{"id":43173,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/agreement-and-plan-of-reorganization-bea-systems-inc-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"agreement-and-plan-of-reorganization-bea-systems-inc-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/agreement-and-plan-of-reorganization-bea-systems-inc-and.html","title":{"rendered":"Agreement and Plan of Reorganization – BEA Systems Inc. and WebLogic Inc."},"content":{"rendered":"\nAGREEMENT AND PLAN OF REORGANIZATION\n\n THIS AGREEMENT AND PLAN OF REORGANIZATION (the \"Agreement\") is made as of\nSeptember 24, 1998, by and among Charlotte Acquisition Corp., a Delaware\ncorporation (\"Charlotte\"), BEA Systems, Inc., a Delaware corporation (\"BEA\"),\nand WebLogic, Inc., a Delaware corporation (\"Seller\").\n\n RECITALS\n\n A. BEA and Seller desire to merge (the \"Merger\") Charlotte with and into\nSeller with Seller being the surviving corporation (the \"Surviving Corporation\")\nof the Merger.\n\n B. For federal income tax purposes, it is intended that the Merger shall\nqualify as a reorganization within the meaning of Section 368(a)(2)(E) of the\nInternal Revenue Code of 1986, as amended (the \"Code\"), and for financial\naccounting purposes, shall be accounted for as a pooling of interests.\n\n NOW, THEREFORE, the parties hereto hereby agree as follows:\n\n AGREEMENT\n\n ARTICLE 1\n MERGER\n\n 1.1 THE MERGER. Subject to the terms and conditions of this Agreement and\nin accordance with the Delaware General Corporation Law (the \"DGCL\"), at the\nEffective Time (as defined hereinafter), Charlotte will be merged with and into\nSeller, with Seller being the Surviving Corporation of the Merger and becoming a\nwholly-owned subsidiary of BEA and the separate corporate existence of Charlotte\nshall cease.\n\n 1.2 THE CLOSING. Subject to the terms and conditions of this Agreement,\nthe consummation of the Merger and the other transactions contemplated hereby\n(the \"Closing\") shall take place on September 30, 1998, at the offices of\nMorrison & Foerster LLP, 755 Page Mill Road, Palo Alto, California 94304, or\nsuch other place and time as the parties may otherwise agree, and the date of\nthe Closing is referred to herein as the \"Closing Date.\"\n\n 1.3 FILING OF MERGER DOCUMENTS; EFFECTIVE TIME. At the Closing, the\nparties shall cause the Merger to be consummated by executing and filing a duly\nexecuted Agreement of Merger and duly executed Certificates of Merger\n(collectively the \"Merger Documents\") with respect to the Merger with the\nSecretary of State of the State of Delaware, in such form as BEA and Seller\nreasonably determine is required by and in accordance with the relevant\nprovisions of the DGCL. The time upon which such filing becomes effective in\naccordance with the DGCL is referred to herein as the \"Effective Time.\"\n\n -1-\n\n\n \n 1.4 EFFECT OF MERGER. At the Effective Time, the effect of the Merger\nshall be as provided in the DGCL. Without limiting the generality of the\nforegoing, at the Effective Time: \n\n (a) The Certificate of Incorporation and the Bylaws of Charlotte, as\nin effect immediately prior to the Closing Date, shall become the Certificate of\nIncorporation of the Surviving Corporation, unless and until amended in\naccordance with their terms and as provided by law.\n (b) The directors of the Charlotte shall become the directors of the\nSurviving Corporation, each to hold a directorship in accordance with the\nCertificate of Incorporation and Bylaws of the Surviving Corporation until his\nsuccessor is duly elected and qualified, and the parties listed on Schedule\n --------\n1.4 delivered by Seller to BEA concurrent with the execution and delivery\n- --- \nof the Agreement shall be the respective officers of the Surviving Corporation\nas identified on such Schedule 1.4.\n ------------ \n\n 1.5 TAX AND ACCOUNTING TREATMENT. The parties hereto acknowledge and agree\nthat the Merger contemplated hereby is intended to be treated for accounting\npurposes as a pooling of interests. The parties also acknowledge and agree that\nthe Merger is intended to be a tax-free reorganization under Section\n368(a)(2)(E) of the Code. The parties to this Agreement hereby adopt this\nAgreement as a \"plan of reorganization\" within the meaning of Sections 1.368-\n2(g) and 1.368-3(a) of the United States Treasury Regulations. Notwithstanding\nthe foregoing or anything else to the contrary contained in this Agreement, the\nparties acknowledge and agree that no party is making any representation or\nwarranty as to the status of the Merger as a tax-free reorganization under\nSection 368 of the Code or as to the effect, if any, that any transaction\nconsummated prior to the Effective Time has or may have on any such tax-free\nstatus.\n\n ARTICLE 2\n CONVERSION OF STOCK\n\n 2.1 CONSIDERATION; CONVERSION OF STOCK.\n\n 2.1.1 For the purposes of the Agreement \"Consideration\" means\n7,606,122 shares of Common Stock $.001 par value per share of BEA (\"BEA Common\nStock\"), subject to adjustment to account for exercises of any Seller Options or\nWarrants (as defined) subsequent to the date hereof and prior to the Effective\nTime. At the Effective Time, by virtue of the Merger, and without further action\nby any person or entity, all of the shares of Seller Stock (as hereinafter\ndefined) issued and outstanding immediately prior to the Effective Time shall be\nconverted into and become the right to receive (subject to the payment of cash\nfor fractional shares as provided in Section 2.2.3) the Consideration in\naccordance with Section 2 hereof. All shares of Seller Stock held by Seller as\ntreasury stock shall be canceled and no payment shall be made with respect\nthereto. Each issued and outstanding share of capital stock of Charlotte shall,\nat the Effective Time, be automatically converted into one share of Seller\nCommon Stock (as hereinafter defined). For the purposes hereof, the term \"Seller\nStock\" shall mean all issued and outstanding shares of Seller's common stock\n(\"Seller Common Stock\") as of the Effective Time,\n\n -2-\n\n\n \nand all issued and outstanding shares of Seller's preferred stock (\"Seller\nPreferred Stock\"), as of the Effective Time.\n\n 2.1.2 The Consideration shall be allocated among the holders of\nshares of Seller Stock outstanding immediately prior to the Effective Time by\nallocating among the holders of Seller's Common Stock outstanding at the\nEffective Time that number of shares of BEA Common Stock determined by,\nmultiplying the number of shares of Seller Common Stock held by each such holder\nby 0.612750 (the \"Conversion Factor\"). To the extent that any Seller Preferred\nStock is not converted into Common Stock prior to the Effective Time and the\ncondition to Closing set forth at Section 7.1.15 shall have been waived by BEA,\nappropriate allocation of the Consideration shall be made, as Seller shall\ndesignate in writing, to the holders of any such unconverted Seller Preferred\nStock, and the Conversion Factor and the remaining Consideration allocable to\nSeller Common Stock shall be adjusted as BEA and Seller shall mutually agree.\n\n 2.2 PAYMENT OF CONSIDERATION. On the Closing Date:\n\n 2.2.1 Subject to Section 2.2.1, BEA shall issue and deliver to the\nholders of Seller Stock certificates representing the number of shares of Common\nStock comprising the Consideration (other than the Escrowed Shares (as\nhereinafter defined)) allocated to such stockholders in accordance with Schedule\n --------\n2.2.1 delivered by Seller to BEA concurrent with the execution and delivery of\n- -----\nthis Agreement.\n\n 2.2.2 BEA shall authorize one or more persons to act as Exchange Agent\nhereunder (the \"Exchange Agent\"). As soon as practicable after the Effective\nTime, BEA shall cause the Exchange Agent to mail to all former holders of record\nSeller Stock instructions for surrendering their certificates representing\nSeller Stock in exchange for a certificate or certificates representing shares\nof BEA Common Stock. Upon surrender of a Seller Stock certificate for\ncancellation to the Exchange Agent or to such other agent or agents as may be\nappointed by BEA, the holder of such certificate shall be entitled to receive in\nexchange therefore (subject to Section 2.2.4) a certificate representing that\nnumber of whole shares of BEA Common Stock into which the shares of Seller Stock\ntheretofore represented by such certificate so surrendered shall have been\nconverted pursuant to the provisions of this Agreement, and the certificate so\nsurrendered shall forthwith be canceled. Until surrendered in accordance with\nthe provisions of this Section, each Seller Stock certificate shall represent\nfor all purposes shares of BEA Common Stock. BEA Common Stock into which Seller\nStock shall be converted in the Merger shall be deemed to have been issued at\nthe Effective Time. If any BEA Common Stock certificates are to be issued in a\nname other than that in which the Seller Stock certificate surrendered is\nregistered, it shall be a condition of such exchange that the person requesting\nsuch exchange shall deliver to the Exchange Agent any transfer or other taxes\nrequired by reason of the issuance of certificates for such shares of BEA Common\nStock in a name other than that of the registered holder of the certificate\nsurrendered or establish to the reasonable satisfaction of the Exchange Agent\nthat such tax has been paid or is not applicable.\n\n -3-\n\n\n \n 2.2.3 No certificates representing fractional shares of BEA Common\nStock shall be issued upon the surrender or exchange of Seller Stock\ncertificates. No fractional interest shall entitle the owner to vote or to any\nrights of a security holder. In lieu of fractional shares, each holder of shares\nof Seller Stock who would otherwise have been entitled to a fractional share of\nBEA Common Stock, will receive upon surrender of a Seller Stock certificate or\ncertificates, as the case may be, an amount in cash (without interest)\ndetermined by multiplying such fraction by the Closing Market Value. BEA shall\nnot be liable to any holder of shares of Seller Stock for any cash in lieu of\nfractional interests delivered to a public official pursuant to applicable\nescheat or abandoned property laws. For purposes of this Agreement, \"Closing\nMarket Value\" of BEA Common Stock means the average of the closing prices of\nCommon Stock as reported by the Nasdaq National Market for the five trading days\nending on the trading day prior to the Closing Date.\n\n 2.2.4 BEA shall deposit 10% of the aggregate number of shares of BEA\nCommon Stock comprising the Consideration (the \"Escrowed Shares\") with State\nStreet Bank and Trust Company of California, N.A. (the \"Escrow Agent\") to be\nheld and disbursed by the Escrow Agent in accordance with the form of escrow\nagreement (the \"Escrow Agreement\") attached hereto as Exhibit 2.2.4.\n ------------- \n\n 2.3 OPTIONS.\n\n 2.3.1 At the Effective Time, any and all outstanding and unexercised\nEmployee Options (as hereinafter defined) shall cease to represent a right to\nacquire shares of Seller Common Stock and shall be converted automatically into\nan option to purchase shares of BEA Common Stock in an amount and at an exercise\nprice determined as provided below:\n\n (a) The number of shares of BEA Common Stock subject to the new\noption shall be equal to the product of the number of shares of Seller Common\nStock subject to the original option and the Conversion Factor, provided that\nany fractional shares of BEA Common Stock resulting from such multiplication\nshall be rounded down to the nearest share; and\n\n (b) The exercise price per share of BEA Common Stock under the\nnew option shall be equal to the quotient obtained by dividing the exercise\nprice per share of Seller Common Stock under the original option by the\nConversion Factor, provided that such exercise price shall be rounded up to the\nnearest cent.\n\n 2.3.2 The adjustment provided herein with respect to any options that\nare \"incentive stock options\" (as defined in the Code) shall be and is intended\nto be effected in a manner consistent with Section 424(b) of the Code. The\nduration and other terms of the new option shall be the same as the original\noption as modified by Section 2.3.1 except that all references to Seller shall\nbe deemed to be references to BEA.\n\n 2.3.3 Prior to the Closing Date and except for any Employee Options\nand Assumed Warrants (as hereinafter defined), Seller shall cause all\noutstanding Warrants and Options (as hereinafter defined), to be exercised (and\nall shares of Seller Common Stock required \n\n -4-\n\n\n \nto be issued pursuant to such exercise to be validly and fully issued as fully\npaid, nonassessable shares) or terminated, such that, as of the Effective Time,\n(a) no options, warrants or other rights to acquire any shares of Seller's\ncapital stock or any securities convertible into shares of Seller's capital\nstock are outstanding, and (b) no person or entity other than the holders of\nSeller Stock shall have any right, title or interest in or to the ownership of\nSeller or any securities issued by Seller, all of which holders shall have no\nsuch, right, title or interest in or to Seller, other than their ownership of\nSeller Stock.\n\n 2.4 WARRANTS. At the Effective Time, BEA shall assume each of the Assumed\nWarrants and be subject to and bound by the conditions and obligations of Seller\nset forth therein, whereby the Assumed Warrants shall cease to represent a right\nto acquire shares of Seller Common Stock and shall be converted into warrants to\npurchase shares of BEA Common Stock in an amount and at an exercise price in\naccordance with the terms thereof.