As filed with the Securities and Exchange Commission on March 28, 2001 Registration No. 333- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 BE INCORPORATED (Exact name of registrant as specified in its charter) Delaware 94-3123667 (State of Incorporation) (I.R.S. Employer Identification No. 800 El Camino Real Suite 400 Menlo Park, CA 94025 (650) 462-4100 (Address of principal executive offices) 1999 Equity Incentive Plan (Full title of the plan) Jean-Louis F. Gassee President, Chief Executive Officer Be Incorporated 800 El Camino Real Suite 400 Menlo Park, CA 94025 (650) 462-4100 (Name, address, including zip code, and telephone number, including area code, of agent for service) Copies to: Vincent P. Pangrazio, Esq. Frank F. Rahmani, Esq. COOLEY GODWARD LLP 3000 El Camino Real Palo Alto, CA 94306-2155 (650) 843-5000 CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------------------------ Proposed Maximum Proposed Maximum Title of Securities Offering Aggregate Amount of to be Registered Amount to be Registered Price per Share (1) Offering Price (1) Registration Fee - ------------------------------------------------------------------------------------------------------------------------------ 2,108,580 shares $1.50 $3,162,870 $790.72 Stock Options and Common Stock (par value $.001) - ------------------------------------------------------------------------------------------------------------------------------- <FN> - ---------------- (1) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h). The price per share and aggregate offering price are based upon the average of the high and low prices of Registrant's Common Stock on March 23, 2001 as reported on the Nasdaq National Market. </FN> INCORPORATION BY REFERENCE OF CONTENTS OF REGISTRATION STATEMENT ON FORM S-8 NO. 333-85411 The contents of Registration Statement on Form S-8 No. 333-85411 filed with the Securities and Exchange Commission on August 17, 1999 are incorporated by reference herein. EXHIBITS Exhibit Number - ------ 3.1* Amended and Restated Certificate of Incorporation of the Registrant 3.2* Bylaws of the Registrant 4.1* Form of Common Stock Certificate 5.1 Opinion of Cooley Godward LLP 23.1 Consent of PricewaterhouseCoopers LLP, independent auditors 23.2 Consent of Cooley Godward (contained in Exhibit 5.1 to this Registration Statement) 24.1 Power of Attorney (contained on the signature page) 99.1* 1999 Equity Incentive Plan * Incorporated by reference from the Registrant's Registration Statement on Form S-1, as amended (File No. 333-77855), filed with the Securities and Exchange Commission. SIGNATURES ---------- Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Menlo Park, State of California, on March 28, 2001. Be Incorporated By:/s/ JEAN-LOUIS F. GASSEE Jean-Louis F. Gassee President, Chief Executive Officer and Director POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Jean-Louis F. Gassee and P.C. Berndt, and each or any one of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. Signature Title Date /s/ JEAN-LOUIS F. GASSEE President, Chief Executive Officer and March 28, 2001 Jean-Louis F. Gassee Director (Principal Executive Officer) /s/ P.C. BERNDT Vice President and Chief Financial March 28, 2001 P.C. Berndt Officer (Principal Financial Officer) /s/ STEVE SAKOMAN Director and Chief Operating Officer March 28, 2001 Steve Sakoman /s/ BARRY M. WEINMAN Director March 28, 2001 Barry M. Weinman /s/ GARRETT P. GRUENER Director March 28, 2001 Garrett P. Gruener /s/ STEWART ALSOP Director March 28, 2001 Stewart Alsop /s/ WILLIAM F. ZUENDT Director March 28, 2001 William F. Zuendt /s/ ANDREI MANOLIU Director March 28, 2001 Andrei Manoliu EXHIBIT INDEX ------------- Exhibit Number Description - ------ ----------- 3.1* Amended and Restated Certificate of Incorporation of the Registrant 3.2* Bylaws of the Registrant 4.1* Form of Common Stock Certificate 5.1 Opinion of Cooley Godward LLP 23.1 Consent of PricewaterhouseCoopers LLP, independent auditors 23.2 Consent of Cooley Godward (contained in Exhibit 5.1 to this Registration Statement) 24.1 Power of Attorney (contained on the signature page) 99.1* 1999 Equity Incentive Plan