Retained Earnings................................................................ 71
---------
Total shareholders' equity..................................................... 448
---------
Total liabilities and shareholders' equity................................... $ 6,354
---------
---------
</TABLE>
See accompanying notes.
F-40
<PAGE>
USL FINANCE S.A.
CONSOLIDATED STATEMENT OF OPERATIONS
NOVEMBER 1, 1995 THROUGH MAY 5, 1996
(IN THOUSANDS OF U.S. DOLLARS)
<TABLE>
<S> <C>
Revenues:
License.................................................................. $ 2,024
Service.................................................................. 868
-------
Total revenues............................................................. 2,892
Cost of revenues:
License.................................................................. 1,044
Service.................................................................. 873
-------
Total cost of revenues..................................................... 1,917
-------
Gross profit............................................................... 975
Operating expenses:
Marketing and selling.................................................... 667
General and administrative............................................... 88
Amoritzation of distribution rights...................................... 76
-------
Total operating expenses............................................... 831
-------
Income from operations..................................................... 144
Interest income............................................................ 64
Interest expense........................................................... (20)
Minority interest.......................................................... (32)
-------
Income before income taxes................................................. 156
Income taxes............................................................... (85)
-------
Net income................................................................. $ 71
-------
-------
</TABLE>
See accompanying notes.
F-41
<PAGE>
USL FINANCE S.A.
CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY
(IN THOUSANDS OF U.S. DOLLARS)
<TABLE>
<CAPTION>
COMMON STOCK CUMULATIVE TOTAL
---------------------- CAPITAL IN EXCESS TRANSLATION RETAINED SHAREHOLDERS'
SHARES AMOUNT OF PAR VALUE ADJUSTMENT EARNINGS EQUITY
--------- ----------- ------------------- ------------- ------------- ---------------
<S> <C> <C> <C> <C> <C> <C>
Balance October 31, 1995........ 13,220 $ 270 $ 131 $ (21) $ -- $ 380
Translation adjustment........ -- -- -- (3) -- (3)
Net income.................... -- -- -- -- 71 71
--------- ----- ----- --- --- -----
Balance May 5, 1996............. 13,220 $ 270 $ 131 $ (24) $ 71 $ 448
--------- ----- ----- --- --- -----
--------- ----- ----- --- --- -----
</TABLE>
F-42
<PAGE>
USL FINANCE S.A.
CONSOLIDATED STATEMENT OF CASH FLOWS
FOR THE PERIOD FROM NOVEMBER 1, 1995 TO MAY 5, 1996
(IN THOUSANDS OF U.S. DOLLARS)
<TABLE>
<S> <C>
OPERATING ACTIVITIES
Net income................................................................ $ 71
Adjustments to reconcile net income to net cash provided by operating
activities:
Depreciation and amortization of leasehold improvements and
equipment........................................................... 48
Amortization of distribution rights................................... 76
Interests in equity investments....................................... 20
Deferred income taxes................................................. 18
Increase (decrease) in cash from:
Accounts receivable................................................... 475
Prepaid expenses and other current assets............................. (174)
Accounts payable and accrued expenses................................. 522
Deferred revenues..................................................... 1,199
Value-added tax payable............................................... 128
-------
Net cash provided by operating activities........................... 2,383
INVESTING ACTIVITIES
Purchase of leasehold improvements and equipment.......................... (479)
Proceeds from sale of equipment........................................... 6
Business acquisition, net of cash acquired................................ (541)
-------
Net cash used in investing activities..................................... (1,014)
FINANCING ACTIVITIES
Increase in long-term debt................................................ 559
-------
Net cash provided by financing activities................................. 559
Effect of changes in foreign exchange rates on cash....................... (81)
-------
Net increase in cash and cash equivalents................................. 1,847
Cash and cash equivalents at beginning of period.......................... 412
-------
Cash and cash equivalents at end of period................................ $ 2,259
-------
-------
</TABLE>
F-43
<PAGE>
USL FINANCE S.A.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
PERIOD FROM NOVEMBER 1, 1995 THROUGH MAY 5, 1996
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
ORGANIZATION
USL Finance S.A. (the "Company") was incorporated in Paris, France in August
1995 and had no operating activity until it acquired from Novell, Inc., with
effect from November 3, 1995, a 90% equity ownership in USL France S.A. (USL).
The main activities of USL are the marketing and support of UNIX software
products as well as offering related consulting and training services. USL's
primary software product is TUXEDO, a product developed by Novell, Inc. USL's
products are distributed through its direct sales force as well as through an
external marketing firm.
With effect from February 23, 1996, Novell, Inc. granted to BEA Systems,
Inc. (BEA) certain rights and licenses relating to TUXEDO software and USL
entered into a new royalty agreement with BEA. Novell, Inc. transferred to BEA
its debt due by USL and related to the royalty agreement in effect between
Novell, Inc. and USL before February 23, 1996. On May 5, 1996, BEA purchased
100% of the shares of USL. The accompanying financial statements have been
prepared on the Company's historical cost basis, and do not reflect any
adjustments resulting from the acquisition.
BASIS OF PRESENTATION AND PRINCIPLES OF CONSOLIDATION
The Company and its subsidiary prepare their financial statements in
accordance with accounting principles generally accepted in France.
The consolidated financial statements have been restated in order to comply
with accounting principles generally accepted in the United States and stated in
U.S. dollars. The preparation of financial statements requires management to
make estimates and assumptions that affect the amounts reported in the financial
statements and accompanying footnotes. Actual results could differ from those
estimates.
The consolidated financial statements include the accounts of the Company
and its subsidiary. All significant intercompany balances and transactions have
been eliminated.
REVENUE RECOGNITION
The Company recognizes revenue in accordance with the American Institute of
Certified Public Accountants' Statement of Position 91-1 on software revenue
recognition. License fees under software license agreements with end users and
distributors are recognized upon shipment if no significant vendor obligations
remain and collection of the resulting receivables is deemed probable. Service
revenues are derived from consulting and training services and fees earned under
annual or multi-year maintenance agreements for providing updates (on an "if and
when available" basis) for existing software products, user documentation, and
technical support. Maintenance revenue is recognized ratably over the term of
such agreements. If such services are included in the initial licensing fee, the
value of the services is unbundled and recognized ratably over the related
service period. Revenue from consulting and training services is recognized as
the services are performed.
CONCENTRATION OF CREDIT RISK
The Company sells its products to customers in a variety of industries in
Southern Europe, Africa, and Israel. The Company performs ongoing credit
evaluations of its customers and maintains
F-44
<PAGE>
USL FINANCE S.A.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
PERIOD FROM NOVEMBER 1, 1995 THROUGH MAY 5, 1996
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
allowances for potential credit losses. To date, such losses have been within
management's expectations.
Three customers accounted for 12%, 11%, and 10% of revenues, respectively.
CASH AND CASH EQUIVALENTS
Cash and cash equivalents consist of cash on deposit or temporary cash
investments with original maturities of 90 days or less. The Company considers
all highly liquid investments with insignificant interest rate risk and
purchased with an original maturity of three months or less to be cash
equivalents.
FAIR VALUE OF FINANCIAL INSTRUMENTS
At May 5, 1996, the carrying values of cash and cash equivalents
approximated their market value based on the short-term maturities of these
instruments. The fair value of long-term debt is estimated using current
interest rates available to the Company for debt instruments with similar terms,
degree of risk, and maturities. The carrying value of the loans approximate
their respective fair value.
FOREIGN CURRENCY TRANSLATIONS
The functional currency of the Company is the French Franc ("FF"). Foreign
currency transactions outstanding at the balance sheet date are translated into
French Francs at year-end rates of exchange. Aggregate realized and unrealized
gains or losses from foreign currency transactions are included in results of
operations and amounted to a gain of $10,739. The effect of translating to U.S.
Dollars is recorded as a cumulative translation adjustment.
DISTRIBUTION RIGHTS
Distribution rights relate to the right to distribute products in certain
territories. Amortization is computed using the straight-line method over 30
months.
LEASEHOLD IMPROVEMENTS AND EQUIPMENT
Leasehold improvements and equipment are stated at cost. Depreciation and
amortization are computed using the straight-line method over the following
estimated useful lives:
<TABLE>
<S> <C>
Purchase software 3 years
Computer equipment 5 years
Furniture and other equipment 10 years
Leasehold improvements 10 years, or lease term if less
</TABLE>
INCOME TAXES
In accordance with Statement of Financial Accounting Standards No. 109, the
liability method is used in accounting for income taxes. Under this method,
deferred tax assets and liabilities are determined based on differences between
financial reporting and tax bases of assets and liabilities and are measured
using the enacted tax rates and laws that will be in effect when the differences
are
F-45
<PAGE>
USL FINANCE S.A.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
PERIOD FROM NOVEMBER 1, 1995 THROUGH MAY 5, 1996
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
expected to reverse. A valuation allowance is established if, based on the
weight of available evidence, it is more likely than not that some portion or
all of the deferred tax asset will not be realized.
2. BUSINESS ACQUISITION AND DEBT
On November 3, 1995, the Company completed a transaction with Novell, Inc.
in which the Company purchased from Novell, Inc. a 90% interest in USL for a
consideration of FF4,500,000 (approximately $870,000), of which FF3,000,000 was
paid in cash with the balance payable in installments with interest at 5% as
follows:
- FF500,000 due on October 31, 1998 (approximately $97,000)
- FF500,000 due on October 31, 1999 (approximately $97,000)
- FF500,000 due on October 31, 2000 (approximately $97,000)
The acquisition was accounted for using the purchase method of accounting in
accordance with APB Opinion No. 16, "Business Combinations" ("APB16"). Under
APB16, purchase price allocations were made to the assets acquired and the
liabilities assumed based on their respective fair value, as follows:
<TABLE>
<S> <C>
Purchase price................................................... $ 870,406
Estimated fair value of net tangibles assets acquired............ 502,321
---------
Excess of purchase price over net tangible assets acquired....... $ 368,085
</TABLE>
The excess of purchase price over net tangible assets acquired was allocated
to distribution rights.
On January 1, 1995, the Company issued FF1,300,000 (approximately $250,000)
in bonds which are payable in full on November 20, 2000. Interest is payable
annually at a rate of 5% beginning October 31, 1996.
3. CASH AND CASH EQUIVALENTS
Cash and cash equivalents at May 5, 1996 include (in thousands):
<TABLE>
<S> <C>
Cash held at bank............................................... $ 7
Temporary cash investments...................................... 2,252
-----------
$ 2,259
-----------
-----------
</TABLE>
F-46
<PAGE>
USL FINANCE S.A.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
PERIOD FROM NOVEMBER 1, 1995 THROUGH MAY 5, 1996
4. LEASEHOLD IMPROVEMENT AND EQUIPMENT
Leasehold improvement and equipment at May 5, 1996 include (in thousands):
<TABLE>
<S> <C>
Purchased software.............................................. $ 94
Computer equipment.............................................. 276
Furniture and other equipment................................... 126
Leasehold improvements.......................................... 280
-----
776
Accumulated depreciation and amortization....................... (134)
-----
$ 642
-----
-----
</TABLE>
Depreciation and amortization expense for the period from November 1, 1995
through May 5, 1996 was $47,904.
5. PAYABLE TO BEA SYSTEMS, INC (BEA)
The liability to BEA at May 5, 1996 of approximately $3,091,000 consists of
royalties due under the royalty agreement in effect between the parties and
royalties originally due to Novell, Inc which were acquired by BEA in February
1996. All amounts payable to BEA are due currently.
6. SHAREHOLDERS' EQUITY
At May 5, 1996, the issued and outstanding share capital of the Company
consisted of 13,220 shares with a nominal value of $19.
Dividends may be distributed from the statutory retained earnings, subject
to the requirements of French law and the Company's by-laws. The Company has not
distributed any dividends since its inception and had no distributable retained
earnings at May 5, 1996.
7. INCOME TAXES
The provision for income taxes consists of the following (in thousands):
<TABLE>
<S> <C>
Current............................................................... $ 67
Deferred.............................................................. 18
---
Provision for income taxes............................................ $ 85
---
---
</TABLE>
A reconciliation of income taxes computed at the French statutory rate
(36.67%) to the income tax benefit is as follows (in thousands):
<TABLE>
<S> <C>
Income taxes computed at the French statutory rate.................... $ 57
Amortization of distribution rights not deductible for tax............ 28
---
Total............................................................. $ 85
---
---
</TABLE>
Deferred taxes reflect the net tax effects of temporary differences between
the carrying amount of assets and liabilities for financial reporting purposes
and the amount used for income tax purposes.
F-47
<PAGE>
USL FINANCE S.A.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
PERIOD FROM NOVEMBER 1, 1995 THROUGH MAY 5, 1996
7. INCOME TAXES (CONTINUED)
Significant components of the Company's deferred taxes consist of the following
at May 5, 1996 (in thousands):
<TABLE>
<S> <C>
Deferred tax assets:
Net operating loss carryforwards...................................... $ 8
Deferred start-up costs............................................... 11
Other................................................................. 1
---
20
Deferred tax liabilities:
Maintenance recognized as a purchase accounting adjustment............ 25
---
Net deferred tax liability.............................................. $ (5)
---
---
</TABLE>
8. EMPLOYEE RETIREMENT PLANS
The Company contributes to government pensions for personnel in France in
accordance with French law based on the salaries of the individuals. There
exists no actuarial liability in connection with these plans. French law also
requires payment of a lump sum retirement indemnity to employees based upon
years of service and compensation at retirement. Benefits do not vest prior to
retirement. The Company's obligation at May 5, 1996 was immaterial.
9. OPERATING LEASE COMMITMENTS
The Company leases its facilities and certain equipment under operating
leases that expire through 2002. Future minimum lease payments under operating
leases due for the periods from May 5, 1996 through January 31, 1997 and for
fiscal years ending January 31 are as follows (in thousands):
<TABLE>
<S> <C>
May 5, 1996 through January 31, 1997.................................... $ 156
12 month periods ending January 31, 1998................................ 208
1999.................................................................... 208
2000.................................................................... 122
2001 and thereafter..................................................... 1
-----
$ 695
-----
-----
</TABLE>
Rental expense for the period from November 1, 1995 through May 5, 1996 was
approximately $108,000.
F-48
<PAGE>
UNDERWRITING
Subject to the terms and conditions of the Underwriting Agreement, the
Company has agreed to sell to each of the Underwriters named below, and each of
the Underwriters, for whom Goldman, Sachs & Co., Alex. Brown & Sons
Incorporated, Robertson, Stephens & Company LLC, and SoundView Financial Group,
Inc. are acting as representatives, has severally agreed to purchase from the
Company, the respective number of shares of Common Stock set forth opposite its
name below:
<TABLE>
<CAPTION>
NUMBER OF SHARES
UNDERWRITER OF COMMON STOCK
- ---------------------------------------------------------------------------------------------- ------------------
<S> <C>
Goldman, Sachs & Co. .........................................................................
Alex. Brown & Sons Incorporated...............................................................
Robertson, Stephens & Company LLC.............................................................
SoundView Financial Group, Inc................................................................
------------------
Total................................................................................... 5,000,000
------------------
------------------
</TABLE>
Under the terms and conditions of the Underwriting Agreement, the
Underwriters are committed to take and pay for all of the shares offered hereby,
if any are taken.
The Underwriters propose to offer the shares of Common Stock in part
directly to the public at the initial public offering price set forth on the
cover page of this Prospectus, and in part to certain securities dealers at such
price less a concession of $ per share. The Underwriters may allow, and
such dealers may reallow, a concession not in excess of $ per share to
certain brokers and dealers. After the shares of Common Stock are released for
sale to the public, the offering price and other selling terms may from time to
time be varied by the representatives.
The Company has granted to the Underwriters an option exercisable for 30
days after the date of this Prospectus to purchase up to an aggregate of 750,000
additional shares of Common Stock solely to cover over-allotments, if any. If
the Underwriters exercise their over-allotment option, the Underwriters have
severally agreed, subject to certain conditions, to purchase approximately the
same percentage thereof that the number of shares to be purchased by each of
them, as shown in the foregoing table, bears to the 5,000,000 shares of Common
Stock offered hereby.
The Company has agreed, with certain limited exceptions, that, during the
period beginning from the date of this Prospectus and continuing to and
including the date 180 days after the date of the Prospectus, not to offer,
sell, contract to sell, or otherwise dispose of any securities of the Company
that are substantially similar to the shares of Common Stock including but not
limited to any securities that are convertible into, or exchangeable for, or
that represent the right to receive Common Stock or any such substantially
similar securities without the prior written consent of the designated
representative of the Underwriters, except for the shares of Common Stock
offered in connection with the offering and except that the Company may issue
securities pursuant to employee stock plans and currently outstanding options.
During and after the offering, the Underwriters may purchase and sell the
Common Stock in the open market. These transactions may include overallotment
and stabilizing transactions, "passive"
U-1
<PAGE>
market making (see below) and purchases to cover syndicate short positions
created in connection with the offering. The Underwriters also may impose a
penalty bid, whereby selling concessions allowed to syndicate members or other
broker-dealers in respect of the Common Stock sold in the offering for their
account may be reclaimed by the syndicate if such securities are repurchased by
the syndicate in stabilizing or covering transactions. These activities may
stabilize, maintain or otherwise affect the market price of the Common Stock
which may be higher than the price that might otherwise prevail in the open
market. These transactions may be effected on the Nasdaq National Market, and
these activities, if commenced, may be discontinued at any time.
The representatives of the Underwriters have informed the Company that they
do not expect sales to accounts over which the Underwriters exercise
discretionary authority to exceed five percent of the total number of shares of
Common Stock offered by them.
Prior to this offering, there has been no public market for the shares. The
initial public offering price will be negotiated among the Company and the
representatives. Among the factors to be considered in determining the initial
public offering price of the Common Stock, in addition to prevailing market
conditions, will be the Company's historical performance, estimates of the
business potential and earnings prospects of the Company, an assessment of the
Company's management and the consideration of the above factors in relation to
market valuations of companies in related businesses.
In connection with this offering, the Underwriters have reserved
approximately 535,714 shares of Common Stock for sale at the initial public
offering price to persons associated with the Company, including $2,000,000
worth of Common Stock (or approximately 285,714 shares based on an estimated
initial public offering price of $7.00 per share) that has been reserved for
sale to Digital in connection with the acquisition by the Company of exclusive
rights to certain software products from Digital. The remaining 250,000 shares
have been reserved for issuance to officers, directors and employees of the
Company and certain other persons who have business or personal relationships
with the Company or its employees.
The number of shares available for sale to the general public will be
reduced to the extent any reserved shares are purchased. Any reserved shares not
so purchased will be offered by the Underwriters on the same basis as the other
shares offered hereby.
The Company has agreed to indemnify the several Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933.
U-2
<PAGE>
BEA--DESCRIPTION OF GRAPHICS
Set forth on the inside back cover are three concentric circles. The inner
circle contains the words "BEA TUXEDO." The middle circle is divided into four
equal quadrants. The upper right hand quadrant contains the caption "Objects -
BEA OBJECTBROKER"; the lower right hand quadrant contains the caption "BEA JOLT
Internet"; the upper left hand quadrant contains the caption "Legacy - BEA TP
BLUE BEA CONNECT"; the lower left hand quadrant contains the caption "BEA
MESSAGEQ - Messaging". The outer circle contains three captions: in the upper
left hand corner is set forth the caption "Development - BEA BUILDER", in the
upper right hand corner is set forth the caption "Management - BEA MANAGER", at
the bottom is set forth the caption "CONSULTING - TRAINING - SUPPORT Services".
Above the graphics is set forth the caption "THE BEA ENTERPRISE TRANSACTION
FRAMEWORK". Underneath the graphics is set forth the following text:
"The BEA Enterprise Transaction Framework is an integrated middleware
software platform, based upon BEA TUXEDO, for developing, deploying, and
managing distributed mission-critical applications.
BEA TUXEDO provides distributed transaction processing and application
messaging capabilities, as well as the full complement of services necessary to
build and run these applications.
BEA Jolt extends the capabilities of BEA TUXEDO to the Internet and
intranets without the need for additional application programming.
BEA TP Blue provides mainframe-to-UNIX and mainframe-to-NT applications
portability, compatibility, and connectivity for CICS-based transaction
processing.
BEA Connect allows applications to access remote applications services on
mainframes or other hosts.
BEA Builder enables programmers to use common development environments to
develop BEA TUXEDO-based applications.
BEA Manager extends the native BEA TUXEDO management capabilities by
allowing it to integrate with third-party management frameworks.
BEA ObjectBroker is an environment for managing and communicating among
object-oriented application components. The Company has entered into an
agreement, subject to closing thereof, to acquire exclusive rights to
ObjectBroker from Digital Equipment Corporation.
BEA MessageQ provides interoperability among heterogeneous applications. The
Company has entered into an agreement, subject to closing thereof, to acquire
exclusive rights to BEA MessageQ from Digital Equipment Corporation.
BEA's services provide customers with training, consulting, and technical
support for their mission-critical applications."
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
<PAGE>
- ----------------------------------------------
----------------------------------------------
- ----------------------------------------------
----------------------------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES TO
WHICH IT RELATES OR AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY SUCH
SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL.
NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER
ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE INFORMATION CONTAINED
HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
Prospectus Summary...................... 3
Risk Factors............................ 6
Use of Proceeds......................... 17
Dividend Policy......................... 17
Capitalization.......................... 18
Dilution................................ 19
Selected Consolidated Financial Data.... 20
Management's Discussion and
Analysis of Financial Condition
and Results of Operations............. 21
Business................................ 33
Management.............................. 55
Principal Stockholders.................. 62
Certain Transactions.................... 64
Description of Capital Stock............ 66
Shares Eligible for Future Sale......... 68
Legal Matters........................... 69
Experts................................. 70
Additional Information.................. 70
Index to Consolidated Financial
Statements............................ F-1
Underwriting............................ U-1
</TABLE>
THROUGH AND INCLUDING , 1997 (25 DAYS AFTER THE DATE OF THIS
PROSPECTUS), ALL DEALERS EFFECTING TRANSACTIONS IN THE COMMON STOCK, WHETHER OR
NOT PARTICIPATING IN THIS DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS.
THIS IS IN ADDITION TO THE OBLIGATION OF DEALERS TO DELIVER A PROSPECTUS WHEN
ACTING AS UNDERWRITERS AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR
SUBSCRIPTIONS.
5,000,000 SHARES
BEA SYSTEMS, INC.
COMMON STOCK
(PAR VALUE $0.001 PER SHARE)
--------------------
[LOGO]
--------------------
GOLDMAN, SACHS & CO.
ALEX. BROWN & SONS INCORPORATED
ROBERTSON, STEPHENS & COMPANY
SOUNDVIEW FINANCIAL GROUP, INC.
REPRESENTATIVES OF THE UNDERWRITERS
- ----------------------------------------------
----------------------------------------------
- ----------------------------------------------
----------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 24. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the General Corporate Law of the State of Delaware, the
Registrant has broad powers to indemnify its directors and officers against
liabilities they may incur in such capacities, including liabilities under the
Securities Act of 1933, as amended (the "Securities Act"). The Registrant's
Amended and Restated Bylaws (Exhibit 3.3 hereto) also provide for mandatory
indemnification of its directors and executive officers, and permissive
indemnification of its employees and agents, to the fullest extent permissible
under Delaware law.
The Registrant's Amended and Restated Certificate of Incorporation (Exhibit
3.2 hereto) provides that the liability of its directors for monetary damages
shall be eliminated to the fullest extent permissible under Delaware law.
Pursuant to Delaware law, this includes elimination of liability for monetary
damages for breach of the directors' fiduciary duty of care to the Registrant
and its Stockholders. These provisions do not eliminate the directors' duty of
care and, in appropriate circumstances, equitable remedies such as injunctive or
other forms of non-monetary relief will remain available under Delaware law. In
addition, each director will continue to be subject to liability for breach of
the director's duty of loyalty to the Registrant, for acts or omissions not in
good faith or involving intentional misconduct, for knowing violations of law,
for any transaction from which the director derived an improper personal
benefit, and for payment of dividends or approval of stock repurchases or
redemptions that are unlawful under Delaware law. The provision also does not
affect a director's responsibilities under any other laws, such as the federal
securities laws or state or federal environmental laws.
Prior to the effective date of the Registration Statement, the Registrant
will have entered into agreements with its directors and certain of its
executive officers that require the Registrant to indemnify such persons against
expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred (including expenses of a derivative action) in connection
with any proceeding, whether actual or threatened, to which any such person may
be made a party by reason of the fact that such person is or was a director or
officer of the Registrant or any of its affiliated enterprises, provided such
person acted in good faith and in a manner such person reasonably believed to be
in or not opposed to the best interests of the Registrant and, with respect to
any criminal proceeding, had no reasonable cause to believe his or her conduct
was unlawful. The indemnification agreements also set forth certain procedures
that will apply in the event of a claim for indemnification thereunder.
The Registrant intends to obtain in conjunction with the effectiveness of
the Registration Statement a policy of directors' and officers' liability
insurance that insures the Company's directors and officers against the cost of
defense, settlement or payment of a judgment under certain circumstances.
The Underwriting Agreement filed as Exhibit 1.1 to this Registration
statement provides for indemnification by the Underwriters of the Registrant and
its officers and directors for certain liabilities arising under the Securities
Act or otherwise.
II-1
<PAGE>
ITEM 25. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses to be paid by the Registrant in connection with the
distribution of the securities being registered, other than underwriting
discounts and commissions, are as follows:
<TABLE>
<CAPTION>
AMOUNT*
-------------
<S> <C>
Securities and Exchange Commission Filing Fee.................................. $ 13,069
NASD Filing Fee................................................................ 4,813
Nasdaq National Market Listing Fee............................................. 30,000
Accounting Fees and Expenses................................................... 1,300,000
Blue Sky Fees and Expenses..................................................... 25,000
Legal Fees and Expenses........................................................ 300,000
Transfer Agent and Registrar Fees and Expenses................................. 15,000
Printing Expenses.............................................................. 375,000
Miscellaneous Expenses......................................................... 37,118
-------------
Total...................................................................... $ 2,100,000
-------------
-------------
</TABLE>
- --------------
* All amounts are estimates except the SEC filing fee, the NASD filing fee and
the Nasdaq National Market listing fee.
ITEM 26. RECENT SALES OF UNREGISTERED SECURITIES
Since the Registrant's inception in January 1995 through February 28, 1997,
the Registrant has issued and sold the following unregistered securities:
1. During the period, the Registrant granted stock options to employees,
directors and consultants under its stock incentive plan covering an aggregate
of 7,975,575 shares of the Registrant's Common Stock, at exercise prices ranging
from $0.0100 to $6.00, with a weighted average exercise price of $1.04 per
share.
2. During the period, the Registrant issued and sold an aggregate of
621,408 shares of its Common Stock to 22 employees and consultants for cash and
services in the aggregate amount of $149,601 upon exercise of stock options
granted pursuant to the Registrant's stock incentive plan, at exercise prices
ranging from $0.01 to $0.285, with a weighted average exercise price of $0.241
per share.
3. During the period, the Registrant issued and sold an aggregate of
10,174,000 shares of its Common Stock to Warburg, Pincus Ventures, L.P. and
certain employees, directors and consultants for an aggregate purchase price of
$2,073,590. Of such shares of Common Stock, on February 1, 1995 and September
28, 1995, 2,506,828 shares of Common Stock were sold to William T. Coleman III
for $378,466 payable $281,000 in cash and $97,446 by an installment note;
1,671,586 shares of Common Stock were sold to Edward W. Scott, Jr. for $252,402
payable $4,000 in cash and $248,402 by an installment note; and 1,671,586 shares
of Common Stock were sold to Alfred S. Chuang for $252,402 payable $54,000 in
cash and $198,402 by an installment note.
4. During the period, the Registrant issued and sold an aggregate of
17,166,000 shares of its Series A Preferred Stock (convertible into 34,332,000
shares of Common Stock) to Warburg, Pincus Ventures, L.P. and certain directors
for an aggregate purchase price of $29,182,200.
5. During the period, the Registrant issued and sold an aggregate of
19,847,800 shares of its Series B Preferred Stock (convertible into 3,191,966
and 3,209,236 shares of Common Stock at January 31, 1997 and February 28, 1997,
respectively, at an assumed initial public offering price of $7.00) to Warburg,
Pincus Ventures, L.P. for an aggregate purchase price of $19,847,800.
II-2
<PAGE>
The sale and issuance of securities in the transactions described in
paragraphs 1, 2, 3, 4 and 5 above were deemed to be exempt from registration
under the Securities Act by virtue of Rule 701 promulgated thereunder in that
they were offered and sold either pursuant to written compensatory benefit plans
or pursuant to a written contract relating to compensation, as provided by Rule
701 or were deemed to be exempt from registration under the Securities Act by
virtue of Section 4(2) thereof.
Appropriate legends were affixed to the stock certificates issued in the
above transactions. Similar legends were imposed in connection with any
subsequent sales of any such securities. No Underwriters were employed in any of
the above transactions.
ITEM 27. EXHIBITS
The exhibits are as set forth in the Exhibit Index.
ITEM 28. UNDERTAKINGS
The Registrant hereby undertakes to provide the Underwriters at the closing
specified in the Underwriting Agreement certificates in such denominations and
registered in such names as required by the Underwriters to permit prompt
delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended (the "Act") may be permitted to directors, officers and
controlling persons of the issuer pursuant to the foregoing provisions, or
otherwise, the issuer 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 issuer 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
issuer 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.
The Registrant hereby undertakes that:
(1) For determining any liability under the Securities Act, the information
omitted from the form of prospectus filed as part of this Registration Statement
in reliance upon Rule 430A and contained in a form of prospectus filed by the
issuer pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act
shall be deemed to be part of this Registration Statement as of the time the
Commission declared it effective.
(2) For determining any liability under the Securities Act, treat each
post-effective amendment that contains a form of prospectus as a new
registration statement for the securities offered in the registration statement,
and that offering of the securities at that time as the initial BONA FIDE
offering of those securities.
II-3
<PAGE>
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, as
amended, the registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form SB-2 and authorized this
Amendment No. 2 to Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Sunnyvale, State of
California on April 3, 1997.
<TABLE>
<S> <C> <C>
BEA SYSTEMS, INC.
By: /s/ WILLIAM T. COLEMAN III
-----------------------------------------
William T. Coleman III
PRESIDENT, CHIEF EXECUTIVE OFFICER AND
DIRECTOR
</TABLE>
In accordance with the requirements of the Securities Act of 1933, this
Amendment No. 2 to Registration Statement has been signed by the following
persons in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ ---------------------------- -----------------
<C> <S> <C>
President, Chief Executive
/s/ WILLIAM T. COLEMAN III Officer, Chairman of the
- ------------------------------ Board and Director April 3, 1997
William T. Coleman III (Principal Executive
Officer)
Executive Vice President,
/s/ STEVE L. BROWN Chief Financial Officer
- ------------------------------ and Secretary (Principal April 3, 1997
Steve L. Brown Financial and Accounting
Officer)
/s/ EDWARD W. SCOTT, JR.
- ------------------------------ Director April 3, 1997
Edward W. Scott, Jr.
/s/ STEWART K.P. GROSS*
- ------------------------------ Director April 3, 1997
Stewart K.P. Gross
/s/ WILLIAM H. JANEWAY*
- ------------------------------ Director April 3, 1997
William H. Janeway
/s/ CARY J. DAVIS*
- ------------------------------ Director April 3, 1997
Cary J. Davis
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ ---------------------------- -----------------
<C> <S> <C>
/s/ CAROL BARTZ*
- ------------------------------ Director April 3, 1997
Carol Bartz
/s/ DEAN MORTON*
- ------------------------------ Director April 3, 1997
Dean Morton
* By: /s/ STEVE L. BROWN
- ------------------------------
Steve L. Brown
ATTORNEY-IN-FACT
</TABLE>
II-5
<PAGE>
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the captions "Selected
Consolidated Financial Data" and "Experts" and to the use of our report dated
March 10, 1997, except for Note 14, as to which the date is March 19, 1997, in
Amendment No. 2 to the Registration Statement (Form SB-2 No. 333-20791) and
related Prospectus of BEA Systems, Inc. for the registration of 5,750,000 shares
of its common stock.
/s/ ERNST & YOUNG LLP
San Jose, California
April 1, 1997
II-6
<PAGE>
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" and to
the use of our report dated January 10, 1997, with respect to the financial
statements of Information Management Company included in Amendment No. 2 to the
Registration Statement (Form SB-2 No. 333-20791) and related Prospectus of BEA
Systems, Inc. for the registration of 5,750,000 shares of its common stock.
/s/ ERNST & YOUNG LLP
Metro Park, New Jersey
April 1, 1997
II-7
<PAGE>
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" and to
the use of our report dated January 20, 1997, with respect to the statements of
operations and cash flows of Independence Technologies, Inc. included in
Amendment No. 2 to the Registration Statement (Form SB-2 No. 333-20791) and
related Prospectus of BEA Systems, Inc. for the registration of 5,750,000 shares
of its common stock.
/s/ ERNST & YOUNG LLP
San Jose, California
April 1, 1997
II-8
<PAGE>
CONSENT OF ERNST & YOUNG AUDIT, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" and to
the use of our report dated December 24, 1996 with respect to the financial
statements of USL Finance S.A. included in Amendment No. 2 to the Registration
Statement (Form SB-2 No. 333-20791) and related Prospectus of BEA Systems, Inc.
for the registration of 5,750,000 shares of its common stock.
/s/ ERNST & YOUNG Audit
Paris, France
April 1, 1997
II-9
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT
- ----------- --------------------------------------------------------------------------------------------------------
<C> <S>
1.1 DEG. Form of Underwriting Agreement..........................................................................
3.1 DEG. Restated Certificate of Incorporation of the Registrant, as currently in effect.........................
3.2 Form of Registrant's Restated Certificate of Incorporation to be adopted prior to completion of the
offering..............................................................................................
3.3 DEG. Registrant's Bylaws, as currently in effect along with Certificate of Amendment of Bylaws, dated
November 1995.........................................................................................
3.4 DEG. Form of Registrant's Amended and Restated Bylaws, to be adopted upon completion of the offering.........
3.5 Form of Registrant's Amended and Restated Certificate of Incorporation to be adopted upon completion of
the offering..........................................................................................
4.1 DEG. Reference is made to Exhibits 3.1 and 3.2, 3.3 and 3.4..................................................
5.1 DEG. Opinion of Morrison & Foerster LLP as to the legality of the Common Stock...............................
10.1 DEG. Investor Rights Agreement by and among the Registrant and William T. Coleman III, Alfred S. Chuang,
Edward W. Scott, Jr. and Warburg, Pincus Ventures, L.P., dated September 28, 1995.....................
10.2 DEG. Form of Indemnification Agreement between the Registrant and each of its executive officers and
directors.............................................................................................
10.3 DEG. Employment Agreement between the Registrant and William T. Coleman III dated as of September 28, 1995...
10.4 DEG. Employment Agreement between the Registrant and Edward W. Scott, Jr. dated as of September 28, 1995.....
10.5 DEG. Employment Agreement between the Registrant and Alfred S. Chuang dated as of September 28, 1995.........
10.6 DEG. Form of Promissory Notes entered into between the Registrant, William T. Coleman III, Edward W. Scott,
Jr. and Alfred S. Chuang each dated September 28, 1995................................................
10.7 DEG. Promissory Note secured by deed of trust entered into between the Registrant and Edward W. Scott, Jr.
and Cheryl S. Scott, dated December 12, 1995..........................................................
10.8+ Agreement between the Registrant and Novell, dated January 24, 1996, and Amendments thereto.............
10.9 DEG. Lease Agreement between the Registrant and William H. and Leila A. Cilker dated November 15, 1995 and
First Amendment thereto...............................................................................
10.10 DEG. Stock Purchase Agreement between the Registrant and Warburg, Pincus Ventures, L.P. dated September 28,
1995, and Amendments thereto..........................................................................
10.11 DEG. Registrant's 1995 Flexible Stock Incentive Plan, including forms of agreements thereunder...............
10.12 DEG. Registrant's 1997 Stock Incentive Plan, including forms of agreements thereunder.
10.13 DEG. Registrant's 1997 Employee Stock Purchase Plan, including forms of agreements thereunder................
10.14 DEG. Subordinated Bridge Line of Credit between the Registrant and Warburg, Pincus Ventures, L.P., dated
January 22, 1997......................................................................................
10.15+ License Agreement between the Registrant and Digital Equipment Corporation, dated January 31, 1997 and
Amendments thereto....................................................................................
10.16 DEG. 1997 Management Bonus Plan..............................................................................
11.1 DEG. Statement regarding calculation of net income (loss) per share..........................................
21.1 DEG. List of Significant Subsidiaries........................................................................
23.1 Consent of Morrison & Foerster LLP. Reference is made to Exhibit 5.1....................................
23.2 Consent of Ernst & Young LLP, Independent Auditors. Reference is made to Page II-6......................
23.3 Consent of Ernst & Young LLP, Independent Auditors. Reference is made to Page II-7......................
23.4 Consent of Ernst & Young LLP, Independent Auditors. Reference is made to Page II-8......................
23.5 Consent of Ernst & Young Audit, Indepentent Auditors. Reference is made to Page II-9....................
24.1 DEG. Powers of Attorney. Reference is made to pages II-4 and II-5............................................
27.1 DEG. Financial Data Schedule.................................................................................
</TABLE>
- --------------
+ Confidential treatment requested as to portions of this exhibit.
DEG. Previously filed.
<PAGE>
RESTATED CERTIFICATE OF INCORPORATION
OF
BEA SYSTEMS, INC.
Pursuant to Sections 242 and 245
of the General Corporation Law of the State of
Delaware
_______________________________________________
BEA SYSTEMS, INC. (the "Corporation"), a Corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware (the
"General Corporation Law") having filed its original Certificate of
Incorporation under the name BEA Enterprises, Inc. on January 20, 1995, does
hereby certify as follows:
That the following resolutions amending and restating the Corporation's
Certificate of Incorporation were duly adopted by the Corporation's Board of
Directors and by the holders of a majority of the Corporation's outstanding
stock entitled to vote thereon and if required, a majority of each class
entitled to vote thereon as a class, in accordance with the provisions of
Sections 242 and 245 of the General Corporation Law by written consent of the
Board of Directors and the stockholders given in accordance with Sections 141
and 228, respectively of the General Corporation Law:
"NOW, THEREFORE, BE IT RESOLVED, that the Certificate of Incorporation
of the Corporation be amended and restated in its entirety as follows:
"FIRST: The name of the corporation (hereinafter called the
"Corporation") is BEA Systems, Inc.
SECOND: The address, including street, number, city and county, of the
registered office of the Corporation in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, in the City of Wilmington, County of New
Castle, Delaware, 19801. The name of the registered agent of the Corporation
in the State of Delaware at such address is the Corporation Trust Company.
THIRD: The nature of the business and the purposes to be conducted
and promoted by the Corporation shall be to conduct any lawful business, to
promote any lawful purpose, and to engage in any lawful act or activity for
which Corporations may be organized under the General Corporation Law of the
State of Delaware.
FOURTH: The Corporation is authorized to issue two classes of
shares, to be designated respectively Common Stock and Preferred Stock. The
total number of shares of Common Stock the Corporation shall have authority
to issue is 115,000,000, of which 35,000,000 are hereby designated "Class B
Common Stock". The total number of
<PAGE>
shares of Preferred Stock the Corporation shall have authority to issue is
40,000,000. The par value of the Common Stock and the Preferred Stock shall be
$0.001 per share.
A description of the respective classes and series of stock and a
statement of the designations, preferences, voting powers, relative,
participating, optional or other special rights and privileges and the
qualifications, limitations and restrictions of the Preferred and Common
Stock are as follows:
1. DESIGNATION AND AMOUNT. There shall be designated a Series A
Preferred Stock (the "Series A Preferred"), and the number of shares
constituting such series shall be 20,000,000, and there shall be designated a
Series B Preferred Stock (the "Series B Preferred"), and the number of shares
constituting such series shall be 20,000,000. Shares of Series A Preferred and
Series B Preferred shall have a par value of $0.001 per share.
2. DIVIDENDS AND DISTRIBUTIONS.
(a) SERIES B PREFERRED. Subject to the provisions for adjustment
hereinafter set forth, the holders of shares of Series B Preferred shall be
entitled to receive, when, as and if declared by the Board of Directors (the
"Board") out of funds legally available for the purpose, an annual cash dividend
in the amount of $.07 per share (adjusted to reflect any stock split, stock
dividend, combination, recapitalization and the like (collectively, a
"Recapitalization") with respect to the Series B Preferred), prior and in
preference to any declaration or payment of any dividend (payable other than in
Common Stock) on the Series A Preferred or the Common Stock of the Corporation.
Such dividends shall be cumulative, and the right to receive such shall accrue
to holders of Series B Preferred to the extent that such cumulative dividends
are not declared or paid in any year.
(b) SERIES A PREFERRED. Subject to the provisions for adjustment
hereinafter set forth and after all cumulative dividends payable with respect to
the Series B Preferred have been declared and paid in accordance with Section
2(a) above, the holders of Series A Preferred shall be entitled to receive,
when, as and if declared by the Board, out of funds legally available for the
purpose, an annual cash dividend in the amount of $.12 per share of Series A
Preferred (as adjusted to reflect any Recapitalization with respect to the
Series A Preferred), prior and in preference to any declaration or payment of
any dividend (payable other than in Common Stock) on the Common Stock of the
Corporation. Such dividends shall not be cumulative, and no right shall accrue
to holders of Series A Preferred by reason of the fact that dividends on such
shares are not declared or paid in any year.
(c) REPURCHASE OF COMMON. Notwithstanding Sections 2(a) and 2(b)
hereof, the Corporation may at any time, out of funds legally available
therefor, repurchase shares of Common Stock of the Corporation (i) issued to or
held by employees, directors or consultants of the Corporation or its
subsidiaries upon termination of their employment or services, pursuant to any
agreement providing for
2
<PAGE>
such right of repurchase, or (ii) issued to or held by any person subject to the
Corporation's right of first refusal to purchase such shares where the purchase
is pursuant to the exercise of such right of first refusal, in either case
whether or not dividends on the Preferred Stock shall have been declared and
paid or funds set aside therefor.
3. LIQUIDATION RIGHTS. In the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary or
involuntary, distributions shall be made to the holders of Series A Preferred
and Series B Preferred in respect of such Series A Preferred and Series B
Preferred before any amount shall be paid to the holders of Common Stock in
respect of such Common Stock, in the following manner:
(a) SERIES B PREFERRED. The holders of Series B Preferred
shall be entitled to be paid first out of the assets of the Corporation
available for distribution to holders of its capital stock an amount per
share equal to $1.00 per share of Series B Preferred, as adjusted to reflect
any Recapitalization of the Series B Preferred, plus all cumulated and unpaid
dividends, if any. If, upon the occurrence of a liquidation, dissolution or
winding up, the assets and funds to be distributed among the holders of the
Series B Preferred shall be insufficient to permit the payment to such
holders of their full liquidation preferences, then the entire assets and
funds of the Corporation legally available for distribution to the holders of
capital stock shall be distributed ratably among the holders of the Series B
Preferred such that the same percentage of the foregoing liquidation
preference is paid to each such holder with respect to the shares of Series B
Preferred such holder then holds.
(b) SERIES A PREFERRED. If assets are remaining after payment
of the full preferential amount with respect to the Series B Preferred set
forth in Section 3(a) above, the holders of the Series A Preferred shall be
entitled to then be paid out of the assets of the Corporation an amount per
share equal to $1.70 per share of Series A Preferred, as adjusted to reflect
any Recapitalization of the Series A Preferred, plus all declared and unpaid
dividends, if any. If, upon the occurrence of a liquidation, dissolution or
winding up, the assets and funds to be distributed among the holders of the
Series A Preferred shall be insufficient to permit the payment to such
holders of their full liquidation preferences, then the entire remaining
assets and funds of the Corporation legally available for distribution to the
holders of capital stock shall be distributed ratably among the holders of
the Series A Preferred such that the same percentage of the foregoing
liquidation preferences is paid to each such holder with respect to the
shares of Series A Preferred each holder then holds.
(c) COMMON STOCK. If assets are remaining after payment of
the full preferential amount with respect to the Series A Preferred and the
Series B Preferred set forth in Sections 3(a) and 3(b) above, then the
holders of the Common Stock shall be entitled to share ratably based upon
their ownership of Common Stock in all such remaining assets and surplus
funds.
3
<PAGE>
(d) EVENTS DEEMED A LIQUIDATION. For purposes of this Section
3, a liquidation, dissolution or winding up of the Corporation shall be
deemed to be occasioned by and to include the consolidation or merger of the
Corporation with or into any other Corporation or the sale or other transfer
in a single transaction or a series of related transactions of all or
substantially all of the assets of this Corporation, or any other
reorganization of this Corporation unless the stockholders of the Corporation
immediately prior to any such transaction are holders of a majority of the
voting securities of the surviving or acquiring Corporation immediately
thereafter (and for purposes of this calculation equity securities which any
stockholder or the Corporation owned immediately prior to such merger or
consolidation as a stockholder of another party to the transaction shall be
disregarded).
(e) VALUATION OF SECURITIES AND PROPERTY. In the event the
Corporation proposes to distribute assets other than cash in connection with any
liquidation, dissolution or winding up of the Corporation, the value of the
assets to be distributed to the holders of shares of Series A Preferred and
Series B Preferred shall be determined in good faith by the Board. Any
securities not subject to investment letter or similar restrictions on free
marketability shall be valued as follows:
(i) If traded on a securities exchange, the value shall be
deemed to be the average of the security's closing prices on such exchange over
the thirty (30) day period ending three (3) days prior to the distribution;
(ii) If actively traded over-the-counter, the value
shall be deemed to be the average of the closing bid prices over the thirty
(30) day period ending three (3) days prior to the distribution; and
(iii) If there is no active public market, the value shall
be the fair market value thereof as determined in good faith by the Board.
The method of valuation of securities subject to investment letter or
other restrictions on free marketability shall be adjusted to make an
appropriate discount from the market value determined as above in clauses
(i), (ii) or (iii) to reflect the fair market value thereof as determined in
good faith by the Board. The holders of at least 50% of the outstanding
Series A Preferred and Series B Preferred, voting together as a single class,
shall have the right to challenge any determination by the Board of fair
market value pursuant to this Section 3(e), in which case the determination
of fair market value shall be made by an independent appraiser selected
jointly by the Board and the challenging parties, the cost of such appraisal
to be borne equally by the Corporation and the challenging parties.
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4. REDEMPTION RIGHTS.
(a) HOLDER'S REDEMPTION RIGHTS.
(i) Each holder of Series B Preferred ("Series B
Holder") shall have the right, exercisable at any time following September
30, 2001 and upon written notice to the Corporation in accordance with
Section 4(a)(iii) ("Redemption Notice"), to cause the Corporation to redeem,
and the Corporation shall redeem (unless prevented by law), all or a portion
of the shares of Series B Preferred then held by such Holder on such date
designated by such Holder in accordance with Section 4(a)(iii) below
("Designated Redemption Date").
(ii) The price to be paid for each share of Series B
Preferred redeemed pursuant to this Section 4 shall be $1.00 per share, plus an
amount equal to all accrued and unpaid dividends (the "Redemption Price").
(iii) The redemption rights of each Series B Holder under
this Section 4(a) shall be exercised by providing written notice to the
Corporation at least ten (10) but not more than sixty (60) days prior to any
Designated Redemption Date. From and after any Designated Redemption Date with
respect to which the redemption rights under this Section 4(a) have been
exercised, all dividends on shares of Series B Preferred to be redeemed pursuant
to this Section 4(a), shall cease to accrue, and all rights of the holders
thereof as stockholders of the Corporation shall cease, except the right to
receive payment in full of the Redemption Price for such shares upon surrender
of certificates representing such shares. Shares of the Series B Preferred
redeemed by the Corporation pursuant to this Section 4(a) shall be deemed
retired and may not under any circumstances thereafter be reissued or otherwise
disposed of by the Corporation.
(iv) At any time on or after any Designated Redemption
Date, the holders of the Series B Preferred Stock to be redeemed on such date
shall be entitled to receive payment of the Redemption Price therefore upon
actual delivery to the Corporation or its agents of the certificates
representing the shares to be redeemed. If upon any Designated Redemption
Date the assets of the Corporation available for redemption shall be
insufficient to pay all Series B Holders the full amounts to which they shall
be entitled pursuant to this Section 4(a), the Corporation shall redeem on a
PRO RATA basis such number of shares of the Series B Preferred as it shall
have legally available funds to redeem, and the remainder of the shares of
the Series B Preferred required to be redeemed shall be redeemed on the
earliest practicable date next following the day on which the Corporation
shall first have funds legally available for the redemption of such shares.
On and after any Designated Redemption Date, all rights in respect of the
shares of the Series B Preferred to be redeemed, except the right to receive
the Redemption Price as herein provided, shall cease and terminate (unless
default shall be made by the Corporation in the payment of the Redemption
Price as herein provided, in which event such rights shall be exercisable
until such default is cured), and such
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shares shall no longer be deemed to be outstanding, whether or not the
certificates representing such shares have been received by the Corporation.
(b) MANDATORY REDEMPTION ON INITIAL PUBLIC OFFERING.
(i) Upon the closing of the Initial Public Offering (as
defined in Section 5(b) below), each share of Series B Preferred, unless the
holder thereof shall elect to convert such holder's Series B Preferred as of
such closing pursuant to Section 5(c) below, shall be redeemed by the
Corporation (unless the Corporation is prevented by law from effecting such
redemption). To the extent shares of Series B Preferred are to be redeemed at a
later date pursuant to any provision of this Section 4, such redemption shall be
accelerated pursuant to this Section 4(b) and occur as of the Closing of the
Initial Public Offering.
(ii) The price to be paid for each share of Series B
Preferred redeemed pursuant to this Section 4(b) shall be the Redemption Price.
(iii) At any time on or after the Initial Public Offering,
the holders of record of shares of the Series B Preferred to be redeemed on any
such date shall be entitled to receive payment of the Redemption Price for the
shares being redeemed upon actual delivery to the Corporation or its agents of
the certificates representing the shares to be redeemed.
(iv) If upon any Initial Public Offering the assets of the
Corporation available for redemption shall be insufficient to pay all holders of
the Series B Preferred the full amounts to which they shall be entitled pursuant
to this Section 4(b), the Corporation shall redeem on a PRO RATA basis such
number of shares of the Series B Preferred as it shall have legally available
funds to redeem, and the remainder of the shares of the Series B Preferred
required to be redeemed shall be redeemed on the earliest practicable date next
following the day on which the Corporation shall first have funds legally
available for the redemption of such shares. On and after the Initial Public
Offering, all rights in respect of the shares of the Series B Preferred to be
redeemed, except the right to receive the Redemption Price as herein provided,
shall cease and terminate (unless default shall be made by the Corporation in
payment of the Initial Public Offering Price as herein provided, in which event
such rights shall be exercisable until such default is cured), and such shares
shall no longer be deemed to be outstanding, whether or not the certificates
representing such shares have been received by the Corporation.
(c) CORPORATION'S REDEMPTION RIGHTS.
(i) The Corporation, at its option, may redeem, at any
time and from time to time, any or all of the outstanding shares of the
Series B Preferred (any such date being referred to as a "Designated
Redemption Date"). Any proposed redemption of shares of the Series B
Preferred pursuant to this Section 4(c) may be made only if prior notice is
given by the Corporation, at least 30 but not more than 60 days
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prior to the applicable Redemption Date, to all holders of record of shares of
the Series B Preferred Stock at their respective addresses appearing on the
books of the Corporation. Such notice shall specify (i) the number of shares
being redeemed, and (ii) the Designated Redemption Date. From and after the
Designated Redemption Date, all dividends upon the shares of the Series B
Preferred to be redeemed shall cease to accrue, and all rights of the holders
thereof as stockholders of the Corporation, shall cease except the right to
receive payment in full of the applicable Redemption Price.
(ii) The price to be paid for each share of the Series B
Preferred to be redeemed pursuant to this Section 4(c) shall be the Redemption
Price. Redemptions of less than all of the outstanding shares of the Series B
Preferred pursuant to this Section 4(c) shall be made PRO RATA among all Series
B Holders. Shares of the Series B Preferred redeemed by the Corporation
pursuant to this Section 4(c) shall be deemed retired and may not under any
circumstances thereafter be reissued or otherwise disposed of by the
Corporation.
(iii) At any time on or after any Designated Redemption
Date, the Series B Holders as to those shares of the Series B Preferred to be
redeemed on any such date shall be entitled to receive payment of the Redemption
Price for the shares being redeemed upon actual delivery to the Corporation or
its agents of the certificates representing the shares to be redeemed.
(iv) If upon any Designated Redemption Date the assets of
the Corporation available for redemption shall be insufficient to pay all
holders of the Series B Preferred the full amounts to which they shall be
entitled pursuant to this Section 4(c), the Corporation shall redeem on a PRO
RATA basis such number of shares of the Series B Preferred as it shall have
legally available funds to redeem, and the remainder of the shares of the
Series B Preferred required to be redeemed shall be redeemed on the earliest
practicable date next following the day on which the Corporation shall first
have funds legally available for the redemption of such shares. On and after
the Designated Redemption Date, all rights in respect of the shares of the
Series B Preferred to be redeemed, except the right to receive the Redemption
Price as herein provided, shall cease and terminate (unless default shall be
made by the Corporation in payment of the Redemption Price as herein provided,
in which event such rights shall be exercisable until such default is cured),
and such shares shall no longer be deemed to be outstanding, whether or not the
certificates representing such shares have been received by the Corporation.
5. CONVERSION. The holders of the Series A Preferred and the Series B
Preferred have conversion rights as follows (the "Conversion Rights"):
(a) RIGHT TO CONVERT SERIES A PREFERRED. Subject to Section 5(d)
below, each share of Series A Preferred shall initially be convertible, at the
option of the holder thereof, at any time after the date of issuance of such
share at the office of the Corporation or any transfer agent for the Series A
Preferred into the number
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of fully paid and non-assessable shares of Common Stock which results from
dividing the Series A Conversion Price (as hereinafter defined) per share in
effect at the time of conversion into the per share Conversion Value (as
hereinafter defined) of such series. The initial Conversion Price shall be
$1.70, and the Conversion Value of the Series A Preferred shall be $1.70. The
initial Series A Conversion Price shall be subject to adjustment from time to
time as provided in Section 5(f) hereof. Upon conversion, all declared and
unpaid dividends on the Series A Preferred shall be paid in cash, to the extent
legally permitted.
(b) AUTOMATIC CONVERSION OF SERIES A PREFERRED. Subject to
Section 5(d) below, each share of Series A Preferred shall automatically be
converted into shares of Common Stock upon (i) the closing the Initial Public
Offering involving the sale of securities for the account of the Corporation to
the public, the gross proceeds of which exceed $10,000,000 at a price to the
public of at least $5.00 per share (appropriately adjusted for any
Recapitalization of the Common Stock), or (ii) the written consent of holders of
not less than two-thirds (2/3) of the then-outstanding shares of Series A
Preferred. For purposes of this Section 5 and Section 4 above, the "Initial
Public Offering" shall mean the first firm commitment underwritten public
offering of the Common Stock of the Corporation pursuant to an effective
registration statement declared effective under the Securities Act of 1933, as
amended (other than a registration effected by the Corporation in connection
with an employee benefit plan or a Rule 145 transaction, as defined in Rule 145
of the Securities and Exchange Commission).
(c) RIGHT TO CONVERT SERIES B PREFERRED. Subject to Section 5(d)
below, each share of Series B Preferred shall be convertible, at the option of
the holder thereof, at any time after the date of issuance of such share and on
or prior to the fifth (5th) day prior to the Redemption Date fixed by the
Redemption Notice at the office of the Corporation or any transfer agent for the
Series B Preferred into the number of fully paid and non-assessable shares of
Common Stock which results from dividing the Series B Liquidation Amount (as
hereinafter defined) by the Series B Conversion Value (as hereinafter defined).
The Series B Liquidation Amount shall be the full amount then distributable with
respect to each share of Series B Preferred pursuant to Section 3(a) hereof upon
a liquidation, dissolution or winding up of the Corporation. The Series B
Conversion Value shall be: (i) in the event of any conversion as of the closing
of the Initial Public Offering, an amount equal to the gross proceeds per share
of Common Stock paid to the Company (as reduced for underwriter commissions and
discounts as calculated on a per share basis) pursuant to the Initial Public
Offering; and (ii) in the event of a conversion not subject to the preceding
clause (i), the fair market value of a share of the Company's Common Stock, as
is determined in good faith by the Board as of the date of such conversion.
(d) CONVERSION TO CLASS B COMMON STOCK. Notwithstanding any
term or condition of this Section 5 and in the event of any voluntary or
automatic conversion pursuant to Section 5(a), 5(b) or 5(c) above of any
shares of Series A Preferred Stock or Series B Preferred Stock by a holder
thereof who, after giving effect to
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such conversion, will hold, in combination with any Affiliates (as defined in
Section 10(b)(vii)(A) hereof) more than forty-nine percent (49%) (by voting
power) of the total number of Voting Shares (as defined in Section 10(b)(vii)(D)
hereof) then issued and outstanding, each share of Series A Preferred Stock or
Series B Preferred Stock, which would be converted into Common Stock that would,
in combination with all other Voting Stock held by such holder and its
Affiliates, represent Voting Stock in excess of said forty-nine percent (49%)
amount, shall be convertible into that number of shares of Class B Common Stock
equal to and in lieu of that number of shares of Common Stock into which such
share of Series A Preferred Stock or Series B Preferred Stock would otherwise be
convertible pursuant to this Section 5. In such event and as to any such shares
of Class B Common Stock issuable upon conversion of Series A Preferred Stock and
Series B Preferred Stock, references to Common Stock in this Section 5 shall be
deemed to refer to Class B Common Stock.
(e) MECHANICS OF CONVERSION. Before any holder of Series A
Preferred or Series B Preferred shall be entitled to convert the same into
shares of Common Stock and to receive certificates therefor, such holder
shall surrender the certificate or certificates therefor, duly endorsed, at
the office of the Corporation or of any transfer agent for the Series A
Preferred, and shall give written notice to the Corporation at such office
that such holder elects to convert the same; provided, however, that in the
event of an automatic conversion pursuant to Section 5(b) hereof, the
outstanding shares of Series A Preferred shall be converted automatically
without any further action by the holders of such shares and whether or not
the certificates representing such shares are surrendered to the Corporation
or its transfer agent; and provided further that the Corporation shall not be
obligated to issue certificates evidencing the shares of Common Stock
issuable upon such automatic conversion unless and until the certificates
evidencing such shares of Series A Preferred are either delivered to the
Corporation or its transfer agent as provided above, or the holder notifies
the Corporation or its transfer agent that such certificates have been lost,
stolen or destroyed and executes an agreement satisfactory to the Corporation
to indemnify the Corporation from any loss incurred by it in connection with
such certificates. The Corporation shall, as soon as practicable after such
delivery, or after such agreement and indemnification, issue and deliver at
such office to such holder of Series A Preferred, a certificate or
certificates for the number of shares of Common Stock to which he or she
shall be entitled as aforesaid and a check payable to the holder in the
amount of any declared and unpaid dividends payable pursuant to Section 5(a)
hereof, if any. Such conversion shall be deemed to have been made
immediately prior to the close of business on the date of such surrender of
the shares of Series A Preferred or Series B Preferred to be converted, or,
in the case of automatic conversion, immediately prior to the occurrence of
the event leading to such automatic conversion, and the person or persons
entitled to receive the shares of Common Stock issuable upon such conversion
shall be treated for all purposes as the record holder or holders of such
shares of Common Stock on such date.
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(f) ADJUSTMENTS TO SERIES A CONVERSION PRICE.
(i) SPECIAL DEFINITIONS. For purposes of this Section 5,
the following definitions shall apply:
(1) 'OPTIONS' shall mean rights, options or
warrants to subscribe for, purchase or otherwise acquire either Common Stock
or Convertible Securities.
(2) CONVERTIBLE SECURITIES' shall mean any
evidences of indebtedness, shares or other securities convertible into or
exchangeable for Common Stock.
(3) 'ADDITIONAL SHARES OF COMMON' shall mean all
shares of Common Stock issued (or, pursuant to Section 5(f)(iii), deemed to
be issued) by the Corporation after the Series A Original Issue Date, other
than shares of Common Stock issued or issuable:
(A) upon conversion of shares of Series A
Preferred or Series B Preferred;
(B) to officers, directors or employees of, or
consultants to, the Corporation pursuant to a stock grant, option plan or
purchase plan or other employee stock incentive program or agreement approved by
the Board, not to exceed 9,600,000 shares (which amount of shares gives effect
to any stock split or other change in the Common Stock of the Corporation
through the Filing Date (as defined in Section 11(b)(vii)(B) below)), net of
repurchases and cancellations and expirations (without exercise) of options,
since the incorporation of the Corporation;
(C) as a dividend or distribution on Series A
Preferred or Series B Preferred;
(D) in a transaction described in Section
5(f)(vi); or
(E) by way of dividend or other distribution
on shares of Common Stock excluded from the definition of Additional Shares
of Common by the foregoing clauses (A), (B), (C), (D) or this clause (E).
(ii) 'SERIES A ORIGINAL ISSUE DATE' shall mean the first
date upon which a share of Series A Preferred shall be issued by the
Corporation.
(iii) NO ADJUSTMENT OF SERIES A CONVERSION PRICE. No
adjustment in the Conversion Price of the Series A Preferred shall be made in
respect of the issuance of Additional Shares of Common unless the
consideration per share for an Additional Share of Common issued or deemed to
be issued by the Corporation is less
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than the Series A Conversion Price, in effect on the date of, and immediately
prior to, such issue.
(iv) DEEMED ISSUE OF ADDITIONAL SHARES OF COMMON.
(1) OPTIONS AND CONVERTIBLE SECURITIES. In the
event the Corporation at any time or from time to time after the Series A
Original Issue Date shall issue any Options or Convertible Securities or
shall fix a record date for the determination of holders of any class of
securities entitled to receive any such Options or Convertible Securities,
then the maximum number of shares (as set forth in the instrument relating
thereto without regard to any provisions contained therein for a subsequent
adjustment of such number) of Common Stock issuable upon the exercise of such
Options or, in the case of Convertible Securities and Options therefor, the
exercise of such Options and conversion or exchange of such Convertible
Securities shall be deemed to be Additional Shares of Common issued as of the
time of such issue or, in case such a record date shall have been fixed, as
of the close of business on such record date, provided that Additional Shares
of Common shall not be deemed to have been issued unless the consideration
per share (determined pursuant to Section 5(f)(v) hereof) of such Additional
Shares of Common would be less than the Conversion Price in effect on the
date of and immediately prior to such issue, or such record date, as the case
may be, and provided further that in any such case in which Additional Shares
of Common are deemed to be issued:
(A) except as provided in Section 5(f)(iii), no
further adjustment in the Conversion Price shall be made upon the subsequent
issue of Convertible Securities or shares of Common Stock upon the exercise of
such Options or conversion or exchange of such Convertible Securities;
(B) if such Options or Convertible Securities
by their terms provide, with the passage of time or otherwise, for any change
in the consideration payable to the Corporation, or change in the number of
shares of Common Stock issuable, upon the exercise, conversion or exchange
thereof (other than under or by reason of provisions designed to protect
against dilution), the Conversion Price computed upon the original issue
thereof (or upon the occurrence of a record date with respect thereto) and
any subsequent adjustments based thereon, shall, upon any such increase or
decrease becoming effective, be recomputed to reflect such increase or
decrease insofar as it affects such Options or the rights of conversion or
exchange under such Convertible Securities; and
(C) no readjustment pursuant to clause (B)
above shall have the effect of increasing the Series A Conversion Price to an
amount which exceeds the lower of (1) the Series A Conversion Price on the
original adjustment date or (2) the Series A Conversion Price that would have
resulted from any issuance of Additional Shares of Common between the
original adjustment date and such readjustment date.
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(v) ADJUSTMENT OF SERIES A CONVERSION PRICE UPON ISSUANCE OF
ADDITIONAL SHARES OF COMMON. In the event this Corporation shall issue
Additional Shares of Common (including Additional Shares of Common deemed to be
issued pursuant to Section 5(f)(iii)) after the Series A Original Issue Date
without consideration or for a consideration per share less than the Series A
Conversion Price in effect on the date of and immediately prior to such issue
(such issuance price being referred to herein as the "Dilution Price"), then and
in each such event the Series A Conversion Price of the Series A Preferred or
the Series B Preferred, as applicable, shall be reduced to a price (calculated
to the nearest cent) determined by multiplying such Conversion Price by a
fraction, the numerator of which shall be the number of shares of Common Stock
outstanding immediately prior to such issue plus the number of shares of Common
Stock which the aggregate consideration received by the Corporation for the
total number of Additional Shares of Common so issued would purchase at such
Conversion Price; and the denominator of which shall be the number of shares of
Common Stock outstanding immediately prior to such issue plus the number of such
Additional Shares of Common so issued; provided that, for the purposes of this
Section 5(f)(iv), all shares of Common Stock issuable upon conversion of all
outstanding Series A Preferred and Series B Preferred and all outstanding
Options (provided such Options have an exercise price below the Series A
Conversion Price, immediately prior to such issue) and Convertible Securities
shall be deemed to be outstanding, and, immediately after any Additional Shares
of Common are deemed issued pursuant to Section 5(f)(iii), such Additional
Shares of Common shall be deemed to be outstanding.