\n\n 2.5 APPRAISAL RIGHTS. If holders of any shares of Seller Stock (i) are\nentitled to dissent from the Merger and demand appraisal of any such Seller\nStock in accordance with the provisions of the DGCL concerning the right of such\nholders to dissent from the Merger and demand appraisal of their Seller Stock or\n(ii) have properly exercised dissenters rights with respect to their Seller\nStock in accordance with Section 1300 of the California General Corporation Law\n(\"CGCL\") (\"Dissenting Holders\"), any Seller Stock held by a Dissenting Holder as\nto which appraisal has been so demanded or for which such dissenter's rights\nhave been properly exercised (\"Excluded Shares\") shall not be converted as\ndescribed in Section 2.1, but shall, from and after the Closing, represent only\nthe right to receive such consideration as may be determined to be due to such\nDissenting Holder pursuant to the DGCL or CGCL, as applicable; provided,\nhowever, that each share of Seller Stock held by a Dissenting Holder who shall,\nafter the Closing, withdraw his demand for appraisal or lose his right of\nappraisal with respect to such shares of Seller Stock, in either case pursuant\nto the DGCL or CGCL, as applicable, shall not be deemed Excluded Shares but\nshall be deemed to be converted, as of the Effective Time, into the right to\nreceive BEA Common Stock in accordance with Section 2.1 hereof. Seller shall\ngive BEA (i) prompt notice of any written demands under Section 1300 of the CGCL\nwith respect to any shares of capital stock of Seller, any withdrawal of any\nsuch demands and any other instruments served pursuant to the CGCL and received\nby Seller and (ii) the right to participate in all negotiations and proceedings\nwith respect to any demands under Section 1300 of the CGCL with respect to any\nshares of capital stock of Seller. Seller shall cooperate with BEA concerning,\nand shall not, except with the prior written consent of BEA, voluntarily make\nany payments with respect to, or offer to settle or settle, any such demands.\n\n ARTICLE 3\n REPRESENTATIONS AND WARRANTIES OF SELLER\n\n Seller hereby represents and warrants to BEA and Charlotte that the\nfollowing facts and circumstances are true and correct, as of the date of this\nAgreement, subject to the limitations and exceptions set forth on Schedule 3\n ----------\ndelivered by Seller to BEA concurrent with the execution and delivery of this\nAgreement (the \"Seller Disclosure Schedule\"). Whenever the term \"to Seller's\n\n -5-\n\n\n \nknowledge\" or similar expression appears in any representation or warranty in\nthis Article 3, it means to the actual knowledge of Seller's directors and\nexecutive officers, after reasonable inquiry and investigation where specified.\nWhenever the term \"Seller has received no notice\" or like expression appears in\nany representation or warranty in this Article 3, it means that none of Seller's\ndirectors and executive officers has received actual oral or written notice of\nthe matter to which such term is applied, after having made reasonable inquiry\nas to whether notice has been received where specified.\n\n 3.1 ORGANIZATION. Seller: (i) is a corporation duly organized, validly\nexisting and in good standing under the laws of the State of Delaware; (ii) has\nall necessary corporate power to own and lease its properties, to carry on its\nbusiness as now being conducted and to enter into and perform this Agreement and\nall of the other documents and agreements contemplated hereby; and (iii) is\nqualified to do business in all jurisdictions in which the failure to so qualify\nwould have a material adverse effect on the business, operations or financial\ncondition of Seller. Seller has no Subsidiaries (as hereinafter defined) and\nholds no right, title or interest in or to any other corporation, company,\npartnership, trust, limited liability company or other entity.\n\n 3.2 AUTHORITY AND CONSENTS. The execution and performance of this\nAgreement and the other documents to be executed by Seller pursuant to the terms\nhereof will not result in a violation of Seller's Certificate of Incorporation\nor Bylaws. Seller has full power and authority (corporate and otherwise) to\nenter into this Agreement and the other documents to be executed by Seller\npursuant to the terms hereof and to carry out the transactions contemplated by\nthis Agreement and such other documents. This Agreement and the other documents\nto be executed by Seller pursuant to the terms hereof and their execution and\ndelivery to Charlotte and BEA have been duly authorized by the Board of\nDirectors of Seller, and, subject to Section 5.4, no further corporate action\nprior to the Closing shall be necessary on the part of Seller or its\nstockholders to effect the Merger. This Agreement and the other documents to be\nexecuted by Seller pursuant to the terms hereof do and will constitute legal,\nvalid and binding obligations of Seller, enforceable against Seller in\naccordance with their respective terms, subject as to enforcement only: (i) to\nbankruptcy, insolvency, reorganization, arrangement, moratorium and other\nsimilar laws of general applicability relating to or affecting creditors' rights\ngenerally; and (ii) to general principles of equity.\n\n Seller has delivered to BEA true, complete and correct copies of (i) its\nCertificate of Incorporation, as amended to date, certified by the appropriate\nofficial of the jurisdiction of incorporation, (ii) its Bylaws, as amended to\ndate, and (iii) its stock ledger, in each case, certified by Seller's corporate\nsecretary. The Certificate of Incorporation and Bylaws of Seller are in full\nforce and effect and Seller is in material compliance with the provisions\nthereof.\n\n 3.3 CAPITALIZATION AND TITLE TO SHARES.\n\n 3.3.1 Seller is authorized to issue eighteen million (18,000,000)\nshares of Seller Common Stock, of which five million five hundred eight-five\nthousand three hundred seventy-three (5,585,373) shares are issued and\noutstanding, and seven million (7,000,000) shares of Seller Preferred Stock are\nissuable in series. Of such Seller Preferred Stock, four\n\n -6-\n\n\n \nhundred thousand (400,000) shares have been designated Series A Stock, of which\nfour hundred thousand (400,000) shares are issued and outstanding; six hundred\nthousand (600,000) shares have been designated as Series B Stock, of which five\nhundred eighty-one thousand eight hundred (581,800) shares are issued and\noutstanding; and six million (6,000,000) shares have been designated as Series C\nStock, of which five million eight hundred forty-five thousand nine hundred\ntwenty (5,845,920) shares are issued and outstanding. Such shares are owned of\nrecord by the persons and in the amounts set forth on Section 3.3.1 of the\nSeller Disclosure Schedule. No other class of capital stock of Seller is\nauthorized or outstanding. All of the issued and outstanding shares of Seller's\ncapital stock are duly authorized and are validly issued, fully paid,\nnonassessable and free of pre-emptive rights. None of the issued and outstanding\nshares of Seller have been issued in violation of any federal or state law or\nany preemptive rights or rights to subscribe for or purchase securities.\n\n 3.3.2 Section 3.3.2 of the Seller Disclosure Schedule includes a true\nand complete list of all outstanding rights, subscriptions, warrants, calls,\npreemptive rights, options or other agreements of any kind to purchase or\notherwise receive from Seller any shares of the capital stock or any other\nsecurity of Seller, and all outstanding securities of any kind convertible into\nor exchangeable for such securities (all such rights, subscriptions, warrants,\ncalls, options, agreements and convertible securities, collectively, \"Warrants\nand Options\"). True and complete copies of all instruments (or the form of such\ninstruments) referred to in this Section 3.3.2 have been previously furnished to\nBEA. There are no stockholder agreements, voting trusts, proxies or other\nagreements or understandings with respect to the outstanding shares of capital\nstock of Seller to which Seller is a party. Except for options granted pursuant\nto the Company's 1996 Stock Plan (\"Employee Options\") and the Warrants set forth\nin Section 3.3 of the Seller Disclosure Schedule defined therein as Assumed\nWarrants (the \"Assumed Warrants\"), all outstanding unexercised Warrants and\nOptions shall terminate at the Effective Time.\n\n 3.3.3 Seller does not own beneficially any shares of capital stock of\nBEA.\n\n 3.4 TITLE TO ASSETS. Seller has good and marketable title to all of its\ntangible and intangible assets and properties reflected as owned on the Audited\nFinancial Statements (as defined hereinafter), except for assets sold in the\nordinary course of business since the date of the Audited Financial Statements,\nand all such assets and properties are free and clear of all liens, charges,\nencumbrances and security interests, except for (w) any lien for current taxes\nnot yet due and payable, (y) any statutory liens and (z) minor liens that have\narisen in the ordinary course of business that do not (in any case or in the\naggregate) materially detract from the value of the assets subject thereto or\nmaterially impair the operations of Seller (collectively, \"Liens\").\n\n 3.5 PROPERTIES. Seller does not own any real property and does not have\nany options or contractual obligations to purchase or acquire any interest in\nreal property other than leasehold interests. Seller has a valid leasehold\ninterest in all of the buildings, structures and leasehold improvements, and\nowns or has a valid leasehold interest in all equipment and other tangible\nproperty used in the conduct of its business, all of which are in good and\nsufficient operating condition and repair, ordinary wear and tear excepted.\nThere is no equipment located on the premises of Seller that is on loan from\nanother party. \n\n -7-\n\n\n \n 3.6 CONSENTS AND APPROVALS OF GOVERNMENT AUTHORITIES. Except for the\nfiling of the Merger Documents and the consent of Seller's stockholders, no\nconsent, approval or authorization of, or declaration, filing, notice or\nregistration with, any governmental agency, regulatory authority or other Person\n(as defined hereinafter) is required in connection with the execution, delivery\nand performance of this Agreement or any of the other documents contemplated\nhereby by Seller or the consummation of the transactions contemplated herein and\ntherein.\n\n 3.7 ACCOUNTS RECEIVABLE\/PREPAYABLE. Subject to the allowances with respect\nto accounts receivable set forth on the August 31, 1998 balance sheet included\nin the Interim Financial Statement (as such allowances shall have changed since\nAugust 31, 1998 in a manner consistent with past practices to reflect activity\nsince that date), all accounts receivable reflected on such balance sheet and\nall accounts receivable arising subsequent thereto on or prior to the Closing\nDate and not yet collected, have arisen in the ordinary course of business of\nSeller, represent valid and enforceable obligations due to Seller, have been and\nare fully collectible in the ordinary course of business in the aggregate\nrecorded amounts thereof in accordance with their terms and are, to the\nknowledge of the Seller, subject to no set-off, counterclaim or future\nperformance obligation on the part of Seller.\n\n 3.8 CONTRACTS AND OTHER AGREEMENTS. The Seller Disclosure Schedule sets\nforth a list of the following contracts and other agreements to which Seller is\na party or by or to which Seller or Seller's assets or properties are bound or\nsubject:\n (a) any agreement or series of related agreements requiring aggregate\npayments after the date hereof by or to Seller of more than $100,000;\n\n (b) any agreement with or for the benefit of any current or former\nofficer, director, stockholder, employee or consultant of Seller;\n\n (c) any agreement with any labor union or association representing any\nemployee of Seller;\n\n (d) any agreement for the purchase or sale of materials, supplies,\nequipment, merchandise or services that contain an escalation, renegotiation or\nredetermination clause or that obligate Seller to purchase all or substantially\nall of its requirements of a particular product from a supplier, or for periodic\nminimum purchases of a particular product from a supplier;\n\n (e) any agreement for sale of any of the assets or properties of\nSeller other than in the ordinary course of business or for the grant to any\nperson of any options, rights of first refusal, or preferential or similar\nrights to purchase any such assets or properties;\n\n (f) any partnership or joint venture agreement;\n\n (g) any agreement of surety, guarantee or indemnification, other than\nagreements in the ordinary course of business with respect to obligations in an\naggregate amount not in excess of $50,000;\n\n -8-\n\n\n \n (h) any agreement containing covenants of Seller not to compete in any\nline of business, in any geographic area or with any person or covenants of any\nother person not to compete with Seller or in any line of business of Seller;\n\n (i) any agreement granting or restricting the right of Seller to use\nany Intellectual Property (as defined hereinafter), except for any Intellectual\nProperty that is licensed to Seller under any third party software license\ngenerally available to the public at a cost of less than $50,000;\n\n (j) any agreement with customers or suppliers for the sharing of fees,\nthe rebating of charges or other similar arrangements;\n\n (k) any agreement with any holder of securities of Seller as such\n(including, without limitation, any agreement containing an obligation to\nregister any of such securities under any federal or state securities laws);\n\n (l) any agreement obligating Seller to deliver services or product\nenhancements or containing a \"most favored nation\" pricing clause;\n\n (m) any agreement relating to the acquisition by Seller of any\noperating business or the capital stock of any other person;\n\n (n) any agreement requiring the payment to any person of a brokerage\nor sales commission or a finder's or referral fee in connection with the\ntransactions contemplated by this Agreement (other than arrangements to pay\ncommission or fees to employees in the ordinary course of business);\n\n (o) any agreement or note relating to or evidencing outstanding\nindebtedness for borrowed money, other than agreements entered into in the\nordinary course of business for amounts not exceeding $50,000;\n\n (p) any lease, sublease or other agreement under which Seller is\nlessor or lessee of any real property or equipment or other tangible property\nwith respect to obligations in excess of $50,000; and\n\n (q) Except for agreements to provide maintenance, upgrades, bug fixes,\nerror corrections or similar work product that are ordinary and customary for\nthe software industry and that are related to the Seller products which have\nbeen delivered as of the date hereof, any agreement that requires Seller to\ndeliver, or undertake the development of, any new product, customized product,\nsubstantial upgrade, new version or similar work product where such delivery or\ndevelopment requires Seller to utilize substantial personnel or financial\nresources.