<PAGE>
As filed with the Securities and Exchange Commission on June 30, 2000
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BEA SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
Delaware 77-0394711
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
2315 North First Street
San Jose, California 95131
(408) 570-8000
(Address, including zip code, and telephone number, including area code, of
registrar's principal executive offices)
William T. Coleman III
Chairman, President and Chief Executive Officer
2315 North First Street
San Jose, California 95131
(408) 570-8000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Cori M. Allen, Esq.
Morrison & Foerster LLP
755 Page Mill Road
Palo Alto, California 94304
(650) 813-5600
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, 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 of 1933, 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. [ ]
<TABLE>
<CAPTION>
___________________________________________________________________________________________________________________________________
CALCULATION OF REGISTRATION FEE
___________________________________________________________________________________________________________________________________
Title of Shares to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered Aggregate Price Per Share Aggregate Offering Price Registration Fee
___________________________________________________________________________________________________________________________________
<S> <C> <C> <C> <C>
Common Stock, $.001
par value............ 2,616,379 shares $38.46875(1) $100,648,829.66(1) $26,572
-----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) based on the average of the high and low
reported sales prices on the Nasdaq National Market on June 27, 2000.
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 an 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.
<PAGE>
________________________________________________________________________________
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not solliciting an offer to buy these
securities in any state where the offer of sale is not permitted.
________________________________________________________________________________
Subject to Completion, dated June 30, 2000
Prospectus
BEA Systems, Inc.
2,616,379 Shares of Common Stock
2,616,379 shares of our common stock were issued to former stockholders
of The Theory Center, Inc. as payment for the acquisition by us of The Theory
Center, Inc. Some of these stockholders may wish to sell these shares in the
future, and this prospectus allows them to do so. We will not receive any of the
proceeds from any sale of shares by these stockholders, but we have agreed to
bear the expenses of registration of the shares by this prospectus.
Our stock is listed on the Nasdaq National Market under the symbol: BEAS
The last sale price of the common stock on the Nasdaq National Market on
June 29, 2000 was $48.00 per share.
_______________________________
Investing in the common stock involves a high level of investment risk.
See "Risk Factors" beginning on page 6 of this prospectus. Neither the
Securities and Exchange Commission nor any state securities commission has
approved or disapproved these securities, or determined if this prospectus is
truthful or complete. Any representation to the contrary is a criminal offense.
_______________________________
June _____, 2000
2
<PAGE>
TABLE OF CONTENTS
Page
----
Available Information.................................................... 4
Incorporation of Certain Documents by Reference.......................... 4
The Company.............................................................. 5
Use of Proceeds.......................................................... 6
Risk Factors............................................................. 6
Selling Stockholders..................................................... 14
Plan of Distribution..................................................... 15
Experts.................................................................. 15
Legal Matters............................................................ 15
3
<PAGE>
No person has been authorized to give any information or to make any
representations not contained or incorporated by reference in this prospectus in
connection with the offer described in this prospectus and, if given or made,
such information and representations must not be relied upon as having been
authorized by the Company or the selling stockholders. Neither the delivery of
this prospectus nor any sale made under this prospectus shall under any
circumstances create any implication that there has been no change in the
affairs of BEA Systems, Inc. since the date hereof or since the date of any
documents incorporated herein by reference. This prospectus does not constitute
an offer to sell or a solicitation of an offer to buy any securities other than
the securities to which it relates, or an offer or solicitation in any state to
any person to whom it is unlawful to make such offer in such state.
AVAILABLE INFORMATION
We are subject to the informational requirements of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and in accordance with the Act we
file reports, proxy statements and other information with the Securities and
Exchange Commission (the "Commission"). These reports, proxy statements and
other information filed can be inspected and copied at the Commission's Public
Reference Section, 450 Fifth Street, N.W., Washington, D.C., 20549, and at the
following regional offices of the Commission: Seven World Trade Center, 13th
Floor, New York, New York 10048 and 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511. Copies of such material can be obtained from the
Public Reference Section of the Commission, 450 Fifth Street, N.W., Washington,
D.C. 20549, at prescribed rates. The Commission maintains a web site
(http://www.sec.gov) containing reports, proxy and information statements and
other information of registrants, including ours, that file electronically with
the Commission. In addition, the Common Stock is listed on the Nasdaq National
Market and similar information concerning us can be inspected and copied at the
offices of the National Association of Securities Dealers, Inc., 9513 Key West
Avenue, Rockville, Maryland 20850.
We have filed with the Commission a registration statement on Form S-3 (of
which this prospectus is a part) under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to the shares being offered by this
prospectus. This prospectus does not contain all of the information set forth in
this registration statement, some portions of which have been omitted as
permitted by the rules and regulations of the Commission. Statements contained
in this prospectus as to the contents of any contract or other documents are not
necessarily complete, and in each instance reference is made to the copy of such
contract or other document filed as an exhibit to the registration statement,
each of these statements are qualified in all respects by this reference and the
exhibits and schedules thereto. For further information regarding us and the
shares being offered by this prospectus, reference is hereby made to the
registration statement and such exhibits and schedules which may be obtained
from the Commission at its principal office in Washington, D.C. upon payment of
the fees prescribed by the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The documents listed below have been filed by BEA Systems, Inc. under the
Exchange Act with the Commission and are incorporated herein by reference:
a. Our Annual Report on Form 10-K for the year ended January 31, 2000;
b. Our Quarterly Report on Form 10-Q for the quarter ended April 30,
2000; and
c. The description of our Common Stock contained in our registration
statement on Form 8-A (File No. 000-22369).
Each document we file pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Exchange Act subsequent to the date of this prospectus and prior to the
termination of the offering made hereby shall be deemed to be incorporated by
reference in this prospectus and to be part hereof from the date of filing such
documents. Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this prospectus to the extent that a statement
contained herein (or in the applicable prospectus supplement) 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 such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this prospectus.
