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As filed with the Securities and Exchange Commission on May 4, 2000
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BEA SYSTEMS, INC.
(Exact name of Registrant as Specified in Its Charter)
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Delaware 77-0394711
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
2315 North First Street
San Jose, Ca 95131
(Address of Principal Executive Offices)
1997 Stock Incentive Plan
1997 Employee Stock Purchase Plan
(Full Title of the Plans)
----------------------------------------------
William T. Coleman III
Chief Executive Officer and Chairman
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)
Copy to:
Cori M. Allen, Esq.
Morrison & Foerster LLP
755 Page Mill Road
Palo Alto, CA 94304
(650) 813-5600
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Securities to be to be Offering Price Aggregate Offering Registration
Registered Registered(1) Per Share(2) Price(2) Fee
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par
value per share 21,711,808 $41.0625 $891,541,116 $235,370
=================================================================================================
</TABLE>
(1) Includes16,284,000 shares of Common Stock to be registered under the 1997
Stock Incentive Plan and 5,427,808 shares of Common Stock to be registered
under the 1997 Employee Stock Purchase Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) and Rule 457(c) under the Securities Act of 1933, as
amended, 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 April 27, 2000.
In addition, pursuant to Rule 416(c) under the Securities Act, this
Registration Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plans described herein.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I 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.
There are hereby incorporated by reference in this Registration Statement
the following documents and information previously filed with the Securities and
Exchange Commission (the "Commission") by BEA Systems, Inc. (the "Registrant"):
1. The contents of the Registrant's Registration Statements on Form S-8,
Commission File No. 333-24941 and 333-37385, including exhibits thereto, are
hereby incorporated by reference into this Registration Statement, except as the
same may be modified by the information set forth herein.
2. The Registrant's Annual Report on Form 10-K for the fiscal year ended
January 31, 2000, filed pursuant to Section 13 of the Securities Exchange Act of
1934 (the "Exchange Act").
3. The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A (File No. 000-22369), including
any amendment or report filed for the purpose of updating such description.
All documents filed by the Registrant with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference into this Registration Statement and to be a
part hereof from the date of filing of such documents. Any statement contained
in a document incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated
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by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The indemnification and liability of the Registrant's directors and
officers are governed by Delaware law.
Under Section 145 of the General Corporation Law of the State of Delaware,
the Registrant has broad powers to indemnify its directors and officers against
liabilities that they may incur in such capacities, including liabilities under
the Securities Act of 1933, as amended (the "Securities Act"). The Registrant's
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 extent permissible under Delaware law. Pursuant to Delaware law,
this includes elimination of liability for monetary damages for breach of the
directors' fiduciary duty of care to the Registrant and its stockholders. These
provisions do not eliminate the directors' duty of care and, in appropriate
circumstances, equitable remedies such as injunctive or other forms of non-
monetary relief will remain available under Delaware law. In addition, each
director will continue to be subject to liability for breach of the director's
duty of loyalty to the Registrant' for acts of omissions not in good faith or
involving intentional misconduct, for knowing violations of law, for any
transaction from which the director derived an improper personal benefit, and
for payment of dividends or approval of stock repurchases or redemptions that
are unlawful under Delaware law. The provision also does not affect a
director's responsibilities under any other laws, such as the federal securities
laws or state or federal environmental laws.
The Registrant has entered into agreements with its directors and certain
of its executive officers that require the Registrant to indemnify such persons
against expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred (including expenses of a derivative action) in connection
with any proceeding, whether actual or threatened, to which any such person may
be made a party by reason of the fact that such person is or was a director or
officer of the Registrant or any of its affiliated enterprises, provided such
person acted in good faith and in a manner such person reasonably believed to be
in or not opposed to the best interests of the Registrant and, with respect to
any criminal proceeding, had no reasonable cause
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to believe his or her conduct was unlawful. The indemnification agreement also
sets forth certain procedures that will apply in the event of a claim for
indemnification thereunder.
The Registrant has obtained a policy of directors' and officers' liability
insurance that insures the Registrant's directors and officers against the cost
of defense, settlement or payment of a judgment under certain circumstances.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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 (Page 6)
Item 9. Undertakings.
(a) 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;
(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 the Registration Statement;
(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 the Registration Statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
this Registration Statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in this
Registration Statement.
(2) 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
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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 the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby 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 the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) 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 of whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 San Jose, State of California, on May 4, 2000.
BEA SYSTEMS, INC.
By: /s/ William T. Coleman III
----------------------------
William T. Coleman III
Chief Executive Officer and Chairman
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 William M. Klein, with full power to act alone, his true and
lawful attorneys-in-fact, with the power of substitution, for him and in his
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 thing requisite and necessary to be done as fully to all intents and
purposes as he 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, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ William T. Coleman III Chief Executive Officer and Chairman May 4, 2000
- ---------------------------------- (Principal Executive Officer)
William T. Coleman III
/s/ William M. Klein Chief Financial Officer and Executive May 4, 2000
- ---------------------------------- Vice President (Principal Financial
William M. Klein and Accounting Officer)
/s/ Robert L. Joss Director May 4, 2000
- ----------------------------------
Robert L. Joss
</TABLE>
6
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<TABLE>
<S> <C> <C>
/s/ William H. Janeway Director May 4, 2000
- ----------------------------------
William H. Janeway
/s/ Stewart K.P. Gross Director May 4, 2000
- ----------------------------------
Stewart K.P. Gross
/s/ Cary J. Davis Director May 4, 2000
- ----------------------------------
Cary J. Davis
/s/ Carol Bartz Director May 4, 2000
- ----------------------------------
Carol Bartz
/s/ Dean O. Morton Director May 4, 2000
- ----------------------------------
Dean O. Morton
</TABLE>
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INDEX TO EXHIBITS
Exhibit
Number Document
- ------ --------
5.1 Opinion of Morrison & Foerster LLP
23.1 Consent of Counsel (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, Independent
Auditors
24.1 Power of Attorney ( Page 6)
8
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EXHIBIT 5.1
MORRISON & FOERSTER LPP
Palo Alto, California
May 4, 2000
BEA Systems, Inc.
2315 North First Street
San Jose, CA 95113
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
BEA Systems, Inc., a Delaware corporation (the "Company"), with the Securities
and Exchange Commission on May 4, 2000 (the "Registration Statement"), relating
to the registration under the Securities Act of 1933, as amended, of 5,427,808
shares of the Company's Common Stock reserved for issuance pursuant to the
Company's 1997 Employee Stock Purchase Plan and 16,284,000 shares of the
Company's Common Stock reserved for issuance pursuant to the Company's 1997
Stock Incentive Plan (the "Shares")
As counsel to the Company, in connection with the Registration
Statement, we have examined the proceedings taken by the Company in connection
with the registration of the Shares.
Based on the foregoing, it is our opinion that the Shares, when issued
and sold in the manner described in the Registration Statement and the related
Prospectus, will be legally and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the
Registration Statement and further consent to all references to us in the
Registration Statement and any amendments thereto.
Very truly yours,
/s/ Morrison & Foerster LLP
<PAGE>
EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1997 Stock Incentive Plan and 1997 Employee Stock
Purchase Plan of BEA Systems, Inc. of our report dated February 21, 2000,
(except for Note 17, as to which the date is April 24, 2000), 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, 2000, filed with
the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Palo Alto, California
April 28, 2000