\n\n (r) any other material agreement not made in the ordinary course of\nbusiness.\n\n True and complete copies of all the contracts and other agreements\n(and all amendments, waivers or other modifications thereto) set forth on the\nSeller Disclosure Schedule\n\n -9-\n\n\n \nhave been made available to BEA. Each of such contracts is valid, subsisting, in\nfull force and effect, binding upon Seller, and to the knowledge of Seller,\nbinding upon the other parties thereto in accordance with their terms, and\nSeller is not in default under any of them, nor, to the best knowledge of\nSeller, is any other party to any such contract or other agreement in default\nthereunder, nor does any condition exist that with notice or lapse of time or\nboth, would constitute a default thereunder, except, in each case, such defaults\nas would not, individually or in the aggregate, have a material adverse effect\non the business of Seller.\n\n 3.9 COMPLIANCE WITH LAWS.\n\n 3.9.1 Seller has all licenses, permits, franchises, orders or\napprovals of any federal, state, local or foreign governmental or regulatory\nbody required for the conduct of the business of Seller, except where not having\nsuch license, permit, franchise, order or approval would not result in a\nmaterial adverse effect on business, operations or financial condition of Seller\n(collectively, \"Permits\"); such Permits are in full force and effect; and no\nproceeding is pending or, to the knowledge of Seller, threatened to revoke or\nlimit any Permit.\n\n 3.9.2 Except where such violation would not have a material adverse\neffect on the business, operations or financial condition of Seller, Seller is\nnot in violation of any applicable law, ordinance or regulation or any order,\njudgment, injunction, decree or other requirement of any court, arbitrator or\ngovernmental or regulatory body. Seller has not received notice of, and there\nhas not been any citation, fine or penalty imposed against Seller for, any such\nviolation or alleged violation.\n\n 3.10 BANK ACCOUNTS AND POWERS OF ATTORNEY. Section 3.10 of the Seller\nDisclosure Schedule identifies all bank and brokerage accounts of Seller,\nwhether or not such accounts are held in the name of Seller, lists the\nrespective signatories therefor and lists the names of all persons holding a\npower of attorney from Seller and a summary of the terms thereof.\n\n 3.11 AGREEMENT WILL NOT CAUSE BREACH OR VIOLATION. Neither the execution\nnor delivery of this Agreement or the other documents contemplated hereby by\nSeller, nor performance by Seller of the terms and provisions of this Agreement\nor such other documents will (a) conflict with or result in a breach or\nviolation of any of the terms, conditions or provisions of any Permit or any\njudgment, order, injunction, decree, regulation or ruling of any court or\ngovernmental authority to which Seller or any assets of Seller are subject or of\nany contract to which Seller is a party or any agreement, contract, or\ncommitment to which Seller is a party or by which it is bound, except where such\nconflict, breach or violation would not have a material adverse effect on the\nbusiness, operations or financial condition of Seller, or (b) give any person or\nentity the right to terminate or modify any material contract to which Seller is\na party, or accelerate any material obligation or indebtedness of Seller\nthereunder.\n\n 3.12 FINANCIAL STATEMENTS. Seller has previously delivered to BEA (i) the\naudited consolidated financial statements of Seller at December 31, 1997\n(including the footnotes thereto) (the \"Audited Financial Statements\"), and (ii)\nthe unaudited balance sheet of Seller (the \"Interim Balance Sheet\") at August\n31, 1998, and related statement of operations and cash flows for the period then\nended (the \"Interim Financial Statements\"). Such financial statements \n\n -10-\n\n\n \nreferred to in this section are collectively referred to herein as the\n\"Financial Statements.\" The Interim Financial Statements have been prepared\nfrom, and are in accordance with, the books and records of Seller and present\nfairly, in all material respects, the financial position and the results of\noperations of Seller as of the dates and for the periods indicated, in each case\nin accordance with generally accepted accounting principles (\"GAAP\")\nconsistently applied throughout the periods involved except as otherwise stated\ntherein, and subject, in the case of the Interim Financial Statements, to normal\nyear end audit adjustments, which are not, in the aggregate, material and to the\nabsence of notes as may be required by GAAP.\n\n 3.13 NO UNDISCLOSED LIABILITIES. Seller has no liabilities or obligations\nof any nature required to be disclosed as liabilities on a balance sheet\nprepared in accordance with GAAP except (a) liabilities which are fully\nreflected or reserved against in the Financial Statements, and (b) liabilities\nincurred in the ordinary course of operation of the business of Seller since the\ndate of the Audited Financial Statements.\n\n 3.14 CUSTOMERS. Section 3.14 of the Seller Disclosure Schedule sets forth\nthe ten (10) customers who accounted for the largest sales of Seller, for each\nof Seller's 1996 and 1997 fiscal years (the \"Customers\"). No Customer has\ncanceled or otherwise terminated its relationship with Seller, or has during\nfiscal year 1998 to date decreased materially its purchase of the services of\nSeller. Seller does not know of any plan or intention of any Customer, and has\nnot received any written threat or notice from any Customer, to terminate,\ncancel or otherwise materially and adversely modify its relationship with Seller\nor to decrease materially or limit its purchase of the services or products of\nSeller.\n\n 3.15 TRANSACTIONS WITH MANAGEMENT. No officer of Seller has (whether\ndirectly or indirectly through another entity in which such person has an\ninterest, other than as the holder of less than 1% of a class of securities of a\npublicly traded company) any interest in (a) any property or assets of Seller\n(except as a stockholder) or (b) to Seller's knowledge, any current competitor,\ncustomer or supplier of Seller or (c) to Seller's knowledge, any person which is\ncurrently a party to any contract with Seller involving any amount in excess of\n$50,000.\n\n 3.16 ABSENCE OF CERTAIN CHANGES. Since August 31, 1998, there have been no\nmaterial changes in the condition, financial or otherwise, of any of the assets\nor any of the liabilities, business, prospects or operations of Seller or the\nbusiness of Seller, other than changes which in the aggregate have not been\nmaterially adverse to the business, finances or operations of Seller. Without\nlimiting the foregoing, since August 31, 1998 other than in the ordinary course\nof business:\n\n (a) Seller has not materially altered the nature of the business of\nSeller as carried on or made any material change in the products and services it\nsupplies;\n\n (b) Seller has not borrowed or agreed to borrow any funds or\nincurred, or assumed or become subject to, whether directly or by way of\nguarantee or otherwise, any material obligation or liability for borrowed money,\nexcept payables incurred in the ordinary course of business and consistent with\npast practice;\n\n -11-\n\n\n \n (c) Seller has not paid, discharged or satisfied any claim, liability\nor obligation other than the payment, discharge or satisfaction in the ordinary\ncourse of business and consistent with past practice of liabilities or\nobligations reflected or reserved against in the Interim Balance Sheet or trade\npayables incurred in the ordinary course of business and consistent with past\npractice;\n\n (d) Seller has not permitted or allowed any of its property or assets\n(real, personal or mixed, tangible or intangible) to be subjected to any Lien of\nany kind;\n\n (e) Seller has not written down the value of any inventory or written\noff as uncollectible any notes or accounts receivable, except for write-downs\nand write-offs in the ordinary course of business and consistent with past\npractice, none of which is material;\n\n (f) Seller has not cancelled any debts or waived any claims or rights\nof substantial value, waived any statute of limitation or sold, transferred, or\notherwise disposed of any of its properties or assets (real, personal or mixed,\ntangible or intangible), except sales of immaterial assets in the ordinary\ncourse of business and consistent with past practice;\n\n (g) Seller has not licensed or disposed of or permitted to lapse any\nrights to the use of any Seller Intellectual Property;\n\n (h) Seller has not granted any increase in the compensation of\nofficers or employees (including any such increase pursuant to any bonus,\npension, profit-sharing or other plan or commitment) or any increase in the\ncompensation payable or to become payable to any officer or employee;\n\n (i) Seller has not made any capital expenditure or commitment\ntherefor in excess of $50,000 individually or in the aggregate;\n\n (j) Seller has not paid, loaned or advanced any amount to, or sold,\ntransferred or leased any properties or assets (real, personal or mixed,\ntangible or intangible) to, or entered into any agreement or arrangement with,\nany of its officers, directors or any Affiliate (as defined hereinafter) or\nassociate of any of its officers, directors or stockholders;\n\n (k) Seller has not made any change in the accounting policies or\npractices of Seller;\n\n (l) Seller has not issued any shares of its capital stock or any\nother securities or made any redemption or other acquisition of any capital\nstock of Seller or any declaration, setting aside, or payment of any dividend or\ndistribution of any kind with respect to any shares of capital stock of Seller\nexcept pursuant to the exercise of any outstanding Warrants and Options;\n\n (m) there have been no losses or damage to any of Seller's assets due\nto fire or other casualty, whether or not insured, amounting to more than\n$50,000, in the aggregate; and\n\n -12-\n\n\n \n (n) Seller has not agreed, whether in writing or otherwise, to do any\nof the foregoing.\n\n 3.17 INTELLECTUAL PROPERTY.\n\n 3.17.1 Section 3.17.1 of the Seller Disclosure Schedule contains a\nlist of all patents, patent applications, trademarks (whether registered or\nunregistered), trademark applications, service marks (whether registered or\nunregistered), service mark applications, copyrights (whether registered or\nunregistered) and copyright applications owned by or filed in the name of the\nSeller (the \"Owned Intellectual Property\"), specifying as to each, as\napplicable: (i) the nature of such Intellectual Property; (ii) the other\nowner(s) of such Intellectual Property, for any Intellectual Property that is\njointly owned by the Seller and any other Person that is not an Affiliate of the\nSeller; (iii) the jurisdictions by or in which such Intellectual Property has\nbeen issued or registered or in which an application for such issuance or\nregistration has been filed, including the respective registration or\napplication numbers; and (iv) licenses, sublicenses and other agreements to\nwhich the Seller is a party and pursuant to which any Person is authorized to\nuse such Intellectual Property, including the identity of all parties thereto, a\ndescription of the nature and subject matter thereof, the applicable royalty and\nthe term thereof.\n\n 3.17.2 The Seller owns or licenses all Intellectual Property necessary\nto conduct business to the same extent and in substantially the same manner as\npresently conducted and as presently proposed by the Seller to be conducted (the\n\"Seller Intellectual Property\"). The Seller Intellectual Property will be owned\nby the Seller, or the Seller will have right for use thereof on identical terms\nand conditions immediately subsequent to the Closing. No Owned Intellectual\nProperty is involved in any interference or re-examination or cancellation or\nopposition proceeding and the Seller has not been notified or alerted that any\nsuch proceeding will hereafter be commenced. Except as set forth in Section\n3.17.2 of the Seller Disclosure Schedule, to the Seller's knowledge, after\nreasonable inquiry, the Seller has no reasonable legal basis for provoking or\ninitiating an interference or opposition proceeding with respect to any\nIntellectual Property held or used by others, and has no reasonable basis for\nbelieving that any of Seller Intellectual Property, owned exclusively or jointly\nby Seller, is being infringed by others.\n\n 3.17.3 The Seller has not been notified (after having made reasonable\ninquiry as to whether notice has been received) that it is a defendant in any\naction, suit, investigation or proceeding relating to, any alleged claim of\ninfringement by the Seller Intellectual Property, and no Seller Intellectual\nProperty infringes or misappropriates Intellectual Property of any other Person.\nSeller has no knowledge, after reasonable inquiry, of any continuing\ninfringement by any other Person of any Seller Intellectual Property owned,\nexclusively or jointly, by Seller. Except as set forth on Section 3.17.3 of the\nSeller Disclosure Schedule, the Seller has not entered into any agreement to\nindemnify any other Person against any charge of infringement, misappropriation\nor other conflict with respect to any Intellectual Property.