Copies of all documents which are incorporated herein by reference (not
including the exhibits to such information, unless such exhibits are
specifically incorporated by reference in such information) will be provided
without charge to each person, including any beneficial owner, to whom this
prospectus is delivered upon written or oral request. Requests should be
directed to Kevin A. Faulkner, Senior Director-Investor Relations, 2315 North
First Street, San Jose 95131, telephone number: (408) 570-8000.
4
<PAGE>
THE COMPANY
Overview
We are a leading provider of e-commerce infrastructure software that helps
companies of all sizes build e-commerce systems that extend investments in
existing computer systems and provide the foundation for running a successful
integrated e-business. Our products are marketed and sold worldwide through a
network of our sales offices, as well as hardware vendors, independent software
vendors and systems integrators that are our partners and distributors. Our
products have been adopted in a wide variety of industries, including commercial
and investment banking, securities trading, telecommunications, airlines,
retail, manufacturing, package delivery, insurance and government, in many cases
using the Internet as a system component. Our products serve as a platform or
integration tool for applications such as billing, provisioning, customer
service, electronic funds transfers, ATM networks, securities trading, Web-based
banking, Internet sales, supply chain management, scheduling and logistics, and
hotel, airline and rental car reservations. Licenses for our products are
typically priced on a per-user, per-application basis, but we also offer
licenses priced per server and time-based enterprise licenses.
Our core business has been providing infrastructure for high-volume
transaction systems, such as telecommunications billing applications, commercial
bank ATM networks and account management systems, credit card billing systems
and securities trading account management systems. These distributed systems
must scale to process high transaction volumes and accommodate large numbers of
users. As the Internet and e-commerce continue to develop, increasing
transaction loads are being placed on Web-based systems, such as retail and
business-to-business e-commerce sites. In addition, systems that historically
had been strictly internal are now being extended to the Internet, such as
telecommunications, bank and credit card account information.
We provide an e-commerce transaction platform that is designed to address
this demand and help companies quickly develop and integrate e-business
initiatives and reliably deliver a wider range of dynamic, personalized
services.
We were incorporated in Delaware in January 1995 under the name BEA
Enterprises, Inc. and changed our name to BEA Systems, Inc. in September 1995.
References to "BEA" or the "Company" refer to BEA Systems, Inc., our
subsidiaries, and predecessor entities acquired in previous acquisitions. Our
headquarters are located at 2315 North First Street, San Jose, California,
95131. Our telephone number is (408) 570-8000.
Recent Events
Stock Split. We effected a two-for-one split of our common stock in April
2000. Share amounts and related share information in this Offering Circular
reflect this split, as well as our previous two-for-one split effected in
December 1999.
Recent Acquisitions. In March 2000, we purchased The Workflow Automation
Corporation with $4.9 million in cash and through the issuance of 470,718 shares
of our common stock, valued at $49.41 per share. The acquisition was accounted
for using the purchase method. An independent valuation was completed, in which
the majority of the purchase price was allocated to intangible assets.
In April 2000, we completed our acquisition of the services business of The
Object People, Inc. The purchase price was approximately $20.5 million in cash.
The acquisition was accounted for using the purchase method with a significant
portion of the purchase price allocated to intangible assets.
Recent Investments. In March 2000, we made an additional $5.0 million
investment in WebGain, Inc. In April 2000, WebGain, Inc. issued an $18.0 million
8% Convertible Note to us, due April 2005. The Note is convertible, at our
option, at any time into Series A Preferred Stock. Subsequent to these
investments, our ownership percentage remains at 48%. During the first quarter
of fiscal 2001, we invested in several other privately held companies for a
total of approximately $7.0 million. These investments are accounted for under
the cost method, as ownership is less than 20% and we do not have significant
influence over operations.
5
<PAGE>
USE OF PROCEEDS
All of the shares being offered under this prospectus are offered by the
selling stockholders, and we will not receive any of the proceeds from the sale
of the shares. This registration statement is intended to satisfy certain of our
obligations under our merger agreement with The Theory Center. Under that
agreement, we have agreed to pay expenses of registration of these shares under
federal and state securities laws.
RISK FACTORS
Investors should carefully consider the following risk factors in
evaluating an investment in the common stock.
Significant unanticipated fluctuations in our actual or anticipated quarterly
revenues and operating results may cause us not to meet securities analysts' or
investors' expectations and may result in a decline in our stock price.
Although we have had significant revenue growth in recent quarters, our
growth rates may not be sustainable. If our revenues, operating results,
earnings or future projections are below the levels expected by investors or
securities analysts, our stock price is likely to decline. Our stock price is
also subject to the volatility generally associated with Internet, software and
technology stocks and may also be affected by broader market trends unrelated to
our performance.
We expect to experience significant fluctuations in our future quarterly
revenues and operating results as a result of many factors, including:
. difficulty predicting the size and timing of customer orders
. introduction or enhancement of our products or our competitors' products
. the mix of our products and services sold and mix of distribution
channels
. general economic conditions, which can affect our customers' capital
investment levels and the length of the our sales cycle
. changes in our competitors' product offerings and pricing policies, and
customer order deferrals in anticipation of new products and product
enhancements from BEA or our competitors
. whether we are able to develop, introduce and market new products on a
timely basis
. any slowdown in use of the Internet for commerce
. recent hiring may prove excessive if growth rates are not maintained
. the structure, timing and integration of acquisitions of businesses,
products and technologies, including the Workflow Automation
Corporation and the services business of The Object People, Inc.
. the terms and timing of financing activities
. market acceptance of our products
. the lengthy sales cycle for our products
. technological changes in computer systems and environments
. whether we are able to successfully expand our sales and marketing
programs
. whether we are able to meet our customers' service requirements
. costs associated with acquisitions, including the acquisition of The
Workflow Automation Corporation and the services business of The Object
People, Inc.
. the impact and duration of deteriorating economic and political
conditions in Asia
. loss of key personnel
. fluctuations in foreign currency exchange rates
As a result of all of these factors, we believe that quarterly revenues and
operating results are difficult to forecast and period-to-period comparisons of
our results of operations are not necessarily meaningful and should not be
relied upon as indications of trends or future performance.
