<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 30, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BEA SYSTEMS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 77-0394711
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
2315 NORTH FIRST STREET
SAN JOSE, CA 95131
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
WEBLOGIC, INC. 1996 STOCK PLAN
(FULL TITLE OF THE PLANS)
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WILLIAM T. COLEMAN III
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER
BEA SYSTEMS, INC.
2315 NORTH FIRST STREET
SAN JOSE, CA 95131
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(408) 570-8000
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
MICHAEL C. PHILLIPS, ESQ.
CORI M. ALLEN, ESQ.
ROCHELLE A. KRAUSE, ESQ.
MORRISON & FOERSTER LLP
755 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 813-5600
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED
MAXIMUM MAXIMUM PROPOSED
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE(1) PRICE(1) FEE
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<S> <C> <C> <C> <C>
Common Stock, $.001 par
value per share....... 1,900,000 $17.438 $33,132,200 $9,211
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</TABLE>
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(1) Estimated solely for the purpose of calculating the registration fee.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by BEA Systems, Inc. (the "Registrant") with
the Securities and Exchange Commission (the "Commission") are incorporated by
reference herein:
(a) The Registrant's Annual Report on Form 10-KSB (the "Annual Report"),
which includes audited financial statements for the Registrant's latest
fiscal year.
(b) The Registrant's Quarterly Reports on Form 10-Q/A and Form 10-Q for
the quarters ended April 30, 1998 and July 31, 1998, respectively, and the
Registrant's Current Reports on Form 8-K dated as of June 30, 1998,
September 10, 1998 and October 15, 1998, as amended October 29, 1998.
(c) The description of the Registrant's Common Stock which is contained
in its Registration Statement on Form 8-A dated April 10, 1997 (File No.
000-22369), including any amendment or report filed for the purpose of
updating such description.
All documents filed by the Registrant with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment which indicates that all securities offered have been sold
or which deregisters all securities then remaining unsold, shall be deemed to
be incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation provides that the Company shall
indemnify to the fullest extent permitted by Section 145 ("Section 145") of the
Delaware General Corporation Law ("DGCL"), as it now exists or as it may be
amended. Generally, Section 145 provides a detailed statutory framework
covering indemnification of officers and directors against liabilities and
expenses arising out of legal proceedings brought or threatened to be brought
against them by reason of their being or having been directors or officers. In
particular, Section 145 provides that a corporation shall indemnify its
officers and directors for all reasonable expenses (including attorney's fees)
of such
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legal proceedings when any such officer or director is successful on the
merits. Further, Section 145 provides that a corporation may indemnify its
officers and directors, even if any such officer or director is not successful
on the merits:
(i) for expenses, judgments, fines and amounts paid in settlement of such
proceedings (other than a derivative suit), as long as such officer or
director acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to
believe his or her conduct was unlawful; and
(ii) for the expenses of a derivative suit (a suit brought by the
corporation or in the name of the corporation by a stockholder alleging
breach by such officer or director of a duty owed to the corporation), as
long as such officer or director acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the best interests of
the corporation. In the event such director or officer is adjudged liable
to the corporation, no indemnification may be made by the corporation
unless the Delaware Court of Chancery determines that, despite such
adjudication of liability, in view of all the circumstances, such officer
or director is fairly and reasonably entitled to indemnification.
In either of the above cases, indemnification may be made only after a
determination that the applicable standard of conduct has been met. Such
determination may be made by either a majority of the directors who are not
party to such proceeding, a committee of such directors, independent legal
counsel or the stockholders.
Additionally, the Company's Certificate of Incorporation provides for the
elimination of personal liability of a director for breach of fiduciary duty,
as permitted by Section 102(b)(7) of the DGCL. Thus, a director of the Company
shall not be personally liable to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability (i)
for any breach of the director's duty of loyalty to the Company or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174
of the DGCL (unlawful payment of dividends), or (iv) for any transaction from
which the director derived an improper personal benefit.
In addition to the above indemnification provided for in the Company's
charter documents, the Company has entered into agreements to indemnify its
directors and executive officers. These agreements, among other things, provide
for the indemnification of the Company's directors and executive officers for
certain expenses (including attorneys' fees), judgments, fines and settlement
amounts incurred by any such person in any action or proceeding, including any
action by or in the right of the Company, arising out of such person's services
as a director or executive officer of the Company, any subsidiary of the
Company or any other company or enterprise to which such person provides
services at the request of the Company to the fullest extent permitted by
applicable law. The Company believes that these provisions and agreements will
assist the Company in attracting and retaining qualified persons to serve as
directors and executive officers. Section 8 of the Form of Underwriting
Agreement, which section is incorporated herein by this reference, as attached
as Exhibit 1.1 to the Registrant's Prospectus filed pursuant to Rule 424(b) of
the Securities Act of 1933, as amended, and included in the Registration
Statement on Form SB-2, as declared effective on April 10, 1997 (No. 333-
20791), contains certain provisions relating to indemnification.
