Bea Systems Inc - Amended tender offer statement by Issuer (SC TO-I/A)

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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

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AMENDMENT NO. 1 TO

SCHEDULE TO

(Rule 13e-4)

TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1) OF

THE SECURITIES EXCHANGE ACT OF 1934

 

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BEA Systems, Inc.

(Name of Subject Company (Issuer) and Name of Filing Person (Offeror))

 

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Options to Purchase Common Stock, Par Value $0.001 Per Share

(Title of Class of Securities)

073325102

(CUSIP Number of Class of Securities)

(Underlying Options to Purchase Common Stock)

 

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Alfred S. Chuang

President, Chief Executive Officer and Chairman

BEA Systems, Inc.

2315 North First Street

San Jose, CA 95131

[phone]

(Name, address, and telephone numbers of person authorized to receive notices and communications on behalf of filing persons)

 

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Copies to:

 

Matthew W. Sonsini, Esq.		David Zuckerman, Esq.
Wilson Sonsini Goodrich & Rosati		BEA Systems, Inc.
Professional Corporation		2315 North First Street
650 Page Mill Road		San Jose, CA 95131
Palo Alto, CA 94304		Tel: [phone]
Tel: [phone]

 

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CALCULATION OF FILING FEE

 

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Transaction Valuation*		Amount of Filing Fee**
$95,185,250.34		$2,922.19

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*

Estimated solely for the purposes of calculating the Amount of Filing Fee. The calculation of the Transaction Valuation assumes that all options to purchase the Issuer’s common stock that are eligible for the offer will be tendered pursuant to this offer. These options have an aggregate value of $95,185,250.34 as of November 12, 2007, calculated based on a Black-Scholes-Merton option pricing model.

 

**	The Amount of Filing Fee calculated in accordance with Rule 0-11(b) of the Securities Exchange Act of 1934, as amended, equals $30.70 for each $1,000,000 of the value of the transaction.

 

x	Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.

Amount Previously Paid: $2,922.19

Form or Registration No.: 005-52639

Filing Party: BEA Systems, Inc.

Date Filed: November 15, 2007

 

¨	Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.

Check the appropriate boxes below to designate any transactions to which the statement relates:

 

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third-party tender offer subject to Rule 14d-1.

 

x

issuer tender offer subject to Rule 13e-4.

 

¨

going-private transaction subject to Rule 13e-3.

 

¨

amendment to Schedule 13D under Rule 13d-2.

Check the following box if the filing fee is a final amendment reporting the results of the tender offer: ¨

 

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AMENDMENT NO. 1 TO

SCHEDULE TO

This Amendment No. 1 amends the Tender Offer Statement on Schedule TO relating to an offer (the “Offer”) by BEA Systems, Inc., a Delaware corporation (“BEA” or the “Company”), to amend certain outstanding options and receive a cash payment as set forth under the Offer to Amend the Exercise Price of Certain Options as amended and restated on November 30, 2007 (the “Offer to Amend”), which is filed as Exhibit (a)(1)(A) hereto and incorporated herein by reference.

This Offer is being made upon the terms and subject to the conditions set forth in the Offer to Amend, which, as may be amended or supplemented from time to time, constitutes the Offer, and which is filed as Exhibit (a)(1)(A) hereto. This Tender Offer Statement on Schedule TO is intended to satisfy the reporting requirements of Section 13(e) of the Securities Exchange Act of 1934, as amended.

 

Item 1.

Summary Term Sheet.

The information set forth under “Summary Term Sheet and Questions and Answers” in the Offer to Amend is incorporated herein by reference. The “Summary Term Sheet and Questions and Answers” has been amended and restated to clarify that unexercised portions of eligible options are eligible for the offer.

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Item 4.

Terms of the Transaction.

 

(a)

Material terms.