(vi) DETERMINATION OF CONSIDERATION. For purposes of
this Section 5(f), the consideration received by the Corporation for the
issue of any Additional Shares of Common shall be computed as follows:
(1) CASH AND PROPERTY: Such consideration shall:
(A) insofar as it consists of cash, be
computed at the aggregate amount of cash received by the Corporation;
(B) insofar as it consists of property other
than cash, be computed at the fair value thereof at the time of such issue,
as determined by Board in the good faith exercise of its reasonable business
judgment; and
(C) in the event Additional Shares of Common are
issued together with other shares or securities or other assets of the
Corporation for consideration which covers both, be the proportion of such
consideration so received, computed as provided in clauses (A) and (B) above, as
determined in good faith by the Board.
(2) OPTIONS AND CONVERTIBLE SECURITIES. The
consideration per share received by the Corporation for Additional Shares of
Common
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deemed to have been issued pursuant to Section 5(f)(iii)(1), relating to Options
and Convertible Securities, shall be determined by dividing
(A) the total amount, if any, received or
receivable by the Corporation as consideration for the issue of such Options
or Convertible Securities, plus the minimum aggregate amount of additional
consideration (as set forth in the instruments relating thereto, without
regard to any provision contained therein for a subsequent adjustment of such
consideration) payable to the Corporation upon the exercise of such Options
or the conversion or exchange of such Convertible Securities, or in the case
of Options for Convertible Securities, the exercise of such Options for
Convertible Securities and the conversion or exchange of such Convertible
Securities, by
(B) the maximum number of shares of Common
Stock (as set forth in the instruments relating thereto, without regard to
any provision contained therein for a subsequent adjustment of such number)
issuable upon the exercise of such Options or the conversion or exchange of
such Convertible Securities.
(vii) OTHER ADJUSTMENTS TO SERIES A CONVERSION PRICE.
(1) SUBDIVISIONS, COMBINATIONS, OR CONSOLIDATIONS
OF COMMON STOCK. In the event the outstanding shares of Common Stock shall
be subdivided, combined or consolidated, by stock split, stock dividend,
combination or like event, into a greater or lesser number of shares of
Common Stock after the Series A Original Issue Date, the Series A Conversion
Price in effect immediately prior to such subdivision, combination,
consolidation or stock dividend shall, concurrently with the effectiveness of
such subdivision, combination or consolidation, be proportionately adjusted.
(2) DISTRIBUTIONS OTHER THAN CASH DIVIDENDS OUT OF
RETAINED EARNINGS. In case the Corporation shall distribute to holders of
its Common Stock shares of its capital stock (other than Common Stock), stock
or other securities of other persons, evidences of indebtedness issued by the
Corporation or other persons, assets (excluding cash dividends) or options or
rights (excluding options to purchase and rights to subscribe for Common
Stock or other securities of the Corporation convertible into or exchangeable
for Common Stock) after the Series A Original Issue Date, then, in each such
case, the holders of shares of Series A Preferred shall, concurrently with
the distribution to holders of Common Stock, receive a like distribution
based upon the number of shares of Common Stock into which the Series A of
Preferred is then convertible.
(3) RECLASSIFICATIONS. In the case, at any time
after the Series A Original Issue Date, of any capital reorganization or any
reclassification of the stock of the Corporation (other than as a result of a
stock dividend or subdivision, split-up or combination of shares), or the
consolidation or merger of the Corporation with
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or into another person (other than a consolidation or merger in which the
Corporation is the continuing entity and which does not result in any change in
the Common Stock or which is treated as a liquidation pursuant to Section 3(c)),
or of the sale or other disposition of all or substantially all the properties
and assets of the Corporation, the shares of the Series A Preferred shall, after
such reorganization, reclassification, consolidation, merger, sale or other
disposition, be convertible into the kind and number of shares of stock or other
securities or property of the Corporation or otherwise to which such holder
would have been entitled if immediately prior to such reorganization,
reclassification, consolidation, merger, sale or other disposition he had
converted his shares of the Series A Preferred or Series B Preferred into Common
Stock. The provisions of this clause 5(f)(vi)(3) shall similarly apply to
successive reorganizations, reclassifications, consolidations, mergers, sales or
other dispositions.
(g) CERTIFICATE AS TO ADJUSTMENTS. Upon the occurrence
of each adjustment or readjustment of the Series A Conversion Price pursuant
to this Section 5, the Corporation at its expense shall promptly compute such
adjustment or readjustment in accordance with the terms hereof and furnish to
each holder of Series A Preferred a certificate setting forth such adjustment
or readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. The Corporation shall, upon the written request at
any time of any holder of Series A Preferred, furnish or cause to be
furnished to such holder a like certificate setting forth (i) such
adjustments and readjustments, (ii) the Series A Conversion Price at the time
in effect, and (iii) the number of shares of Common Stock and the amount, if
any, of other property which at the time would be received upon the
conversion of the Series A Preferred.
(h) STATUS OF CONVERTED STOCK. In case any shares of
Series A Preferred or Series B Preferred shall be converted pursuant to
Section 5 hereof, the shares so converted shall be canceled, shall not be
reissuable and shall cease to be a part of the authorized capital stock of
the Corporation.
(i) FRACTIONAL SHARES. In lieu of any fractional shares
to which the holder of Series A Preferred or Series B Preferred would
otherwise be entitled upon conversion, the Corporation shall pay cash equal
to such fraction multiplied by the fair market value of one share of Common
Stock as determined by the Board. The number of whole shares issuable to
each holder upon such conversion shall be determined on the basis of the
number of shares of Common Stock issuable upon conversion of the total number
of shares of Series A Preferred and Series B Preferred held by such holder at
the time of converting into Common Stock.
(j) MISCELLANEOUS.
(i) All calculations under this Section 5 shall be
made to the nearest cent or to the nearest one hundredth (1/100) of a share,
as the case may be.
(ii) The holders of at least 50% of the outstanding
Series A Preferred, each such Series having the right to act and vote
separately as a class,
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shall have the right to challenge any determination by the Board of fair value
pursuant to this Section 5, in which case such determination of fair value shall
be made by an independent appraiser selected jointly by the Board and the
challenging parties, the cost of such appraisal to be borne equally by the
Corporation and the challenging parties.
(iii) No adjustment in the Series A Conversion Price
of the Series A Preferred need be made if such adjustment would result in a
change in such Conversion Price of less than $0.01. Any adjustment of less
than $0.01 which is not made shall be carried forward and shall be made at
the time of and together with any subsequent adjustment which, on a
cumulative basis, amounts to an adjustment of $0.01 or more in such Series A
Conversion Price.
(k) NO IMPAIRMENT. The Corporation will not through any
reorganization, recapitalization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms to be observed
or performed hereunder by the Corporation, but will at all times in good faith
assist in the carrying out of all the provisions of this Section 5 and in the
taking of all such action as may be necessary or appropriate in order to protect
the Conversion Rights of the holders of Series A Preferred or Series B Preferred
against impairment.
(l) RESERVATION OF STOCK ISSUABLE UPON CONVERSION. The
Corporation shall at all times reserve and keep available out of its
authorized but unissued shares of Common Stock and Class B Common Stock,
solely for the purpose of effecting the conversion of the shares of Series A
Preferred and Series B Preferred, such number of its shares of Common Stock
and Class B Common Stock as shall from time to time be sufficient to effect
the conversion of all outstanding shares of Series A Preferred and Series B
Preferred. If at any time the number of authorized but unissued shares of
Common Stock or Class B Common Stock shall not be sufficient to effect the
conversion of all then-outstanding shares of Series A Preferred and Series B
Preferred, the Corporation will take such corporate action as may, in the
opinion of its counsel, be necessary to increase its authorized but unissued
shares of Common Stock and Class B Common Stock to such number of shares as
shall be sufficient for such purpose.
6. VOTING RIGHTS. Except as otherwise required by law or by
Section 9 hereof, the holder of each share of Common Stock issued and
outstanding shall have one vote, and the holder of each share of Series A
Preferred issued and outstanding shall be entitled to the number of votes
equal to the number of shares of Common Stock into which such share of Series
A Preferred could be converted at the record date for determination of the
stockholders entitled to vote on such matters, or, if no such record date is
established, at the date such vote is taken or any written consent of
stockholders is solicited, such votes to be counted together with all other
shares of stock of the Corporation having general voting power and not
separately as a class. Except as otherwise required by law or by Section 9
hereof, the Series B Preferred shall be non-voting stock of the Corporation.
Fractional votes by the holders of Series A Preferred
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shall not, however, be permitted, and any fractional voting rights shall (after
aggregating all shares into which shares of Series A Preferred held by each
holder could be converted) be rounded to the nearest whole number.
7. NOTICES OF RECORD DATE. In the event of any taking by the
Corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend) or other distribution, any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right, the Corporation
shall mail to each holder of Series A Preferred or Series B Preferred, at least
twenty (20) days prior to the date specified therein, a notice specifying the
date on which any such record is to be taken for the purpose of such dividend,
distribution or right, and the amount and character of such dividend,
distribution or right.
8. NOTICES. Any notice required by the provisions of the Certificate
to be given to the holders of Series A Preferred and Series B Preferred shall be
deemed given when deposited in the United States mail, postage prepaid, and
addressed to each holder of record at his or her address appearing on the books
of this Corporation.
9. PROTECTIVE PROVISIONS.
(a) SERIES A PREFERRED. So long as any shares of Series A
Preferred are outstanding, the Corporation shall not, without first obtaining
the approval of the holders of at least a majority of the then-outstanding
shares of such series, voting as a separate class, take any action that:
(i) alters the rights, preferences or privileges of such
series;
(ii) creates any new class or series of shares that has a
preference over or is on a parity with such series with respect to voting,
dividends or liquidation preferences;
(iii) reclassifies stock into shares having a preference
over or on a parity with such series with respect to voting, dividends or
liquidation preferences;
(iv) repurchases, redeems or retires any shares of capital
stock of the Corporation other than pursuant to contractual rights to repurchase
shares of Common Stock held by employees, directors or consultants of the
Corporation or its subsidiaries upon termination of their employment or services
or pursuant to the exercise of a contractual right of first refusal held by the
Corporation;
(v) results in the consolidation or merger with or into any
other Corporation or the sale or other transfer in a single transaction or a
series of
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related transactions of all or substantially all of the assets of this
Corporation, or otherwise results in the reorganization of this Corporation
unless the stockholders of this Corporation immediately prior to any such
transaction are holders of a majority of the voting securities of the surviving
or acquiring Corporation immediately thereafter (and for purposes of this
calculation equity securities which any stockholder or the Corporation owned
immediately prior to such merger or consolidation as a stockholder of another
party to the transaction shall be disregarded);
(vi) materially alters or changes the business of the
Corporation; or
(vii) increases the authorized number of directors as set
forth in the Bylaws of the Corporation.
(b) SERIES B PREFERRED. So long as any shares of Series B Preferred
are outstanding, the Corporation shall not, without first obtaining the approval
of the holders of at least a majority of the then-outstanding shares of such
series, voting as a separate class, take any action that:
(i) alters the rights, preferences or privileges of such
series;
(ii) creates any new class or series of shares that has a
preference over or is on a parity with such series with respect to dividends or
liquidation preferences; or
(iii) reclassifies stock into shares having a preference
over or on a parity with respect to dividends or liquidation preferences.
10. CLASS B COMMON STOCK. Subject to the conversion and voting rights
of the Class B Common Stock described below, the rights (including, but not
limited to, rights to dividends), preferences, privileges and restrictions of
the Common Stock and the Class B Common Stock shall be identical in all
respects, except as follows:
(a) VOTING RIGHTS. Holders of Class B Common Stock shall not be
entitled to vote such shares for the election of directors or on any other
matter except changes or amendment to this Section 10; PROVIDED, HOWEVER, that
no such change or amendment shall increase the rights of or, under any
circumstances, provide additional voting rights to the holders of Class B Common
Stock.
(b) CONVERSION.
(i) RIGHT TO CONVERT. The holder of any shares of Class B
Common Stock shall have the right at such holder's option, at any time or from
time to time, to convert any shares of Class B Common stock held by such holder,
so long as, after giving effect to such conversion, the total number of Voting
Shares (as defined in
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Section 10(b)(vii)(D) hereof) held by such holder or any Affiliate (as defined
in Section 10(b)(vii)(A) hereof) of such holder shall be less than or equal to
forty-nine percent (49%) (by voting power) of the total number of Voting Shares
then issued and outstanding, into such whole number of shares of Common Stock as
shall be obtained by multiplying the number of shares of Class B Common Stock
being converted by the Class B Common Stock Conversion Rate (as hereinafter
defined), by surrender of the certificates representing the shares of Class B
Common Stock so to be converted in the manner provided in Section 10(b)(iii)
hereof The Class B Common Stock Conversion Rate shall be one (1) divided by the
Class B Common Stock Conversion Price (as hereinafter defined). The Class B
Common Stock Conversion Price shall initially be one (1); PROVIDED, HOWEVER,
that such Class B Common Stock Conversion Price shall be subject to adjustment
as set forth in Section 10(b)(v) hereof. No conversion of shares of Class B
Common Stock that would have the effect of giving the holder or any Affiliate of
such holder a number of Voting Shares greater than forty-nine percent (49%) (by
voting power) of the total number of Voting Shares then issued and outstanding
shall be effected pursuant to this Section 10(b)(i). The holder of any shares
of Class B Common Stock exercising the aforesaid right to convert such shares
into shares of Common Stock shall be entitled to payment of all declared but
unpaid dividends, if any, payable on or with respect to such shares of Class B
Common Stock up to and including the Class B Common Conversion Date (as
hereinafter defined).
(ii) CONVERSION UPON TRANSFER. Upon any Transfer (as
defined in Section 10(b)(vii)(C) hereof) of any shares of Class B Common Stock
by the original holder thereof, other than a Transfer to an Affiliate of such
original holder, such shares of Class B Common stock so Transferred shall, by
virtue of, and simultaneously with, the occurrence of the Transfer, without any
action on the part of the transferee, be automatically converted into such whole
number of fully paid and nonassessable shares of Common Stock as shall be
obtained by multiplying the number of shares of Class B Common Stock so
Transferred by the Class B Common Stock Conversion Rate. The holder of any
shares of Class B Common Stock converted into Common Stock pursuant to this
Section 1(b)(ii) shall be entitled to payment on or with respect to such shares
of Class B Common Stock up to and including the Conversion Date.
(iii) MECHANICS OF CONVERSION. The holder of any shares of
Class B Common Stock may exercise the conversion rights pursuant to
Section 10(b)(i) hereof as to any part thereof by delivering to the Corporation
during regular business hours, at the office of the Corporation or at such other
place as may be designated by the Corporation, the certificate or certificates
for the shares to be converted, duly endorsed or assigned in blank, accompanied
by a written notice stating that the holder elects to convert such shares and
stating the name or names (with address) in which the certificate or
certificates for the shares of Common Stock are to be issued. Conversion shall
be deemed to have been effected (A) with respect to conversion under
Section 10(b)(i) hereof, on the date when the aforesaid delivery is made and (B)
with respect to conversion under Section 10(b)(ii) hereof, on the date of
occurrence of the Transfer, and such date, in either case, is referred to herein
as the "CLASS B COMMON
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CONVERSION DATE". As promptly as practicable after the Class B Common
Conversion Date, and in the case of Section 10(b)(ii) hereof, upon the delivery
to the Corporation during regular business hours, at the office of the
Corporation or at such other place as may be designated by the Corporation or at
such other place as may be designated by the Corporation, of the certificate or
certificates for the shares to be converted, duly endorsed or assigned in blank,
the Corporation shall issue and deliver to or upon the written order of such
holder, to the place designated by such holder, a certificate or certificates
for the number of full shares of Common Stock as provided in Section 10(b)(i)
and (ii) hereof, and a check or cash in payment of all declared but unpaid
dividends (to the extent permissible under law), if any, payable with respect to
the shares of Class B Common Stock so converted up to and including the Class B
Common Conversion Date. The person in whose name the certificate or
certificates for Common Stock are to be issued shall be deemed to have become a
stockholder of record on the applicable Class B Common Conversion Date unless
the transfer books of the Corporation are closed on that date, in which event he
shall be deemed to have become a stockholder of record on the next succeeding
date on which the transfer books are open, but the Class B Common Stock
Conversion Rate shall be that in effect on the Class B Common Conversion Date.
Upon conversion of only a portion of the number of shares covered by a
certificate representing shares of Class B Common Stock surrendered for
conversion, the Corporation shall issue and deliver to or upon the written order
of the holder of the certificate as surrendered for conversion, at the expense
of the Corporation, a new certificate covering the number of shares of Class B
Common Stock representing the unconverted portion of the certificate so
surrendered, which new certificate shall entitle the holder thereof to dividends
on the shares of Class B Common Stock represented thereby to the same extent as
if the certificate theretofore covering such unconverted shares had not been
surrendered for conversion.
(iv) NO FRACTIONAL SHARES. No fractional shares of Common
Stock or scrip shall be issued upon conversion of shares of Class B Common
stock. The number of full shares of Common Stock issuable upon conversion of
Class B Common Stock surrendered by a holder thereof of Class B Common Stock
surrendered by a holder thereof for conversion shall be computed on the basis of
the aggregate number of shares of Class B Common Stock so surrendered, rounded
to the next higher whole number.
(v) ADJUSTMENTS TO CLASS B COMMON STOCK CONVERSION PRICE.
The Class B Common Stock Conversion Price shall be subject to adjustment from
time to time as follows:
(A) If, at any time after the Filing Date (as
defined in Section 10(b)(vii)(B) hereof), the number of shares of Common
Stock outstanding is increased by a stock dividend payable in shares of
Common Stock or by a subdivision or split-up of shares of Common Stock, then,
following the record date fixed for the determination of holders of Common
Stock entitled to receive such stock dividend, subdivision or split-up, the
Class B Common Stock Conversion Price shall be
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appropriately decreased so that the number of shares of Common Stock issuable on
conversion of each share of Class B Common Stock shall be increased in
proportion to such increase in outstanding shares.
(B) If, at any time after the Filing Date, the
number of shares of Common Stock outstanding is decreased by a combination of
the outstanding shares of Common Stock, then, following the record date for
such combination, the Class B Common Stock Conversion Price shall be
appropriately increased so that the number of shares of Common stock issuable
on conversion of each share of Class B Common Stock shall be decreased in
proportion to such decrease in outstanding shares.
(C) In case, at any time after the Filing Date, of
any capital reorganization, or any reclassification of the capital stock of
the Corporation (other than a change in par value or from par value to no par
value or from on par value to par value or as a result of a stock dividend or
subdivision, split-up or combination of shares) or the consolidation or
merger of the Corporation with or into another person (other than a
consolidation or merger in which the Corporation is the continuing
corporation and which does not result in any change in the Common Stock) or
of the sale or other disposition of all or substantially all the properties
and assets of the Corporation as an entirety to any other person, such shares
of Class B Common Stock shall after such reorganization, reclassification,
consolidation, merger, sale or other disposition be convertible into the kind
and number of shares of stock or other securities or property of the
Corporation or of the Corporation resulting from such consolidation or
surviving such merger or to which such properties and assets shall have been
sold or otherwise disposed to which the holder of the number of shares of
Common Stock deliverable (immediately prior to the time of such
reorganization reclassification, consolidation, merger, sale or other
disposition) upon conversion of such share would have been entitled upon such
reorganization, reclassification, consolidation, merger, sale or other
disposition. The provisions of this Section 10(b)(v)(C) shall similarly
apply to successive reorganization, reclassifications, consolidations,
mergers, sales or other dispositions.
(D) All calculations under this paragraph (v) shall
be made to the nearest one tenth (1/10) of a share.
(vi) RESERVATION OF SHARES. The Corporation shall at all
times when the Class B Common Stock shall be outstanding, reserve and keep
available out of its authorized but unissued stock, for the purpose of effecting
the conversion of the Class B Common Stock, such number of its duly authorized
shares of Common Stock as shall from time to time be sufficient to effect the
conversion of all outstanding Class B Common Stock; and if at any time the
number of authorized but unissued shares' of Common Stock shall not be
sufficient to effect the conversion of all then outstanding shares of Class B
Common Stock, the Corporation will take such corporate action as may, in the
opinion of its counsel, be necessary to increase its authorized but unissued
shares of Common Stock to such number of shares as shall be sufficient for the
purpose.
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(vii) DEFINITIONS.
(A) "AFFILIATE" shall mean, as to any person or
entity, a person or entity that, directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with, such person or entity.
(B) "FILING DATE" shall mean the date upon which the
Corporation shall file with the Delaware Secretary of State this Restated
Certificate of Incorporation.
(C) "TRANSFER" or "TRANSFERRED" shall mean to
dispose, sell or in any other way directly or indirectly transfer, assign,
distribute, encumber or otherwise dispose of, either voluntarily or
involuntarily.
(D) "VOTING SHARES" shall mean any shares of the
Corporation's capital stock entitled to vote in any election of directors of
the Corporation.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: Whenever a compromise is proposed between this Corporation
and its creditors or any class of them and/or between this Corporation and
its stockholders or any class of them, any court of equitable jurisdiction
within the State of Delaware may, on the application in a summary way of this
Corporation or of any creditor or stockholder thereof or on the application
of any receiver or receivers appointed for this Corporation under the
provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers
appointed for this Corporation under the provisions of Section 279 of Title 8
of the Delaware Code order a meeting of the creditors, or class of creditors,
and/or of the stockholders or class of stockholders of this Corporation, as
the case may be, to be summoned in such manner as the said court directs. If
a majority in number representing three-fourths in value of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of
this Corporation, as the case may be, agree to any compromise or arrangement
and to any reorganization of this Corporation as a consequence of such
compromise or arrangement, the same compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all the creditors or class or
creditors, and/or on all the stockholders or class of stockholders, of this
Corporation, as the case may be, and also on this Corporation.
SEVENTH: For the management of the business and for the conduct of
the affairs of the Corporation, and in further definition, limitation, and
regulation of the powers of the Corporation and of its directors and of its
stockholders or any class thereof, as the case may be, it is further provided:
(a) The management of the business and the conduct of the
affairs of the Corporation shall be vested in its Board of Directors. The
number of directors
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which shall constitute the whole Board of Directors shall be fixed by, or in the
manner provided in, the Bylaws. The phrase "whole Board" and the phrase "total
number of directors" shall be deemed to have the same meaning, to wit, the total
number of directors which the Corporation would have if there were no vacancies.
No election of directors need be by written ballot.
(b) After the original or other Bylaws of the Corporation
have been adopted, amended, or repealed, as the case may be, in accordance
with the provisions of Section 109 of the General Corporation Law of the
State of Delaware, and, after the Corporation has received any payment for
any of its stock, the power to adopt, amend, or repeal the Bylaws of the
Corporation may be exercised by the Board of Directors of the Corporation;
provided, however, that any provision for the classification of directors of
the Corporation for staggered terms pursuant to the provisions of subsection
(d) of Section 141 of the General Corporation Law of the State of Delaware
shall be set forth in an initial Bylaw or in a Bylaw adopted by the
stockholders entitled to vote of the Corporation unless provisions for such
classification shall be set forth in this certificate of incorporation.
(c) Whenever the Corporation shall be authorized to issue
only one class of stock, each outstanding share shall entitle the holder
thereof to notice of, and the right to vote at, any meeting of stockholders.
Whenever the Corporation shall be authorized to issue more than one class of
stock, no outstanding share of any class of stock which is denied voting
power under the provisions of the certificate of incorporation shall entitle
the holder thereof to the right to vote at any meeting of stockholders except
as the provisions of paragraph (2) of subsection (b) of Section 242 of the
General Corporation Law of the State of Delaware shall otherwise require;
provided, that no share of any such class which is otherwise denied voting
power shall entitle the holder thereof to vote upon the increase or decrease
in the number of authorized shares of said class.
EIGHTH: The personal liability of the directors of the Corporation is
hereby eliminated to the fullest extent permitted by the provisions of paragraph
(7) of subsection (b) of Section 102 of the General Corporation Law of the State
of Delaware, as the same may be amended and supplemented.
NINTH: The Corporation shall, to the fullest extent permitted by the
provisions of Section 145 of the General Corporation Law of the State of
Delaware, as the same may be amended and supplemented, indemnify any and all
persons whom it shall have power to indemnify under said section from and
against any and all of the expenses, liabilities, or other matters referred to
in or covered by said section, and the indemnification provided for herein shall
not be deemed exclusive of any other rights to which those indemnified may be
entitled under any Bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall continue
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as to a person who has ceased to be a director, officer, employee, or agent and
shall inure to the benefit of the heirs, executors, and administrators of such
person.
TENTH: From time to time any of the provisions of this certificate of
incorporation may be amended, altered, or repealed, and other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted in the manner and at the time prescribed by said laws, and all
rights at any time conferred upon the stockholders of the Corporation by this
certificate of incorporation are granted subject to the provisions of this
Article TENTH.
RESOLVED FURTHER, that the foregoing Restated Certificate of
Incorporation is hereby approved and adopted."
IN WITNESS WHEREOF, BEA SYSTEMS, INC. has caused this Certificate
to be signed by William T. Coleman III, its President and Chief Executive
Officer, and attested to by Steve L. Brown, its Secretary, this ____ day of
______________, 1997.
BEA SYSTEMS, INC.
-------------------------------
William T. Coleman III
President and Chief Executive Officer
ATTEST:
By:
----------------------
Steve L. Brown
Secretary
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AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
BEA SYSTEMS, INC.
Pursuant to Sections 242 and 245
of the General Corporation Law of the State of
Delaware
_______________________________________________
BEA SYSTEMS, INC. (the "Corporation"), a Corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware (the
"General Corporation Law") having filed its original Certificate of
Incorporation under the name BEA Enterprises, Inc. on January 20, 1995, does
hereby certify as follows:
That the following resolutions amending and restating the Corporation's
Certificate of Incorporation were duly adopted by the Corporation's Board of
Directors and by the holders of a majority of the Corporation's outstanding
stock entitled to vote thereon and if required, a majority of each class
entitled to vote thereon as a class, in accordance with the provisions of
Sections 242 and 245 of the General Corporation Law by written consent of the
Board of Directors and the stockholders given in accordance with Sections 141
and 228, respectively of the General Corporation Law:
NOW, THEREFORE, BE IT RESOLVED, that the Certificate of
Incorporation of the Corporation be amended and restated in its
entirety as follows:
FIRST: The name of the corporation (hereinafter called the
"Corporation") is BEA Systems, Inc.
SECOND: The address, including street, number, city and county, of the
registered office of the Corporation in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle, Delaware, 19801. The name of the registered agent of
the Corporation in the State of Delaware at such address is the Corporation
Trust Company.
THIRD: The nature of the business and the purposes to be
conducted and promoted by the Corporation shall be to conduct any
lawful business, to promote any lawful purpose, and to engage in any
lawful act or activity for which Corporations may be organized under
the General Corporation Law of the State of Delaware.
FOURTH: This Corporation is authorized to issue two classes of
shares, designated "Preferred Stock" and "Common Stock." The total
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number of shares which the Corporation is authorized to issue is one
hundred twenty million (120,000,000) shares. One hundred fifteen million
(115,000,000) shares shall be Common Stock, $0.001 par value, (the
"Common Stock"), of which thirty-five million (35,000,000) are hereby
designated Class B Common Stock. Five million (5,000,000) shares shall
be Preferred Stock, $0.001 par value (the "Preferred Stock"). The
undesignated shares of Preferred Stock shall be issued from time to
time in one or more series. The Board of Directors is hereby
authorized, within the limitations and restrictions stated in this
Certificate of Incorporation, to fix or alter the individual rights,
dividend rate, conversion rights, voting rights, rights and terms of
redemption (including sinking fund provisions), the redemption price or
prices, the liquidation preference of any wholly unissued shares of
Preferred Stock, and the number of shares constituting any such series
and the designation thereof, or any of them, and to increase or
decrease the number of shares of any series subsequent to the issue of
shares of that series, but not below the number of shares of such
series then outstanding. In case the number of shares of any series
shall be so decreased, the shares constituting such decrease shall
resume the status which they had prior to the adoption of the
resolution originally fixing the number of shares of such series.
FIFTH: CLASS B COMMON STOCK. Subject to the conversion and
voting rights of the Class B Common Stock described below, the rights
(including, but not limited to, rights to dividends), preferences,
privileges and restrictions of the Common Stock and the Class B Common
Stock shall be identical in all respects, except as follows:
(a) VOTING RIGHTS. Holders of Class B Common Stock shall
not be entitled to vote such shares for the election of directors or on any
other matter except changes or amendment to this Article FIFTH; PROVIDED,
HOWEVER, that no such change or amendment shall increase the rights of or,
under any circumstances, provide additional voting rights to the holders of
Class B Common Stock.
(b) CONVERSION.
(i) RIGHT TO CONVERT. The holder of any shares of
Class B Common Stock shall have the right at such holder's option, at
any time or from time to time, to convert any shares of Class B Common
stock held by such holder, so long as, after giving effect to such
conversion, the total number of Voting Shares (as defined in Section
1(b)(vii)(D) hereof) held by such holder or any Affiliate (as defined in
Section 1(b)(vii)(A) hereof) of such holder shall be less than or equal
to forty-nine percent (49%) (by voting power) of the total number of
Voting Shares then issued and outstanding, into such whole number of
shares of Common Stock as shall be obtained by multiplying the number of
shares
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of Class B Common Stock being converted by the Class B Common Stock
Conversion Rate (as hereinafter defined), by surrender of the
certificates representing the shares of Class B Common Stock so to be
converted in the manner provided in Section 1(b)(iii) hereof The Class B
Common Stock Conversion Rate shall be one (1) divided by the Class B
Common Stock Conversion Price (as hereinafter defined). The Class B
Common Stock Conversion Price shall initially be one (1); PROVIDED,
HOWEVER, that such Class B Common Stock Conversion Price shall be
subject to adjustment as set forth in Section 1(b)(v) hereof. No
conversion of shares of Class B Common Stock that would have the effect
of giving the holder or any Affiliate of such holder a number of Voting
Shares greater than forty-nine percent (49%) (by voting power) of the
total number of Voting Shares then issued and outstanding shall be
effected pursuant to this Section 1(b)(i). The holder of any shares of
Class B Common Stock exercising the aforesaid right to convert such
shares into shares of Common Stock shall be entitled to payment of all
declared but unpaid dividends, if any, payable on or with respect to
such shares of Class B Common Stock up to and including the Conversion
Date (as hereinafter defined).
(ii) CONVERSION UPON TRANSFER. Upon any Transfer (as
defined in Section 1(b)(vii)(C) hereof) of any shares of Class B Common
Stock by the original holder thereof, other than a Transfer to an Affiliate
of such original holder, such shares of Class B Common stock so Transferred
shall, by virtue of, and simultaneously with, the occurrence of the
Transfer, without any action on the part of the transferee, be
automatically converted into such whole number of fully paid and
nonassessable shares of Common Stock as shall be obtained by multiplying
the number of shares of Class B Common Stock so Transferred by the Class B
Common Stock Conversion Rate. The holder of any shares of Class B Common
Stock converted into Common Stock pursuant to this Section 1(b)(ii) shall
be entitled to payment on or with respect to such shares of Class B Common
Stock up to and including the Conversion Date.
(iii) MECHANICS OF CONVERSION. The holder of any shares
of Class B Common Stock may exercise the conversion rights pursuant to
Section l(b)(i) hereof as to any part thereof by delivering to the
Corporation during regular business hours, at the office of the Corporation
or at such other place as may be designated by the Corporation, the
certificate or certificates for the shares to be converted, duly endorsed
or assigned in blank, accompanied by a written notice stating that the
holder elects to convert such shares and stating the name or names (with
address) in which the certificate or certificates for the shares of Common
Stock are to be issued. Conversion shall be deemed to have been effected
(A) with respect to conversion under Section 1(b)(i) hereof, on the date
when the aforesaid delivery is made and (B) with respect to conversion
under Section l(b)(ii) hereof, on the date of occurrence of the Transfer,
and such date, in either case, is referred to herein as the "CONVERSION
DATE". As promptly as practicable after the Conversion Date, and in the
case of Section 1(b)(ii) hereof,
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upon the delivery to the Corporation during regular business hours, at
the office of the Corporation or at such other place as may be
designated by the Corporation or at such other place as may be
designated by the Corporation, of the certificate or certificates for
the shares to be converted, duly endorsed or assigned in blank, the
Corporation shall issue and deliver to or upon the written order of such
holder, to the place designated by such holder, a certificate or
certificates for the number of full shares of Common Stock as provided
in Section I (b)(i) and (ii) hereof, and a check or cash in payment of
all declared but unpaid dividends (to the extent permissible under law),
if any, payable with respect to the shares of Class B Common Stock so
converted up to and including the Conversion Date. The person in whose
name the certificate or certificates for Common Stock are to be issued
shall be deemed to have become a stockholder of record on the applicable
Conversion Date unless the transfer books of the Corporation are closed
on that date, in which event he shall be deemed to have become a
stockholder of record on the next succeeding date on which the transfer
books are open, but the Class B Common Stock Conversion Rate shall be
that in effect on the Conversion Date. Upon conversion of only a portion
of the number of shares covered by a certificate representing shares of
Class B Common Stock surrendered for conversion, the Corporation shall
issue and deliver to or upon the written order of the holder of the
certificate as surrendered for conversion, at the expense of the
Corporation, a new certificate covering the number of shares of Class B
Common Stock representing the unconverted portion of the certificate so
surrendered, which new certificate shall entitle the holder thereof to
dividends on the shares of Class B Common Stock represented thereby to
the same extent as if the certificate theretofore covering such
unconverted shares had not been surrendered for conversion.
(iv) NO FRACTIONAL SHARES. No fractional shares of Common
Stock or scrip shall be issued upon conversion of shares of Class B Common
stock. The number of full shares of Common Stock issuable upon conversion
of Class B Common Stock surrendered by a holder thereof of Class B Common
Stock surrendered by a holder thereof for conversion shall be computed on
the basis of the aggregate number of shares of Class B Common Stock so
surrendered, rounded to the next higher whole number.
(v) ADJUSTMENTS TO CONVERSION PRICE. The Class B Common
Stock Conversion Price shall be subject to adjustment from time to time as
follows:
(A) If, at any time after the Filing Date (as defined
in Section 1(b)(vii)(B) hereof), the number of shares of Common Stock
outstanding is increased by a stock dividend payable in shares of Common
Stock or by a subdivision or split-up of shares of Common Stock, then,
following the record date fixed for the determination of holders of Common
Stock entitled to receive such stock dividend, subdivision or split-up, the
Class B Common Stock
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Conversion Price shall be appropriately decreased so that the number of
shares of Common Stock issuable on conversion of each share of Class B
Common Stock shall be increased in proportion to such increase in
outstanding shares.
(B) If, at any time after the Filing Date, the number
of shares of Common Stock outstanding is decreased by a combination of the
outstanding shares of Common Stock, then, following the record date for
such combination, the Class B Common Stock Conversion Price shall be
appropriately increased so that the number of shares of Common stock
issuable on conversion of each share of Class B Common Stock shall be
decreased in proportion to such decrease in outstanding shares.
(C) In case, at any time after the Filing Date, of any
capital reorganization, or any reclassification of the capital stock of the
Corporation (other than a change in par value or from par value to no par
value or from on par value to par value or as a result of a stock dividend
or subdivision, split-up or combination of shares) or the consolidation or
merger of the Corporation with or into another person (other than a
consolidation or merger in which the Corporation is the continuing
corporation and which does not result in any change in the Common Stock) or
of the sale or other disposition of all or substantially all the properties
and assets of the Corporation as an entirety to any other person, such
shares of Class B Common Stock shall after such reorganization,
reclassification, consolidation, merger, sale or other disposition be
convertible into the kind and number of shares of stock or other securities
or property of the Corporation or of the Corporation resulting from such
consolidation or surviving such merger or to which such properties and
assets shall have been sold or otherwise disposed to which the holder of
the number of shares of Common Stock deliverable (immediately prior to the
time of such reorganization reclassification, consolidation, merger, sale
or other disposition) upon conversion of such share would have been
entitled upon such reorganization, reclassification, consolidation, merger,
sale or other disposition. The provisions of this Section 1(b)(v)(C) shall
similarly apply to successive reorganization, reclassifications,
consolidations, mergers, sales or other dispositions.
(D) All calculations under this paragraph (v) shall be
made to the nearest one tenth (1/10) of a share.
(vi) RESERVATION OF SHARES. The Corporation shall at all
times when the Class B Common Stock shall be outstanding, reserve and keep
available out of its authorized but unissued stock, for the purpose of
effecting the conversion of the Class B Common Stock, such number of its
duly authorized shares of Common Stock as shall from time to time be
sufficient to effect the conversion of all outstanding Class B Common
Stock; and if at any time the number of authorized but unissued shares' of
Common Stock shall not be sufficient to effect the conversion of all then
outstanding shares of Class B
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Common Stock, the Corporation will take such corporate action as may, in
the opinion of its counsel, be necessary to increase its authorized but
unissued shares of Common Stock to such number of shares as shall be
sufficient for the purpose.
(vii) DEFINITIONS.
(A) "AFFILIATE" shall mean, as to any person or entity,
a person or entity that, directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with, such person or entity.
(B) "FILING DATE" shall mean the date the Corporation
files with the Delaware Secretary of State this Amended and Restated
Certificate of Incorporation.
(C) "TRANSFER" or "TRANSFERRED" shall mean to dispose,
sell or in any other way directly or indirectly transfer, assign,
distribute, encumber or otherwise dispose of, either voluntarily or
involuntarily.
(D) "VOTING SHARES" shall mean any shares of the
Corporation's capital stock entitled to vote in any election of directors
of the Corporation.
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: Whenever a compromise is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of
equitable jurisdiction within the State of Delaware may, on the
application in a summary way of this Corporation or of any creditor or
stockholder thereof or on the application of any receiver or receivers
appointed for this Corporation under the provisions of Section 291 of
Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this
Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code order a meeting of the creditors, or class of creditors,
and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, to be summoned in such manner as the
said court directs. If a majority in number representing three-
fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case
may be, agree to any compromise or arrangement and to any
reorganization of this Corporation as a consequence of such compromise
or arrangement, the same compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all the creditors or class or
creditors, and/or on all the
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stockholders or class of stockholders, of this Corporation, as the case may
be, and also on this Corporation.
EIGHTH: For the management of the business and for the conduct
of the affairs of the Corporation, and in further definition,
limitation, and regulation of the powers of the Corporation and of its
directors and of its stockholders or any class thereof, as the case
may be, it is further provided:
(a) The management of the business and the conduct of the
affairs of the Corporation shall be vested in its Board of Directors. The
number of directors which shall constitute the whole Board of Directors
shall be fixed by, or in the manner provided in, the Bylaws. The phrase
"whole Board" and the phrase "total number of directors" shall be deemed to
have the same meaning, to wit, the total number of directors which the
Corporation would have if there were no vacancies. No election of
directors need be by written ballot.
(b) After the original or other Bylaws of the Corporation
have been adopted, amended, or repealed, as the case may be, in accordance
with the provisions of Section 109 of the General Corporation Law of the
State of Delaware, and, after the Corporation has received any payment for
any of its stock, the power to adopt, amend, or repeal the Bylaws of the
Corporation may be exercised by the Board of Directors of the Corporation;
provided, however, that any provision for the classification of directors
of the Corporation for staggered terms pursuant to the provisions of
subsection (d) of Section 141 of the General Corporation Law of the State
of Delaware shall be set forth in an initial Bylaw or in a Bylaw adopted by
the stockholders entitled to vote of the Corporation unless provisions for
such classification shall be set forth in this certificate of
incorporation.
(c) Whenever the Corporation shall be authorized to issue
only one class of stock, each outstanding share shall entitle the holder
thereof to notice of, and the right to vote at, any meeting of
stockholders. Whenever the Corporation shall be authorized to issue more
than one class of stock, no outstanding share of any class of stock which
is denied voting power under the provisions of the certificate of
incorporation shall entitle the holder thereof to the right to vote at any
meeting of stockholders except as the provisions of paragraph (2) of
subsection (b) of Section 242 of the General Corporation Law of the State
of Delaware shall otherwise require; provided, that no share of any such
class which is otherwise denied voting power shall entitle the holder
thereof to vote upon the increase or decrease in the number of authorized
shares of said class.
NINTH: The personal liability of the directors of the
Corporation is hereby eliminated to the fullest extent permitted by
the provisions of
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paragraph (7) of subsection (b) of Section 102 of the General Corporation
Law of the State of Delaware, as the same may be amended and supplemented.
TENTH: The Corporation shall, to the fullest extent permitted by
the provisions of Section 145 of the General Corporation Law of the
State of Delaware, as the same may be amended and supplemented,
indemnify any and all persons whom it shall have power to indemnify
under said section from and against any and all of the expenses,
liabilities, or other matters referred to in or covered by said
section, and the indemnification provided for herein shall not be
deemed exclusive of any other rights to which those indemnified may be
entitled under any Bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding
such office, and shall continue as to a person who has ceased to be a
director, officer, employee, or agent and shall inure to the benefit
of the heirs, executors, and administrators of such person.
ELEVENTH: From time to time any of the provisions of this
certificate of incorporation may be amended, altered, or repealed, and
other provisions authorized by the laws of the State of Delaware at
the time in force may be added or inserted in the manner and at the
time prescribed by said laws, and all rights at any time conferred
upon the stockholders of the Corporation by this certificate of
incorporation are granted subject to the provisions of this Article
ELEVENTH.
TWELFTH: For so long as the board of directors consists of at
least seven directors, the directors shall be divided into three
classes, designated Class I, Class II and Class III. Each class shall
consist, as nearly as may be possible, of one-third (1/3) of the total
number of directors constituting the entire Board of Directors. The
initial classes shall be elected as follows: Class I directors shall
be elected for a one-year term, Class II directors for a two-year term
and Class III directors for a three-year term. At each succeeding
annual meeting of stockholders, successors to the class of directors
whose term expires at the annual meeting of stockholders shall be
elected for three-year terms. If the number of directors is changed,
any increase or decrease shall be elected for three-year terms. If
the number of directors is changed, any increase or decrease shall be
apportioned among the classes so as to maintain the number of
directors in each class as nearly equal as possible, and any
additional director of any class elected to fill a vacancy resulting
from an increase in such class shall hold office for a term that shall
coincide with the remaining term of that class, but in no case will a
decrease in the number of directors shorten the term of any incumbent
director. A director shall hold office until the annual meeting for
the year in which his
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or her term expires and until his or her successor shall be elected and
shall qualify, subject, however, to prior death, resignation, retirement,
disqualification or removal from office. Except as otherwise required by
law, any vacancy on the Board of Directors that results from an increase in
the number of directors and any other vacancy occurring in the Board of
Directors shall be filled by a majority of the directors then in office,
even if less than a quorum, or by a sole remaining director. Any director
elected to fill a vacancy not resulting from an increase in the number of
directors shall have the same remaining term as that of his or her
predecessor.
RESOLVED FURTHER, that the foregoing Restated Certificate of
Incorporation is hereby approved and adopted.
IN WITNESS WHEREOF, BEA SYSTEMS, INC. has caused this Certificate to
be signed by William T. Coleman III, its President and Chief Executive Officer,
and attested to by Steven L. Brown, its Secretary, this ____ day of
______________, 1997.
BEA SYSTEMS, INC.
-----------------------------------------
William T. Coleman III
President and Chief Executive Officer
ATTEST:
By:
-------------------------
Steven L. Brown
Secretary
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Confidential treatment has
been requested regarding these
provisions indicated by "[***]".
The omitted information
has been filed separately
with the Securities and
Exchange Commission.
TUXEDO License and Distribution Agreement
This TUXEDO License and Distribution Agreement (the "Agreement") is made
by and between Novell, Inc., a Delaware corporation with a place of business at
122 East 1700 South, Provo, Utah, 84606 ("Novell"), and BEA Systems, Inc.,
("BEA") a Delaware corporation with its principal place of business located at
2465 E. Bayshore Road, Palo Alto, California 94303.
1 STATEMENT OF PURPOSE. Novell has acquired and/or developed and is the
owner of, or otherwise has authority to license, the TUXEDO Software
identified in Exhibit A. Novell desires to grant to BEA certain rights
and licenses relating to the TUXEDO Software, as set forth in this
Agreement, and to transfer to BEA certain assets relating to the TUXEDO
Software, and BEA desires to obtain the same from Novell.
2 DEFINITIONS. Unless the context clearly requires otherwise, the
capitalized terms used within this Agreement shall have the same meaning
as ascribed to the terms below. The term "Section" within this Agreement
refers to the identified section of this Agreement.
2.1 ADD-ONS shall mean any new feature enhancements or additions not
already present in the Core Code which exist external to the Core
Code, do not consist of Core Code and are not required for full
functionality of the Core Code.
2.2 ASSUMED CONTRACTS shall mean all existing licenses, service
contracts (including documentation), independent contractor
agreements, and other agreements between Novell and another party
relating to the TUXEDO Software, with the exception of Novell's
Master Task Agreement with Novell Japan, Ltd. and related Statements
of Work.
2.3 BEA shall mean BEA Systems, Inc., except in any cases where the
parties may specifically call out other subsidiaries or entities
related to BEA.
2.4 CHANGE OF CONTROL shall mean when, due to a change in ownership
after the Closing:
2.4.1 one of the parties becomes a Subsidiary of some
third-party; or
2.4.2 any person or group (within the meaning of Rule 13d-5
under the Securities Exchange Act as in effect on the
date of execution of this Agreement) shall come to own,
directly or indirectly, beneficially or of record,
voting securities representing more than 50% of the total
voting power of one of the parties. For the purpose of
this Agreement, the parties agree to an exception in the
above-referenced definition of "any person or group" to
exclude E.M. Warburg, Pincus & Co. and its affiliated
entities.
2.5 CLOSING shall mean the closing of the transactions contemplated
by this Agreement, which shall occur on the Closing Date.
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2.6 CLOSING DATE shall mean February 23, 1996 or such other date as
the parties may hereafter agree upon.
2.7 CODE shall mean computer programming code. Unless otherwise
agreed, Code shall include Binary Code and Source Code in the form
existing as of the Closing Date.
2.8 BINARY CODE shall mean Code that loads and executes without
further processing by a software compiler or linker or that results
when Source Code is processed by a software compiler.
2.9 SOURCE CODE shall mean the human-readable form of the Code and
related system documentation, including all comments and any
procedural language.
2.10 COMMITTEE shall mean the Technology Coordination Committee to be
formed by BEA and Novell, as further described in Section 6 below.
2.11 CONFIDENTIAL INFORMATION shall mean that information which
relates to the purpose of this Agreement as stated in Section 0 that
a Disclosing Party desires to protect against unrestricted disclosure
or use by the Receiving Party and which if disclosed (i) in tangible
form, is marked in writing as "confidential" or with words of similar
import by the Disclosing Party, or (ii) in oral or visual form, is
designated orally at the time of disclosure as "confidential." The
foregoing notwithstanding, Source Code shall be deemed to be
Confidential Information; otherwise, any information that is not
identified as "confidential" shall be regarded as non-Confidential
Information. Confidential Information shall not include any
information that is (i) already in the possession of the Receiving
Party without obligation of confidence; or (ii) independently
developed by the Receiving Party; or (iii) or becomes available to
the general public without breach of this Agreement; or (iv)
rightfully received by the Receiving Party from a third party without
obligation of confidence; or (v) disclosed after obtaining the
written consent of the Disclosing Party.
2.12 CORE CODE shall mean the workstation (\WS) and server (\T)
TUXEDO Software Code as delivered by Novell to BEA pursuant to
Section 15.
2.13 CORE MODIFICATIONS shall mean modifications to any version
of the TUXEDO Software Code, whether made by Novell, BEA,
Subsidiaries, affiliates, or contractors, that are not Add-ons. The
parties specifically agree that, in the event modifications are made
to the Core Code that enable the Core Code to interact with software
outside of the Core Code that creates new functionality, only the
"hooks" or other modifications made to the Core Code itself shall be
deemed Core Modifications; such software outside of the Core Code
shall not be deemed Core Modifications, regardless of the existence
of the hooks to such software that exist within the Core Code itself.
2.14 DERIVATIVE WORK shall mean a work which is based upon or
incorporates one or more preexisting works, such as a revision,
modification, translation, abridgement, condensation, expansion,
collection, compilation or any other form in which such preexisting
works may
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be recast, transformed or adapted, and which, if prepared
without the authorization by the owner of the preexisting works,
would constitute copyright infringement under U.S. copyright laws.
2.15 DISCLOSING PARTY shall mean the party to this Agreement which
transmits information to a Receiving Party.
2.16 DOCUMENTATION shall mean the written or electronic instructions
provided to end users with a computer program.
2.17 NOVELL DOCUMENTATION shall mean the Documentation provided by
Novell to end users relating to the TUXEDO Software.
2.18 BEA DOCUMENTATION shall mean the Documentation provided by BEA
to end users relating to the TUXEDO Software.
2.19 SIGNING DATE shall mean the latter of the dates upon which the
parties execute this Agreement.
2.20 EXTREMELY SENSITIVE INFORMATION shall mean Confidential
Information with respect to which the Disclosing Party reasonably
believes unauthorized disclosure would have a serious adverse effect,
commercial or competitive, on the Disclosing Party. Confidential
Information will only be considered Extremely Sensitive Information
if prior to its disclosure the Disclosing Party gives written notice
to the Receiving Party of the information's general description and
its Extremely Sensitive Information classification.
2.21 INITIAL TERM shall have the meaning given to such term in
Section 14 below.
2.22 MARK shall mean Novell's "TUXEDO" trademark.
2.23 RECEIVING PARTY shall mean the party to this Agreement which
receives information from a Disclosing Party.
2.24 SUBSIDIARY shall mean a corporation, company or other entity (i)
more than fifty percent (50%) of whose outstanding shares or
securities (representing the right to vote for the election of
directors or other managing authority) are, or (ii) which does not
have outstanding shares or securities, as may be the case in a
partnership, joint venture or unincorporated association, but more
than fifty percent (50%) of whose ownership interest representing the
right to make the decisions for such corporation, company or other
entity is, now or hereafter, owned or controlled, directly or
indirectly, by a party hereto, but such corporation, company or other
entity shall be deemed to be a Subsidiary only so long as such
ownership or control exists.
2.25 TRANSFERRED ASSETS shall mean (i) certain items of equipment,
furnishings and other personal property previously used by Novell's
TUXEDO division, as listed in Exhibit D;
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<PAGE>
and (ii) all of Novell's shares of stock in the following
entities: USL Mexico and USL SA as identified in Exhibit D.
2.26 TUXEDO SOFTWARE shall mean the Code more fully described in
Exhibit A, including, Core Code and Core Modifications.
3 CLOSING. The transactions contemplated by this Agreement shall be closed
on the Closing Date, at a mutually agreeable time and place.
3.1 DELIVERIES BY NOVELL. At the Closing, Novell shall deliver to
BEA the following documents and materials:
3.1.1 The Transferred Assets listed in Exhibit D
hereto;
3.1.2 A duly executed bill of sale in the form attached
as Exhibit I hereto; and
3.1.3 Such additional documents, instruments and
materials as Novell may be required to deliver to BEA at the
Closing pursuant to this Agreement.
3.2 DELIVERIES BY BEA. At the Closing, BEA shall deliver to Novell
the following documents and materials:
3.2.1 A duly executed guaranty in the form attached as
Exhibit G hereto (the "Guaranty");
3.2.2 A copy of a certified resolution of BEA's board
of directors, authorizing execution of this Agreement and
approving the transactions described herein.
3.2.3 Such additional documents, instruments and
materials as BEA may be required to deliver to Novell at the
Closing pursuant to this Agreement.
3.3 CONDITIONS TO CLOSING. The obligations of Novell and BEA
hereunder to proceed with the Closing shall be subject to the
following conditions, each of which may only be waived at or before
the Closing as agreed upon in writing by the parties:
3.3.1 The warranties and representations of the other
party shall be true and correct in all material respects as
of the Closing; and
3.3.2 The other party shall have fully performed all of
its material obligations required to be performed at or before
the Closing.
3.4 FINANCIAL STATEMENTS. On or before July 31, 1996, Novell will
provide BEA with audited financial statements for the TUXEDO business
unit, or its predecessor organizations, covering fiscal years 1993,
1994 and 1995. If audited financial statements are not available for
any of these periods, Novell will provide BEA and its auditors access
to the financial
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and business records of the TUXEDO business unit so that they
may prepare such statements, or at Novell's option, Novell or its
auditors may prepare such statements themselves and deliver them
to BEA.
3.5 ADJUSTMENT OF PAYMENTS. Novell acknowledges that BEA has not
had an opportunity prior to the Signing Date to review all of the
Assumed Contracts and other documents relating to the Transferred
Assets. Accordingly, if material deviations are discovered from the
representations and warranties made by Novell under this Agreement
relating to the Assumed Contracts and other Transferred Assets, an
adjustment of the amount of the payments due under Sections 13.1 and
14.2 will be made at the Closing to reasonably reflect the
deviations, provided that in no event shall such an adjustment exceed
ten percent (10%) of the first year payments.
3.6 OBTAINING BENEFIT OF ASSUMED CONTRACTS. At the written request
of BEA, Novell will take all commercially reasonable action, and
cause its affiliates to take all commercially reasonable action, in
order that BEA may obtain the full benefit and enjoyment of the
Assumed Contracts.
4 LICENSES.
4.1 Subject to the terms and conditions specified in this
Agreement, Novell hereby grants, and BEA hereby accepts, a world-
wide, non-transferable (except as otherwise provided herein) license:
4.1.1 to use, duplicate, revise, modify, enhance,
condense, expand, collect, compile, link, adapt, translate,
localize, port, merge or recast TUXEDO Software Source Code;
4.1.2 subject to Section 0, to reproduce, distribute,
and sublicense Source Code;
4.1.3 to install, use, duplicate, market (directly and
indirectly), distribute, merge, package, bundle, and
sublicense, Binary Code of TUXEDO Software, and to authorize
others to perform all or some of the above;
4.1.4 subject to Section 0, to use, duplicate, revise,
modify, enhance, condense, expand, collect, compile, link,
adapt, translate, publish, reissue, or recast Novell
Documentation solely to provide, market and distribute BEA
Documentation for TUXEDO Software, and to authorize others to
do all or some of the above;
4.1.5 to use Novell Confidential Information, including
materials bearing a Novell patent or copyright notice, but only
as necessary to exercise its rights under this Section. This
provision shall not be construed to grant any distribution or
duplication rights or any rights to modify such Confidential
Information; and
4.1.6 in the event this Agreement is terminated (other than
termination due to material breach), Novell grants, and BEA
accepts, a terminable, non-exclusive,
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non-transferrable, fully paid-up, worldwide license to use
TUXEDO Software Source Code solely to support BEA's then
installed base of TUXEDO Software. This conditional license
shall automatically expire ten years from the date of last
customer shipment of TUXEDO Software, which shall not extend
by inference the rights granted in Section 0 beyond
termination or expiration of this Agreement. Further, this
conditional license shall be subject to termination for the
material breach of those sections surviving termination
pursuant to Section 0.
4.2 BEA acknowledges that Novell does not own the localizations and
translations that Novell Japan, Ltd., a majority-owned Subsidiary of
Novell in Japan, or Novell Japan's sublicensees have made or
contracted to be made to any of the TUXEDO Software, which
localizations and translations are not subsumed under the definitions
thereof. BEA acknowledges that, should BEA desire to obtain such
rights or otherwise enter into an agreement respecting those rights,
that it must obtain those rights from, or enter into an agreement
respecting such rights with, Novell Japan or its sublicensees. In
this regard, Novell agrees to exercise commercially reasonable
efforts to facilitate negotiations between Novell Japan. Ltd. and
BEA. In addition, Novell represents and warrants that it has not
granted to Novell Japan, Ltd. or any other party any exclusive rights
with regard to the distribution of non-localized versions of TUXEDO
Software in Japan.
5 DISTRIBUTION AND MARKETING; EXCLUSIVITY.
5.1 BEA DISTRIBUTION AND MARKETING RIGHTS. During the Initial Term,
BEA shall have the exclusive right to market, distribute and
sublicense the TUXEDO Software in all markets and distribution
channels worldwide, subject to the exceptions granted Novell below,
existing licenses granted by Novell to third parties, and to the
terms and conditions of this Agreement. The foregoing includes,
without limitation, the right to market and sublicense TUXEDO
Software to OEMs, VARs and ISVs for integration into their product
offerings, as well as directly to end users.
5.2 NOVELL DISTRIBUTION AND MARKETING RIGHTS.
5.2.1 Novell shall retain the exclusive right to market,
distribute and sublicense TUXEDO Software (\T) for the
NetWare operating system platform (currently NetWare
Transactions and TransactionLink), as well as the right to
market, distribute and sublicense TUXEDO Software technology
or any portions thereof, whether at the \WS or \T level, as
a feature or component of other Novell software (e.g.,
utilizing TUXEDO Software as a messaging component in
GroupWise or as a component included within NetWare). Except
as set forth above, Novell shall not sell TUXEDO Software as
a stand-alone product or in any bundle where TUXEDO is the
only product of substantial value to the end user, whether
under the TUXEDO name or another name.
5.2.2 Novell retains the right to expose TUXEDO API's within the
NetWare Transactions SDK (Software Developers Kit). Novell
also shall retain the right to
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use all TUXEDO programming and administration API's in the
creation of its own product set where TUXEDO functionality
is embedded in Novell products. Other than as set forth
above, Novell will not expose TUXEDO programming and
administrative API's for use by developers, users, or others
external to Novell who are creating or using applications,
administrative tools, or other functions for their own use
or resale; nevertheless, Novell retains the right to expose
interface abstractions (e.g. IDL, OCX, C++, etc.) to
developers that will allow developers or users to take
advantage of Novell services and products employing TUXEDO
technology or offering TUXEDO functionality. However,
except as set forth above regarding NetWare Transactions and
TransactionLink and except as to software developers kits,
Novell shall not ship product containing the abstractions
that allow use of the TUXEDO functionality for one year
following Closing.
5.2.3 BEA acknowledges that Novell will be retaining one or more
copies of the TUXEDO Software Source Code, including all
modifications and enhancements made thereto until the
Closing Date, and that Novell shall have the perpetual right
after the Closing Date to further modify and to market and
distribute the TUXEDO Software as permitted by this
Agreement, subject to the exclusive rights granted to BEA
hereunder.
5.2.4 Novell shall have the option to license and distribute,
under the Novell name, the TUXEDO client software (\WS) as
part of its Transactions and TransactionLink product set.
BEA will offer Novell terms no less favorable than those
offered to other BEA distributors, but in no event shall the
discount from suggested list price be less than 65% during
the Initial Term. In addition, Novell retains the right to
bundle, at no cost to Novell, 25 client software (\WS)
licenses with the NetWare Transactions SDK (Software
Developers Kit) for use by external application developers
who are developing applications for use on NetWare via
NetWare Transactions.
5.3 TERM OF EXCLUSIVITY. The exclusive rights granted above to BEA
shall become non-exclusive at the end of the Initial Term, unless BEA
elects to continue marketing and licensing TUXEDO Software pursuant
to the option given it in Section 14.2.
5.4 REFERENCE SELLING BY NOVELL. Novell may "reference sell" the
TUXEDO Software (including Core Modifications made by BEA) to
Novell's customers. Such sales efforts will be turned over to BEA
sales representatives in order for BEA to close deals with the Novell
customer. For all such reference sales efforts that result in BEA
granting TUXEDO Software licenses to Novell's customers, Novell shall
receive from BEA a finders fee equal to 10% of the standard TUXEDO
Software License Fee charged by BEA. As part of the transition
period, Novell will have an affirmative obligation to inform BEA of
all "deals in progress" and provide reasonable assistance to BEA to
allow BEA to take over the handling of those deals.
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6 TECHNOLOGY COORDINATION COMMITTEE.
6.1 FORMATION; MEMBERSHIP. The Committee shall be formed by BEA and
Novell promptly after the Closing Date and shall exist throughout the
Initial Term, unless otherwise agreed by both parties. Membership of
the Committee shall consist of two (2) representatives named by
Novell and two (2) representatives named by BEA. Such
representatives shall be knowledgeable and qualified to perform their
duties on the Committee. The Committee shall meet at least
quarterly, at mutually agreeable times and places.
6.2 RESPONSIBILITIES. The Committee shall have the following
responsibilities:
6.2.1 Coordinate plans for future development of the TUXEDO
Software and ensure interoperability between BEA's and
Novell's developments with respect to the TUXEDO Software
during the Initial Term.
6.2.2 Approve the development and release process for new versions
of TUXEDO Software, including both Core Modifications and
Add-ons, to ensure that released software is of a quality
consistent with Novell's products.
6.2.3 Patents:
6.2.3.1 The parties recognize the value of
patents dealing with TUXEDO Software. In this regard, BEA
agrees to provide to Novell reasonable assistance in the
prosecution of patent applications existing as of the
Closing Date and the enforcement of those applications
should they be issued as patents. The Committee will
oversee the requests for assistance from Novell and the
coordination of efforts to secure patents from existing
patent applications, including PCT and other international
rights.
6.2.3.2 The Committee will coordinate the
timely assistance of BEA personnel in the completion of
Novell's Invention Disclosure Forms for the identification
of patentable subject matter related to the Core Code and
Core Modifications in the development of TUXEDO Software.
The parties contemplate the possibility of filing patent
applications during the course of TUXEDO Software
development and agree to use commercially reasonable
efforts to complete all invention disclosures in a timely
manner to allow for maximum patent coverage both in the US
and internationally. The Committee will provide for Novell
legal department personnel to spend time with the TUXEDO
Software developers to ascertain whether any new Core
Modifications are patentable on at least a quarterly basis.
Prior to the release of any new software containing a Core
Modification covered by an Invention Disclosure Form,
Novell's legal department shall have an opportunity of not
more than 45 days after the completion of an Invention
Disclosure Form to ascertain whether patent protection
should be sought for new or improved features prior to loss
of international filing
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rights due to public disclosure or
any offer for sale. BEA agrees to provide to Novell
reasonable assistance in the disclosure and filing of
patent applications related to Core Code and Core
Modifications.
6.2.4 The parties specifically agree that the Committee shall have
responsibility only for coordinating and approving the plans
and processes as set forth in Sections 6.2.1, 6.2.2, and
6.2.3 above, and not for making any other decisions with
respect to the TUXEDO Software.
6.3 DISPUTE RESOLUTION. In the event a party disagrees with the
Committee's position on an issue, each party shall be entitled to
appoint two (2) additional members to the Committee, of Vice
President level or higher, to facilitate resolving the dispute.
Alternatively, the parties may agree to escalate the dispute to
senior management within each company to seek a resolution at such
level.
7 CONTRACT ADMINISTRATION. To facilitate an effective relationship and
administration of and compliance with this Agreement, the parties hereby
appoint the following contacts:
Novell: Mark Epstein
Novell, Inc.
122 East 1700 South
Provo, Utah 84606
BEA: Edward W. Scott, Jr.
BEA Systems, Inc.
2465 E. Bayshore Dr.
Palo Alto, California 94303
Each party's contact person shall be responsible for managing that party's
performance under this Agreement and all necessary coordination with the other
party. Each party will advise the other in writing of any change regarding its
appointed contact person. The BEA contact person listed above (or his
designee) shall monitor and report quarterly on BEA's compliance with
contractual obligations under this Agreement, including but not limited to
staffing requirements, development progress, providing Novell with Core
Modifications, revenue targets, revenue reporting, and finders fees
calculations as required pursuant to Section 5.4. Such reports shall be
provided within 30 days after the end of each calendar quarter to the Novell
contact person set forth above and to:
Novell: Contract Accounting
Novell, Inc.
2180 Fortune Drive
MS F6-54-2
San Jose, CA 95131
Fax: (408) 577-5553
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8 OBLIGATIONS OF BEA.
8.1 DEVELOPMENT STAFF. BEA shall employ at the end of each year no
less than the following numbers of full-time (or full-time
equivalent) developers, devoted to TUXEDO Software development,
during the Initial Term:
1996: 35 developers
1997: 47 developers
1998: 62 developers
8.2 MARKETING AND SALES REQUIREMENTS. BEA shall be required to meet
the following minimum sales/revenue requirements during the Initial
Term:
1996: $30 million in gross sales of, and other revenues
from, TUXEDO Software (including all versions thereof),
and professional and technical services (such as
support and maintenance) related to TUXEDO Software
1997: $50 million in gross sales and revenues, as described
above
1998: $80 million in gross sales and revenues, as described
above
The parties acknowledge that Novell's requirement of minimum
sales and revenues amounts is appropriate and reasonable, given
Novell's grant of exclusive rights to BEA and Novell's interest in
preserving the market for TUXEDO Software, particularly in the event
this Agreement is terminated. In any event, BEA shall use
commercially reasonable efforts to actively market TUXEDO Software
for those markets to which BEA is given distribution rights
hereunder. In the event BEA does not meet the above minimum
sales/revenue requirements, Novell shall have the following rights:
If BEA makes at least 50% of the minimum revenue requirement for a
particular year but less than 90%, Novell shall have the right, upon
written notice, to cancel BEA's exclusivity rights under this
Agreement, thereby making all licensed rights of BEA during the
Initial Term non-exclusive. Rights obtained by BEA should it
exercise its option pursuant to Section 14.2 will be subject to any
licenses or other rights granted by Novell to other parties during
this period of nonexclusivity. If BEA makes less than 50% of the
minimum revenue requirement for a particular year, such failure shall
be deemed a material default and grounds for Novell to terminate this
Agreement.