6
<PAGE>
A significant portion of our revenues has been derived from large orders,
as customers deployed our products throughout their organizations or chose to
standardize on our products for their system architecture. Increases in the
dollar size of individual license transactions have also increased the risk of
fluctuation in future quarterly results. If we cannot generate large customer
orders, or customers delay or cancel such orders in a particular quarter, it may
have a material adverse effect on our revenues and, more significantly on a
percentage basis, our net income or loss in that quarter. Moreover, we typically
receive and fulfill a majority of our orders within the quarter, with the
substantial majority of our orders received in the last month of each fiscal
quarter. As a result, we may not learn of revenue shortfalls until late in a
fiscal quarter, after it is too late to adjust expenses for that quarter.
Additionally, our operating expenses are based in part on our expectations for
future revenues and are difficult to adjust in the short term. Any revenue
shortfall below our expectations could have an immediate and significant adverse
effect on our results of operations.
We are subject to employer payroll taxes when our employees exercise their
stock options. The employer payroll taxes are assessed on each employee's gain,
which is the difference between the price of our common stock on the date of
exercise and the exercise price. During a particular period, these payroll taxes
could be material. These employer payroll taxes would be recorded as an expense
and are assessed at tax rates that varies depending upon the employee's taxing
jurisdiction in the period such options are exercised based on actual gains
realized by employees. However, because we are unable to predict how many stock
options will be exercised, at what price and in which country during any
particular period, we cannot predict, the amount, if any, of employer payroll
expense will be recorded in a future period or the impact on our future
financial results.
As is common in the software industry, we believe that our fourth quarter
orders are favorably impacted by a variety of factors including year-end capital
purchases by larger corporate customers and the commission structure for our
sales force. This increase typically results in first quarter customer orders
being lower than orders received in the immediately preceding fourth quarter. We
anticipate that this seasonal impact is likely to continue.
Although we use a standard license agreement, which meets the revenue
recognition criteria under generally accepted accounting principles, we must
often negotiate and revise terms and conditions of this standard agreement,
particularly in larger license transactions. Negotiation of mutually acceptable
terms and conditions can extend the sales cycle and, in certain situations, may
require us to defer recognition of revenue on the license. In addition, while we
believe that we are in compliance with Statement of Position 97-2, Software
Revenues Recognition, or SOP 97-2, and SOP 98-4 and SOP 98-9, which amend
certain provisions of SOP 97-2, the American Institute of Certified Public
Accountants continues to issue some implementation guidelines for these
standards and the accounting profession continues to discuss a wide range of
potential interpretations. Additional implementation guidelines could lead to
unanticipated changes in our current revenue accounting practices that could
cause us to recognize lower revenue and profits.
Our limited operating history and need to continue to integrate our acquisitions
makes it difficult to predict our future results
We were incorporated in January 1995 and therefore have a limited operating
history. We have generated revenues to date primarily from sales of BEA TUXEDO,
a software product to which we acquired worldwide distribution rights in
February 1996, and from BEA WebLogic, a software product which we acquired in
September 1998, and fees for software products and services related to TUXEDO
and WebLogic. We have also acquired a number of businesses, technologies and
products, most recently The Workflow Automation Corporation, which was acquired
in March 2000 and the services business of The Object People, Inc., which was
acquired in April 2000. Our limited operating history and the need to integrate
a number of separate and independent business operations subject our business to
numerous risks. At April 30, 2000, we had an accumulated deficit of
approximately $215.3 million. In addition, in connection with certain
acquisitions completed prior to April 30, 2000, we recorded approximately $474.2
million as intangible assets and goodwill. Under Generally Accepted Accounting
Principles, intangible assets and goodwill are required to be amortized in
future periods. Approximately $243.6 million of these assets have been amortized
as of April 30, 2000 and we expect to amortize the remaining amount of
approximately $230.6 million in future periods through our fiscal year ending
January 31, 2005. We expect to amortize $65.9 million of such intangible assets
and goodwill over the remaining quarters of fiscal 2001. If we acquire
additional businesses, products and technologies in the future, we may report
additional, potentially significant expenses. If future events cause the
impairment of any intangible assets acquired in our past or future acquisitions,
we may have to expense such assets sooner than we expect. Because of our limited
operating history and ongoing expenses associated with our prior acquisitions,
there can be no assurance that we will be profitable in any future period and
recent operating results should not be considered indicative of future financial
performance.
7
<PAGE>
Our revenues are derived primarily from two main product and services lines, and
a decline in demand or prices for either could substantially adversely affect
our operating results
We currently derive the majority of our license and service revenues from
BEA TUXEDO and BEA WebLogic and from related products and services. Although we
expect these products and services to continue to account for the majority of
our revenues in the immediate future, we believe that BEA WebLogic will become
an increasingly important revenue source. As a result, factors adversely
affecting the pricing of or demand for BEA TUXEDO and BEA WebLogic, such as
competition, product performance or technological change, could have a material
adverse effect on our business and consolidated results of operations and
financial condition.
The price of our common stock may fluctuate significantly
The market price for our common stock may be affected by a number of
factors, including developments in the Internet, software or technology
industry, general market conditions and other factors, including factors
unrelated to our operating performance or our competitors' operating
performance. In addition, our stock prices and those of many other companies in
the Internet, technology and emerging growth sectors have experienced wide
fluctuations including recent rapid rises and declines in their stock prices,
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 our common stock.