The information set forth in the Offer to Amend under “Summary Term Sheet and Questions and Answers,” “Eligibility” (Section 1), “Number of options and amount of consideration; expiration date” (Section 2), “Procedures for electing to participate in this offer” (Section 4), “Withdrawal rights and change of election” (Section 5), “Acceptance of options for amendment, issuance of cash payments, and amended options” (Section 6), “Conditions of the offer” (Section 7), “Source and amount of consideration; terms of amended options” (Section 9), “Status of options amended by us in the offer; accounting consequences of the offer” (Section 12), “Legal matters; regulatory approvals” (Section 13), “Material United States federal income tax consequences” (Section 14), and “Extension of offer; termination; amendment” (Section 15), is incorporated herein by reference.

The information in the applicable sections referred to above has been amended and restated to:

(i) clarify throughout these sections that unexercised portions of eligible options are eligible for the offer, and that if you have exercised a portion of an eligible option grant, your election will not affect your eligibility with respect to the portion that remains outstanding and unexercised;

(ii) make an amendment to the “Conditions of the offer” (Section 7), fifth bullet point, to state that “the commencement or escalation of a war or other national or international calamity directly or indirectly involving the United States, which could reasonably be expected to affect materially or adversely, or to delay materially, the completion of the offer” is a condition to the offer; and

(iii) make an amendment to the third paragraph, third sentence, of “Source and amount of consideration; terms of amended options” (Section 9) to read that “The statements are subject to the BEA Systems Stock Plans, and the forms of option agreement under the BEA Systems Stock Plans, which have been filed as exhibits to the Schedule TO of which this offer is a part.”

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Item 7.

Source and Amount of Funds or Other Consideration.

 

(b)

Conditions.

The information set forth in the Offer to Amend under Section 7, “Conditions of the offer,” is incorporated herein by reference.

The fifth bullet point of Section 7, “Conditions of the offer” has been amended to state that “the commencement or escalation of a war or other national or international calamity directly or indirectly involving the United States, which could reasonably be expected to affect materially or adversely, or to delay materially, the completion of the offer” is a condition to the offer.

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Item 12.

Exhibits.

The Index to Exhibits attached to this Schedule TO is incorporated herein by reference.

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SIGNATURE

After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

BEA SYSTEMS, INC.

/s/ Mark P. Dentinger

Mark P. Dentinger

Executive Vice President and Chief Financial Officer

Date: November 30, 2007

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INDEX TO EXHIBITS

 

Exhibit Number		Description
(a)(1)(A)		Offer to Amend the Exercise Price of Certain Options, as amended and restated on November 30, 2007
(a)(1)(B) *		Communications to all eligible employees from Mark P. Dentinger, dated November 15, 2007
(a)(1)(C)		Forms of employee reminder emails
(a)(1)(D)		Welcome page to BEA Systems, Inc. tender offer website
(a)(1)(E)		Form of election/withdrawal form
(a)(1)(F)		Instructions forming part of the terms and conditions of the offer
(a)(1)(G)		Form of election amendment review
(a)(1)(H) *		Form of review of your decision to decline or withdraw from the offer
(a)(1)(I)		Form of print confirmation of election
(a)(1)(J) *		Form of print confirmation of your decision to decline the offer or to withdraw from the offer
(a)(1)(K)		Form of acknowledgment of receipt of decline or withdrawal
(a)(1)(L) *		Frequently asked questions
(a)(1)(M)		Form of election confirmation statement
(a)(1)(N)		Screen shots of offer website at https://bea409a.equitybenefits.com/
(a)(1)(O) *		Presentation materials for eligible employees
(a)(1)(P) *		Transcript of web presentation for eligible employees
(a)(1)(Q)		BEA Systems, Inc. Internal Website Tender Offer Page
(b)		Not applicable
(d)(1) *		1997 Stock Incentive Plan, including forms of agreements thereunder ( incorporated herein by reference to Exhibit 10.3 to the Registrant’s Annual Report on Form 10-K, filed on April 14, 2006, Commission File No. 000-22369 )
(d)(2) *		2000 Non-Qualified Stock Incentive Plan, including forms of agreements thereunder ( incorporated herein by reference to Exhibit 10.20 to the Registrant’s Annual Report on Form 10-K, filed on May 1, 2000, Commission File No. 000-22369 )
(g)		Not applicable
(h)		Not applicable

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*	Previously filed