8.3 DEVELOPMENT OBLIGATIONS
8.3.1 INTEGRATION OF TUXEDO SOFTWARE WITH NDS. After the Closing
Date, BEA shall continue development work on the integration
of the TUXEDO Software with Novell's NDS software as a name
server and a security server (providing authentication
security and single sign-on for NetWare clients accessing
information in NDS, and enabling of the NDS administrator to
locate, browse, and set user access privileges to
TUXEDO-based applications on Unix or NT using NDS security
permissions). These capabilities will optionally augment and
enhance the TUXEDO Software's current internal versions of
these services. The
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specifications for such product, the acceptability of the
final product, and dependencies on NDS technology and
interfaces required to complete the product shall be
determined by good faith negotiations between the parties
within ninety (90) days of the Closing Date, and shall be
set forth in a Statement of Work executed by both parties.
In the event the parties are unable to agree upon such a
Statement of Work that is reasonably acceptable to Novell
within such time frame, Novell shall have the option to
terminate and rescind this Agreement. If such product is
not completed until after the target date set by the
Statement of Work, BEA shall pay to Novell the following
amounts as compensation for the damages to Novell due to the
lack of such product in the market:
Less than one month late: no payment
One to four months late: $100,000
for each month or portion thereof after the
initial due date
More than four months late:
$500,000 for each month or portion thereof
after the fourth month
For example, if BEA is four months late, it owes to
Novell $400,000; if BEA is five months late, it owes to Novell
$900,000.
Novell estimates that the NDS integration work described
above shall not exceed seven developer-years. The Statement
of Work shall include the parties' definitive assessment of
the time and work required to complete the integration; to
the extent such assessment exceeds the above estimate,
Novell shall pay BEA for the excess costs on a time and
materials basis, to be set forth in the Statement of Work.
Time and cost overruns incurred by BEA after execution of
the Statement of Work shall be the responsibility of BEA,
unless resulting from a modification requested by Novell
after execution of the Statement of Work for which Novell
has agreed to compensate BEA.
8.3.2 KNOWLEDGE TRANSFER. In order to promote effective
interoperability of products produced by the parties, BEA
shall provide to Novell, upon a mutually agreeable schedule,
up to two engineer-years of time during the Initial Term to
assist Novell in implementing TUXEDO code, features, and
functionality within Novell products. Engineers providing
these services to Novell shall assist in training and such
other aspects of technology and knowledge transfer as may be
reasonably requested by Novell.
8.4 INTEROPERABILITY. To the extent that Novell does not
substantially modify the interfaces to its Transaction Link and
Transactions products, during the Initial Term BEA shall, in making
modifications to the TUXEDO Software, make all commercially
reasonable efforts to maintain the interoperability of the TUXEDO
Software and Novell's TransactionLink product. To facilitate this
effort, Novell shall timely provide interface specifications and
other information regarding the TransactionLink product to BEA. If
Novell does substantially modify the interfaces to its Transaction
Link or Transaction
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products, and the Committee decides that it is important to
continue to maintain interoperability, then BEA and Novell agree
to negotiate in good faith on a reasonable NRE fee and other
terms and conditions under which BEA will make, if it is
commercially reasonable to do so, the necessary modifications to
the TUXEDO Software to maintain that interoperability.
8.5 BINARY CODE SUBLICENSING.
8.5.1 RESELLER AGREEMENTS. BEA agrees to require each reseller,
distributor, OEM, vertical solution provider, systems
integrator, vertical market reseller, and value added
reseller of TUXEDO Software to enter into a written
agreement with BEA before any TUXEDO Software is provided to
the reseller. The agreement shall include provisions
consistent with this Agreement.
8.5.2 END USER AGREEMENTS. BEA agrees to license each Binary
Code copy of TUXEDO Software to end users by means of a
sublicense, which may include a "shrink-wrapped," "box-top"
or equivalent license. The license shall provide
substantially the same level of protection for Novell's
interests in the TUXEDO Software as contained in Novell's
form of license for the TUXEDO Software. Notwithstanding
the foregoing, the licenses under which BEA makes the TUXEDO
Software will provide at least the level of protection which
is customary for similar software in the United States. In
the event TUXEDO Software is distributed under a VAR's,
OEM's or other third party's form of end user license
rather than BEA's form, BEA shall require that the third
party's end user license and enforcement efforts meet the
requirements of this Section 0.
8.5.3 ENFORCEMENT. BEA agrees to use legally and commercially
reasonable efforts to enforce the agreements contemplated by
this Section 0.
8.6 MANUFACTURING; QUALITY CONTROLS. All TUXEDO Software and
related materials (packaging, documentation, promotional materials,
etc.) manufactured by or for BEA shall be of a high quality,
consistent with the standards of Novell and BEA, and shall
substantially conform to Novell's quality controls existing as of the
Closing Date and which may be changed periodically as commercially
reasonable or required by law. BEA agrees to promptly provide to
Novell with a sample copy of each TUXEDO Software product, as well as
related materials, produced by each manufacturing location utilized
by BEA in connection with this Agreement, for Novell's review for
compliance with quality and trademark usage provisions. Novell shall
promptly provide BEA with written notice of all quality standards and
controls, and any changes thereto.
8.7 ASSUMPTION OF CONTRACTUAL OBLIGATIONS FOR TRANSFERRED ASSETS.
BEA acknowledges that Novell has certain obligations with respect to
its ownership of shares in USL Mexico and USL SA, and that these two
companies have contractual obligations to Novell. Novell will provide
to BEA, promptly after the Signing Date, copies of all agreements
containing those obligations, as well as accounting and other
information regarding loans and payables
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between the companies and Novell, and terms applicable thereto.
BEA shall have the option at Closing to accept or reject transfer
of the shares in USL Mexico and/or USL SA, provided that if BEA
accepts such transfer, BEA agrees to (i) assume Novell's obligations
with respect to ownership of the shares; (ii) to cooperate with the
other owners of shares in the companies to cause the companies to
meet their obligations to Novell; and (iii) in the event of
receipt of payment from USL Mexico or USL SA prior to satisfaction
by such companies of their then current financial obligations to
Novell, to forward such payments to Novell to be applied against
such obligations to Novell.
BEA acknowledges that USL Mexico and USL SA have loans and
payables owed to Novell that are outstanding as of the Signing Date.
If either company does not make any required payment to Novell of any
such loan or payable amounts within thirty (30) days after Novell
gives notice to such company that the payment is past due, then BEA
agrees that: (i) BEA will make all commercially reasonable efforts to
make the company make such payment, including without limitation
terminating any Assumed Contract or other distribution agreement with
the company until such payment is made, or (ii) at BEA's sole option,
BEA may itself pay such amounts to Novell.
8.8 CONFORMITY BY BEA SUBSIDIARIES. BEA shall cause all of its
Subsidiaries to conform to all applicable terms and conditions of
this Agreement.
9 OBLIGATIONS OF NOVELL.
9.1 BEA DISTRIBUTORSHIP. Pursuant to the standard terms and
conditions, Novell agrees that it will offer to BEA a Novell
distribution agreement which includes the right to distribute NetWare
Transactions, TransactionLink, and any other TUXEDO-based products
offered by Novell under terms as favorable as those offered to
similarly situated distributors. Pursuant to the terms and
conditions of any such Novell distribution agreement, BEA may
distribute other Novell products on Novell's then-current price list
under Novell's standard pricing discount structure.
9.2 ENTERPRISE SALES PROGRAM. On the Closing Date or promptly
thereafter, Novell shall enroll BEA as a participant in Novell's
Enterprise Sales Program, and shall permit BEA to continue to
participate in such program, so long as it exists and BEA meets the
requirements for participation therein, throughout the Initial Term,
so long as this Agreement is in effect.
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10 RESTRICTIONS.
10.1 SOURCE CODE SUBLICENSING. Sublicenses of Source Code shall only
be granted upon, and shall be subject to, terms and provisions which
meet or exceed those included as Exhibit F. During the Initial Term,
BEA shall give Novell written notice of each third party to whom a
Source Code sublicense for TUXEDO Software has been given, within
thirty (30) days of the date such sublicense has been finalized.
Novell shall treat such list of names as Confidential Information
and, except in the event of termination of this Agreement, shall not
utilize the names or information on such list other than for purposes
of this Agreement.
10.2 NETWARE PLATFORM RESTRICTIONS. Notwithstanding any other terms
of this Agreement, BEA shall not develop or modify TUXEDO Software
for use on the NetWare platform; such rights are reserved by Novell.
However, at the request of Novell, and for a reasonable fee as
negotiated by the parties at such time, BEA shall assume development
of TUXEDO Software for NetWare and add such features and functions
thereto as are agreed upon by the parties, as work for hire to be
owned by Novell. The timing of delivery of such development efforts
shall be subject to prior engagements and internal development
schedules of BEA. Novell agrees to consider in good faith any
request by BEA for rights to sublicense and distribute the TUXEDO
Software for NetWare product.
10.3 RESTRICTIONS ON SALE OR ASSIGNMENT. The parties agree that
their rights to sell their interests in TUXEDO Software or to assign
their interests under this Agreement shall be limited as follows:
10.3.1 Novell shall not grant or sell to any third party
ownership to the Core Code until after the end of the
Initial Term, unless BEA gives its prior consent thereto in
writing. Additionally, during the Initial Term, Novell shall
not transfer any of its rights in the TUXEDO Software to
Microsoft Corporation ("Microsoft"), IBM Corporation, Oracle
Corporation, Sybase or Informix, absent prior written
consent of BEA. In any event, Novell agrees that it shall
not transfer to a third party its rights to Core
Modifications developed by BEA hereunder, absent prior
written consent of BEA; however, the foregoing shall not be
construed to limit Novell's right to sublicense to third
parties the Core Modifications as a part of Novell products
which Novell is otherwise permitted to distribute under this
Agreement.
10.3.2 During the Initial Term, neither party shall license or
otherwise transfer any rights in the TUXEDO Software to
Microsoft or any affiliate thereof. The foregoing includes
any transfer of rights via a Change of Control to Microsoft
or an affiliate thereof. The foregoing sentence does not
prohibit BEA from being acquired as a subsidiary by
Microsoft in connection with a public offering of BEA's
stock, but does prohibit Microsoft from merging with BEA or
otherwise obtaining access to the TUXEDO Software,
notwithstanding Microsoft's ownership of BEA stock.
10.3.3 Notwithstanding Section 25.11 below, and other than as
forth in subsection 10.3.2, neither party shall be
restricted from a transfer of its rights and obligations in
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connection with a Change of Control in such party;
provided, however, that in the event of a contemplated
Change of Control in BEA, BEA shall give Novell prior
written notice that it is considering a Change of Control
and in the event of a private sale shall grant Novell
reasonable opportunity to participate in the bidding process.
10.4 INJUNCTIVE RELIEF. Novell and BEA each hereby
affirmatively represents that such party understands and acknowledges
that the other party has a legitimate business purpose in requiring
such party to abide by the restrictive covenants contained in this
Section 10, and acknowledges that the restrictions contained herein
are reasonable given the fact that failure to comply with such
restrictions could result in competition with the TUXEDO Software
that would severely injure the other party, and that monetary damages
would be difficult if not impossible to ascertain. In light of the
foregoing and the consideration given by each party under this
Agreement, each of Novell and BEA specifically agrees that in the
event such party violates any of the provisions of this Section 10,
irreparable harm shall be presumed and the other party shall be
entitled to an immediate injunction from any court of competent
jurisdiction, without the requirement of posting any bond in
connection with temporary or interlocutory injunctive relief, to the
extent permitted by law.
11 OWNERSHIP.
11.1 CORE CODE AND CORE MODIFICATIONS. Novell shall retain all
right, title and interest in and to the Core Code, including all
intellectual property rights thereto and the methods and concepts
contained in the Core Code, subject to the rights and licenses
granted to BEA hereunder. Novell shall also hold, retain or be
granted title to all Core Code and Core Modifications made to any
TUXEDO Software created by either BEA or Novell during the Initial
Term. Core Modifications developed or created by BEA, including
modifications to any version of the TUXEDO Software during the
Initial Term shall be deemed works made for hire and licensed by
Novell to BEA pursuant to the terms of this Agreement. Should any
Core Modifications not be considered a work made for hire, BEA agrees
to execute all necessary documents to transfer title to the Core
Modifications to Novell and to cooperate in the copyright
registration of those Core Modifications on behalf of Novell. Title
to all applicable rights and patents, copyrights and trade secrets in
such Core Modifications shall remain in Novell, subject to the
purchase option granted to BEA under Section 14.2 below. Upon
Novell's request, BEA agrees to provide Novell a copy of each Core
Modification developed or created by BEA based upon or incorporating
the Core Code provided by Novell. In any event, however, BEA shall
provide a copy of such Core Modifications every six months from the
Closing Date. If BEA exercises the option to purchase a perpetual
license under Section 14.2 below, BEA's license in the Core Code
shall become perpetual and BEA shall receive a transfer of ownership
of all Core Modifications developed by BEA during the Initial Term,
and shall own all right, title and interest in and to all Core
Modifications developed by BEA during the Perpetual License Term (as
defined in Section 14.2). The foregoing shall apply to all Core
Modifications including those made by BEA's subsidiaries, affiliates
and/or contractors.
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11.2 ADD-ONS. Unless the parties expressly agree in writing to
transfer ownership rights, Novell shall own all right, title and
interest in and to all Add-ons developed or created by Novell during
the Initial Term and thereafter, and BEA shall own all right, title
and interest in and to all Add-Ons developed or created by BEA during
the Initial Term and thereafter. In the event Novell desires to
license from BEA any Add-ons owned by BEA, the parties agree to
negotiate in good faith with respect to the terms and conditions of
such licenses.
11.3 DOCUMENTATION. Each party shall own the Documentation for such
portions of the TUXEDO Software as are owned by it. In the event of
a transfer of ownership to any portion of the TUXEDO Software between
the parties, ownership of Documentation shall follow ownership of
such technology.
11.4 COPYRIGHT NOTICE. Any product distributed by BEA which contains
any portion of code licensed from Novell hereunder shall contain the
following notice in the product itself, on the media label and in the
Documentation therefor: "Portions of this software -C- 1995 Novell,
Inc. All Rights Reserved. Distributed under license by BEA Systems,
Inc."
11.5 RESIDUALS. All rights of Novell not explicitly granted by
Novell under this Agreement shall remain solely and exclusively in
Novell. To the extent that ownership of the Core Code and Core
Modifications are not deemed, as a matter of law, to be the sole and
exclusive property of Novell, BEA hereby assigns and Novell hereby
receives all right, title and interest therein, and agrees to execute
at Novell's request subsequent documents as further evidence of this
assignment.
12 TRADEMARK LICENSE. During the Initial Term, the following terms and
conditions shall apply to Novell's license to BEA of the Mark. The
parties acknowledge that, in the event BEA exercises its option under
Section 14.2 to purchase the Mark at the end of the Initial Term, the
terms and conditions of the license in this Section 0 shall be terminated
at the time of purchase and shall have no further force or effect.
12.1 LICENSE. Conditional upon BEA's compliance with this Section 0,
Novell hereby grants to BEA, during the Initial Term, an exclusive
(as described below), world-wide, non-transferable license to use the
Mark in connection with BEA's marketing, distribution and
sublicensing of the TUXEDO Software. "Exclusive" shall mean that
Novell shall not license any other third party to use the Mark
(subject, however, to licenses existing as of the Closing Date listed
on Exhibit E, in its final form as delivered by Novell at Closing),
and that Novell shall not itself use the Mark except in connection
with the marketing, distribution, license or sale of TUXEDO Software
pursuant to Section 5.2.
12.2 NOTICE REQUIREMENTS. The initial or most prominent use of the
Mark in any products, packaging, written advertisements and other
promotional materials shall include the trademark symbol -Registered
Trademark- (i.e., "TUXEDO-Registered Trademark-"), and all such
materials shall also include the following attribution notice:
"TUXEDO is a registered trademark of Novell, Inc. in the United
States and other countries."
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12.3 RESERVATION OF RIGHTS AND GOODWILL. Novell retains all rights
in and to the Mark not expressly conveyed to BEA by this Section 0.
BEA acknowledges that all goodwill which accrues in use of the Mark
by BEA shall exclusively inure to the benefit of, and belong to,
Novell. BEA has no rights of any kind whatsoever with respect to the
Mark licensed under this Agreement except to the extent of the
license granted in Section 0 and the option to purchase the Mark
granted in Section 14.2.
12.4 NO REGISTRATION BY BEA.
12.4.1 REPRESENTATION. BEA represents that there is no
registration or application for any trademark and/or service
mark which is the same as, or confusingly similar to, the
Mark, with regard to any "computer software products and/or
services for networking computers or providing data
communications" in any class and in any and all countries of
the world, which is made by, on behalf and/or in the name of
BEA.
12.4.2 PROSPECTIVE PROHIBITION. BEA further agrees to refrain from
filing any new trademark and/or service mark application(s)
with regard to any specification for "computers and computer
software products and/or services for networking computers
or providing data communications" in any class and in any
country, for any trademark and/or service mark which is
confusingly similar to the Mark, without the prior written
consent of Novell.
12.4.3 USE OF MARK IN FOREIGN JURISDICTIONS. BEA shall give Novell
at least ninety (90) days prior written notice of BEA's
intent to use the Mark in any country other than the U.S.
and other countries in which Novell has made substantial use
of the Mark. If after receiving such notice Novell
determines that registration of the Mark or filing or
recording of a license or a registered user agreement is
required or advisable in connection with such proposed use,
the parties shall cooperate in preparing and executing all
documents necessary with respect thereto. Registration of
the Mark shall be in Novell's name; BEA shall pay all the
expense of any such registration, filing or recording.
12.4.4 SUBSIDIARIES & AFFILIATES. In the event Novell discovers
that any person, employee, officer, director, agent, servant
or juristic entity, which is controlled by, or under common
control of, BEA, has filed for, or obtained a registration
of, or is otherwise using any trademark which is confusingly
similar to the Mark, Novell shall provide written notice of
such to BEA. Commencing upon receipt of such notice, BEA
agrees to exercise best efforts to cause such person or
entity to assign to, or otherwise provide Novell with, an
exclusive license for the Mark.
12.4.5 RESELLERS & LICENSEES. BEA agrees to exercise commercially
reasonable efforts to incorporate into each agreement with
its resellers and licensees under which it sublicenses or
sells TUXEDO Software provisions consistent with the
applicable
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provisions of this Section 0, or to otherwise prevent
them from using marks or filing for registrations that
are prohibited by this Section 12.4.
12.4.6 CONFUSING SIMILARITY. For purposes of this Section 0,
whether a mark is "confusingly similar" shall be determined
in accordance with the laws of the jurisdiction in which the
question arises.
12.4.7 SURVIVABILITY. The provisions of this Section 0, as they
apply to BEA, shall survive any termination or expiration of
this Agreement for a period of one (1) year after all of
BEA's obligations under this Agreement are fulfilled, except
in the event of BEA's purchase of the Mark.
12.5 PROTECTION OF RIGHTS. BEA shall assist Novell, at Novell's
expense and to the extent reasonably necessary, to protect or to
obtain protection for any of Novell's rights to the Mark. Novell, if
it so desires, may commence or prosecute any applications to register
the Mark, in the name of Novell, for the Mark throughout the world.
BEA shall promptly notify Novell in writing of any known or suspected
abuses of the Mark. Novell shall have the sole right to determine
whether or not any action shall be taken on account of such uses by
others. BEA shall not institute any suit or take any action on
account of such use by others except with Novell's prior written
consent, which shall not be unreasonably withheld..
12.6 INDEMNIFICATION BY BEA. BEA hereby agrees to indemnify and hold
Novell harmless against any loss, liability, damage, cost or expense
(including reasonable legal fees) arising out of any claims or suits,
whatever their nature and however arising, which may be brought or
made against Novell (i) by reason of BEA's material breach of this
Section 0 and/or (ii) arising out of the use by BEA of the Mark in
any manner whatsoever except in the form expressly licensed
hereunder. In the event Novell seeks indemnification under this
Section 0, it shall immediately notify BEA, in writing, of any claim
or proceeding brought against it for which it seeks indemnification
hereunder. BEA shall have the sole control of the defense of the
claim or proceeding and all negotiations for its settlement or
compromise. In no event may BEA enter into any third party
agreements which would in any manner whatsoever affect the rights of,
or bind, Novell in any manner to the third party, without the prior
written consent of Novell.
12.7 INDEMNIFICATION BY NOVELL. Novell hereby agrees to indemnify
and hold BEA harmless against any loss, liability, damage, cost or
expense (including reasonable legal fees) arising out of any third
party claims or suits which may be brought or made against BEA
arising out of the use by BEA of the Mark in the form expressly
licensed hereunder, which assert that BEA's use of the Mark violates
such party's trademark rights in the U.S. or in any other country in
which Novell has made substantial use of the Mark. In the event BEA
seeks indemnification under this Section 0, it shall immediately
notify Novell, in writing, of any claim or proceeding brought against
it for which it seeks indemnification hereunder. In no event may
Novell enter into any third party agreements which would in any
manner whatsoever affect the rights of, or bind, BEA in any manner to
the third party, without the
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prior written consent of BEA. Novell
shall have the sole control of the defense of the claim or proceeding
and all negotiations for its settlement or compromise. Novell
reserves the right to replace or modify the Mark in a particular
country at any time should use of the Mark become, or in Novell's
opinion be likely to become, the subject of an allegation of
infringement after Novell has demonstrated that it has made
commercially reasonable efforts to resolve the dispute. Novell will
assist BEA in an orderly transition of the Mark to a new mark in the
case of such infringement problems.
13 CONSIDERATION.
13.1 PAYMENTS FOR INITIAL TERM. During the Initial Term, in
consideration of the licenses and rights granted by Novell to BEA
herein for the Initial Term, BEA agrees to pay to Novell the
following amounts:
For Year 1 of the Initial Term: $12 million ($3 million per
quarter)
For Year 2 of the Initial Term: $21 million ($5.25 million per
quarter)
For Year 3 of the Initial Term: $33 million ($8.25 million per
quarter)
Such amounts shall be payable to Novell on a quarterly basis,
with the first payment due and payable March 31, 1996 and subsequent
payments due at the end of each calendar quarter thereafter. BEA
shall have the right to defer payment of the initial two (2)
quarterly payments required hereunder until the due date for payment
of the third quarterly payment, and pay all three (3) such payments
to Novell at the same time, together with interest at an annual
percentage rate of 0% (zero percent) on the initial two (2) payments.
BEA shall have the right to make prepayment of any of the payments
specified in this Section 13.1, due within the following twelve
months, less a discount rate equal to an annual rate of 8%.
13.2 CONSIDERATION FOR TRANSFERRED ASSETS. BEA agrees that the
following amounts from the payments of Section 13.1 will be allocated
to the transfer of the Transferred Assets:
For that certain equipment, furnishings and other personal
property previously used by Novell's TUXEDO division as listed in
Exhibit D: A fair value to be determined prior to Closing; and
For all of Novell's shares of stock in USL Mexico, its fair
value to be determined prior to Closing; and
For all of Novell's shares of stock in USL SA, its fair value to
be determined prior to Closing.
13.3 PAYMENTS & TAXES. All payments required under this Agreement to
Novell shall be in U.S. dollars and shall be exclusive of any
federal, state, municipal or other government taxes, duties, excises
or tariffs now or hereafter imposed on the production, storage, sale,
transportation, import or export, or use of TUXEDO Software or
Documentation, but
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excluding any taxes or fees imposed on Novell's
net income. Any taxes, duties, excises, tariffs, fees, or levies
imposed on amounts paid hereunder or against this Agreement, except
for taxes or fees based on Novell's net income, shall be the
responsibility of BEA, and if rightfully paid or incurred by Novell,
shall be promptly reimbursed to Novell by BEA upon receipt of an
invoice from Novell. BEA shall pay and promptly discharge when due
the entire amount of any and all sales and use tax ("Sales Tax")
imposed or levied by reason of the sale of the Transferred Assets to
BEA. The parties shall cooperate with each other to the extent
reasonably required and legally permitted to minimize any such Sales
Tax.
13.4 GUARANTY. All financial obligations of BEA during the Initial
Term shall be guarantied by Warburg, Pincus pursuant to the form of
Guaranty attached hereto as Exhibit G. The payment under Section
14.2 below is not to be deemed a financial obligation of BEA, unless
and until BEA gives Novell written notice that it is exercising the
option described in Section 14.2. In the event of a public offering
of BEA stock in which BEA obtains at least $50 million in equity
investments, provided that BEA creates and maintains an interest-
bearing escrow account holding at least fifty percent (50%) of the
amount of outstanding financial obligations of BEA during the Initial
Term, Novell agrees to terminate the Guaranty and release Warburg,
Pincus from its obligations thereunder, effective at the time BEA
delivers to Novell reasonably satisfactory evidence that such minimum
funds have been obtained from a public offering and the escrow
account has been formed and fully funded. Interest earned on the
escrow amounts shall be available for use in satisfying obligations
under this Agreement.
14 TERM; OPTION. The initial term of this Agreement (the "Initial Term")
shall be three (3) years from the Closing Date. The Initial Term may be
extended only upon the mutual written agreement of the parties, upon such
terms and conditions as may be agreed at that time (any such extensions
shall be considered part of the Initial Term for purposes of this
Agreement, unless otherwise expressly stated in writing). At the end of
the Initial Term, BEA shall have the following options:
14.1 Terminate this Agreement, including all technology and
trademark licenses granted herein, and cease all distribution of the
TUXEDO Software under this Agreement; provided, however, that BEA
shall retain its rights in Add-ons developed by it during the Initial
Term or otherwise owned by BEA, and provided further that all then-
existing licenses to the TUXEDO Software shall survive such
termination.
14.2 Make perpetual, fully paid up, and irrevocable BEA's
exclusive worldwide source code license to the TUXEDO Software as
originally provided hereunder by Novell to BEA, including, subject to
Novell's rights described in Section 5 above and in this Section
14.2, an exclusive license under all applicable copyrights, patents,
and other intellectual property rights thereto, and to purchase
Novell's entire right, title and interest in and to the Mark and to
the Core Modifications created by BEA during the Initial Term, for a
one-time payment of $25 million, to be paid no later than thirty
(30) days prior to the end of the Initial Term. The term of such
perpetual license (the "Perpetual License Term") shall begin
immediately upon the end of the Initial Term. In the event BEA
exercises this option, effective on the first day of the Perpetual
License Term, (i) Novell transfers to BEA all its right, title and
interest in and to the Core Modifications that were created by BEA
during the Initial Term,
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subject to a perpetual, royalty-free, irrevocable, worldwide source
code and patent license back to Novell to use and sublicense Core
Code, patents, and such Core Modifications for the permitted
purposes described in Section 5 above; (ii) BEA shall own all
right, title and interest in and to all future Derivative Works
of the TUXEDO Software, including Core Modifications, that will
be created by BEA during the Perpetual License Term; (iii) Novell
transfers to BEA all its right, title and interest in and to the
Mark and associated goodwill, (iv) Novell transfers Novell's work
in progress on its IBM main frame connectivity transaction
processing solutions, (v) BEA's obligations under Sections 6, 7,
8, 10 (except for the first sentence of Section 10.2), 12, 13, 16,
25.3, and 25.11 shall terminate, and (vi) this Agreement shall
not thereafter terminate or expire. Rights granted pursuant
to this Section are subject to rights granted by Novell to third
parties during any period during which BEA's license was non-
exclusive as contemplated in Section 8.2.
BEA shall notify Novell in writing, at least twelve (12) months prior to the
end of the Initial Term, of the option BEA elects to take at the end of the
Initial Term. If notice is not timely received, this Agreement shall terminate
at the end of the Initial Term, as described in Section 14.1.
15 DELIVERY & DELIVERABLES. Novell shall ship the deliverables identified in
Exhibit A within ten business days after the Closing Date of this
Agreement.
16 EMPLOYEES.
16.1 IDENTIFICATION. BEA agrees to offer employment to those Novell
employees identified in Exhibit H, which shall be all employees of
Novell dedicated to the development and marketing of the TUXEDO
Software, as well as the Novell employees who provide full-time
consulting with respect to the TUXEDO Software, excluding up to four
(4) employees whom Novell may designate by name that Novell wishes to
retain. Those employees identified will receive offers for
employment at the rate of pay set forth in a written offer to such
employees from BEA, to be delivered by BEA prior to the Closing Date,
and contingent upon the Closing. BEA shall conduct mutually
agreeable interviews of such employees and shall make offers
contingent upon Closing to such employees prior to the Closing Date.
Offers shall have been subject to acceptance or rejection prior to
the Closing Date. Those employees who have accepted conditional
offers from BEA prior to the Closing Date shall be referred to herein
as "Transferred Employees."
16.2 BEA'S EXPECTED COMPENSATION/BENEFIT PACKAGE. Prior to the
execution of this Agreement, BEA has provided to Novell confidential
information regarding the proposed compensation and benefit offerings
for each Transferred Employee, so Novell could independently evaluate
BEA's compensation and benefit offerings for "comparability" with
Novell's compensation and benefits. BEA agrees that it shall offer
to such employees the same salary they received from Novell, as well
as comparable employee benefits. Additionally, BEA represents that
it has no current intention to require Transferred Employees to
relocate outside of the greater Florham Park, New Jersey area.
16.3 TERMINATION OF EMPLOYMENT WITH NOVELL. On the Closing Date,
each of the Transferred Employees will cease their employment with
Novell. Except as otherwise set forth herein, or under the provisions
of any applicable Novell employee benefit plan or except as
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otherwise required by applicable law, all Novell benefits for the
Transferred Employees, including, but not limited to, health,
vision, and dental, shall cease upon the last day of the calendar
month in which the Closing occurs. Novell shall pursue procedures
with respect to benefits of the Transferred Employees, including,
but not limited to, any stock options and stock purchase plan(s),
in accordance with Novell's customary employee termination
procedures.
16.4 HIRE BY BEA. Immediately after execution of this Agreement, BEA
will offer to employ all of the Transferred Employees for a period of
not less than one (1) year from the Closing Date at no less than the
rate of pay stated in the written offer given by BEA to the
Transferred Employees described in Section 16.2 above; provided,
however, that BEA may terminate any Transferred Employee for good
cause (as defined by applicable state law in the state in which the
Transferred Employee is located). With the exception of the above
"Transferred Employees", BEA agrees that it will not solicit or
recruit any other Novell employees from Novell's TUXEDO division for
a period of one year after the Closing.
16.5 AT&T PENSION OBLIGATION. The parties acknowledge that Novell
incurred certain accounting and reporting obligations relating to
specific employees covered by AT&T pension plans. Should BEA be
considered a "successor employer" or similar designation under the
relevant agreement between Novell and AT&T, BEA agrees to report
compensation levels for any Transferred Employees as required by the
AT&T pension plans.
17 ERROR CORRECTION AND CUSTOMER SUPPORT.
17.1 CUSTOMER SUPPORT. Effective as of the Closing Date, BEA shall
assume responsibility for providing technical support (including "hot
line" support) to all current TUXEDO customers and accounts of
Novell. With respect to customers who may purchase TUXEDO based
products in the future from Novell (e.g., NetWare Transactions,
TransactionLink, etc.), Novell shall have an option to outsource
customer support to BEA for a reasonable support fee paid to BEA. To
ensure that all current Novell TUXEDO customers have a smooth
transition to BEA support, Novell agrees to continue for 90 days
after the Closing Date, the "hot line" and "first line" support that
Novell currently provides to its TUXEDO customers from its central
support center in Provo. BEA and Novell will collaborate on
arrangements for this transition process; BEA shall not be obligated
to pay for any resulting costs. Novell will provide BEA at no charge
detailed information concerning customer names, coverage,
eligibility, maintenance history and technical data concerning its
experience and processes related to TUXEDO support.
17.2 END USERS AND RESELLERS. Under this Agreement, Novell shall
have no obligation to provide support to BEA's customers, including
without limitation, BEA's distributors, sub-distributors, dealers,
resellers and/or end users. Notwithstanding, Novell may receive
support calls which involve BEA's versions of TUXEDO Software. To
facilitate Novell's ability to provide timely response to customers
where versions of TUXEDO Software provided by BEA are involved, BEA
agrees to provide Novell with two (2) copies of each version made
generally available by BEA.
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17.3 SUPPORT TO NOVELL. After the Closing Date, upon a mutually
agreeable schedule, BEA shall host up to four (4) Novell
developers/engineers at BEA's facilities for up to three (3) months
worth of time, in order to train them with respect to the TUXEDO
Software. All salaries and expenses for the developers/engineers
shall be borne by Novell. Additionally, the parties acknowledge that
due to BEA's ongoing modifications to the TUXEDO Software and
Novell's rights to utilize such modifications, Novell's development
staff will require ongoing technical support from BEA from time to
time as such modifications are made, and BEA agrees to provide a
reasonable amount of such technical support to Novell during the
Initial Term free of charge.
18 SALE OF TRANSFERRED ASSETS; ASSUMPTION OF ASSUMED CONTRACTS.
18.1 SALE OF TRANSFERRED ASSETS. Effective upon Closing, Novell
hereby sells, grants, transfers, conveys, assigns and delivers to BEA
all of Novell's right, title and interest in and to the Transferred
Assets, and as evidence thereof shall execute and deliver to BEA the
Bill of Sale and Assignment of Assets in substantially the form of
Exhibit I, and BEA hereby accepts delivery thereof. The parties
acknowledge that accounts receivable held by Novell remain Novell's
assets and are not transferred as part of the Transferred Assets. To
assure a smooth transition during the first nine months, the parties
agree to cooperate in good faith to determine the appropriate
allocation for the distribution of any payments received for the sale
or license to third parties of TUXEDO Software.
18.2 ASSUMPTION OF ASSUMED CONTRACTS. Effective upon Closing, Novell
hereby assigns to BEA all of Novell's rights and obligations under
the Assumed Contracts, and BEA hereby accepts such assignment and
assumes all responsibilities and obligations of the Assumed Contracts
as part of the consideration for this Agreement. Should BEA not
exercise its option pursuant to Section 14.2 or upon other
termination of this Agreement, BEA agrees to reassign to Novell the
Assumed Contracts and any BEA contracts which are based on the rights
granted under this Agreement.
19 NOVELL'S REPRESENTATIONS AND WARRANTIES. Novell hereby warrants,
represents and covenants to BEA as follows:
19.1 ORGANIZATION AND STANDING; CERTIFICATE AND BYLAWS. Novell is a
corporation duly organized and existing under, and by virtue of, the
laws of the state of Delaware and is in good standing under such
laws. Novell has the requisite corporate power to own and operate its
properties and assets and to carry on its business as currently
conducted and as proposed to be conducted. Novell is duly qualified
to transact business and is in good standing in each jurisdiction in
which the failure to so qualify would have a material adverse effect
on its business or properties.
19.2 CORPORATE POWER. Novell has all requisite corporate power to
execute and deliver this Agreement and all agreements to be executed
and delivered by Novell pursuant to the terms hereof and to carry out
and perform its obligations under the terms of this Agreement and
such other agreements.
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19.3 AUTHORIZATION. All corporate action on the part of Novell, its
directors and its stockholders necessary for the authorization,
execution, delivery and performance of this Agreement and any other
agreements contemplated hereby has been taken. This Agreement and any
other agreements contemplated hereby, when executed and delivered by
Novell, will constitute valid and binding obligations of Novell
enforceable in accordance with their respective terms.
19.4 COMPLIANCE WITH OTHER INSTRUMENTS, NO CONFLICTS, ETC. The
execution, delivery and performance of and compliance with this
Agreement and all documents executed in connection herewith
("Incorporated Documents") will not result in any violation of, or
conflict with, or constitute a default under Novell's Certificate of
Incorporation or Bylaws, or under any material agreement to which
Novell is a party, or result in the creation of, any mortgage,
pledge, lien, encumbrance or charge upon any of the properties or
assets of Novell. No consent of any person not a party to this
Agreement and no consent of any governmental authority is required to
be obtained on the part of Novell to permit the consummation of the
transactions contemplated by this Agreement (including without
limitation the transfer to BEA of all right, title and interest in
and to the Transferred Assets). Novell is not in violation of any
term of its Certificate of Incorporation or Bylaws, or in any
material respect of any term or provision of any mortgage,
indebtedness, indenture, contract, agreement, instrument, judgment or
decree, order, statute, rule or regulation applicable to Novell if it
could have an adverse impact on the transactions contemplated by this
Agreement.
19.5 LITIGATION, ETC. There are no actions, suits, proceedings or
investigations pending against Novell or its officers or properties
before any court, arbitrator or governmental agency (or, to the best
of Novell's knowledge, is there any threat thereof) that questions
the validity of this Agreement and/or any of the Incorporated
Documents or any action taken or to be taken in connection herewith
or therewith. Novell is not a party to or specifically by name
subject to the provisions of any order, writ, injunction, judgment or
decree of any court or government agency or instrumentality that
questions the validity of this Agreement and/or any of the
Incorporated Documents or any action taken or to be taken in
connection herewith or therewith. There is no action, suit,
proceeding or investigation by Novell currently pending or that
Novell currently intends to initiate that questions the validity of
this Agreement and/or any of the Incorporated Documents or any action
taken or to be taken in connection herewith or therewith.
19.6 OWNERSHIP OF ASSETS. Novell owns all of the Transferred Assets
free and clear of all liens, security interests and other
encumbrances, excepting Assumed Contracts and any other liabilities
being assumed by BEA under this Agreement or as otherwise stated in
this Agreement (including the Exhibits attached hereto), and Novell
can transfer the same to BEA without limitation of any kind, except
as otherwise provided in this Agreement.
19.7 DISCLOSURE. The representations and warranties of Novell
contained in this Agreement, do not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements contained herein or therein not misleading in
light of the circumstances under which they were made. Novell has no
present intention to transfer this Agreement or any of its rights or
obligations hereunder or under the Incorporated
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Documents or any of the assets acquired hereby to any third
party, except in the ordinary course of business.
19.8 CUSTOMER TRANSITION. Novell will use commercially reasonable
efforts to implement a smooth transition of operations from Novell to
the end that all TUXEDO Software distributors and customers will
experience as little disruption and delay in service, supply and
support as is reasonably practicable.
19.9 NOTICE OF MATERIAL CHANGE. Novell agrees to give BEA prompt
written notice of any material change which occurs prior to the
Closing in any of the information contained in the representations
and warranties made by Novell in this Agreement and/or the Exhibits
attached hereto.
19.10 OWNERSHIP OF TUXEDO SOFTWARE. Novell owns the TUXEDO
Software free and clear of all liens, security interests and other
encumbrances, except for non-exclusive licenses. Novell can grant to
Novell the exclusive right and license to distribute the TUXEDO
Software throughout the world that is subject only to the existing
non-exclusive licenses being assigned to BEA at the Closing as
Assumed Contracts. Novell is not obligated to pay any license fees or
other payments to any party in connection with the licensing of the
TUXEDO Software. The sale, distribution, reproduction and use of the
TUXEDO Software does not, to the best of Novell's knowledge, infringe
any patent, copyright, trade secret, trademark or other proprietary
rights of any third party, nor has Novell received any claim of such
infringement.
19.11 ASSIGNMENT OF ASSUMED CONTRACTS. Novell has listed as
Assumed Contracts in Exhibit C, in its final form as delivered by
Novell to BEA on or before the Closing Date, all existing licenses,
service contracts (including documentation), independent contractor
agreements, and other agreements between Novell and another party
relating to TUXEDO Software. The aggregate yearly revenue received
from the Assumed Contracts by Novell has been accurately represented
in the financial information provided by Novell to BEA, to the best
of Novell's knowledge. All of the Assumed Contracts are in full
force and effect unless otherwise specified, and Novell is not
currently in breach of any of the terms of the Assumed Contracts.
Except as specifically identified in Exhibit C, Novell can assign to
BEA all of the Assumed Contracts, and after Closing, BEA shall have
been assigned all rights of Novell under the Assumed Contracts.
19.12 LIMITATION OF WARRANTY. Except as otherwise provided in
this Agreement, BEA acknowledges that the TUXEDO Software and
Transferred Assets are provided to BEA "as is" and without any
warranty of any kind. EXCEPT AS OTHERWISE SET FORTH IN THIS
AGREEMENT, NOVELL EXPRESSLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO
THE TUXEDO SOFTWARE AND THE TRANSFERRED ASSETS, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND
FITNESS FOR A PARTICULAR PURPOSE.
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20 BEA REPRESENTATIONS AND WARRANTIES. BEA hereby warrants, represents and
covenants to Novell as follows:
20.1 ORGANIZATION AND STANDING; CERTIFICATE AND BYLAWS. BEA is a
corporation duly organized and existing under, and by virtue of, the
laws of the state of Delaware and is in good standing under such
laws. BEA has the requisite corporate power to own and operate its
properties and assets and to carry on its business as currently
conducted and as proposed to be conducted. BEA is duly qualified to
transact business and is in good standing in each jurisdiction in
which the failure to so qualify would have a material adverse effect
on its business or properties.
20.2 CORPORATE POWER. BEA has all requisite corporate power to
execute and deliver this Agreement and all Incorporated Documents and
to carry out and perform its obligations under the terms of this
Agreement and such other documents.
20.3 AUTHORIZATION. All corporate action on the part of BEA, its
directors and its stockholders necessary for the authorization,
execution, delivery and performance of this Agreement and any other
agreements contemplated hereby has been taken. This Agreement and the
Incorporated Documents, when executed and delivered by BEA, will
constitute valid and binding obligations of BEA enforceable in accor-
dance with their respective terms.
20.4 COMPLIANCE WITH OTHER INSTRUMENTS, NO CONFLICTS, ETC. The
execution, delivery and performance of and compliance with this
Agreement and the Incorporated Documents will not result in any
violation of, or conflict with, or constitute a default under BEA's
Articles of Incorporation or Bylaws, or under any material agreement
to which BEA is a party, or result in the creation of, any mortgage,
pledge, lien, encumbrance or charge upon any of the properties or
assets of BEA. No consent of any person not a party to this Agreement
and no consent of any governmental authority is required to be
obtained on the part of BEA to permit the consummation of the
transactions contemplated by this Agreement (including without
limitation the transfer to BEA of all right, title and interest in
and to the Transferred Assets). BEA is not in violation of any term
of its Articles of Incorporation or Bylaws, or in any material
respect of any term or provision of any mortgage, indebtedness,
indenture, contract, agreement, instrument, judgment or decree,
order, statute, rule or regulation applicable to BEA if it could have
an adverse impact on the transactions contemplated by this Agreement.
20.5 LITIGATION, ETC. There are no actions, suits, proceedings or
investigations pending against BEA or its officers or properties
before any court, arbitrator or governmental agency (or, to the best
of BEA's knowledge, is there any threat thereof) that questions the
validity of this Agreement and/or any of the Incorporated Documents
or any action taken or to be taken in connection herewith or
therewith. BEA is not a party to or specifically by name subject to
the provisions of any order, writ, injunction, judgment or decree of
any court or government agency or instrumentality that questions the
validity of this Agreement and/or any of the Incorporated Documents
or any action taken or to be taken in connection herewith or
therewith. There is no action, suit, proceeding or investigation by
BEA currently pending or that BEA currently intends to initiate that
questions the validity
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of this Agreement and/or any of the Incorporated Documents or
any action taken or to be taken in connection herewith or
therewith.
20.6 DISCLOSURE. The representations and warranties of BEA contained
in this Agreement, do not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements contained herein or therein not misleading in light of the
circumstances under which they were made. BEA has no present
intention to transfer this Agreement or any of its rights or
obligations hereunder or under the Incorporated Documents or any of
the assets acquired hereby to any third party, except in the ordinary
course of business.
20.7 CUSTOMER TRANSITION. BEA will use commercially reasonable
efforts to implement a smooth transition of operations from Novell to
the end that all TUXEDO Software distributors and customers will
experience as little disruption and delay in service, supply and
support as is reasonably practicable.
20.8 NOTICE OF MATERIAL CHANGE. BEA agrees to give Novell prompt
written notice of any material change which occurs prior to the
Closing in any of the information contained in the representations
and warranties made by BEA in this Agreement and/or the Exhibits
attached hereto.
21 INTELLECTUAL PROPERTY INDEMNIFICATION
21.1 INDEMNIFICATION BY NOVELL. Novell agrees to indemnify, defend
and hold BEA harmless from any and all damages, liabilities, costs
and expenses incurred by BEA as a result of any claims, judgments or
adjudication against BEA that TUXEDO Software or Novell Documentation
infringes the copyright or trade secret or US patent rights of any
third party, provided: (i) BEA shall promptly notify Novell in
writing of the claim; and (ii) Novell shall have the sole control of
the defense of the action and BEA provides Novell with full
information and assistance for its defense, settlement and/or
compromise.
21.2 EXCLUSIONS. Should any of the software provided by Novell under
this Agreement, or the operation, marketing or distribution thereof
in accordance with the rights granted in this Agreement, become, or
in Novell's opinion be likely to become, the subject of infringement
of any copyright or other intellectual property right of any third
party, BEA shall permit Novell, at its option and expense, to either
(i) procure for BEA the right to continue using such software, or
(ii) replace or modify such software so that it becomes
non-infringing, provided such replaced or modified software retains
comparable functionality. If neither of such options is commercially
reasonable, in Novell's reasonable opinion, Novell may terminate its
obligations for indemnification to BEA under this Section 21.1 with
respect to any such patent infringement upon written notice to BEA
after Novell has made commercially reasonable efforts to obtain such
rights or permission. The parties agree that these aforementioned
commercially reasonable efforts on part of Novell shall not exceed a
cumulative total expenditure of $5,000,000 in Novell's efforts to
secure the necessary rights. Novell shall have no liability to BEA
under any provision of this Agreement with respect to any claim of
infringement which is based on a modification of the software by any
person other than Novell, including works for hire created by BEA
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pursuant to this Agreement, or the combination or utilization of
software, equipment or devices not made or recommended by Novell
pursuant to any specifications other than, or in addition to,
Novell's specifications, where the claim could not have been based on
the use of software, equipment or devices made or recommended by
Novell.
21.3 INDEMNIFICATION BY BEA. BEA agrees to indemnify, defend and
hold Novell harmless from any and all damages, liabilities, costs and
expenses incurred by Novell as a result of any claims, judgments or
adjudication against Novell that Derivative Works of the TUXEDO
Software created by BEA (including Core Modifications and Add-ons) or
BEA Documentation infringes the copyright or trade secret rights of
any third party, provided: (i) Novell shall promptly notify BEA in
writing of the claim; and (ii) BEA shall have the sole control of the
defense of the action and Novell provides BEA with full information
and assistance for its defense, settlement and/or compromise.
21.4 ENTIRE LIABILITY. THE ABOVE STATES THE ENTIRE LIABILITY OF EACH
PARTY WITH RESPECT TO INFRINGEMENT OF COPYRIGHTS, TRADEMARKS, PATENTS
OR ANY OTHER FORM OF INTELLECTUAL PROPERTY BY ANY MATERIALS SUPPLIED
BY SUCH PARTY UNDER THIS AGREEMENT. BEA SPECIFICALLY ASSUMES ALL
LIABILITY AND RISK WITH RESPECT TO ALL TUXEDO SOFTWARE DEVELOPED,
LICENSED, OR SOLD BY IT, EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH
HEREIN.
22 CONFIDENTIAL INFORMATION.
22.1 CONFIDENTIAL OBLIGATION. From the date of receipt of
Confidential Information and for a period of five (5) years from the
destruction or return of Confidential Information, the Receiving
Party agrees to use the same care and discretion, but no less than
reasonable care and discretion, to avoid disclosure, publication or
dissemination of Confidential Information it has received, as the
Receiving Party employs for similar information of its own which it
does not desire to publish, disclose or disseminate, except to those
employees and/or permitted subcontractors of the Receiving Party who
have a need to know in order to permit the Receiving Party to
exercise the rights granted to it in Section 0 with respect to
Confidential Information. Following expiration of the underlying
license grant in the Confidential Information, the Receiving Party
agrees to destroy any and all Confidential Information received from
the Disclosing Party. Provided the Receiving Party has complied in
all respects with this provision, no obligation of any kind shall be
assumed by, or imposed upon the Receiving Party with respect to such
Confidential Information after the time period specified above.
22.2 EXTREMELY SENSITIVE INFORMATION. A party receiving Extremely
Sensitive Information agrees to take the following measures (in
addition to the protective measures otherwise required for
Confidential Information):
22.2.1 Restrict access to the Extremely Sensitive
Information to only those employees and independent
contractors (a) who require access as part of the Receiving
Party's performance under this Agreement, (b) who have
been notified of the confidential nature of the Extremely
Sensitive Information, and (c) who do not constitute an
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unreasonable risk of inadvertent disclosure of the
Extremely Sensitive Information by developing or being
in contact with developing products competitive with
Disclosing Party's products;
22.2.2 Maintain a written record of access to Extremely
Sensitive Information; which, at a minimum, includes the
name of each employee or independent contractor given
access to Extremely Sensitive Information, the identity
of the Extremely Sensitive Information, and a copy of the
employee's or independent contractor's written
confidentiality agreement covering the Extremely
Sensitive Information. The written confidentiality
agreement must either name the Disclosing Party as a
third-party beneficiary of the agreement or be subject to
the Receiving Party's agreement to take prompt and
vigorous action to enforce on behalf of and as requested
by the Disclosing Party. Access records may be kept
automatically by means of an operating system log in
audit trail facility. The Disclosing Party will be
allowed to review and obtain copies of this record
promptly upon its reasonable request; and,
22.2.3 Promptly notify the Disclosing Party in writing of any
circumstances which become known to the Receiving Party
surrounding any possession, use, or knowledge of the
Disclosing Party's Extremely Sensitive Information at any
location or by any person or entity other than those
authorized under this Agreement.
23 DEFAULT/TERMINATION
23.1 DEFAULT. In addition to any other rights or remedies available at
law or in equity, either party may terminate this Agreement upon
any of the following:
23.1.1 The other party is in default of any material obligation
hereunder and default continues for ninety (90) days
following receipt of written notice.
23.1.2 The other party is dissolved or attempts an unauthorized
assignment of this Agreement or any of its rights under
this Agreement.
23.1.3 The other party is not paying its debts as the debts
become due, becomes insolvent, files or has filed against
it a petition under any Bankruptcy Law, proposes any
dissolution, liquidation, composition, financial
reorganization or recapitalization with creditors, makes
an assignment or trust mortgage for the benefit of
creditors, or if a receiver trustee, custodian or similar
agent is appointed or takes possession of any property or
business, to the extent termination is permitted by
applicable law.
In the event of a default by BEA pursuant to this Section,
Novell shall be entitled to receive damages and payments from BEA in
an amount not less than the payments required under Section 23.2
below.
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23.2 TERMINATION AT WILL BY BEA. During the Initial Term, BEA
may terminate this Agreement, with or without cause, at any time upon
no less than six (6) months' prior written notice to Novell, subject
to payment of the following amounts to Novell, on or before the date
termination is effective:
If the effective date of termination is before the first
anniversary date of this Agreement: $7 million
If the effective date of termination is on or after the first
anniversary date but before the second anniversary date of this
Agreement: $8 million
If the effective date of termination is on or after the second
anniversary date but before the third anniversary date of this
Agreement: $9 million
The parties acknowledge and agree that the foregoing early
termination amounts are not intended to be punitive in nature but are
amounts reasonably calculated to cover Novell's costs and expenses in
resuming the development, marketing, distribution and support of the
TUXEDO Software which had been assumed by BEA under this Agreement.
During the six (6) month period between the date notice of
termination is given and the date such notice is effective, BEA shall
remain liable to Novell for the full amount of payments otherwise
required by this Agreement, in addition to the early termination
payments set forth above, regardless of whether BEA continues
developing or distributing TUXEDO Software during such period.
Effective as of the date BEA gives notice of termination, (i) BEA
shall no longer have any obligation to comply with Sections 8.1 and
8.2 of this Agreement; and (ii) all exclusive rights and licenses
granted to BEA in this Agreement shall become non-exclusive.
23.3 EFFECT OF TERMINATION ON OBLIGATIONS. Termination of this
Agreement shall not affect any of BEA's pre-termination obligations
to BEA customers. Notwithstanding any expiration or termination of
this Agreement, unless this Agreement is terminated due to a breach
by BEA, (i) BEA and its Subsidiaries, using the Mark, may distribute
a commercially reasonable number of copies of TUXEDO Software in
stock or in order to fill orders placed by end users or resellers
prior to the expiration or termination of this Agreement during the
subsequent ninety (90) days after expiration, (ii) those copies of
TUXEDO Software in possession of resellers may be distributed in
accordance with the terms and conditions of this Agreement, and (iii)
sublicenses granted pursuant to this Agreement shall not be revoked
by the expiration or termination of this Agreement. Except as
specifically set forth above or in Section 4.1.6, all other licenses
shall immediately cease upon termination or expiration.
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24 REMEDIES AND LIMITATION OF LIABILITY. THE REMEDIES SET FORTH BELOW ARE
EXCLUSIVE OF ALL OTHER REMEDIES THAT MAY BE AVAILABLE AT LAW OR IN EQUITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NO PARTY SHALL
BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) SUSTAINED OR INCURRED IN
CONNECTION WITH THIS AGREEMENT AND THE PRODUCTS THAT ARE SUBJECT TO THIS
AGREEMENT, REGARDLESS OF THE FORM OF ACTION AND WHETHER OR NOT SUCH
DAMAGES ARE FORESEEABLE.
25 GENERAL PROVISIONS.
25.1 NOTICE. Unless otherwise agreed to by the parties, all notices
required under this Agreement (except those relating to product
pricing, changes and upgrades) shall be deemed effective when
received and made in writing by either (i) registered mail, (ii)
certified mail, return receipt requested, or (iii) overnight mail,
addressed and sent to the attention of:
Novell, Inc. BEA Systems, Inc.
122 East 1700 South 2465 E. Bayshore Road
Provo, Utah 84606 Palo Alto, CA 94303
Attn: Mark Epstein Attn: Edward W. Scott, Jr.
and with a copy of non-technical notices to:
Novell, Inc. Morrison & Foerster
1555 N. Technology Way, A200 755 Page Mill Road
Orem, Utah 84057 Palo Alto, California 94304-1018
Attn: General Counsel Attn: Michael C. Phillips
and, during the time the Guaranty is in effect, to:
Warburg, Pincus Ventures L.P.
466 Lexington Avenue
New York, NY 10017
Attn: Stewart Gross
25.2 SUSPECTED INFRINGEMENT. BEA agrees to promptly report to Novell
of any infringement or potential infringement of Novell's
intellectual property rights in TUXEDO Software by a third party.
BEA also agrees to assist Novell in any reasonable way in
investigating the infringement or potential infringement and/or in
enforcing Novell's rights against infringing parties in exchange for
payment by Novell of BEA's reasonable expenses.
25.3 INTERNATIONAL DISTRIBUTION. BEA agrees to distribute TUXEDO
Software only in countries which provide reasonably adequate
protection for Novell's proprietary rights through copyright, trade
secret, patent, or other laws. BEA shall be deemed to be in
compliance
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with this Section in those countries where Novell distributes
(either directly or indirectly) the NetWare network operating
system.
25.4 DISCLOSURES. Each party agrees not to disclose the terms and
conditions of this Agreement to any third party without the express
written consent of the other party. No party shall announce the
existence of this Agreement without the prior consent of the other
party, which shall not unreasonably be withheld.
The parties acknowledge the importance of appropriate
disclosures in positioning the partnership relationship between the
companies to the distribution channel, the press, customers, and
others. The parties agree that, for six months after the Closing
Date, no press releases or other disclosures by company
representatives shall conflict with the sample initial press release
attached hereto as Exhibit J without the written consent of the other
party. During the remainder of the Initial Term, all press releases
and other disclosures by company representatives shall continue to
portray the relationship between the parties as a partnership and
strategic alliance.
25.5 CONSTRUCTION.
25.5.1 HEADINGS. The headings of this Agreement are
provided for reference only and shall not be used as
a guide to interpretation.
25.5.2 ORDER OF PRECEDENCE. In rendering performance under this
Agreement, each party shall comply with all applicable
provisions contained in each of the documents comprising
this Agreement. In the event of inconsistency between or
among the various documents, the following order of
precedence shall govern:
25.5.2.1 This Agreement and its Exhibits; and
25.5.2.2 Documents incorporated by reference;
25.5.3 SINGULAR, PLURAL AND GENDER. When used in this
Agreement, the singular includes the plural, the plural
includes the singular and gender related pronouns include
the feminine, masculine and neuter.
25.6 GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the substantive laws of the
State of Utah. The parties agree that any action relating to this
Agreement shall be instituted and prosecuted exclusively in the
courts of competent jurisdiction of the State of Utah or the San
Francisco Bay area of the State of California.
25.7 FORCE MAJEURE. If any party shall be prevented from performing
any portion of this Agreement (except the payment of money) by causes
beyond its control, including labor disputes, civil commotion, war,
governmental regulations or controls, casualty, inability to obtain
materials or services or acts of God, the defaulting party shall be
excused from performance for the period of the delay and for a
reasonable time thereafter.
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25.8 SURVIVAL OF TERMS. The provisions of this Agreement which by
their nature extend beyond the expiration or termination of this
Agreement, including, but not limited to, Sections 0, 0, 4.1.6, 0,
13.3, 13.4, 19, 20, 21, 22, 0, 0 and 0 will survive and remain in
effect until all obligations are satisfied.
25.9 WAIVER. No waiver of any right or remedy on one occasion by any
party shall be deemed a waiver of the right or remedy on any other
occasion.
25.10 SUPERIOR AGREEMENT. This Agreement, including all exhibits
referenced herein, sets forth the entire agreement and understanding
among the parties as to the subject matter and merges all prior
discussions between Novell (or its predecessors in interest,
including USL) and BEA or any of its Subsidiaries or affiliates with
respect to this transaction but does not supersede any prior written
agreements between any such parties. Neither party shall be bound by
any conditions, definitions, warranties, understandings or
representations with respect to the subject matter other than as
expressly provided under this Agreement. This Agreement may not be
modified by usage of trade, course of dealing or otherwise. This
Agreement is subject to amendment or modification only by a writing
duly signed by all parties.
25.11 ASSIGNMENT. Subject to the provisions of Section 10.3,
neither party may assign this Agreement except in connection with a
merger, consolidation, or sale of all or substantially all of the
party's assets, or with the prior written consent of the other party,
and except that BEA may assign any of its rights or obligations to
its Subsidiaries subject to BEA remaining jointly liable to Novell
for the obligations under this Agreement. Any attempted assignment
without written consent shall be null and void. Where required, no
party shall unreasonably withhold consent.
25.12 TERMINATION OF LITIGATION. BEA agrees to cause its
subsidiary IMC to dismiss with prejudice its pending litigation
against Novell and forever release Novell from any liability for such
claims under the litigation. BEA will cause IMC to execute all
necessary documents and agrees to file such documents in the courts
of relevant jurisdiction to effect the dismissal with prejudice of
the pending litigation. BEA and its Subsidiaries agree to be bound
by said dismissal with prejudice and release of Novell associated
with the pending litigation against Novell by IMC. BEA shall deliver
at Closing the form Stipulation to Dismissal with Prejudice of the
above-referenced litigation reasonably acceptable to Novell, which
shall be executed by the parties and filed as promptly as possible
following Closing.
25.13 SEVERABILITY. If any term of this Agreement is held invalid
or unenforceable by a court or authority of competent jurisdiction,
such term shall be reduced or otherwise modified by such court or
arbitrator to the minimum extent necessary to make it valid and
enforceable. If such term cannot be so modified, it shall be severed
and the remaining terms of this Agreement shall be interpreted, to
the extent possible, in such a way as to give maximum validity and
enforceability to the terms of this Agreement as originally intended
by the parties.
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25.14 INDEPENDENT CONTRACTORS. The parties to this Agreement are
independent contractors and each agrees not to represent itself as an
agent or legal representative of any other party. Neither party has
the authority to bind the other, to incur any liability or otherwise
act on behalf of the other, or to direct the employees of the other.
25.15 COMPLIANCE WITH LAWS. Regardless of any disclosure made by
BEA to Novell of an ultimate destination of the Program, BEA will not
export or transfer, whether directly or indirectly, the Program, or
any portion thereof, or any system containing such Program or portion
thereof, to anyone outside the United States (including further
export if BEA took delivery of the Program outside the United States)
without first complying strictly and fully with all export controls
that may be imposed on the Program by the United States Government or
any country or organization of nations within whose jurisdiction BEA
operates or does business. In particular, BEA assures Novell that,
absent any required prior authorization from the Bureau of Export
Administration, U.S. Department of Commerce, 14th and Constitution
Avenue, Washington DC 20230, BEA will not export or reexport (as
defined in Section 779 of the Export Administration Regulations, as
amended ("Regulations")) the Program or any technical data or other
confidential information, or direct product of any of the foregoing
to Iran, Iraq, Syria, the People's Republic of China, Yugoslavia
(Serbia and Montenegro), or to any country in Country Groups Q, S,
W, Y, or Z as defined in the supplement No. 1 to Section 770 of the
Regulations, or such other countries as come under restriction by
action of the United States Government, or to nationals from or
residing in the foregoing countries, without first obtaining
permission from the appropriate United States Government authorities.
The countries subject to restriction by action of the United States
Government are subject to change, and it is BEA's responsibility to
comply with the United States Government requirements as they may be
amended from time to time.
25.16 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, and all of
which shall be deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have entered into this Agreement effective as
of the Signing Date.
NOVELL, INC. BEA SYSTEMS, INC.
Signature /s/ Novell, Inc. Signature /s/ BEA Systems, Inc.
------------------------- ---------------------------
Print Name Print Name
------------------------- --------------------------
Print Title Print Title
----------------------- -------------------------
Date Date
------------------------------- --------------------------------
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EXHIBIT A: TUXEDO SOFTWARE DELIVERABLES
(To be completed by Closing)
SOURCE CODE
- -----------
TUXEDO software Versions 4.2.2, 5.0 and 6.0 and all other versions,
modifications and development work product on these versions as of Closing.
TUXEDO Software shall include any and all modifications made by Novell's
Consulting Group as special modifications, minor enhancements and product
ports. TUXEDO Software shall also include related educational courseware
developed for the TUXEDO Software and education and training of users.
BINARY CODE
- -----------
DOCUMENTATION
- -------------
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EXHIBIT B: ASSUMED CONTRACTS
(To be completed by Closing)
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EXHIBIT C: SUBSIDIARIES & CONTROLLED PERSONS(1)
(To be completed by Closing)
WHOLLY-OWNED SUBSIDIARIES
- -------------------------
CONTROLLED PERSONS
- ------------------
- ---------------
(1) Additional entities may be added to this Exhibit upon the mutual
agreement of the parties.
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EXHIBIT D: TRANSFERRED ASSETS
(To be Completed by Closing)
1. The equipment, furnishings, and other personal property owned by Novell and
used exclusively by its TUXEDO division personnel.
2. Novell's Ownership in USL Mexico and USL SA
3. Inventory, which BEA can sell during a 90-day transition period after
Closing, provided that BEA reasonably identifies itself as the seller to the
purchaser through the use of inventory stickers or some other mechanism.
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EXHIBIT E: TUXEDO TRADEMARK LICENSES
(To be Completed by Closing)
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EXHIBIT F: SOURCE CODE SUBLICENSING
BEA may grant sublicenses of Source Code subject to the following minimum terms
and conditions:
1. Subject to Section 23, BEA may grant sublicenses to Source Code for the
purposes specified in Section 4.1. Such Source Code shall continue to be
subject to the terms and conditions of this Agreement. Sublicensees may
only make those number of copies of Source Code as reasonably necessary
for backup and archival purposes.
2. Sublicensees may modify Source Code to create Derivative Works, provided
the Derivative Works are for the purposes stated in Section 4.1. All
Derivative Works created by sublicensees shall continue to be subject to
the terms and conditions of this Agreement.
3. Except for source code escrow or similar arrangements to allow limited use
of Source Code or Derivative Works thereof for maintenance purposes,
sublicensees of Source Code shall not be authorized to sublicense Source
Code or Derivative Works thereof, except that in the case of the latter,
sublicensees shall be permitted to grant Binary Code sublicenses pursuant
to a grant of rights from BEA.
4. BEA, upon the written request of Novell, shall provide Novell with the
names of its sublicensees and the locations of each copy of the Source
Code and Derivative Works thereof.
5. Sublicensees of Source Code shall be subject to confidentiality provisions
at least as stringent as those specified in this Agreement with respect to
Source Code.
6. Novell shall not be liable to any sublicensees of BEA for any reason
whatsoever, and BEA agrees to indemnify Novell from and against any
imputed liability of BEA.
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EXHIBIT G: FORM OF GUARANTY
GUARANTY
This Guaranty ("Guaranty"), dated as of________________________________,
199____, is by Warburg, Pincus Ventures, L.P. as guarantor ("Guarantor"), for
the benefit of Novell, Inc. ("Novell").
RECITALS:
- --------
A. Novell and BEA Systems, Inc. ("BEA") have entered into that certain
TUXEDO License and Distribution Agreement, dated _________________, 1995 (the
"Agreement"), pursuant to which Novell has agreed to grant to BEA certain
exclusive and strategic rights with respect to Novell's TUXEDO software, in
consideration of the payments and other agreements and obligations of BEA
described therein. Execution of this Guaranty is a condition to the closing of
the Agreement.
B. Guarantor has a substantial financial interest in BEA and will
materially benefit from the transaction contemplated by the Agreement.