If we cannot successfully integrate our past and future acquisitions, our
revenues may decline and expenses may increase
From our inception in January 1995, we have made several strategic
acquisitions. Integration of acquired companies, divisions and products involves
the assimilation of potentially conflicting operations and products, which
divert the attention of our management team and may have a material adverse
effect on our operating results in future quarters. We acquired Leader Group,
Inc. and a business unit of Penta Systems Technology, Inc. in the quarter ended
April 30, 1998, NCR's TOP END technology in June 1998, the Entersoft Systems
Corporation in July 1998, WebLogic, Inc. in September 1998, Component Systems,
LLC in May 1999, Technology Resource Group, Inc. in July 1999, Avitek, Inc. in
August 1999, The Theory Center in November 1999, Workflow in March 2000 and TOP
in April 2000. It is possible we may not achieve any of the intended financial
or strategic benefits of these transactions. While we intend to make additional
acquisitions in the future, there may not be suitable companies, divisions or
products available for acquisition. Our acquisitions entail numerous risks,
including the risk we will not successfully assimilate the acquired operations
and products, or retain key employees of the acquired operations. There are also
risks relating to the diversion of our management's attention, and difficulties
and uncertainties in our ability to maintain the key business relationships the
acquired entities have established. In addition, if we undertake future
acquisitions, we may issue dilutive securities, assume or incur additional debt
obligations, incur large one-time expenses, and acquire intangible assets that
would result in significant future amortization expense. Any of these events
could have a material adverse effect on our business, operating results and
financial condition.
Recently, the Financial Accounting Standards Board voted to eliminate
pooling of interests accounting for acquisitions and the ability to write-off
in-process research and development has been limited by recent pronouncements.
The effect of these changes would be to increase the portion of the purchase
price for any future acquisitions that must be charged to BEA's cost of revenues
and operating expenses in the periods following any such acquisitions. As a
consequence, our results of operations in periods following any such
acquisitions could be materially adversely affected. Although these changes
would not directly affect the purchase price for any of these acquisitions, they
would have the effect of increasing the reported expenses associated with any of
these acquisitions. To that extent, these changes may make it more difficult for
us to acquire other companies, product lines or technologies.
The lengthy sales cycle for our products makes our revenues susceptible to
substantial fluctuations
Our customers typically use our products to implement large, sophisticated
applications that are critical to their business, and their purchases are often
part of their implementation of a distributed or Web-based computing
environment. Customers evaluating our software products face complex decisions
regarding alternative approaches to the integration of enterprise applications,
competitive product offerings, rapidly changing software technologies and
limited internal resources due to other information systems requirements. For
these and other reasons, the sales cycle for our products is lengthy and is
subject to delays or cancellation over which we have little or no control. We
have experienced a significant increase in the number of million and multi-
million dollar license transactions. In some cases, this has resulted in more
extended customer evaluation and procurement processes, which in turn have
lengthened the overall sales cycle for our products. Moreover during the second
half of fiscal 1999, an increasing number of our customers began negotiating
licenses to use our enterprise
8
<PAGE>
application solutions as an architectural platform for several applications.
These architectural commitments are larger in scope and potential revenue than
single application transactions. In some cases, these architectural commitments
also have longer sales cycles than our typical single application transactions,
because of both the customer's decision cycle in adopting an architectural
platform and heightened corporate approval requirements for larger contracts. We
believe general economic conditions that impact customers' capital investment
decisions also affect our sales cycles.
In addition, industry sources widely predicted that many corporations would
stop deploying new computer systems in late 1999 and early 2000, in order to
avoid disrupting their computer systems before the Year 2000. Conversely, some
of our customers may have accelerated their purchases and deployments of our
products in advance of the year 2000.
These factors could cause an unusual fluctuation in our orders, and our
revenues could be materially reduced and our operating results could be
materially adversely affected. Any significant change in customer buying
decisions or sales cycles for our products could have a material adverse effect
on our business, results of operations and financial condition.
If we do not effectively compete with new and existing competitors, our revenues
and operating margins will decline
The market for application server and integration software, and related
software components and services, is highly competitive. Our competitors are
diverse and offer a variety of solutions directed at various segments of this
marketplace. These competitors include operating system vendors such as IBM, Sun
Microsystems and database vendors such as Oracle. Microsoft has released
products that include certain application server functionality and has announced
that it intends to include application server and integration functionality in
future versions of its operating systems, including future versions of Windows
2000. Oracle recently announced plans to introduce a new version of its
application server product in the summer of 2000. In addition, there are
companies offering and developing application server and integration software
products and related services that directly compete with products we offer.
Further, software development tool vendors typically emphasize the broad
versatility of their tool sets and, in some cases, offer complementary software
that supports these tools and performs basic application server and integration
functions. Last, internal development groups within prospective customers'
organizations may develop software and hardware systems that may substitute for
those we offer. A number of our 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 us.
Our principal competitors currently include hardware vendors who bundle
their own application server and integration software products, or similar
products, with their computer systems and database vendors that advocate
client/server networks driven by the database server. IBM and Sun Microsystems
are the primary hardware vendors who offer a line of application server and
integration solutions for its customers. IBM's sale of application server and
integration functionality along with its IBM proprietary hardware systems
requires us to compete with IBM in its installed base, where IBM has certain
inherent advantages due to its significantly greater financial, technical,
marketing and other resources, greater name recognition and the integration of
its enterprise application server and integration functionality with its
proprietary hardware and database systems. These inherent advantages allow IBM
to bundle, at a discounted price, application functionality with computer
hardware and software sales. Due to these factors, if we do not differentiate
our products based on functionality, interoperability with non-IBM systems,
performance and reliability, and establish our products as more effective
solutions to customers' needs our revenues and operating results will suffer.
Microsoft has announced that it intends to include certain application
server and integration functionality in future versions of its Windows 2000
operating system. Microsoft has also introduced a product that includes certain
basic application server functionality. The bundling of competing functionality
in versions of Windows requires us to compete with Microsoft in the Windows
marketplace, where Microsoft has certain inherent advantages due to its
significantly greater financial, technical, marketing and other resources, its
greater name recognition, its substantial installed base and the integration of
its application server and integration functionality with Windows. We need to
differentiate our products from Microsoft's based on scalability, functionality,
interoperability with non-Microsoft platforms, performance and reliability, and
need to establish our products as more effective solutions to customers' needs.