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The Company has obtained liability insurance insuring the Company's officers
and directors against liabilities that they may incur in such capacities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<S> <C>
4.1 Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1
to Registrant's Registration Statement on Form SB-2 (File No. 333-20791))
4.2 Bylaws of the Registrant (incorporated by reference to Exhibit 3.3 to Registrant's Registration
Statement on Form SB-2 (File No. 333-20791))
5.1 Opinion of Morrison & Foerster LLP.
23.1 Consent of Morrison & Foerster LLP (contained in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, independent auditors.
24.1 Power of Attorney.
</TABLE>
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(i) to file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement and to include any
material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change
to such information in this Registration Statement;
(ii) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof;
(iii) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby further undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act, and is, therefore,
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unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred by a
director, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, BEA
Systems, Inc. certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Sunnyvale, State of California, on October 30,
1998.
Bea Systems, Inc.
/s/ William T. Coleman III
By:__________________________________
William T. Coleman III
President, Chief Executive Officer
and Chairman of the Board of
Directors
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints, severally and not jointly, William T. Coleman
III, Edward W. Scott, Jr., Alfred S. Chuang and Steve L. Brown, with full power
to act alone, his or her true and lawful attorneys-in-fact, with the power of
substitution, for such person and in such person's name, place and stead, in
any and all capacities, to sign any and all amendments (including post-
effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorneys-in-fact
full power and authority to do and perform each and every act and deed
requisite and necessary to be done as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ William T. Coleman III President, Chief Executive October 30, 1998
____________________________________ Officer and Chairman of the
William T. Coleman III Board of Directors
(Principal Executive
Officer)
/s/ Edward W. Scott, Jr. Executive Vice President of October 30, 1998
____________________________________ Worldwide Field Operations,
Edward W. Scott, Jr. Assistant Secretary and
Director
/s/ Steve L. Brown Chief Financial Officer, October 30, 1998
____________________________________ Executive Vice President
Steve L. Brown and Secretary (Principal
Financial and Accounting
Officer)
/s/ William H. Janeway Director October 30, 1998
____________________________________
William H. Janeway
</TABLE>
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<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Stewart K.P. Gross Director October 30, 1998
____________________________________
Stewart K.P. Gross
/s/ Cary J. Davis Director October 30, 1998
____________________________________
Cary J. Davis
/s/ Carol A. Bartz Director October 30, 1998
____________________________________
Carol A. Bartz
/s/ Dean O. Morton Director October 30, 1998
____________________________________
Dean O. Morton
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<C> <S>
4.1 Restated Certificate of Incorporation of the Registrant (incorporated
by reference to Exhibit 3.1 to Registrant's Registration Statement on
Form SB-2 (File No. 333-20791)).
4.2 Bylaws of the Registrant (incorporated by reference to Exhibit 3.3 to
Registrant's Registration Statement on Form SB-2 (File No. 333-
20791)).
5.1 Opinion of Morrison & Foerster LLP.
23.1 Consent of Morrison & Foerster LLP (contained in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, independent auditors.
24.1 Power of Attorney (See page 6).
</TABLE>
<PAGE>
EXHIBIT 5.1
MORRISON & FOERSTER LLP
Palo Alto, California
October 30, 1998
BEA Systems, Inc.
2315 North First Street
San Jose, CA 95113
Madame and Gentlemen:
At your request, we have examined the Registration Statement on Form S-8
executed by you on October 30, 1998, and to be filed with the Securities and
Exchange Commission (the "SEC") in connection with the registration under the
Securities Act of 1933, as amended, of an aggregate of 1,900,000 shares of your
common stock, $.001 par value (the "Common Stock") which will be issuable under
the WebLogic, Inc. 1996 Stock Plan (the "WebLogic Plan").
As your counsel in connection with the Registration Statement, we have
examined the proceedings taken by you in connection with the assumption of the
Plan and the authorization of the issuance of the shares of Common Stock under
the Plan (the "Plan Shares") and such documents as we have deemed necessary to
render this opinion.
Based upon the foregoing, it is our opinion that the WebLogic Plan Shares,
when issued and outstanding pursuant to the terms of the WebLogic Plan, will be
validly issued, fully paid and nonassessable shares of Common Stock.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Morrison & Foerster LLP
<PAGE>
EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the WebLogic, Inc. 1996 Stock Plan of BEA Systems,
Inc. of our report dated February 24, 1998, with respect to the Consolidated
Financial Statements of BEA Systems, Inc. included in its Annual Report (Form
10-KSB) for the year ended January 31, 1998; our report dated February 24,
1998, except for Note 18, as to which the date is September 10, 1998, with
respect to the Supplemental Consolidated Financial Statements of BEA Systems,
Inc. included in its current report on Form 8-K dated September 10, 1998; and
our report February 24, 1998, except for Note 18, as to which the date is
September 30, 1998, with respect to the Supplemental Consolidated Financial
Statements of BEA Systems, Inc. included in its current report on Form 8-K/A
dated October 29, 1998, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Palo Alto, California
October 29, 1998