\n\n 3.17.4 The Seller has delivered to BEA correct and complete copies of\nany Seller patents, registrations, applications, licenses, agreements, and\npermissions (as amended to date) relating to Owned Intellectual Property and has\nmade available to BEA correct and complete\n\n -13-\n\n\n \ncopies of all other written documentation evidencing ownership and prosecution\n(if applicable) of each such Owned Intellectual Property. With respect to all\nSeller Intellectual Property, to Seller's knowledge, after reasonable inquiry:\n\n (a) all patents, copyrights and trademarks included in the Owned\nIntellectual Property are valid and in full force and all applications listed on\nSection 3.17.1 of the Seller Disclosure Schedule as pending have been prosecuted\nin good faith as required by law and are in good standing;\n\n (b) Seller possesses all right, title and interest in the Owned\nIntellectual Property and any other Seller Intellectual Property not jointly\nowned or licensed from any other Person and, except as set forth in Section\n3.17.4 of the Seller Disclosure Schedule, no Person that is not party to a non-\ndisclosure agreement with Seller, a copy of which has been provided to BEA, has\nbeen provided by Seller access to or has any rights to, contingent or otherwise\n(including without limitation any rights under any source code escrow or similar\nagreement), any portion of the Seller Intellectual Property that is source code\nand is owned by Seller;\n\n (c) the Owned Intellectual Property, and the other Seller Intellectual\nProperty owned by Seller either exclusively or jointly with others, or licensed\nexclusively from any other Person, is not subject to any outstanding Lien,\njudgment, order, decree, stipulation, injunction, or charge; and\n\n (d) no charge, complaint, action, suit, proceeding, hearing,\ninvestigation, claim, or demand is pending or to the knowledge of the Seller\n(and Seller employees with responsibility for intellectual property matters) is\nthreatened which challenges the legality, validity, enforceability, use, or\nownership of the Owned Intellectual Property or the other Seller Intellectual\nProperty owned by Seller, either exclusively or jointly with any other Person,\nor licensed exclusively from any other Person.\n\n 3.17.5 To the Seller's knowledge, after reasonable inquiry, no\nemployee of the Seller is subject to any secrecy or noncompetition agreement or\nany agreement or restriction of any kind that would impede in any material way\nthe ability of such employee to carry out fully all activities of such employee\nin furtherance of the business of the Seller as currently operated and as\npresently proposed to be operated by the Seller. To the Seller's knowledge,\nafter reasonable inquiry, no third party has claimed that any person employed by\nor affiliated with the Seller has violated or may be violating any of the terms\nor conditions of his past employment, noncompetition or nondisclosure agreement\nwith such third party, or disclosed or may be disclosing or utilized or may be\nutilizing any trade secret or proprietary information or documentation of such\nthird party or interfered or may be interfering in the employment relationship\nbetween such third party and any of its present or former employees. Each\ncurrent employee, officer and consultant of the Seller has executed a\nproprietary information and inventions agreement substantially in the form\nprovided to BEA. The Seller, after reasonable investigation, is not aware that\nany of its employees are in violation of any such agreement.\n\n 3.17.6 To the knowledge of the Seller, after reasonable inquiry, the\nSoftware is free from significant programming errors and operates in substantial\nconformity with its user \n\n -14-\n\n\n \ndocumentation and other descriptions and standards applicable thereto provided\nby the Seller, and except as set forth on Section 3.17.6 of the Seller\nDisclosure Schedule, the Software does not contain any known virus, timer,\nclock, counter, or other limiting design, instruction or routine, that would,\nwithout the user's knowledge and consent, erase data or programming code or\nbecome inoperable or otherwise incapable of being used in the full manner for\nwhich it was designed and created (\"Harmful Code\").\n\n 3.18 PRODUCT WARRANTIES AND RETURNS. Except as set forth on Section 3.18 of\nthe Seller Disclosure Schedule Seller has not made any express warranties or\nguarantees relating to its products that will be in effect as of the Closing\nDate. During the twelve (12) month period ended on August 31, 1998, Seller has\nreceived no customer complaints pursuant to which Seller gave a credit or\naccepted a product return for a refund in either case in excess of $10,000.\n\n 3.19 LITIGATION. Seller is not a party to any pending or, to Seller's\nknowledge after reasonable inquiry, threatened action, suit, arbitration,\nmediation, proceeding or investigation, at law or in equity or otherwise in, for\nor by any court or other governmental body or any arbitration, mediation or\nsimilar forum (collectively, \"Litigation\"); nor, to Seller's knowledge, does any\nbasis exist for any such Litigation. Seller is not subject to any decree,\njudgment or order of any court or other governmental body which could have a\nmaterial adverse effect on the condition, financial or otherwise, of any of\nSeller's assets or the business of Seller or which could prevent the\ntransactions contemplated by this Agreement.\n\n 3.20 PERSONNEL. Section 3.20 of the Seller Disclosure Schedule lists: (i)\nall Employee Plans (as defined below) and all contracts or agreements with\ndirectors, officers, employees or unions, or consulting agreements, to which\nSeller is a party or it or its assets are subject as of the date of this\nAgreement; (ii) the names, salary rates, bonuses paid during the last fiscal\nyear, and accrued vacation and sick leave for all the employees of Seller as of\nAugust 31, 1998; and (iii) all group insurance programs in effect for employees\nof Seller. Seller is not in default with respect to any of the obligations so\nlisted, except where such default would not have a material adverse effect on\nthe business, operations or financial condition of Seller. Seller has delivered\nto BEA true, complete and correct copies of all Employee Plans. Seller has no\nunion contracts or collective bargaining agreements with, or any other\nobligations to, employee organizations or groups, nor is Seller currently\nengaged in any labor negotiations except in minor grievances not involving any\nemployee organization or group, nor, to the knowledge of Seller, is Seller the\nsubject of any union organization. There is no pending or, to Seller's\nknowledge, threatened labor dispute, strike or work stoppage affecting the\nbusiness of Seller. All plans described on Section 3.20 of the Seller Disclosure\nSchedule are in full compliance with applicable provisions of the Employee\nRetirement Income Security Act of 1974 (\"ERISA\") and regulations issued under\nERISA, except where such noncompliance would not have a material adverse effect\non the business, operations or financial condition of Seller, and there is no\nunfunded liability with respect to such plans. Section 3.20 of the Seller\nDisclosure Schedule also lists the amount payable to employees of Seller under\nother fringe benefit plans. The term \"Employee Plan\" shall mean all present and\nprior (including terminated and transferred) plans, programs, agreements,\narrangements and methods of contributions or compensation (including all\namendments to and components of the same, such as a trust with respect to a\nplan) providing any remuneration or\n\n -15-\n\n\n \nbenefits, other than current cash compensation, to any current or former\nemployee of Seller or to any other person who provides services to Seller,\nincluding, without limitation, pension, retirement, profit sharing, percentage\ncompensation, stock purchase, stock option, bonus and non-qualified deferred\ncompensation plans, disability plans, medical plans, dental plans, workers\ncompensation, health insurance, life insurance or other death benefits,\nincentive plans, severance plans, vacation benefits and fringe benefits.\n\n 3.21 OSHA. Without limiting Section 3.9, Seller and the business of Seller\nhave at all times been in compliance with and have not violated any federal,\nstate or local statutes, laws, regulations or rules relating to occupational\nhealth or safety, including, without limitation, the rules and regulations of\nthe Occupational Safety and Health Administration (\"OSHA\"), except where such\nnoncompliance would not have a material adverse effect on the business,\noperations or financial condition of Seller. No investigation or claim has at\nany time been commenced or pending against Seller or the business of Seller by\nOSHA or any similar state or local agency. To the knowledge of Seller no claim\nhas at any time been made by any current or former employee of Seller relating\nto occupational health or safety.\n\n 3.22 TAXES. All tax returns required to be filed prior to the date hereof\nwith respect to the Seller and the business of Seller have been timely filed,\neach such tax return is true, accurate and complete in all material respects.\nSeller has timely paid all taxes due on such returns and any subsequent\nassessments with respect thereto. All taxes due and payable prior to the Closing\nDate by or with respect to Seller or the business of Seller for the periods\nprior to the Closing Date have been or will be paid by Seller prior to the\nClosing or reserves have been established therefore in the Interim Financial\nStatements. With respect to each taxable period of Seller, (i) no deficiency or\nproposed adjustment which has not been settled or otherwise resolved for any\namount of taxes has been asserted or assessed by any taxing authority against\nSeller; (ii) Seller has no pending consent to extend the time in which any taxes\nmay be assessed or collected by any taxing authority; (iii) Seller has not\nrequested or been granted an extension of the time for filing any tax return to\na date later than the Closing; (iv) there is no action, suit, taxing authority\nproceeding, or audit or claim for refund now in progress, pending or, to the\nknowledge of Seller threatened against Seller with respect to taxes; (v) there\nare no Liens for taxes (other than for current taxes not yet due and payable)\nupon any of Seller's assets; and (vi) true, correct and complete copies of all\nincome and sales tax returns filed by or with respect to Seller for the past\nthree years have been furnished or made available to BEA. Seller has not agreed\nto, or is not required to, make any adjustments under Section 481(a) of the Code\nby reason of a change in accounting method or otherwise.\n\n 3.23 INSURANCE. Section 3.23 of the Seller Disclosure Schedule constitutes\na list of all insurance policies and bonds in force with respect to Seller or\nSeller's assets showing for each such policy or bond: (i) the owner and loss-\npayee; (ii) the coverage of such policy or bond; (iii) the amount of premium\nproperly allocable to such policy or bond; (iv) the name of the insurer; and (v)\nthe termination date of the policy or bond. Copies of all such insurance\npolicies and bonds have been made available to BEA. All such insurance policies\nand bonds are in full force and effect. The insurance coverage provided by such\npolicies and bonds is of the type and\n\n -16-\n\n\n \nin the amounts customarily carried by Persons conducting businesses similar to\nthe business of Seller as presently conducted and in accordance with good\nbusiness practices.\n\n 3.24 ENVIRONMENTAL LIABILITY. Without limiting Section 3.9, at all times\nSeller has complied with all applicable environmental and hazardous waste laws,\norders, regulations, rules and ordinances adopted, imposed or promulgated by any\ngovernmental or regulatory entity having jurisdiction over any property owned or\nleased by Seller, except where such noncompliance would not have a material\nadverse effect on the business, operations or financial condition of Seller.\nNeither Seller, to the knowledge of Seller, nor any portion of any property\nowned or leased by Seller is in violation of any federal, state or local law,\nordinance or regulation relating to industrial hygiene, worker safety,\nenvironmental protection, hazardous materials or waste or toxic materials,\nexcept where such violation would not have a material adverse effect on the\nbusiness, operations or financial condition of Seller. To the knowledge of\nSeller, prior to the date hereof, there has been no spill, release or discharge\nof any Hazardous Materials (as defined below) by Seller on, under or about any\nproperty owned or leased by Seller and no current use by Seller of any property\nowned or leased by Seller constitutes a public or private nuisance. All material\nenvironmental licenses, permits, clearances, covenants and authorizations\nrequired for the business of Seller have been obtained by Seller and are in full\nforce and effect. Any handling, generation, transportation, storage, treatment\nor use of Hazardous Material by Seller that has occurred on or about any\nproperty owned or leased by Seller has been in compliance with all laws,\nregulations and orders relating to Hazardous Materials, except where such\nnoncompliance would not have a material adverse effect on the business,\noperations or financial condition of Seller. As used herein, the term \"Hazardous\nMaterials\" means any hazardous or toxic substance, material or waste which is or\nbecomes regulated by any local government authority, the State of Delaware, any\nother state or the United States Government. To the knowledge of Seller, all\nproperty owned or leased by Seller, including, without limitation, the soil and\ngroundwater on or under such property, is free of Hazardous Materials. No\nnotification of release of Hazardous Materials pursuant to applicable law has\nbeen received by Seller as to any of such property. No wastes generated by\nSeller have ever been sent directly or indirectly to any site listed or formally\nproposed for listing federal or state list of hazardous substances sites\nrequiring investigation or clean-up. Seller has not received from any\ngovernmental authority or third party any requests for information, notices of\nclaim, demand letters, or other notification that they or it are or is or may be\npotentially responsible with respect to any investigation or clean-up of\nHazardous Materials. Seller has no knowledge of any fact or circumstance that\ncould involve Seller or BEA in any environmental litigation or proceeding or\nimpose any environmental liability upon Seller or BEA.\n\n -17-\n\n\n \n 3.25 PRODUCTS.\n\n 3.25.1 Except where such noncompliance or nonconformance would not\nhave a material adverse effect on the business, operations or financial\ncondition of Seller, each of the products produced, developed or sold by the\nSeller is, and at all times up to and including the sale thereof by the Seller\nhas been (a) in compliance in all material respects with all applicable federal,\nstate, and local laws and regulations and (b) conforms in all material respects\nto any promises or affirmations of fact made on the container or label for such\nproduct or in connection with its sale, subject to returns, repairs, defects and\nallowances consistent with past practice.