We may not be able to successfully differentiate our products from those offered
by Microsoft, and Microsoft's entry into the application server and integration
market could materially adversely affect our 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 our 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 our ability to sell additional software licenses and
maintenance, consulting and support services on terms favorable to us. Further,
competitive pressures could require us to reduce the price of our products and
related services, which could materially adversely affect
9
<PAGE>
our business, operating results and financial condition. We may not be able to
compete successfully against current and future competitors and any failure to
do so would have a material adverse effect upon our business, operating results
and financial condition.
If we fail to adequately protect our intellectual property rights, competitors
may use our technology and trademarks, which could weaken our competitive
position, reduce our revenues and increase our costs
Our success depends upon our proprietary technology. We rely on a
combination of patent, copyright, trademark and trade secret rights,
confidentiality procedures and licensing arrangements to establish and protect
our proprietary rights. It is possible that other companies could successfully
challenge the validity or scope of our patents and that our patents may not
provide a competitive advantage to us.
As part of our confidentiality procedures, we generally enter into non-
disclosure agreements with our employees, distributors and corporate partners
and into license agreements with respect to our software, documentation and
other proprietary information. Despite these precautions, third parties could
copy or otherwise obtain and use our products or technology without
authorization, or develop similar technology independently.
In particular, we have, in the past, provided certain hardware OEMs with
access to our source code, and any unauthorized publication or proliferation of
this source code could materially adversely affect our business, operating
results and financial condition. It is difficult for us to police unauthorized
use of our products, and although we are unable to determine the extent to which
piracy of our software products exists, software piracy is a persistent problem.
Effective protection of intellectual property rights is unavailable or limited
in certain foreign countries. The protection of our proprietary rights may not
be adequate and our competitors could independently develop similar technology,
duplicate our products, or design around patents and other intellectual property
rights we hold.
Third parties could assert that our software products and services infringe
their intellectual property rights, which could expose us to increased costs and
litigation
It is possible that third parties could claim our current or future
products infringe their rights including their patent rights. Any such claims,
with or without merit, could cause costly litigation that could absorb
significant management time, which could materially adversely effect our
business, operating results and financial condition. These types of claims might
require us to enter into royalty or license agreements. If required, we may not
be able to obtain such royalty or license agreements, or obtain them on terms
acceptable to us, which could have a material adverse effect upon our business,
operating results and financial condition.
Our international operations expose us to greater management, collections,
currency, intellectual property, regulatory and other risks
International revenues accounted for 42.1 percent and 40.6 percent of our
consolidated revenues for the three months ended April 30, 2000 and 1999,
respectively. We sell our products and services through a network of branches
and subsidiaries located in 29 countries worldwide. In addition, we also market
through distributors. We believe that our success depends upon continued
expansion of our international operations. Our international business is subject
to a number of risks, including unexpected changes in regulatory practices and
tariffs, greater difficulties in staffing and managing foreign operations,
longer collection cycles, seasonality, potential changes in tax laws, greater
difficulty in protecting intellectual property and the impact of fluctuating
exchange rates between the US dollar and foreign currencies in markets where we
do business.
General economic and political conditions in these foreign markets may also
impact our international revenues. There can be no assurances that these factors
and other factors will not have a material adverse effect on our future
international revenues and consequently on our business and consolidated
financial condition and results of operations.
If we are unable to manage our growth, our business will suffer
We have continued to experience a period of rapid and substantial growth
that has placed, and if such growth continues would continue to place, a strain
on the Company's administrative and operational infrastructure. We have
increased the number of our employees from 120 employees in three offices in the
United States at January 31, 1996 to over 2,100 employees in over 70 offices in
29 countries at April 30, 2000. Our ability to manage our staff and growth
effectively requires us to continue to improve our operational, financial and
management controls, reporting systems and procedures. In this regard, we are
currently updating our management information systems to integrate financial and
other reporting among
10
<PAGE>
our multiple domestic and foreign offices. In addition, we intend to continue to
increase our staff worldwide and to continue to improve the financial reporting
and controls for our global operations. It is possible we will not be able to
successfully implement improvements to our management information and control
systems in an efficient or timely manner and that, during the course of this
implementation, we could discover deficiencies in existing systems and controls.
If we are unable to manage growth effectively, our business, results of
operations and financial condition will be materially adversely affected.
If the market for application servers, application integration and application
component software does not grow as quickly as we expect, our revenues will be
harmed
We sell our products and services in the application server, application
integration and application component markets. These markets are emerging and
are characterized by continuing technological developments, evolving industry
standards and changing customer requirements. Our success is dependent in large
part on acceptance of our products by large customers with substantial legacy
mainframe systems, customers establishing a presence on the Web for commerce,
and developers of web-based commerce applications. Our 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 and to the Internet through
the use of application server and integration technology. There can be no
assurance that the markets for application server and integration technology and
related services will continue to grow. If these markets fail to grow or grow
more slowly than we currently anticipate, or if we experience increased
competition in these markets, our business, results of operations and financial
condition will be adversely affected.
If we lose key personnel or cannot hire enough qualified personnel, it will
adversely affect our ability to manage our business, develop new products and
increase revenue
We believe our future success will depend upon our ability to attract and
retain highly skilled personnel including our founders, Messrs. William T.
Coleman III and Alfred S. Chuang, and other key members of management.
Competition for these types of employees is intense, and it is possible that we
will not be able to retain our key employees and that we will not be successful
in attracting, assimilating and retaining qualified candidates in the future. As
we seek to expand our global organization, the hiring of qualified sales,
technical and support personnel 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 our business, results of operations and
financial condition.
