<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 13, 1995
REGISTRATION NO. 33-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------------
BMC SOFTWARE, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 74-21226120
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
</TABLE>
2101 CITY WEST BOULEVARD
HOUSTON, TEXAS 77042-2827
(713) 918-8800
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
M. BRINKLEY MORSE
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
2101 CITY WEST BOULEVARD
HOUSTON, TEXAS 77042-2827
(713) 918-8800
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPIES OF ALL COMMUNICATIONS, INCLUDING ALL COMMUNICATIONS SENT
TO THE AGENT FOR SERVICE, SHOULD BE SENT TO:
JOHN S. WATSON
VINSON & ELKINS L.L.P.
2300 FIRST CITY TOWER
1001 FANNIN
HOUSTON, TEXAS 77002-6760
(713) 758-2222
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
--------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF PROPOSED MAXIMUM AGGREGATE
SECURITIES TO BE AMOUNT TO OFFERING PRICE OFFERING AMOUNT OF
REGISTERED BE REGISTERED PER SHARE (1) PRICE (1) REGISTRATION FEE
<S> <C> <C> <C> <C>
Common Stock, par value $.01 (2).. 22,306 $34.25 $763,981 $265
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457.
(2) Each share of Common Stock includes Rights under the Company's Rights
Agreement, which Rights are attached to and trade with the Common Stock of
the Company.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
BMC SOFTWARE, INC.
CROSS REFERENCE SHEET
<TABLE>
<CAPTION>
ITEM OF FORM S-3 LOCATION IN PROSPECTUS
- ------------------------------------------------------------- --------------------------------------------------------
<C> <S> <C>
1. Forepart of the Registration Statement and Outside
Front Cover Page of Prospectus................... Cover Page
2. Inside Front and Outside Back Cover Pages of
Prospectus....................................... Inside Front and Outside Back Cover Pages; Available
Information; Incorporation of Certain Information by
Reference
3. Summary Information, Risk Factors and Ratio of
Earnings to Fixed Charges and Other
Information...................................... Cover Page; The Company; Incorporation of Certain
Information by Reference*
4. Use of Proceeds................................... Use of Proceeds
5. Determination of Offering Price................... *
6. Dilution.......................................... *
7. Selling Security Holders.......................... Selling Stockholders
8. Plan of Distribution.............................. Outside Front Cover of Prospectus
9. Description of Securities to be Registered........ *
10. Interests of Named Experts and Counsel............ Legal Matters; Experts
11. Material Changes.................................. *
12. Incorporation of Certain Information by
Reference........................................ Incorporation of Certain Information by Reference
13. Disclosure of Commission Position on
Indemnification for Securities Act Liabilities... *
</TABLE>
<TABLE>
<S> <C>
<FN>
- ------------------------
* Not applicable or answer is negative.
</TABLE>
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION, DATED OCTOBER 13, 1995
PROSPECTUS
22,306 SHARES
[LOGO]
BMC SOFTWARE, INC.
22,306 SHARES OF COMMON STOCK, $.01 PAR VALUE
---------------------
All of the shares of Common Stock offered hereby are being sold by certain
stockholders (the "Selling Stockholders") of the Company. See "Selling
Stockholders." The Company will not receive any proceeds from the sale of shares
of Common Stock by the Selling Stockholders.
The Common Stock is quoted on the NASDAQ National Market under the Symbol
"BMCS." On October , 1995, the last reported sales price for the Common Stock
on the NASDAQ National Market was $ per share. The shares of Common Stock
offered hereby may be sold from time to time in ordinary brokerage transactions
on the NASDAQ National Market, in the over-the-counter market or in privately
negotiated transactions, through agents or directly to one or more purchasers,
at the prevailing market price, at prices related to such prevailing market
prices, at fixed prices which may be changed or at negotiated prices. The
Selling Stockholders may effect such transactions by selling the shares of
Common Stock offered hereby to or through agents, underwriters or registered
broker-dealers, and such persons may require compensation in the form of
discounts, concessions or commissions from the Selling Stockholders and/or the
purchaser of such shares of Common Stock.
All expenses of registration incurred in connection with the shares of
Common Stock offered hereby will be paid by the Company. All selling and other
expenses incurred by the Selling Stockholders will be paid by the Selling
Stockholders. The Company has agreed to indemnify the Selling Stockholders
against certain liabilities under the Securities Act of 1933, as amended.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
The date of this Prospectus is , 1995
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith, files reports and other information with the Securities and Exchange
Commission (the "Commission"). Reports, proxy statements and other information
filed by the Company can be inspected and copied at the public reference
facilities maintained by the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the Commission's Regional Offices at Seven World Trade
Center, 13th Floor, New York, New York 10048 and CitiCorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of such
material can be obtained by mail from the Public Reference Section of the
Commission at 450 West Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates.