\n\n 3.25.2 Section 3.25.2 of the Seller Disclosure Schedule contains a\nlist of all proprietary software developed by the Seller and currently sold,\nlicensed or otherwise used by the Seller in its business (the \"Software\"). When\nused on a compatible, Year 2000 Compliant operating system platform with\ncompatible, Year 2000 Compliant database software, the Software containing or\ncalling on a calendar function (including, without limitation, any function\nindexed to the CPU clock) and any function providing specific dates or days is\nYear 2000 Compliant, except where any inaccurate dates and calculations would\nnot have a material adverse effect on the business, operations or financial\ncondition of Seller.\n\n 3.26 REPRESENTATIONS COMPLETE. The representations and warranties of Seller\ncontained in this Article 3 do not contain any untrue statement of a material\nfact and do not omit to state any material fact necessary to make such\nrepresentations and warranties, in light of the circumstances under which they\nwere made, not misleading.\n\n ARTICLE 4\n REPRESENTATIONS AND WARRANTIES OF CHARLOTTE AND BEA\n\n Charlotte and BEA hereby, jointly and severally, represent and warrant to\nSeller and for the benefit of holders of Seller's Stock that the following facts\nand circumstances are true and correct:\n\n 4.1 AUTHORIZATION; ETC. Each of Charlotte and BEA: (i) is a corporation\nduly organized, validly existing and in good standing under the laws of the\nState of Delaware; (ii) has all necessary corporate power to own and lease its\nproperties, to carry on its business as now being conducted and to enter into\nand perform this Agreement and all of the other documents and agreements\ncontemplated hereby; and (iii) is qualified to do business in all jurisdictions\nin which the failure to so qualify would have a material adverse effect on the\nbusiness, operations or financial condition of Charlotte or BEA, as applicable.\nEach of Charlotte and BEA has full power and authority (corporate or otherwise)\nto enter into this Agreement and the other documents contemplated hereby and to\ncarry out the transactions contemplated hereby and thereby. Each of Charlotte\nand BEA has taken all required action by law to authorize the execution and\ndelivery of this Agreement and the other documents contemplated hereby and the\ntransactions contemplated hereby and thereby, and this Agreement and the other\ndocuments contemplated hereby is or will be a valid and binding obligation of\nCharlotte and\/or BEA, as applicable, enforceable against Charlotte and\/or BEA,\nas applicable in accordance with its terms,\n\n -18-\n\n\n \nsubject as to enforcement only: (i) to bankruptcy, insolvency, reorganization,\narrangement, moratorium and other similar laws of general applicability relating\nto or affecting creditors' rights generally; and (ii) to general principles of\nequity. BEA and Charlotte have delivered or made available to Seller complete\nand correct copies of their Certificates of Incorporation, as amended to date,\ncertified by the appropriate official of the jurisdiction of incorporation and\ntheir Bylaws, as amended to date. The Certificates of Incorporation of BEA and\nCharlotte are in full force and effect.\n\n 4.2 NO VIOLATION. Neither the execution and delivery of this Agreement or\nother documents contemplated herein nor the consummation of the transactions\ncontemplated hereby or thereby will violate any provisions of the Certificate of\nIncorporation or Bylaws of Charlotte or BEA, violate, or be in conflict with, or\nconstitute a default, conflict or breach under or cause the acceleration of the\nmaturity of any debt or obligation pursuant to, any agreement or commitment to\nwhich Charlotte or BEA is a party or by which Charlotte or bea is bound, or\nviolate any Permit, statute or law or any judgment, decree, order, regulation,\nor rule of any court or governmental authority.\n\n 4.3 CAPITALIZATION. As of September 9, 1998, the authorized capital stock\nof BEA consists of 80,000,000 shares of BEA Common Stock and 5,000,000 shares of\npreferred stock. As of September 9, 1998 (a) approximately 67,359,000 shares of\nBEA Common Stock were validly issued and outstanding, and (b) no shares of\npreferred stock were issued or outstanding. As of September 9, 1998: (x)\n9,958,345 shares of BEA Common Stock are subject to issuance pursuant to\noutstanding options to purchase shares of BEA Common Stock; and (y) 2,533,847\nshares of BEA Common Stock are reserved for future issuance pursuant to BEA's\n1997 Employee Stock Purchase Plan. (Stock options granted by BEA pursuant to\nBEA's stock option plans are referred to in this Agreement as \"BEA Options.\").\nIn addition, BEA has issued $250,000,000 in 4% Convertible Subordinated Notes\nDue June 15, 2005 (the \"Notes\"), the terms of which are set forth in the\nOffering Circular dated June 8, 1998, which Offering Circular has been provided\nto Seller. Except for the Notes, BEA Options and BEA's 1997 Employee Stock\nPurchase Plan (and rights related thereto), as of the date of this Agreement,\nthere is no: (1) outstanding subscription, option, call, warrant or right\n(whether or not currently exercisable) to acquire any shares of capital stock or\nother securities of BEA; or (2) outstanding security, instrument or obligation\nthat is or may become convertible into or exchangeable for any shares of capital\nstock or other securities of BEA. All of the issued and outstanding shares of\nBEA's capital stock are duly authorized and are validly issued, fully paid,\nnonassessable and free of pre-emptive rights. All outstanding shares of BEA\nCommon Stock, the Notes and all outstanding BEA Options have been, and all\nshares of BEA Common Stock to be issued in connection with the transactions\ncontemplated hereby will be, issued and granted in compliance with all\napplicable securities laws and other applicable legal requirements.\n\n 4.4 SEC FILINGS; FINANCIAL STATEMENTS. BEA has delivered to Seller accurate\nand complete copies of any report, registration statement and definitive proxy\nstatement filed by BEA with the Securities and Exchange Commission (the \"SEC\")\nsince January 1, 1998 and will make available to Seller accurate and complete\ncopies of all such registration statements, proxy statements and other\nstatements, reports, schedules, forms and other documents filed after the \n\n -19-\n\n\n \ndate of this Agreement and prior to the Effective Time (the \"BEA SEC\nDocuments\"). All statements, reports, schedules, forms and other documents\nrequired to have been filed with the SEC have been so filed. As of the time it\nwas filed with the SEC (or, if amended or superseded by a filing prior to the\ndate of this Agreement, then on the date of such filing): (x) each of the BEA\nSEC Documents complied in all material respects with the applicable requirements\nof the Securities Act of 1933, as amended (the \"Securities Act\") or the\nSecurities Exchange Act of 1934, as amended (the \"Exchange Act\") (as the case\nmay be); and (y) none of the BEA SEC Documents contained any untrue statement of\na material fact or omitted to state a material fact required to be stated\ntherein or necessary in order to make the statements therein, in the light of\nthe circumstances under which they were made, not misleading. The consolidated\nfinancial statements contained in the BEA SEC Documents: (x) complied as to form\nin all material respects with the published rules and regulations of the SEC\napplicable thereto; (y) were prepared in accordance with GAAP applied on a\nconsistent basis throughout the periods covered (except as may be indicated in\nthe notes to such financial statements and, in the case of unaudited statements,\nas permitted by Form 10-Q of the SEC, and except that unaudited financial\nstatements may not contain footnotes and are subject to normal and recurring\nyear-end audit adjustments which will not, individually or in the aggregate, be\nmaterial in amount); and (z) fairly present, in all material respects, the\nconsolidated financial position of BEA and its subsidiaries as of the respective\ndates thereof and the consolidated results of operations of BEA and its\nsubsidiaries for the periods covered thereby. BEA has recognized revenues in\naccordance with GAAP and Statement of Position 91-1 entitled \"Software Revenue\nRecognition,\" dated December 12, 1991, issued by the American Institute of\nCertified Public Accountants. For fiscal 1999, BEA has recognized revenue in\naccordance with GAAP and Statement of Position 97-2, as amended, (\"SOP 97-2\")\nand the adoption of SOP 97-2 will not have a material adverse impact on BEA's\nfinancial condition.\n\n 4.5 VALID ISSUANCE. The BEA Common Stock to be issued by BEA pursuant to\nthe transactions contemplated hereby will, when issued in accordance with the\nprovisions of this Agreement, be duly authorized, validly issued, fully paid and\nnonassessable.\n\n 4.6 CONSENTS AND APPROVALS OF GOVERNMENT AUTHORITIES. No consent, approval\nor authorization of, or declaration, filing or registration with, any\ngovernmental or regulatory authority is required in connection with the\nexecution, delivery and performance of this Agreement or the other documents\ncontemplated hereby by BEA or Charlotte and the consummation of the transactions\ncontemplated hereby or thereby.\n\n 4.7 CUSTOMERS. BEA does not know of any plan or intention of any of its\ncustomers and has not received any written threat or notice from any customer,\nthat it intends to terminate or cancel its relationship with BEA or to decrease\nor limit its purchase of the services or products of BEA, except for such\nterminations, cancellations, or decreases or limitations that would not,\nindividually or in the aggregate, have a material adverse effect on the\nbusiness, financial condition or results of operations of BEA.\n\n 4.8 INTELLECTUAL PROPERTY. To BEA's knowledge, after reasonable inquiry,\nand except for matters that would not have a material adverse effect on the\nbusiness, operations or\n\n -20-\n\n\n \nfinancial condition of BEA, neither BEA TUXEDO nor any Intellectual Property\nowned by BEA exclusively or jointly with others infringes or misappropriates the\nIntellectual Property of any other Person.\n\n 4.9 LITIGATION. BEA is not a party to any pending or, to BEA's knowledge\nafter reasonable inquiry, threatened action, suit, arbitration, mediation,\nproceeding or investigation, at law or in equity or otherwise in, for or by any\ncourt or other governmental body or any arbitration, mediation or similar forum\nwhich if determined adversely to BEA would have a material adverse effect on its\nbusiness, financial condition or results of operations.\n\n 4.10 REPRESENTATIONS COMPLETE. The representations and warranties of\nCharlotte and BEA contained in this Article 4 do not contain any untrue\nstatement of a material fact and do not omit to state any material fact\nnecessary to make such representations and warranties, in light of the\ncircumstances under which they were made, not misleading.\n\n ARTICLE 5\n SELLERS' COVENANTS\n\n 5.1 ACCESS TO PROPERTIES AND RECORDS. Throughout the period between the\ndate of this Agreement and the Closing Date, Seller shall give to BEA and BEA's\nauthorized representatives reasonable access, during business hours, to its\nfacilities, and shall provide BEA and its representatives with all records,\ndocuments and information reasonably required by BEA relating to Seller and\/or\nthe business of Seller. Without limiting the foregoing, BEA shall be permitted\nto interview during regular business hours such employees of Seller as BEA shall\nreasonably request of Seller, including any officers of Seller and any employees\nwith substantial responsibility for any Seller Intellectual Property material to\nthe business of Seller. BEA and BEA's authorized representatives shall not,\nwithout Seller's prior written consent contact any of Seller's customers, which\nconsent shall not be unreasonably withheld.\n\n 5.2 CONDUCT OF THE BUSINESS OF SELLER PRIOR TO CLOSING DATE. Between the\ndate of this Agreement and the Closing, and except as otherwise required by this\nAgreement:\n\n 5.2.1 The business of Seller shall be operated in the ordinary course\nconsistent with past practices and in a normal businesslike fashion (including,\nwithout limitation, its normal accounts receivable practice), and Seller shall\ntake such actions as are in its business judgment reasonably necessary to\nfacilitate a smooth transition of the control of operation of the business of\nSeller from Seller to BEA at the Closing. Seller shall use all commercially\nreasonable efforts to preserve and maintain the business of Seller and Seller's\ngoodwill, including relationships with employees, suppliers and customers. In\naddition, Seller shall maintain records and books of account for the business of\nSeller consistent with past practices and in a normal businesslike fashion, and\nshall continue to carry all of the insurance for the business of Seller\nconsistent with past practice.\n\n -21-\n\n\n \n 5.2.2 Seller shall not take (or permit to be taken) any action which\nwould cause any material change in any of the items and matters covered by the\nrepresentations and warranties set forth in Article 3, including, without\nlimitation :\n\n (a) incurring or becoming subject to, or agreeing to incur or become\nsubject to, any obligation or liability (absolute or contingent), except current\nliabilities incurred, and obligations under contracts entered into, in the\nordinary course of business consistent with past practices;\n\n (b) mortgaging, pledging or assuming any Lien, or agreeing to do so,\nin respect to any of its assets;\n\n (c) waiving or compromising any material rights or any material debt\nowed to Seller;\n\n (d) entering into any material transactions, other than in the\nordinary course of bu siness consistent with past practices;\n\n (e) increasing the rate of compensation payable or to become payable\nto any employees;\n\n (f) terminating or amending any contract to which it is a party,\nunless terminated or amended in the ordinary course of business consistent with\npast practices and not material to the business of Seller;\n\n (g) introducing any new method of accounting with respect to the\nbusiness of Seller or any of the assets or liabilities of Seller (assumed or not\nassumed) (including, without limitation, any change in depreciation or\namortization policies or rates);\n\n (h) making any capital expenditures or entering into commitments for\ncapital expenditures exceeding, in the aggregate, Fifty Thousand Dollars\n($50,000);\n\n (i) without BEA's prior consent (which consent BEA shall not\nunreasonably withhold or delay), hiring or terminating employees;\n\n (j) issuing any shares of its capital stock or other securities or\nmaking any redemption or other acquisition of any capital stock of Seller or any\ndeclaration, setting aside, or payment of any dividend or distribution of any\nkind with respect to any shares of capital stock of Seller, except pursuant to\nthe exercise of any outstanding Warrants and Options; or\n\n (k) commencing, settling or compromising any litigation, except those\nrelated to insured claims or arising in the ordinary course of business\nconsistent with past practices.