Our failure to maintain ongoing sales through distribution channels will result
in lower revenues
To date, we have sold our products principally through our direct sales
force, as well as through indirect sales channels, such as computer hardware
companies, packaged application software developers, or ISVs, systems
integrators and independent consultants, independent software tool vendors and
distributors. Our ability to achieve revenue growth in the future will depend in
large part on our success in expanding our direct sales force and in further
establishing and expanding relationships with distributors, ISVs, OEMs and
systems integrators. In particular, a significant part of our strategy is to
embed our technology in products our ISV customers offer. We intend to seek
distribution arrangements with additional ISVs to embed our Web application
servers in their products. It is possible that we will not be able to
successfully expand our direct sales force or other distribution channels,
secure license agreements with additional ISVs on commercially reasonable terms
or at all, and otherwise further develop our relationships with indirect
distribution channels. Moreover, even if we succeed in these endeavors, it still
may not increase our revenues. If we invest resources in these types of
expansion and our revenues do not correspondingly increase, our business,
results of operations and financial condition will be materially and adversely
affected.
We rely on informal relationships with a number of consulting and systems
integration firms to enhance our sales, support, service and marketing efforts,
particularly with respect to implementation and support of our products as well
as lead generation and assistance in the sales process. We will need to expand
our relationships with third parties in order to support license revenue growth.
Many such firms have similar, and often more established, relationships with our
principal competitors. It is possible that these and other third parties will
not provide the level and quality of service required to meet the needs of our
customers, that we will not be able to maintain an effective, long term
relationship with these third parties, and that these third parties will not
successfully meet the needs of our customers.
If we do not develop and enhance new and existing products to keep pace with
technological, market and industry changes, our revenues may decline
The market for our products is highly fragmented, competitive with
alternative computing architectures, and characterized by continuing
technological developments, evolving industry standards and changing customer
requirements.
11
<PAGE>
The introduction of products embodying new technologies, the emergence of new
industry standards or changes in customer requirements could render our existing
products obsolete and unmarketable. As a result, our success depends upon our
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. It is possible that
our products will not adequately address the changing needs of the marketplace
and that we will not be successful in developing and marketing enhancements to
our existing products or 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 our business,
results of operations and financial condition.
If our products contain software defects, it could harm our revenues and expose
us to litigation
The software products we offer are internally complex and, despite
extensive testing and quality control, may contain errors or defects, especially
when we first introduce them. We may need to issue corrective releases of our
software products to fix any defects or errors. Any defects or errors could also
cause damage to our reputation, loss of revenues, product returns or order
cancellations, or lack of market acceptance of our products. Accordingly, any
defects or errors could have a material and adverse effect on our business,
results of operations and financial condition.
Our license agreements with our customers typically contain provisions
designed to limit our exposure to potential product liability claims. It is
possible, however, that the limitation of liability provisions contained in our
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 we have not experienced any product liability claims to date, sale and
support of our products entails the risk of such claims, which could be
substantial in light of customers' use of such products in mission-critical
applications. If a claimant brings a product liability claim against us, it
could have a material adverse effect on our business, results of operations and
financial condition.
Our products interoperate with many parts of complicated computer systems,
such as mainframes, servers, personal computers, application software,
databases, operating systems and data transformation software. Failure of anyone
of these parts could cause all or large parts of computer systems to fail. In
such circumstances, it may be difficult to determine which part failed, and it
is likely that customers will bring a lawsuit against several suppliers. Even if
our software is not at fault, we could suffer material expense and material
diversion of management time in defending any such lawsuits.
We have a high debt balance and large interest obligations
At April 30, 2000, we had approximately $564.5 million of long-term
indebtedness in the form of convertible notes. As a result of this indebtedness,
we have substantial principal and interest payment obligations. The degree to
which we are leveraged could significantly harm our ability to obtain financing
for working capital, acquisitions or other purposes and could make us more
vulnerable to industry downturns and competitive pressures. Our ability to meet
our debt service obligations will be dependent upon our future performance,
which will be subject to financial, business and other factors affecting our
operations, many of which are beyond our control. In addition, our earnings are
insufficient to cover our fixed charges.
We will require substantial amounts of cash to fund scheduled payments of
interest on the notes, payment of the principal amount of the notes, payment of
principal and interest on our other indebtedness, future capital expenditures
and any increased working capital requirements. If we are unable to meet our
cash requirements out of cash flow from operations, there can be no assurance
that we will be able to obtain alternative financing. In the absence of such
financing, our ability to respond to changing business and economic conditions,
to make future acquisitions, to absorb adverse operating results or to fund
capital expenditures or increased working capital requirements would be
significantly reduced. If we do not generate sufficient cash flow from
operations to repay the notes at maturity, we could attempt to refinance the
notes; however, no assurance can be given that such a refinancing would be
available on terms acceptable to us, if at all. Any failure by us to satisfy our
obligations with respect to the notes at maturity (with respect to payments of
principal) or prior thereto (with respect to payments of interest or required
repurchases) would constitute a default under the indenture and could cause a
default under agreements governing our other indebtedness.
12
<PAGE>
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, as well as the Forms 10-Q, 10-K and 8-A incorporated by
reference into this prospectus, include "Forward-Looking Statements" within the
meaning of Section 27A of the Securities Act of 1933, as amended (the
"Securities Act") and Section 21E of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"). All statements other than statements of historical
fact are "Forward-Looking Statements" for purposes of these provisions,
including any projections of earnings, revenues or other financial items, any
statements of the plans and objectives of management for future operations, any
statements concerning proposed new products or services, any statements
regarding future economic conditions or performance, and any statement of
assumptions underlying any of the foregoing. In some cases, Forward-Looking
Statements can be identified by the use of terminology such as "may," "will,"
"expects," "plans," "anticipates," "estimates," "potential," or "continue," or
the negative thereof or other comparable terminology. Although BEA believes that
the expectations reflected in the Forward-Looking Statements contained herein
are reasonable, there can be no assurance that such expectations or any of the
Forward-Looking Statements will prove to be correct, and actual results could
differ materially from those projected or assumed in the Forward-Looking
Statements. Future financial condition and results of operations, as well as any
Forward-Looking Statements, are subject to inherent risks and uncertainties,
including but not limited to the factors described under "Risk Factors"
beginning on page 5 and the reasons described elsewhere in this offering
circular. All Forward-Looking Statements and reasons why results may differ
included in this offering circular are made as of the date hereof, and BEA
assumes no obligation to update any such Forward-Looking Statement or reason why
actual results might differ.
