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As filed with the Securities and Exchange Commission on December 7, 1999
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________________________________
BEA SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
_____________________________________________________
<TABLE>
<S> <C>
Delaware 77-0394711
(State or Other Jurisdiction of Incorporation or Organization) (I.R.S. EmployerIdentification No.)
</TABLE>
2315 North First Street
San Jose, CA 95131
(Address of Principal Executive Offices)
The Theory Center
Amended and Restated 1999 Stock Option/Stock Issuance Plan
(Full Title of the Plans)
______________________________________________
William T. Coleman III
Chairman 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:
Cori M. Allen, Esq.
Morrison & Foerster LLP
755 Page Mill Road
Palo Alto, CA 94304
(650) 813-5600
__________________________________________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==========================================================================================================================
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Securities to to be Offering Price Aggregate Offering Registration
be Registered Registered Per Share(1) Price(1) Fee
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 910,600 $83.25 $75,807,450.00 $20,013.17
$.001 par value per
share
===========================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) and Rule 457(c) under the Securities Act. The
proposed maximum offering price per share and the proposed aggregate maximum
offering price have been determined on the basis of the high and low prices
quoted on the Nasdaq National Market on November 30, 1999.
===============================================================================
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PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part 1 of Form S-8
(plan information and registrant information and employee plan annual
information) will be sent or given to employees as specified by Securities and
Exchange Commission Rule 428(b)(1). Such documents need not be filed with the
Securities and Exchange Commission either as part of this Registration Statement
or as prospectuses or prospectus supplements pursuant to Rule 424. These
documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Form S-8 (Part II hereof), taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act of 1933.
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:
1. The Registrant's Annual Report on Form 10-K for the fiscal year
ended January 31, 1999, filed pursuant to Section 13 of the Securities Exchange
Act of 1934 (the "Exchange Act").
2. The Registrant's Quarterly Reports on Form 10-Q for the quarters
ended April 30, 1999 and July 31, 1999.
3. The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A (File No. 000-22369).
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
2
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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
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.
3
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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.
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.
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.
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24.1 Power of Attorney.
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,
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.
5
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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 December 7,
1999.
BEA SYSTEMS, INC.
By: /s/ William T. Coleman III
----------------------------------
William T. Coleman III
Chief Executive Officer and Chairman of
the Board of Directors
6
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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 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:
Signature Title Date
--------- ----- ----
Chief Executive Officer and December 7, 1999
Chairman of the Board of Directors
and Director (Principal Executive
/s/ William T. Coleman III Officer)
______________________
William T. Coleman III
Chief Financial Officer, Executive December 7, 1999
President and Secretary
(Principal Financial Accounting
/s/ Steve L. Brown Officer)
______________________
Steve L. Brown
President and Chief Operating December 7, 1999
Officer Director
/s/ Alfred S. Chuang Director
______________________
Alfred S. Chuang.
Director December , 1999
______________________
William H. Janeway
Director December , 1999
______________________
Stewart K.P. Gross
Director December , 1999
______________________
Cary J. Davis
/s/ Carol A. Bartz Director December 7, 1999
______________________
Carol A. Bartz
/s/ Dean O. Morton Director December 7, 1999
______________________
Dean O. Morton
7
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EXHIBIT INDEX
Exhibit
Number Description
- ------ -----------
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).
8
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Exhibit 5.1
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MORRISON & FOERSTER LLP
Palo Alto, California
December 7, 1999
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 December 7, 1999, 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 910,666 shares of your
common stock, $.001 par value (the "Common Stock") which will be issuable under
The Theory Center, Inc. Amended and Restated 1999 Stock Option/Stock Issuance
Plan (the "Theory Center 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
Theory Center Plan and the authorization of the issuance of the shares of Common
Stock under the Theory Center 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 Theory Center Plan
Shares, when issued and outstanding pursuant to the terms of the Theory Center
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
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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 Theory Center, Inc. Amended and Restated 1999 Stock
Option/ Stock Issuance Plan of BEA Systems, Inc. of our report dated February
23, 1999, with respect to the consolidated financial statements and schedule of
BEA Systems, Inc. included in its Annual Report (Form 10-K) for the year ended
January 31, 1999, filed with the Securities and Exchange Commission.
/s/ ERNEST & YOUNG LLP
Palo Alto, California
December 1, 1999