\n\n 5.3 NO SOLICITATION. Seller will not (i) solicit or initiate discussions\nwith any person, other than BEA, relating to the possible acquisition of Seller\nor all or a material portion of the assets or capital stock of Seller or any\nmerger or other business combination with Seller or (ii) except to the extent\nreasonably required by fiduciary obligations under applicable law as \n\n -22-\n\n\n \nadvised in writing by independent legal counsel, participate in any negotiations\nregarding, or furnish to any other person information with respect to, any\neffort or attempt by any other person to do or to seek any such transaction.\nSeller agrees to inform BEA in reasonable detail within one business day of\ntheir receipt of any offer, proposal or inquiry relating to any such\ntransaction.\n\n 5.4 STOCKHOLDER CONSENT. Seller shall, in accordance with applicable law,\nsolicit within 10 days after the date hereof, the approval of the holders of the\nrequisite number of shares of Seller's capital stock required to approve this\nAgreement and the transactions contemplated hereby under applicable law. Without\nlimiting the generality of the preceding sentence, the board of directors of\nSeller will recommend to Seller's stockholders a vote in favor of the adoption\nof this Agreement and the Merger unless the board of directors shall determine,\nbased on the written opinion of counsel, that such recommendation will not be\nconsistent with its fiduciary duty.\n\n 5.5 SATISFACTION OF CONDITIONS Seller shall take or cause to be taken all\nactions within its power necessary to satisfy all conditions to BEA's\nobligations to close and consummate the transactions contemplated by this\nAgreement.\n\n 5.6 CONSENTS. On or prior to the Closing Date, except with regard to any\nconsents, which if not obtained by Seller would not have a material adverse\neffect on the business, operations or financial condition of Seller, Seller\nshall (a) notify all persons required to be notified pursuant to applicable law\nor any of the Permits or contracts to which Seller is a party of the\ntransactions contemplated hereunder, in the form and manner required thereunder,\nand (b) use all commercially reasonable efforts to obtain the consent of all\npersons whose consent is required pursuant to applicable law or any of the\nPermits or contracts to which Seller is a party in connection with the\nconsummation of the transactions contemplated hereby, in the form and manner\nrequired thereunder.\n\n 5.7 NOTIFICATION OF CERTAIN MATTERS. Seller and BEA shall give prompt\nnotice to the other party of the discovery of the occurrence or non-occurrence\nof any event which causes or is likely to cause any representation or warranty\nmade by Seller herein to be untrue or inaccurate or any covenant, condition or\nagreement contained herein not to be complied with or satisfied (provided,\nhowever, that if such disclosure is made and the transactions contemplated\nhereby shall be consummated, such disclosure shall be deemed to (a) amend and\nmodify the representations, warranties and covenants made by the disclosing\nparty in or pursuant to this Agreement and (b) the recipient party shall be\ndeemed to have waived all rights with respect to the breach thereof).\n\n 5.8 AFFILIATE AGREEMENTS. Schedule 5 delivered by Seller to BEA concurrent \n ----------\nwith the execution and delivery of the Agreement sets forth those persons who\nmay be deemed \"Affiliates\" of Seller within the meaning of Rule 145 promulgated\nunder the Securities Act. Seller shall provide BEA such information and\ndocuments as BEA shall reasonably request for purposes of reviewing such list.\nSeller shall use its best efforts to deliver or cause to be delivered to BEA,\nconcurrently with the execution of this Agreement (and in each case prior to the\nEffective Time) from each of the Affiliates of Seller, an executed Affiliate\nAgreement in the \n\n -23-\n\n\n \nform attached hereto as Exhibit 5.8. BEA and Charlotte shall be entitled to\n -----------\nplace appropriate legends on the certificates evidencing any BEA Common Stock to\nbe received by such Affiliates of Seller pursuant to the terms of such\nAffiliates Agreement, and to issue appropriate stop transfer instructions to the\ntransfer agent for BEA Common Stock, consistent with the terms of such\nAffiliates Agreements.\n\n 5.9 POOLING LETTERS. Seller shall use all reasonable efforts to cause to be\ndelivered to BEA a letter dated the Closing Date of PricewaterhouseCoopers\nL.L.P., Seller's independent auditors, in substantially the form of such letter\nas delivered to BEA within two business days before the date of this Agreement\nto the effect that PricewaterhouseCoopers LLP agrees with the assertion of the\nmanagement of Seller that the Merger qualifies for pooling of interest\naccounting treatment if consummated in accordance with this Agreement and in a\nform reasonably satisfactory to BEA and customary in scope and substance for\nletters delivered by independent public accountants in connection with\ntransactions of this type.\n\n ARTICLE 6\n BEA'S COVENANTS\n\n 6.1 REGISTRATION STATEMENT.\n\n 6.1.1 BEA shall use its best efforts to file or cause to be filed with\nthe Commission on or prior to thirty (30) days from the Closing Date, a\nregistration statement on Form S-3 (the \"Registration Statement\") to cover\nresales of the shares of BEA's Common Stock to be issued to the holders of\nSeller Stock pursuant hereto (the \"Registered Shares\"). BEA shall use all\nreasonable efforts to cause such Registration Statement to be declared effective\nas soon as practicable thereafter. BEA shall use all reasonable efforts to keep\nsuch Registration Statement continuously effective, supplemented and amended to\nthe extent necessary to ensure that it is available for resales of the\nRegistered Shares for a period ending one year from the Closing Date.\n\n 6.1.2 BEA will bear the costs of all Registration Expenses. For the\npurposes hereof, \"Registration Expenses\" shall mean all expenses incident to\nBEA's preparation and filing of the Registration Statement, including, without\nlimitation, all registration and filing fees, fees and expenses of compliance\nwith federal securities laws or state blue sky laws, printing expenses,\nmessenger and delivery expenses, fees and disbursements of custodians and fees\nand disbursements of counsel for BEA and all independent certified public\naccountants, and other persons retained by BEA.\n\n 6.1.3 In connection with the registration and sale of the Registered\nShares BEA will:\n\n (a) prepare and file with the SEC the Registration Statement as\nset forth above;\n\n -24-\n\n\n \n (b) provide to each holder of Seller Stock a copy of the\nRegistration Statement and related Prospectus, including each preliminary\nProspectus, and each amendment and supplement thereto and any additional copies\nas such holder may reasonably request;\n\n (c) use its best efforts to register or qualify the Registered\nShares under such other securities or blue sky laws of such jurisdictions as\neach holder of Seller Stock may reasonably request and do any and all other acts\nand things which may be reasonably necessary or advisable to enable each holder\nof Seller Stock to consummate the disposition in such jurisdictions of the\nRegistered Shares owned by such holder; provided, however, that BEA will not be\nrequired to (i) qualify generally to do business in any jurisdiction where it\nwould not otherwise be required to qualify but for this subparagraph, (ii)\nsubject itself to taxation in any such jurisdiction, or (iii) consent to general\nservice of process in any such jurisdiction;\n\n (d) upon the occurrence of any event that would cause the\nRegistration Statement (i) to contain any untrue statement of a material fact or\nomit to state a material fact required to be stated therein or necessary to make\nthe statements therein not misleading or (ii) to be not effective and useable\nfor resale of the Registered Shares during the period that such Registration\nStatement is required to be effective and useable, BEA upon knowledge of such an\nevent, shall as promptly as practicable file an amendment to the Registration\nStatement, in the case of clause (i), correcting any such misstatement or\nomission, and, in the case of either clause (i) or (ii), use its best efforts to\ncause such amendment to be declared effective and such Registration Statement to\nbecome useable as soon as practicable thereafter;\n\n (e) notwithstanding anything to the contrary in Section 6.1.3,\nBEA may prohibit offers and sales of the Registered Shares pursuant to the\nRegistration Statement at any time if (i) it is in possession of material non-\npublic information, (ii) the Board of Directors of BEA determines based on\nadvice of counsel that such prohibition is necessary in order to avoid a\nrequirement to disclose such material non-public information, (iii) the Board of\nDirectors of BEA determines in good faith that disclosure of such material non-\npublic information would not be in the best interests of BEA and its\nstockholders, and (iv) BEA imposes similar restrictions on the sale or purchase\nof any capital stock of BEA on any officer and director of BEA (the period\nduring which any such prohibition of offers and sales of Registered Shares\npursuant to the Registration Statement is in effect pursuant to this\nsubparagraph (e) is referred to herein as a \"Suspension Period\"). A Suspension\nPeriod shall commence on and include the date on which BEA provides written\nnotice to holders of Seller Stock covered by the Registration Statement that\noffers and sales of Registered Shares cannot be made thereunder in accordance\nwith this Section 6.1.3 and shall end two business days after the earlier to\noccur of (x) the date on which such material information is disclosed to the\npublic or ceases to be material or BEA is able to so comply with its disclosure\nobligations and SEC requirements, or (y) 43 days after written notice is\nprovided by BEA to the holders of Seller Stock of such Suspension Period. Each\nnotice shall state to the extent, if any, as is practicable, an estimate of the\nexpected duration of the Suspension Period;\n\n (f) each holder of Seller Stock shall furnish to BEA such\ninformation regarding the distribution of its Registered Shares as is required\nby law to be disclosed in the\n\n -25-\n\n\n \nRegistration Statement (the \"Requisite Information\") prior to effecting any sale\npursuant to such Registration Statement. Each holder of Seller Stock as to which\nany Registration Statement is being effected agrees prior to effecting any sale\nof the Registered Shares thereunder to furnish promptly to BEA all information\nrequired to be disclosed in order to make any Requisite Information previously\nfurnished to BEA by such holder of Seller Stock not materially misleading or\nnecessary to cause such Registration Statement not to omit a material fact with\nrespect to such holder of Seller Stock necessary in order to make the statements\ntherein not misleading;\n\n (g) each holder of Seller Stock agrees that, upon receipt of any\nnotice from BEA of the existence of any fact of the kind described in\nsubparagraphs 6.1.3(d) or 6.1.3(e) hereof (an \"Amendment Notice\"), such holder\nof Seller Stock will forthwith discontinue disposition of Registered Shares\npursuant to the Registration Statement until such holder's receipt of (i) copies\nof the supplemented or amended Prospectus contemplated by subparagraphs 6.1.3(b)\nand 6.1.3.(d) hereof, or until counsel for BEA shall have determined that such\ndisclosure is not required due to subsequent events, (ii) notice in writing from\nBEA that the use of the Prospectus may be resumed or (iii) copies of any\nadditional or supplemental filings with respect to the Prospectus, or until the\nexpiration of the Suspension Period. In the event BEA shall give any such\nnotice, the time period regarding the filing of the Registration Statement set\nforth in subparagraph 6.1.1 hereof shall be extended by the number of days\nduring the period from and including the date of the giving of such notice\npursuant to subparagraph 6.1.3(e) hereof to and including the date when each\nholder of Seller Stock covered by such Registration Statement shall have\nreceived the copies of the supplemented or amended Prospectus contemplated by\nthis subparagraph 6.1.3(g); and\n\n (h) BEA agrees to use its best efforts to cause the Registered\nShares covered by the Registration Statement to be registered with or approved\nby such other governmental agencies or authorities as may be necessary to enable\nthe holders of Seller Stock to consummate the disposition of such Registered\nShares, subject to the proviso contained in subparagraph 6.1.3.(c) above, and\ncause all Registered Shares to be listed on each securities exchange or national\nquotation system on which BEA's Common Stock is then listed.\n\n 6.1.4 INDEMNIFICATION.\n\n (a) BEA agrees to indemnify, to the extent permitted by law,\neach holder of Seller Stock and their underwriter, if any, their directors,\nofficers and each Person who controls such holder or such underwriter (within\nthe meaning of the Security Act) against all losses, claims, damages,\nliabilities and expenses including, without limitation, reasonable attorneys'\nfees, caused by any untrue or alleged untrue statement of material fact\ncontained in the Registration Statement, any prospectus or preliminary\nprospectus or any amendment thereof or supplement thereto or any omission or\nalleged omission of a material fact required to be stated therein or necessary\nto make the statements therein not misleading, except insofar as the same are\ncaused by or contained in any information furnished in writing to BEA by such\nholder expressly for use therein or failure to deliver a copy of the\nRegistration Statement or prospectus or any amendments or supplements thereto.