November 14, 2007 8:03 AM PST

BEA set to file belated financials

BEA Systems plans to file its delinquent quarterly and annual reports with the Securities and Exchange Commission on Thursday.

That move, announced Wednesday, will not only reduce the risk of a Nasdaq delisting but also give the middleware maker greater leverage against any future threats of a proxy fight from its largest shareholder, Carl Icahn.

BEA plans to file its delayed quarterly reports for the fiscal quarters that ended on July 31 and October 31 of 2006, as well as on April 30 and July 31 of this year. The middleware maker will also file the report for its fiscal year that ended January 31, 2007.

Nasdaq had threatened to delist the company unless it brought its financials up to date. BEA, like a number of tech companies, had to restate earnings because of accounting problems related to the backdating of stock options to its executives.

BEA received another extension on Friday, under which the Nasdaq board gave the company until January 9 of next year to make its financials current. Although it has nearly another two months to submit the paperwork, BEA is moving forward with its filings.

Four days before receiving the Nasdaq extension, BEA announced an agreement with Icahn that gives him access to its nonpublic financial documents.

BEA made the gesture in an effort to show Icahn that its value is higher than the unsolicited $17 a share buyout offer from Oracle that BEA rejected. Icahn, who rapidly increased his stake in BEA over the summer and the fall to nearly 14 percent, had called on the company to sell itself or possibly face a proxy fight in which he would try to unseat some of the board members.

Without its annual report filed with the SEC, the company would have been at a disadvantage if Icahn had launched a proxy fight. BEA would not have been allowed to solicit proxies without providing investors with a current annual report.

Even before BEA's expected filing with the SEC, though, the threat of an Icahn proxy fight had decreased, following the agreement with BEA to share its nonpublic financial documents.

Icahn, who filed a lawsuit in Delaware in late October, had asked the court to force BEA to hold a shareholders meeting by the end of November. But since filing his lawsuit, Icahn has not asked the court to fast-track the case. He has also been relatively quiet, not issuing any new statements regarding the sale of the company.

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BEA Systems Inc., financials, shareholder, fight, middleware

 

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