AGREEMENTS:
- ----------
NOW, THEREFORE, in consideration of the foregoing, Guarantor hereby agrees
as follows:
1. PERSONAL GUARANTY. To induce Novell to enter into the transaction
with BEA described above, Guarantor hereby personally, absolutely and
unconditionally guarantees performance of all obligations of BEA to make
payments to Novell, as more specifically described in the Agreement, as it may
be amended from time to time with the consent of BEA (the "Obligations"). The
parties acknowledge that, unless and until BEA delivers to Novell a written
notice that BEA is exercising its option to purchase a perpetual license,
pursuant to Section 14.2 of the Agreement, such option payment is not
considered an obligation of BEA to make a payment to Novell. This Guaranty is
an unconditional, continuing and irrevocable guaranty of payment of the
Obligations as agreed. The liability of Guarantor hereunder is independent of
the Obligations and of the liabilities of BEA.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS. Guarantor hereby
represents, warrants, covenants and agrees that, upon BEA's failure to perform
when due any of the Obligations, Guarantor shall pay to Novell, upon demand,
the unpaid amount of such Obligation. Guarantor agrees, as principal obligor
and not as guarantor only, to pay to Novell upon demand all costs and expenses
(including reasonable attorneys' fees) incurred or expended by Novell in
connection with the enforcement of this Guaranty.
3. WAIVERS. In connection with this Guaranty, Guarantor hereby waives
the following:
3.1 Any right to require Novell to first proceed against BEA or any
other person, or to proceed against or exhaust any security held by Novell at
any time, or to pursue any other remedy in its power before proceeding against
Guarantor;
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3.2 All requirements, if any, of diligence, presentment, demand,
protest, notice of default and non-payment and all other demands and notices of
any kind with respect to the Obligations, to the extent permitted by law;
3.3 Any defense due to unenforceability or irregularity with respect
to the Obligations or any limitation of BEA's liability with respect to the
Obligations, or based upon an election of remedies by Novell;
3.4 Any duty of Novell to disclose to Guarantor any facts it may now
or hereafter know about BEA, regardless of whether Novell has reason to believe
that such facts are unknown to Guarantor or materially increase the risk beyond
that which Guarantor intended to assume. Guarantor agrees that, due to its
close relationship with BEA, Guarantor assumes full responsibility for keeping
informed of all circumstances affecting the risk of nonperformance; and
3.5 All other statutory or common law suretyship defenses now or
hereafter available.
4. CONSENTS. Guarantor hereby consents to the following and agrees that
this Guaranty will not be affected thereby:
4.1 Any modification, renewal, extension or release of the
Obligations, including without limitation any extension of time for performance
or payment, any delay in the enforcement of Novell's rights, and any
modification of any duty or obligation of BEA;
4.2 Waiver by Novell of performance or payment of damages by BEA
with respect to any or all of the Obligations, or assignment by Novell of its
rights under the Obligations; and
4.3 Acceptance of any property as security, release of any property
from any security interest held by Novell, or the addition of or release of any
other guarantor of the Obligations.
5. BANKRUPTCY, ETC. The guarantees contained herein shall not be
affected by bankruptcy, insolvency, receivership, reorganization or similar
proceeding affecting BEA or its assets, or by the voluntary or involuntary
liquidation, sale or other disposition of all or substantially all of the
assets of BEA.
6. SUBROGATION RIGHTS AND SUBORDINATION. Until all Obligations are paid
in full, Guarantor agrees that it shall have no right of subrogation against
BEA and waives any rights to enforce any remedy that Novell may have against
BEA and any right to participate in any security that may be held by Novell.
Guarantor agrees that all indebtedness of BEA to Guarantor, whether now or
hereafter incurred, shall be subordinated in all respects to all Obligations
hereby guaranteed.
7. ACTIONS. Guarantor's obligations under this Guaranty are independent
of the Obligations of BEA and, if there is a default or breach by Guarantor
hereunder, a separate action or actions may be brought and prosecuted against
Guarantor whether or not BEA is joined in such action or a separate action is
brought against BEA. Novell may maintain successive actions for other
defaults. All rights and
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remedies of Novell shall be cumulative and not alternative, and such rights
and remedies shall be in addition to all rights and remedies given to Novell
by law. Novell's rights shall not be exhausted by its exercise of any of its
rights or remedies or by any action or successive action until all
Obligations hereby guaranteed have been performed as agreed or Novell has
been fully compensated for any failure to adequately perform. In any action
against Guarantor based upon a default under or breach of this Guaranty,
Novell shall be entitled to recover its costs and reasonable attorneys' fees.
8. TERMINATION OF GUARANTY. This Guaranty shall terminate at the time
all Obligations of BEA relating to the Initial Term are satisfied in full;
provided, however, that in the event of a public offering of BEA stock in which
BEA obtains at least $50 million in equity investments, and BEA creates and
maintains an interest-bearing escrow account holding at least fifty percent
(50%) of the amount of outstanding financial obligations of BEA during the
Initial Term, Novell agrees to terminate this Guaranty and release Guarantor
from its obligations hereunder, effective at the time BEA delivers to Novell
reasonably satisfactory evidence that such minimum funds have been obtained
from a public offering and the escrow account has been formed and fully funded.
8. BINDING EFFECT; ASSIGNABILITY. This Guaranty shall inure to the
benefit of and shall be binding upon Novell and Guarantor and their respective
successors, representatives, heirs, executors, administrators and assigns.
Guarantor may not assign this Guaranty without Novell's prior written consent.
9. ENTIRE AGREEMENT; AMENDMENT. This writing constitutes the entire
agreement of Guarantor with respect to the subject matter of this Guaranty and
may not be modified, amended or terminated except by a written agreement
specifically referring to this Guaranty signed by Guarantor and Novell.
10. NO WAIVER. No waiver of any breach or default under this Guaranty
shall be considered valid unless in writing and signed by the party giving such
waiver.
11. APPLICABLE LAW. This Guaranty and all amendments hereof shall be
governed by and construed in accordance with the laws of the State of Utah,
without regard to conflicts of laws provisions.
12. SEVERABILITY. If any term of this Guaranty is deemed invalid or
unenforceable by a court or authority of competent jurisdiction, that term
shall be reduced or otherwise modified by such court or authority, but only to
the minimum extent necessary to make it valid and unenforceable. If any term
cannot be reduced or modified to make it reasonable and permit its enforcement,
such term shall be severed from this Guaranty and the remaining terms shall be
interpreted in such a way as to give maximum validity and enforceability to
this Guaranty.
GUARANTOR:
WARBURG, PINCUS VENTURES, L.P.
By: /s/ William H. Janeway
-------------------------------------
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Title: Managing Director
----------------------------------
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EXHIBIT H: TUXEDO EMPLOYEES
(To be Completed by Closing)
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EXHIBIT I: FORM OF BILL OF SALE
BILL OF SALE AND ASSIGNMENT OF ASSETS
Novell, Inc., a Delaware corporation ("Novell"), in consideration of Ten
Dollars and other good and valuable consideration to it in hand paid, the
receipt and sufficiency of which is hereby acknowledged, does hereby sell,
grant, transfer, convey, assign, and deliver unto BEA Systems, Inc., a _______
corporation ("BEA"), all of Novell's right, title and interest in and to each
of the Transferred Assets, as such term is defined in that certain TUXEDO
License and Distribution Agreement between BEA and Novell, dated as of
_________, 1995 (the "Agreement").
Novell represents and warrants to BEA that (i) Novell is the lawful owner
of title to the Transferred Assets, (ii) Novell has the right to sell the
Transferred Assets to BEA, and (iii) there are no liens or encumbrances on or
against the Transferred Assets, except for those encumbrances and liabilities
described in the Agreement or documents related thereto.
Novell shall execute, acknowledge and deliver all such further deeds,
bills of sale, transfers, assignments, conveyances, powers of attorney,
conveying and confirming unto BEA the Transferred Assets, as BEA shall
reasonably require.
IN WITNESS WHEREOF, Novell has caused this instrument to be executed as of
________, 199_.
NOVELL, INC.
By: _______________________________
Its: ______________________________
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EXHIBIT J: SAMPLE INITIAL PRESS RELEASE
APPROVAL DRAFT, 1/23
NOVELL AND BEA SYSTEMS ANNOUNCE STRATEGIC PARTNERSHIP TO DEVELOP, DISTRIBUTE
TUXEDO SOFTWARE
RESPONDING TO GROWING MARKET DEMAND, COMPANIES TO ENHANCE AND EXPAND
TUXEDO SYSTEM ACROSS NETWARE, UNIX, NT PLATFORMS
OREM, UT AND SUNNYVALE, CA -- JANUARY 29, 1996 -- Novell, Inc. (NOVL) and
BEA Systems, Inc. of Sunnyvale, CA. today announced a strategic partnership to
develop and distribute the TUXEDO System, the leading open transaction
management software used by businesses to develop and deploy multi-tier,
client/server applications.
The TUXEDO System is a development, management and deployment environment
for multi-tier client/server applications and is the leading portable
transaction manager with more than 40 percent of the market. It is used to
create scalable, high performance, secure, reliable business-critical
applications, as well as more general purpose client/server applications. It
runs on more than 35 platforms including NetWare, most UNIX variants, NT, and
virtually every client operating environment. Customer demand for the TUXEDO
System has doubled for the past two consecutive years.
Under the terms of the agreement, both companies will invest development
resources to enhance and expand the TUXEDO product line. Novell's development
focus will be to integrate TUXEDO with NetWare, including its industry standard
network directory services (NDS), and NetWare Connect Service for managed
Internet services. BEA will be responsible for developing the features and
utilities needed for enterprise line-of-business solutions running on UNIX, NT,
and other platforms, including their integration with existing legacy systems.
BEA will also become the master distributor of TUXEDO on non-NetWare platforms.
The partnership advances Novell's strategy to enable a Smart Global
Network by extending distributed network services such as TUXEDO's on-line
transaction processing (OLTP) capabilities across multiple client and server
platforms and into managed Internet solutions. Through the further integration
of TUXEDO with NetWare, Novell will enable customers to more easily manage and
secure transaction-intensive applications deployed across networks for use in
electronic commerce, securities trading, manufacturing process control, retail
inventory management, and other mission-critical areas.
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Since traditional TUXEDO users on UNIX or NT develop custom line-of-
business solutions, Novell chose to partner with BEA because they will dedicate
the resources required from both a consulting and channel perspective, as well
as a product-features perspective to better meet these customer-specific needs.
"Our partnership with BEA Systems enables Novell to maintain its
commitment to TUXEDO and its rapidly expanding customer base while increasing
Novell's focus to making TUXEDO services an integral part of the Smart Global
Network spanning from workgroup LANs to the Internet," said Richard King,
executive vice president and general manager of the Novell Systems Group. "As a
leader in enterprise middleware solutions, BEA Systems is the ideal partner to
fully support TUXEDO market growth among its base of enterprise and systems
customers. Novell believes the agreement will widen TUXEDO's market lead as
the platform for open transaction intensive client/server applications."
"We are extremely pleased to be working with Novell to expand both
TUXEDO's capabilities and its distribution," said Bill Coleman, President and
CEO of BEA Systems. "We already have broad TUXEDO expertise within BEA, a
large installed base of TUXEDO customers, and are focusing our entire company
on enterprise middleware solutions with TUXEDO as a core technology component.
We expect this partnership to allow us to drive significant enhancements into
the product, and to ease the path for customers adopting TUXEDO by greatly
expanding sales channels and consulting availability "
Jim Johnson, President of the Standish Group, an industry consulting firm
specializing in transaction management middleware, said, "This relationship
provides the best of all worlds. Multi-tier client/server application
customers get the features and consulting they need from the consulting-
intensive channel to be set up by BEA. At the same time, TUXEDO will be better
integrated and more easily useable in a NetWare or Novell distributed services
environment, and will be used to enhance the capabilities of the products that
make that environment possible."
The joint development and master distributor agreement with BEA is
effective as of February 26, 1996. Current Novell TUXEDO distributors and
customers have already been
48
<PAGE>
notified of the agreement. Any distributor or customer transitions will be
accomplished within 90 days.
ABOUT BEA
BEA Systems is a leading provider of enterprise middleware solutions.
Founded in 1995, BEA's mission is to deliver a distributed application
framework, using enhanced transaction processing monitor technology and
professional services, to enable distributed mission-critical applications
that can seamlessly work with both legacy and client/server environments.
With today's announcement, BEA will be the developer and master distributor
of TUXEDO on all operating systems other than NetWare and plans to continue
building its solution set through development, partnerships, and
acquisitions. Headquartered in Sunnyvale, Calif., BEA is venture funded by
Warbug, Pincus Ventures, L.P.
Novell, Inc. (NASDAQ: NOVL), is the world's leading networking software
provider. Novell software provides the infrastructure for a networked world,
enabling our customers to connect with other people and the information they
need, anytime and anyplace. Novell partners with other technology and market
leaders to help customers make networks a part of their everyday lives.
###
49
<PAGE>
FIRST AMENDMENT TO
TUXEDO LICENSE AND DISTRIBUTION AGREEMENT
This first amendment (this "Amendment") is entered into as of February
23, 1996, between Novell, Inc., a Delaware corporation with a place of
business at 122 East 1700 South, Provo, Utah 84606 ("Novell"), and BEA
Systems, Inc., a Delaware corporation with its principal place of business
located at 385 Moffett Park Drive, Sunnyvale, California 94089 ("BEA").
RECITALS
--------
A. Novell and BEA entered into a TUXEDO License and Distribution
Agreement, dated effective January 24, 1996 (the "Distribution Agreement"),
with the closing on February 23, 1996. All capitalized terms used herein and
not defined herein shall have the respective meanings specified in the
Distribution Agreement.
B. The parties now desire to amend the Distribution Agreement as
hereinafter provided.
NOW, THEREFORE, A consideration of the promises included herein and
other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
---------
1. DEFINITION OF TRANSFERRED ASSETS. The definition of Transferred Assets
in Section 2.25 of the Distribution Agreement is amended to read as follows:
TRANSFERRED ASSETS shall mean (i) certain Items of equipment, furnishings
and other personal property previously used by Novell's TUXEDO division,
as listed in Exhibit D; (ii) all of Novell's shares of stock in the
following entities: USL Mexico and USL SA, as identified in Exhibit D:
and (iii) any other items listed in Exhibit D.
2. DEFINITION OF RSA SOURCE CODE. A new section 2.27 is added as follows:
RSA SOURCE CODE. RSA Source Code shall mean the encryption code
licensed by Novell from RSA Security, Inc. and included In the TUXEDO
Software for security and authentication purposes. RSA Source Code
shall be considered Core Code for the purposes of this Distribution
Agreement.
3. BEA ADDRESS. The address for BEA in the preamble and Sections 7 and
25.1 of the Distribution Agreement shall be changed to: BEA Systems, Inc.,
385 Moffett Park Drive, Sunnyvale, California 94089.
4. LICENSE TO RSA SOURCE CODE. New Sections 4.3 and 4.4 are added to the
Distribution Agreement as follows:
4.3 Notwithstanding anything to the contrary set forth in
Section 4 above, RSA Source Code shall be licensed by Novell to BEA
as set forth herein. Novell hereby grants and BEA hereby accepts a
non-transferable (except as provided herein) license:
4.3.1 to use, reproduce, modify, compile and link the
RSA Source Code within the US solely for internal use within the
US with the Tuxedo Software under the Distribution Agreement for
the same security and authentication purposes for which Novell
internally made use of the RSA Source Code or security and
authentication.
4.3.2 to distribute directly and indirectly, world-
wide to Its OEMs, Resellers, VARs and end users the binary code
compiled from RSA Source Code as permitted in this Distribution
Agreement. No rights are granted to BEA to sublicense the RSA
Source Code.
4.4 BEA agrees that it will reproduce and shall not remove or
modify any proprietary notices associated with the RSA Source Code,
and any binary version thereof, as provided to BEA by
<PAGE>
Novell.
5. INDEMNIFICATION BY NOVELL. The first sentence of Section 12.7 is amended
to read as follows:
Novell hereby agrees to indemnify and hold BEA harmless against
any loss, liability, damage. cost or expense (including reasonable
legal fees) arising out of any third party claims or suits which may
be brought or made against BEA or its licensees arising out of the
use by BEA or its licensee of the Mark in the form expressly licensed
hereunder, which assert that such use of the Mark violates such
party's trademark rights in the U.S. or In any other country in which
Novell has made substantial use of the Mark.
6. PAYMENTS FOR INITIAL TERM. Section 13.1 of the Distribution Agreement is
amended as follows:
BEA will pay to Novell an additional $2 million for Year I of the Initial
Term, with $1 million payable on January 1, 1997 and $1 million payable on
April 1, 1997. The amount for Year 2 of the Initial Term will be reduced
from $21 million to $20 million, such that the payment due June 30, 1997
is reduced to $4.25 million.
7. CONSIDERATION FOR TRANSFERRED ASSETS. Section 13.2 of the Distribution
Agreement is amended so that the fair value of the Transferred Assets will be
determined within thirty (30) days after Closing, and not prior to Closing.
8. ONE-TIME PAYMENT. The one-time payment of $25 million in Section 14.2 of
the Distribution Agreement is reduced to $24 million.
9. INDEMNIFICATION BY NOVELL. Section 21.1 is amended to read as follows:
Novell agrees to indemnify, defend and hold BEA harmless from any and all
damages, liabilities, costs and expenses incurred by BEA as a result of
any claims, judgments or adjudication against BEA or its licensees that
TUXEDO Software or Novell Documentation infringes the copyright or trade
secret or US patent rights of any third party, provided: (i) BEA shall
promptly notify Novell in writing of the claim; and (ii) Novell shall have
the sole control of the defense of the action and BEA provides Novell with
full information and assistance for its defense, settlement and/or
compromise.
10. EXHIBITS. Exhibits A, B, C, D, E and H of the Distribution Agreement are
amended as attached hereto.
11. ENTIRE AGREEMENT. This Amendment (including the attached Exhibits),
together with the Distribution Agreement (including any previously executed
amendments thereto), constitutes the entire agreement between the parties
with respect to the subject matter hereof
12. EFFECT OF AMENDMENT. Except as modified by this Amendment, all terms
and conditions of the Distribution Agreement shall remain in full force and
effect.
Each of the undersigned represents and warrants that he or she is duly
authorized to sign this Amendment on behalf of the party he or she
represents. Each party has read, understands and agrees to the terms and
conditions of this Amendment.
NOVELL, INC. BEA SYSTEMS, INC.
By:/s/ Edward R. Smith By:/s/ Edward W. Scott, Jr.
------------------- --------------------------------
Name: Edward R. Smith Name: Edward W. Scott, Jr.
------------------ -------------------------------
Title: VP, Business Development Title: Executive Vice President
---------------------------- ------------------------------
<PAGE>
Exhibit A: TUXEDO Software Deliverables
SOURCE CODE
- -----------
All TUXEDO software for all versions of TUXEDO, including versions 4.2.2, 5.x
and 6.x, and all other versions, modifications, test frameworks, and
development work on these versions as of Closing. TUXEDO Software shall
include any and all modifications made by Novell's Consulting Group such as
special modifications, minor enhancements and product ports. TUXEDO
Software shall include all current development tools, version control tools,
MR(modification request)tracking tools, and all other tools related the
development and productization of the TUXEDO software. TUXEDO Software shall
also include all related educational courseware developed for the TUXEDO
Software for the education and training of users, in both electronic and
hardcopy form, including the TUXEDO System Internals, TUXEDO /D Developer and
Internals, TUXEDO Host Internals, the TUXEDO System 4, 5 and 6 Administrator
courses, and all other versions, modifications and other TUXEDO training
materials.
BINARY CODE
- -----------
All binary versions of be TUXEDO Software product, as defined above,
including all versions of system 4.x, system 5.x, system 6.x and related
add-on products.
DOCUMENTATION
- -------------
All TUXEDO source code documentation files, including those for the TUXEDO
reference manuals, message manuals, and guides, internal technical
documentation, and all TUXEDO marketing, sales, presentation and any other
product description or marketing collateral. All binary documentation files,
including those processed with EBT software to make them browsable.
- --------------------------------------------------------------------------------
Tuxedo License Agreement -Novell, Inc.-122 East 1700 South-Provo, Utah 84606
C:\WORK\WPFILES\MERGERS\BEA-LIC.DR9 PAGE 35 January 24, 1996
<PAGE>
Exhibit B: Assumed Contracts
Novell and BEA each acknowledge and agree that this list of Assumed Contracts
may not be complete, and that BEA has not had the opportunity prior to
Closing to review all of the listed Assumed Contracts. Accordingly, Novell
and BEA shall attempt in good faith to resolve any issues that may arise
regarding any omissions or other problems with the list or with the terms and
conditions of any Assumed Contracts. In addition, Novell shall reasonably
cooperate, such as by agreeing to assign and obtaining agreements to assign,
to ensure that BEA enjoys the benefits of the Assumed Contracts.
In the event that any of the Assumed Contracts cover other Novell software
products in addition to TUXEDO, only the rights and obligations of Novell
relating to TUXEDO shall be assigned as an Assumed Contract.
SECTION 1 - TUXEDO SYSTEM CONTRACTS
Customer Name ................................Contract ID
- ------------- -----------
[***] ............................... 006448
[***] ............................... 034160-01
[***] ............................... 034304-01
[***] ............................... 034818-01
[***] ............................... 000302
[***] ............................... 001402
[***] ............................... 001403
[***] ............................... 001578
[***] ............................... 002305
[***] ............................... 002313
[***] ............................... 003315
[***] ............................... 004317
[***] ............................... 007792
[***] ............................... 010327
[***] ............................... 011441
[***] ............................... 011448
[***] ............................... 012360
[***] ............................... 012373
[***] ............................... 013206
[***] ............................... 014541
[***] ............................... 014901
[***] ............................... 014902
[***] ............................... 015505
[***] ............................... 016416
[***] ............................... 018249
[***] ............................... 018250
[***] ............................... 019180
[***] ............................... 027748
[***] ............................... 029582
[***] ............................... 029806
[***] ............................... 029816
[***] ............................... 029817
[***] ............................... 031782
[***] ............................... 033204
[***] ............................... 033244
[***] ............................... 033318
[***] ............................... 033326
[***] ............................... 033371
[***] ............................... 033372
[***] ............................... 033478
[***] .................................... 034664-01
[***] .............. 034234-01
[***] ............................... 033410
[***] ............................... 034534-01
American Telephone & Telegraph ............... 018749
American Telephone & Telegraph ............... 019261
American Telephone & Telegraph ............... 019675
American Telephone & Telegraph ............... 020051
American Telephone & Telegraph ............... 027821
American Telephone & Telegraph ............... 027829-01
American Telephone & Telegraph ............... 029579
American Telephone & Telegraph ............... 029584
American Telephone & Telegraph Company ....... 000683
American Telephone & Telegraph Company ....... 003575
American Telephone & Telegraph Company ....... 003576
American Telephone & Telegraph Corporation ... 030431
American Telephone & Telegraph Corporation ... 033206
American Telephone & Telegraph Corporation ... 033280
Andersen Consulting .......................... 034027-01
Andersen Consulting .......................... 034051-02
Andersen Consulting .......................... 034051-03
Andersen Consulting .......................... 034157-01
Andersen Consulting .......................... 034280-01
Andersen Consulting .......................... 034301-01
Andersen Consulting .......................... 034302-01
Andersen Consulting .......................... 034464-01
Andersen Consulting .......................... 034465-01
Andersen Consulting San Bhd .................. 034132-01
AT&T ......................................... 028148
AT&T Bell Laboratories ....................... 009650
AT&T Bell Laboratories ....................... 033321
AT&T Bell Laboratories ....................... 033333
- --------------------------------------------------------------------------------
Tuxedo License Agreement -Novell, Inc. -122 East 1700 South -Provo, Utah 84606
C:\WORK\WPFILES\MERGERS\BEA-LIC.DR9 PAGE 36 January 24, 1996
<PAGE>
AT&T Bell Labs ............................... 029810
AT&T Business Customer Systems ............... 000490
AT&T Computer Systems Division ............... 009647
AT&T Computer Systems Division ............... 009648
AT&T Computer Systems Division ............... 033328
AT&T Consumer Communications Services ........ 033397
AT&T Consumer Communications Services ........ 034081-01
AT&T Consumer Communications Services ........ 034134-01
AT&T Consumer Communications Services ........ 034451-01
AT&T Consumer Communications Services ........ 034460-01
AT&T Consumer Communications Services ........ 034530-01
AT&T Consumer Communications Services ........ 034400-01
AT&T Contract Services Organization ......... 014192
AT&T Contract Services Organization ......... 033389
AT&T Global Business Communications Systems .. 011585
AT&T Global Business Communications Systems .. 011586
AT&T Global Business Communications Systems .. 033385-01
AT&T Global Business Communications Systems .. 033386-01
AT&T Global Business Communications Systems .. 033392-01
AT&T Global Business Communications Systems .. 034025-01
AT&T Global Business Communications Systems .. 034026-01
AT&T Global Business Communications Systems .. 034133-01
AT&T Global Business Communications Systems .. 034287-01
AT&T Global Business Communications Systems .. 034288-01
AT&T Information Management Systems .......... 009651
AT&T Information Management Systems .......... 011903
AT&T Information Management Systems .......... 013287
AT&T Information Management Systems .......... 013288
AT&T Information Management Systems .......... 013766
AT&T Information Management Systems .......... 013767
AT&T Information Management Systems .......... 033322
AT&T Information Management Systems .......... 034086-01
AT&T Istel Limited ........................... 006150
AT&T Istel Limited ........................... 006458
AT&T Network Services Division ............... 033417
AT&T Network Services Division ............... 033418
AT&T-IMS ..................................... 034086-01
[***] ......................... 034480-01
[***] .......................... 034303-01
Bell Communications Research, Inc. ........... 034013-01
[***] ....................... 034053-01
Bull ......................................... 006110
Bull ......................................... 006112
Bull SA ...................................... 008004
Bull SA ...................................... 022390
Bull SA ...................................... 022400
Bull SA ...................................... 022411
Bull SA ...................................... 022869
Bull SA ...................................... 024127
Bull SA ...................................... 024128
Bull SA ...................................... 024396
Bull SA ...................................... 024397
Bull SA ...................................... 025194
Bull SA ...................................... 025198
Bull SA ...................................... 025205
Bull SA ...................................... 027353
Bull SA ...................................... 034363-01
Bull SA ...................................... 034364-01
Bull SA ...................................... 034365-01
Bull SA ...................................... 034366-01
Bull SA ...................................... 034369-01
Bull SA ...................................... 034370-01
Bull SA ...................................... 034372-01
Bull SA ...................................... 034373-01
Cincinnati Bell Information Systems, Inc. .... 034243-01
Cincinnati Bell Information Systems, Inc. .... 034441-01
[***] ...................................... 034122-01
[***] .......................... 034161-01
[***] ................................ 013270
[***] .......................... 034004-01
[***] .................................. 034290-01
[***]....................................... 034140-01
Cycare Systems ............................... 034299-01
Data General Corporation ..................... 000364
Data General Corporation ..................... 000837
Data General Corporation ..................... 003039
Data General Corporation ..................... 009332
Data General Corporation ..................... 009333
Data General Corporation ..................... 013239
Data General Corporation ..................... 018941
Data General Corporation ..................... 027752
Data General Corporation ..................... 029587
Data General Corporation ..................... 033335
Data General Corporation ..................... 033485
Data General Corporation ..................... 034101-01
Data General Corporation ..................... 034108-01
Data General Corporation ..................... 034145-01
Data General Corporation ..................... 034146-01
Digital Equipment Corporation ................ 011273
Digital Equipment Corporation ................ 016445
Digital Equipment Corporation ................ 016446
Digital Equipment Corporation ................ 016447
Digital Equipment Corporation ................ 018256
Digital Equipment Corporation ................ 019268
Digital Equipment Corporation ................ 027753
Digital Equipment Corporation ................ 034014-01
[***] ...................... 017750
Electronic Data Systems Corporation .......... 028251
Electronic Data Systems Corporation .......... 028252
Electronic Data Systems Corporation .......... 033413
Electronic Data Systems Corporation .......... 034238-01
[***]....................................... 034601-01
[***]....................................... 034623-01
[***] ....................... 034002-01
Ernst and Young .............................. 034112-01
Federal Express Corporation .................. 033400
Federal Express Corporation .................. 033406
Fidelity Investments ......................... 034425-01
Fidelity Investments ......................... 034455-01
Fidelity Investments ......................... 034457-01
Fidelity Investments ......................... 034461-01
[***] ........................ 034281-01
- --------------------------------------------------------------------------------
Tuxedo License Agreement -Novell, Inc. -122 East 1700 South -Provo, Utah 84606
C:\WORK\WPFILES\MERGERS\BEA-LIC.DR9 PAGE 37 January 24, 1996
<PAGE>
[***] ......................... 034284-01
[***] ....................... 006334
[***] ....................... 022835
[***] ....................... 022836
[***] ....................... 022847
[***] ....................... 027331
[***] ....................... 032685
[***] ....................... 032740
[***] ............................. 033411
[***] ............................. 034469-01
[***] .......................... 034362-01
[***] ....................... 034415-01
[***] ....................... 034472-01
Hewlett Packard Company ...................... 033383
Hewlett Packard Company ...................... 034277-01
Hewlett Packard Company ...................... 034285-01
[*] ....................................... MBIN-00015
[*] ....................................... APREF-4
........................... 034478-01
Independence Technologies Inc. ............... 001302-01
Independence Technologies Inc. ............... 003288-01
Independence Technologies Inc. ............... 004325-01
Independence Technologies Inc. ............... 008190-01
Independence Technologies Inc. ............... 011480-01
Independence Technologies Inc. ............... 011481-01
Independence Technologies Inc. ............... 011898-01
Independence Technologies Inc. ............... 011899-01
Independence Technologies Inc. ............... 011900-01
Independence Technologies Inc. ............... 014163-01
Independence Technologies Inc. ............... 014166-01
Independence Technologies Inc. ............... 018274-01
Independence Technologies Inc. ............... 029583-01
Independence Technologies Inc. ............... 029624-01
Independence Technologies Inc. ............... 029832-01
Independence Technologies Inc. ............... 033263-01
Independence Technologies Inc. ............... 033327-01
Information Foundation, Inc. ................. 034259-01
Information Management Company ............... 000435
Information Management Company ............... 001066
Information Management Company ............... 004324
Information Management Company ............... 016493
Information Management Company ............... 016494
Information Management Company ............... 016495
Information Management Company ............... 017564
Information Management Company ............... 017565
Information Management Company ............... 029833
Information Management Company ............... 033390
[***] ............................ 006088
International Business Machines Corporation .. 034232-01
International Computers Limited .............. 006137
International Computers Limited .............. 006138
International Computers Limited .............. 006158
International Computers Limited .............. 006453
International Computers Limited .............. 021393
International Computers Limited .............. 022495
International Computers Limited .............. 024282
International Computers Limited .............. 025267
[***] .............. 025276
[***] .............. 025314
[***] .............. 025326
[***] .............. 025332
[***] .............. 025333
[***] .............. 025334
[***] .............. 028339
[***] .............. 032551
[***] .............. 033225
[***] .............. 033226
[***] .............. 034006-01
[***] .............. 034048-01
[***] .............. 034334-01
[***] .............. 034335-01
[***] .............. 034336-01
[***] .............. 034337-01
[***] .............. 034338-01
[***] .............. 034339-01
[***] .............. 034340-01
[***] .............. 034341-01
[***] ...................... 003262
[***] ...................... 006440
[***] ...................... 008001
[***] ...................... 008002
[***] ...................... 026532
J.J. Kenny Services Inc. ..................... 003056
J.J. Kenny Services Inc. ..................... 033378
[***]....................................... 028356
[***]....................................... 034418-01
[***] .................. 000387
[***] .................. 003035
[***] .................. 003064
[***] .................. 007813
[***] .................. 007814
[***] .................. 011475
[***] .................. 019870
[***] .................. 029596
[***] .................. 033367
[***] .................. 033387
[***] .......................... Apref-5
[***] ...................... 005552
[***] 021427
[***] 022452
[***] 022453
[***] 026200
[***] 027173
Motorola Inc.................................. 000864
Motorola Inc.................................. 007743
Motorola Inc.................................. 017674
Motorola Inc.................................. 017675
Motorola Inc.................................. 017676
Motorola Inc.................................. 017677
Motorola Inc.................................. 017678
Motorola Inc.................................. 017679
Motorola Inc.................................. 027417
Motorola Inc.................................. 033374
Motorola Inc.................................. 033402
- --------------------------------------------------------------------------------
Tuxedo License Agreement -Novell, Inc. -122 East 1700 South -Provo, Utah 84606
C:\WORK\WPFILES\MERGERS\BEA-LIC.DR9 PAGE 38 January 24, 1996
<PAGE>
[***] ................................... 034282-01
Novell, Inc. ................................. 034252
Novell, Inc. ................................. 034268
Novell, Inc. ................................. 034269
Novell, Inc. ................................. 034270
Novell, Inc. ................................. 034271
[***] ............ 034300-01
[***] ............... 006131
[***] ............... 006147
[***] ............... 006149
[***] ............... 007841
[***] ............... 007843
[***] ............... 021347
[***] ............... 024005
[***] ............... 025253
[***] ............... 025254
[***] ............... 025255
[***] ............... 025304
[***] ............... 027227
[***] ............... 027356
[***] ............... 027359
[***] ............... 032557
[***] ............... 032558
[***] ............... 032696
[***] ............... 034233-01
[***] ............... 034279-01
Oracle Corporation ........................... 030331
Oracle Corporation ........................... 030341
Pacific Bell ................................. 034230-01
[***] ............................. 034019-01
[***] ............................. 034018-01
[***] ...................... APREF-1
[***] ...................... APREF-2
[***] ............................. 034049-02
[***] ............................. 034049-03
[***] .................. 034567-01
Pyramid Tech Corporation ..................... 000082
Pyramid Tech Corporation ..................... 000483
Pyramid Tech Corporation ..................... 000883
Pyramid Tech Corporation ..................... 001069
Pyramid Tech Corporation ..................... 007890
Pyramid Tech Corporation ..................... 007891
Pyramid Tech Corporation ..................... 017343
Pyramid Tech Corporation ..................... 018390
Pyramid Tech Corporation ..................... 027398
Pyramid Tech Corporation ..................... 028470
Pyramid Tech Corporation ..................... 029575
Pyramid Tech Corporation ..................... 030545
Pyramid Tech Corporation ..................... 033290
Pyramid Tech Corporation ..................... 033293
[***] ................................. Apref-3
[***] ................... 028493
[***] ................... 030543
[***] ................... 034890-01
Sequent Computer Systems, Inc. ............... 000347
Sequent Computer Systems, Inc. ............... 000852
Sequent Computer Systems, Inc. ............... 001744
Sequent Computer Systems, Inc. ............... 002989
Sequent Computer Systems, Inc. ............... 003267
Sequent Computer Systems, Inc. ............... 004309
Sequent Computer Systems, Inc. ............... 011758
Sequent Computer Systems, Inc. ............... 011759
Sequent Computer Systems, Inc. ............... 012237
Sequent Computer Systems, Inc. ............... 015203
Sequent Computer Systems, Inc. ............... 015872
Sequent Computer Systems, Inc. ............... 016373
Sequent Computer Systems, Inc. ............... 017437
Sequent Computer Systems, Inc. ............... 017438
Sequent Computer Systems, Inc. ............... 018919
Sequent Computer Systems, Inc. ............... 027474
Sequent Computer Systems, Inc. ............... 029580
Sequent Computer Systems, Inc. ............... 029598
Sequent Computer Systems, Inc. ............... 029809
Sequent Computer Systems, Inc. ............... 033323
Sequent Computer Systems, Inc. ............... 033370
[***] ....................................... 000403
[***] ....................................... 009412
[***] ....................................... 011634
[***] ....................................... 033331
[***] ....................................... 034110-01
[***] ....................................... 034429-01
[***] ....................................... 034430-01
[***] ....................................... 034437-01
[***] ................................... 001258
[***] ................................... 009942
[***] ................................... 018417
[***] ................................... 027488
[***] ................................... 027489
[***] ................................... 029809
[***] ................................... 005208
[***] ................................... 032737
[***] ................................... 034136-01
[***] ................ 034414-01
[***] ....................................... 005549
[***] ....................................... 006497
[***] ....................................... 034286-01
Sun Microsystems, Inc. ....................... 002325
[***] ................ 000835
[***] ................ 033252
[***] ................ 034267-01
[***] ................ 034541-01
[***] ................ 034958-01
Tandem Computers Incorporated ................ 002324
Tandem Computers Incorporated ................ 010355
Tandem Computers Incorporated ................ 010356
Tandem Computers Incorporated ................ 010357
Tandem Computers Incorporated ................ 010358
Tandem Computers Incorporated ................ 019202
Tandem Computers Incorporated ................ 028015
Tandem Computers Incorporated ................ 028543
Tandem Computers Incorporated ................ 029595
Tandem Computers Incorporated ................ 030556
Tandem Computers Incorporated ................ 033366
Tandem Computers Incorporated ................ 034276-01
- --------------------------------------------------------------------------------
Tuxedo License Agreement -Novell, Inc. -122 East 1700 South -Provo, Utah 84606
C:\WORK\WPFILES\MERGERS\BEA-LIC.DR9 PAGE 39 January 24, 1996
<PAGE>
[***] . . . . . . . . . . . . . . . . . . . . . . . . . 034848-01
[***] . . . . . . . . . . . . . . . . . . . . . . . . . 034852-01
[***] . . . . . . . . . . . . . . . . . . . . . . . . . . . . 034740-01
[***] . . . . . . . . . . . . . . . . . . . . . . . . . . . . 034744-01
[***] . . . . . . . . . . . . . . . . . . . . . . . . . . . . 034750-01
[***] . . . . . . . . . . . . . . . . . . . . . . . . . . . . 034751-01
[***] . . . . . . . . . . . . . . . . . . . . . . . . . . . . 034753-01
[***] . . . . . . . . . . . . . . . . . . . . . . . . . . . . 034754-01
[***] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 034376-01
[***] . . . . . . . . . . . . . . . . . . . . . . . . . . 003040
[***] . . . . . . . . . . . . . . . . . . . . . . . . . . 003552
[***] . . . . . . . . . . . . . . . . . . . . . . . . . . 008700
[***] . . . . . . . . . . . . . . . . . . . . . . . . . . 009638
[***] . . . . . . . . . . . . . . . . . . . . . . . . . . 010396
[***] . . . . . . . . . . . . . . . . . . . . . . . . . . 011482
[***] . . . . . . . . . . . . . . . . . . . . . . . . . . 012470
[***] . . . . . . . . . . . . . . . . . . . . . . . . . . 019659
[***] . . . . . . . . . . . . . . . . . . . . . . . . . . 028060
[***] . . . . . . . . . . . . . . . . . . . . . . . . . . 029581
[***] . . . . . . . . . . . . . . . . . . . . . . . . . . 033324
[***] . . . . . . . . . . . . . . . . . . . . . . . . . . 033325
[***] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 009083
[***] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 027350
[***] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 032552
[***] . . . . . . . . . . . . . . . . . . . . . . . 000122
[***] . . . . . . . . . . . . . . . . . . . . . . . 001218
[***] . . . . . . . . . . . . . . . . . . . . . . . 003052
[***] . . . . . . . . . . . . . . . . . . . . . . . 009891
[***] . . . . . . . . . . . . . . . . . . . . . . . 028559
[***]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 013224
[***] . . . . . . . . . . . . . . . . . . . . . . . . . . . . 034152-01
[***] . . . . . . . . . . . . . . . . . . . . . . . . . . 029815
[***] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 010912
[***] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 011361
[***] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 024028
[***] . . . . . . . . . . . . . . . . . . . . . . . . . . . . 034413-01
Unisys Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 000395
Unisys Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 000988
Unisys Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 001314
Unisys Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 001314
Unisys Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 001739
Unisys Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 003009
Unisys Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 007809
Unisys Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 007810
Unisys Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 007811
Unisys Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 009620
Unisys Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 009657
Unisys Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 011015
Unisys Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 012446
Unisys Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 012450
Unisys Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 012451
Unisys Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 012458
Unisys Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 012459
Unisys Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 014146
Unisys Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 014147
Unisys Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 014959
Unisys Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 014965
Unisys Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 015526
Unisys Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 016465
Unisys Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 017863
Unisys Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 029586
Unisys Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 033330
Unisys Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 034931-01
Unisys Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 034935-01
Unisys Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 034941-01
Unisys Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 034942-01
[***] . . . . . . . . . . . . . 034278-01
[***] . 033258
[***] . 034033-01
[***] . 034399-01
[***] . . 034402-01
[***] . 034404-01
[***] . . . . . . . . . . . . . . . . . . . . . . . 034162-01
[***] . . . . . . . . . . . . . . . . . . . . . . . 034326-01
[***] . . . . . . . . . . . . . . . . . . . . . . . 034327-01
[***] . . . . . . . . . . . . . . . . . . . . . . . 034328-01
[***] . . . . . . . . . . . . . . . . . . . . . . . 034329-01
[***] . . . . . . . . . . . . . . . . . . . . . . . 034375-01
[***] . . . . . . . . . . . . . . . . . . . . . . . 034593-01
[***] . . . . . . . . . . . . . . . . . . . . . . . 034595-01
[***] . . . . . . . . . . . . . . . . . . . . . . . 034596-01
[***] . . . . . . . . . . . . . . . . . . . . . . . 034598-01
[***] . . . . . . . . . . . . . . . . . . . . . . . 034536-01
[***]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 034696-01
[***]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 034697-01
[***]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 034698-01
[***]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 034699-01
[***]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 034700-01
[***]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 034702-01
[***]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 034703-01
SECTION 2 - TUXEDO CONTRACTS EXECUTED FROM PROVO
Customer Name Contract ID
- ------------- -----------
AT&T MLA
Bell Atlantic Network Services MLA
Pacific Bell MLA
Southwestern Bell Mobile Systems MLA
- --------------------------------------------------------------------------------
Tuxedo License Agreement -Novell, Inc.-122 East 1700 South-Provo, Utah 84606
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<PAGE>
[***] MLA
Mckesson MLA
[***] MLA
Ameritech Communications MLA
Discover Card MLA
Union Bank of Switzerland MLA
[***] MLA
[***] MLA
[***] MLA
EDS/General Motors MLA
[***] MLA
SECTION 3 - TUXEDO CONTRACTS EXECUTED FROM SAN JOSE
Customer Name Contract ID
- ------------- -----------
[***] Binary OEM Agreement
[***] Binary OEM Agreement
Pyramid Technology Binary OEM Agreement
[***] Binary OEM Agreement
Tandem Chile S.A. Binary OEM Agreement
[***] Binary OEM Agreement
[***] Binary OEM Agreement
[***] Binary OEM Agreement
Independence Technologies Binary OEM Agreement
[***] Binary OEM Agreement
[***] Binary OEM Agreement
[***] Binary OEM Agreement
Digital Equipment Corporation Binary OEM Agreement
[***] Binary OEM Agreement
[***] Binary OEM Agreement
[***] Binary OEM Agreement
[***] Binary OEM Agreement
[***] Binary OEM Agreement
[***] Binary OEM Agreement
SECTION 4 - TUXEDO CONTRACTS EXECUTED BY NOVELL KK
Customer Name Contract ID
- ------------- -----------
Fujitsu Source Code Agreement
NEC Source Code Agreement
[***] Source Code Agreement
[***] Source Code Agreement
[***] Source Code Agreement
NTT Data Source Code Agreement
[***] Source Code Agreement
Nihon Unisys Source Code Agreement
- --------------------------------------------------------------------------------
Tuxedo License Agreement -Novell, Inc.-122 East 1700 South-Provo, Utah 84606
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<PAGE>
SECTION 5 - TUXEDO CONTRACTORS
Contractor Company Contract ID
- ---------- ------- -----------
[ *** ] J. Anthony & Assocs. P.O. 56805
[ *** ] Altair Consulting Group P.O. 56804
[ *** ] Pencom Systems P.O. 57364
[ *** ] Pencom Systems P.O. 56012
SECTION 6 - SERVICES AGREEMENTS
Contractor Contract ID
- ------------- -----------
[ *** ] Data Processing Services Agreement
[ *** ] Master Business Agreement
SECTION 7 - EXCLUDED CONTRACTS
No Novell agreements with Decision Support, Inc. ("DSi") relating to TUXEDO
documentation will be considered Assumed Contracts, and no such agreements are
assigned under this Agreement.
- --------------------------------------------------------------------------------
Tuxedo License Agreement -Novell, Inc.-122 East 1700 South-Provo, Utah 84606
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<PAGE>
Exhibit C: Subsidiaries & Controlled Persons(1)
Wholly-Owned Subsidiaries
- -------------------------
1. Information Management Company, a Delaware corporation ("IMC")
2. Independence Technologies, Inc., a Delaware corporation ("ITI")
3. Aquabay Limited, a UK corporation (name being changed to BEA Systems
Limited)
4. BEA International Limited, a Cayman Islands corporation (in the process of
being formed)
_______________________________
1 Additional entities may be added to this Exhibit upon the mutual agreement
of the parties.
- --------------------------------------------------------------------------------
Tuxedo License Agreement -Novell, Inc.-122 East 1700 South-Provo, Utah 84606
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<PAGE>
Exhibit D: Transferred Assets
Novell and BEA shall agree upon a detailed list of the Transferred Assets and
their respective values within thirty (30) days after the Closing Date.
1. The equipment, furnishings, and other personal property owned by Novell
and used exclusively by its TUXEDO division personnel. This will include,
without limitation, all computer and office equipment, software
(development tools, personal productivity software, PC software, etc.),
desks and other furniture, and other personal property owned by Novell and
located in the TUXEDO division personnel offices in Florham Park, New
Jersey. Novell shall also allow BEA to continue to use the Florham Park,
New Jersey office space currently used by the TUXEDO division personnel
without charge until August 31, 1996, or until BEA vacates the space,
whichever occurs first. In the event that BEA vacates the space and
Novell wishes to sublease or otherwise utilize the space with the existing
desks and other office furniture, Novell will pay to BEA $150,000 for the
furniture.
2. Novell's ownership in USL Mexico (40% of outstanding shares) and USL SA
(10% of outstanding shares).
3. All accounts receivable and outstanding loan amounts due to Novell by, or
otherwise relating to, USL Mexico (approximately $450,000 to $500,000 in
accounts receivable) and USL SA (approximately $2,400,000 to $2,700,000 in
accounts receivable and $305,000 as a loan).
4. Inventory, which BEA can sell during a 90-day transition period after
Closing, provided that BEA reasonably identifies itself as the seller to
the purchaser through the use of inventory stickers or some other
mechanism.
- --------------------------------------------------------------------------------
Tuxedo License Agreement -Novell, Inc.-122 East 1700 South-Provo, Utah 84606
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<PAGE>
Exhibit E: TUXEDO Trademark Licenses
Novell and BEA each acknowledge and agree that this list of licensees of TUXEDO
trademarks may not be complete, and that BEA has not had the opportunity prior
to Closing to review all of the listed Assumed Contracts which may grant such
trademark rights. Accordingly, Novell and BEA shall attempt in good faith to
resolve any issues that may arise regarding any omissions or other problems
with this list.
Tandem
DG
Bull
ICL
- --------------------------------------------------------------------------------
Tuxedo License Agreement -Novell, Inc.-122 East 1700 South-Provo, Utah 84606
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<PAGE>
Exhibit F: Source Code Sublicensing
BEA may grant sublicenses of Source Code subject to the following minimum terms
and conditions:
1. Subject to Section 23, BEA may grant sublicenses to Source Code for the
purposes specified in Section 4. 1. Such Source Code shall continue to be
subject to the terms and conditions of this Agreement. Sublicensees may
only make those number of copies of Source Code as reasonably necessary
for backup and archival purposes.
2. Sublicensees may modify Source Code to create Derivative Works, provided
the Derivative Works are for the purposes stated in Section 4. 1. All
Derivative Works created by sublicensees shall continue to be subject to
the terms and conditions of this Agreement.
3. Except for source code escrow or similar arrangements to allow limited use
of Source Code or Derivative Works thereof for maintenance purposes,
sublicensees of Source Code shall not be authorized to sublicense Source
Code or Derivative Works thereof, except that in the case of the latter,
sublicensees shall be permitted to grant Binary Code sublicenses pursuant
to a grant of rights from BEA.
4. BEA, upon the written request of Novell, shall provide Novell with the
names of its sublicensees and the locations of each copy of the Source
Code and Derivative Works thereof.
5. Sublicensees of Source Code shall be subject to confidentiality provisions
at least as stringent as those specified in this Agreement with respect to
Source Code.
6. Novell shall not be liable to any sublicensees of BEA for any reason
whatsoever, and BEA agrees to indemnify Novell from and against any
imputed liability of BEA.
- --------------------------------------------------------------------------------
Tuxedo License Agreement -Novell, Inc.-122 East 1700 South-Provo, Utah 84606
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<PAGE>
Exhibit G: Form of Guaranty
GUARANTY
This Guaranty ("Guaranty"), dated as of _______________, 199_, is by
Warburg, Pincus Ventures, L.P. as guarantor ("Guarantor"), for the
benefit of Novel], Inc. ("Novell").
RECITALS:
- --------
A. Novell and BEA Systems, Inc. ("BEA") have entered into that certain
TUXEDO License and Distribution Agreement, dated__________, 1995 (the
"Agreement"), pursuant to which Novell has agreed to grant to BEA certain
exclusive and strategic rights with respect to Novell's TUXEDO software, in
consideration of the payments and other agreements and obligations of BEA
described therein. Execution of this Guaranty is a condition to the closing of
the Agreement.
B. Guarantor has a substantial financial interest in BEA and will
materially benefit from the transaction contemplated by the Agreement.
AGREEMENTS:
- ----------
NOW, THEREFORE, in consideration of the foregoing, Guarantor hereby agrees
as follows:
1. PERSONAL GUARANTY. To induce Novell to enter into the transaction
with BEA described above, Guarantor hereby personally, absolutely and
unconditionally guarantees performance of all obligations of BEA to make
payments to Novell, as more specifically described in the Agreement, as it
may be amended from time to time with the consent of BEA (the "Obligations").
The parties acknowledge that, unless and until BEA delivers to Novell a
written notice that BEA is exercising its option to purchase a perpetual
license, pursuant to Section 14.2 of the Agreement, such option payment is
not considered an obligation of BEA to make a payment to Novell. This
Guaranty is an unconditional, continuing and irrevocable guaranty of payment
of the Obligations as agreed. The liability of Guarantor hereunder is
independent of the Obligations and of the liabilities of BEA.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS. Guarantor hereby
represents, warrants, covenants and agrees that, upon BEA's failure to
perform when due any of the Obligations, Guarantor shall pay to Novell, upon
demand, the unpaid amount of such Obligation. Guarantor agrees, as principal
obligor and not as guarantor only, to pay to Novell upon demand all costs and
expenses (including reasonable attorneys' fees) incurred or expended by
Novell in connection with the enforcement of this Guaranty.
3. WAIVERS. In connection with this Guaranty, Guarantor hereby waives
the following:
3.1 Any right to require Novell to first proceed against BEA or
any other person, or to proceed against or exhaust any security held by
Novell at any time, or to pursue any other remedy in its power before
proceeding against Guarantor;
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<PAGE>
3.2 All requirements, if any, of diligence, presentment, demand,
protest, notice of default and non-payment and all other demands and notices
of any kind with respect to the Obligations, to the extent permitted by law;
3.3 Any defense due to unenforceability or irregularity with
respect to the Obligations or any limitation of BEA's liability with respect
to the Obligations, or based upon an election of remedies by Novell;
3.4 Any duty of Novell to disclose to Guarantor any facts it may
now or hereafter know about BEA, regardless of whether Novell has reason to
believe that such facts are unknown to Guarantor or materially increase the
risk beyond that which Guarantor intended to assume. Guarantor agrees that,
due to its close relationship with BEA, Guarantor assumes full responsibility
for keeping informed of all circumstances affecting the risk of
nonperformance; and
3.5 All other statutory or common law suretyship defenses now or
hereafter available.
4. CONSENTS. Guarantor hereby consents to the following and agrees
that this Guaranty will not be affected thereby:
4.1 Any modification, renewal, extension or release of the
Obligations, including without limitation any extension of time for
performance or payment, any delay in the enforcement of Novell's rights, and
any modification of any duty or obligation of BEA;
4.2 Waiver by Novell of performance or payment of damages by BEA
with respect to any or all of the Obligations, or assignment by Novell of its
rights under the Obligations; and
4.3 Acceptance of any property as security, release of any
property from any security interest held by Novell, or the addition of or
release of any other guarantor of the Obligations.
5. BANKRUPTCY, ETC. The guarantees contained herein shall not be
affected by bankruptcy, insolvency, receivership, reorganization or similar
proceeding affecting BEA or its assets, or by the voluntary or involuntary
liquidation, sale or other disposition of all or substantially all of the
assets of BEA.
6. SUBROGATION RIGHTS AND SUBORDINATION. Until all Obligations are
paid in full, Guarantor agrees that it shall have no right of subrogation
against BEA and waives any rights to enforce any remedy that Novell may have
against BEA and any right to participate in any security that may be held by
Novell. Guarantor agrees that all indebtedness of BEA to Guarantor, whether
now or hereafter incurred, shall be subordinated in all respects to all
Obligations hereby guaranteed.
7. ACTIONS. Guarantor's obligations under this Guaranty are
independent of the Obligations of BEA and, if them is a default or breach by
Guarantor hereunder, a separate action or actions. may be brought and
prosecuted against Guarantor whether or not BEA is joined in such action or a
separate action is brought against BEA. Novell may maintain successive
actions for other defaults. All rights and remedies of Novell shall be
cumulative and not alternative, and such rights and remedies shall be in
addition to all rights and remedies given to Novell by law. Novell's rights
shall not be exhausted by its
- --------------------------------------------------------------------------------
Tuxedo License Agreement -Novell, Inc.-122 East 1700 South-Provo, Utah 84606
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<PAGE>
exercise of any of its rights or remedies or by any action or successive
action until all Obligations hereby guaranteed have been performed as agreed
or Novell has been fully compensated for any failure to adequately perform.
In any action against Guarantor based upon a default under or breach of this
Guaranty, Novell shall be entitled to recover As costs and reasonable
attorneys' fees.
8. TERMINATION OF GUARANTY. This Guaranty shall terminate at the time
all Obligations of BEA relating to the Initial Term are satisfied in full;
provided, however, that in the event of a public offering of BEA stock in which
BEA obtains at least $50 million in equity investments, and BEA creates and
maintains an interest-bearing escrow account holding at least fifty percent
(50%) of the amount of outstanding financial obligations of BEA during the
Initial Term, Novell agrees to terminate this Guaranty and release Guarantor
from its obligations hereunder, effective at the time BEA delivers to Novell
reasonably satisfactory evidence that such minimum funds have been obtained
from a public offering and the escrow account has been formed and fully funded.
9. BINDING EFFECT; ASSIGNABILITY. This Guaranty shall inure to the
benefit of and shall be binding upon Novell and Guarantor and their
respective successors, representatives, heirs, executors, administrators and
assigns. Guarantor may not assign this Guaranty without Novell's prior
written consent.
10. ENTIRE AGREEMENT; AMENDMENT. This writing constitutes the entire
agreement of Guarantor with respect to the subject matter of this Guaranty
and may not be modified, amended or terminated except by a written agreement
specifically referring to this Guaranty signed by Guarantor and Novell.
11. NO WAIVER. No waiver of any breach or default under this Guaranty
shall be considered valid unless in writing and signed by the party giving
such waiver.
12. APPLICABLE LAW. This Guaranty and all amendments hereof shall be
governed by and construed in accordance with the laws of the State of Utah,
without regard to conflicts of laws provisions.
13. SEVERABILITY. If any term of this Guaranty is deemed invalid or
unenforceable by a court or authority of competent jurisdiction, that term
shall be reduced or otherwise modified by such court or authority, but only
to the minimum extent necessary to make it valid and unenforceable. If any
term cannot be reduced or modified to make it reasonable and permit its
enforcement, such term shall be severed from this Guaranty and the remaining
terms shall be interpreted in such a way as to give maximum validity and
enforceability to this Guaranty.
GUARANTOR:
WARBURG, PINCUS VENTURES, L.P.
By:
-------------------------------
Title:
----------------------------
- --------------------------------------------------------------------------------
Tuxedo License Agreement -Novell, Inc.-122 East 1700 South-Provo, Utah 84606
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<PAGE>
Exhibit H: TUXEDO Employees
[***]
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<PAGE>
Exhibit I: Form of Bill of Sale
BILL OF SALE AND ASSIGNMENT OF ASSETS
Novell, Inc., a Delaware corporation ("Novell"), in consideration of Ten
Dollars and other good and valuable consideration to it in hand paid, the
receipt and sufficiency of which is hereby acknowledged, does hereby sell,
grant, transfer, convey, assign, and deliver unto BEA Systems, Inc., a
Delaware corporation ("BEA"), all of Novell's right, title and interest in
and to each of the Transferred Assets, as such term is defined in that
certain TUXEDO License and Distribution Agreement between BEA and Novell,
dated as of January 24, 1996 and amendments thereto (together, the
"Agreement").
Novell represents and warrants to BEA that (i) Novell is the lawful
owner of title to the Transferred Assets, (ii) Novell has the right to sell
the Transferred Assets to BEA, and (iii) there are no liens or encumbrances
on or against the Transferred Assets, except for those encumbrances and
liabilities described in the Agreement or documents related thereto.
Novell shall execute, acknowledge and deliver all such further deeds,
bills of sale, transfers, assignments, conveyances, powers of attorney,
conveying and confirming unto BEA the Transferred Assets, as BEA shall
reasonably require.
IN WITNESS WHEREOF, Novell has caused this instrument to be executed as
of February 23, 1996.
NOVELL, INC.
By:
------------------------------
Its:
-----------------------------
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Tuxedo License Agreement -Novell, Inc.-122 East 1700 South-Provo, Utah 84606
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<PAGE>
Exhibit J: Sample Initial Press Release
APPROVAL DRAFT, 1/23
NOVELL AND BEA SYSTEMS ANNOUNCE STRATEGIC PARTNERSHIP TO DEVELOP, DISTRIBUTE
TUXEDO SOFTWARE
RESPONDING TO GROWING MARKET DEMAND, COMPANIES TO ENHANCE AND EXPAND
TUXEDO SYSTEM ACROSS NETWARE, UNIX, NT PLATFORMS
OREM, UT AND SUNNYVALE, CA -- JANUARY 29,1996 -- Novell, Inc. (NOVL) and
BEA Systems, Inc. of Sunnyvale, CA. today announced a strategic partnership to
develop and distribute the TUXEDO System, the leading open transaction
management software used by businesses to develop and deploy multi-tier,
client/server applications.
The TUXEDO System is a development, management and deployment
environment for multi-tier client/server applications and is the leading
portable transaction manager with more than 40 percent of the market. It is
used to create scalable, high performance, secure, reliable business-critical
applications, as well as more general purpose client/server applications. It
runs on more than 35 platforms including NetWare, most UNIX variants, NT, and
virtually every client operating environment. Customer demand for the TUXEDO
System has doubled for the past two consecutive years.
Under the terms of the agreement, both companies will invest development
resources to enhance and expand the TUXEDO product line. Novell's
development focus will be to integrate TUXEDO with NetWare, including its
industry standard network directory services (NDS), and NetWare Connect
Service for managed Internet services. BEA will be responsible for
developing the features and utilities needed for enterprise line-of-business
solutions running on UNIX, NT, and other platforms, including their
integration with existing legacy systems. BEA will also become the master
distributor of TUXEDO on non-NetWare platforms.
The partnership advances Novell's strategy to enable a Smart Global
Network by extending distributed network services such as TUXEDO's on-line
transaction processing (OLTP) capabilities across multiple client and server
platforms and into managed Internet solutions. Through the further integration
of TUXEDO with NetWare, Novell will enable customers to more easily manage and
secure transaction-intensive applications deployed across networks for use in
electronic commerce, securities trading, manufacturing process control, retail
inventory management, and other mission-critical areas.
Since traditional TUXEDO users on UNIX or NT develop custom line-of-
business solutions, Novell chose to partner with BEA because they will dedicate
the resources required from both a consulting and channel perspective, as well
as a product-features perspective to better meet these customer-specific needs.
"Our partnership with BEA Systems enables Novell to maintain its
commitment to TUXEDO and its rapidly expanding customer base while increasing
Novell's focus to making TUXEDO services an integral part of the Smart Global
Network spanning from workgroup LANs to the Internet," said Richard King,
executive vice president and general manager of the Novell Systems Group. 'As
a leader in enterprise middleware solutions, BEA Systems is the ideal partner
to fully support TUXEDO market growth among its base of enterprise and systems
customers. Novell believes the agreement will widen TUXEDO's market lead as
the platform for open transaction intensive client/server applications."
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<PAGE>
"We are extremely pleased to be working with Novell to expand both
TUXEDO's capabilities and its distribution," said Bill Coleman, President and
CEO of BEA Systems. "We already have broad TUXEDO expertise within BEA, a
large installed base of TUXEDO customers, and are focusing our entire company
on enterprise middleware solutions with TUXEDO as a core technology
component. We expect this partnership to allow us to drive significant
enhancements into the product, and to ease the path for customers adopting
TUXEDO by greatly expanding sales channels and consulting availability."
Jim Johnson, President of the Standish Group, an industry consulting
firm specializing in transaction management middleware, said, "This
relationship provides the best of all worlds. Multi-tier client/server
application customers get the features and consulting they need from the
consulting intensive channel to be so up by BEA. At be same time, TUXEDO
will be better integrated and more easily useable in a NetWare or Novell
distributed services environment, and will be used to enhance the
capabilities of the products that make that environment possible."
The joint development and master distributor agreement with BEA is
effective as of February 26, 1996. Current Novell TUXEDO distributors and
customers have already been notified of the agreement. Any distributor or
customer transitions will be accomplished within 90 days.
ABOUT BEA
BEA Systems is a leading provider of enterprise middleware solutions.
Founded in 1995, BEA's mission is to deliver a distributed application
framework, using enhanced transaction processing monitor technology and
professional services, to enable distributed mission-critical applications
that can seamlessly work with both legacy and client/server environments.
With today's announcement, BEA will be the developer and master distributor
of TUXEDO on all operating systems other than NetWare and plans to continue
building its solution set through development, partnerships, and
acquisitions. Headquartered in Sunnyvale, Calif., BEA is venture funded by
Warbug, Pincus Ventures, L.P.
Novell, Inc. (NASDAQ: NOVL), is the world's leading networking software
provider. Novell software provides the infrastructure for a networked world,
enabling our customers to connect with other people and the information they
need, anytime and anyplace. Novell partners with other technology and market
leaders to help customers make networks a part of their everyday lives.
###
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Tuxedo License Agreement -Novell, Inc.-122 East 1700 South-Provo, Utah 84606
C:\WORK\WPFILES\MERGERS\BEA-LIC.DR9 PAGE 53 January 24, 1996
<PAGE>
SECOND AMENDMENT
TO
TUXEDO LICENSE AND DISTRIBUTION AGREEMENT
This second amendment (this "Amendment") is entered into as of October 25,
1996, ("Amendment Date") between Novell, Inc., a Delaware corporation with a
place of business at 122 East 1700 South, Provo, Utah 84606 ("Novell"), and BEA
Systems, Inc., a Delaware corporation with its principal place of business
located at 385 Moffett Park Drive, Sunnyvale, California 94089 ("BEA").
RECITALS
A. Novell and BEA entered into a TUXEDO License and Distribution
Agreement, dated effective January 24, 1996 (the "Distribution Agreement"),
with the closing on February 23, 1996. All capitalized terms used herein and
not defined herein shall have the respective meanings specified in the
Distribution Agreement.
B. The Distribution Agreement was amended in a First Amendment dated
as of February 23, 1996 (the "First Amendment"). The parties now desire to
further amend the Distribution Agreement as hereinafter provided.
NOW, THEREFORE, in consideration of the promises included herein and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
AGREEMENT
1. PAYMENTS. In recognition of the renegotiated terms and conditions set
forth herein including the restructuring of payment amounts and schedules,
the Distribution Agreement is modified as follows:
a. Section 13.1 of the Distribution Agreement is amended as follows:
BEA will pay to Novell an additional $10.55 million
for Year 1 of the Initial Term, with the additional amount due
and payable within 180 days of the Amendment Date. This $10.55
million figure is derived as follows:
i) $9.55 million associated with the
renegotiation of the Distribution Agreement pursuant
to this Amendment, in recognition of the increased
current value to BEA of the amended Distribution
Agreement; plus
ii) $1.0 million for settlement in full of Novell's claim
of
Second Amendment 1
<PAGE>
royalties past due by ITI, an entity which has since
been acquired by BEA; less
iii) [***]
b. Novell will pay BEA two million five hundred fifty thousand dollars
($2,550,000) associated with Novell's compensation of BEA for
Novell's retention of Japanese TUXEDO Software revenues accrued
during the period from February 23, 1996 to July 31, 1996, with this
amount due and payable within fifteen (15) days of receipt of notice
from BEA that BEA Japan has received the Japanese TUXEDO Software,
provided such notice is given within one hundred eighty (180) days of
the Amendment Date.
c. The one-time payment of $25 million in Section 14.2 of the
Distribution Agreement, which was reduced to $24 million in the First
Amendment, is further reduced to $12 million.
2. TUXEDO TRADEMARK. Section 12.2 of the Distribution Agreement is amended
so that the attribution notice is as follows: "TUXEDO is a registered
trademark in the United States and other countries."