The Company has filed with the Commission a Registration Statement on Form
S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"). This Prospectus does not contain all of the information set
forth in the Registration Statement, certain parts of which were omitted in
accordance with the rules and regulations of the Commission. For further
information, reference is hereby made to the Registration Statement. Any
statements contained herein concerning the provisions of any document filed as
an exhibit to the Registration Statement or otherwise filed with the Commission
are not necessarily complete, and in each instance reference is made to the copy
of such document so filed. Each such statement is qualified in its entirety by
such reference.
The Common Stock is traded on the NASDAQ National Market and such reports,
proxy and information statements and other information concerning the Company
are available at the offices of the NASDAQ located at 1735 K Street, N.W.,
Washington, D.C. 20006.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents previously filed by the Company with the Commission
are incorporated herein by reference: (i) the Company's Annual Report on Form
10-K for the year ended March 31, 1995; (ii) the Company's Quarterly Report on
Form 10-Q for the quarter ended June 30, 1995; (iii) the Company's Current
Report on Form 8-K dated October 6, 1995; and (iv) the description of the
Company's Common Stock contained in the Registration Statement on Form 8-A filed
with the Commission on August 25, 1988.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the securities offered hereby shall be deemed
to be incorporated by reference into this Prospectus and to be a part hereof
from the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of the Registration Statement and this
Prospectus to the extent that a statement contained herein or in any
subsequently filed document that also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of the Registration Statement or this Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon the written or oral request of such person, a
copy of any or all of the documents which are incorporated by reference herein,
other than exhibits to such documents (unless such exhibits are specifically
incorporated by reference into such documents). Requests should be directed to
the Office of the Corporate Secretary, BMC Software, Inc., 2101 City West
Boulevard, Houston, Texas 77042-2827 (Telephone number (713) 918-8800).
1
<PAGE>
THE COMPANY
BMC's principal executive offices are located at 2101 City West Boulevard,
Houston, Texas 77042-2827, and its telephone number at such address is (713)
918-8800.
USE OF PROCEEDS
All proceeds from the sale of shares of Common Stock offered hereby will go
to the Selling Stockholders. The Company will not receive any consideration for
the shares of the Common Stock registered hereunder.
SELLING STOCKHOLDERS
The following table sets forth the names of and number of shares of Common
Stock held as of the date of this Prospectus that are registered hereunder:
<TABLE>
<CAPTION>
NAME NUMBER OF SHARES
- ------------------------------------------------------- -----------------
<S> <C>
Scott Martin 22,306
</TABLE>
LEGAL MATTERS
The validity of the Common Stock offered hereby has been passed upon for the
Company by Vinson & Elkins L.L.P.
EXPERTS
The audited consolidated financial statements and schedules of the Company
incorporated by reference in this Prospectus and elsewhere in the Registration
Statement, to the extent and for the periods indicated in their reports, have
been audited by Arthur Andersen LLP, independent public accountants, and are
included herein in reliance upon the authority of said firm as experts in giving
said reports.
2
<PAGE>
- -------------------------------------------
- -------------------------------------------
- -------------------------------------------
- -------------------------------------------
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY, BY ANY SELLING STOCKHOLDER OR UNDERWRITER. NEITHER
THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS
OF THE COMPANY SINCE THE DATE HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN
OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES COVERED
HEREBY IN ANY JURISDICTION OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH
OFFER OR SOLICITATION IN SUCH JURISDICTION.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
Available Information.......................... 1
Incorporation of Certain Information by
Reference..................................... 1
The Company.................................... 2
Use of Proceeds................................ 2
Selling Stockholders........................... 2
Legal Matters.................................. 2
Experts........................................ 2
</TABLE>
[LOGO]
BMC SOFTWARE, INC.
22,306 SHARES
COMMON STOCK
($.01 PAR VALUE)
---------------------
PROSPECTUS
---------------------
OCTOBER , 1995
- -------------------------------------------
- -------------------------------------------
- -------------------------------------------
- -------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated fees and expenses payable by the Registrant in connection with
the offering of the shares of Common Stock registered hereunder are as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee............... $ 265
Printing fees and expenses........................................ 5,000
Legal fees and expenses........................................... 5,000
Accounting fees and expenses...................................... 3,000
Blue Sky fees and expenses........................................ 5,000
Miscellaneous..................................................... 2,000
---------
Total........................................................... $ 20,265
---------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law, Article SEVENTH of the
Company's Restated Certificate of Incorporation, Sections 1 and 2 of Article VI
of the Company's bylaws, as amended, and indemnification agreements entered into
by the Company with its directors provide for the indemnification of officers,
directors, employees and agents under certain circumstances.