13
<PAGE>
SELLING STOCKHOLDERS
The following table provides the names of and the number of shares of
Common Stock beneficially owned by each Selling Stockholder, and the number of
shares of Common Stock beneficially owned by each Selling Stockholder upon
completion of the offering or offerings pursuant to this prospectus, assuming
each Selling Stockholder offers and sells all of its or his/her respective
Shares. Selling Stockholders may, however, offer and sell all, or some or none
of their Shares. Under some circumstances, the respective donees, pledgees and
transferees or other successors in interest of the Selling Stockholders may also
sell the shares listed below as being held by the Selling Stockholders. No
Selling Stockholder beneficially owns one percent or greater of the Company's
outstanding Common Stock.
<TABLE>
<CAPTION>
Beneficial Beneficial
Ownership Prior to Ownership After the
Offering(1) Offering(1)
------------------ Offered -------------------
Number of Shares Number of Shares Number of Shares
------------------ ---------------- -------------------
<S> <C> <C> <C>
Daniel Lemberg.................... 719,026 77,290 641,736
William W. Lee.................... 641,252 538,056 103,196
Joseph A. M. Pilkerton........... 602,652 538,056 64,596
John Belizaire.................... 599,652 538,056 61,596
Julian Pelenur.................... 538,056 538,056 0
Gregg S. Hymowitz................. 380,080 39,912 340,168
Kenneth P. Birman................. 257,826 37,418 220,408
Daniel & Robert Bock.............. 241,115 25,319 215,796
William Lindsey................... 237,549 24,945 212,604
Daniel Bock....................... 237,191 31,207 205,984
Michael Toporek................... 178,164 18,708 159,456
Robert Hoag....................... 157,497 29,933 127,564
Fali Rubenstein................... 118,776 12,472 106,304
Laura Spurrell.................... 118,776 12,472 106,304
Arthur Spurrell................... 118,776 12,472 106,304
Keith Liu......................... 116,776 12,472 104,304
Jay Associates.................... 95,021 9,977 85,044
Lebow Family Revocable Trust...... 83,143 8,731 74,412
Abe Sher.......................... 61,762 6,486 55,276
Jacob Koval....................... 59,387 6,235 53,152
Walter Grossman................... 52,976 12,472 40,504
Irving N. Segal................... 51,263 7,483 43,780
J. Mitchell Hull.................. 49,564 18,708 30,856
Wolf Sicherman.................... 35,633 3,741 31,892
Navidec, Inc...................... 31,673 3,325 28,348
Melvin Blatman.................... 23,754 2,494 21,260
Rose Blatman...................... 23,754 2,494 21,260
Stephen and Rosalyn Meadow........ 23,754 2,494 21,260
E80S Partners..................... 23,754 2,494 21,260
Wayne I. Maggin................... 23,754 2,494 21,260
Jeffrey Toporek................... 23,754 2,494 21,260
Lawrence Wolfe.................... 23,754 2,494 21,260
Carol Labi........................ 22,454 2,494 19,960
Judy Grossman c/f C. Grossman..... 13,494 2,494 11,000
Yeshiva Beth Hillel............... 9,981 9,977 4
Adam M. Palley.................... 9,754 2,494 7,260
Judy Grossman c/f L. Grossman..... 8,494 2,494 6,000
Premier Ideas Incorporated........ 4,989 4,989 0
Sheldon and Ruth Perl............. 4,989 4,989 0
Peter Stone....................... 3,754 2,494 1,260
Kay Silverman Revocable Trust..... 2,494 2,494 0
</TABLE>
-----------------------
(1) Share numbers reflect shares previously sold by the respective Selling
Stockholder pursuant to the Registration Statement on Form S-3 #333-92085
declared effective by the SEC on January 24, 2000, which Registration Statement
was filed pursuant to the terms of the Merger Agreement.
14
<PAGE>
PLAN OF DISTRIBUTION
This prospectus relates to the offer and sale from time to time by the
holders of up to 2,616,379 shares of Common Stock. These shares were issued in
connection with the merger agreement between BEA and The Theory Center, Inc.
dated November 10, 1999 (the "Merger Agreement"). This prospectus has been
prepared in connection with registering these shares to allow for sales of these
shares by the applicable selling stockholders to the public as required by the
terms of this merger agreement. We have registered the shares for sale pursuant
to the terms of the merger agreement, but registration of these shares does not
necessarily mean that any of these shares will be offered and sold by the
holders thereof.
We will not receive any proceeds from this offering. The shares may be sold
from time to time to purchasers directly by any of the selling stockholders, or
under some circumstances, donees, pledgees, transferees or other successors in
interest ("Transferees") thereof. Alternatively, the selling stockholders, or
Transferees thereof, may from time to time offer the shares through dealers or
agents, who may receive compensation in the form of commissions from the selling
stockholders, or Transferees thereof, and/or the purchasers of the shares for
whom they may act as agent. The selling stockholders, or Transferees thereof,
and any dealers or agents that participate in the distribution of the shares may
be deemed to be "underwriters" within the meaning of the Securities Act and any
profit on the sale of the shares by them and any commissions received by any
such dealers or agents might be deemed to be underwriting commissions under the
Securities Act of 1933.
At a time a particular offer of the shares is made, a prospectus
supplement, if required, will be distributed that will set forth the name and
names of any dealers or agents and any commissions and other terms constituting
compensation from the selling stockholders, or Transferees thereof, and any
other required information. The shares may be sold from time to time at varying
prices determined at the time of sale or at negotiated prices.
In order to comply with the securities laws of certain states, if
applicable, the shares may be sold only through registered or licensed brokers
or dealers. In addition, in certain states, the shares may not be sold unless
they have been registered or qualified for sale in such state or an exemption
from such registration or qualification requirement is available and is complied
with.