\n\n -26-\n\n\n \n (b) In connection with the Registration Statement, each holder\nof Registered Shares will furnish to BEA in writing such information and\naffidavits as BEA reasonably requests for use in connection with the\nRegistration Statement or prospectus contained therein and, to the extent\npermitted by law, will indemnify BEA, its directors and officers, such holders'\nunderwriters, if any, and each person who controls BEA or such underwriter\n(within the meaning of the Securities Act) against any and all losses, claims,\ndamages, liabilities and expenses, including, without limitation, reasonable\nattorneys' fees, caused by any untrue or alleged untrue statement of material\nfact contained in the Registration Statement, any prospectus or preliminary\nprospectus or any amendment thereof or supplement thereto or any omission or\nalleged omission of a material fact required to be stated therein or necessary\nto make the statements therein not misleading, insofar as such losses, claims,\ndamages, liabilities and expenses are caused by any such untrue statement or\nomission or alleged untrue statement or omission furnished in writing to BEA for\nuse therein by such holder or such holder's failure to provide the prospective\npurchaser with a copy of the current prospectus (a \"Holder's Error\"); provided,\nhowever, that the obligation to indemnify will be several, not joint and several\namong the holders of Seller Stock, and the liability of each holder for any\nHolder's Error will be limited to the net amount received by such holder of\nSeller Stock from the sale of Registered Shares pursuant to the Registration\nStatement.\n\n 6.2 CONSENTS. On or prior to the Closing Date, Charlotte and BEA shall (a)\nnotify all persons required to be notified by Charlotte or BEA pursuant to\napplicable law of the transactions contemplated hereby, in the form and manner\nrequired thereunder, and (b) use all commercially reasonable efforts to obtain\nthe consent of all persons whose consent is required to be obtained by Charlotte\nor BEA pursuant to applicable law in connection with the consummation of the\ntransactions contemplated hereby, in the form and manner required thereunder.\n\n 6.3 ADVICE OF DEVELOPMENTS. BEA shall have continuing obligations after the\ndate of this Agreement through the Closing Date to advise Seller of any event,\nfact or circumstance which has a material adverse effect on the business,\noperations or financial condition of BEA.\n\n 6.4 POOLING LETTERS. BEA shall use all reasonable efforts to cause to be\ndelivered to BEA a letter dated the Closing Date of Ernst & Young LLP, BEA's\nindependent auditors, in substantially the form of such letter as delivered to\nBEA within two business days before the date of this Agreement regarding such\nfirm's concurrence with BEA's management's conclusions as to the appropriateness\nof pooling of interest accounting for the Merger under APB 16, if consummated in\naccordance with this Agreement. Such letter is to be in a form reasonably\nsatisfactory to Seller and customary in scope and substance for letters\ndelivered by independent public accountants in connection with transactions of\nthis type.\n\n -27-\n\n\n \n 6.5 AFFILIATE AGREEMENTS. Schedule 6.5 delivered by BEA to Seller\n ------------\nconcurrent with the execution and delivery of the Agreement sets forth those\npersons who may be deemed \"Affiliates\" of BEA within the meaning of Rule 145.\nBEA shall provide Seller such information and documents as Seller shall\nreasonably request for purposes of reviewing such list. BEA shall use its best\nefforts to deliver or cause to be delivered to Seller, concurrently with the\nexecution of this Agreement (and in each case prior to the Effective Time) from\neach of the Affiliates of BEA, an executed Affiliate Agreement in the form\nattached hereto as Exhibit 6.5.\n -----------\n\n 6.6 S-8 REGISTRATION STATEMENT. BEA agrees that within thirty (30) days\nafter the Closing Date it will cause to be filed one or more registration\nstatements on Form S-8 under the Securities Act, or amendments to its existing\nregistration statements on Form S-8 or amendments to such other registration\nstatements as may be available, in order to register the Common Stock of BEA\nissuable upon exercise of the converted Employee Options.\n\n ARTICLE 7\n CONDITIONS TO CLOSING\n\n 7.1 CONDITIONS TO BEA'S OBLIGATION TO CLOSE. BEA's obligations to\nconsummate the transactions contemplated by this Agreement shall be subject to\nthe full satisfaction of the following conditions, each of which conditions may\nbe waived in writing by BEA:\n\n 7.1.1 INSTRUMENTS. Seller and Seller's Representative (as defined in\nthe Escrow Agreement) (in the case of the Escrow Agreement) shall have executed\nand delivered to BEA the Merger Documents, the Escrow Agreement, if applicable,\nand any and all other documents reasonably required by BEA to effect the\ntransactions contemplated hereby.\n\n 7.1.2 REPRESENTATIONS AND WARRANTIES TRUE. The representations and\nwarranties of Seller contained in this Agreement shall be true in all material\nrespects at the Closing as though made at such time except for any changes in\nthe ordinary course of business.\n\n 7.1.3 PERFORMANCE OF COVENANTS. Seller shall have performed all\nobligations and complied with all covenants and conditions required by this\nAgreement to be performed or complied with by it on or prior to the Closing Date\nin all material respects.\n\n 7.1.4 CERTIFICATE. Seller shall have delivered to BEA a certificate\nexecuted by its chief executive officer certifying as to (a) Seller's\nsatisfaction of the conditions set forth in Sections 7.1.2 and 7.1.3 above and\n(b) the results of the vote by Seller's stockholders to approve the transactions\ncontemplated hereby pursuant to Section 5.4.\n\n 7.1.5 NO MATERIAL CHANGES. There shall not have been any material\nadverse change in the assets, liabilities, business, operations or financial\ncondition of Seller from the date hereof to the Closing Date, nor shall there\nexist any condition which could reasonably be expected to result in such a\nmaterial adverse change, provided, however, that any material adverse change\n -----------------\nthat results from general economic, business or industry conditions or the\n\n -28-\n\n\n \nannouncement of the transaction contemplated hereby shall be disregarded for the\npurposes of this Section 7.1.5.\n\n 7.1.6 CONSENTS. All consents or approvals required for the\nconsummation of the transactions contemplated hereby, including any required\nconsents of the parties to any contract to which Seller is a party, shall have\nbeen obtained, except any consents, which if not obtained by Seller would not\nhave a material adverse effect on the business, operations or financial\ncondition of Seller.\n\n 7.1.7 OPINION. Seller shall have delivered to BEA an opinion of its\ncounsel in form attached hereto as Exhibit 7.1.7.\n\n 7.1.8 STOCKHOLDER APPROVAL. This Agreement and the transactions\ncontemplated hereby shall have been duly approved and adopted by the requisite\nvote of the stockholders of Seller pursuant to the DGCL.\n\n 7.1.9 LETTER FROM ACCOUNTANTS. Seller shall have received a letter\nfrom PricewaterhouseCoopers L.L.P., independent auditors, in substantially the\nform previously delivered pursuant to Section 5.9\n\n 7.1.10 NON-COMPETITION AND NON-SOLICITATION AGREEMENTS. The employees\nof Seller set forth on Schedule 7.1.10 shall have entered into non-competition\n ---------------\nand non-solicitation agreements substantially in the respective forms attached\nhereto as Exhibit 7.1.10.\n -------------- \n\n 7.1.11 OFFER LETTERS. Each of the persons listed on Schedule 7.1.11\nand not less than ninety percent (90%) of the employees of Seller listed on\nAnnex B of the Seller Disclosure Schedule and who received offer letters on\nSeptember 24, 1998 shall have accepted employment with BEA in accordance with\nthe terms of such offer letters.\n\n 7.1.12 LESS THAN TEN PERCENT (10%) EXCLUDED SHARES. The aggregate\namount of cash required to be paid on account of all Excluded Shares and with\nrespect to any cash payments for fractional Seller shares of BEA in accordance\nwith this Agreement plus the value of any treasury stock of Seller, shall not\nexceed ten percent (10%) of the value (determined in accordance with APB Opinion\nNo. 16) of the Consideration.\n\n 7.1.13 CONVERSION OF PREFERRED STOCK. All holders of outstanding\nshares of Seller Preferred Stock shall have elected to convert all such shares\nheld thereby into shares of Seller Common Stock and all outstanding shares of\nSeller Preferred Stock shall have been converted into Seller Common Stock,\neffective immediately prior to the Closing in accordance with the terms of\nSeller's Certificate of Incorporation.\n\n 7.2 CONDITIONS TO SELLER'S OBLIGATIONS AT THE CLOSING. Seller's obligations\nto consummate the transactions contemplated by this Agreement shall be subject\nto the following conditions, each of which conditions may be waived in writing\nby Seller:\n\n -29-\n\n\n \n 7.2.1 INSTRUMENTS. BEA and\/or Charlotte, as applicable, shall have\nexecuted and delivered to Seller the Merger Documents, the Escrow Agreement and\nany and all other documents reasonably required by Seller to effect the\ntransactions contemplated hereby.\n\n 7.2.2 REPRESENTATIONS AND WARRANTIES TRUE. The representations and\nwarranties of Charlotte and BEA contained in this Agreement shall be true in all\nmaterial respects at the Closing as though made at such time, except for any\nchanges in the ordinary course of business.\n\n 7.2.3 PERFORMANCE OF COVENANTS. Charlotte and BEA shall have performed\nall obligations and complied with all covenants and conditions required by this\nAgreement to be performed or complied with by them at or prior to the Closing\nDate in all material respects.\n\n 7.2.4 CERTIFICATE. BEA shall have delivered to Seller a certificate\nexecuted by an officer of BEA certifying as to BEA's and Charlotte's\nsatisfaction of the conditions set forth in Sections 7.2.2 and 7.2.3.\n\n 7.2.5 OPINION. BEA shall have delivered to Seller an opinion of its\ncounsel in form attached hereto as Exhibit 7.2.5.\n\n 7.2.6 LETTER FROM ACCOUNTANTS. BEA shall have received a letter from\nErnst & Young LLP, independent auditors, in substantially the form previously\ndelivered pursuant to Section 6.4.\n\n ARTICLE 8\n SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION\n\n 8.1 SURVIVAL. The representations and warranties of Seller contained in\nthis Agreement or in any document, certificate or schedule or instrument\ncontemplated hereby or delivered pursuant hereto, shall survive the Closing Date\nuntil the date (the \"Expiration Date\") that is the earlier of (i) one (1) year\nfrom the Effective Time or (ii) the date upon which the financial statements for\nBEA's fiscal year ended January 31, 1999 are publicly issued by BEA. The\nrepresentations and warranties of Charlotte and BEA contained in this Agreement\nor in any document, certificate or instrument contemplated hereby or delivered\npursuant hereto, shall survive the Closing Date until the Expiration Date.\n\n 8.2 SELLER'S INDEMNITY. Seller shall indemnify, defend, protect and hold\nharmless BEA (and BEA's Subsidiaries and Affiliates and their respective\nofficers, directors, stockholders, employees and agents) from and against any\nand all losses, costs, expenses, liabilities, obligations, claims, demands,\ncauses of action, suits, settlements and judgments of every nature, including\nthe costs and expenses associated therewith and reasonable attorneys',\nconsultants' and witness fees incurred in connection therewith (\"BEA's\nDamages\"), which arise out of: (i) the breach by Seller prior to the Closing\nDate of any representation or warranty made by Seller under this Agreement or\nany schedule, exhibit or certificate delivered by Seller pursuant to this\nAgreement; (ii) the non-performance by Seller, partial or total, prior to the\nClosing Date of any \n\n -30-\n\n\n \ncovenant made by Seller pursuant to this Agreement or schedule, exhibit or\ncertificate delivered by Seller pursuant to this Agreement; or (iii) [the\nconduct of the business of Seller prior to the Closing Date in breach of any\ncovenant set forth in Article 5 hereof].\n\n 8.3 BEA'S INDEMNITY. Charlotte and BEA shall, jointly and severally,\nindemnify, defend, protect and hold harmless Seller (and Seller's Affiliates and\ntheir respective officers, directors, stockholders, employees and agents) from\nand against any and all losses, costs, expenses, liabilities, obligations,\nclaims, demands, causes of action, suits, settlements and judgments of every\nnature, including the costs and expenses associated therewith and reasonable\nattorneys', consultants' and witness fees incurred in connection therewith\n(\"Seller's Damages\"; and when used together with or in the alternative to BEA's\nDamages, \"Damages\"), which arise out of: (i) the breach by Charlotte or BEA of\nany certification, representation or warranty made by Charlotte or BEA pursuant\nto this Agreement or any schedule, exhibit or certificate delivered by Charlotte\nor BEA pursuant to this Agreement or (ii) the non-performance, partial or total,\nof any covenant made by Charlotte or BEA pursuant to this Agreement required to\nbe performed prior to the Closing or any document or certificate delivered by\nCharlotte or BEA pursuant to this Agreement.\n\n 8.4 OTHER REMEDIES. The rights of indemnification of an Indemnitee shall be\nlimited to the provisions of this Article, and the provisions of this Article\nshall be exclusive of any other indemnification provided for under this\nAgreement and any other rights or remedies at law or in equity which may accrue\nto an Indemnitee.\n\n 8.5 LIMITATIONS ON INDEMNIFICATION. Notwithstanding the foregoing, the\nright to indemnification under this Section 8 shall be subject to the following\nterms:\n (a) Subject to Section 10.5, no indemnification shall be payable\npursuant to Section 8.2 or Section 8.3 unless and until the amount of all claims\nfor indemnification pursuant to the applicable Section exceeds $200,000 in the\naggregate and such indemnification shall be payable only to the extent such\nclaims exceed such amount as determined in the Escrow Agreement.