3. PAST TUXEDO REVENUES. Delete the last two sentences of Section 18.1 of
the Distribution Agreement and replace with the following:
The Transferred Assets do not include, and BEA is not entitled
to, revenues relating to the TUXEDO Software that were recognized or
collected by Novell as revenue prior to February 23, 1996, or amounts
that relate to distribution of the NetWare version of the TUXEDO
Software as permitted by the Distribution Agreement. Upon Novell's
request, BEA shall use commercially reasonable efforts to assist
Novell in the collection of any unpaid amounts associated with TUXEDO
Software revenues recognized by Novell as such prior to February 23,
1996. These efforts shall include, but not be limited to, joint
correspondence to,
Second Amendment 2
<PAGE>
telephone calls with, and visits to the sites of customers
associated with such unpaid amounts. Novell acknowledges that Novell
has assigned to BEA all other revenues relating to the TUXEDO
Software, no matter when the revenues accrued, and Novell waives any
right to collect such revenues during the term of the Distribution
Agreement. During the term of the Distribution Agreement Novell will
not, under any circumstances, invoice, investigate, audit or collect
any such revenues, nor assert any right to do so, except to the
extent that such collection actions or revenues relate to
distribution of the NetWare version of the TUXEDO Software as
permitted by the Distribution Agreement. At BEA's request, Novell
will promptly send a letter to each TUXEDO Software licensee
informing them of the assignment to BEA of their TUXEDO Software
license and all future revenues related thereto. Upon BEA's request,
Novell will provide to BEA accurate and complete records concerning
any amounts relating to the TUXEDO Software recognized as revenue by
or on behalf of Novell after February 23, 1996, and promptly pay
those amounts to BEA.
4. INTEGRATION OF TUXEDO SOFTWARE WITH NDS. Novell acknowledges that BEA is
not in breach of any of its obligations with respect to the development
work, or the preparation of the Statement of Work, described in
Section 8.3, and that the deadline for executing the Statement of Work is
extended for a period of sixty (60) days from the Amendment Date, and that
the Statement of Work will contain reasonable milestones and dates to
complete the contemplated work. In addition, Novell and BEA have agreed on
a basic framework under which BEA would agree to take over the development
of the NetWare version of the TUXEDO Software, if Novell wishes BEA to do
so pursuant to Section 10.2 of the Distribution Agreement. Under this
framework, Novell would compensate BEA in the form of NRE, loan or other
up-front assistance with development and support costs for BEA, offset by
ongoing royalties paid back to Novell as BEA markets and sells the
product.
5. USL MEXICO RECEIVABLES.
a. BEA acknowledges that in consideration of the renegotiated terms
of the Distribution Agreement set forth herein, BEA shall not receive
Novell's shares of stock in USL System Laboratories de Mexico S.A. de
C.V. ("USL Mexico") as identified in Exhibit D of the Distribution
Agreement, and that such shares are hereby deleted from the
definition of Transferred Assets set forth in Section 2.25.
b. Novell and BEA will use commercially reasonable efforts to enter
into an agreement with Asytec providing that all obligations of
Novell under the JVA, as well as any obligations relating to the JVA
that were assigned to BEA by Novell under the Distribution Agreement,
are thereby terminated.
c. BEA shall offer to and negotiate with USL Mexico, and exercise
commercially
Second Amendment 3
<PAGE>
reasonable efforts to conclude, BEA's standard non-exclusive
TUXEDO distribution agreement, a copy of which is attached hereto as
Exhibit A, according to the following:
i. the term of the agreement shall be three (3) years;
ii. the discount rate shall be [***] off BEA's current
Quantity One list price during the the first year of the
agreement, and during the second and third years the discount
rate shall be renegotiated but shall be at least[***] off BEA's
current Quantity One list price;
iii. the discount rate for the second and third year shall remain at
[***] if:
(1) USL Mexico meets minimum annual revenue totals payable to
BEA of [***] in the first year and [***] in the
second year; or
(2) USL Mexico agrees to make an up-front, non-refundable
prepayment of revenue to BEA of [***] per year for the
second and third years;
iv. BEA shall not be obligated to maintain such discount
rates if USL Mexico and/or its parent Asytec have not, within
one hundred eighty (180) days of the Amendment Date, satisfied
the approximately [***] accounts receivable balance owed by USL
Mexico to BEA as Novell's successor to this receivable; and,
v. all other terms shall be at least as favorable as those of
BEA's standard TUXEDO distribution agreement, attached hereto as
Exhibit A.
6. JAPAN. Within five (5) business days of the Amendment Date, Novell and
BEA will execute, and will facilitate execution by their respective Japanese
subsidiaries, the Japanese TUXEDO Agreement attached as Exhibit B.
7. MARKETING AND SALES REQUIREMENTS.
a. Novell and BEA agree that it is in both companies' best
interests that the market for the TUXEDO Software be preserved and
expanded. BEA acknowledges that the development, marketing, sales
and support of the TUXEDO Software is BEA's primary business, and BEA
commits that it will continue to be BEA's primary business during the
Initial Term of the Distribution Agreement. BEA
Second Amendment 4
<PAGE>
further commits that it will use commercially reasonable efforts
to actively market TUXEDO Software for those markets to which BEA has
been granted distribution rights by Novell under the Distribution
Agreement.
b. Section 8.2 of the Distribution Agreement is deleted. However, BEA
acknowledges that this in no way releases BEA from its obligations to
pay Novell all licensing fees described in Section 13 and 14 of the
Distribution Agreement.
8. ENTIRE AGREEMENT. This Amendment (including any attached Exhibits),
together with the Distribution Agreement (including the First Amendment),
constitutes the entire agreement between the parties with respect to the
subject matter hereof.
9. EFFECT OF AMENDMENT. Except as modified by this Amendment, all terms
and conditions of the Distribution Agreement shall remain in full force and
effect.
10. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which shall constitute together one and the same
agreement.
Each of the undersigned represents and warrants that he or she is duly
authorized to sign this Amendment on behalf of the party he or she represents.
Each party has read, understands and agrees to the terms and conditions of
this Amendment.
NOVELL, INC. BEA SYSTEMS, INC.
By: /s/ Mary Burnside By: /s/ Edward W. Scott, Jr.
-------------------- --------------------------
Name: Mary Burnside Name: /s/ Edward W. Scott, Jr.
------------------ --------------------------
Title: Exec. Vice President Title: Executive Vice President
---------------------- --------------------------
Second Amendment 5
<PAGE>
EXHIBIT A
BEA STANDARD TUXEDO DISTRIBUTION AGREEMENT
Second Amendment 6
<PAGE>
BEA SYSTEMS, INC.
DISTRIBUTION AGREEMENT
COVER SHEET
This Distributor Agreement ("Agreement") is made by and between BEA
Systems, Inc. ("BEA") and the authorized distributor identified below
("Distributor") as of ___________ 199__ ("Effective Date").
This Agreement consists of this Cover Sheet, the attached Terms and
Conditions and the attached Exhibits hereto.
Each of the undersigned represents and warrants that he or she is duly
authorized to sign this Agreement on behalf of the party he or she represents.
Each party has read, understands and agrees to the terms and conditions of this
Agreement.
BEA SYSTEMS, INC. [DISTRIBUTOR]
By: By:
------------------------ ----------------------
[signature] [signature]
Name: Name:
---------------------- --------------------
[print name] [print name]
Title: Title:
--------------------- -------------------
Date: Date:
---------------------- --------------------
Address: Address:
- --------------------------- -------------------------
- --------------------------- -------------------------
Attention: Attention:
----------------- ---------------
Phone: Phone:
--------------------- -------------------
Fax: Fax:
----------------------- ---------------------
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Distribution Agmt. (4/16/96) 1 BEA CONFIDENTIAL
<PAGE>
BEA SYSTEMS, INC.
STANDARD DISTRIBUTION AGREEMENT
TERMS AND CONDITIONS
The Agreement authorizes Distributor to acquire BEA Products from BEA and
market them directly to End Users. BEA and Distributor agree as follows:
1. DEFINITIONS. For purposes of this Agreement, each capitalized term shall
have the respective meaning set forth in this Section 1 unless this Agreement
expressly provides otherwise.
a. "BEA AUTHORIZED DISTRIBUTOR" means an entity that is authorized in
writing by BEA to distribute BEA Products.
b. "BEA PRODUCTS" means the BEA products identified in Exhibit A that
Distributor is authorized to market and sell under this Agreement.
c. "BUNDLED PRODUCTS" means the combination of the BEA Products and
Distributor Products that Distributor will market and sell as a single
product offering.
d. "DOCUMENTATION" means user manuals, reference manuals and installation
guides, or portions thereof, which BEA provides with the BEA Products
either in hard copy or electronic copy, as updated by BEA from time to
time.
e. "END USER" means an entity who is not an affiliate of Distributor's
enterprise and acquires the BEA Products for Internal Use. "End User"
does not include an entity which resells, sells, licenses, rents,
leases or otherwise distributes BEA Products to any other party in the
regular course of business.
f. "EXPIRATION DATE" means the date identified as the expiration date in
Exhibit A.
g. "INTERNAL USE" means use for purposes which do not directly produce
revenue for the End User. "Internal Use" does not include timesharing
or any service bureau arrangement.
h. "MARKS" means BEA's trademarks, trade names, service marks, service
names, logos, insignias and other designations.
i. "DISTRIBUTOR PRODUCTS" means Distributor's products and/or services
identified in Exhibit B, with which the BEA Products will be bundled.
j. "TERRITORY" means the geographic region(s) set forth in Exhibit A.
2. APPOINTMENT AND LICENSE GRANT
a. APPOINTMENT. BEA appoints Distributor as a BEA Authorized
Distributor. This appointment is non-exclusive, with BEA reserving
the right to appoint other Distributors without restriction as to
number and location. Subject to the terms and conditions of this
Agreement, BEA grants Distributor a non-exclusive, nontransferable
license to market, sell and distribute BEA Products in the Territory
to End Users acquiring Bundled Products for Internal Use.
Distributor agrees to offer
- --------------------------------------------------------------------------------
Distribution Agmt. (4/16/96) 2 BEA CONFIDENTIAL
<PAGE>
BEA Products for sale to End Users only as a part of a Bundled Product
offering and not as a separate product offering.
b. DISTRIBUTOR BUSINESS PLAN. Distributor represents and warrants that it
has provided BEA a business plan relating to this Agreement which is
attached hereto as Exhibit C and that the business plan is materially
accurate. Distributor agrees to provide business plan updates in
accordance with the format, content and schedule reasonably requested
by BEA. Distributor acknowledges that BEA has materially relied upon
Distributor's representations in the business plan in appointing
Distributor as a BEA Authorized Distributor and that BEA may terminate
the Agreement if Distributor makes an untrue statement or omits to
state a material fact in the business plan or any business plan update.
3. PRODUCTS AND PRICES
a. ELIGIBLE PRODUCTS. Distributor may market the BEA Products specified
in Exhibit A. BEA reserves the right at any time to make changes to any
BEA Products, including without limitation, changes which are required
(i) for security or (ii) to facilitate performance in accordance with
specifications.
b. PRICING AND DISCOUNTS. Distributor may acquire BEA Products under the
Agreement at the prices listed in BEA's general price list, less the
discount set forth in Exhibit A (or, as applicable, at the per unit
price set forth in Exhibit A). BEA reserves the right at any time to
(i) add BEA Products to, or drop BEA Products from, the general price
list and Exhibit A, (ii) increase or decrease prices on the general
price list and/or (iii) to increase or decrease discounts or per unit
prices. Price changes become effective upon thirty (30) days' prior
written notice to Distributor. Orders requesting delivery after the
effective date of a price increase will be charged at the increased
price. Distributor agrees to waive the notice requirement in the event
BEA decreases prices or increases discounts.
c. TAXES. Prices are exclusive of all applicable taxes. Distributor
agrees to pay all taxes associated with Distributor's purchase,
marketing, sublicensing and distribution of the BEA Products ordered
under the Agreement, including but not limited to sales, use, excise,
added value and similar taxes and all customs, duties or governmental
impositions, but excluding taxes on BEA's net income. Any tax or duty
BEA may be required to collect or pay upon the sale or delivery of the
BEA Products to Distributor will be paid by Distributor, and such sums
shall be due and payable to BEA upon delivery to Distributor. If
Distributor claims a tax exemption, Distributor must provide BEA with
valid tax exemption certificates.
d. PRODUCT UPGRADES. Distributor may upgrade any BEA Products acquired by
Distributor under this Agreement in accordance with BEA's general
product upgrade policies. This upgrade right will expire on the
Expiration Date or on the date this Agreement is otherwise terminated
as provided in Section 12.
e. VOLUME FORECAST. Distributor agrees to use commercially reasonable
efforts to achieve the total volume forecast set forth in Exhibit A
during the term of the Agreement. Distributor also agrees that BEA may
review the actual dollar volumes achieved by Distributor on a quarterly
basis and may terminate the Agreement, under Section 12(a), for failure
to meet two successive quarterly volume forecasts.
- --------------------------------------------------------------------------------
Distribution Agmt. (4/16/96) 3 BEA CONFIDENTIAL
<PAGE>
f. PRICE PROTECTION. In the event of a price decrease, all inventory
acquired by Distributor from BEA within sixty (60) days before the
price decrease and not yet sold or under a contract for sale will be
granted price protection. The difference between the price existing
immediately prior to the decrease, less any prior credits, and the new
price will be credited to Distributor's account. Price protection will
not be granted in the case of a temporary price decrease or a special
promotion.
4. MARKETING, END USER SATISFACTION AND SUPPORT
a. USE OF AUTHORIZED DISTRIBUTOR TITLE. Distributor may refer to itself,
in connection with exercising its rights under this Agreement, as a
"BEA Authorized Distributor," but solely in connection with marketing
the Bundled Products and only during the term of the Agreement.
b. USE OF BEA MARKS.
(i) During the term of this Agreement, Distributor shall use, and is
hereby granted a non-transferable, non-exclusive and restricted
license (with no right to sublicense, except as expressly
provided herein) to use, the Marks applicable to BEA Products
acquired under this Agreement in connection with any
advertising, packaging, marketing, technical or other materials
related to Distributor's marketing and distribution of the
Bundled Products. Such use by Distributor shall be in
accordance with BEA's then current trademark usage policies as
provided, and updated from time to time, by BEA. All such usage
shall inure to BEA's benefit. Upon the Expiration Date or
termination of the Agreement, Distributor agrees to cease all
display, advertising and use of any and all Marks.
(ii) Distributor acknowledges BEA's ownership of and title to all
rights in the Marks and the goodwill attaching to the Marks.
Distributor agrees not to contest the Marks, or make application
for registration of any Marks without BEA's express prior
written consent. Distributor agrees not to alter, remove or
obscure any proprietary notice provided by BEA, and Distributor
shall clearly indicate BEA's ownership of the Marks. Distributor
agrees not to attach any additional Marks without the prior
written consent of BEA or affix any Marks to any non-BEA
product. Distributor agrees not to use, employ or attempt to
register any trademarks or trade names which are confusingly
similar to Marks.
(iii) Upon BEA's request from time to time, Distributor agrees to
provide BEA with copies of goods bearing the Marks so that BEA
can verify that the quality of Distributor's use of such Marks
is comparable to that of BEA's use thereof. Distributor shall
suspend use of the Marks if such quality is reasonably deemed
inferior by BEA until Distributor has taken such steps as BEA
may reasonably require to solve the quality deficiencies.
c. END USER SATISFACTION. The BEA Products marketed and distributed by
Distributor under this Agreement are technically complex and require
high-quality, individualized pre-sale and post-sale support. This
support is necessary to achieve and maintain high End User
satisfaction. Distributor agrees that high End User satisfaction is a
condition of its continued authorization under this Agreement by
- --------------------------------------------------------------------------------
Distribution Agmt. (4/16/96) 4 BEA CONFIDENTIAL
<PAGE>
BEA. Although BEA has granted Distributor a license to market and sell
BEA Products in the Territory under the terms of this Agreement,
Distributor agrees that it will not market and sell BEA Products in
areas where it does not have the ability to support adequately the BEA
Products. In addition, in order to help ensure high End User
satisfaction, Distributor agrees to:
* Report to BEA promptly and in writing all suspected
and actual problems with any BEA Product;
* Maintain a shipment report identifying the End User,
the BEA Product sold, the date of sale, and each BEA
Product's serial number;
* Retain all shipment reports for three (3) years after
the date of sale, and assist BEA, upon request, in
tracing a product to an End User, in order to
distribute critical product information, locate a BEA
Product for safety reasons, or discover unauthorized
marketing or infringing acts;
* Conduct business in a manner which reflects favorably
at all times on the products, goodwill and reputation
of BEA;
* Avoid deceptive, misleading or unethical practices
which are or might be detrimental to BEA or the BEA
Products;
* Refrain from, making any false or misleading
representations with regard to BEA or the BEA Products;
* Refrain from making any representations, warranties or
guarantees to customers with respect to the
specifications, features or capabilities of the BEA
Products that are inconsistent with the literature
distributed by BEA; and
* Provide all original diskettes and manuals accompanying
each BEA Product to the End User.
d. COMPLIANCE BY END USERS. Software acquired under this Agreement is
made available to Distributor to market only under the provisions of
this Agreement. When marketing, Distributor agrees to exercise
commercially reasonable efforts to ensure that each End User receiving
the software through Distributor understands, and agrees to be bound
by, the applicable BEA software license agreement ("Software License
Agreement"). For purposes of the Agreement, "software" includes
firmware and software stored in ROMs. In addition, Distributor agrees
to be bound by the applicable BEA Software License Agreement with
respect to all software put to Internal Use by Distributor.
e. US AND FOREIGN DISTRIBUTION.
(i) Certain BEA Products, or versions of BEA Products, are
restricted to US distribution. Distributor will not
distribute such BEA Products or versions outside of the
United States.
(ii) Distributor shall obtain a signed Software License
Agreement, as defined in Section 4(d), from End Users
outside the US. Distributor shall either obtain the
form for such an agreement from BEA, or use a
Distributor form
- --------------------------------------------------------------------------------
Distribution Agmt. (4/16/96) 5 BEA CONFIDENTIAL
<PAGE>
agreement that provides at least as strong of
protection for BEA as the BEA form agreement.
f. CONFLICT OF INTEREST. Distributor shall promote the products of
other companies only if such promotion will not prejudice BEA's
business interests or create a conflict of interest in handling
BEA's confidential or proprietary information. As part of
Distributor's business plan of Exhibit C, Distributor shall
provide BEA with a list of the companies and products that it
currently represents and shall notify BEA in writing of any new
companies and products at such time as Distributor begins to
promote the companies and products.
g. TESTING AND CERTIFICATION. To the extent required by BEA,
Distributor agrees not to market Distributor Products with BEA
Products, until the Distributor Products have been tested and
approved by BEA.
h. INDEMNIFICATION. Distributor agrees to indemnify, hold harmless
and, at BEA's request, defend BEA and its suppliers from and
against any and all claims, liabilities, losses, damages expenses
and costs (including attorneys' fees and costs) arising out of,
in connection with or relating to (except to the extent that BEA
is responsible for a claim under Section 9(a) and 9(b) use or
distribution of the BEA Products, Documentation, Distributor
Products and/or Bundled Products.
i. MAINTENANCE AND SUPPORT. Distributor is responsible for
providing front-line support to End Users that acquire BEA
Products through Distributor. Distributor represents that it has
trained staff to the level of providing BEA Product installation,
and on-going "how to" support, and can diagnose problems to the
BEA Product system level, i.e. to problems that require
maintenance BEA reserves the right to require Distributor to seek
additional training if, in BEA's opinion, Distributor's staff
requires such training. During the term of this Agreement and
for so long as BEA shall continue to offer support to in other
general Distributors of the BEA Products, Distributor may
contract with BEA to have BEA provide back-end support to
Distributor's staff, equivalent to the support provided by BEA to
other similarly situated BEA Authorized Distributors.
5. PLACING ORDERS & TERMS OF PAYMENT
a. CREDIT AND PAYMENT TERMS.
(i) International Distributors must make all payments by an
irrevocable confirmed letter of credit. BEA may extend
to Distributor a line of credit based upon
Distributor's financial information and evidence of
Distributor's financial security as reasonably required
by BEA. BEA reserves the right to set the credit limit
at any level deemed prudent, and may increase or
decrease the line of credit at any time based upon
Distributor's payment history, credit limit, and/or
perceived risk. Distributor agrees to pay for BEA
Products it orders in accordance with the credit and
payment terms provided to Distributor, as they may
change from time to time, or any special terms and
conditions stated on any invoice.
(ii) Distributor agrees to pay all invoices promptly within
thirty (30) days after receipt of BEA's invoice and to
maintain good financial standing with BEA.
- --------------------------------------------------------------------------------
Distribution Agmt. (4/16/96) 6 BEA CONFIDENTIAL
<PAGE>
Invoices not paid when due will accrue interest on an
annual/a monthly basis from the date due until paid in
full at a rate of one percent (1%) per month on any
outstanding balance or the maximum legal rate allowed
by law, whichever is less. All BEA Products ordered by
Distributor in excess of the credit limit will be paid
for in acceptable currency in advance of shipment, by a
letter of credit drawn upon a bank acceptable to BEA, a
bank cashier's check, or a bank wire transfer.
b. ACCEPTANCE OF ORDERS. All orders will be subject to acceptance
in writing by BEA at its principal place(s) of business and will not
be binding until the earlier of acceptance or shipment. Orders
requesting shipment more than ninety (90) days from the date of the
order will not be subject to acceptance by BEA and will be null and
void. Should orders for BEA Products exceed BEA's available
inventory, BEA may, unless Distributor has specifically indicated
otherwise in its purchase order, accommodate Distributor's order by
allocating available inventory and making shipments on a basis BEA
deems equitable, without liability to BEA on account of the method of
allocation chosen or its implementation. Orders not filled or
completely filled by BEA within ninety (90) days of the date of the
orders will be deemed to have lapsed and will be removed from BEA's
order entry system, to the extent not filled.
c. CANCELLATION OF ORDERS. Orders accepted by BEA may be canceled
without penalty by giving written notice of cancellation to BEA at
least fifteen (15) days prior to the scheduled shipment date. Orders
canceled less than fifteen (15) days prior to the scheduled shipment
date may be subject to a cancellation payment of fifteen percent (15%)
of the invoice value of the canceled order. In no event may
Distributor cancel any order or any portion of an order after
shipment.
d. PRODUCT AVAILABILITY AND SHIPPING DESIGNATIONS. BEA will use
commercially reasonable efforts to fill Distributor's orders for BEA
Products and meet Distributor's request for shipment dates subject to
product availability and consistent with BEA production and supply
schedules, but BEA will not be liable for any damages to Distributor
or to any third party for BEA's failure to fill any orders for any
delay in delivery or error in filling any orders for any reason
whatsoever. Distributor may designate up to three (3) "bill to"
addresses and up to five (5) "ship to" addresses for shipments under
the Agreement. BEA will ship BEA Products and bill Distributor to
Distributor's designated "ship to" and "bill to" locations.
Distributor may change the "ship to" location at any time prior to
the estimated shipment date; however, BEA may not be able to honor a
notice, unless it is in writing and received at least fifteen (15)
days prior to the estimated shipment date. The right to change "ship
to" locations does not include any right to drop ship to customer
sites.
e. NO OBLIGATION TO SHIP IN EVENT OF BREACH. Even in cases where
BEA accepts a purchase order, BEA will not be obligated to ship BEA
Products if Distributor is in arrears on payments owing to BEA
Products or if Distributor is otherwise in material breach of this
Agreement at the time of the scheduled shipment.
f. DELIVERY. Delivery in the United States and Canada will be made
C.F., Distributor's facility, BEA's carrier, ground only. All other
freight arrangements will be prepaid
- --------------------------------------------------------------------------------
Distribution Agmt. (4/16/96) 7 BEA CONFIDENTIAL
<PAGE>
and billed to Distributor. For delivery outside the United States and
Canada, BEA will select a carrier to transport BEA Products to the
"ship to" point(s) designated by Distributor pursuant to Section 4(a),
will prepay insurance and freight, and will add the cost of insurance
and freight to Distributor's invoice.
g. TITLE & RISK OF LOSS Title to the tangible media of the BEA
Products (exclusive of the rights retained by BEA in any Marks,
patents, copyrights, trade secrets and any other intellectual
property) and all risk of loss will pass to Distributor upon delivery
at BEA's designated shipping facility to Distributor or the common
carrier selected by BEA.
h. SECURITY INTEREST. Distributor grants BEA, as security for its
obligations under the Agreement, a purchase money security interest
in (i) the BEA Products to be acquired from BEA under this Agreement
or any extension of this Agreement, and (ii) the proceeds of the BEA
Products. Upon BEA's request, Distributor agrees to execute and
cause to be filed all instruments or documents (including, without
limitation, financing statements) necessary to perfect any security
interest, and further agrees that, in any event, BEA may file a copy
of this Agreement as a financing statement for this purpose.
i. POINT OF SALE REPORTS. Distributor agrees to provide BEA, by no
later than the tenth (10th) day of each calendar month, a Point of
Sale report for the previous calendar month. "Point of Sale (POS)
Report" means, for purposes of the Agreement, a report provided by
Distributor to BEA which is in a BEA-specified format and which
includes, among other things, (i) a list of BEA Products sold, (ii)
the regional designation required by BEA, (iii) the part numbers of
the BEA Products sold, and (iv) the amount of on-hand inventory of
all BEA Products by product number (including products listed in the
POS Report and any other BEA Products in inventory not otherwise
included in the POS Report). The POS Report may only be used by BEA
to provide compensation to BEA's sales force and to concentrate
marketing activities to promote greater sales.
6. PROPRIETARY RIGHTS
a. PROPRIETARY RIGHTS. Notwithstanding any provision of this
Agreement to the contrary, BEA (or the licensor through which BEA
obtained the rights to distribute the BEA Products) exclusively owns
and retains all right, title, interest in and to, and ownership of,
all intellectual property rights in the BEA Products (and any copies
and portions thereof), whether in machine readable or printed form,
including, without limitation, (i) all software, firmware,
documentation and related materials which are acquired from, produced
by or shipped by BEA under this Agreement, (ii) all modifications
to, and derivative works, compilations or collective works of, the
BEA Products made by Distributor, BEA or any third party, and (iii)
all related technical know-how and all rights therein (including,
without limitation, rights in patents, copyrights, and trade secrets
applicable thereto). BEA does not transfer any portion of such title
and ownership, or any of the associated goodwill, to Distributor, and
this Agreement should not be construed to grant Distributor any right
or license, whether by implication, estoppel or otherwise, except as
expressly provided herein. Distributor agrees to be bound by and
observe the proprietary nature of the BEA Products acquired under
this Agreement. Distributor agrees to take appropriate
- --------------------------------------------------------------------------------
Distribution Agmt. (4/16/96) 8 BEA CONFIDENTIAL
<PAGE>
action by instruction or agreement with its employees, agents and
contractors who are permitted access to the BEA Products to fulfill
Distributor's obligations under this Agreement; and Distributor shall
not take any action to jeopardize, limit or interfere in any manner
with BEA's (or its licensors') ownership of and rights with respect to
the BEA Products and Documentation. Except as set forth in this
Agreement, or as may be permitted in writing by BEA, Distributor
agrees not to provide BEA Products or any part or copies thereof to
any third party without the prior written consent of BEA.
b. PROPRIETARY NOTICES. Neither Distributor nor any of its employees or
agents shall remove or alter any trademark, trade name, copyright, or
other proprietary notices, legends, symbols, or labels appearing on or
in copies of the BEA Products and Documentation delivered to
Distributor by BEA.
c. PRODUCT RESTRICTION TAMPERING. Except to the extent permitted
by applicable law despite this restriction, Distributor agrees not to
copy, modify, translate, decompile, disassemble, or otherwise reverse
engineer, or otherwise determine or attempt to determine source code
or protocols from, the executable code of the BEA Products or to
create any Derivative Works based upon the BEA Products or
Documentation, and agrees not to permit or authorize anyone else to
do so. Distributor also agrees that any such works are derivative
works and as such are the sole and exclusive property of BEA or its
licensor.
7. CONFIDENTIAL INFORMATION
a. CONFIDENTIAL INFORMATION. For purposes of this Agreement
"Confidential Information" shall mean information including, without
limitation, computer programs, code, algorithms, names and expertise
of employees and consultants, know-how, formulas, processes, ideas,
inventions (whether patentable or not), schematics and other
technical, business, financial and product development plans,
customer lists, information regarding distribution channels,
forecasts, and strategies, whether or not such items are marked
"Confidential", but if disclosed orally, identified as confidential
and reduced to writing within thirty (30) days after such oral
disclosure.
b. RESTRICTIONS ON DISCLOSURE AND USE. Each party agrees to
maintain all Confidential Information in confidence to the same
extent that it protects its own similar Confidential Information and
to use such Confidential Information only as permitted under this
Agreement. Each party agrees to take all reasonable precautions to
prevent any unauthorized disclosure or use of Confidential
Information including, without limitation, disclosing Confidential
Information only to its employees, independent contractors,
consultants, and legal and financial advisors (i) with a need to know
to further permitted uses of such information, (ii) who are parties
to appropriate agreements sufficient to comply with this Section 7,
and (iii) who are informed of the nondisclosure/ non-use obligations
imposed by this Section 7 and both parties shall take appropriate
steps to implement and enforce such nondisclosure/non-use
obligations.
c. EXCLUSIONS. The foregoing restrictions on disclosure and use
shall survive for five (5) years following termination of this
Agreement but shall not apply with respect to
- --------------------------------------------------------------------------------
Distribution Agmt. (4/16/96) 9 BEA CONFIDENTIAL
<PAGE>
any Confidential Information which: (i) was or becomes publicly
known through no fault of the receiving party; (ii) was rightfully
known or becomes rightfully known to the receiving party without
confidential or proprietary restriction from a source other than the
disclosing party; (iii) is independently developed by the receiving
party without the participation of individuals who have had access to
the Confidential Information; (iv) is approved by the disclosing
party for disclosure without restriction in a written document which
is signed by a duly authorized officer of such disclosing party; or
(v) the receiving party is legally compelled to disclose; provided,
however, that prior to any such compelled disclosure, the receiving
party will (A) assert the privileged and confidential nature of the
Confidential Information against the third party seeking disclosure
and (B) cooperate fully with the disclosing party in protecting
against any such disclosure and/or obtaining a protective order
narrowing the scope of such disclosure and/or use of the Confidential
Information. In the event that such protection against disclosure is
not obtained, the receiving party will be entitled to disclose the
Confidential Information, but only as and to the extent necessary to
legally comply with such compelled disclosure.
8. WARRANTIES
a. LIMITED WARRANTY. Subject to the limitations set forth in this
Agreement, BEA warrants only to Distributor that the BEA Products
when properly adapted, installed, and used will substantially conform
to the functional specifications set forth in the Documentation in
effect when the BEA Products are shipped by BEA to Distributor.
BEA's warranty and obligation shall extend for a period of ninety
(90) days ("Warranty Period") from the date BEA ships the BEA
Products to Distributor. All warranty claims not made in writing or
not received by BEA within the time period specified above shall be
deemed waived. BEA's warranty and obligation is solely for the
benefit of Distributor, who has no authority to extend this warranty
to any other person or entity. BEA MAKES NO WARRANTY THAT ALL ERRORS
OR FAILURES WILL BE CORRECTED.
b. EXCLUSIVE WARRANTY. THE EXPRESS WARRANTY SET FORTH IN 8.a
CONSTITUTES THE ONLY WARRANTY WITH RESPECT TO THE BEA PRODUCTS AND
DOCUMENTATION. BEA MAKES NO OTHER REPRESENTATION OR WARRANTY OR
CONDITION OF ANY KIND WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR
BY OPERATION OF LAW) WITH RESPECT TO THE BEA PRODUCTS OR
DOCUMENTATION. BEA EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BEA DOES NOT
WARRANT THAT THE BEA PRODUCTS OR DOCUMENTATION ARE ERROR-FREE OR THAT
OPERATION OF THE BEA PRODUCTS WILL BE SECURE OR UNINTERRUPTED AND
HEREBY DISCLAIMS ANY AND ALL LIABILITY ON ACCOUNT THEREOF. THERE IS
ALSO NO IMPLIED WARRANTY OF NON-INFRINGEMENT; THE SOLE REMEDY FOR
INFRINGEMENT IS PROVIDED IN SECTION 9. This subsection shall be
enforceable to the extent allowed by applicable law.
c. EXCLUSIONS FROM WARRANTIES. BEA does not warrant BEA products
which are not manufactured by BEA. Such products are provided by BEA
on an "AS IS" basis.
- --------------------------------------------------------------------------------
Distribution Agmt. (4/16/96) 10 BEA CONFIDENTIAL
<PAGE>
Any warranty service for such non-BEA products will be provided
by the manufacturer of such non-BEA products in accordance with the
applicable manufacturer's warranty. In addition, BEA shall have no
obligations under the warranty provisions set forth in Section 8(a)
if any nonconformance is caused by: (a) the incorporation, attachment
or other engagement of any attachment, feature, program, or device,
other than by BEA, to the BEA Products, or any part thereof; or (b)
accident; transportation; neglect or misuse; alteration,
modification, or enhancement of the BEA Products other than by BEA;
failure to provide a suitable installation environment; use of
supplies or materials not meeting specifications; use of the BEA
Products for other than the specific purpose for which the BEA
Products are designed; use of the BEA Products on any systems other
than the specified hardware platform for such BEA Products;
Distributor's use of defective media (other than defective media
provided by BEA to Distributor) or Distributor's failure to
incorporate any update previously released by BEA which corrects such
nonconformance.
d. EXCLUSIVE REMEDY. In the event that Distributor finds what it
believes to be errors in or a failure of the BEA Products that
prevents the BEA Products from substantially conforming to the
functional specifications set forth in the Documentation in effect
when the BEA Products are shipped by BEA to Distributor, and provides
BEA with a written report thereof during the Warranty Period, BEA
will use reasonable efforts to correct promptly, at no charge to
Distributor, any such errors or failures. This is Distributor's sole
and exclusive remedy, and BEA's sole obligation, for any express or
implied warranties hereunder.
e. WARRANTY OF AUTHORITY. Each party hereby warrants that it has
the authority to enter into and be bound by the terms of this
Agreement.
9. INDEMNIFICATION
a. INDEMNIFICATION. BEA shall defend any action, claim or demand
brought against Distributor to the extent it is based on a claim that
distribution by Distributor of the BEA Products furnished hereunder
within the scope of a license granted hereunder directly infringes
any valid United States patent as of the Effective Date, United
States copyright, United States trademark, or trade secret in the
United States (collectively, "Claims"). BEA will pay resulting
costs, damages and legal fees finally awarded against Distributor in
such action which are attributable to such Claims provided that
Distributor (a) promptly (within twenty (20) days) notifies BEA in
writing of any such Claim and BEA has sole control of the defense and
all related settlement negotiations, and (b) reasonably cooperates
with BEA in defending or settling such claim.
b. ACTUAL OR POTENTIAL PRODUCT INFRINGEMENT. Should the BEA
Products (or the operation of the BEA Products) become, or in BEA's
opinion be likely to become, the subject of infringement of any
patent, copyright, trademark, trade secret or any other third-party
right, Distributor agrees to permit BEA, at its option and expense,
either to procure for Distributor the right to continue using the BEA
Products, to replace or modify them so that they become non-
infringing, or to grant Distributor credit for the BEA Products as
depreciated on a straight-line method, using a useful life of five
(5) years, and accept their return.
_______________________________________________________________________________
Distribution Agmt. (4/16/96) 11 BEA CONFIDENTIAL
<PAGE>
c. DISCLAIMER. THIS SECTION 9 STATES THE ENTIRE LIABILITY OF BEA,
AND TOGETHER WITH DISTRIBUTOR'S TERMINATION RIGHTS ARISING UNDER THIS
AGREEMENT, THE EXCLUSIVE REMEDY OF DISTRIBUTOR WITH RESPECT TO
INFRINGEMENT OF PATENTS, COPYRIGHTS TRADEMARKS OR ANY OTHER
INTELLECTUAL PROPERTY RIGHTS, WHETHER UNDER THEORY OF WARRANTY,
INDEMNITY OR OTHERWISE.
10. LIMITATION OF LIABILITY
a. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT
(UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW), BEA WILL NOT BE LIABLE
TO DISTRIBUTOR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) SUSTAINED OR INCURRED
IN CONNECTION WITH THIS AGREEMENT AND THE BEA PRODUCTS THAT ARE
SUBJECT TO THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION OR LEGAL
OR EQUITABLE THEORY AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE.
b. NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY OR INVALIDITY OF THIS SECTION 10, THE TOTAL LIABILITY OF BEA
OR ITS SUPPLIERS, REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED
THE GREATER OF (1) $100,000 OR (2) THE PRICE, LESS ANY APPLICABLE
DISCOUNT, OF THE BEA PRODUCT THAT CAUSED THE DAMAGES OR GAVE RISE TO
THE CAUSE OF ACTION. THIS LIMITATION SHALL NOT APPLY TO BEA'S
LIABILITY UNDER SECTION 9.
11. TERM
The term of this Agreement, unless terminated earlier as provided in the
Agreement, will commence on the Effective Date and will automatically
expire on the Expiration Date. The acceptance of any purchase order by
BEA after the Expiration Date will be construed as extending this
Agreement on a month-to-month basis, with the month-to-month Agreement
subject to termination at any time by either party upon thirty (30) days'
prior written notice. Nothing contained in this Agreement should be
interpreted as requiring either BEA or Distributor to renew or extend this
Agreement.
12. TERMINATION
a. TERMINATION FOR CAUSE. Either party may terminate this
Agreement for the breach by the other party of a material term of
this Agreement, provided that the nonbreaching party will first give
the other party written notice of the breach and a reasonable period
of at least thirty (30) days in which to cure the alleged breach. If
a cure is not achieved during the cure period, then the non-breaching
party may terminate this Agreement upon written notice.
Notwithstanding the foregoing, BEA shall have the right to terminate
this Agreement immediately if Distributor materially breaches
Sections 2(a), 4(b), 6(c) or 7.
_______________________________________________________________________________
Distribution Agmt. (4/16/96) 12 BEA CONFIDENTIAL
<PAGE>
b. TERMINATION BY BEA. BEA may terminate this Agreement if
Distributor fails to meet its payment obligations under this
Agreement and this failure continues for ten (10) days following
receipt of written notice from BEA.
c. BANKRUPTCY. Either party may terminate this Agreement upon
written notice to the other party if the other party (i) is not
paying its debts as such debts generally become due, (ii) becomes
insolvent, (iii) files or has filed against it a petition (or other
document), under any Bankruptcy Law or similar law, which is
unresolved within sixty (60) days of the filing of such petition (or
document), (iv) proposes any dissolution, liquidation, composition,
financial reorganization or recapitalization with creditors, (v)
makes a general assignment or trust mortgage for the benefit of
creditors, or (vi) if a receiver, trustee, custodian or similar agent
is appointed or takes possession of any of its property or business.
d. TERMINATION FOR CONVENIENCE. Either party may terminate this
Agreement solely for convenience upon ninety (90) days' prior written
notice.
e. EFFECT ON RIGHTS.
(i) Termination of this Agreement by either party shall
not act as a waiver of any breach of this Agreement and shall
not act as a release of either party from any liability for
breach of such party's obligations under this Agreement.
(ii) Except as specified in Section 12(f)(ii), upon
termination or expiration of this Agreement, all licenses for
BEA Products and Documentation granted under this Agreement
shall terminate.
(iii) Except where otherwise specified, the rights and
remedies granted to a party under this Agreement are cumulative
and in addition to, and not in lieu of, any other rights or
remedies which the party may possess at law or in equity,
including without limitation rights or remedies under applicable
patent, copyright, trade secrets, or proprietary rights laws,
rules or regulations.
f. EFFECT OF TERMINATION.
(i) Within thirty (30) calendar days after termination of this
Agreement, Distributor shall either deliver to BEA or destroy
all copies of the BEA Products and Documentation (except as
provided in Section 12(f)(ii)) and any other materials provided
by BEA to Distributor hereunder in its possession or under its
control, and shall furnish to BEA an affidavit signed by an
officer of Distributor certifying that, to the best of its
knowledge, such delivery or destruction has been fully effected.
(ii) Notwithstanding Section 12(f)(i) and provided that this
Agreement is not terminated by BEA pursuant to Section 12(a),
12(b) or 12(c) and that Distributor fulfills its obligations
specified in this Agreement with respect to such items,
Distributor may continue to use and retain a limited number of
copies of the BEA Products and Documentation to the extent, but
only to the extent, necessary to support BEA Products rightfully
distributed to End Users by Distributor prior to termination of
this Agreement.
(iii) Upon termination of this Agreement by BEA under Section
12(a), 12(b) or 12(c), the due dates of all outstanding invoices
to Distributor for BEA
_______________________________________________________________________________
Distribution Agmt. (4/16/96) 13 BEA CONFIDENTIAL
<PAGE>
Products will automatically be accelerated so that they become
due and payable on the effective date of termination, even if
longer terms had been provided previously. All orders or portions
of orders remaining unshipped as of the effective date of such
termination will automatically be canceled.
g. CONTINUING OBLIGATIONS.
(i) PAYMENT OF ACCRUED FEES. Within thirty (30) calendar
days of termination of this Agreement, Distributor shall pay to
BEA all sums then due and owing. Any other such sums shall
subsequently be promptly paid as they become due and owing.
(ii) CONTINUANCE OF SUBLICENSES. Notwithstanding the
termination of this Agreement, all End User sublicenses which
have been properly granted by Distributor and Distributors
pursuant to this Agreement prior to its termination shall
survive. Distributor shall cooperate with BEA to allow BEA to
take over all Distributor accounts that may wish to continue to
obtain BEA Products.
(iii) OTHER CONTINUING OBLIGATIONS. The respective
rights and obligations of BEA and Distributor under the
provisions of Sections 4(b)(ii), 4(d), 4(f), 5(a)(ii), 5(h), 6,
7, 8(b), 8(c), 8(d), 9, 10, 12(e), 12(f), 12(g) and 13 shall
survive any termination of this Agreement.
13. GENERAL PROVISIONS
a. FORCE MAJEURE. If either party is prevented from performing any
portion of the Agreement (except the payment of money) by causes
beyond its control, including, without limitation, labor disputes,
civil commotion, war, governmental regulations or controls, casualty,
inability to obtain materials or services or acts of God, such
defaulting party will be excused from performance for the period of
the delay and for a reasonable time thereafter.
b. GOVERNING LAW. This Agreement is entered into in the State of
California, U.S.A., and this Agreement shall be governed by and
construed in accordance with the laws of the State of California,
U.S.A., without reference to its conflicts of law provisions. Any
dispute regarding this Agreement shall be subject to the exclusive
jurisdiction of the California state courts in and for Santa Clara
County, California (or, if there is exclusive federal jurisdiction,
the United States District Court for the Northern District of
California), and the parties agree to submit to the personal and
exclusive jurisdiction and venue of these courts. This Agreement
will not be governed by the United Nations Convention of Contracts
for the International Sale of Goods, the application of which is
hereby expressly excluded.
c. WAIVER AND AMENDMENT. The waiver by either party of a breach of
or a default under any provision of this Agreement, shall not be
construed as a waiver of any subsequent breach of the same or any
other provision of the Agreement, nor shall any delay or omission on
the part of either party to exercise or avail itself of any right or
remedy that it has or may have hereunder operate as a waiver of any
right or remedy. No amendment or modification of any provision of
this Agreement shall be
_______________________________________________________________________________
Distribution Agmt. (4/16/96) 14 BEA CONFIDENTIAL
<PAGE>
effective unless in writing and signed by a duly authorized
signatory of BEA and Distributor.
d. ASSIGNMENT. BEA may assign its rights and obligations under
this Agreement. The Agreement is not assignable by Distributor nor
are the obligations imposed on Distributor delegable, in whole or in
part, without BEA's prior written consent. Notwithstanding, BEA will
not unreasonably withhold consent to an assignment of the Agreement
or any part of the Agreement to a parent, subsidiary or affiliate.
Any attempt to assign sublicense (except as expressly permitted
herein) or transfer any of the rights, duties or obligations under
this Agreement in derogation hereof without BEA's written consent
will be null and void.
e. ATTORNEYS' FEES. Each party agrees to pay the other's
reasonable attorneys' fees and costs of litigation if the original
party, for any cause whatsoever, brings suit against the other party
and the other party is finally adjudicated not to have liability.
f. NOTICE. Unless otherwise agreed to by the parties, all notices
required under this Agreement will be deemed effective when received
and made in writing by either (i) registered mail or certified mail,
return receipt requested, (ii) overnight mail or express courier, in
each case addressed and sent to the address indicated on the Cover
Sheet and to the attention of the party executing the Agreement or
that person's successor, or (iii) by telephone facsimile transfer
appropriately directed to the attention of the party executing the
Agreement or that person's successor.
g. SEVERABILITY. If the application of any provision or provisions
of this Agreement to any particular facts of circumstances shall be
held to be invalid or unenforceable by any court of competent
jurisdiction, then (a) the validity and enforceability of such
provision or provisions as applied to any other particular facts or
circumstances and the validity of other provisions of this Agreement
shall not in any way be affected or impaired thereby and (b) such
provision or provisions shall be reformed without further action by
the parties hereto to and only to the extent necessary to make such
provision or provisions valid and enforceable when applied to such
particular facts and circumstances.
h. RELATIONSHIP OF THE PARTIES. No agency, partnership, joint
venture, or employment is created as a result of this Agreement, and
neither Distributor nor its agents have any authority of any kind to
bind BEA in any respect whatsoever. Each party acknowledges that the
parties to this Agreement are independent contractors and that it
will not, except in accordance with the Agreement, represent itself
as an agent or legal representative of the other.
i. COMPLIANCE WITH LAWS. Distributor represents and warrants that
all consents of governmental officials necessary for this Agreement
to become effective have been obtained, or will be obtained, before
Distributor places any orders under this Agreement. Distributor will
comply, at its own expense, with all statutes, regulations, rules,
ordinances, and orders of any governmental body, department or agency
which apply to or result from Distributor's obligations under this
Agreement. Distributor agrees to not export BEA Products, directly
or indirectly, separately or as part of a system, without first
obtaining proper authority to do so from the appropriate governmental
agencies or entities, as may be required by law. In particular,
Distributor assures BEA that, absent any required prior authorization
_______________________________________________________________________________
Distribution Agmt. (4/16/96) 15 BEA CONFIDENTIAL
<PAGE>
from the Office of Export Licensing, U.S. Department of
Commerce, Distributor will not export or reexport (as defined in
Section 779 of the Export Administration Regulations, as amended
("Regulations")) the BEA Products, any technical data or other
confidential information, or direct product of any of the foregoing,
to any Group Q, S, W, Y, or Z country specified in Supplement No. 1
to Section 770 of the Regulations or such other countries as come
under restriction by action of the United States Government, or to
nationals from or residing in the foregoing countries, without first
obtaining permission from the appropriate United States Government
authorities. The countries subject to restriction by action of the
United States government are subject to change, and it is
Distributor's responsibility to comply with the United States
Government requirements as they may be amended from time to time.
j. GOVERNMENT RIGHTS. Distributor agrees to (i) identify the BEA
Products in all proposals and agreements with the United States
Government or any contractor for the United States Government; and
(ii) identify or mark the software products provided pursuant to any
agreement with the United States Government or any contractor for the
United States Government as necessary to obtain protection
substantially equivalent to that afforded commercial computer
software and related documentation developed at private expense and
provided with Restricted Rights as defined in DOD FAR Supplement
48 C.F.R. 252.227-7013(c)(1)(ii) in effect as of May 18, 1987 or any
successor regulation.
k. RECORDS EXAMINATIONS. Distributor agrees to allow BEA to
examine its records to determine compliance or noncompliance with the
Agreement. Any examination will be at the expense of BEA and will be
solely for the purpose of ensuring compliance with the Agreement.
Any examination will be conducted only by an authorized
representative of BEA, and will occur during regular business hours
at Distributor's offices and will not interfere unreasonably with
Distributor's business activities. Examinations will be made no more
frequently than quarterly, and BEA will give Distributor ten (10)
days or more prior written notice of the date of the examination of
the name of the BEA authorized representative who will be conducting
the examination. All information obtained by the BEA authorized
representative conducting the audit will be maintained confidential
by the representative. The examiner will give Distributor and BEA an
examination report containing only the information necessary to
indicate compliance or non-compliance with the Agreement. If the
examiner determines that Distributor is not in material compliance
with this Agreement, Distributor shall promptly remedy any such non
compliance and will bear the expenses of the audit.
l. EXHIBITS. The Exhibits to this Agreement are incorporated
herein by this reference.
m. ENGLISH. This Agreement is in the English language only, which
language shall be controlling in all respects, and all versions
hereof in any other language shall not be binding on the parties
hereto. All communications and notices to be made or given pursuant
to this Agreement shall be in the English language.
n. ENTIRE AGREEMENT. This Agreement, including the Exhibits
attached hereto, constitutes the entire agreement between the parties
concerning the subject matter hereof and supersedes all prior or
contemporaneous proposals or agreements whether
_______________________________________________________________________________
Distribution Agmt. (4/16/96) 16 BEA CONFIDENTIAL
<PAGE>
oral or written, and all communications between the parties
relating to the subject matter of this Agreement and all past courses
of dealing or industry custom. Unless otherwise expressly agreed in
writing by the parties, the terms and conditions of this Agreement
shall prevail, notwithstanding any variance with any purchase order
or other written instrument submitted by Distributor, whether or not
formally rejected by BEA. This Agreement will not be supplemented or
modified by any course of dealing in usage of trade.
_______________________________________________________________________________
Distribution Agmt. (4/16/96) 17 BEA CONFIDENTIAL
<PAGE>
EXHIBIT A
INVENTORY MANAGEMENT
BEA PRODUCTS AND DISCOUNTS
EXPIRATION DATE:____________________________________________
TERRITORY:__________________________________________________
ELIGIBLE BEA PRODUCTS:
Tuxedo Only
DISCOUNT:
VOLUME/SALES FORECAST (in $US):
For the period of_________ 1996 -_________, 1996 $______________
For the period of_________ 1996 -_________, 1996 $______________
For the period of_________ 1996 -_________, 1997 $______________
For the period of_________ 1997 -_________, 1997 $______________
- --------------------------------------------------------------------------------
Distribution Agmt. (4/16/96) 18 BEA CONFIDENTIAL
<PAGE>
EXHIBIT B
DISTRIBUTOR PRODUCTS
[Distributor to provide]
- --------------------------------------------------------------------------------
Distribution Agmt. (4/16/96) 19 BEA CONFIDENTIAL
<PAGE>
EXHIBIT C
DISTRIBUTOR BUSINESS PLAN
[Distributor to provide]
- --------------------------------------------------------------------------------
Distribution Agmt. (4/16/96) 20 BEA CONFIDENTIAL
<PAGE>
EXHIBIT B
JAPANESE TUXEDO AGREEMENT
Second Amendment 7
<PAGE>
Confidential - Execution Original
- --------------------------------------------------------------------------------
Japanese TUXEDO Agreement
This Japanese TUXEDO Agreement ("Agreement") is entered into as of August
1, 1996 ("Effective Date") among Novell, Inc. ("Novell"), Novell Japan Ltd., a
Japanese corporation ("Novell Japan"), BEA Systems Japan, Ltd., a Japanese
corporation ("BEA Japan"), and BEA Systems, Inc., a Delaware corporation
("BEA").
WHEREAS, Novell Japan's parent company, Novell, entered into a TUXEDO
License and Distribution Agreement with BEA, effective January 24,1996 (the
"Novell Agreement"), with the closing on February 23, 1996, under which, among
other terms, Novell granted to BEA the exclusive right to distribute TUXEDO
software throughout the world; and,
WHEREAS, the Novell Agreement contemplated that BEA would pursue this
agreement with Novell Japan regarding its TUXEDO Software related assets and the
Japanese localizations and translations thereof; and,
WHEREAS, the parties desire to effect the assignment to BEA Japan of the
TUXEDO Software agreements between Novell Japan and its TUXEDO Software
licensees; and,
WHEREAS, consistent with BEA's rights under the Novell Agreement, BEA and
BEA Japan wish to obtain exclusive rights to distribute TUXEDO Software in
Japan, and Novell and Novell Japan are willing to accept BEA's
desires under the terms and conditions set forth herein.
NOW THEREFORE, for mutual consideration that the parties acknowledge is
adequate and sufficient, it is agreed as follows:
1. DEFINITIONS. The following terms shall have the following definitions:
a. "Add-ons" shall mean any new feature enhancements or additions not
already present in the Core Code which exist external to the Core
Code, do not consist of Core Code and are not required for full
functionality of the Core Code.
b. "Assumed Contracts" means all existing licenses, service contracts
(including documentation), independent contractor agreements, and
other agreements between Novell Japan and another party relating the
TUXEDO Software, other than the TSDA.
c. "Core Code" shall mean the workstation (\WS) and server (\T) TUXEDO
Software Code as delivered by Novell to BEA pursuant to Section 15 of
the Novell Agreement.
d. "Derivative Work" shall mean a work which is based upon or
incorporates one or more preexisting works, such as a revision,
modification, translation, abridgement, condensation, expansion,
collection, compilation or any other form in which such preexisting
works may be recast, transformed or adapted, and which, if prepared
without the authorization of the owner of the preexisting works,
would constitute copyright infringement under U.S. copyright laws.
- --------------------------------------------------------------------------------
Japanese TUXEDO Agreement Novell Japan
SoftSolutions Document 4803 PAGE 1 October 25, 1996
<PAGE>
Confidential - Execution Original
- --------------------------------------------------------------------------------
e. "Transferred Assets" means certain items of equipment, furnishings and
other personal property previously used by Novell Japan in its TUXEDO
department, as listed in Exhibit A.
f. "TSDA" means the Territorial Software Distribution Agreement dated
February 21, 1986 and any related supplements of modifications
executed between Novell (successor in interest to USL) and Novell
Japan (successor in interest to USL Pacific).
g. "TUXEDO Software" means the TUXEDO Software as set forth in the
Section 2.26 of the Novell Agreement, including TUXEDO Software J, as
listed in Exhibit B.
h. "TUXEDO Software J" means the Japanese translations and localizations
of the TUXEDO Software.
2. EXCLUSIVE SUBLICENSE OF NOVELL JAPAN RIGHTS. Effective August 1, 1996,
Novell Japan exclusively sublicenses to BEA Japan all of Novell Japan's
rights relating to distribution and support of the TUXEDO Software that
arise out of the TSDA or out of Novell Japan's ownership of the TUXEDO
Software J, except for the right to distribute the NetWare version of
the TUXEDO Software in Japan. This license shall be exclusive only
during those periods in which BEA's license under the Novell Agreement
is exclusive. Novell Japan shall retain all right, title and interest
in and to the TUXEDO Software J, including all intellectual property rights
thereto, subject to the rights and licenses granted to BEA Japan
hereunder. Novell Japan shall also hold, retain or be granted title to
all Derivative Works of TUXEDO Software J created by either BEA Japan
or Novell Japan prior to BEA converting to a perpetual license under
the Novell Agreement, other than Derivative Works created by BEA Japan
that are Add-ons. Derivative Works of the TUXEDO Software other than
TUXEDO Software J shall be governed by the Novell Agreement.
3. TUXEDO SOFTWARE DISTRIBUTION AND SUPPORT IN JAPAN. Effective nunc pro
tunc February 23, 1996, BEA consents to Novell Japan continuing to
carry out its normal business activities relating to the distribution
and support of the TUXEDO Software in Japan under the TSDA during the
period from February 23, 1996 through July 31, 1996. After August 1,
1996, Novell Japan will cease all such activities, and will not
distribute or support the TUXEDO Software in Japan, except to the
extent that Novell Japan is licensed by Novell to do so with respect to
the NetWare version of the TUXEDO Software, or to the extent necessary
for Novell Japan to major the TUXEDO business in implementing the
transfer of the business to BEA Japan.
4. PAYMENTS TO BEA. Pursuant to the terms and conditions of the Second
Amendment to the TUXEDO License and Distribution Agreement, Novell shall
compensate BEA for Novell's and Novell Japan's retention of the amounts
relating to the distribution or support of the TUXEDO Software under
the TSDA from February 23, 1996 through July, 31, 1996 ("Interim
Revenue"). The Interim Revenue shall not extend to: (a) any amounts
actually paid by Novell Japan to Novell prior to February 23, 1996, or
(b) any amounts that Novell can show were properly recognized as
revenue by Novell prior to February 23, 1996; and, (c) any amounts
properly recognized as revenue by Novell Japan prior to February 23,
1996. Novell Japan has paid Novell thirty-five percent (35%) of the
net revenue of the Interim Revenue to Novell, and has no further
obligation with respect to the Interim Revenue to Novell, BEA, or BEA
Japan.
5. ASSIGNMENT OF THE ASSUMED CONTRACTS.
a. Effective August 1, 1996, Novell Japan assigns to BEA Japan, and BEA
Japan assumes, all rights and obligations relating to the TUXEDO
Software that Novell Japan has under the Assumed Contracts.
- --------------------------------------------------------------------------------
Japanese TUXEDO Agreement Novell Japan
SoftSolutions Document 4803 PAGE 2 October 25, 1996
<PAGE>
Confidential - Execution Original
- --------------------------------------------------------------------------------
Novell Japan warrants and represents that it has provided copies of
all the Assumed Contracts to BEA Japan.
b. BEA Japan shall be entitled to all royalties and other payments under
the Assumed Contracts, or otherwise relating to the distribution or
support of the TUXEDO Software in Japan, that have not been
recognized as revenue or collected by Novell Japan prior to August 1,
1996. Novell Japan shall:
i. immediately inform any customers to whom invoices have been sent
after August 1, 1996 that they must remit payments to BEA Japan;
ii. immediately pay to BEA Japan any payments relating to the TUXEDO
Software that Novell Japan may receive after August 1, 1996 to
the extent they were not properly recognized as revenue by
Novell Japan prior to August 1, 1996; and,
iii. otherwise reasonably assist BEA Japan in promptly collecting all
payments relating to the TUXEDO Software.
c. As soon as reasonably practical, but in no event later than November
8, 1996, Novell Japan and BEA Japan shall jointly send to the TUXEDO
Software customers in Japan notice letters in the form of Exhibit C
attached hereto so that the assignment will be perfected.
d. At the reasonable request of BEA Japan, Novell Japan will participate
in visits and other contacts to existing TUXEDO Software customers in
Japan, and send out an assignment agreement, provide billing and
support records, and otherwise reasonably assist BEA Japan in
assuming responsibility for those customers. BEA Japan will make
commercially reasonable efforts to continue the development,
marketing and sales efforts to continue the development, marketing and
sales efforts of the TUXEDO Software in Japan consistent with Section
8 of the Novell Agreement.
6. CONTINGENT ASSIGNMENT AND GRANTBACK LICENSE OF INTELLECTUAL PROPERTY
RIGHTS.
a. Contingent upon BEA converting its license rights to be perpetual
pursuant to Section 14.2 of the Novell Agreement, as of the date of
such conversion:
i. Novell Japan transfers to BEA Japan all right, title and interest
(including the rights mentioned in Articles 27 and 28 of the
Japanese Copyright Law) in and to the TUXEDO Software J and the
Derivative Works of the TUXEDO Software J that are owned by
Novell Japan under Section 2 above, subject to a perpetual,
royalty-free, irrevocable, worldwide source code and patent
license back to Novell Japan to use and sublicense the creations
and patents for the permitted purposes described in Section 5 of
the Novell Agreement;
ii. BEA Japan shall own all right, title, and interest in and to all
future Derivative Works of the TUXEDO Software J that will be
created during the term of the perpetual license;
iii. Derivative Works of the TUXEDO Software other than TUXEDO
Software J shall continue to be governed by the Novell
Agreement; and,
- --------------------------------------------------------------------------------
Japanese TUXEDO Agreement Novell Japan
SoftSolutions Document 4803 PAGE 3 October 25, 1996
<PAGE>
Confidential - Execution Original
- --------------------------------------------------------------------------------
iv. Novell Japan transfers to BEA Japan any of its right, title, and
interest in to the TUXEDO mark and associated goodwill.
Rights granted pursuant to this Section are subject to rights granted
by Novell Japan to third parties during any period during which BEA
Japan's license was non-exclusive as contemplated by Section 8.2 of
the Novell Agreement and Section 2 above.
b. BEA Japan hereby grants to Novell Japan a non-exclusive, non-
transferable, royalty-free license under the intellectual property
rights in the Derivative Works to the TUXEDO Software J, other than
Derivative Works relating solely to Add-ons, to distribute (to the
extent that Novell Japan is licensed to do so by Novell) the NetWare
version of the TUXEDO Software in Japan.
7. INDEMNIFICATION BY BEA JAPAN. BEA Japan shall indemnify, defend and
hold Novell Japan harmless from any and all damages, liabilities, costs
and expenses incurred by Novell Japan as a result of any claims,
judgments, or adjudications arising after July 31, 1996 and related to
the Assumed Contracts.
8. INDEMNIFICATION BY NOVELL JAPAN. Novell Japan shall indemnify,
defend and hold BEA Japan harmless from any and all damages,
liabilities, costs and expenses incurred by BEA Japan as a result of
any claims, judgments, or adjudications arising prior to August 1,
1996 and related to the Transferred Assets or Assumed Contracts.
9. HIRING OF NOVELL JAPAN EMPLOYEES. Novell Japan agrees that BEA or BEA
Japan may freely offer to hire any Novell Japan employees whose duties
relate principally to the marketing, maintenance, licensing or support
of TUXEDO Software. If any such Novell Japan employee notifies Novell
Japan that he or she wishes to transfer to BEA, Novell Japan will
request in writing that the employee resign for Novell Japan's reasons,
and Novell Japan will make all other commercially reasonably efforts to
maximize the pension or other benefits that may be available to the
employee.
10. LEASE AND TRANSFER OF ASSETS. Until the date of BEA's conversion of the
licenses under the Novell Agreement to perpetual licenses ("Conversion
Date"), and in consideration of the payments and other consideration
provided to Novell Japan under this Agreement, Novell Japan will lease
to BEA Japan the Transferred Assets free of any additional charge.
Novell Japan has delivered the Transferred Assets to BEA Japan. BEA
Japan assumes all risk and responsibility for the Transferred Assets
from the date of their delivery to BEA Japan through the Conversion
Date, and all right, title, and interest to the Assets shall remain
with Novell until the Conversion Date. Upon the Conversion Date,
Novell Japan will transfer to BEA Japan all right, title, and interest
in the Assets. Novell Japan will execute a bill of sale, and provide
any other cooperation, reasonably necessary to perfect or otherwise
assist in the transfer.
11. PAYMENTS.
a. In consideration for the rights and assignment set forth in this
Agreement, BEA Japan shall pay directly to Novell Japan a total of
US$5.8 million, plus consumption tax thereon, according to the
schedule set forth below. If making such payments results in a tax
or other cost to BEA or BEA Japan, the parties agree to negotiate in
good faith an arrangement satisfactory to all parties to account for
those costs, including making efforts to lawfully minimize or avoid
such taxes or other costs.
For August 1, 1996 to March 30, 1997: US$0.3 million
- --------------------------------------------------------------------------------
Japanese TUXEDO Agreement Novell Japan
SoftSolutions Document 4803 PAGE 4 October 25, 1996
<PAGE>
Confidential - Execution Original
- --------------------------------------------------------------------------------
For March 31, 1997 to March 30, 1998: US$2.2 million (US$ 0.55
million per quarter)
For March 31, 1998 to March 30, 1999: US$3.3 million (US$ 0.82
million per quarter)
b. All payments under Section 1.a (including the consumption tax) may
be deducted from and set off against any payments made by BEA to
Novell under the Novell Agreement.
c. The amounts of Section 1.a (including the consumption tax) shall be
payable to Novell Japan in Japanese yen on a quarterly basis, with
the first payment payable on December 31, 1996 and subsequent
payments payable on the last business day of each calendar quarter
thereafter. Such amounts shall be converted to Japanese yen based on
the closing TTS rate quoted by Sumitomo Bank on the last business day
of each calendar quarter and shall be due within forty-five (45) days
after such last business day of the calendar quarter.
d. BEA Japan shall have the right to make prepayment of any of the
payments specified in this Section 11, due within the following
twelve months, less a discount rate equal to an annual rate of 8%.
In the case of prepayment which is forty-five (45) days or more
earlier than the due date, the conversion rate for the previous
payment shall be used to determine the payment amount.
e. The guaranty of Warburg, Pincus pursuant to the Novell Agreement
shall apply to these payments of Section 11.a (including the
consumption tax).