Set forth below is Article SEVENTH of the Company's Restated Certificate of
Incorporation pertaining to indemnification of officers, directors, employees
and agents and insurance:
SEVENTH: A director of the Corporation shall not be personally
liable to the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, except for such liability as is
expressly not subject to limitation under the General Corporation Law of
the State of Delaware, as the same exists or may hereafter be amended to
further limit or eliminate such liability. Moreover, the Corporation
shall, to the fullest extent permitted by law, indemnify any and all
officers and directors of the Corporation, and may, to the fullest
extent permitted by law or to such lesser extent as is determined in the
discretion of the Board of Directors, indemnify any and all other
persons whom it shall have power to indemnify, from and against all
expenses, liabilities or other matters arising out of their status as
such or their acts, omissions or services rendered in such capacities.
The Corporation shall have the power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
Corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such
liability.
Set forth below are Sections 1 and 2 of Article VI of the Company's
bylaws, as amended:
SECTION 1. RIGHT TO INDEMNIFICATION. Each person who was or is
made a party or is threatened to be made a party to or is involved in
any action, suit or proceeding, whether civil, criminal, administrative
or investigative (hereinafter a "proceeding"), by reason of the fact
that he or she or a person of whom he or she is the legal
representative, is or was or has agreed to become a director or officer
of the Corporation or is or was serving or has agreed to serve at the
request of the Corporation as a director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans,
whether the basis of such proceeding is alleged action in an official
capacity as a director or officer or in any other capacity while serving
or having agreed to serve as a director or officer, shall be indemnified
and held harmless by the Corporation to the fullest extent authorized by
the Delaware General Corporation Law, as
II-1
<PAGE>
the same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said law
permitted the corporation to provide prior to such amendment), against
all expense, liability and loss (including, without limitation,
attorneys fees, judgements, fines, ERISA excise taxes or penalties and
amounts paid or to be paid in settlement) reasonably incurred or
suffered by such person in connection therewith and such indemnification
shall continue as to a person who has ceased to serve in the capacity
which initially entitled such person to indemnify hereunder and shall
inure to the benefit of his or her heirs, executors, and administrators;
provided, however, that the Corporation shall indemnify any such person
seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person if such proceeding (or part thereof)
was authorized by the board of directors of the Corporation. The right
to indemnification conferred in this Article VI shall be a contract
right and shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of its
final disposition; provided, however, that if the Delaware General
Corporation Law requires, the payment of such expenses incurred by a
current, former or proposed director or officer in his or her capacity
as a director or officer or proposed director or officer (and not in any
other capacity in which service was or is or has been agreed to be
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the
Corporation of an undertaking, by or on behalf of such indemnified
person, to repay all amounts so advanced if it shall ultimately be
determined that such indemnified person is not entitled to be
indemnified under this Section or otherwise.
SECTION 2. INDEMNIFICATION OF EMPLOYEES AND AGENTS. The
Corporation may, by action of its Board of Directors, provide
indemnification to employees and agents of the Corporation, individually
or as a group, with the same scope and effect as the indemnification of
directors and officers provided for in this Article.
In addition, the Company has entered into indemnification agreements with
its directors, pursuant to which the Company has agreed to indemnify such
directors in accordance with, and to the fullest extent permitted by, the
Delaware General Corporation Law, against any and all expenses, judgments, fines
and amounts paid in settlement actually and reasonably incurred by the
indemnitee in connection with any proceeding in which the indemnitee was or is
made a party or was or is involved by reason of the fact that the indemnitee is
or was a director.
The Company has also purchased liability insurance policies covering
directors and officers of the Company.
II-2
<PAGE>
ITEM 16. EXHIBITS.
Unless otherwise indicated below as being incorporated by reference to
another filing of the Company with the Commission, each of the following
exhibits is filed herewith.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ---------- ---------------------------------------------------------------------------------------------------
<C> <C> <S>
4.1 -- Certificate of Incorporation of the Company (filed with the Commission as Exhibit 3.1 to the
Company's Registration Statement on Form S-1 (registration No. 33-22892) and incorporated herein by
reference).
4.2 -- Bylaws of the Company (filed with the Commission as Exhibit 3.2 to the Company's Registration
Statement on Form S-1 (registration No. 33-22892) and incorporated herein by reference).
4.3 -- Rights Agreement dated as of May 8, 1995 between the Company and the Rights Agent named therein
(filed with the Commission as Exhibit 1 to the Company's Current Report on Form 8-K dated May 2,
1995 and incorporated herein by reference).