\n\n (b) No indemnification shall be payable pursuant to Section 8.2 or\nSection 8.3 after the Expiration Date, except with respect to claims made prior\nto the Expiration Date, but not resolved by the Expiration Date. Subject to the\nforegoing, the representations and warranties contained herein or in any\ncertificate delivered pursuant hereto shall expire at the close of business on\nthe Expiration Date.\n\n (c) All indemnification claims under Section 8.2 shall be satisfied in\nfull from the shares or cash held pursuant to the Escrow Agreement and no person\nshall have any right to recovery from any person who was a holder of Seller\nStock immediately prior to the Effective Time. Without limitation of the\nforegoing, the maximum liability of any former holder of Seller Stock for any\nbreach of a representation, warranty or covenant of Seller shall be limited to\nthose shares in which such holder has an interest that are held pursuant to the\nEscrow Agreement.\n\n -31-\n\n\n \n (d) The limitations of Section 8.5(a), (b) and (c) shall not apply in\nthe case of a fraudulent or intentional misrepresentation or breach by any\nparty, but no person shall be liable for any such misrepresentation or breach by\nany other person (except to the extent of its share of the shares held under the\nEscrow Agreement if such misrepresentation or breach is by Seller).\n\n (e) In determining the amount of any indemnity, there shall be taken\ninto account any tax benefit, insurance proceeds or other similar recovery or\noffset realized, directly or indirectly, by the party to be indemnified.\n\n ARTICLE 9\n TERMINATION\n\n 9.1 GROUNDS FOR TERMINATION. This Agreement may be terminated at any time\nprior to the Closing:\n\n 9.1.1 by mutual written agreement of Seller and BEA; or\n\n 9.1.2 by either Seller or BEA if the Merger shall not have been\nconsummated on or before September 30, 1998 (other than as a result of a failure\nby such party to comply with its obligations under this Agreement); or\n\n 9.1.3 by BEA in the event of the Seller's material breach of any of\nits covenants, representations or warranties under this Agreement; or \n\n 9.1.4 by Seller in the event of BEA's or Charlotte's material breach\nof any of their respective covenants, representations or warranties under this\nAgreement.\n\n 9.2 EFFECT OF TERMINATION. If this Agreement is terminated as permitted by\nSection 9.1, except as set forth in the next sentence, the parties hereto shall\nhave no further obligations to each other, provided that no such termination\nshall impair, limit or affect, in any manner, any liability of any party hereto\nfor any breach of any covenant, representation or warranty set forth in this\nAgreement, accrued as of the date of such termination. The provisions of\nSections 8, 10.1, 10.2, 10.5, 10.7, 10.8, 10.11, 10.12 and 10.18 shall survive\nany termination hereof pursuant to Section 9.1.\n\n ARTICLE 10\n MISCELLANEOUS\n\n 10.1 ANNOUNCEMENTS. Each of Seller, BEA and Charlotte agree not to make any\npress release or other public announcements regarding this Agreement without the\nother party's prior consent, unless reasonably required by applicable law, in\nwhich case prompt notice of such announcement shall be given to the other party.\n\n 10.2 FINDERS AND BROKERS. Each party hereby represents and warrants to the\nothers that neither it nor its representatives have taken, nor will they take,\nany action that would cause \n\n -32-\n\n\n \nthe other parties hereto to have any obligation or liability to any person for\nor made any arrangements for the payment of any finders' fees, brokerage fees,\nagents' commissions, or like payments in connection with the transactions\ncontemplated hereby. Each party shall indemnify and hold harmless the others\nfrom any claim that is asserted by any person for a finder's fee or like payment\nwith respect to this Agreement arising from any act, representation or promise\nof the indemnifying party or its representative.\n\n 10.3 AMENDMENT. Subject to applicable law, this Agreement may only be\namended or supplemented by written agreement of Seller, Charlotte and BEA.\n\n 10.4 WAIVER OF COMPLIANCE. Except as set forth in Section 5.7, any failure\nof Seller, on the one hand, or BEA, on the other, to comply with any provision\nof this Agreement may be expressly waived in writing by BEA or Seller,\nrespectively, but such waiver or failure to insist upon strict compliance with\nsuch provision shall not operate as a waiver of, or estoppel with respect to,\nany subsequent or other failure. No failure to exercise and no delay in\nexercising any right, remedy, or power hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise of any right, remedy, or power\nhereunder preclude any other or further exercise thereof or the exercise of any\nother right, remedy, or power provided herein or by law or in equity. The waiver\nby any party of the time for performance of any act or condition hereunder does\nnot constitute a waiver of the act or condition itself.\n\n 10.5 EXPENSES. At Closing, each of the parties hereto shall pay its own\nfees and expenses (including the fees of any attorneys, accountants, appraisers\nor others engaged by such party) in connection with this Agreement and the\ntransactions contemplated hereby whether or not the transactions contemplated\nhereby are consummated; provided, however, that if the Merger is consummated\nsuch fees and expenses billed to or incurred by Seller in connection with this\nAgreement and the transactions contemplated hereby shall be borne by BEA\nprovided however, that to the extent that such fees and expenses of Seller\nexceed $100,000, BEA shall be entitled to deduct the full amount of such excess\nfrom the Escrowed Shares that number of shares with a value equal to such amount\nas calculated pursuant to the terms of the Escrow Agreement, notwithstanding any\nother provision therein and herein, including Section 8.5 hereof.\n\n 10.6 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The respective\nrepresentations and warranties of each party contained herein shall not be\ndeemed waived or otherwise affected by any investigation made by or on behalf of\nthe other party and such representations and warranties shall survive the\nClosing and the consummation of the Merger contemplated hereby as provided in\nArticle 8. All statements contained in this Agreement or in any schedule,\nexhibit, certificate, list, or other document delivered pursuant hereto shall be\ndeemed representations or warranties, as the case may be (as such terms are used\nin this Agreement), of the party making such statements.\n\n 10.7 NOTICES. All notices, demands, and other communications required or\npermitted hereunder shall be made in writing and shall be deemed to have been\nduly given if delivered by hand, against receipt, or mailed, postage prepaid,\ncertified or registered mail, return receipt requested, and addressed as\nfollows:\n\n -33-\n\n\n \n To Seller at:\n\n WebLogic, Inc.\n 550 California Street\n Suite 900\n San Francisco, CA 94104\n Attn: Ali R. Kutay\n\n With a copy to:\n\n Cooley Godward LLP\n One Maritime Plaza\n 20th Floor\n San Francisco, CA 94111\n Attn: Jeffrey S. Zimman\n\n To BEA at:\n\n BEA Systems, Inc.\n 2315 North First Street\n San Jose, CA 95131\n Attn: Steve L. Brown\n\n\n With a copy to:\n\n Morrison & Foerster LLP\n 755 Page Mill Road\n Palo Alto, California 94304-1018\n Attn.: Michael C. Phillips\n\n Notice of change of address shall be effective only when done in accordance\nwith this Section. All notices complying with this Section shall be deemed to\nhave been received on the date of delivery or on the third business day after\nmailing.\n\n 10.8 ASSIGNMENT; SUCCESSORS AND ASSIGNS. Except as otherwise provided\nherein, each party agrees that it will not assign, sell, transfer, delegate, or\notherwise dispose of, whether voluntarily or involuntarily, or by operation of\nlaw, any right or obligation under this Agreement. Any purported assignment,\ntransfer, or delegation in violation of this Section shall be null and void.\nSubject to the foregoing limits on assignment and delegation, this Agreement\nshall be binding upon and shall inure to the benefit of the parties and their\nrespective successors and assigns. Except for those enumerated above, this\nAgreement does not create, and shall not be \n\n -34-\n\n\n \nconstrued as creating, any rights or claims enforceable by any person or entity\nnot a party to this Agreement.\n\n 10.9 GOVERNING LAW. The validity, interpretation, enforceability, and\nperformance of this Agreement shall be governed by and construed in accordance\nwith the law of the State of Delaware.\n\n 10.10 COUNTERPARTS. This Agreement may be executed in counterparts, each of\nwhich shall be deemed an original, but all of which together shall constitute\none and the same instrument.\n\n 10.11 HEADINGS. The headings of the Sections and Articles of this Agreement\nand Table of Contents are for reference purposes only and shall not constitute a\npart hereof or affect the meaning or interpretation of this Agreement.\n\n 10.12 ENTIRE AGREEMENT. The parties intend that the terms of this\nAgreement, including the Seller Disclosure Schedule and other documents referred\nto herein, shall be the final expression of their agreement with respect to the\nsubject matter hereof and may not be contradicted by evidence of any prior or\ncontemporaneous agreement. The parties further intend that this Agreement shall\nconstitute the complete and exclusive statement of its terms and that no\nextrinsic evidence whatsoever may be introduced in any judicial, administrative,\nor other legal proceeding involving this Agreement.\n\n 10.13 SELLER DISCLOSURE SCHEDULE. The Seller Disclosure Schedule shall be\ndivided into sections corresponding to the sections of this Agreement.\nDisclosure in any section of the Seller Disclosure Schedule shall constitute\ndisclosure for purposes of all sections of the Agreement.\n\n 10.14 PERFORMANCE BY BEA. BEA shall cause Charlotte to perform all of its\ncovenants and obligations hereunder.\n\n 10.15 SEVERABILITY. If any provision of this Agreement, or the application\nthereof to any Person, place, or circumstance, shall be held by a court of\ncompetent jurisdiction to be invalid, unenforceable, or void, the remainder of\nthis Agreement and such provisions as applied to other Persons, places, and\ncircumstances shall remain in full force and effect.\n\n 10.16 RULES OF CONSTRUCTION. The parties acknowledge that each party has\nread and negotiated the language used in this Agreement. The parties agree that,\nbecause all parties participated in negotiating and drafting this Agreement, no\nrule of construction shall apply to this Agreement which construes ambiguous\nlanguage in favor of or against any party by reason of that party's role in\ndrafting this Agreement.\n\n10.17 ADDITIONAL DOCUMENTS. Each of the parties agree, without further\nconsideration, to execute and deliver such other documents and take such further\naction as may be reasonably required to effectuate the provisions of this\nAgreement.\n\n -35-\n\n\n \n 10.18 ATTORNEY'S FEES. If any action or proceeding relating to this\nAgreement or the enforcement of any provision of this Agreement is brought\nagainst any party hereto, the prevailing party shall be entitled to recover\nreasonable attorney's fees, costs and disbursements (in addition to any other\nrelief to which the prevailing party may be entitled).\n\n 10.19 EXHIBITS. All Exhibits attached hereto shall be deemed to be a part\nof this Agreement and are fully incorporated in this Agreement by this\nreference. \n\n10.20 CERTAIN DEFINITIONS. \n\n \"Affiliate\" or \"Associate\" shall have the meaning assigned thereto in Rule\n --------- --------- \n405, as presently promulgated under the Securities Act of 1933, as amended.\n\n \"Intellectual Property\" shall mean any trademark, copyright, service mark,\n --------------------- \ntrade name, patent, maskworks, inventions, trade secrets, know-how, processes,\nmanufacturing or marketing procedures, net lists, documentation, schematics,\ntechnology, algorithms, computer software programs or applications (in both\nsource code and object code form), and tangible and intangible proprietary\ninformation or material (including any registrations or applications for\nregistration of any of the foregoing).\n\n \"Person\" shall include any individual, partnership, joint venture,\n ------ \ncorporation, trust, unincorporated organization, any other entity and any\ngovernment or any department or agency thereof, whether acting in an individual,\nfiduciary, or other capacity.\n\n \"Year 2000 Compliant\" means that the software containing or calling on a\n ------------------- \ncalendar function (including, without limitation, any function indexed to the\nCPU clock and any function providing specific dates or days, or calculating\nspans of dates or days), records, stores, processes provides, and, where\nappropriate, inserts true and accurate dates and calculations for dates and\nspans including January 1, 2000 (provided that any date data supplied by the\nuser or by another system is in the proper format).\n\n -36-\n\n\n \n IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement\nand Plan of Reorganization as of the date first written above.\n\nWEBLOGIC, INC. CHARLOTTE ACQUISITION CORP.\n\n\n\nBy ___________________________ By ___________________________\n \nTitle ________________________ Title ________________________\n\n\n\nBEA SYSTEMS, INC.\n\n\nBy ___________________________\n\nTitle ________________________\n\n\n \n The schedules and exhibits to the Agreement listed below have been omitted\nfrom this Exhibit 2.1. The Registrant agrees to furnish supplementally a copy\nof any omitted schedule or exhibit to the Securities and Exchange Commission\nupon request.\n\n LIST OF SCHEDULES AND EXHIBITS\n\n\n\n<\/pre>\n
\n\n SCHEDULE NAME
\n ——– —-<\/p>\n
\n 1.4 List of Officers of Surviving Corporation
\n 2.2.1 Allocation of Shares to Holders of Seller Stock
\n 3 Seller Disclosure Schedule
\n 5 List of Seller Affiliates
\n 6.5 List of BEA Affiliates
\n 7.1.10 List of Seller Employees to Enter Into Non-Competition
\n Agreements
\n 7.1.11 Offer Letter Designees<\/p>\n EXHIBIT NAME
\n ——- —-
\n 2.2.4 Form of Escrow Agreement
\n 5.8 Form of Seller Affiliates Agreement
\n 6.5 Form of BEA Affiliates Agreement
\n 7.1.7 Form of Opinion–Counsel for Seller
\n 7.1.10 Form of Non-Competition Agreement
\n 7.2.5 Form of Opinion–Counsel for BEA<\/p>\n
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