12. TERMINATION. In the event that BEA opts to terminate the Novell
Agreement, or in the event the Novell Agreement is properly terminated
by Novell pursuant to Section 23.1 of the Novell Agreement, or in the
event BEA Japan is in default of this Agreement under the events of
default set forth in Section 23.1 of the Novell Agreement modified to
apply to this Agreement:
a. The exclusive sublicense from Novell Japan to BEA Japan under Section
2 shall terminate.
b. BEA Japan shall transfer and reassign, or return in the event of
termination prior to the Conversion Date, to Novell Japan the
Transferred Assets in exchange for reasonable consideration from
Novell Japan, and shall reassign to Novell Japan the Assumed
Contracts, and all BEA Japan contracts based on rights obtained under
the Agreement.
c. Novell Japan shall be free to offer employment to or to hire any BEA
Japan employee whose duties relate principally to the marketing,
maintenance, licensing or support of TUXEDO Software.
d. At the reasonable request of Novell Japan, BEA Japan will participate
in visits and other contacts to existing TUXEDO Software customers in
Japan, and send out an assignment agreement, provide billing and
support records, and otherwise reasonably assist Novell Japan in
assuming responsibility for those customers.
e. Termination of this Agreement shall not affect any of BEA Japan's pre-
termination obligations to BEA Japan customers. Notwithstanding any
expiration or termination of this Agreement, unless this Agreement is
terminated due to a breach by BEA of BEA Japan, (i) BEA Japan and its
Subsidiaries may distribute a commercially reasonable number of
copies of TUXEDO Software in stock or in order to fill orders placed
by end users or resellers prior to the expiration or termination of
this
- --------------------------------------------------------------------------------
Japanese TUXEDO Agreement Novell Japan
SoftSolutions Document 4803 PAGE 5 October 25, 1996
<PAGE>
Confidential - Execution Original
- --------------------------------------------------------------------------------
Agreement during the subsequent ninety (90) days after expiration,
(ii) those copies of TUXEDO Software in possession of resellers may
be distributed in accordance with the terms and conditions of this
Agreement, and (iii) sublicenses granted pursuant to this Agreement
shall not be revoked by the expiration or termination of this
Agreement.
13. MISCELLANEOUS. This Agreement shall be governed by Utah law. This
Agreement constitutes the entire understanding between the parties with
respect to the subject matter hereof, and may only be modified in a
writing signed by all parties. In case of any conflicts between this
Agreement and any other contracts of the parties relating to the
subject matter hereof, this Agreement shall govern and prevail. This
Agreement may be executed in any number of counterparts, all of which
shall constitute together one and the same agreement.
Each of the undersigned represents and warrants that he or she is duly
authorized to sign this Agreement on behalf of the party he or she represents.
Each party has read, understands and agrees to the terms and conditions of this
Agreement.
NOVELL, INC. BEA SYSTEMS, INC.
Signature: /s/ Novell, Inc. Signature: /s/ BEA Systems, Inc.
Name: Name:
Title: Title:
Date: Date
NOVELL JAPAN, LTD. BEA SYSTEMS JAPAN, LTD.
Signature: Signature:
Name: Name:
Title: Title:
Date: Date:
- --------------------------------------------------------------------------------
Japanese TUXEDO Agreement Novell Japan
SoftSolutions Document 4803 PAGE 6 October 25, 1996
<PAGE>
Confidential - Execution Original
- --------------------------------------------------------------------------------
EXHIBIT A
LIST OF TRANSFERRED ASSETS
- --------------------------------------------------------------------------------
Japanese TUXEDO Agreement Novell Japan
Exhibit A, List of Transferred Assets PAGE A-1 October 24, 1996
<PAGE>
EXHIBIT A
<TABLE>
<CAPTION>
Control No. Product Model Serial No. Maker
- ----------- ------- ----- ---------- -----
<S> <C> <C> <C> <C>
000376 CRT 1024 Color Monitor 31042601J788 Compaq
000424 Base PS/V 2405-YAW 97-25475 IBM
000425 15" CRT F347 28935063-JAM Nanao
001056 Printer Microline 81PS11+F 211A2000852 Oki
001061 CRT 8515 A01 23TY362 IBM
001715 Base Boyager P100EISA 057634 Caliber
001716 Display 761 M51L0014426 Acer
001793 CRT 1024 Color Monitor 33345350L196 Compaq
001842 Base DeskPro XE560 model 1525W 6406HFC30127 Compaq
001959 Base Silicon Valley Computer 586 105310 Silicon Valley
001960 Base 4DX2-66E 1407461 Gateway
001962 Display Silicon Valley ADKKU4109387 Silicon Valley
001963 Base Silicon Valley 105302 Silicon Valley
001964 Base Silicon Valley 105311 Silicon Valley
001966 CD-ROM MultiSpin 3X 3Z12825GB NEC
001973 External Tape Dr NWP-546 10688 Sony
001976 Base US Model 110 336M0706 Unisys
001977 Display GDM-1962B 3651160-01 Unisys
001978 Display CRT329D 898612049643 AT&T
001980 Display MF5317J 3002311 Iiyama Denki
001982 CD-ROM 329U0932 Unisys
001983 Base T4400SXC/120 08219701 Toshiba
001995 Printer NTXJ Laser Writer2 M6013J CA025S5F%M6000 Apple
002003 Display MF-5317J 3002303 Iiyama Denki
002061 Base T4400SXC/120 08217815 Toshiba
002073 Base DeskPro 5/66M 6350HFB40307 Compaq
002145 Note PC Power Macintosh 8100/80AV SG4293WN1H0 Apple
002185 Display MX17S MH1353005188 MAG
002253 Note PC J3100SS0002 07026629 Toshiba
002898 Base Winnote VL9200 50406756 Burosaido
002901 Router NetBlazer PN2 355180029 Telebit
003276 Base Caliber Pentium P-100 CCC5 118262 Caliber
003277 Display 15" monitor 5305V000101667 Caliber
003290 Base Caliber Pentium P-100 CCC5 118263 Caliber
003291 Display 15" monitor 5305V000101545 Caliber
003325 Base HIQ Dual P/100 9506173 Caliber
003326 Display 15" monitor T006693 Hitachi
003327 Base Dual P5 machine CCC5054719 Caliber
003328 Display 15" monitor M56L0052287 Acer
003329 Base Dual P5 machine CC5054718 Caliber
003330 Display 15" monitor M56L0052298 Acer
003331 Base Single P5 machine CCC5054720 Caliber
003332 Note PC Twinhead Note 3430 E0418505 Caliber
003365 Base SPARCstation S5FX1-110-32-P9 603M1167 Sun
003366 Display Sun Graphical Display A539F00410 Sun
003367 4mm Tape Drive Sun X6252A 552G5275 Sun
Page 1
<PAGE>
<CAPTION>
Control No. Product Model Serial No. Maker
- ----------- ------- ----- ---------- -----
<S> <C> <C> <C> <C>
003409 Display View56L M56L0052254C1 Acer
003437 Base Voyager Pentium 100 CCC6 028242 Caliber
003481 Display MF-8617ED 5006002 Iiyama Denki
003482 Display MF-8617ED 5006040 Iiyama Denki
003483 Display MF-8617ED 5005996 Iiyama Denki
003484 Display MF-8617ED 5006035 Iiyama Denki
003485 Display MF-8617ED 5006014 Iiyama Denki
003486 Display MF-8617ED 5005994 Iiyama Denki
003496 Base PC-9821XA10/K12 5Y334622A NEC
003497 Base PC-9821XA10/K12 5Y334732A NEC
003398 Base DeskPro 5100/5 7551HNX80287 Compaq
003499 Base DeskPro 5100/5 7551HNX80039 Compaq
003500 Base 2411-P95 97-83840 IBM
003501 Base 2411-P31 97-71105 IBM
003609 Display 470A 32305277R884 Compaq
002164 Display CrystalScan MA9723108 Gateway 2000
</TABLE>
Page 2
<PAGE>
Confidential - Execution Original
- --------------------------------------------------------------------------------
EXHIBIT B
TUXEDO SOFTWARE
TUXEDO/T
TUXEDO/T-4.0
TUXEDO/T-4.1
TUXEDO/T-4.1-DRP
TUXEDO Database Manager, Release 4.0
TUXEDO Database Manager, Release 4.1
TUXEDO Database Manager, Release 4.1 Documentation Reproduction Provision
TUXEDO Database Manager, Release 4.2
TUXEDO Enterprise Transaction Processing System Release 4.2 Host Extension
TUXEDO Enterprise Transaction Processing System Release 4.2 Workstation
Extension
TUXEDO Enterprise Transaction Processing System Release 4.2 Add-On Package
TUXEDO Enterprise Transaction Processing System Release 4.2 Add-On Package
Documentation Reproduction Provision
TUXEDO Enterprise Transaction Processing System Release 4.2 Database Manager
TUXEDO Enterprise Transaction Processing System Release 4.2 Japanese Features
of Transaction Monitor
TUXEDO Enterprise Transaction Processing Span Release 4.2 Japanese Features of
Workstation Extension
TUXEDO Enterprise Transaction Processing System Release 4.2 Regression Package
TUXEDO Enterprise Transaction Processing System Release 4.2 Transaction Monitor
TUXEDO Enterprise Transaction Processing System Release 4.2 Transaction Monitor
Documentation Reproduction Provision
TUXEDO Enterprise Transaction Processing System Release 4.2 Transaction Monitor
Japanese Documentation Reproduction Provision
TUXEDO Enterprise Transaction Processing System Release 4.2.1 Transaction
Monitor
TUXEDO Enterprise Transaction Processing System Release 4.2.1 Add-On Package
TUXEDO Enterprise Transaction Processing System Release 4.2.1 Workstation
Extension
TUXEDO Enterprise Transaction Processing System Release 4.2.1 Transaction
Monitor Japanese Features
TUXEDO Enterprise Transaction Processing System Release 4.2.1 Add-On Package
Japanese Features
TUXEDO Enterprise Transaction Processing System Release 4.2.1 Workstation
Extension Japanese Features
TUXEDO Enterprise Transaction Processing System Release 4.2.1 Transaction
Monitor Japanese Documentation Reproduction Provision
TUXEDO Enterprise Transaction Processing System Release 4.2.2 Transaction
Monitor
TUXEDO Enterprise Transaction Processing System Release 4.2.2 Add-On Package
TUXEDO Enterprise Transaction Processing System Release 4.2.2 Workstation
Extension
TUXEDO Enterprise Transaction Processing System Release 4.2.2 Transaction
Monitor Japanese Features
TUXEDO Enterprise Transaction Processing System Release 4.2.2 Add-On Package
Japanese Features
TUXEDO Enterprise Transaction Processing System Release 4.2.2 Workstation
Extension Japanese Features
TUXEDO Enterprise Transaction Processing System Release 4.2.2 Transaction
Monitor Japanese Documentation Reproduction Provision
Software Subscription Agreement
TUXEDO Enterprise Transaction Processing System Release 5
TUXEDO Enterprise Transaction Processing System Release 5 Japanese Features
TUXEDO Enterprise Transaction Processing System Release 5 Transaction Monitor
Documentation Reproduction Provision
TUXEDO Golden Master Agreement
TUXEDO Branding Program
TUXEDO Enterprise Transaction Processing System Training Distributorship
Agreement
Other TUXEDO Products
- --------------------------------------------------------------------------------
Japanese TUXEDO Agreement Novell Japan
Exhibit B, TUXEDO Software PAGE B-1 October 24, 1996
<PAGE>
Confidential - Execution Original
- --------------------------------------------------------------------------------
EXHIBIT C
FORM OF NOTICE LETTER
- --------------------------------------------------------------------------------
Japanese TUXEDO Agreement Novell Japan
Exhibit C, Form of Notice Letter PAGE C-1 October 24, 1996
<PAGE>
Confidential - Execution Original
- --------------------------------------------------------------------------------
[DATE]
Company Name
Company Address
Dear Licensee:
Novell, Inc. ("NOVELL"), a parent company of Novell Japan, Ltd. ("NOVELL KK"),
has exclusively licensed its TUXEDO software to BEA Systems, Inc. ("BEA").
Attachment A to this letter lists those Licensed Products that have been
licensed in source code form to Japanese customers by NOVELL KK. Among the
products included in Attachment A are the specific products (collectively
"Licensed Products") for which Company Name ("Licensee") is currently
sublicensed by NOVELL KK under a Software Agreement and, in some cases, a
Sublicensing Agreement and/or Software Services Agreement, as such agreements
may have been amended and/or supplemented from time to time (collectively
"Customer Agreements").
In connection with such licenses of the TUXEDO software, NOVELL KK has
exclusively sublicensed to BEA Systems Japan, Ltd. ("BEA KK"), a Japanese
corporation and a wholly owned subsidiary of BEA, certain of NOVELL KK's
licensing activities with respect to Japanese customers. Accordingly, upon
NOVELL KK's receipt of Licensee's written concurrence, the parties hereto agree
as follows:
(1) As of August 1, 1996, NOVELL KK hereby assigns to BEA KK all of its rights
under Customer Agreements with respect to the Licensed Products. BEA KK hereby
assumes all obligations of NOVELL KK under the Customer Agreements with respect
to the Licensed Products on the same day.
(2) Licensee hereby consents to the assignment and assumption mentioned in
Paragraph (1) hereof and releases NOVELL KK from any obligations arising under
the Customer Agreements with respect to the Licensed Products which are
required to be performed on and after August 1, 1996.
(3) The parties hereto confirm that Licensee's rights under the Customer
Agreements with respect to the Licensed Products shall continue until the date
when all royalties which have been pre-paid by Licensee and which are
creditable with respect to the Licensed Products pursuant to the Customer
Agreements have been credited.
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Japanese TUXEDO Agreement Novell Japan
Exhibit C, Form of Notice Letter PAGE C-2 October 24, 1996
<PAGE>
Confidential - Execution Original
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(4) For all payments on and after August 1, 1996, Licensee agrees to send all
required payments for the Licensed Products under such Customer Agreements
together with any applicable fee payments by bank wire transfer to:
Bank of Tokyo-Mitsubishi, Ltd.
Minato-mirai Branch
Account of BEA Systems Japan, Ltd.
A/C No: 0114243
2-1, Minato-mirai 2-chome, Nishi-ku
Yokohama 220-81 Japan
Tel: (045) 224-1211 Fax: (045) 224-1215
(5) Licensee agrees to send any correspondence relating to the Licensed
Products and BEA KK Products to BEA KK at the following address:
BEA Systems Japan, Ltd.
The Landmark Tower of Yokohama Bldg 3Oth Fl.
2-2-1-1, Minatomirai, Nishi-ku,
Yokohama 220-81 Japan
Tel: (045) 224-1250 Fax: (045) 224-1251
[SIGNATURE BY NOVELL KK AND BEA KK]
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Japanese TUXEDO Agreement Novell Japan
Exhibit C, Form of Notice Letter PAGE C-3 October 24, 1996
<PAGE>
Confidential treatment has been
requested regarding the sections
indicated by [***].
The omitted information
has been filed separately
with the Securities and
Exchange Commission.
MIDDLEWARE ACQUISITION AND LICENSE AGREEMENT
BY AND BETWEEN
DIGITAL EQUIPMENT CORPORATION
AND BEA SYSTEMS, INC.
This Middleware License and Acquisition Agreement (the "Agreement") is
entered into and effective as of this 31st day of January, 1997 (the "Execution
Date"), by and between Digital Equipment Corporation, a Massachusetts
corporation with a place of business at 129 Parker Street, Maynard,
Massachusetts 01754 ("Digital"), and BEA Systems, Inc., a Delaware corporation
with a place of business at 385 Moffett Park Drive, Suite 105, Sunnyvale,
California 94089-1208 ("BEA").
1. STATEMENT OF PURPOSE
1.1. Digital desires to sell or license to BEA, and BEA desires to
purchase or license form Digital, the Middleware Assets through
the licenses and transfers set forth herein; and
1.2. Digital and BEA each desires to enter into the Distribution
Agreement and the Consulting Services Agreement in connection
with such licenses and transfers;
1.3. NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants, agreements and conditions
set forth in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, BEA and Digital agree as follows:
2. DEFINITIONS
2.1. "ASSUMED CONTRACTS" means the contracts set forth on Schedule A
hereto.
2.2. "CLOSING" means the closing of the transactions contemplated by
this Agreement.
2.3. "CLOSING DATE" means, unless otherwise agreed by the parties,
March 4, 1997, or, if the conditions to Closing have not been met
as of such date, then on the first Friday after they are met, but
in any event no later than April 30, 1997.
2.4. "CODE" means computer programming code, including the Object Code
and Source Code of the Software in the form existing as of the
Closing Date.
2.5. "CONFIDENTIAL INFORMATION" has the meaning set forth in Section 8
hereof.
2.6. "CONSULTING SERVICES AGREEMENT" means that certain Consulting
Services Agreement by and between Digital and BEA deemed to be
executed as of January 31, 1997, substantially in the form of
Exhibit I, attached hereto and made a part hereof.
2.7. "COPYRIGHTS" means all registered and unregistered copyrights to
the Software and Documentation and all applications for
registration thereof.
2.8. "CUSTOMER AGREEMENTS" means any and all licenses, leases,
distribution and maintenance agreements which are in effect on
the Execution Date whereby Digital
<PAGE>
has authorized any third party to use or distribute any of the
Software as of the Closing Date.
2.9. "DESKTOP" means the product currently in development known as the
OBB Desktop Connection, as more fully described on Schedule B
attached hereto and made a part hereof.
2.10. "DISTRIBUTION AGREEMENT" means that certain Distribution
Agreement by and between Digital and BEA deemed to be executed as
of January 31, 1997 substantially in the form of Exhibit II,
attached hereto and made a part hereof.
2.11. "DMQ" means the product known as the DECmessageQ, as more fully
described on Schedule B, attached hereto and made a part hereof.
2.12. "DOCUMENTATION" means all existing documentation for the
Software, including without limitation any end user manuals,
product specifications, diagrams, algorithms, other design
documentation, training manuals, bug lists and any electronic
machine-readable versions of the same, and a summary of Digital's
current promotional activity with respect to the Software, any
and all Software-related answer books or other records of
customer service issues and/or responses, and any and all notes,
plans and other documentation describing problems, proposed and
implemented solutions, future directions, or other matters
related to the Software.
2.13. "FIELD" means transaction monitors, message oriented middleware,
object request brokers, object transaction monitors, and legacy
connectivity products and middleware extensions thereof.
2.14. "HSR ACT" means the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended.
2.15. "INCORPORATED AGREEMENTS" means the Agreements to be executed and
delivered at the Closing, the forms of which are attached hereto
as EXHIBIT I-V.
2.16. "INVENTORY" means all raw materials for, and all finished units
of, the Software (excluding the Wrapper) in Digital's possession
or control on the Closing Date.
2.17. "MIDDLEWARE ASSETS" means the following:
2.17.1 A copy of the Source Code and a copy of the Object Code
(in all existing forms) for any and all existing
versions of the DMQ, OBB, Desktop products, and the
Wrapper product in development, for any operating
system, including any and all foreign language versions
of the same, whether now in existence or in the
development stage.
-2-
<PAGE>
2.17.2. A copy of the current version of the Documentation and
the User List.
2.17.3. The Inventory, the Assumed Contracts, the Transferred
Computers, the Patents and the Trademarks.
2.17.4. All goodwill associated with the Middleware Assets
except such goodwill as is associated solely with the
Digital and DEC names, logos and prefixes.
2.18. "OBB" means the product known as the Digital ObjectBroker, as
more fully described on Schedule B, attached hereto and made a
part hereof.
2.19. "OBJECT CODE" means Code that loads and executes without further
processing by a software compiler or linker, or that results when
Source Code is processed by a software compiler.
2.20. "PATENTS" means all patents and applications for patents which
are set forth on Schedule C, attached hereto and made a part
hereof. The term Patents includes all divisions, reissues,
continuations, continuations-in-part, re-examinations, and
extensions thereof and corresponding foreign patents and patent
applications and all causes of action relating hereto.
2.21. "PROPRIETARY RIGHTS" means the Trademarks, the Patents, the
Copyrights and all inventions, know-how, trade secrets,
proprietary processes, formulae, customer lists, business
information, and other intellectual and industrial property
rights in and to the Software and the Documentation.
2.22. "REGISTRATIONS" has that meaning set forth in Section 12.9.2
hereof.
2.23. "RETAINED ASSETS" shall mean the Wrapper Code, the Wrapper
Documentation and cash and accounts receivable of Digital from
the sale, licensing or other distribution of the Software which
accrue prior to and including the Closing Date.
2.24. "SOFTWARE" means all Code for DMQ, OBB, Desktop, and Wrapper.
2.25. "SOURCE CODE" means Code in human-readable form and related
system documentation, including all comments and procedural
language.
2.26. "SUBSIDIARY" means a corporation, company or other entity (i)
more than fifty percent (50%) of whose outstanding shares or
securities (representing the right to vote for the election of
directors or other managing authority) are, or (ii) which does
not have outstanding shares or securities, as may be the case in
partnership, joint venture, or unincorporated association, but
more than fifty percent (50%) of whose ownership interest
representing the right to make the decisions for such
corporation, company or other entity is, now or hereafter, owned
or controlled, directly or indirectly, by a party hereto, but
such corporation, company or other entity shall be deemed to be a
Subsidiary only so long as such ownership or control exists. By
-3-
<PAGE>
way of example and not limitation, BEA International, which is
currently wholly owned by BEA, is currently a Subsidiary of BEA.
2.27. "TRADEMARKS" means all trademarks and all registrations and
applications for registration thereof which are set forth on
Schedule C.
2.28. "TRANSFERRED COMPUTERS" all of the dedicated desktop computers
and servers and other equipment which are used by or necessary to
the duties of the Transferred Employees in connection with the
Middleware Assets, as set forth on Schedule D, attached hereto
and made a part hereof.
2.29. "TRANSFERRED EMPLOYEES" has that meaning set forth in Section 10
hereof.
2.30. "USER LIST" means a copy of the current Digital Reporting Center
list of Software licensees, which list is not intended to be an
exhaustive list of such licensees.
2.31. "WRAPPER" means the product in development known as the R/3 BB
Wrapper, as more fully described on Schedule B, attached hereto
and made a part hereof.
3. CLOSING, CONDITION TO CLOSING AND DELIVERIES
3.1. CLOSING. The Closing shall be held on the Closing Date, at a
mutually agreed upon time and place.
3.2. CONDITION TO CLOSING. The obligations of Digital and BEA to
consummate the transaction contemplated herein and to proceed
with the Closing are subject to the satisfaction at or prior to
the Closing, of the following condition, which may only be waived
at or prior to the Closing in a written agreement executed by
both parties:
Any waiting periods applicable to the transactions contemplated
by this Agreement under applicable United States and foreign
antitrust or trade regulation laws and regulations, including,
without limitation, under the HSR Act, shall have expired or been
earlier terminated, and all governmental consents, authorizations
or approvals required in connection with the transactions and
their consummation contemplated by this Agreement shall have been
obtained or given. Without limiting the foregoing, each of
Digital, BEA and any other person (as defined in the HSR Act and
the rules and regulations thereunder) required in connection with
the transactions contemplated hereby to file a Notification and
Report Form for Certain Mergers with the Antitrust Division of
the Federal Trade Commission ("FTC") pursuant to the HSR Act
shall have made such filing and the applicable waiting periods
with respect to such filing (including any extension thereof by
reason of a request for additional information) shall have
expired or have been terminated.
4
<PAGE>
3.3. OBLIGATIONS OF DIGITAL PRIOR TO CLOSING
3.3.1. All corporate and other proceedings required to be
taken by Digital in connection with the transactions
contemplated hereby shall have been taken and shall be
reasonably satisfactory in form and substance to BEA.
3.3.2. Digital shall have delivered, or caused to be
delivered, to BEA, the following:
a) a certificate of an appropriate officer of
Digital authorizing the execution of this
Agreement and the consummation of the
transactions contemplated hereby;
b) the Middleware Assets;
c) a duly executed Distribution Agreement in
substantially the form of EXHIBIT II attached
hereto;
d) a duly executed Consulting Agreement in
substantially the form of EXHIBIT I attached
hereto;
e) a duly executed Bill of Sale in substantially
the form of Exhibit III attached hereto;
f) a duly executed Assignment of Trademarks and
Patents substantially in the form of EXHIBIT
IV hereto; and
g) all other consents, instruments, schedules,
documents and exhibits as Digital may be
required by this Agreement to deliver to BEA
at or before the Closing, or as are
reasonably requested by BEA in connection
with the transactions contemplated hereby.
3.3.3. Digital shall have performed its obligations under this
Agreement required to be performed by it at or prior to
the Closing pursuant to the terms hereof.
3.3.4. The representations and warranties of Digital contained
in this Agreement shall be true, complete and correct
in all material respects as of the Closing.
3.4. OBLIGATIONS OF BEA PRIOR TO CLOSING
3.4.1. All corporate and other proceedings required to be
taken by BEA in connection with the transactions
contemplated hereby shall have been
5
<PAGE>
taken and shall be reasonably satisfactory in form and
substance to Digital.
3.4.2. BEA shall have delivered, or cause to be delivered, to
Digital the following:
a) a certificate of an appropriate officer of
BEA authorizing the execution of this
Agreement and the consummation of the
transactions contemplated hereby;
b) a duly executed Promissory Note substantially
in the form of EXHIBIT V hereto;
c) a duly executed Distribution Agreement, in
substantially the form of EXHIBIT II attached
hereto;
d) a duly executed consulting Agreement in
substantially the form of EXHIBIT I attached
hereto;
e) all other documents as BEA may be required by
this Agreement to deliver to Digital at or
before the Closing, or as are reasonable
requested by Digital in connection with the
transactions contemplated hereby.
3.4.3. BEA shall have performed its obligations under this
Agreement required to be performed by it at or prior to
the Closing pursuant to the terms hereof.
3.4.4. The representations and warranties of BEA contained in
this Agreement shall be true, complete and correct in
all material respects as of the Closing.
3.5. EFFECTIVE CLOSING. Irrespective of the actual Closing Date, the
parties agree that, if the condition to Closing set forth in
Section 3.2 occurs by the Closing Date, the effective Closing
Date of this Agreement shall be deemed to be January 31, 1997
and all documents annexed to the Agreement shall be deemed to
be effective as of the effective Closing Date.
3.6. FINANCIAL STATEMENTS. Digital will instruct its auditors to
provide to BEA audited financial statements for the Software
business unit, or its predecessor organizations, covering fiscal
years 1995 and 1996 on or before February 28, 1997. The fees
charged by Digital's external auditors for the preparation of
such statements by Digital's external auditors shall be borne by
BEA.
-6-
<PAGE>
4. LICENSE, SALE AND PURCHASE OF ASSETS
4.1. PATENT ASSIGNMENT.
4.1.1. On the Closing Date, Digital hereby assigns, sells and
transfers to BEA its entire right, title and interest
in and to the Patents, subject to any and all Digital
licenses in existence as of the Execution Date;
provided that the foregoing assignment, sale and
transfer shall be void ab initio if the Closing does
not occur prior to or on April 30, 1997.
4.1.2. BEA shall, in its discretion, prosecute and maintain
the Patents and bear all costs arising therefrom on and
after the Closing Date. If BEA decides not to
prosecute and maintain any of the Patents, Digital
shall have the right, but no obligation, to prosecute
and maintain said Patents and bear all costs arising
therefrom.
4.1.3. Digital shall prepare and sign such documents as
required for the assignment of the Patents and BEA
shall bear any and all costs for the assignment of the
Patents, including, without limitation, assignment
recordation fees, legal costs, and taxes.
4.2. PATENT LICENSE. BEA grants to Digital, effective as of the
Closing Date, a fully paid-up, unrestricted, non-exclusive,
assignable, irrevocable, world-wide license under the Patents, to
make, have made, manufacture, use, lease and sell or otherwise
dispose of all products, components, parts and other material,
covered by any claims of the Patents to the extent the Patents
cover products or methods in the Field. Furthermore, BEA grants
to Digital, effective as of the Closing Date, a fully
paid-up, unrestricted, exclusive, assignable, irrevocable,
world-wide license under the Patents, to make, have made,
manufacture, use, lease and sell or otherwise dispose of all
products, components, parts and other material, covered by any
claims of the Patents to the extent the Patents cover products or
methods outside the Field. The licenses granted in this Section
4.2 include the right to grant sub-licenses of the Patents, in
connection with the sale by Digital of any one or more lines of
business or business units. At BEA's request, Digital shall
negotiate in good faith with BEA a sublicense under the foregoing
exclusive license.
4.3. COPYRIGHT LICENSE. Subject to any and all existing licenses as
of the Closing Date, Digital hereby grants to BEA a perpetual
(unless terminated pursuant to Section 9.2 below), worldwide,
fully paid-up exclusive license in the case of Code and
Documentation (other than Wrapper Code and Wrapper
Documentation), and non-exclusive license in the case of Wrapper
Code and Documentation, to use (including the right to reproduce,
distribute copies of, modify and create derivative works), the
Code and the Documentation, with the unrestricted right to grant
sub-licenses.
The foregoing license will be subject to the following rights of third parties
and retained rights of Digital:
-7-
<PAGE>
(i) The rights (as they exist as of the Closing Date)
of licensed end-users, resellers and other third
party licensees of the Software and Documentation
to continue to exercise their rights with respect
to the Software and Documentation;
(ii) Digital's retained right to use the Software and
Documentation, including all prior versions
thereof, for internal business purposes; and
(iii) Digital's retained rights in and to existing and
future Digital products which incorporate portions
of the Software and Documentation (including
without limitation the right to market, promote,
license, grant sublicenses, transfer, modify,
reproduce, enhance and support such Digital
products).
4.4. OTHER PROPRIETARY RIGHTS. Subject to any and all existing
licenses as of the Closing Date, Digital hereby grants to BEA a
fully paid up, perpetual (unless terminated pursuant to Section
9.2 below) worldwide, non-exclusive license to use the
Proprietary Rights other than the Patents, Trademarks and
Copyrights with the unrestricted right to grant sublicenses;
provided the foregoing license grant shall be void ab initio if
the Closing does not occur prior to or on April 30, 1997.
4.5. TRANSFERABILITY. The foregoing licenses may not be assigned to
anyone other than a BEA Subsidiary or a purchaser of all or
substantially all of BEA's assets relating to the Software.
4.6. NO IMPLIED LICENSE. No license is granted, and no act or acts of
manufacture, use or sale hereunder, shall be construed as, or
result in, conveying any license, expressly or by implication,
estoppel, or otherwise, under or with respect to any patent,
trademark, copyright or other proprietary right other than as set
forth under this Section 4.
4.7. TRANSFER OF MIDDLEWARE ASSETS. Digital hereby sells, grants,
transfers, conveys, assigns and delivers to BEA all right, title
and interest in and to the Middleware Assets and as evidence
thereof shall execute and deliver to BEA the Bill of Sale in
substantially the form of Exhibit III and the Assignment of
Trademarks and Patents in substantially the Form of Exhibit IV;
provided that the foregoing sale, grant, transfer, conveyance,
assignment and delivery shall be void ab initio if the Closing
does not occur prior to April 30, 1997. The parties acknowledge
that the Retained Assets are not transferred as part of this
Agreement, subject to the licenses granted in the Wrapper Code
and Documentation.
4.8. TRANSFER OF COPYRIGHTS. Effective upon the satisfaction by BEA
of its obligations pursuant to Section 9.1 hereof, Digital hereby
agrees to sell, grant, transfer, convey, assign and deliver to
BEA all right, title and interest in the Copyrights, excluding
Copyrights to Code and Documentation associated with the Wrapper,
free and clear of any liens, pledges, security interests, claims
or encumbrances of any
-8-
<PAGE>
kind. Within ten (10) days of the satisfaction by BEA of the
conditions to such transfer, Digital shall provide to BEA an
executed assignment of copyrights in mutually agreeable form.
The foregoing assignment will be subject to the following rights
of third parties and retained rights of Digital:
(i) The rights (as they exist as of the Closing Date)
of licensed end-users, resellers and other third
party licensees of the Software and Documentation
to continue to exercise their rights with respect
to the Software and Documentation;
(ii) Digital's retained right to use the Software and
Documentation, including all prior versions
thereof, for internal business purposes; and
(iii) Digital's retained rights in and to existing and
future Digital products which incorporate portions
of the Software and Documentation (including
without limitation the right to market, promote,
license, grant sublicenses, transfer, modify,
reproduce, enhance and support such Digital
products).
4.9. ASSUMPTION OF ASSUMED CONTRACTS. Effective upon Closing, Digital
hereby assigns to BEA all of Digital's rights and obligations
under the Assumed Contracts, and BEA hereby accepts such
assignment and assumes all responsibilities and obligations of
the Assumed Contracts as part of the consideration for this
Agreement.
4.10. LIMITATION ON ASSUMPTION. BEA shall not assume, pay or discharge
or in any respect be liable for any liability, obligation,
commitment or expense of Seller with respect to the Assumed
Contracts other than those which accrue after the Closing
Date.
4.11. BEA shall have no obligation under this Agreement or any
Incorporated Agreement to include any notice of Digital's
ownership of any of the Middleware Assets or other Proprietary
Rights.
4.12. NO COMPETING PRODUCTS. Digital agrees that following the
Closing, it will not create or have created or exercise any of
the license rights granted to Digital, or any rights retained by
Digital under this Agreement, or combine products currently
existing at Digital, to create or have created any product which
functionally is substantially similar to DMQ, OBB or Desktop.
Digital's obligation under this Section 4.12 shall terminate in
the event of a default by BEA in its payment obligations under
the Note referenced in Section 9.1.1, or in its obligation to pay
Digital $5 million in BEA stock or cash pursuant to Sections
9.1.2 and 9.3, or in the event BEA no longer makes the Former
Digital Products (as defined in the Distribution Agreement) or
products which are functionally substantially similar to DMQ, OBB
or Desktop available to Digital as a reseller.
-9-
<PAGE>
4.13 TRANSITION. Notwithstanding anything to the contrary contained
herein, the parties agree that for a period of one year from the
Closing, Digital may continue distribution of DMQ under the
DECmessageQ name and that BEA will not file an application for
registration of a mark containing messageQ until the expiration
of that period. Notwithstanding the foregoing, BEA may use the
phrase "MessageQ" or any variation thereof in its business, and
Digital will reasonably cooperate with BEA to the extent
necessary to prevent any confusion in the marketplace during this
transition period. At the end of the transition period, Digital
shall abandon its use and registration of DECmessageQ and shall
reasonably cooperate with BEA in the event that BEA applies for
any trademark registrations for "MessageQ" or any variant thereof
which does not include the Digital or DEC name. During the
transition period, Digital shall inform BEA of any actual
infringements of the DECmessageQ trademark which are known to
Digital.
5. ADDITIONAL OBLIGATIONS AND COVENANTS
5.1. CONSENTS
5.1.1. Digital will use commercially reasonable efforts to
obtain any consent, approval, or amendment required to
assign all Assumed Contracts and complete all other
transfers and transactions contemplated by this
Agreement at Digital's sole expense.
5.1.2. In the event and to the extent that Digital is unable
to obtain any such required consent, approval, or
amendment, or if any attempted assignment or novation
would be ineffective or would adversely affect the
rights of Digital with respect to any of the Middleware
Assets so that BEA would not in fact receive all of the
rights due to it with respect to such asset, Digital
will cooperate with BEA, to the extent permitted by
law, in a mutually agreeable arrangement under which
BEA would, to the fullest extent possible, obtain the
benefits and assume the obligations with respect to
such asset, in accordance with this Agreement.
5.2. COPYRIGHTS. Digital hereby covenants and agrees that during the
term of any license granted pursuant to Section 4 hereof, (i)
Digital shall hold the Copyrights, other than the Copyrights in
Wrapper Code and Documentation free and clear of any liens,
pledges, security interests, claims or encumbrances of any kind,
(ii) Digital shall not transfer to any third party any interest
in and to any property to be transferred to BEA pursuant to the
terms of this Agreement, and (iii) Digital shall take no action
to interfere with BEA's full enjoyment of any license granted
herein or the transfer of title contemplated hereby.
5.3. HSR FILING. Unless Digital's legal counsel and BEA's legal
counsel agree that an exemption applies to this transaction,
Digital and BEA shall each exercise all reasonable efforts to
file promptly complete notification and report forms (FTC Form
C4) (the "Reports") under the HSR Act, with the Pre-merger
Notification
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<PAGE>
Office, FTC and the Director of Operations, Antitrust Division,
Department of Justice and failure to do so shall constitute a
default hereunder. Each party shall pay its own fees in
connection with such filings, and each party shall pay all costs
and expenses in connection with the preparation and filing of the
Reports. Both parties shall request an early termination of the
statutory filing period required to elapse after the filing of
the Reports (the "Waiting Period"). In the event any governmental
agency with requisite power and authority issues an objection to
the consummation of the purchase of the Middleware Assets by BEA,
or issues a request for supplemental information with respect to
the filing under the HSR Act, BEA and Digital shall use all
reasonable efforts to remove the cause for such objection or
respond to such request and do such other acts as are necessary
to obtain termination or expiration of the Waiting Period and to
comply with the Act.
5.4. PAYMENT ALLOCATION. To assure a smooth transition during the
first twelve (12) months following the Closing Date, the parties
agree to cooperate in good faith to determine the appropriate
allocation for the distribution of any payments received for the
sale or license to third parties of the Software.
5.5. TECHNICAL SUPPORT. Digital will use commercially reasonable
efforts to implement a smooth transition of operations from
Digital to the end that all Software distributors and customers
will experience as little disruption and delay in service, supply
and support as is reasonably practicable. In addition, BEA and
Digital will develop a joint support plan (including transition
arrangements) for the Software.
5.6. SOFTWARE MAINTENANCE AND SUPPORT AGREEMENT. Following the
execution date, the parties shall negotiate in good faith a
mutually acceptable Software Maintenance and Support Agreement
pursuant to which Digital will be permitted to provide
maintenance and support services to customers of the Former
Digital Products (as defined in the Distribution Agreement) and
BEA will provide second and third tier support.
5.7. FURTHER ASSURANCES. Digital agrees that, at any time after the
Closing Date, upon the request of BEA, it will do, execute,
acknowledge and deliver, all such further acknowledgments, deeds,
assignments, bills of sale, transfers, conveyances, instruments,
consents and assurances as may reasonably be required for the
better assigning, transferring, granting, conveying, assuring and
confirming to BEA, its successors and assigns, the transfers
contemplated by this Agreement.
5.8. CONDUCT OF BUSINESS OF DIGITAL PENDING THE CLOSING. Digital
agrees that, during the period from the Execution Date to the
Closing:
5.8.1. Digital shall cause the business operations related to
the Middleware Assets and Transferred Employees to be
conducted in the ordinary course consistent with past
practice and use commercially reasonable efforts to
preserve intact the relevant organization in all
material respects, provided, however, that Digital
shall not enter into any source code license,
technology-sharing, joint development, co-marketing or
similar arrangements with any third party, and/or issue
any press
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<PAGE>
releases or make any public announcements (except as
otherwise provided herein) with respect to the
Middleware Assets; and
5.8.2. Digital shall not sell or dispose of any of the
properties or assets to be transferred pursuant to this
Agreement, except in the ordinary course of business
consistent with past practices.
5.8.3. Except as otherwise contemplated by this Agreement,
Digital will not (i) take or agree or commit to take
any action that would make any representation and
warranty of Digital hereunder inaccurate in any
material respect at, or as of any time prior to, the
Closing Date, or (ii) omit or agree or commit to omit
to take any action necessary to prevent any such
representation or warranty from being inaccurate in any
material respect at any such time.
6. SOURCE CODE ESCROW
6.1. As soon as practicable, but in no event later than thirty (30)
days following the Closing Date, BEA shall establish an escrow
account with Fort Knox Escrow Services, Inc. (or other comparable
third party provider of software services approved by Digital in
writing, such approval not to be unreasonably withheld or
delayed) for the Source Code and the compiled version thereof.
Within four (4) business days thereafter, Digital shall deliver
to the escrow agent a complete copy of the Source Code of the
Software as such Software exists on the Closing Date, together
with a compiled version of Source Code. At the request of BEA,
Digital shall execute certification of the accuracy of the
initial deposit, and no party shall alter the deposit following
the date of such certification.
6.2. The foregoing escrow account shall be maintained by BEA for no
less than three (3) years after the Closing Date. In the
Agreement with the escrow agent, BEA shall provide that a copy of
such Source Code and compiled version is to be released to each
of Digital and BEA in the event any dispute regarding any part of
the Software arises in connection with the parties' obligations
under Section 14 hereof for the sole purpose of providing
evidence in connection with any such dispute. Digital agrees to
such limited use of the released copies of the Software and
further agrees not to make any additional copies of such
Software. Upon resolution of any dispute in connection with
Section 14 hereof pursuant to which a copy of the code was
released to Digital, Digital immediately shall return (or
destroy, with the advance written approval of BEA) all copies of
the release code to BEA and certify, in writing, to BEA that
Digital has complied with its obligations under this sentence.
7. OWNERSHIP OF INTELLECTUAL PROPERTY AND PROTECTION OF RIGHTS
7.1. OWNERSHIP OF SOFTWARE AND DOCUMENTATION. Subject to the
exclusive license granted herein to BEA, Digital shall retain
ownership of the Copyrights in the Software and Documentation
until such time as BEA has fulfilled its obligations under
Section 9 of this Agreement, at which time Digital shall transfer
and assign to BEA the Copyrights in the Code and the
Documentation, other than the Wrapper
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Code and the Wrapper Documentation, as provided in Section 4.8
herein. Subject to Section 9.2 hereof, BEA shall own all right,
title and interest in and to any proprietary rights in any
enhancements, derivative versions or other modifications of such
Software and Documentation made by BEA prior to such transfer and
thereafter, and in any other BEA products or services based on or
derived from the Software and Documentation.
7.2. ENFORCEMENT
7.2.1. BEA, as exclusive licensee, shall have the right in the
first instance to pursue any infringers of the
Copyrights in the Software and Documentation other than
the Wrappper Software and the Wrapper Documentation.
While such license is in effect, Digital shall notify
BEA promptly of any known or suspected infringements of
such Software or Documentation and shall reasonably
cooperate at BEA's expense in any enforcement actions
commenced by BEA (including without limitation becoming
a co-plaintiff with BEA if required by law or requested
by BEA). BEA shall be entitled to enter into
settlements of infringement suits brought by it under
this section subject to the approval of Digital (not to
be unreasonably withheld) and to keep any damages and
costs awards or settlement proceeds obtained by BEA
except where both Digital and BEA have assumed expenses
associated with the action and the parties have agreed
in writing to an allocation of damage awards and costs.
Where BEA elects not to pursue infringers under this
Section, it shall promptly so inform Digital in
writing. Digital thereafter shall have the right to
pursue such infringers at its own expense and otherwise
to exercise the right to settle infringement suits
subject to the approval of BEA (not to be unreasonably
withheld) and to keep any damages and costs awards or
settlement proceeds obtained by Digital.
7.2.2. BEA shall reasonably cooperate with Digital in any
actions initiated by Digital to pursue infringers of
any, Software or Documentation, other than the Wrapper
Software and the Wrapper Documentation if requested by
Digital and at Digital's expense.
7.2.3. Digital, as exclusive licensee, shall have the right in
the first instance to pursue any infringers of claims
of the Patents outside the Field. While such exclusive
license is in effect, BEA shall notify Digital promptly
of any known or suspected infringements of such Patents
and shall reasonably cooperate at Digital's expense in
any enforcement actions commenced by Digital (including
without limitation becoming a co-plaintiff with BEA if
required by law or requested by Digital). Digital shall
be entitled to enter into settlements of infringement
suits brought by it under this section subject to the
approval of BEA (not to be unreasonably withheld) and
to keep any damages and costs awards or settlement
proceeds obtained by Digital except where both Digital
and BEA have assumed expenses associated with the
action and the parties
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have agreed in writing to an allocation of damage
awards and costs. Where Digital elects not to pursue
infringers under this Section, it shall promptly so
inform BEA in writing. BEA thereafter shall have the
right to pursue such infringers at its own expense and
otherwise to exercise the right to settle infringement
suits subject to the approval of Digital (not be
unreasonably withheld) and to keep any damages and
costs awards or settlement proceeds obtained by the
BEA.
7.2.4 Digital shall reasonably cooperate with BEA in any
actions initiated by BEA to pursue infringers of the
Patent if requested by BEA and at BEA's expense.
8. CONFIDENTIALITY
8.1. In the course of the performance of this Agreement, Digital and
BEA each recognizes that it will obtain, or has prior to the
Execution Date obtained, access to the confidential, propriety,
technical, business and operational information of the other,
including without limitation the Proprietary Rights (excluding
the issued Patents)(the "Confidential Information"). The terms
of this Agreement and all Incorporated Agreements constitute
Confidential Information.
8.2. Information shall not constitute Confidential Information if:
8.2.1 it is demonstrated to the satisfaction of both parties
to have been in the possession of the receiving party
or available to the receiving party prior to the
disclosure, without any breach of a duty of
confidentiality owed by any party to the disclosing
party;
8.2.2. the receiving party rightfully obtains the Confidential
Information without breach of this Agreement, or any
laws or regulations of the United States of America
from a third party having no duty of confidentiality to
the disclosing party;
8.2.3. it is demonstrated to the satisfaction of both parties
to have been independently developed by the receiving
party without use of the Confidential Information; or
8.2.4. the disclosing party authorizes in writing the
disclosure of the Confidential Information.
8.3. All information disclosed by Digital which becomes or is intended
to become the property of BEA by virtue of the transactions
contemplated herein constitutes Confidential Information of BEA,
as if BEA were the disclosing party therefor.
8.4. The receiving party shall use the same care and discretion, but
no less than reasonable care and discretion, to avoid disclosure,
publication, or dissemination of Confidential Information it has
received, as the receiving party employs for similar information
of its own which it does not desire to publish, disclose or
disseminate,
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except to those employees and/or permitted subcontractors of the
receiving party who have a need to know in order to exercise the
rights granted or retained pursuant to this Agreement and who
have agreed to be bound by the confidentiality terms of the
Agreement.
8.5. Notwithstanding any other provision of this Section 8, if the
receiving party is required to disclose any Confidential
Information pursuant to legal, accounting or regulatory
requirements, the receiving party shall provide to the disclosing
party notice of such required disclosure in writing, sufficiently
in advance thereof to enable the disclosing party to take
reasonable actions to avoid the requirement of disclosure. The
receiving party shall cooperate with all reasonable requests of
the party to take reasonable actions to avoid the requirement
of disclosure. The receiving party shall cooperate with all
reasonable requests of the disclosing party in connection
therewith. Digital hereby agrees that any disclosure of the
terms of this Agreement and the subject matter thereof that BEA
reasonably determines is necessary with in connection with an
initial public offering or any subsequent filing with the
Securities and Exchange Commission is permitted without further
approval from Digital.
9. CONSIDERATION
9.1. TRANSFER OF MIDDLEWARE ASSETS. In consideration for the purchase
by BEA of the Middleware Assets pursuant to Section 4 hereof, BEA
shall make payments to Digital as follows:
9.1.1. At the Closing, BEA shall execute and deliver to
Digital a promissory note in the original principal
amount of $17 million in the form attached hereto as
Exhibit V (the "Note"). Digital agrees that (a) it
will not assign the Note to any entity other than a
bank or other financial institution without first
obtaining BEA's consent to such assignment and (b)
before it assigns the Note to any third party, it shall
have given BEA thirty (30) days prior written notice of
such intended assignment and the opportunity to purchase
the Note from Digital on terms no less favorable to BEA
than the terms offered to such third party.
9.1.2. Subject to Section 9.3 below, BEA shall pay to Digital
the sum of $5,000,000 on the earlier of June 20, 1997
or the date which is 30 days after the consummation of
the initial sale by BEA pursuant to a firm commitment
underwriting to the public of BEA Common Stock, $.001
par value per share ("Common Stock") as registered under
the Securities Act of 1933, as amended (the "Act")
(which sale is hereinafter referred to as the "Initial
Public Offering").
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9.1.3. BEA agrees that until it has fully satisfied its
payment obligations to Digital under the Note
referenced in Section 9.1.1 above or in its obligation
to pay Digital $5 million in BEA stock or in cash
pursuant to Section 9.1.2 hereof, it shall not sell or
assign any of the Middleware Assets to any entity other
than a Subsidiary of BEA or the purchaser of
substantially all the assets of BEA. The sale of a
fifty percent (50%) or greater interest in such a
Subsidiary of BEA shall constitute a prohibited sale
hereunder.
9.2. DEFAULT. In the event that BEA defaults in its payment
obligations under the Note referenced in Section 9.1.1 above or
Section 9.3 below or in its obligation to pay Digital $5 million
in BEA stock or in cash pursuant to Section 9.1.2 above, then the
licenses granted by Digital to BEA pursuant to Sections 4.1 and
4.2 hereof shall terminate upon notice thereof by Digital to BEA.
Following such termination, BEA shall promptly (i) cease all use
of the Software and Documentation and the Proprietary Rights;
(ii) convey back to Digital the Middleware Assets; (iii) transfer
to Digital any Software and Documentation inventory in its
possession or under its control; (iv) assign to Digital any
modifications that BEA may have made to, or derivative works that
BEA may have made of the Software and Documentation; (v) deliver
to Digital any other physical embodiments of the Software and
Documentation in its possession or under its control; and (vi)
certify in writing to Digital its compliance with the foregoing.
All of the foregoing shall be done at BEA's sole expense.
9.3 In the event that BEA shall determine to proceed with an Initial
Public Offering, BEA shall give notice to Digital of such
determination not later than five (5) days following the initial
filing by BEA of a registration statement under the Act (the
"Registration Statement") with the Securities and Exchange
Commission ("SEC") as to the Initial Public Offering. Digital
shall thereafter have 28 days from the date of such notice to
elect to purchase up to $5 million shares of Common Stock in the
Initial Public Offering at the same offering price per share as
BEA shall be Offering its Common Stock to other investors in the
Initial Public Offering. Digital's right to participate in the
Initial Public Offering shall be subject to the offering and sale
by underwriters of the shares of Common Stock to be issued to
Digital pursuant to this Section 9.3, and any obligation of
Digital pursuant to this Section 9.3 to purchase shares of Common
Stock and of BEA to issue and sell such common stock shall be
subject to the Registration Statement being declared effective
and remaining effective at the time of such issue and sale. In
the event the Registration Statement shall not be declared
effective within 90 days of Digital's original election, Digital
shall have the right to rescind such election by a second notice
to BEA. To the extent that Digital shall purchase shares of
Common Stock pursuant to this Section 9.3, BEA agrees to
accelerate its payment obligations pursuant to Section 9.1.2
above and prepay such obligation within ten (10) days of
such purchase in an amount equal to the gross proceeds paid by
Digital for Common Stock in the Initial Public Offering.
Digital's rights under this Section 9.3 (other than its right
to receive the payment provided for in the immediately preceding
sentence) shall terminate immediately after the closing of the
Initial Public Offering or the payment
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in full of those amounts owing to Digital pursuant to 9.1.2
above, whichever occurs first.
10. EMPLOYEES; LEASE OF SPACE
10.1 OFFER OF EMPLOYMENT. BEA agrees to offer employment to all those
Digital employees who are closely associated with the development
of the Software and Documentation and who are identified on
Schedule E of this Agreement. Those employees identified on
Schedule E will receive written offers of employment with BEA to
be delivered by BEA prior to the Closing Date, such offers being
contingent upon the Closing. Digital employees who receive
offers of employment from BEA will not be required to take drug
tests or physical examinations as a condition of employment. All
offers shall be subject to acceptance or rejection prior to
Closing. Those employees who have accepted contingent offers
from BEA prior to the Closing Date shall be referred to herein as
"Transferred Employees." Upon Closing, each of the Transferred
Employees will cease their employment with Digital and shall
become employees of BEA.
10.2 COMPENSATION/BENEFITS PACKAGE.
10.2.1. Subject to the terms of this Section 10.2, BEA shall
offer the Transferred Employees compensation and
benefits packages that are comparable to those they
received at Digital. BEA shall offer to each
Transferred Employee a base salary that is minimally
consistent with that earned by such employee at Digital
on the Closing Date for a position with BEA which is
the same or substantially equivalent to the employee's
position at Digital. BEA shall not reduce such base
salary for a period of six (6) months from the Closing
Date.
10.2.2. Prior to the Execution Date, BEA has provided to
Digital confidential information regarding the proposed
compensation packages for each Transferred Employee for
the purpose of enabling Digital to evaluate
independently whether BEA's proposed benefits package
is "comparable" to that received by each such employee
at Digital and Digital hereby confirms that BEA's
proposed compensation packages as disclosed to Digital
comply with BEA's obligations hereunder with respect
thereto. To the extent permitted by law or contract,
BEA's benefits plans and programs offered to the
Transferred Employees shall reflect credit for service
with Digital. However, nothing in this Agreement shall
be construed to require BEA to offer benefits, plans
and programs to the Transferred Employees which are
different from the benefits plans and programs which
are offered to BEA's other employees. No pre-existing
limitations, waiting periods, or proof of insurability
will be imposed by BEA or its benefits plans with
respect to initial benefits eligibility of the
Transferred Employees. To the extent legally
permitted, BEA will effect a plan-to-plan transfer of
the Transferred Employees' savings accounts from
Digital's SAVE 401(k) plan to BEA's 401(k) plan,
provided that Digital shall cooperate with all
reasonable requests by BEA in connection with effecting
such
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transfers. Digital and BEA shall reasonably cooperate
in effecting the transfers of any elections and account
balances of the Transferred Employees in connection
with employee reimbursement plans (e.g., health and
dependent care). Digital acknowledges and agrees that
nothing in this Section 10 shall require BEA to
undertake any modification of BEA's existing
compensation and benefits practices or to take any
action that would tend, in BEA's sole judgment, to
expose BEA to liability under any law, regulation,
court order, ordinance or contract of any kind.
10.2.3. At or before Closing, Digital shall pay out to all
Transferred Employees all vacation accrual liability
owed by Digital to the Transferred Employees for the
period through the Closing. BEA shall provide each
Transferred Employee who requests vacation time during
the first 12 months after closing with two (2) weeks
unpaid vacation, subject to BEA's policies and
procedures regarding its employees' exercise of
vacation time.
10.3. TRANSFERRED EMPLOYEES' LOCATION/OFFICE SPACE. BEA shall use
commercially reasonable efforts to provide office space for the
Transferred Employees which is located within 20 miles of their
present employment locations as indicated on Schedule E. BEA may
request that Digital sublet to BEA all or some of the present
office facilities occupied by the Transferred Employees for the
first six months following the Closing Date. If BEA makes such a
request, Digital shall sublet the requested office space to BEA
at the same rates currently paid by Digital for such office space
if Digital leases the space from an entity which is not
affiliated with Digital, and at the prevailing commercial rate
for comparable space if Digital leases the space from an entity
which is affiliated with Digital. Digital represents that as of
the Closing Date its existing leases and arrangements for the
office space presently occupied by the Transferred Employees do
not prohibit the continued use of such space by the Transferred
Employees, as presently being used, for a period of six months
following the Closing Date.
10.4. TRANSFERRED COMPUTERS. At Closing, Digital shall sell and
transfer to BEA the Transferred Computers. Digital shall at the
same time transfer to BEA all purchase orders, warranties,
trouble records, service records, and any other documentation
evidencing ownership or title or relating to the use and
performance of the Transferred Computers.
10.5. SHARED EQUIPMENT AND FACILITIES. If Digital sublets or otherwise
provides office space to any Transferred Employees pursuant to
Section 10.3 of this Agreement, such Transferred Employees shall
have full access to the computing resources (E.G., hardware,
software, network privileges, and communications) which were used
by such employees while employed by Digital in connection with
their duties involving the Middleware Assets. Such access to
computing resources shall be provided without further charge to
BEA. The parties agree to cooperate promptly to resolve any
security or confidentiality concerns which may arise as a result
of the sharing of computing resources contemplated in this
Section 10.5, provided that any such
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solutions shall be designed to ensure that the Transferred
Employees shall be able to perform their jobs effectively,
efficiently, and without undue delay.
10.6. TERMINATION OF TRANSFERRED EMPLOYEES. BEA shall not relocate or
terminate any Transferred Employee, except for cause, for a
period of six months from the Closing Date. If BEA should
terminate any Transferred Employee for reasons other than for
cause within the first 18 months following the Closing Date, BEA
shall offer to such terminated Transferred Employee severance
benefits which are comparable to the severance benefits the
terminated employee would have received from Digital under
similar circumstances.
10.7. NON-SOLICITATION. BEA shall not hire or attempt to hire any
Digital employees who work on the Middleware Assets in the United
States prior to the Closing Date without the written consent of
Digital. Digital agrees not to re-hire or directly or indirectly
attempt to re-hire, for a period of 12 months from the Closing
Date, any of the Terminated Employees.
10.8. INDEMNITIES CONCERNING TRANSFERRED EMPLOYEES.
10.8.1. Digital agrees to indemnify, defend, and hold harmless
BEA, its officers, directors, employees, agents,
successors and assigns, in accordance with the
procedures set forth in Section 14 hereof, from and
against any and all Claims (as defined in Section 14.1
hereof) by any Transferred Employee arising from or
related to such Transferred Employee's employment with
Digital or to acts or omissions of Digital or its
subcontractors which are in violation of law and which
occurred or accrued prior to and including the Closing
Date.
10.8.2. BEA agrees to indemnify, defend, and hold harmless
Digital, its officers, directors, employees, agents,
successors and assigns, in accordance with the
procedures set forth in Section 14 hereof, from and
against any and all Claims by any Transferred Employee
arising from or related to such Transferred Employee's
employment with BEA or to acts or omissions of BEA or
its subcontractors which are in violation of law and
which occur or accrue after the Closing Date.
11. SALES AND TRANSFER TAXES
11.1. Digital shall prepare and file any required tax returns in
connection with all sales, use or similar taxes incurred as a
result of this transaction and BEA shall promptly deliver to
Digital the amount of such taxes required to be remitted with
such tax returns.
12. REPRESENTATIONS AND WARRANTIES OF DIGITAL
12.1. ORGANIZATION AND STANDING; CERTIFICATE AND BYLAWS. Digital is a
corporation duly organized and existing under, and by virtue of,
the laws of the Commonwealth of Massachusetts and is in good
standing under such laws.
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12.2. CORPORATE POWER. Digital has all requisite corporate power to
execute and deliver this Agreement and all agreements to be
executed and delivered by Digital pursuant to the terms hereof
and to carry out and perform its obligations under the terms of
this Agreement and such other agreements.
12.3. AUTHORIZATION. All corporate action on the part of Digital, its
directors and its stockholders necessary for the authorization,
execution, delivery and performance of this Agreement and any
other agreements contemplated hereby has been taken. This
Agreement and any other agreements contemplated hereby, when
executed and delivered by Digital, will constitute valid and
binding obligations of Digital, enforceable in accordance with
their respective terms.
12.4. COMPLIANCE WITH OTHER INSTRUMENTS, NO CONFLICTS, ETC. The
execution, delivery and performance of and compliance with this
Agreement and the Incorporated Agreements to be executed by
Digital in connection herewith will not result in any violation
of, or conflict with, or constitute a default under Digital's
Articles of Organization or Bylaws, or under any agreement to
which Digital is a party, or result in the creation of, any
mortgage, pledge, lien, encumbrance or charge upon any of the
properties or assets of Digital. No consent of any person not a
party to this Agreement and no consent of any governmental
authority is required to be obtained on the part of Digital to
permit the consummation of the transactions contemplated by this
Agreement, except those consents expressly identified in this
Agreement. Digital is not in violation of any term of its
Articles of Organization or Bylaws, or in any material respect of
any term or provision of any mortgage, indebtedness, indenture,
contract, agreement, instrument, judgment or decree, order,
statute, rule or regulation applicable to Digital if it could
have an adverse impact on the transactions contemplated by this
Agreement.
12.5. LITIGATION, ETC. There are no actions, suits, proceedings,
oppositions, interferences, cancellation proceedings, challenges,
investigations, or other legal or governmental proceedings
pending against Digital or its officers or properties before any
court, arbitrator or governmental agency (or, to the best of
Digital's knowledge, is there any threat thereof), and Digital is
not a party to or subject to the provisions of any order, writ,
injunction, judgment, or decree or any court or government agency
(or, to the best of Digital's knowledge, is there any threat
thereof), and Digital is not a party to or subject to the
provisions of any order, writ, injunction, judgment, or decree or
any court or government agency or instrumentality that questions
the validity of this Agreement and/or any of the Incorporated
Agreements to be executed by Digital in connection herewith or
any action taken or to be take in connection herewith or
therewith, or that challenge the validity, enforceability or
ownership of any of the Proprietary Rights. There is no action,
suit, proceeding or investigation by Digital currently pending or
that Digital currently intends to initiate that questions or has
the potential to harm the validity of this Agreement and/or any
of the Incorporated Agreements to be executed by Digital in
connection herewith or any action taken or to be taken in
connection herewith or therewith, or the validity, enforceability
or ownership of any of the Proprietary Rights.
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12.6 OWNERSHIP OF ASSETS. Digital owns all of the Middleware Assets
free and clear of all liens, security interests and other
encumbrances, excepting those contained in the Assumed Contracts
and any other liabilities expressly being assumed by BEA under
this Agreement and Digital can transfer the same to BEA without
limitation of any kind.
12.7. DISCLOSURE. The representations and warranties of Digital
contained in this Agreement do not contain any untrue statement
of a material fact or omit to state a material fact necessary in
order to make the statements contained herein or therein not
misleading in light of the circumstances under which they were
made. Digital has no present intention to transfer this Agreement
or any of its rights or obligations hereunder or under the
Incorporated Agreements to be executed by Digital in connection
herewith to any third party.
12.8. NOTICE OF MATERIAL CHANGE. Digital agrees to give BEA prompt
written notice of any material change which occurs prior to the
Closing in any of the information contained in the
representations and warranties made by Digital in this Agreement
and/or the Schedules and Exhibits attached hereto.
12.9. TITLE MIDDLEWARE ASSETS.
12.9.1. Digital has good and marketable title to all of the
Middleware Assets and to all other assets to be
transferred by Digital to BEA in accordance with this
Agreement, and has the sole and exclusive right to use,
sell, license, dispose of or brings action for the
infringement of the Copyrights, Patents and Trademarks.
12.9.2. Digital currently is listed in the records of the
appropriate United States, state or foreign agency as
the sole owner of record for each of the Patents and
Trademarks to be assigned to BEA hereunder which is set
forth on Schedule C, attached hereto and made a part
hereof (the "Registrations").
12.9.3. Digital has no royalties, honoraria, fees or other
payments due and payable to any third party in
connection with the Proprietary Rights to be assigned
to BEA hereunder or other elements of the Middleware
Assets, including to any person by reason of ownership,
use, licensure, sale or disposition of any of the same,
the nonpayment of which has resulted or will result in
the loss or impairment of any of the foregoing.
12.9.4. Except as set forth on Schedule C, attached hereto and
made a part hereof, no third party product or property
was used in or is necessary for the development of the
Software or Documentation or is or is intended to be
embedded in, included with, or shipped with the
Software (whether as a runtime module or otherwise).
12.9.5. None of the Middleware Assets or the other assets to be
transferred by Digital to BEA in accordance with this
Agreement, or the use thereof, (i) are subject to any
easements or restrictions or to any mortgages,
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liens, pledges, charges, security interests,
encumbrances or encroachments, or to any rights of
others of any kind or nature whatsoever, or (ii)
contravene any applicable law or ordinance or any other
administrative regulation or violates any restrictive
covenant or any provision of law. There are no
agreements or arrangements between Digital and any
third party which have any effect upon Digital's title
to or other rights respecting the Middleware Assets
or such other assets, including the right to transfer
the same as contemplated by this Agreement.
12.10. TRANSFERRED COMPUTERS. The Transferred Computers are in good
working condition.
12.11. CONDITION OF PROPERTY. All of the Registrations have been duly
maintained, including the submission of all necessary filings in
accordance with the legal and administrative requirements of the
appropriate jurisdictions, has not lapsed, expired or been
abandoned, and is valid, subsisting, in propr form and
enforceable.
12.12. ADEQUACY OF PROPERTY. Except for commercially available
application software and software development tools, the
Middleware Assets constitute all of the assets and information
necessary to conduct, in all material respects, the activity of
the development and maintenance of the Software as it is being
currently conducted.
12.13. CURRENT USE. The marketing, manufacture, development, use, sale,
license, or sublicense of any Proprietary Rights, Software or
Documentation or any other Middleware Asset in the manner
currently so done by Digital does not (i) violate any license or
agreement with any third party, or (ii) infringe on, or otherwise
conflict with, the rights of any person, nor has such violation
or an infringement been alleged or noticed to Digital. Digital
has not in connection with the Middleware Assets or any portion
thereof received any written notice that it, or any of its
customers or distributors, has infringed any copyright, patent,
trademark, trade name, or other intellectual or industrial
property right of any third party or misappropriated or misused
any invention, trade secret or other proprietary information
entitled to legal protection. Nor has Digital asserted any such
claim of infringement, misappropriation or misuses against any
third party in connection with the Middleware Assets.
13. REPRESENTATIONS AND WARRANTIES OF BEA
13.1. ORGANIZATION AND STANDING; CERTIFICATE AND BYLAWS. BEA is a
corporation duly organized and existing under, and by virtue of,
the laws of the State of Delaware and is in good standing under
such laws.
13.2. CORPORATE POWER. BEA has all requisite corporate power to execute
and deliver this Agreement and all agreements to be executed and
delivered by BEA pursuant to the terms hereof and to carry out
and perform its obligations under the terms of this Agreement and
such other agreements.
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13.3. AUTHORIZATION. All corporate action on the part of BEA, its
directors and its stockholders necessary for the authorization,
execution, delivery and performance of this Agreement and any
other agreements contemplated hereby has been taken. This
Agreement and any other agreements contemplated hereby, when
executed and delivered by BEA, will constitute valid and binding
obligations of BEA, enforceable in accordance with their
respective terms.