The shares may also be sold in one or more of the following transactions:
(a) block transactions (which may involve crosses) in which a broker-dealer may
sell all or a portion of such stock as agent but may position and resell all or
a portion of the block as principal to facilitate the transaction; (b) purchases
by any such broker-dealer as principal and resale by such broker-dealer for its
own account pursuant to a prospectus supplement; (c) ordinary brokerage
transactions and transactions in which any such broker-dealer solicits
purchasers; (d) sales "at the market" to or through a market maker or into an
existing trading market, on an exchange or otherwise, for such shares; and (e)
sales in other ways not involving market makers or established trading markets,
including direct sales to purchasers. In effecting sales, broker-dealers engaged
by the selling stockholders may arrange for other broker-dealers to participate.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements and schedule included in our Annual report on form 10-K for
the year ended January 31, 2000, as set forth in their report, which is
incorporated by reference in this prospectus and elsewhere in the registration
statement. Our financial statements and schedule are incorporated by reference
in reliance on Ernst & Young LLP's report, given on their authority as experts
in accounting and auditing.
LEGAL MATTERS
The validity of the issuance of the shares of Common Stock offered pursuant
to this prospectus will be passed upon for the Company by Morrison & Foerster
LLP, Palo Alto, California. Certain attorneys at Morrison & Foerster LLP own an
aggregate of approximately 48,000 shares of Common Stock of the Company.
15
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other expenses of Issuance and Distribution
The following table sets forth the estimated fees and expenses payable by
the Company in connection with the issuance and distribution of the Common Stock
registered hereby. All of such fees and expenses are estimates, except the
Securities Act registration fee.
Securities Act Registration Fee $ 26,572
Printing and duplicating fees................................... 10,000
Legal fees and expenses......................................... 5,000
Accounting fees and expenses.................................... 5,000
Miscellaneous expenses.......................................... 5,003
-----------
*Total..................................................... $ 51,575
===========
*None of the expenses listed above will be borne by the selling stockholders.
Item 15. 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 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 provides
that the liability of its directors for monetary damages shall be eliminated to
the fullest extend 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 securities laws or state or
federal environmental laws. The Registrant maintains a policy of directors' and
officers' liability insurance that insures the Company's directors and officers
against the cots of defense, settlement or payment of a judgment under certain
circumstances.
Pursuant to written agreement between the respective Selling stockholders
and the Company, the directors and officers of the Company are indemnified by
such Selling stockholders against certain civil liabilities that they may incur
under the Securities Act in connection with this registration statement and the
related prospectus.
ITEM 16. Exhibits
3.1 - 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))
3.2 - Bylaws of the Registrant (incorporated by reference to Exhibit 3.3 to
Registrant's registration statement on Form SB-2 (File No. 333-20791))
4.1 - Reference is made to Exhibits 3.1 and 3.2
5.1 - Opinion of Morrison & Foerster LLP
10.1 - Agreement and Plan of Reorganization among BEA Systems, Inc. and The
Theory Center, Inc. and BEA Acquisition Corp., dated as of November 10, 1999
(incorporated by reference to Exhibit 10.1 to Registrant's registration
statement on Form S-3 (File No. 333-92085))
23.1 - Consent of Ernst & Young LLP, Independent Auditors
23.2 - Consent of Morrison & Foerster LLP (included in Exhibit 5.1)
24.1 - Power of Attorney (included on signature page hereto)
16
<PAGE>
Item 17. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-
effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in this registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) any deviation from the low or high and of the
estimated maximum offering price may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate changes
in volume and price represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or any
material change to such information in this registration statement; provided,
however, that subparagraphs (i) and (ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in the periodic reports filed by the Registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in this registration statement.
(2) That, for the purpose of determining any liability under the Securities Act
of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
these securities being registered which remain unsold at the termination of the
offering.
The undersigned Registrant hereby further undertakes that, for the purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual reports pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, when applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference to 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.
The undersigned Registrant hereby further undertakes that:
(1) For purposes of determining any liability under the Securities Act of 1933,
the information omitted from the form of prospectus filed as part of this
registration statement in reliance under Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4), or 497(h)
under the Securities Act of 1933 shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 15 of this
registration statement, or otherwise (other than insurance), the Registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in such Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in such Act and will be governed by the final adjudication
of such issue.
17
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Jose, State of California on June 30, 2000.
BEA SYSTEMS, INC.
By: /s/ William T. Coleman III
--------------------------
William T. Coleman III
Chief Executive Officer
and Chairman of the Board
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints William T. Coleman, III and
William M. Klein as his/her true and lawful attorneys-in-fact and agents,
jointly and severally, with full power of substitution and resubstitution, for
and in his/her stead, in any and all capacities, to sign on his/her behalf the
registration statement on Form S-3 in connection with the sale by BEA Systems,
Inc. of shares of offered securities, and to execute any amendments thereto
(including post-effective amendments) or certificates that may be required in
connection with this registration statement, and to file the same, with all
exhibits thereto, and all other documents in connection therewith, with the
Securities and Exchange Commission and granting unto said attorneys-in-fact and
agents, jointly and severally, the full power and authority to do and perform
each and every act and thing necessary or advisable to all intents and purposes
as he/she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, jointly and severally, or his/her substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement on Form S-3 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 Chief Executive Officer, Chairman of the Board and June 30, 2000
-------------------------- Director (Principal Executive Officer)
William T. Coleman III
/s/ William M. Klein Chief Financial Officer and Executive Vice President - June 30, 2000
-------------------- Administration (Principal Financial and Accounting
William M. Klein Officer)
/s/ Carol A. Bartz Director June 30, 2000
------------------
Carol A. Bartz
/s/ Cary J. Davis Director June 30, 2000
-----------------
Cary J. Davis
/s/ Stewart K.P. Gross Director June 30, 2000
----------------------
Stewart K.P. Gross
/s/ William H. Janeway Director June 30, 2000
----------------------
William H. Janeway
/s/ Dean O. Morton Director June 30, 2000
------------------
Dean O. Morton
/s/ Robert L. Joss Director June 30, 2000
------------------
Robert L. Joss
</TABLE>