13.4. COMPLIANCE WITH OTHER INSTRUMENTS, NO CONFLICTS, ETC. The
execution, delivery and performance of and compliance with this
Agreement and the Incorporated Agreements to be executed by BEA
in connection herewith will not result in any violation of, or
conflict with, or constitute a default under BEA's Certificate of
Incorporation or Bylaws, or under any agreement to which BEA is a
party, or result in the creation of, any mortgage, pledge, lien,
encumbrance or charge upon any of the properties or assets of
BEA. No consent of any person not a party to this Agreement and
no consent of any governmental authority is required to be
obtained on the part of BEA to permit the consummation of the
transactions contemplated by this Agreement, except those
consents expressly identified in this Agreement. BEA is not in
violation of any term of its Certificate of Incorporation or
Bylaws, or in any material respect of any term or provision of
any mortgage, indebtedness, indenture, contract, agreement,
instrument, judgment or decree, order, statute, rule or
regulation applicable to BEA if it could have an adverse impact
on the transactions contemplated by this Agreement.
13.5. LITIGATION, ETC. There are no actions, suits, proceedings,
oppositions, challenges or investigations pending against BEA or
its officers or properties before any court, arbitrator or
governmental agency (or, to the best of BEA's knowledge, is there
any threat thereof), and BEA is not a party to or subject to the
provisions of any order, writ, injunction, judgment, or decree or
any court or government agency or instrumentality that questions
the validity of this Agreement and/or any of the Incorporated
Agreements to be executed by BEA in connection herewith or any
action taken or to be taken in connection herewith or therewith.
There is no action, suit, proceeding or investigation by BEA
currently pending or that BEA currently intends to initiate that
questions or has the potential to harm the validity of this
Agreement and/or any of the Incorporated Agreements to be
executed by BEA in connection herewith or any action taken or to
be taken in connection herewith or therewith.
13.6. DISCLOSURE. The representations and warranties of BEA contained
in this Agreement, do not contain any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements contained herein or therein not misleading
in light of the circumstances under which they were made. BEA has
no present intention to transfer this Agreement or any of its
rights or obligations hereunder or under the Incorporated
Agreements to be executed by BEA in connection herewith to any
third party.
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<PAGE>
13.7. NOTICE OF MATERIAL CHANGE. BEA agrees to give Digital prompt
written notice of any material change which occurs prior to the
Closing in any of the information contained in the
representations and warranties made by BEA in this Agreement
and/or the Schedules and Exhibits attached hereto.
14. INDEMNIFICATION
14.1. SURVIVAL OF REPRESENTATIONS. Subject to the limitations and other
provisions of this Section 14, the representations, warranties,
covenants and agreements of the parties contained in this
Agreement shall survive the Closing.
14.2. DIGITAL'S AGREEMENT TO INDEMNIFY. Subject to the terms and
conditions of this Section 14, Digital hereby indemnifies and
agrees to defend and hold harmless BEA and any stockholder,
partner, officer, director, employee, agent or representative of
BEA (collectively, the "BEA GROUP"), at any time after the
Closing, from and against all damages, incurred by the BEA Group
or any member thereof resulting from or relating to (i) a breach
of any representation or warranty of Digital contained in this
Agreement, or (ii) the non-performance of any covenant or
obligation to be performed on the part of Digital under this
Agreement, or (iii) any claim asserted against BEA by a third
party in respect of any liability of Digital not assumed by BEA
under this Agreement.
14.3. BEA'S AGREEMENT TO INDEMNIFY. Subject to the terms and conditions
of this Section 14, BEA hereby indemnifies and agrees to defend
and hold harmless Digital and any stockholder, partner, officer,
director or employee of Digital (collectively, the "DIGITAL
GROUP"), at any time after the Closing, from and against all
damages incurred by the Digital Group or any member thereof
resulting from or relating to (i) a breach of any representation
or warranty of BEA contained in this Agreement or (ii) the
non-performance of any covenant or obligation to be performed on
the part of BEA under this Agreement or (iii) any claim asserted
against Digital by a third party in respect of any liability
assumed by BEA under this Agreement.
14.4. INDEMNIFICATION PAYMENTS AND SURVIVAL.
(a) No action may be brought by any person seeking
indemnification hereunder (an "Indemnified Person") with respect
to any indemnifiable claim under this Section 14 more than two
(2) years after the Closing Date.
(b) No Claim may be made against a party providing
indemnification hereunder (an "Indemnifying Party") pursuant to
its indemnification obligations set forth in Section 14.2 or 14.3
with respect to any individual item of damage unless and until
the aggregate of all such damages actually incurred by the
Indemnified Person exceeds $175,000 (the "Threshold Amount") and
the Indemnified Person's right to indemnification hereunder shall
only be with respect to such amounts in excess of the Threshold
Amount. In the case of any claim for Indemnification
made by the Indemnified Person to the Indemnifying Party in which
the Indemnified Person asserts for the first time that the
Threshold Amount has been or will be exceeded after or upon
satisfaction of the claim for which the Indemnified Person seeks
indemnification, the Indemnified Person shall set forth in
reasonable detail the
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<PAGE>
Damages, including the basis therefore, which have exceeded or
which, together with the claim being made, will exceed the
Threshold Amount. Upon a good faith presentation of such
assertion, the Indemnifying Party will assume its obligations
under this Article 14. The indemnifying party's obligation to
indemnify the Indemnified Person and hold it harmless under
Section 14.2 or 14.3 shall in no event exceed $11,000,000. The
Indemnifying Party shall not be obligated for any indirect,
special or consequential damages incurred by the Indemnified
Person.
(c) For purposes of determining the amount of damages incurred
by an Indemnified Person, such damages shall be net of any
insurance payment actually received by the Indemnified Person in
compensation for the same damages for which indemnification is
sought and shall be reduced by the amount of any tax benefits to
be realized by the Indemnified Person with respect to the matter
which was the basis for the damages for which indemnification is
sought.
(d) Investigations; Waivers. The survival periods and rights to
indemnification provided for in this Section 14 shall remain in
effect, notwithstanding any investigation at any time by or on
behalf of any party hereto or any waiver of any party hereto of
any condition to such party's obligation to consummate the
transactions contemplated hereby.
14.5. CONDITIONS OF INDEMNIFICATION. (a) Notice of Claims. The
Indemnified Person shall promptly notify the Indemnifying Party
of any fact upon which the Indemnified Person intends to base a
claim for indemnification hereunder ("Notice of Claim"). Notice
shall in all events be considered prompt if given (a) no later
than thirty (30) days after the Indemnified Person learns of a
fact or facts giving rise to a right of indemnification or (b) if
later, in sufficient time to allow the Indemnifying Party to
exercise its rights pursuant to this Section 14.5 without any
material impairment of or prejudice to the Indemnified Person in
the exercise of such rights, in the reasonable judgment of the
Indemnified Person.
(b) Direct Claims. If within 30 days after the Indemnified
Person shall have given a Notice of Claim that relates to a
direct claim of the Indemnified Party, the Indemnifying Party
shall not have objected to such demand for indemnification or its
amount, by notice to the Indemnified Person, the demand for
indemnification and the amount of such demand, or the manner of
determining such amount, described in such Notice shall be deemed
to have been agreed to by the Indemnifying Party and determined
as of the last day of such 30-day period.
(c) Defense of Third-Party Claims.
(i) Subject to subsection (iii) below if damages arise
out of a third party claim seeking recovery of money damages (a
"Money Claim"), the Indemnifying Party shall have the right, at
its option and expense, to assume the defense of such Money Claim
with counsel reasonably acceptable to the Indemnifying Person.
Notwithstanding the foregoing, the Indemnified Person shall have
the right to employ its own counsel in any such case but the fees
and expenses of such counsel shall be at the expense of such
Indemnified Person unless (x) the employment of such counsel
shall have been authorized in writing by the Indemnifying Party
in
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<PAGE>
connection with the defense of such action at the expense of the
Indemnifying Party or (y) the Indemnifying Party shall not have
employed counsel to have charge of the defense of such action
within a reasonable time after the Notice of Claim is given, or,
having assumed such defense, fails to pursue it within reasonable
time or (z) the named parties to such claim include both the
Indemnified Person and the Indemnifying Party and such
Indemnified Person shall have been advised by counsel that
counsel employed by the Indemnifying Party would, under
applicable professional standards, have a conflict in
representing both the Indemnifying Party and such Indemnified
Person, in any of which events such fees and expenses of one
additional counsel for the Indemnifying Party shall be borne by
the Indemnifying Party. In no event shall the Indemnifying Party
be liable for fees and expenses of more than one counsel for all
indemnified parties (in addition to any local counsel) separate
from its own counsel in connection with any one action or
separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. An
Indemnified Person shall have the right to settle or compromise
any Money Claim and recover the amount paid in such settlement
from the Indemnifying Party without the consent of any
Indemnifying Party if the Indemnified Person has given written
notice thereof to the Indemnifying Party and the Indemnifying
Party has failed to assume the defense of the Money Claim or,
having assumed the defense, has failed to diligently pursue it
within a reasonable length of time. Any Indemnifying Party shall
have the right to settle or compromise any Money Claim against an
Indemnified Person with the consent of the Indemnified Person
provided that the terms of such settlement or compromise provide
for the unconditional release of the Indemnified Person and
require the payment of money damages only by the Indemnifying
Party.
(ii) Subject to the provision of subsection (iii) below
if an Indemnified Person determines not to accept a monetary
settlement of any such Money Claim following the Indemnified
Person's receipt of written notice from the Indemnifying Party
requesting the Indemnifying Party's acceptance of such a
settlement for an amount (the "Settlement Amount") agreed to in
writing by the Indemnifying Person and the parties (other than
the Indemnified Person) to such litigation or prospective
litigation and a judgment in excess of the Settlement Amount is
thereafter rendered against the Indemnified Person, no claim for
indemnification under Section 14.2 or 14.3, as the case may be,
may thereafter be made with respect to such litigation or
prospective litigation against the Indemnifying Party in excess
of the Settlement Amount consented to by the Indemnifying Party.
(iii) If damages arise out of a third party claim
seeking equitable relief alone or in addition to monetary damages
and, if such equitable relief, standing alone, if obtained would
materially and adversely affect the business, operations, assets
or financial condition of the Indemnified Person (an "Equitable
Claim"), the Indemnified Person shall be entitled to defend such
Equitable Claim with counsel reasonably acceptable to the
Indemnifying Party in a reasonable manner under the circumstances
and at the reasonable expense of the Indemnifying Party, which
shall be provided by counsel to the Indemnified Person with
regular information regarding the costs of such defense. The
Indemnifying Party shall be entitled to participate at its own
expense in the defense of any such Equitable Claim. The
Indemnified Person shall make no settlement, compromise,
admission, or
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<PAGE>
acknowledgement which would give rise to liability on the part
of any Indemnifying Party without the prior written consent of
the Indemnifying Party, which shall not be unreasonably withheld
or delayed.
(iv) The parties shall extend reasonable cooperation to
one another in connection with the defense of any third-party
claim pursuant to this Section 14.5 and, in connection therewith,
shall furnish such records, information, and testimony and attend
such conferences, discovery proceedings, hearings, trials, and
appeals as may be reasonably requested.
15. TERMINATION
15.1. METHODS OF TERMINATION. The transactions contemplated herein may
be terminated and/or abandoned at any time prior to the Closing
by (i) mutual written agreement of BEA and Digital, or (ii) by
either party if the Closing shall not have occurred on or prior
to April 30, 1997.
15.2 PROCEDURE UPON TERMINATION PRIOR TO CLOSING. In the event of
termination or abandonment pursuant to Section 15.1 hereof,
written notice thereof shall be given to the other party hereto
and the transactions completed by this Agreement shall be
terminated and/or abandoned, without further action by BEA or
Digital. If the transactions contemplated by this Agreement are
terminated and/or abandoned as provided herein, each party will
redeliver all documents, work papers, confidential information
and other material of the other party relating to the
transactions contemplated hereby, whether obtained before or
after the execution of this Agreement, to the party furnishing
the same. A party hereto who shall have satisfied in full all of
the obligations of such party under this Agreement which were to
have been satisfied by such party prior to the Closing and who
shall have not breached any representation, warranty, covenant or
agreement of such party contained in this Agreement shall not
have any liability or further obligation to the other party to
this Agreement.
15.3 EFFECT OF TERMINATION. The mutual confidentiality obligations of
Digital and BEA pursuant to Section 8 hereof shall survive any
termination of this Agreement.
16. MISCELLANEOUS
16.1 PUBLICITY. Each of the parties acknowledges the importance of
appropriate disclosures in positioning the relationship between
the two companies to the distribution channel, the press,
customers and others.
16.1.1. Each of the parties agrees that by no later than
fifteen (15) days following the Execution Date,
BEA and Digital will each issue a press release
regarding the execution of this agreement. Such
press release shall identify this Agreement as a
major strategic partnership. The press release to
be issued by Digital shall declare Digital's
commitment to Tuxedo, including without limitation
as the premier middleware for Open Systems mission
critical computing. The press release to be issued
by BEA shall endorse strongly Digital's 64 bit
computing
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<PAGE>
capabilities and Alpha platform technology, as
evidenced by the Middleware purchases it is making
pursuant to this Agreement, as well as Digital's
Alpha systems as the premier high performance
commercial UNIX platform available on the market
today. Each press release shall be subject to the
other party's approval, not to be unreasonably
withheld or delayed.
16.1.2. Within 30 days of the Execution Date, BEA and
Digital will jointly announce a strategic
relationship in an appropriate mutually-agreed to
form and forum. During this time and prior to the
announcement, Digital and BEA will make diligent
efforts to control the confidentiality, public
image and positioning of the relationship by doing
the following under non-disclosure:
- jointly brief appropriate industry analysts
and/or press, with proper embargoes, about
the Agreement in an effort to have them
properly prepared for the announcement and
potentially be used as spokespersons;
- pre-announce the Agreement to a defined group
of existing key customers of the Former
Digital Products with a goal of recruiting
several major customers as spokespeople to be
used at the announcement to make live
presentations and/or provide supporting
quotes;
- brief appropriate partners involved with the
development or distribution of the Former
Digital Products;
- build employee confidence and commitment to
the transition by recruiting appropriate
internal champions within the Digital
technical community to help promote the
movement of the products and personnel from
Digital to BEA;
- brief all existing employees who may be
offered a position with BEA on the Agreement
and appropriate positioning;
- appoint appropriate "authorized"
spokespersons who will be the only source for
external dissemination of information about
the Agreement;
- prior to any external briefings or
announcements to analysts, press, partners or
customers, BEA and Digital brief employees
who may become engaged in general marketing
or sales activities.
16.1.3. Each of the parties agrees that until six (6)
months following the Closing Date, no press
release or other disclosures by company
representatives shall conflict with the initial
press releases approved by
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<PAGE>
the parties pursuant to Section 16.1.1 hereof without the
prior written consent of the other party, such consent not
to be unreasonably withheld or delayed. In the event no
written response is received by a press release or
disclosure within two (2) business days of its receipt by a
party, such press release or disclosure shall be deemed
approved.
16.2. NOTICES. Unless otherwise agreed to by the parties in writing,
all notices required under this Agreement and all requests,
demands and other communications hereunder, shall be deemed
effective when received and made in wiring by either (i)
registered mail, (ii) certified mail, return receipt requested,
or (iii) overnight mail, addressed and sent to the attention of:
Digital Equipment Corporation BEA Systems, Inc.
129 Parker Street 385 Moffett Park Drive
Maynard, Massachusetts 01754 Suite 105
Sunnyvale, CA 94089-1209
Attn: Manager Digital External Attn: Ed Durney,
Resources Group General Counsel
with a copy of non-technical notes to:
Digital Equipment Corporation Morrison & Foerster LLP
111 Powdermill Road 1290 Avenue of Americas
Maynard, Massachusetts 01754 New York, New York 10104
Attn: Eric C. Thorp, Senior Attn: John B. Kennedy
Counsel
16.3. RELATIONSHIPS OF THE PARTIES. It is understood and agreed that
each of the parties hereto is an independent contractor, and that
neither party is, or shall be considered to be, by virtue of this
Agreement, an agent or representative of the other party for any
purpose.
16.4. ASSIGNMENT. Neither party may assign this Agreement except to
one of its Subsidiaries or in connection with a merger,
consolidation, or sale of all or substantially all of the
assigning party's relevant business or assets, or with the prior
written consent of the other party. Any attempted assignment in
violation of this Section 16.4 without consent shall be null and
void. Where required, no party shall unreasonably withhold or
delay consent.
16.5. BINDING EFFECT. This agreement shall be binding on all parties
hereto, and shall be binding upon and inure to the benefit of each
party and its respective permitted successors and assigns.
16.6. WAIVER; MODIFICATION; AMENDMENT. No term or provision hereof
will be considered waived by either party, and no breach excused
by either party, unless such waiver or consent is in writing
signed on behalf of the party against whom the waiver is
asserted. No consent by either party to, or waiver of, a breach
by either party, whether express or implied, will constitute a
consent to, waiver of, or excuse of any other different, or
subsequent, breach by either party. This Agreement, including
the Schedules and Exhibits attached hereto, may not be modified or
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<PAGE>
amended except by an instrument in writing duly signed by or on
behalf of the parties hereto.
16.7. FORCE MAJEURE. Each of the parties hereto shall exert diligence
in performing its obligations under this Agreement, but neither
shall be liable in any manner whatsoever for failure to perform
or delay in performing such obligations, if and to the extent
and for so long as such failure or delay in performance or breach
is due to natural disasters, strikes or labor disputes, natural
forces, or other acts of G-d or cause reasonably beyond the
control of such party. Any party desiring to invoke this Section
16.7 shall notify the other in writing of such desire and shall
use reasonably efforts and due diligence to resume performance of
its obligations.
16.8. UNITED NATIONS. The parties expressly exclude, if applicable,
the application of the United Nations Conventions on Contracts
for the International Sale of Goods.
16.9. SURVIVAL. The provisions of this Agreement which by their nature
extend beyond the expiration or termination of this Agreement
will survive and remain in effect until all obligations are
satisfied.
16.10. SEVERABILITY. If any part of this Agreement is found invalid or
unenforceable, that part will be amended to achieve as nearly as
possible the same economic and practical effect as the original
provision and the remainder of this Agreement will remain in full
force and effect.
16.11. NO INTERPRETATION AGAINST DRAFTER. The terms and provisions of
this Agreement shall not be construed against the drafter or
drafters hereof. All parties hereto agree that the language of
this Agreement shall be construed as a whole according to its
fair meaning and not strictly for or against any of the parties
hereto.
16.12. GOVERNING LAW; JURISDICTION. This Agreement shall be governed
and enforced in accordance with the substantive law of the
Commonwealth of Massachusetts, without regard to any such laws or
regulations that may direct the application of the law of any
other jurisdiction. Each party hereby irrevocably agrees that
any action relating to this Agreement or the Middleware Assets
shall be instituted, prosecuted and determined in the court of
competent jurisdiction in Boston, Massachusetts and that it shall
not commence any action or proceeding arising out of any dispute
between Digital and BEA with respect hereto and thereto in any
other jurisdiction. Each party hereby irrevocably submits, for
itself and its property, to the nonexclusive jurisdiction or any
Federal or State Court of the United States of America sitting in
Boston, Massachusetts area, and any appellate court from any
thereof, in any action or proceeding arising out of or relating
to this Agreement or the Middleware Assets. Digital further
irrevocably consents to the service of process in any such action
or proceeding by the mailing of a copy of such process to it at
the address set forth above.
16.13. ENTIRE AGREEMENT. This Agreement, together with the Schedules
and Exhibits attached hereto, constitutes the entire agreement
between the parties relating to this subject matter and
supersedes all prior or simultaneous representations,
discussions, negotiations and agreements with respect thereto,
whether written or oral.
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<PAGE>
16.14. PARAGRAPH HEADINGS AND COUNTERPARTS. The paragraph and section
headings in this Agreement are for convenience of reference only
and shall not be deemed to alter or affect any provisions hereof.
This Agreement may be executed simultaneously in any number of
counterparts, each of which shall be deemed an original but all
of which shall constitute one and the same instrument.
16.15. Neither party shall have a right of set off against the other.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives, effective as of the date first
above written.
DIGITAL EQUIPMENT BEA SYSTEMS, INC.
CORPORATION
By: /s/ (illegible) By: /s/ Edward W. Scott, Jr.
---------------------------- ----------------------------
Name: (illegible) Name: Edward W. Scott, Jr.
-------------------------- --------------------------
Title: (illegible) Title: Executive Vice President
------------------------- -------------------------
Date: 1/30/97 Date: January 31, 1997
-------------------------- --------------------------
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<PAGE>
LISTS OF SCHEDULES AND EXHIBITS
Schedule A: Assumed Contracts
Schedule B: Software Descriptions
Schedule C: Digital Registrations
Schedule D: Transferred Computers
Schedule E: Transferred Employees
***************
Exhibit I: Consulting Agreement Between Digital and
BEA
Exhibit II: Distribution Agreement Between Digital
and BEA
Exhibit III: Bill of Sale
Exhibit IV: Assignment of Trademarks and Patents
Exhibit V: Promissory Note
<PAGE>
SCHEDULE A
ASSUMED CONTRACTS
PARTNER AGREEMENT TYPE CONTRACT #
------- -------------- ----------
Caldera, incorporated Distribution #1
Logica North America Source Code #2
Intelligent Wave, Inc. Source Code #3
PeerLogic, Incorporated Engineering For Hire #4
Visual Edge Software Ltd. Engineering For Hire #5
LINKVEST SA Engineering For Hire #6
Page 1 of 1
<PAGE>
SCHEDULE B
SOFTWARE DESCRIPTIONS
PRODUCT NAME SPD #
DECmessageQ for OS/2, Version 3.2 53.34.00
DECmessageQ for MS-Windows Client, Version 3.2 53.35.01
DECmessageQ for MQ Series, Version 3.2 56.30.01
DECmessageQ for Windows NT, Version 3.2 47.90.02
DECmessageQ for UNIX, Version 3.2 39.25.06
DECmessageQ for Open VMS, Version 3.2 46.25.04
ObjectBroker for UNIX, Version 2.7 47.07.04
ObjectBroker for Microsoft Windows, Version 2.7 37.76.05
ObjectBroker for Open VMS, Version 2.7 44.12.04
ObjectBroker for Win32, Version 2.7 50.73.04
The ObjectBroker Desktop Connection "White Paper"
R/3 BusinessBus Wrapper Technology "White Paper"
Page 1 of 1
<PAGE>
SCHEDULE C
DIGITAL REGISTRATIONS
Mark Territory Application Date & Number Registration Date & Number
- ---- --------- ------------------------- --------------------------
Page 1 of 2
<PAGE>
SCHEDULE C
APPLICATIONS/PATENTS
<TABLE>
<CAPTION>
Matter No.: Country Code: Application No. Filed Date: Patent No.: Issue Date Patent Status Matter Title:
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
PD90-0327 US 07/567,298 14-Aug-90 1,280,610 19940118 I METHODS AND APPARATUS FOR
IMPLEMENTING DATA BASES TO
PROVIDE OBJECT-ORIENTED
INVOCATION OF APPLICATIONS
- ------------------------------------------------------------------------------------------------------------------------------------
PD90-0327 AU 79309/91 26-Jun-91 638138 19931011 I
- ------------------------------------------------------------------------------------------------------------------------------------
PD90-0327 CA 2,049,133 13-Aug-91 P
- ------------------------------------------------------------------------------------------------------------------------------------
PD90-0327 JP 202703/91 13-Aug-91 P
- ------------------------------------------------------------------------------------------------------------------------------------
PD90-0327 TW 80106381 13-Aug-91 NI-55644 19920722 I
- ------------------------------------------------------------------------------------------------------------------------------------
PD90-0327 GB 91306172.7 8-Jul-91 472279 19950816 I
- ------------------------------------------------------------------------------------------------------------------------------------
PD90-0327 FR 91306172.7 8-Jul-91 472279 19950816 I
- ------------------------------------------------------------------------------------------------------------------------------------
PD90-0327 DE 91306172.7 8-Jul-91 69112156.7 19950816 I
- ------------------------------------------------------------------------------------------------------------------------------------
PD90-0327 IT 91306172.7 8-Jul-91 472279 19950816 I
- ------------------------------------------------------------------------------------------------------------------------------------
PD90-0327 NL 91306172.7 8-Jul-91 472279 19950816 I
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
PD90-0275 US 07/567,389 14-Aug-90 A METHODS AND APPARATUS FOR
PROVIDING DYNAMIC INVOCATION
OF APPLICATIONS IN A
DISTRIBUTED HETEROGENEOUS
ENVIRONMENT
- ------------------------------------------------------------------------------------------------------------------------------------
PD90-0275 AU 79454/91 26-Jun-91 639802 19931130 I
- ------------------------------------------------------------------------------------------------------------------------------------
PD90-0275 CA 2,049,121 13-Aug-91 2,049,121 19960813 I
- ------------------------------------------------------------------------------------------------------------------------------------
PD90-0275 JP 202700/91 13-Aug-91 2011115 19960202 I
- ------------------------------------------------------------------------------------------------------------------------------------
PD90-0275 EPO 91306128.9 5-Jul-91 P
- ------------------------------------------------------------------------------------------------------------------------------------
PD90-0275 TW 80106379 13-Aug-91 NI-68177 19950215 I
- ------------------------------------------------------------------------------------------------------------------------------------
PD90-0275CON US 08/148,607 3-Nov-93 5,341,478 19940823 I
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
PD90-0326 US 07/567,303 14-Aug-90 A METHOD AND APPARATUS FOR
PROVIDING A CLIENT INTERFACE
TO AN OBJECT-ORIENTED
INVOCATION OF AN APPLICATION
- ------------------------------------------------------------------------------------------------------------------------------------
PD90-0326 TW 80106380 13-Aug-91 NI-56710 19920923 I
- ------------------------------------------------------------------------------------------------------------------------------------
PD90-0326 AU 79310/91 26-Jun-91 628264 19930121 I
- ------------------------------------------------------------------------------------------------------------------------------------
PD90-0326 CA 2,049,143 13-Aug-91 P
- ------------------------------------------------------------------------------------------------------------------------------------
PD90-0326 JP 202702/91 13-Aug-91 1929856 19950512 I
- ------------------------------------------------------------------------------------------------------------------------------------
PD90-0326 EPO 91306127.1 5-Jul-91 P
- ------------------------------------------------------------------------------------------------------------------------------------
PD90-0326CON US 08/263,901 22-Jun-94 PNOA
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
TRADOC. 1001380.v1
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 2 of 2
<PAGE>
SCHEDULE D
TRANSFERRED COMPUTERS
FAMILY DEVICE DESCRIPTION UNIT
COUNT
PC PC-1486 LAPTOP HINOTECT475 B#58477 1
HINOTECT475 B#76689 1
HINOTECT475; FAUST 1
GROUP
PC-PENTIUM/60 780WW 1
PRINTERS PRINTER-LASER LN03R PRINTER 1
LPS17-DA 1
WS-MIPS WS-MIPS DS3100 1
REV PMAX ESG 1
BONDA433 DECPC/486/33 1
DN253S1-J9 ALPHASERVER 2100A 1
FLAMINGO PROTO FLAMING SEED #628 1
FR-929AA-WC DECPC VENTURIS 5
5133FP
FR959AA-WC DECPC VENTURIS 1
5133FP
HP0000SVRSYS HP9000SVR SYS 1
MAC8100 MAC8100 1
PB47A-CA ALPHASTATION 3
255/233
SPARCSTN IPX SPARCSTN IPX 1
TC260-FA SCSI/BM 3490 TAPE DR 1
Disk Disk-Controller KZESC-BA 1
SCSI CENTRLR 1
DISK/TAPE 4
HSC5X-BA IN 07218911 1
HSC70-AA 2
Disk-RA60 RA60-00 4
RA60-AA 1
Disk-RA81 RA81-AA 1
Disk-RA82 9.7GB STORAGE ARRAY 1
RA82 IN SA482 8
SA482-AA 2
SA600 CAB 2
SA600-XA 1
Disk-RA90 1 2 GB DISK 2
RA90 IN SA600 8
Page 1 of 7
<PAGE>
Disk-RA92 RA92 DISK DRIVE 1
Disk-RFxx RF71 DISK SUBSYSTEM 1
Disk-RZ26 BA350-JA 1
Disk-RZ28 RZ28 DISK 2
RZ28-VA DISK 4
UPGRADE
Disk-RZ29 RZ29 ADDS 1
Disk-RZ55 RZ55 2
RA55 IN EXPANSION 1
RZ55 IN EXPANSION 1
BO
RZ55 IN EXPANSION 5
BOX
Disk-RZ56 SZ12B-XA RZ56 3
RZ57 DISK 2
SZ12C-CA DISK 1
SZ12C-XA DISK 1
Network Network CMHUB-AA 1
PC PC-i386 COLOR DECSTATION 1
325
DEC PC 433 1
DEC PC 435 1
WORKSTATION
DECSTATION 325C 1
DJ-PC463-A2 1
DJ-PC463-BB 2
PC435-AA 1
PC445-Y2 1
PC462-AA 1
PC462-Y2 2
PC463-AA 1
PC500-CA VM W/OPT 1
PCW10-AA
PC-i36-LAPTOP COLOR DECSTATION 1
325
DEC PC 433 1
DEC PC 435 1
WORKSTATION
DECSTATION 325C 1
CJ-PC463-A2 1
CJ-PC463-BB 2
PC435-AA 1
PC445-Y2 1
PC462-AA 1
PC462-Y2 2
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PC463-AA 1
PC500-CA VM W/OPT 1
PCW10-AA 1
PC-i386-LAPTOP 320 PC PORTABLE 1
DEC PC 320P LAPTOP 2
DEC PC 325P 2
DJ-PCP10-AA 1
FR-PCP35-GA 2
PC-i486-LAPTOP DEC PC425 LAPTOP 1
FR-P62WC-AA 1
HINOTECT475 B#75494 1
LAPTOP 1
PCP34-DA 1
(HARTZBAND)
ULTRA 450/B#145334 1
ULTRA 450/B#175711 1
ULTRA 450/B#53176 1
PC-i486/100 COMPAQ 486125-PC 1
DECPCXL4100 1
FR-776AA-WN 1
PC-i486/33 DEC PC 433 4
DEC PC 433T PCT10-A2 2
DECPC433 1
PC-PAROD1 1
PC-i486/50 PCT25-AA 2
PC-i486/66 B5-OPCHI-CA 2
B5-PCHI-CA 18
FR-776AA-WN 1
PC746 XL 1
PC-Pentium/133 DECPC X. SERVER 466 1
FR-965AA-MD 22
PC-Pentium/60 780AA 3
780WW 12
PC-Pentium/90 783WW 5
10
FR-842AA-WC 5
FR873AA-WN 1
Printers Printer-Color 300DPI COLOR 1
PRINTER
Printer-Laser LN03 SCRIPT PRINTER 1
LN03R-AA POSTCRIPT 1
LN08R-CA 1
LPS17-DA 2
LPS20-C2 1
LPS20-CA 1
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<PAGE>
Server-Alpha Server-Alpha-Law34 7HAMJ-HA 1
Server-Alpha-Sable DA-251P1-FV 1
DN241D1-AB0 2
DN-241D1-J9 1
Server-Mips Server-Mips DU-55HT2-A9 2
Server-PDP11 Server-PDP11 11X84UA1UG 1
Server-Vax Server-VAX6xxx 63AMB-YE 2
64AMA-YE 1
VAX6410 CPU 1
Server-VAX6xxx- KA651-AA
Options
TAPE CONTROLLER 2
Tapes Tape-8mm SCSI TAPE DRIVE 1
Tape-DAT PYTHON-DAB 1
Tape-TA90 TA90 1
Tape-TK50 HHTK50, CTRL, EXP B 1
Tape-TU81 TUR81-EE 1
Tape-TU90 SLAVE TAPE UNTI 1
TA90E 1
Tape-TZ8x 7X875-TA 2
Terminals Terminal VT220-A2 1
Unclassified Disk-RDxx RD54 DISK& 2
CONTROLLER
RD54fa IN VS2000 1
Unclassified 7009-C10 1
A2897A 2
DS5K-120 2
OBJBRKR ADD 1
S20TX15132P 2
Vendor HW Vendor-Apple APPLE MACINTOSH 1
IICi
MAC-85- 1
MACIICI 1
Vendor IBM IBM RISC SYSTEM 6000 1
Vendor-Sun SUN DISK 1
SUN MONITOR 1
SUN SPARCSATION IPX 1
SUN TAPE 1
SUNSPARC 3
WS-Alpha WS-Alpha-Avanti PB51A-CA 1
WS-Alpha-Famingo ALPHA FLAMINGO 1
SYSTEM
WWOPTS
DEC3000/500 1
FLAMINGO
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<PAGE>
FLAMINGO 1
FLAMINGOI ALPHA 1
DEC/3000
PE50A-A9 1
WS-Alha-Flamingo DEC3000 MODEL 800 1
II
WS-Alpha-Jensen ALPHA PC 2
DECPCAXP 150 1
JEN SYS 2
JEN SYSTEM 1
JENSENT/NT SYSTEM 1
PB222-EA 12
PB22H-CX 1
PB22H-CS(JENSEN)(20) 1
WS-Alpha-Mustang II PB420-AB 1
PB422-AA 21
PB422-AB 1
WS-Alpha-Options PELICAN SYS ADDS 1
WS-Alpha-Pelican PE301-CD 2
PELICAN SYS 1
WS-Alpha-Sandpiper DEC PC 325P 1
SANDPIPER 1
SANDPIPER PROTO 1
S4A-06
WS-Alpha-Sandpiper 45 DEC 3000 MODEL 700 1
UNIX
WKSYS
WS-Mips WS-Mips DEC5000 1
DECSTATION 3100 1
DECSTATION 3100 j.j. 1
DECSTATION 5000 1
DECSTATION 5--/S200 2
DS3100 3
DS5000 1
DS5000-PXG PM3651 1
DS5000/200 PM36 1 BK 3
W/O SZ
PM201-CH 4
PM20A DECSTAT 3100 1
WS-Mips-Options MS01 IN DS3100 1
WS-Options WS-Options 21" MINITOR 1
SYSTEM UPGRADE 1
WS-RAX WS-VAX 630QE 1
DV-35081-A4 1
DV340T1-BA MV3400 1
Page 5 of 7
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MICROVAX II 1
MICROVAX II 2
MV3400 1
PV3400 1
PV05A-CA 2
PV61A-AH 1
SV-LV55H-ER VSII 1
VAXSERVER 3300 1
VAXSTATION 2000 4MB 1
VS3100 & MEMORY 1
VS315-AA 1
VS315-B2 1
VS3500-SONY 1
VS3520/DISKS/TAPEDRI 1
VS355-AA 1
VS410-AA 1
VS410GA
VSIIGPX 8 PLAN 1
VX3100 & MEMORY 1
WS-VAX-Options 12MB MEMORY 1
VAXSTAT
3540 UPGRADE 1
SXPANSION BOX 1
IN N100709729 MEMORY 1
IN N100709731 MEMORY 1
MX650 (IN072-19336) 1
MS650-CA 1
MX65B-CA 1
MXV11-JC/AG 1
SYSTEM UPGRADE 1
UPGRADEFOR 1
MV11/GPX
VAXZ3100 MEM 1
UPGRADES
X-Terminals X-Terminal VT1200 2
(blank)
DV-3601S1-BA DV-360S1-BA 1
FLAMINGO PROTO FLAMINGO SEED #571 1
MS650-BF 16MEGMEMCA8919034Q 1
C
PC325PADD PC325P ADD 1
PCN 10-AA DEC 0C 433 1
PER40S-BA ADD SANDPIPER ADD 1
SZ12B-DA STORAGE EXPANSION 1
DISK
Page 6 of 7
<PAGE>
SZ12CC1 SZ12CC1 1
VS31S-A2 VS31S-A2 1
VS46K-AD VS461-AC 2
Page 7 of 7
<PAGE>
SCHEDULE E
TRANSFERRED EMPLOYEES
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Page 1 of 3
<PAGE>
TRANSFERRED EMPLOYEES
[***]
Page 2 of 3
<PAGE>
[***]
Page 3 of 3
<PAGE>
EXHIBIT I
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement ("Agreement") is made by and between BEA
Systems, Inc. ("BEA") and Digital Equipment Corporation ("Digital") as of
January 31, 1997 ("Effective Date").
1. CONSULTING SERVICES
Digital wishes BEA to provide consulting services to Digital to help
maintain the development direction anticipated by Digital and its customers
for certain products acquired by BEA from Digital. The statement of
development direction is attached hereto as Attachment A (the "Digital
Statement of Development Direction").
2. STATEMENT OF WORK
On or before July 1, 1997 BEA shall deliver to Digital a statement of work
identifying the services BEA will perform and the deliverables it will
prepare in order to help maintain the development direction identified in
the Digital Statement of Development Direction (the "Plan"). The Plan will
include specifications and/or requirements for each such deliverable BEA
will prepare and service it will perform. The Plan will identify the
deliverables to be completed by the quarter ending October 31, 1997, and
each quarter thereafter through the quarter ending July 31, 1998. The Plan
is subject to the approval of Director of Open Systems Middleware, not to be
unreasonably withheld or delayed. If Digital does not approve the Plan, and
BEA is unwilling or unable to modify it to Digital's reasonable
satisfaction, then Digital shall have the right to withhold up to 50% of the
next quarterly payment and 100% of any subsequent payments until Digital's
approval is obtained. Any modifications to the Plan, once accepted by
Digital, may be made only by mutual agreement, in writing.
3. PROFESSIONAL FEES
The professional fees for the consulting services provided under this
Agreement will be invoiced at a blended rate of $1,500 per person per day,
or a rate otherwise agreed by the parties. Travel time will be billed at
normal rates. BEA will provide an invoice to Digital by the end of each
quarter, beginning with the period ending April 30, 1997.
4. PAYMENT SCHEDULE
Digital will make the first payment of $1,500,000 on or before April 30,
1997 based upon a progress billing and report and an additional $1,500,000
upon delivery of the Plan, or on July 1, 1997 if the Plan is delivered on
or prior to that date. After the second payment of $1,500,000, Digital
will make all payments within thirty (30) days after the date of BEA's
invoice. If the deliverable associated with the invoiced period has not
been delivered to
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Digital prior to the end of the period, Digital may withhold up to 50% of
the next quarterly payment and 100% of all subsequent payments until the
deliverable is delivered. Once any unfulfilled deliverable is made by BEA
to Digital, then, in the event BEA fails to deliver a subsequent
deliverable, Digital may again withhold 50% of the following payment and
100% of any subsequent payment. Fees for any invoiced period, including
any expenses billed, shall not exceed the applicable amount set forth
below, and Digital shall in no event be liable for any fees invoiced in
excess of that amount.
Quarter Not-to-Exceed Amount
------- --------------------
July 31, 1997 - October 31, 1997 $1,500,000
Nov. 1, 1997 - Jan. 31, 1998 $1,500,000
Feb. 1, 1998 - Apr. 30, 1998 $1,000,000
May 1, 1998 - July 31, 1998 $1,000,000
Digital will pay any sales, use or other taxes imposed relating to the
services provided under this Agreement.
5. APPLICATION SOFTWARE AND OTHER PRODUCTS
Unless otherwise agreed in writing, BEA will own any application software,
reports and other products resulting from BEA's services under this
Agreement.
6. WARRANTY
BEA represents and warrants to Digital that (a) all of the services will be
performed in a professional manner, conforming to generally accepted
industry standards, and (b) all deliverables will conform to the
specifications and/or requirements set forth in the Statement of Work.
Digital's sole remedy under this warranty will be either to have BEA
correct any deficiencies in the services or deliverables or, to the
extent BEA fails to correct a material deficiency within thirty (30) days
following notice thereof from Digital, to terminate this Agreement and
recover appropriate damages for the deficient services. BEA makes no
other warranties or representations, express or implied, by operation of law
or otherwise, with respect to any services supplied under the Agreement.
BEA expressly disclaims any warranty of merchantability, fitness for a
particular purpose, or non-infringement.
7. ASSIGNMENT AND SUBCONTRACTORS
Digital may not assign this Agreement without BEA's prior written consent.
BEA may assign this Agreement or subcontract all or any portion of the work
to be performed by it under this Agreement, but shall retain responsibility
for the work subcontracted. This Agreement shall inure to the benefit of,
and shall be binding upon, both BEA and Digital, and their respective heirs,
legal representatives and permitted assigns.
8. NO AGENCY
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<PAGE>
Digital may not assign this Agreement without BEA's prior written consent.
BEA may assign this Agreement or subcontract all or any portion of the work
to be performed by it under this Agreement, but shall retain responsibility
for the work subcontracted. This Agreement shall inure to the benefit of,
and shall be binding upon, both BEA and Digital, and their respective
heirs, legal representatives and permitted assigns.
9. BEA EMPLOYEES
BEA reserves the right to determine the assignment of BEA employees.
Digital agrees, during the period of the services and for one year
thereafter, not to directly or indirectly solicit any BEA employee
providing those services for employment by Digital.
10. LIMITATION OF LIABILITY
In no event will BEA be liable for any indirect, consequential or
incidental damages arising out of this Agreement. In no event will BEA's
liability under this Agreement exceed the amounts received by BEA from
Digital.
11. TERMINATION
This Agreement will commence on the Effective Date and, unless terminated
as provided in Section 6 hereof, shall terminate on January 31, 1999.
Provided, however, that Digital may terminate this Agreement immediately
upon an Event of Default under the promissory note of even date in the
principal amount of $20 million payable to Digital. In that event, all of
Digital's payment obligations to BEA hereunder shall terminate.
12. MISCELLANEOUS
This Agreement will be governed by Massachusetts law. This Agreement
constitutes the entire understanding between the parties relating to this
consulting project, and supersedes all previous negotiations, commitments,
understandings and agreements. This Agreement can only be modified in a
writing signed by both parties.
DIGITAL EQUIPMENT CORPORATION BEA SYSTEMS, INC.
By:------------------------- By:----------------------
---------------------------- -------------------------
(Name) (Name)
---------------------------- -------------------------
(Title) (Title)
3
<PAGE>
ATTACHMENT A
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[***]
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EXHIBIT II
BEA SYSTEMS, INC.
DISTRIBUTION AGREEMENT
COVER SHEET
This Distributor Agreement ("Agreement") is made by and between BEA Systems,
Inc. ("BEA") and Digital Equipment Corporation ("Distributor" or "Digital") as
of January 31, 1997 ("Effective Date").
This Agreement consists of this Cover Sheet, the attached Terms and
Conditions and the attached Exhibits hereto.
Each of the undersigned represents and warrants that he or she is duly
authorized to sign this Agreement. Each party has read, understands and agrees
to the terms and conditions of this Agreement.
BEA SYSTEMS, INC. DIGITAL EQUIPMENT CORPORATION
By:__________________________________ By:_____________________________________
[Signature] [Signature]
Name: Edward W. Scott, Jr. By:_____________________________________
[Print Name]
Title: Executive Vice President Title:__________________________________
Address: BEA Systems, Inc. Address: Digital Equipment Corporation
385 Moffett Park Drive 110 Spitbrook Road
Suite 105 Mail Stop 2K03-2020
Sunnyvale, CA 94089 Nashua, NH 03082
Attention: Edward Durney, Esq. Attention: Timothy Yeaton, Director
General Counsel Commercial Products Group
Telephone: (408) 743-0049 Telephone: (603) 881-0539
Facsimile: (408) 734-9230 Facsimile: (603) 881-8059
<PAGE>
BEA SYSTEMS, INC.
STANDARD DISTRIBUTION AGREEMENT
TERMS AND CONDITIONS
BEA and Distributor agree as follows:
1. DEFINITIONS. For purposes of this Agreement, each capitalized term shall
have the respective meaning set forth in this Section 1 unless this
Agreement expressly provides otherwise.
a. "BEA AUTHORIZED DISTRIBUTOR" means an entity that is authorized in
writing by BEA to distribute BEA Products.
b. "BEA PRODUCTS" means the BEA products identified in Exhibit A that
Distributor is authorized to market and sell under this Agreement.
c. "BUNDLED PRODUCTS" means any combination of BEA and Distributor
products approved by BEA in its sole discretion. Combinations may take
any or all of the following forms: BEA and Distributor products sold
under Distributor bill of materials which includes both BEA and
Distributor products, inclusion of BEA sample products or demos on
Distributor software distribution (CD-ROMS) where the customer's
purchase of a BEA product results from use of sample product or demo,
inclusion of BEA products in Digital SI services, or any other
packaging activity which creates customer purchase of BEA products
from Distributor.
d. "SUCCESSOR PRODUCTS" include products which are developed by BEA and
which are based upon and adapted from the Former Digital Products such
as a modification, supplement, or foreign language translation.
Successor Products also include products that merge or combine a
substantial part of Former Digital Products with other computer
software or hardware and are intended to replace a Former Digital
Product.
e. "DIGITAL CUSTOMERS" shall mean its channel partners and end user
customers.
f. "DOCUMENTATION" means user manuals, reference manuals and installation
guides, or portions thereof, which BEA provides with the BEA Products
either in hard copy or electronic copy, as updated by BEA from time to
time.
g. "EXPIRATION DATE" means the date identified as the expiration date in
Exhibit A.
h. "FORMER DIGITAL PRODUCTS" means the DECmessageQ, Digital ObjectBroker,
and OBB Desktop Connection products as described in the Middleware
Acquisition and License Agreement between Distributor and BEA dated
January 31, 1997.
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i. "INTERNAL USE" means use for Digital's purposes which do not directly
produce revenue for external customers. "Internal Use" does not
include timesharing or any service bureau arrangement for its external
customers.
j. "MARKS" means BEA's trademarks, trade names, service marks, service
names, logos, insignias and other designations.
k. "DISTRIBUTOR PRODUCTS" means any Distributor products and/or services
with which the BEA Products are bundled.
l. "TERRITORY" means the geographic region(s) set forth in Exhibit A.
2. PRODUCTS AND PRICES
a. APPOINTMENT. BEA appoints Distributor as a BEA Authorized Distributor.
This appointment is non-exclusive, with BEA reserving the right to
appoint other Distributors without restriction as to number and
location. Subject to the terms and conditions of this Agreement, BEA
grants Digital a non-exclusive, non-transferable license to market,
sell and distribute BEA Products in the Territory to Digital
Customers.
b. EMBEDDED AND BUNDLED PRODUCTS. BEA grants Distributor a non-exclusive,
non-transferable license to market, sell and distribute BEA Products
in the Territory as Bundled Products or as an embedded part of a
Digital Product in which the following conditions are met:
(i) The APIs for the embedded BEA Products are not exposed or
available to the Digital Customers or customers of the
Distributor Product.
(ii) The BEA Products are delivered as a seamlessly integrated
component of the Distributor Product.
(iii) No separate installation or configuration of the BEA Products
is required or permitted.
(iv) Distributor contractually restricts all Digital Customers from
using the BEA Products except with the Distributor Product,
and makes commercially reasonable efforts to enforce that
restriction.
(v) Digital Customers of the Distributor Product will be unable to
build custom components of the Distributor Product using the
BEA Product components.
c. SEPARATE AGREEMENTS. Distributor and BEA shall agree on a separate
agreement covering NEC and Hitachi distribution of the Former Digital
Products.
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<PAGE>
3. PRODUCTS AND PRICES
a. ELIGIBLE PRODUCTS. Distributor may market and embed the BEA
Products specified in Exhibit A. BEA reserves the right at any time to
make changes to any BEA Products, including without limitation,
changes which are required (i) for security or (ii) to facilitate
performance in accordance with specifications.
b. PRICING AND DISCOUNTS. Distributor may acquire, embed and distribute
the BEA Products under the Agreement at the prices listed in BEA's
general price list, less the discount set forth in Exhibit A (or, as
applicable, at the per unit price set forth in Exhibit A). BEA agrees
to keep the Former Digital Products available for a period of two (2)
years from the date hereof and for one (1) year at prices no greater
than 25% in excess of those set forth in Exhibit A. Thereafter, BEA
reserves the right to (i) add BEA Products to, or drop BEA Products
from, the general price list and Exhibit A, (ii) increase or decrease
prices of the Former Digital Products on the general price list and/or
(iii) to increase or decrease discounts or per unit prices. Should
BEA decide to discontinue a Former Digital Product, BEA will implement
a process to its customer similar to Digital's end of life process.
Price changes become effective upon thirty (30) days' prior written
notice to Distributor. Orders requesting delivery after the effective
date of a price increase will be charged at the increased price.
Distributor agrees to waive the notice requirement in the event BEA
decreases prices or increases discounts.
c. GUARANTEED MINIMUM PAYMENT. For each year of this Agreement,
Distributor will pay BEA, as a non-refundable, guaranteed minimum
payment, the amount of $1,500,000 within thirty days after the
Effective Date or anniversary thereof. The guaranteed minimum payment
may only be recouped against software license fees owed by Distributor
under this Agreement, and may not be recouped against any other fees,
including without limitation referral fees or fees for professional
services, engineering services, porting, maintenance and training.
The guaranteed minimum payment may not be recouped against any amounts
owed by Distributors as of the Effective Date. The guaranteed minimum
payment must be recouped within one year of the Effective Date or
anniversary thereof, or it will be forfeited. Such payment is
understood to be part of, and not in addition to, the revenue
guarantee in subsection d. below.
d. REVENUE GUARANTEE. Distributor will guarantee revenue to BEA from
sales hereunder a total of $8,000,000 the first year from the
Effective Date and a total of $10,000,000 the following year. BEA and
Distributor will agree to guarantee levels for each quarter during the
first two years from the Effective Date against which accounting for
these guarantees will be done. Within sixty (60) business days after
the end of each quarter, Distributor will make payments to BEA to
include any shortfall in the revenue guarantee for the quarter
together with a report of product sold in such quarter and all other
items of revenue taken into account in determining such shortfall. Any
such shortfall payment will be taken as prepaid licenses for BEA
Products to be distributed by Distributor under this Agreement, and
Distributor shall have the right, within six months of the date of the
payment, to upgrade the licenses to subsequent revisions or successor
products of the BEA Products for which the licenses were prepaid. The
calculation of these guaranteed revenue levels will take into account
all of the BEA Products (as defined in Exhibit A) sold on computer
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<PAGE>
platforms (other than sale of TUXEDO on non-Distributor platforms) as
well as all sales of Former Digital Products, in each case whether
sold by Distributor or sold by BEA as well as all BEA Products sold to
third parties referred or introduced to BEA by Distributor and all
service and support revenues relating to BEA Products sold hereunder
or to such third parties. If BEA subsumes Former Digital Products or
any of their functionality into other BEA offerings, BEA will either
credit Distributor with a mutually agreed upon percentage of revenue
from sales of such other BEA offerings, or renegotiate the level of
the revenue guarantee for the affected period.
e. TAXES. Prices are exclusive of all applicable taxes. Distributor
agrees to pay all taxes associated with Distributor's purchase,
marketing, sublicensing and distribution of the BEA Products ordered
under the Agreement, including but not limited to sales, use, excise,
added value and similar taxes and all customs, duties or governmental
impositions, but excluding taxes on BEA's net income. Any tax or duty
BEA may be required to collect or pay upon the sale or delivery of the
BEA Products to Distributor will be paid by Distributor, and such sums
shall be due and payable to BEA upon delivery to Distributor. If
Distributor claims a tax exemption, Distributor must provide BEA with
valid tax exemption certificates.
f. PRODUCT UPGRADES. Except as otherwise provided in Section 3d above,
Distributor may upgrade any BEA Products acquired by Distributor under
this Agreement in accordance with BEA's general product upgrade
policies. This upgrade right will expire on Expiration Date or on the
date this Agreement is otherwise terminated as provided in Section 12.
g. PROTECTION. BEA will establish and provide protection for supply and
price for an identified list supplied by Digital within 90 days of the
Effective Date of non-cancelable quotes, proposals, and other
contracts.
4. MARKETING, END USER SATISFACTION AND SUPPORT
a. USE OF AUTHORIZED DISTRIBUTOR TITLE. Distributor may refer to itself,
in connection with exercising its rights under this Agreement, as a
"BEA Authorized Distributor."
b. JOINT MARKETING.
- Distributor and BEA will issue a joint press release within
thirty (30) days after the Effective Date or as mutually agreed.
- Upon BEA's request, Distributor will provide BEA with a list of
Distributor customers (which will be Distributor's Confidential
Information), which list may be used by BEA only to promote BEA
Products, and for no other purpose. Distributor will also assist
BEA in mailings, at BEA's expense, to the Distributor customer
base to promote BEA TUXEDO.
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<PAGE>
- Distributor will allow BEA to participate in Distributor's user
group meetings as Distributor determines appropriate. BEA may
advertise and promote the Distributor Product in BEA marketing
and sales programs.
- Distributor will, as Distributor deems appropriate, participate
in BEA's business development and lead generation programs, logo
and trademark usage branding campaign, and WEB marketing program,
including hotlinks.
- As appropriate and reasonable, Distributor may be invited to
participate in seminar programs, trade shows, sales teaming,
corporate visits, executive forums, event planning, developer
camps, monthly program review meetings, an advisory council,
partnership catalog, CD-ROM marketing, beta testing and demos.
BEA will make available to Distributor a reasonable number of
copies of demo software free of charge for such purpose.
- TUXEDO Ambassadors Program; BEA and Distributor will establish a
TUXEDO Ambassador's Program for select Distributor personnel,
including no charge training at the BEA training facilities in
the United States and direct access by Distributor consultants to
key BEA support personnel. Distributor's TUXEDO Ambassadors will
be responsible for providing support to other Distributor
personnel in sales and sales support on a world-wide basis.
Estimated that 20 slots per year in the BEA's training course
will be required. Distributor will also make available to BEA
personnel 20 slots per year in Digital training courses.
c. PREMIER MARKETING AGREEMENTS
- BEA will ensure that the Distributor platforms (Digital, UNIX,
OPEN VMS and WIN NT) are related in a way which is at least equal
to any other platform. To this end, BEA commits that:
- BEA will prominently display Distributor platforms in
conjunction with BEA's porting center, trade shows and other
events requiring the demonstration of software.
- BEA will prominently have a dedicated team which will focus
on Distributor for business, marketing and sales, and
technical issues.
- BEA will provide education for Distributor engineering, sales
and marketing.
- Distributor will provide BEA reasonable technical assistance
in support of port, tuning and optimization of BEA Products
on Open VMS platform.
- Providing there are no Distributor technical limitations that
inhibit BEA's efforts or ability to provide:
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<PAGE>
- All Middleware features which are intended for general
commercial availability will be available on the Distributor
platform at the same time as (or before) these features are
available on any other platform;
- No new feature intended for general commercial availability
will be available to any other platform before availability
on the Distributor platform; and
- No differential performance advantage for the Former Digital
Products will be available to any other platform (middleware
will perform on Digital UNIX at a level vs. other platforms
consistent with the relative performance of Distributor
hardware).
- It is understood by both parties that in order to maintain such
tier one status Distributor will provide:
- Timely access to new hardware and operating systems releases
- Continuing education for BEA engineering, support, sales and
marketing as deemed appropriate by Distributor to help
differentiate the Distributor offering
- Distributor will make engineering and field level resources
available to support the products
- By mutual agreement, Distributor and BEA will engage in joint
projects to differentiate the products on the Distributor
platform (e.g., 64-BIT Computing Clustering). Projects to
differentiate the Distributor Platform where billable
consultation from BEA is required will be supported by BEA at
preferred partner discounted consulting rates.
- By mutual consent, Distributor and BEA may bundle BEA products
either software of hardware. In these cases, Distributor will
ship BEA product under the Distributor logo, BEA logo or
combination of both logos, and additional discounts may apply.
d. USE OF BEA MARKS.
(i) During the term of this Agreement, Distributor shall use, and is
hereby granted a non-transferable, non-exclusive and restricted
license (with no right to sublicense, except as expressly
provided herein) to use, the marks applicable to BEA Products
acquired under this Agreement in connection with any advertising,
packaging, marketing, technical or other materials related to
Distributor's marketing and distribution of the Bundled Products
and the Distributor Products. Such use by Distributor shall be
in accordance with BEA's then current trademark usage policies as
provided, and updated from time to time, by BEA. All such usage
shall
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inure to BEA's benefit. Upon Expiration Date or termination of the
Agreement, Distributor agrees to cease all display, advertising and
use of any and all Marks.
(ii) Distributor acknowledges BEA's ownership of and title to all rights
in the Marks and the goodwill attaching to the Marks. Distributor
agrees not to contest the Marks, or make application for
registration of any Marks without BEA's express prior written
consent. Distributor agrees not to alter, remove or obscure any
proprietary notice provided by BEA, and Distributor agrees not to
attach any additional Marks without the prior written consent of BEA
or affix any Marks to any non-BEA product. Distributor agrees not to
use, employ or attempt to register any trademarks or trade names
which are confusingly similar to Marks.
e. DIGITAL CUSTOMER SATISFACTION. The BEA Products marketed and distributed
by Distributor under this Agreement are technically complex and require
high-quality, individualized pre-sale and post-sale support. This
support is necessary to achieve and maintain high Digital Customer
satisfaction. Although BEA has granted Distributor a license to market
and sell BEA Products in the Territory under the terms of this
Agreement, Distributor agrees that it will not market and sell BEA
Products in areas where it does not have the ability to support
adequately the BEA Products. In addition, in order to help ensure high
Digital Customer satisfaction, Distributor agrees to:
- Use commercially reasonable efforts to report to BEA promptly and in
writing all suspected and actual problems with any BEA Product;
- Maintain a shipment report identifying the Digital Customer, the BEA
Product sold, the date of sale, and each BEA Product's serial number;
- Retain all shipment reports for three (3) years after the date of sale,
and assist BEA, upon request, in tracing a product to a Digital
Customer, in order to distribute critical product information, locate a
BEA Product for safety reasons, or discover unauthorized marketing or
infringing acts;
- Refrain from making any representations, warranties or guarantees to
customers with respect to the specifications, features or capabilities
of the BEA Products that are inconsistent with the literature
distributed by BEA; and
- Distribute by Digital's standard distribution methods.
f. COMPLIANCE BY DIGITAL CUSTOMERS. Software acquired under this Agreement
is made available to Distributor to market only under the provisions of
this Agreement. When marketing, Distributor agrees to exercise
commercially reasonable efforts to ensure that each Digital Customer
receiving the software through Distributor understands, and agrees to be
bound by, the applicable Digital software license agreement ("Software
License Agreement"). For purposes of the Agreement, "software" includes
firmware and software stored in ROMs. In addition, Distributor agrees to
be bound by the applicable BEA
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Software License Agreement with respect to all software put to Internet
Use by Distributor, except for Former Digital Products currently in use.
g. CONFLICT OF INTEREST. Consistent with promoting BEA Products as the
premier middleware solution for open systems, Distributor shall be free
to promote the products of other companies unless it has received
documentation which in Distributor's sole determination establishes that
such promotion would unreasonably prejudice BEA's business interests.
h. INDEMNIFICATION. Distributor agrees to indemnify, hold harmless and, at
BEA's request, defend BEA and its suppliers from and against any and all
claims, liabilities, losses, damages, expenses and costs (including
attorney's fees and costs) resulting from any claim made against BEA by
a Digital Customer relating to BEA Products or Distributor Products
acquired from Distributor unless such claim results from BEA's own
negligence.
5. PLACING ORDERS AND TERMS OF PAYMENT
5.1 With respect to non-Former Digital Products only or Former Digital
Products designated by Distributor:
a. CREDIT AND PAYMENT TERMS. Distributor agrees to pay all invoices
promptly within thirty (30) days after receipt of BEA's invoice.
Invoices not paid when due will accrue interest on an annual/a monthly
basis from the date due until paid in full at a rate of one percent (1%)
per month on any outstanding balance or the maximum legal rate allowed
by law, whichever is less.
b. ACCEPTANCE OF ORDERS. All orders will be subject to acceptance in
writing by BEA at its principal place(s) of business and will not be
binding until the earlier of acceptance or shipment. Orders requesting
shipment more than ninety (90) days from the date of the order will not
be subject to acceptance by BEA and will be null and void. Should orders
for BEA Products exceed BEA's available inventory, BEA may, unless
Distributor has specifically indicated otherwise in its purchase order,
accommodate Distributor's offer by allocating available inventory and
making shipments on a basis BEA deems equitable, without liability to
BEA on account of the method of allocation chosen or its implementation.
Orders not filled or completely filled by BEA within ninety (90) days of
the date of the orders will be deemed to have lapsed and will be removed
from BEA's order entry system to the extent not filled, but revenues
which such orders would have generated to BEA shall be credited in full
against the revenue guarantee in Section 3.d. above.
c. CANCELLATION OF ORDERS. Orders accepted by BEA may be canceled without
penalty by giving written notice of cancellation to BEA at least fifteen
(15) days prior to the scheduled shipment date. Orders canceled less
than fifteen (15) days prior to the scheduled shipment dated may be
subject to a cancellation payment of fifteen percent (15%) of the
invoice value of the canceled order. In no event may Distributor cancel
any order or any portion of an order after shipment.
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d. PRODUCT AVAILABILITY AND SHIPPING DESIGNATIONS. BEA will use
commercially reasonable efforts to fill Distributor's orders for BEA
Products and meet Distributor's request for shipment dates subject to
product availability and consistent with BEA production and supply
schedules, but BEA will not be liable for any damages to Distributor or
to any third party for BEA's failure to fill any orders for any delay in
delivery or error in filling any orders for any reason whatsoever,
provided that the revenue which would have been generated from any
products which are ordered and not shipped shall be credited in full
against the revenue guarantee in Section 3.d above. Distributor may
designate up to three (3) "bill to" addresses and up to five (5) ship
to" addresses for shipments under the Agreement. BEA will ship BEA
Products and bill Distributor to Distributor's designated "ship to" and
"bill to" locations. Distributor may change the "ship to" location at
any time prior to the estimated shipment date; however, BEA may not be
able to honor a notice, unless it is in writing and received at least
fifteen (15) days prior to the estimated shipment date.
e. NO OBLIGATION TO SHIP IN EVENT OF BREACH. Even in case where BEA accepts
a purchase order, BEA will not be obligated to ship BEA Products if
Distributor is more than sixty (60) days in arrears on payments owing to
BEA Products or if Distributor is otherwise in material breach of this
Agreement at the time of the scheduled shipment, provided that the
revenue which would have been generated from any products which are
ordered and not shipped shall be credited in full against the revenue
guarantee in Section 3.d. above.
f. DELIVERY. Delivery in the United States and Canada will be made F.O.B.
BEA's facility, BEA's carrier, ground only. All other freight
arrangements will be prepaid and billed to Distributor. For delivery
outside the United States and Canada, BEA will select a carrier to
transport BEA Products to the "ship to" point(s) designated by
Distributor pursuant to Section 5(b), will prepay insurance and freight,
and will add the cost of insurance and freight, and will add the cost of
insurance and freight to Distributor's invoice.
g. TITLE AND RISK OF LOSS. Title to the tangible media of the BEA Products
(exclusive of the right retained by BEA in any Marks, patents,
copyrights, trade secrets and any other intellectual property) and all
risk of loss will pass to Distributor upon delivery at BEA's designated
shipping facility or the common carrier selected by BEA.
5.2 With respect to the Former Digital Products the following will apply
unless otherwise designated by Distributor:
a. BEA will supply to Distributor a reasonable number of copies of the
software masters free of charge. The masters will be delivered 14 days
in advance of BEA's FCS date or as soon as available with the goal of
BEA and Distributor achieving a simultaneous first customer ship. The
software masters will be sent automatically to Distributor, not
requiring a purchase order.
b. BEA will supply software binaries to Distributor via a gold master on
industry standard media types. BEA will also provide the appropriate
software tools/documentation (if
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owned by BEA) required to replicate such Former Digital Products either
physically or on-line.
c. BEA will supply software documentation masters to Distributor either
electronically or on physical industry standard media. BEA will use
commercially reasonable efforts to provide masters which conform to the
industry standard.
d. Distributor will use materials of its choice when replicating
documentation provided such materials meet industry standards. Distributor
will not alter any trademarks, copyright notices or the content of the kits
and will utilize security standards to safeguard the distribution of the
Former Digital products comparable to those employed for its own software
products.
6. PROPRIETARY RIGHTS
a. PROPRIETARY RIGHTS. Notwithstanding any provision of this Agreement to
the contrary, BEA (or the licensor through which BEA obtained the rights
to distribute the BEA Products) exclusively owns and retains all right,
title, interest in and to, and ownership of, all intellectual property
rights in the BEA Products (any copies and portions thereof), whether
in machine readable or printed form, including, without limitation,
(i) all software, firmware, documentation and related materials which
are acquired from, produced by or shipped by BEA under this Agreement,
(ii) all modifications to, and derivative works, compilations or
collective works of, the BEA Products made by Distributor, BEA or any
third party, and (iii) all related technical know-how and all rights
therein (including without limitation, rights in patents, copyrights,
and trade secrets applicable thereto). BEA does not transfer any
portion of such title and ownership, or any of the associated goodwill,
to Distributor, and this Agreement should not be construed to grant
Distributor any right or license, whether by implication, estoppel or
otherwise, except as expressly provided herein. Distributor agrees to be
bound by and observe the proprietary nature of the BEA Products acquired
this Agreement. Distributor agrees to take reasonable measures to avoid
action which would jeopardize, limit or interfere in any manner with
BEA's (or its licensors") ownership of and rights with respect to the BEA
Products and Documentation. Except as set forth in this Agreement, or as
may be permitted in writing by BEA,, Distributor agrees not to provide BEA
Products or any part or copies there to any third party without the prior
written consent of BEA. The provisions of the paragraph shall not apply to
the Former Distributor Products or any Derivative Product thereof until
BEA has discharged in full all of its obligations under the Promissory
Note (the "Note") of even date in the principal amount of $20 million
payable to Distributor.
b. PROPRIETARY NOTICES. Neither Distributor nor any of its employees or
agents shall remove or alter any trademark, trade name, copyright, or
other proprietary notices, legends, symbols, or labels appearing on or
in copies of the BEA Products and Documentation delivered to Distributor
by BEA.
c. PRODUCT RESTRICTION TAMPERING. Except to the extent permitted by
applicable law despite this restriction, Distributor agrees not to copy,
modify, translate, decompile, disassemble,
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or otherwise reverse engineer, or otherwise determine or attempt to
determine source code or protocols from, the executable coded of the BEA
Products and Documentation, and agrees not to permit or authorize anyone
else to do so. Distributor also agrees that any such works are
derivative works and as such are the sole and exclusive property of BEA or
its licensor.
7. CONFIDENTIAL INFORMATION
a. CONFIDENTIAL INFORMATION. For purposes of this Agreement "Confidential
Information" shall mean information including, without limitation,
computer programs, code, algorithms, names and expertise of employees
and consultants, know-how, formulas, processes, ideas, inventions,
(whether patentable or not), schematics and other technical, business,
financial and product development plans, customer lists, information
regarding distribution channels, forecasts, and strategies, whether or
not such times are marked "Confidential", but if disclosed orally,
identified as confidential and reduced to writing within thirty (30) days
after such oral disclosure.
b. RESTRICTIONS ON DISCLOSURE AND USE. Each party agrees to maintain all
Confidential Information in confidence to the same extent that it
protects its own similar confidential and to use such Confidential
Information only as permitted under this Agreement. Each party agrees to
take all reasonable precautions to prevent any unauthorized disclosure or
use of Confidential Information including, without limitation, disclosing
Confidential Information only to its employees, independent contractors,
consultants, and legal and financial advisors (i) with a need to know
further permitted uses of such information, (ii) who are parties to
appropriate agreements sufficient to comply with this Section 7, and
(iii) who are informed to the nondisclosure/non-use obligations imposed
by this Section 7 and both parties shall take appropriate steps to
implement and enforce such non-disclosure/non-use obligations.
c. EXCLUSIONS. The foregoing restrictions on disclosure and use shall
survive for five (5) years following termination of this Agreement but
shall not apply with respect to any Confidential Information which:
(i) was or becomes publicly known through no fault of the receiving
party; (ii) was rightfully known or becomes rightfully known to the
receiving party without confidential or proprietary restriction from a
source other than the disclosing party, (iii) is independently developed by
the receiving party without the participation of individuals who have had
access to the Confidential Information; (iv) is approved by the
disclosing party for disclosure without restriction in a written document
which is signed by a duly authorized officer of such disclosing party; or
(v) the receiving party is legally compelled to disclose; provided,
however, that prior to any such compelled disclosure, the receiving party
will (A) assert the privileged and confidential nature of the
Confidential Information against the third party seeking disclosure and
(B) cooperate fully with the disclosing party in protecting against any
such disclosure and/or obtaining a protective order narrowing the scope
of such disclosure and/or use of the Confidential Information, but only
as and to the extent necessary to legally comply with such compelled
disclosure.
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8. WARRANTIES
a. LIMITED WARRANTY. Subject to the limitations set forth in this Agreement,
BEA warrants only to Distributor that the BEA Products when properly
adapted, installed, and used will conform to the functional
specifications set forth in the Documentation in effect when the BEA
Products are shipped by BEA to Distributor. All warranty claims will be
made with the time period of ninety (90) days ("Warranty Period") from
the date Distributor first ships each version of a BEA Product to Digital
Customers. All warranty claims not made within the time period specified
above shall deemed waived. BEA's warranty and obligation is solely for the
benefit of Distributor who has no authority to extend this warranty to any
other person or entity. BEA MAKES NO WARRANTY THAT ALL ERRORS OR FAILURES
WILL BE CORRECTED.
b. EXCLUSIVE WARRANTY. THE EXPRESS WARRANTY SET FORTH IN SECTION 8(a)
CONSTITUTES THE ONLY WARRANTY WITH RESPECT TO THE BEA PRODUCTS AND
DOCUMENTATION. BEA MAKES NO OTHER REPRESENTATION OR WARRANTY OR
CONDITION OF ANY KIND WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY
OPERATION OF LAW) WITH RESPECT TO THE BEA PRODUCTS OR DOCUMENTATION.
BEA EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE. BEA DOES NOT WARRANT THAT THE BEA
PRODUCTS OR DOCUMENTATION ARE ERROR-FREE OR THAT OPERATION OF THE BEA
PRODUCTS WILL BE SECURE OR UNINTERRUPTED AND HEREBY DISCLAIMS ANY AND ALL
LIABILITY ON ACCOUNT THEREOF. THERE IS ALSO NO IMPLIED WARRANTY OF
NON-INFRINGEMENT. THE SOLE REMEDY FOR INFRINGEMENT IS PROVIDED IN
SECTION 9. This subsection shall be enforceable to the extent allowed by
applicable law.
c. EXCLUSIONS FROM WARRANTIES. BEA does not warrant BEA products which are
not manufactured by BEA. Such products are provided by BEA on an "as is"
basis. Any warranty service for such non-BEA products will be provided by
the manufacturer of such non-BEA products in accordance with the
applicable manufacturer's warranty. In addition, BEA shall have no
obligations under the warranty provisions set forth in Section 8(a) if
any nonconformance is caused by: (a) the incorporation, attachment or
other engagement of any attachment, feature, program, or device, other
than by BEA, to the BEA Products, or any part thereof; or (b) accident,
transportation, neglect or misuse, alteration, modification or
enhancement of the BEA Products other than by BEA; use of supplies or
materials not meeting specifications; use of the BEA Products for other
than the specific purpose of which the BEA Products are designed; use of
the BEA Products on any systems other than the specified hardware
platform for such BEA Products; Distributor's use of defective media
(other than defective media provided by BEA to Distributor) or
Distributor's failure to incorporate any update previously released by BEA
which corrects such nonconformance.
d. REMEDY. In the event that Distributor finds errors in or a failure of the
BEA Products that prevents the BEA Products from substantially conforming
to the functional specifications set forth in the Documentation in
effect when the BEA Products are shipped by BEA to
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Distributor, and notifies BEA during the Warranty Period, BEA will
correct promptly, at no charge to Distributor, any such errors or failures
or will replace such defective BEA Products with comparable BEA Products.
9. INDEMNIFICATION
a. INDEMNIFICATION. BEA shall defend any action, claim or demand brought
against Distributor to the extent it is based on a claim that
distribution by Distributor of the BEA Products furnished hereunder
infringes any valid United States patent as of the Effective Date, United
States copyright, United States trademark, or trade secret in the United
States (collectively, "Claims"). BEA will pay resulting costs, damages
and legal fees finally awarded against Distributor in such action which
are attributable to such Claims provided that Distributor (a) promptly
(within (20) days) notifies BEA in writing of any such Claim and BEA has
sole control of the defense and all related settlement negotiations,
and (b) reasonably cooperates with BEA in defending or settling such claim.
b. ACTUAL OR POTENTIAL PRODUCT INFRINGEMENT. Should a BEA Product (or the
operation of the BEA Product) become, or in BEA's opinion be likely to
become, the subject of infringement of any patent, copyright, trademark,
trade secret or any other third-party right, Distributor agrees to permit
BEA, at its option and expense, to procure for Distributor the right to
continue using the BEA Products, to replace or modify them so that they
become non-infringing, or if neither of the above commercially
reasonable, to remove the BEA Product from the list of BEA Products which
Distributor is authorized to distribute under this Agreement provided,
however, that in such event an appropriate adjustment will be made to the
revenue guarantee set forth in Section 3d. above.
c. DISCLAIMER. THIS SECTION 9 STATES THE ENTIRE LIABILITY OF BEA, AND
TOGETHER WITH DISTRIBUTOR'S TERMINATION RIGHTS ARISING UNDER THIS
AGREEMENT, THE EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OF PATENTS,
COPYRIGHTS, TRADEMARKS OR ANY OTHER INTELLECTUAL PROPERTY RIGHTS, WHETHER
UNDER THEORY OR WARRANTY, INDEMNITY OR OTHERWISE.
10. LIMITATION OF LIABILITY
a. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT (UNLESS
OTHERWISE REQUIRED BY APPLICABLE LAW), NEITHER DISTRIBUTOR OR BEA
WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES (INCLUDING LOST PROFITS) SUSTAINED OR INCURRED IN CONNECTION
WITH THIS AGREEMENT AND THE BEA PRODUCTS THAT ARE SUBJECT TO THIS
AGREEMENT REGARDLESS OF THE FORM OF ACTION OR LEGAL OR EQUITABLE THEORY
AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE.
b. NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY
OR INVALIDITY OF THIS SECTION 10, THE TOTAL
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LIABILITY OF BEA OR ITS SUPPLIERS, REGARDLESS OF THE FORM OF ACTION,
SHALL NOT EXCEED THE GREATER OF (1) $100,000 OR (2) THE PRICE, LESS ANY
APPLICABLE DISCOUNT, OF THE BEA PRODUCT THAT CAUSED THE DAMAGES OR GAVE
RISE TO THE CAUSE OF ACTION. THIS LIMITATION SHALL NOT APPLY TO BEA'S
LIABILITY UNDER SECTION 9.
11. TERM
The term of this Agreement, unless terminated earlier as provided in the
Agreement, will commence on the Effective Date and will automatically
expire on the Expiration Date. The acceptance of any purchase order by
BEA after the Expiration Date will be construed as extending this
Agreement on a month-to-month basis, with the month-to-month Agreement
subject to termination at any time by either party upon thirty (30) days'
prior written notice. Nothing contained in this Agreement should be
interpreted as requiring either BEA or Distributor or Distributor to
renew or extend this Agreement.
12. TERMINATION
a. TERMINATION FOR CAUSE. Either party may terminate this Agreement for the
breach by other party of a material term of this Agreement, provided that
then non-breaching party will first give the other party written notice
of the breach and a reasonable period of a least thirty (30) days in
which to cure the alleged breach. If a cure is not achieved during the
cure period, then the non-breaching party may terminate this Agreement
upon written notice. Notwithstanding the foregoing, BEA shall have the
right to terminate this Agreement immediately if Distributor materially
breaches Sections 2(a), 4(d), 6(c) or 7. Distributor may terminate this
Agreement immediately upon an Event of Default under the Note.
b. BANKRUPTCY. Either party may terminate this Agreement upon written notice
to the other party if the other party (i) is not paying its debts as
such debts generally become due, (ii) becomes insolvent, (iii) files or
has filed against it a petition (or other document), under any Bankruptcy
Law or similar law, which is unresolved within dissolution, liquidate,
composition, financial reorganization or recapitalization with creditors,
(v) makes a general assignment or trust mortgage for the benefit of
creditors, or (vi) if a receiver, trustee, custodian or similar agent is
appointed or takes possession of any of its property or business.
c. EFFECT ON RIGHTS.
(i) Termination of this Agreement by either party shall not act as a
waiver of any breach of this Agreement and shall not act as a release
of either party from any liability for breach of such party's
obligations under this Agreement.
(ii) Except as specified in Section 12(e)(ii), upon termination or
expiration of this Agreement, all licenses for BEA Products and
Documentation granted under
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this Agreement shall terminate and the revenue guarantee in
Section 3.c. above shall terminate.
(iii) Except where otherwise specified, the rights and remedies granted
to a party under this Agreement are cumulative and in addition to,
and not in lieu of, any other rights or remedies which the party
may possess at law or in equity including without limitation
rights or remedies under applicable patent, copyright, trade
secrets, or proprietary rights laws, rules or regulations.
d. EFFECTS OF TERMINATION.
(i) Within thirty (30) calendar days after termination of this
Agreement, Distributor shall either deliver to BEA or destroy all
copies of the BEA Products and Documentation (except as provided
in Section 12(e)(ii) and any other materials provided by BEA to
Distributor hereunder in its possession or under its control, and
shall furnish to BEA an affidavit signed by an officer of
Distributor certifying that, to the best of its knowledge, such
delivery or destruction has been fully effected.
(ii) Notwithstanding Section 12(e)(i) and provided that this Agreement
is not terminated by BEA pursuant to Section 12(a) or 12(b) and
that Distributor fulfills its obligations specified in this
Agreement with respect to such items, Distributor may continue to
use and retain a limited number of copies of the BEA Products and
Documentation to the extent, but only to the extent, necessary to
support BEA Products rightfully distributed to Digital Customers
by Distributor prior to termination of this Agreements.
e. CONTINUING OBLIGATIONS.
(i) PAYMENT OF ACCRUED FEES. Within thirty (30) calendar days of
termination of this Agreement, Distributor shall pay to BEA all
sums then due and owing.
(ii) CONTINUANCE OF SUBLICENSES. Notwithstanding the termination of
this Agreement, all, all End User sublicenses which have been
properly granted by Distributor pursuant to this Agreement prior
to its termination shall survive. Distributor shall cooperate with
BEA to allow BEA to take over all Distributor accounts that may
wish to continue to obtain BEA Products.
(iii) OTHER CONTINUING OBLIGATIONS. The respective rights and
obligations of BEA and Distributor under the provisions of
Sections 4(d)(ii), 4(h), 5.1(a), 5.1(d), 6, 7, 8, 9, 10, 12(c),
12(d), 12(e)(iii) and 13 shall survive any termination of this
Agreement.
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13. GENERAL PROVISIONS
a. FORCE MAJEURE. If either party is prevented from performing any
portion of the Agreement (except the payment of money) by caused
beyond its control, including, without limitation, labor disputes,
civil commotion, war, governmental regulations or controls,
casualty, inability to obtain materials or services or acts of God,
such defaulting party will be excused from performance for the
period of the delay and for a reasonable time thereafter.
b. GOVERNING LAW. This Agreement is entered into in the U.S.A., and
this Agreement shall be governed by and construed in accordance with
the laws of the State of California, U.S.A., without reference to
its conflicts of law provisions.
c. WAIVER AND AMENDMENT. The waiver by either party of a breach of or a
default under any provision of this Agreement, shall not be
construed as a waiver of any subsequent breach of the same or any
other provision of the Agreement, nor shall any delay or omission on
the part of either party to exercise or avail itself of any right or
remedy that it has or may have hereunder operate as a waiver of any
right or remedy. No amendment or modification of any provision of
this Agreement shall be effective unless in writing and signed by a
duly authorized signatory of BEA and Distributor.
d. ASSIGNMENT. The Agreement is not assignable by either party nor are
the obligations imposed on either delegable, in whole or in part,
without the other party's prior written consent other than to a
parent, subsidiary or affiliate. Any attempt to assign, sublicense
(except as expressly permitted herein) or transfer any of the
rights, duties or obligations under this Agreement in derogation
hereof without the other party's written consent will be null and
void.
e. ATTORNEY'S FEES. Each party agrees to pay the other's reasonable
attorneys' fees and costs of litigation if the original party, for
any cause whatsoever, brings suit against the other party and the
other party is finally adjudicated not to have liability.
f. NOTICE. Unless otherwise agreed to by the parties, all notices
required under this Agreement will be deemed effective when received
and made in writing by either (i) registered mail or certified mail,
return receipt (ii) overnight mail or express courier, in each case
addressed and set to the address indicated on the Cover Sheet and to
the attention of the party executing the Agreement or that person's
successor, or (iii) by telephone facsimile transfer appropriately
directed to the attention of the party executing the Agreement or
the person's successor. Quarterly reports and payments under
Section 3d. shall be sent to BEA Attn: Chief Financial Officer.
Copies of notices to Distributor shall also be sent to the attention
of Eric Thorp, Esq., 111 Powdermill Road, Maynard, MA 01754.
g. SEVERABILITY. If the application of any provision or provisions of
this Agreement to any particular facts or circumstances shall be
held to be invalid or unenforceable by any court of competent
jurisdiction, then (a) the validity and enforceability of such
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provision or provisions as applied to any other particular facts or
circumstances and the validity of other provisions of this Agreement
shall not in any way be affected or impaired thereby and (b) such
provision or provisions shall be reformed without further action by
the parties hereto to and only to the extent necessary to make such
provision or provisions valid and enforceable when applied to such
particular facts and circumstance.
h. RELATIONSHIP OF THE PARTIES. No agency, partnership, joint venture,
or employment is created as a result of this Agreement, and neither
Distributor nor its agents have any authority of any kind to bind
BEA in any respect whatsoever. Each party acknowledges that the
parties to this Agreement are independent contractors and that it
will not, except in accordance with the Agreement, represent itself
as an agent or legal representative of the other.
i. COMPLIANCE WITH LAWS. Before Distributor places any orders under
this Agreement, each party will comply, at its own expense, with all
statutes, regulations, rules, ordinances, and orders of any
governmental body, department or agency which apply to or result
from such party's obligations under this Agreement. Distributor
agrees to not export BEA Products, directly or indirectly or
indirectly, separately or as part of system, without first obtaining
proper authority to do so from the appropriate governmental agencies
or entities, as may be required by law. In particular, Distributor
assures BEA that, absent any required prior authorization from the
Office of Export Licensing, U.S. Department of Commerce, Distributor
will not export or re-export (as defined in Section 779 of the
Export Administration Regulations, as amended ("Regulations")) the
BEA Products, any technical data or other confidential information,
or direct product of any of the foregoing, to any Group Q, S, W, Y
or Z country specified in Supplement No. 1 to Section 770 of the
Regulations or each other countries as come under restriction by
action of the United States Government authorities. The countries
subject to restriction by action of the United States government are
subject to change, and it is Distributor's responsibility to comply
with the United States Government requirements as they may be
amended from time to time.
j. GOVERNMENT RIGHTS. Distributor agrees to (I) identify the BEA
Products in all proposals and agreement with the United States
Government or any contractor for the United States Government, and
(ii) identify or mark the software products provided pursuant to any
agreement with the United States Government or any contractor for
equivalent to that afforded commercial computer software and related
documentation developed at private expense and provided with
Restricted Rights as defined in DOD FAR Supplement 48 C.F.R.
252.227-7013(c)(1)(ii) in effect as of May 18, 1987 or any successor
regulation.
k. RECORDS EXAMINATIONS. Each party agrees to allow the other to
examine its records to determine compliance or noncompliance with
the Agreement. Any examination will be at the expense of the
examining party and will be solely for the purpose of ensuring
compliance with the Agreement. Any examination will be conducted
only by an authorized representative of the examining party, and
will occur during regular
-18-
<PAGE>
business hours at the other party's offices and will not interfere
unreasonably with the other party's business activities.
Examinations will be made no more frequently than quarterly, and the
examining party will give the other party ten (10) days or more
prior written notice of the date of the examination of the name of
the authorized representative who will be conducting the
examination. All information obtained by the authorized
representative conducting the audit will be maintained confidential
by the representative. The examiner will give Distributor and BEA an
examination report containing only the information necessary to
indicate compliance or non-compliance with the Agreement. If the
examiner determines that a party is not in material compliance with
this Agreement, such party shall promptly remedy any such
non-compliance and will bear the expenses of the audit.
l. EXHIBITS. The Exhibits to this Agreement are incorporated therein by
this reference.
m. ENTIRE AGREEMENT. This Agreement, including the Exhibits attached
hereto, constitutes the entire agreement between the parties
concerning the subject matter hereof and supersedes all prior or
contemporaneous proposals or agreements whether oral or written, and
all communications between the parties relating to the subject
matter of this Agreement and all past course of dealing or industry
custom. In particular, this Agreement supersedes and replaces any
other TUXEDO distribution agreements that Distributor may have
entered into with any party. Unless otherwise expressly agreed in
writing by the parties, the terms and conditions of this Agreement
shall prevail, notwithstanding any variance with any purchase order
or other written instrument submitted by Distributor, whether or not
formally rejected by BEA. This Agreement will not be supplemented or
modified by any course of dealing in usage of trade.
-19-
<PAGE>
EXHIBIT A
BEA PRODUCTS AND DISCOUNTS
Expiration Date: Three Years from the Effective Date
Territory: Worldwide
Eligible BEA Products:
1. Former Digital Products
2. BEA TUXEDO
3. Successor Products
Discount:
1. [***]
2. [***]
3. The above discounts will not apply in any case where
government flowdowns are required. The discount in each such
case will be negotiated with Distributor on a case-by-case
basis.
4. The prices in effect at the commencement of this Agreement for
Former Digital Products are based upon Distributor's price
list and for BEA TUXEDO upon BEA's price list.
-20-
<PAGE>
EXHIBIT III
BILL OF SALE
This Bill of Sale, dated as of the 31st day of January, 1997, is
executed and delivered by Digital Equipment Corporation, a Massachusetts
corporation ("Digital"), to BEA Systems, Inc., a Delaware corporation
("Purchaser"). All capitalized terms used herein and not defined herein shall
have the respective meanings ascribed to them in the Middleware Acquisition
and License Agreement, dated January 31, 1997 between Seller and Purchaser
(the "Agreement").
WHEREAS, pursuant to the Agreement, Seller has agreed to sell, transfer,
convey, assign and deliver to Purchaser certain assets used in the Business,
and Purchaser has agreed to assume certain of the liabilities of Seller.
NOW, THEREFORE, in consideration of the execution and delivery of the
Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller hereby agrees as follows:
1. Seller hereby sells, transfers, conveys, assigns and delivers to
Purchaser, its successors and assigns, to have and to hold forever, all of
Seller's rights, title and interest in and to the Middleware Assets.
Notwithstanding the foregoing, the assets to be transferred to Purchaser
under this Bill of Sale shall not include the Retained Assets.
2. This sale, transfer, conveyance and assignment has been executed and
delivered by Seller in accordance with the Agreement and is expressly made
subject to the terms and conditions thereof.
3. The terms and conditions of this Bill of Sale shall be governed and
construed in accordance with the laws of the Commonwealth of Massachusetts.
4. Seller, by its execution of this Bill of Sale, and Purchaser, by its
acceptance of this Bill of Sale, each hereby acknowledges and agrees that
neither the representations and warranties nor the rights and remedies of any
party under the Agreement shall be deemed to be enlarged, modified or altered
in any way by this Bill of Sale.
IN WITNESS WHEREOF, Seller and Purchaser have caused this Bill of Sale
to be executed under seal as of the date first above written.
DIGITAL EQUIPMENT CORPORATION
By: -------------------------
Name: -----------------------
ACCEPTED: Title: ----------------------
BEA SYSTEMS, INC.
By: -------------------------
Name: -----------------------
Title: ----------------------
<PAGE>
EXHIBIT IV
ASSIGNMENT OF PATENTS AND TRADEMARKS
WHEREAS, DIGITAL EQUIPMENT CORPORATION, a Massachusetts Corporation
having its principal executive offices at 111 Powdermill Road, Maynard,
Massachusetts 01754 ("Digital"), is the owner of the trademark
"OBJECTBROKER", listed on Attachment I, and is the owner of patents and
patent applications which are listed on Attachment II; and
WHEREAS, BEA Systems Inc., a Delaware corporation with a place of
business at 385 Moffett Park Drive, Suite 105, Sunnyvale, CA 94089-1208
("BEA") is desirous of acquiring all of Digital's right, title and interest
in and to said trademark; and said patents and patent applications.
NOW, THEREFORE, for good and valuable consideration, Digital hereby
assigns to BEA, all of Digital's right, title and interest in and to said
trademark and all good will associated therewith, and subject to any and all
existing licenses, all of Digital's right, title, and interest in and to said
patents and said patent applications.
Nothing in this Assignment of Patents And Trademarks, expressed or
implied, is intended or shall be construed to confer upon, or to give to, any
person, firm, corporation, or other entity other than Digital, BEA and their
respective successors and permitted assigns, any right or remedy under or by
reason of this Assignment of Patents And Trademarks or any term, covenant, or
condition hereof, and all the terms, covenants, conditions, promises, and
agreements contained in this Assignment of Patents And Trademarks shall be
for the sole and exclusive benefit of Digital, BEA and their respective
successors and permitted assigns.
Signed at Maynard, Massachusetts, this ----- day of -----, 1997.
DIGITAL EQUIPMENT CORPORATION
By: -------------------------
Name: -----------------------
Title: ----------------------
Commonwealth of Massachusetts )
) ss.
County of Middlesex )
Subscribed and sworn to before me on this ----- day of -----, 1997.
- --------------------
Notary Public
Commission Expires:
<PAGE>
ATTACHMENT I
MARK TERRITORY APPLICATION DATE & NUMBER REGISTRATION DATE & NUMBER
OBJECTBROKER USA 9 SEP 1993, 74/434349 15 AUG 1995, 1912324
<PAGE>
ATTACHMENT II APPLICATIONS/PATENTS
<TABLE>
<CAPTION>
Matter No.: Country Code: Application No.: Filed Date: Patent No.: Issue Date Patent Status Matter Title:
<S> <C> <C> <C> <C> <C> <C> <C>
METHODS AND APPARATUS FOR
IMPLEMENTING DATA BASES TO
PROVIDE OBJECT-ORIENTED
PD90-0327 US 07/567,298 14-Aug-90 5,280,610 19940118 I INVOCATION OF APPLICATIONS
PD90-0327 AU 79309/91 26-Jun-91 638138 19931011 I
PD90-0327 CA 2,049,133 13-Aug-91 P
PD90-0327 JP 202703/91 13-Aug-91 P
PD90-0327 TW 8016381 13-Aug-91 NI-55644 19920722 I
PD90-0327 GB 91306172.7 8-Jul-91 472279 19950816 I
PD90-0327 FR 91306172.7 8-Jul-91 472279 19950816 I
PD90-0327 DE 91306172.7 8-Jul-91 69112156.7 19950816 I
PD90-0327 IT 91306172.7 8-Jul-91 472279 19950816 I
PD90-0327 NL 91306172.7 8-Jul-91 472279 19950816 I
METHODS AND APPARATUS FOR
PROVIDING DYNAMIC INVOCATION OF
APPLICATIONS IN A DISTRIBUTED
PD90-0275 US 07/567,389 14-Aug-90 A HETEROGENEOUS ENVIRONMENT
PD90-0275 AU 79454/91 26-Jun-91 639802 19931130 I
PD90-0275 CA 2,049,121 13-Aug-91 2,049,121 19960813 I
PD90-0275 JP 202700/91 13-Aug-91 2011115 19960202 I
PD90-0275 EPO 91306128.9 5-Jul-91 P
PD90-0275 TW 80106379 13-Aug-91 NI-68177 19950215 I
PD90-0275CON US 08/148,607 3-Nov-93 5,341,478 19940823 I
METHOD AND APPARATUS FOR
PROVIDING A CLIENT INTERFACE
TO AN OBJECT-ORIENTED INVOCATION
PD90-0326 US 07/567,303 14-Aug-90 A OF AN APPLICATION
PD90-0326 TW 80106380 13-Aug-91 NI-56710 19920923 I
PD90-0326 AU 79310/91 26-Jun-91 628264 19930121 I
PD90-0326 CA 2,049,143 13-Aug-91 P
PD90-0326 JP 202702/91 13-Aug-91 1929856 19950512 I
PD90-0326 EPO 91306127.1 5-Jul-91 P
PD90-0326CON US 08/263,901 22-Jun-94 PNOA
TRADOC 100138.v1
</TABLE>
<PAGE>
Exhibit V
CONVERTIBLE PROMISSORY NOTE
$17,000,000.00 Boston, Massachusetts
January 31, 1997
BEA Systems, Inc., a Delaware corporation (the "Borrower"), for value
received, hereby promises to pay to the order of Digital Equipment
Corporation, a Massachusetts corporation (the "Payee"), the principal sum of
Seventeen Million Dollars ($17,000,000.00) in lawful money of the United
States of America in immediately available funds without interest except as
provided herein. The principal amount of this Note shall be payable in the
following installments:
On or before February 1, 1998 -- $2,000,000.00 (the "First Installment")
On or before February 1, 1999 -- $4,000,000.00 (the "Second Installment")
On or before February 1, 2000 -- $11,000,000.00 (the "Third Installment")
1. PREPAYMENT
The Borrower may prepay this Note in whole or in part without premium,
penalty or fee at any time. If a voluntary or mandatory partial prepayment is
made, it will not change the due date of any principal installment, but will
first be applied to the payment of any fees, expenses or other costs the
Borrower is obligated to pay hereunder; and then to reduce the amount of the
latest principal installment payable hereunder.
2. PAYMENT OF COSTS AND EXPENSES
The Borrower shall pay all costs and expenses, including, without
limitation, reasonable attorneys' fees and all expenses and disbursements of
counsel, in connection with the enforcement of any of the Payee's rights
against the Borrower under this Note (whether or not suit is instituted by or
against the Payee). If Borrower elects to prepay, Payee will quote to
Borrower A present value discount of the amounts remaining to be paid under
the Note based on Payee's standard practice.
3. AGREEMENT
This Note is issued pursuant to a Middleware Acquisition and License
Agreement by and between Borrower and Payee dated January 31, 1997 (the
"Agreement"). The Agreement provides for restrictions on the transferability
of this Note, which restrictions are incorporated by reference herein.
<PAGE>
4. EVENTS OF DEFAULT.
(a) The occurrence of any of the following events shall constitute an
"Event of Default";
(i) Failure of the Borrower to make any payments when due hereunder;
(ii) Default in the performance of any liability, covenant,
obligation or agreement of the Borrower contained herein;
(iii) If a default shall occur, which is not cured within any
applicable grace period or a waiver therefor is not expressly provided in
writing, (x) in the payment of any principal, interest or premium with
respect to any indebtedness for borrowed money of the Borrower or (y)
under any agreement or instrument under or pursuant to which any such
indebtedness may have been issued, created, assumed, guaranteed or
secured by the Borrower, which shall permit (assuming the giving of
appropriate notice if required) the acceleration of such indebtedness
(without giving effect to any standstill or acceleration blockage period)
or if any such indebtedness shall be declared due and payable prior to
the stated maturity thereof or shall not be paid in full at the stated
maturity thereof;
(iv) If the Borrower shall make an assignment for the benefit of
creditors or shall admit in writing its inability to pay its debts as
they become due;
(v) If the Borrower shall file a voluntary petition in bankruptcy, or
shall be adjudicated a bankrupt or insolvent, or shall file any petition
or answer seeking any reorganization arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under the
United States bankruptcy code or other applicable federal, state or
similar statute, law or regulation, or shall seek or consent to or
acquiesce in the appointment of any trustee, receiver or liquidator of
the Borrower, as the case may be, or of all or any substantial part of
its properties;
(vi) If within sixty (60) days after the commencement of any
proceedings against the Borrower seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief
under the United States bankruptcy code or other applicable federal,
state or similar statute, law or regulation, such proceeding shall not
have been dismissed or if, within sixty (60) days after the appointment,
without the consent or acquiescence of the Borrower, as the case may be,
or of all or any substantial part of its properties, such appointment
shall not have been vacated; or
(vii) If the Borrower shall be dissolved or shall fail to maintain its
existence in good standing, or if the usual business of the Borrower
shall be suspended or terminated.
- 2 -
<PAGE>
The Borrower agrees that it shall give prompt written notice to the
Payee upon the occurrence of an Event of Default. Upon the occurrence of an
Event of Default, all rights and remedies of the Payee under this Note and
under applicable law shall be cumulative, not exclusive.
(b) Upon the occurrence at any time of an Event of Default, the
aggregate amount outstanding hereunder shall, at the option of the Payee,
become immediately due and payable in full upon notice or demand in writing
to the Borrower, provided, however, that upon the occurrence of an event
under Clauses (iv), (v) or (vi) above, the aggregate amount outstanding shall
automatically become due and payable in full. Upon this Note becoming due and
payable in full, whether automatically or at the Payee's election, the rights
of the Borrower and the Payee arising prior to the effective date thereof
shall not be affected and the provisions hereof shall continue to be fully
operative until all transactions entered into, rights created or amounts
outstanding prior to such date shall have been fully disposed of, concluded
or liquidated. All representations, warranties, covenants, waivers and
agreements contained herein shall survive termination hereof unless otherwise
provided. Notwithstanding the foregoing, if after receipt of any payment of
all or any part of the amounts owed hereunder, the Payee is for any reason
compelled to surrender such payment to any person or entity because such
payment is determined to be void or voidable as a preference, impermissible
setoff, a diversion of trust funds or for any other reason, the Borrower
shall be liable to, and shall indemnify and hold the Payee harmless for, the
amount of such payment surrendered until the Payee shall have been finally
and irrevocably paid in full. The provisions of the foregoing sentence shall
be and remain effective notwithstanding any contrary action which may have
been taken by the Payee in reliance upon such payment, and any such contrary
action so taken shall be without prejudice to the Payee's rights under this
Note and shall be deemed to have been conditioned upon such payment having
become final and irrevocable. From and after maturity or acceleration of the
Note, whichever shall first occur, interest shall be payable on the entire
unpaid balance, until paid in full, at an annual rate equal to the prime rate
as published in THE WALL STREET JOURNAL.
5. COVENANTS.
(a) The Borrower shall provide to the Payee monthly financial statements
of the Borrower as soon as such statements become available and in any event
within thirty (30) days after the end of each calendar month.
(b) Upon reasonable notice, the Borrower shall afford the Payee and its
representatives access during normal business hours, to the offices,
properties, books and records of the Borrower and furnish to the Borrower and
its representatives such additional financial and other information regarding
the Borrower and its business as the Payee may from time to time request.
6. CONVERSION
(a) RIGHT TO CONVERT. The Payee shall have the right, at its option, on
or before the Installment payments dates to convert, subject to the terms and
provisions of this Section 6, the then amount of an Installment into such
number of fully paid and non-assessable shares of Common Stock as is equal to
the quotient of the principal of such installment being so converted
- 3 -
<PAGE>
divided by the Conversion Price (as defined below) then in effect. The
Conversion Price shall be as set forth below, subject to adjustment as set
forth in paragraphs (b) and (c) of this Section 6.
The First Installment: 1.5 times the price per share at which such
Common Stock is offered to the public in the
Borrower's initial public offering ("the IPO
Price")
The Second Installment: 1.8 times the IPO Price
The Third Installment: 2.5 times the IPO Price up to a total of
$5,000,000.00
Such conversion right shall be exercised by written notice to Borrower
given at least ten (10) business days prior to the date of the relevant
installment. The shares of Common Stock delivered upon such conversion shall
be delivered on the applicable Installment Date free of any restrictions on
resale by Payee, including without limitation, any restrictions imposed by
Federal or state securities laws as provided in Section 3.2.3 of the
Agreement.
(b) ADJUSTMENT OF CONVERSION PRICE. The Conversion Price with respect to
all remaining Installments shall be subject to adjustment as follows: In case
the Borrower shall at any time or from time to time (i) pay a dividend or
make a distribution on the outstanding shares of Common Stock in shares of
Common Stock of the Borrower, (ii) subdivide the outstanding shares of Common
Stock into a larger number of shares of Common Stock, (iii) combine the
outstanding shares of Common Stock into a smaller number of shares of Common
Stock, or (iv) issue any equity interest in a reclassification of the Common
Stock, then, and in each such case, the Conversion Price in effect
immediately prior to such event shall be adjusted (and any other appropriate
actions shall be taken by the Borrower) so that the Payee shall be entitled
to receive the number of shares of Common Stock or other securities of the
Borrower that the Payee would have owned or would have been entitled to
receive upon or by reason of any of the events described above, had this Note
been converted immediately prior to the occurrence of such event with respect
to each of the remaining Installments. An adjustment made pursuant to this
Subsection (b) shall become effective retroactively (i) in the case of any
such dividend or distribution, to a date immediately following the close of
business on the record date for the determination of holders of Common Stock
entitled to receive such dividend or distribution or (ii) in the case of any
such subdivision, combination or reclassification, to the close of business
on the day upon which such corporate action becomes effective.
In case the Borrower at any time or from time to time shall take any
action affecting the Common Stock or its other equity interests, if any,
other than an action described above, then, an adjustment shall be made in
the Conversion Price in such manner and at such time as the Board of
Directors of the Borrower in good faith determines to be equitable in the
circumstances (such determination to be evidenced in a resolution, a
certified copy of which shall be mailed to the Payee).
(c) SUBSEQUENT TRANSACTIONS. In the case of any capital reorganization
or reclassification or other change of outstanding Common Stock or other
equity interests, if any, or in case of any consolidation or merger of the
Borrower with or into another person (other
- 4 -
<PAGE>
than a consolidation or merger in which the Borrower is the resulting or
surviving person and which does not result in any reclassification or change
of Common Stock or other outstanding equity interests, if any), or in case of
any sale or other disposition to another person of all or substantially all
of the assets of the Borrower (any of the foregoing, a "Transaction"), the
Borrower, or such successor or purchasing person, as the case may be, shall
execute and deliver to the Payee at least 10 Business Days prior to effecting
any of the foregoing Transactions a certificate stating that the Payee shall
have the right thereafter in connection with each remaining Installment to
convert this Note into the kind and amount (estimating such amount to the
extent necessary) of equity securities or other securities (of the Borrower
or another issuer) or property or cash which would be receivable upon such
Transaction by a holder of the number of shares of Common Stock into which
such Installment would have been convertible immediately prior to such
Transaction.
7. GENERAL.
(a) The Borrower hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement hereof. No delay or omission on the part
of the Payee in exercising or enforcing any of its right, powers, privileges
or remedies hereunder (collectively, "Rights") shall operate as a waiver
thereof, and a waiver of any Rights on any one occasion shall not be
construed as a bar to or waiver of any Rights on any future occasion. No act,
omission or delay by the Payee or course of dealing between the Payee and the
Borrower shall constitute a waiver of Rights of the Payee hereunder.
(b) In the event that any court having jurisdiction shall determine that
any covenant or other provision contained in this Note shall be unreasonable
or unenforceable in any respect, then such covenant or other provision shall
be deemed limited to the extent that such court deems it reasonable and
enforceable, and as so limited shall remain in full force and effect. In the
event that such court shall deem any such covenant or other provision wholly
unenforceable, the remaining covenants and other provisions of this Note
shall nevertheless remain in full force and effect.
(c) This Note is given to evidence debt for business or commercial
purposes and shall take effect as a sealed instrument and shall be governed
by the law of The Commonwealth of Massachusetts (without giving effect to the
conflict of law principles thereof). Any legal action or proceeding with
respect to this Note shall be brought in the courts of The Commonwealth of
Massachusetts or of the United States of America for the District of
Massachusetts, and, by execution and delivery of this Note, the Borrower
hereby accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. The Borrower and
each holder hereof hereby knowingly, voluntarily, intentionally and
irrevocably waives, in connection with any such action or proceeding: (i) any
objection, including, without limitation, any objection to the laying of
venue or based on the grounds of forum non conveniens, which it may now or
hereafter have to the bringing of any such action or proceeding in such
respective jurisdictions, (ii) except as otherwise provided herein, the right
to interpose any setoff, non-compulsory counterclaim or cross-claim and (iii)
to the maximum extent not prohibited by law, any right it may have to a trial
by jury in respect of any litigation directly or indirectly arising out of,
under or in connection with this Note. The Borrower irrevocably consents to
the service
- 5 -
<PAGE>
of process of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof in the manner provided in
paragraph (e) of this Section 7.
(d) This Note shall be binding upon the Borrower and its successors and
assigns and shall inure to the benefit of the Payee and its successors and
assigns, provided, however, that Borrower shall not assign its obligations
hereunder without the Payee's consent, which may be given or withheld in the
Payee's sole discretion.
(e) All notices, requests, consents and other communications hereunder
shall be in writing, shall be addressed to the receiving party's address set
forth below or to such other address as a party may designate by notice
hereunder, and shall be either (i) delivered by hand, (ii) sent by reputable
overnight courier, or (iii) sent by registered or certified mail, return
receipt requested, postage prepaid.
If to the Payee: Digital Equipment Corporation
111 Powdermill Road
Maynard, Massachusetts 01754
Attn: Paul Millbury, Treasurer
Telephone No.: (508) 461-6700
with a copy to: Digital Equipment Corporation
111 Powdermill Road
Maynard, Massachusetts 01754-1499
Attn: Eric Thorp, Esq.
Telephone No.: (508) 493-9249
Facsimile No.: (508) 493-5431
with an additional copy to:
Mintz, Levin, Cohn, Ferris
Glovsky and Popeo, P.C.
One Financial Center
Boston, Massachusetts 02111
Attn: Thomas J. Kelly, Esq.
Telephone No.: (617) 542-6000
Facsimile No.: (617) 542-2241
- 6 -
<PAGE>
If to the Borrower:
BEA Systems, Inc.
385 Moffett Park Drive
Suite 105
Sunnyvale, California 94089-1208
Attn: Edward W. Scott, Jr.,
Executive Vice President
Telephone No.: (408)
Facsimile No.: (408)
with a copy to: BEA Systems, Inc.
385 Moffett Park Drive
Suite 105
Sunnyvale, California 94089-1208
Attn: Edward Durney, Esq.
General Counsel
Telephone No.: (408) 743-0049
Facsimile No.: (408) 743-9230
with an additional copy to:
Morrison & Foerster
1290 Avenue of the Americas
New York, New York 10104
Attn: John Kennedy, Esq.
Telephone No.: (212) 468-8000
Facsimile No.: (212) 468-7900
All notices, requests, consents and other communications hereunder shall
be deemed to have been given either (i) if by hand, at the time of the
delivery thereof to the receiving party at the address of such party set
forth above, (ii) if sent by overnight courier, on the next business day
following the day such notice is delivered to the courier service, or (iii)
if sent by registered or certified mail, on the 5th business day following
the day such mailing is made.
(f) No provision hereof shall be modified, altered or limited except by
a written instrument expressly referring to this Note and to such provision,
and executed by the parties hereto.
(g) The obligations of the Borrower hereunder shall not be reduced to
satisfy any other obligations between the Payee (including any of its
affiliates) and the Borrower pursuant to any other agreement or arrangement
between such parties or otherwise.
(h) If any date that may at any time be specified in this Note as a
date for the making of any payments under this Note shall fall on Saturday,
Sunday or on a day which in
- 7 -
<PAGE>
Massachusetts shall be a legal holiday, then the date for the making of that
payment shall be the next subsequent day which is not a Saturday, Sunday or
legal holiday.
IN WITNESS WHEREOF, this Note has been executed and delivered as a
sealed instrument on the date first above written by the duly authorized
representative of the Borrower.
BEA Systems, Inc.
- ---------------------------- By: ---------------------------------
Witness Executive Vice President
- 8 -
<PAGE>
FIRST AMENDMENT TO
MIDDLEWARE ACQUISITION AND LICENSE AGREEMENT
BY AND BETWEEN
DIGITAL EQUIPMENT CORPORATION
AND
BEA SYSTEMS, INC.
This First Amendment to Middleware License and Acquisition Agreement (the
"First Amendment") is entered into and effective as of this ____ day of March,
1997 (the "Execution Date"), by and between Digital Equipment Corporation, a
Massachusetts corporation with a place of business at 129 Parker Street,
Maynard, Massachusetts 01754 ("Digital"), and BEA Systems, Inc., a Delaware
corporation with a place of business at 385 Moffett Park Drive, Suite 105,
Sunnyvale, California 94089-1208 ("BEA").
1. STATEMENT OF PURPOSE.
1.1. Digital and BEA are parties to that certain Middleware Acquisition and
License Agreement, dated as of January 31, 1997 (the "Agreement")
pursuant to which Digital agreed to sell or license to BEA, and BEA
agreed to purchase or license, the Middleware Assets (as defined in
the Agreement) upon the terms therein provided.
1.2. Digital and BEA wish to amend the Agreement to modify certain of the
consideration to be paid or otherwise provided by BEA to Digital for
the Middleware Assets upon the terms herein provided.
2. SCOPE OF AMENDMENT, PRIOR DEFINITIONS.
This First Amendment shall only serve to modify and amend those
portions of the Agreement specifically modified and amended herein,
and except as so modified and amended herein, the Agreement shall
remain in full force and effect in accordance with its terms. Except
as provided in Section 3 below, the definitions set forth in the
Agreement, including without limitation, those definitions contained
in Section 2 thereof, shall apply for purposes of this First
Amendment.
3. ADDITIONAL DEFINITIONS.
3.1. "Closing Date" means, unless otherwise agreed by the parties, March
26, 1997, or, if the conditions to closing have not been met as of
such date, then on the first Friday after they are met, but in any
event no later than April 30, 1997.
1
<PAGE>
3.2. "Warrant" shall mean that certain Warrant to Purchase Common Stock
attached hereto as Exhibit VI.
4. OBLIGATIONS OF BEA PRIOR TO CLOSING.
4.1. Section 3.4.2 of the Agreement shall be amended to add Subsection (f)
thereto, which Subsection (f) shall read in its entirety as follows:
"(f) a duly executed Warrant in substantially the form of
Exhibit VI attached hereto."
5. CONSIDERATION.
5.1. Section 9 of the Agreement shall be modified and amended to read in
its entirety as follows:
"9. CONSIDERATION.
9.1 Transfer of Middleware Assets. In consideration for
the purchase by BEA of the Middleware Assets pursuant to
Section 4 hereof, BEA shall make payments to Digital as
follows:
9.1.1 At the Closing, BEA shall execute and
deliver to Digital a promissory note in the original principal
amount of $17 million in the form attached hereto as Exhibit V
(the 'Note"). Digital agrees that (a) it will not assign the
Note to any entity other than a bank or other financial
institution without first obtaining BEA's consent to such
assignment and (b) before it assigns the Note to any third
party, it shall have given BEA thirty (30) days prior written
notice of such intended assignment and the opportunity to
purchase the Note from Digital on terms no less favorable to
BEA than the terms offered to such third party.
9.1.2 At the Closing, BEA shall execute and
deliver to Digital the Warrant in the form attached hereto as
Exhibit VI. The Warrant shall be transferable by Digital in
accordance with Section 12 thereof.
9.1.3 Subject to Section 9.3 below, BEA shall
pay to Digital the sum of $2,000,000 on the earlier of
June 20, 1997 or the date which is 30 days after the
consummation of the initial sale by BEA pursuant to a firm
commitment underwriting to the public of BEA Common Stock,
$.001 par value per share ("Common Stock") as registered under
the
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Securities Act of 1933, as amended (the "Act") (which sale
is hereinafter referred to as the "Initial Public Offering").
9.1.4 BEA shall pay to Digital the sum of
$3,000,000 on June 20, 1997.
9.1.5 BEA agrees that until it has fully
satisfied its payment obligations to Digital under the Note
referenced in Section 9.1.1 above or in its obligation to pay
Digital $2 million in BEA stock or in cash pursuant to
Sections 9.1.3 and $3 million in cash pursuant to Section
9.1.4 hereof, it shall not sell or assign any of the
Middleware Assets to any entity other than a Subsidiary of BEA
or the purchaser of substantially all the assets of BEA. The
sale of a fifty percent (50%) or greater interest in such a
Subsidiary of BEA shall constitute a prohibited sale
hereunder.
9.2 DEFAULT. In the event that BEA defaults in its
payment obligations under the Note referenced in Section 9.1.1
above or Section 9.3 below or in its obligation to pay Digital
$2 million in BEA stock or in cash pursuant to Section 9.1.3
or $3 million in cash pursuant to Section 9.1.4 above, then
the licenses granted by Digital to BEA pursuant to
Sections 4.1 and 4.2 hereof shall terminate upon notice
thereof by Digital to BEA. Following such termination, BEA
shall promptly (i) cease all use of the Software and
Documentation and the Proprietary Rights; (ii) convey back to
Digital the Middleware Assets; (iii) transfer to Digital any
Software and Documentation inventory in its possession or
under its control; (iv) assign to Digital any modifications
that BEA may have made to, or derivative works that BEA may
have made of the Software and Documentation; (v) deliver to
Digital any other physical embodiments of the Software and
Documentation in its possession or under its control; and
(vi) certify in writing to Digital its compliance with the
foregoing. All of the foregoing shall be done at BEA's sole
expense.
9.3 In the event that BEA shall determine to proceed
with an Initial Public Offering, BEA shall give notice to
Digital of such determination not later than five (5) days
following the initial filing by BEA of a registration
statement under the Act (the "Registration Statement") with
the Securities and Exchange Commission ("SEC") as to the
Initial Public Offering. Digital shall thereafter have 28
days from the date of such notice to elect to purchase up to
$2 million in
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shares of Common Stock in the Initial Public Offering at the
same offering price per share as BEA shall be Offering its
Common Stock to other investors in the Initial Public Offering.
Digital's right to participate in the Initial Public Offering
shall be subject to the offering and sale by underwriters of
the shares of Common Stock to be issued to Digital pursuant to
this Section 9.3, and any obligation of Digital pursuant to this
Section 9.3 to purchase shares of Common Stock and of BEA to
issue and sell such common stock shall be subject to the
Registration Statement being declared effective and remaining
effective at the time of such issue and sale. In the event the
Registration Statement shall not be declared effective within 90
days of Digital's original election, Digital shall have the right to
rescind such election by a second notice to BEA. To the
extent that Digital shall purchase shares of Common Stock
pursuant to Section 9.3 above, BEA agrees to prepay amounts
owing pursuant to Section 9.1.3 hereof within ten (10) days of
such purchase in an amount equal to the gross proceeds paid by
Digital for Common Stock in the Initial Public Offering.
Digital's rights under this Section 9.3 (other than its right
to receive the payment provided for in the immediately
preceding sentence) shall terminate immediately after the
closing of the Initial Public Offering or the payment in full
of those amounts owing to Digital pursuant to 9.1.3 above,
whichever occurs first."
5.2. The parties agree that the notices referred to in Section 9.3 as
amended, have been given and reflect Digital's election to purchase $2
million in shares of Common Stock.
6. COUNTERPARTS.
This First Amendment may be executed simultaneously in any number of
counterparts, each of which shall be deemed an original but all of
which shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this First Amendment to be
executed by their duly authorized representatives; effective as of the date
first above written.
DIGITAL EQUIPMENT CORPORATION BEA SYSTEMS, INC.,
By: _________________________ By: _________________________
Name: _______________________ Name: ________________________
Title: ______________________ Title: _______________________
Date: _______________________ Date: ________________________
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SECOND AMENDMENT TO
MIDDLEWARE ACQUISITION AND LICENSE AGREEMENT
BY AND BETWEEN
DIGITAL EQUIPMENT CORPORATION
AND
BEA SYSTEMS, INC.
This Second Amendment to Middleware License and Acquisition Agreement
(the "Second Amendment") is entered into and effective as of this ____ day of
March, 1997 (the "Execution Date"), by and between Digital Equipment
Corporation, a Massachusetts corporation with a place of business at 129 Parker
Street, Maynard, Massachusetts 01754 ("Digital"), and BEA Systems, Inc., a
Delaware corporation with a place of business at 385 Moffett Park Drive,
Suite 105, Sunnyvale, California 94089-1208 ("BEA").
1. STATEMENT OF PURPOSE.
1.1 Digital and BEA are parties to that certain Middleware Acquisition
and License Agreement, dated as of January 31, 1997, as amended
(the "Agreement") pursuant to which Digital agreed to sell or
license to BEA, and BEA agreed to purchase or license, the
Middleware Assets (as defined in the Agreement) upon the terms
therein provided.
1.2 Digital and BEA wish to amend the Agreement to modify certain of
the consideration to be paid or otherwise provided by BEA to
Digital for the Middleware Assets upon the terms herein provided.
2. SCOPE OF AMENDMENT, PRIOR DEFINITIONS.
This Second Amendment shall only serve to modify and amend those
portions of the Agreement specifically modified and amended
herein, and except as so modified and amended herein, the
Agreement shall remain in full force and effect in accordance with
its terms. The definitions set forth in the Agreement, including
without limitation, those definitions contained in Section 2
thereof, shall apply for purposes of this Second Amendment.
3. AMENDMENT TO CONSULTING SERVICES AGREEMENT.
The Consulting Services Agreement shall be modified and amended so
that the first two sentences of Section 4 thereof shall be amended
to read in their entirety as follows:
"Digital will make the first payment of $2,500,000 on or before
April 30, 1997 based upon a progress billing and report and an
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additional $2,500,000 upon delivery of the Plan, or on July 1,
1997 if the Plan is delivered on or prior to that date. After the
second payment of $2,500,000, Digital will make all payments
within thirty (30) days after the date of BEA's invoice."
4. COUNTERPARTS.
This Second Amendment may be executed simultaneously in any number
of counterpartes, each of which shall be deemed an original but
all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Second Amendment to be
executed by their duly authorized representatives; effective as of the date
first above written.
DIGITAL EQUIPMENT BEA SYSTEMS, INC.
CORPORATION
By: /s/ Paul D. Curtin By: /s/ Edward W. Scott, Jr.
Name: Paul D. Curtin Name: Edward W. Scott, Jr.
Title: Director, External Management Title: Executive Vice President
Date: March 26, 1997 Date: March 26, 1997
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EXHIBIT VI
WARRANT
$3,000,000 Sunnyvale, California
March __, 1997
BEA SYSTEMS, INC.
WARRANT TO PURCHASE COMMON STOCK
This Warrant is issued to Digital Equipment Corporation, a
Massachusetts corporation by BEA Systems, Inc., a Delaware corporation (the
"Company"), pursuant to the terms of that certain Middleware Acquisition and
License Agreement dated as of January 31, 1997, as amended (the "Agreement").
All provisions of the Agreement applicable hereto are incorporated herein by
reference. Unless otherwise indicated herein, defined terms shall have the same
meaning for the purpose of this Warrant as set forth in the Agreement.
1. PURCHASE OF SHARES. Subject to the terms and conditions of the
Agreement and as hereinafter set forth, the holder of this Warrant is
entitled, upon surrender of this Warrant at the principal office of the
Company (or at such other place as the Company shall notify the holder hereof
in writing), to purchase from the Company that number of fully paid and
nonassessable shares (the "Shares") of Common Stock of the Company (the
"Common Stock") as is determined by dividing $3,000,000 by the price per
share at which the Common Stock is offered to the public in the Company's
initial public offering (the "IPO").
2. PURCHASE PRICE. The purchase price for the Shares shall be subject to
adjustment pursuant to Section 7 hereof (such price, as adjusted from time to
time, is herein referred to as the "Exercise Price").
3. EXERCISE PERIOD. This Warrant shall be exercisable following one
hundred eighty (180) days after the date of the final prospectus for the IPO
(the "Public Offering Date") and shall remain exercisable for twelve (12) months
thereafter, but in any event this Warrant shall terminate and not become
exercisable if the Public Offering Date does not occur by March 31, 2002.
4. METHOD OF EXERCISE.
(a) While this Warrant remains outstanding and exercisable in
accordance with Section 3 above, the holder may exercise, in whole or in part,
the purchase rights evidenced hereby. Such exercise shall be effected by:
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(i) the surrender of the Warrant, together with a duly
executed copy of the form of subscription attached hereto, to the Secretary of
the Company at its principal offices; and
(ii) the payment to the Company of an amount equal to the
aggregate Exercise Price for the number of Shares being purchased.
(b) RIGHT TO CONVERT WARRANT. The holder hereof shall have the
right to convert this Warrant, by the surrender of this Warrant and the Notice
of Conversion form annexed hereto duly executed at the office of the Company in
Sunnyvale, California (or such other office or agency of the Company as it may
designate by notice in writing to the registered holder hereof at the address of
such holder appearing on the books of the Company), in whole but not in part, at
any time before the close of business on the last day of the exercise period
provided for in Section 3 hereof, into shares of Common Stock as provided for in
this Section 4(b). Upon exercise of this conversion right, the holder hereof
shall be entitled to receive that number of shares of Common Stock of the
Company equal to the quotient obtained by dividing [(A - B)] by (A), where:
(A) = the Fair Market Value (as defined below) of one
share of Common Stock on the date of conversion of
this Warrant.
(B) = the Exercise Price for one share of Common Stock
under this Warrant.
(X) = the number of shares of Common Stock issuable upon
exercise of this Warrant.
If the above calculation results in a negative number, then
no shares of Common Stock shall be issued or issuable upon conversion of this
Warrant.
"Fair Market Value" of a share of Common Stock shall mean
the closing price of the Common Stock on the NASDAQ Stock Market on the trading
day immediately proceeding on the date the Notice of Conversion is given.
Upon conversion of this Warrant, the holder hereof shall be
entitled to receive a certificate for the number of shares of Common Stock
determined as aforesaid.
5. CERTIFICATES FOR SHARES. Upon the exercise of the purchase rights
evidenced by this Warrant, one or more certificates for the number of Shares so
purchased shall be issued as soon as practicable thereafter, and in any event
within thirty (30) days of the delivery of the subscription notice.
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6. VALID ISSUANCE OF SHARES. The Company covenants that the Shares, when
issued pursuant to the exercise of this Warrant, will be duly and validly
issued, fully paid and nonassessable and free from all taxes, liens and charges
with respect to the issuance thereof.
7. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES. The number of and
kind of securities purchasable upon exercise of this Warrant and the Exercise
Price shall be subject to adjustment from time to time as follows:
(a) ADJUSTMENT OF EXERCISE PRICE. The Exercise Price with
respect to the Shares shall be subject to adjustment as follows: In case the
Company shall at any time following the IPO but prior to the expiration of this
Warrant, (i) pay a dividend or make a distribution on the outstanding shares of
Common Stock in shares of Common Stock of the Company, (ii) subdivide the
outstanding shares of Common Stock into a larger number of shares of Common
Stock, (iii) combine the outstanding shares of Common Stock into a smaller
number of shares of Common Stock, or (iv) issue any equity interest in a
reclassification of the Common Stock, then, and in each such case, the Exercise
Price in effect immediately prior to such event shall be adjusted (and any other
appropriate actions shall be taken by the Company) so that the holder of this
Warrant shall be entitled to receive the number of shares of Common Stock or
other securities of the Company that the holder would have owned or been
entitled to receive upon or by reason of any of the events described above, had
this Warrant been exercised immediately prior to the occurrence of such event
with respect to any unexercised portion of the Warrant. An adjustment made
pursuant to this Section 7 shall become effective retroactively (i) in the case
of any such dividend or distribution, to a date immediately following the close
of business on the record date for the determination of holders of Common Stock
entitled to receive such dividend or distribution or (ii) in the case of any
such subdivision, combination or reclassification, to the close of business on
the day upon which such corporate action becomes effective. In case the Company
at any time or from time to time shall take any action affecting the Common
Stock or its other equity interests, if any, other than an action described
above, then an adjustment shall be made in the Exercise Price in such manner and
at such time as the Board of Directors of the Company in good faith determines
to be equitable in the circumstances (such determination to be evidenced in a
resolution, a certified copy of which shall be mailed to the holder of this
Warrant).
(b) SUBSEQUENT TRANSACTIONS. If at any time after the Public
Offering Date and in case of any capital reorganization or reclassification, or
other change of outstanding Common Stock or other equity interest, if any, or in
the case of any consolidation or merger of the Company with or into another
person (other than a consolidation or merger in which the Company is the
resulting or surviving person and which does not result in any reclassification
or change in the Common Stock or other outstanding equity interest, if any), or
in case of any sale or other disposition to another person of all or
substantially all of the assets of the borrower (any of the foregoing, a
"transaction"), the Company, or such successor or purchasing person, as the case
may be, shall execute and deliver to the holder of this Warrant at least ten
business days prior to effecting any of the foregoing Transactions a certificate
stating that the holder shall have the right thereafter in connection with any
remaining portion of this Warrant to exercise this Warrant into the kind and
amount (estimating such amount to the extent necessary) of equity
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securities or other securities (of the Company or another issuer) or property
or cash which would be receivable upon such Transaction by a holder of the
number of shares of Common Stock into which such unexercised portion of the
Warrant would have been exercisable for immediately prior to such Transaction.
8. NO FRACTIONAL SHARES OR SCRIP. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant, but in lieu of such fractional shares the Company shall make a cash
payment therefor on the basis of the Exercise Price then in effect.
9. NO STOCKHOLDER RIGHTS. Prior to exercise of this Warrant, the holder
shall not be entitled to any rights of a stockholder with respect to the Shares,
including (without limitation) the right to vote such Shares, receive dividends
or other distributions thereon, exercise preemptive rights or be notified of
stockholder meetings. Holder shall be entitled to notices and other
communications concerning the business or affairs of the Company, as provided in
the Agreement.
10. SUCCESSORS AND ASSIGNS. The terms and provisions of this Warrant and
the Agreement shall inure to the benefit of, and be binding upon, the Company
and the holders hereof and their respective successors and assigns. The Warrant
is not transferable other than by operation of law.
11. AMENDMENTS AND WAIVERS. Any waiver or amendment of any term of this
Warrant shall be binding upon any subsequent holder of this Warrant.
12. RESALE OF SHARES. The Company has undertaken a fairness hearing
under California Corporations Code Section 25531 which has caused: (i) the
Warrant to be issued in compliance with the exemption from registration under
Section 5 of the Securities Act of 1933, as amended (the "Act") afforded by
Section 3(a)(10) thereof and (ii) any shares of Common Stock to be issued on
conversion thereof to be free of any restrictions on resale by the holder
hereof, including, without limitation, any restrictions imposed by the Act or
state securities law. In the event that due to changed circumstances after
the date of the issue hereof, the Company and/or the holder hereof shall
reasonably determine that compliance with Section 3(a)(10) will not cause
such Common Stock to be issued without resale restrictions, the holder hereof
and the Company shall enter into an agreement providing for commercially
reasonable obligations on the part of the Company (including if necessary,
registering such Common Stock on Form S-1) to cause such Common Stock to be
registered under the Act upon issuance thereof.
13. NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing, shall be addressed to the receiving party's
address set forth below or to such other address as a party may designate by
notice hereunder, and shall be either (i) delivered by hand, (ii) sent by
reputable overnight courier, or (iii) sent by registered or certified mail,
return receipt requested, postage prepaid.
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If to the Holder: Digital Equipment Corporation
111 Powdermill Road
Maynard, Massachusetts 01754
Attn: Paul Millbury, Treasurer
Telephone No.: (508) 461-6700
with a copy to: Digital Equipment Corporation
111 Powdermill Road
Maynard, Massachusetts 01754
Attn: Eric Thorp, Esq.
Telephone No.: (508) 493-9249
Facsimile No.: (508) 493-5431
with an additional
copy to: Mintz, Levin, Cohn, Ferris, Glovksy
and Popeo, P.C.
One Financial Center
Boston, Massachusetts 02111
Attn: Thomas J. Kelly, Esq.
Telephone No.: (617) 542-6000
Facsimile No.: (617) 542-2241
If to the Company: BEA Systems, Inc.
385 Moffett Park Drive
Suite 105
Sunnyvale, California 94089-1208
Attn: Edward W. Scott, Jr.
Executive Vice President
Telephone No.: (408) 743-4000
Facsimile No.: (408) 734-9234
with a copy to: BEA Systems, Inc.
385 Moffett Park Drive
Suite 105
Sunnyvale, California 94089-1208
Attn: Edward Durney, Esq.
General Counsel
Telephone No.: (408) 743-4000
Facsimile No.: (408) 734-9234
with an additional
copy to: Morrison & Foerster LLP
1290 Avenue of the Americas
New York, NY 10104
Attn: John Kennedy, Esq.
Telephone No.: (212) 468-8000
Facsimile No.: (212) 468-7900
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All notices, requests, consents, and other communications hereunder shall be
deemed to have been given either (i) if by hand, at the time of the delivery
thereof to the receiving party at the address of such party set forth above,
(ii) if sent by overnight courier, on the next business day following the day
such notice is delivered to the courier service, or (iii) if sent by registered
or certified mail, on the 5th business day following the day such mailing is
made.
14. GOVERNING LAW/JURISDICTION. This Warrant shall be governed by the law
of The Commonwealth of Massachusetts (without giving effect to the conflict of
law principles thereof). Any legal action or proceeding with respect to this
Warrant shall be brought in the courts of The Commonwealth of Massachusetts or
of the United States of America for the District of Massachusetts, and, by
execution and delivery of this Warrant, the Company hereby accepts for itself
and in respect of its property, generally and unconditionally, the jurisdiction
of the aforesaid courts. The Company and each holder hereof hereby knowingly,
voluntarily, intentionally and irrevocably waives, in connection with any such
action or proceeding: (i) any objection, including, without limitation, any
objection to the laying of venue or based on the grounds of forum non
conveniens, which it may now or hereafter have to the bringing of any such
action or proceeding in such respective jurisdictions, (ii) except as otherwise
provided herein, the right to interpose any setoff, non-compulsory counterclaim
or cross-claim, and (iii) to the maximum extent not prohibited by law, any right
it may have to a trial by jury in respect of any litigation directly or
indirectly arising out of, under or in connection with this Warrant. The
Company irrevocably consents to the service of process of any of the
aforementioned courts in any such action or proceeding by the mailing of copies
in the manner provided in Section 13.
BEA SYSTEMS, INC.
By: ___________________________________
___________________________________
Name, Title
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SUBSCRIPTION
BEA Systems, Inc.
Attention: Corporate Secretary
The undersigned, the holder of the attached Warrant, hereby
irrevocably elects to purchase pursuant to the provisions of the attached
Warrant, _______ shares of the Common Stock of BEA Systems, Inc. (or such
securities issuable hereunder).
Payment of the exercise price per share required under such Warrant
accompanies this Subscription.
WARRANTHOLDER:
_______________________________________
Date: _______________________ By: _______________________________
Title _______________________________
Address: ___________________________
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NOTICE OF CONVERSION
To: BEA SYSTEMS, INC.
(1) The undersigned hereby elects to convert the attached Warrant into
such number of shares of Common Stock of BEA SYSTEMS, INC. as is determined
pursuant to Section 4A of such Warrant, which conversion shall be effected
pursuant to the terms of the attached Warrant.
(2) Please issue a certificate of certificates representing said shares of
Common Stock in the name of the undersigned or in such other name as is
specified.
_______________________________
(Name)
_______________________________
(Address)
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