5.1 -- Opinion of Vinson & Elkins L.L.P.
23.1 -- Consent of Arthur Andersen LLP
23.2 -- Consent of Vinson & Elkins L.L.P. (Contained in Exhibit 5.1).
24.1 -- Powers of Attorney (included on the signature page to this Registration Statement).
</TABLE>
FINANCIAL STATEMENT SCHEDULES:
Not required.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement: (i) to include any
prospectus required in Section 10(a) (3) of the Securities Act of 1933; (ii) to
reflect in the prospectus any facts or events arising after the effective date
of the Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement; and (iii) to include
any material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement; PROVIDED, HOWEVER, that paragraphs
(i) and (ii) do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement;
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering;
(4) That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report pursuant to section 13(a)
or section 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof;
(5) The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where
II-3
<PAGE>
interim financial information required to be presented by Article 3 of
Regulation S-X are not set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
(6) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions described under Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on the 12th day of October,
1995.
BMC SOFTWARE, INC.
By: /s/ MAX P. WATSON, JR.
-----------------------------------
Max P. Watson, Jr.
CHAIRMAN OF THE BOARD OF DIRECTORS,
PRESIDENT AND CHIEF EXECUTIVE
OFFICER
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
immediately below constitutes and appoints Max P. Watson, Jr. and M. Brinkley
Morse, or either of them, his true and lawful attorney-in-fact and agent, with
full power of substitution, for him and in his name, place and stead, in any and
all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes 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 indicated on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- --------------------------------------------- -------------------------------------------- --------------------
<C> <S> <C>
/s/ MAX P. WATSON, JR. Chairman of the Board, President and Chief
------------------------------------ Executive Officer (Principal Exective October 12, 1995
Max P. Watson, Jr. Officer and Financial Officer)
/s/ KEVIN M. KLAUSMEYER
------------------------------------ Principal Accounting Officer October 12, 1995
Kevin M. Klausmeyer
/s/ JOHN W. BARTER
------------------------------------ Director October 12, 1995
John W. Barter
/s/ B. GARLAND CUPP
------------------------------------ Director October 12, 1995
B. Garland Cupp
/s/ MELDON K. GAFNER
------------------------------------ Director October 12, 1995
Meldon K. Gafner
/s/ L.W. GRAY
------------------------------------ Director October 12, 1995
L.W. Gray
/s/ GEORGE F. RAYMOND
------------------------------------ Director October 12, 1995
George F. Raymond
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION LOCATION
- ----------- ------------------------------------------------------------------------------------------ ---------
<C> <C> <S> <C>
4.1 -- Certificate of Incorporation of the Company (filed with the Commission as Exhibit 3.1 to
the Company's Registration Statement on Form S-1 (registration No. 33-22892) and
incorporated herein by reference). I
4.2 -- Bylaws of the Company (filed with the Commission as Exhibit 3.2 to the Company's
Registration Statement on Form S-1 (registration No. 33-22892) and incorporated herein by
reference). I
4.3 -- Rights Agreement dated as of May 8, 1995 between the Company and the Rights Agent named
therein (filed with the Commission as Exhibit 1 to the Company's Current Report on Form
8-K dated May 2, 1995 and incorporated herein by reference). I
5.1 -- Opinion of Vinson & Elkins L.L.P. F
23.1 -- Consent of Arthur Andersen LLP F
23.2 -- Consent of Vinson & Elkins L.L.P. (Contained in Exhibit 5.1 ) F
24.1 -- Powers of Attorney (included on the signature page to this Registration Statement). F
</TABLE>
- ------------------------
* "I" indicates that the exhibit is incorporated by reference herein. "F"
indicates that the Exhibit is filed herewith.
II-6
<PAGE>
EXHIBIT 5.1
[Letterhead]
October 12, 1995
BMC Software, Inc.
2101 City West Boulevard
Houston, Texas 77042-2827
Gentlemen:
We have acted as counsel for BMC Software, Inc., a Delaware corporation (the
"Company"), with respect to certain legal matters in connection with the
registration by the Company under the Securities Act of 1933, as amended (the
"Securities Act"), of the offer and sale of up to 22,306 shares (the "Shares")
of common stock, par value $.01 per share, of the Company.
In connection with the foregoing, we have examined or are familiar with the
Certificate of Incorporation of the Company, the Bylaws of the Company, the
corporate proceedings with respect to the registration of the Shares, and the
Registration Statement on Form S-3 filed in connection with the registration of
the Shares (the "Registration Statement"), and such other certificates,
instruments and documents as we have considered necessary or appropriate for
purposes of this opinion.
Based upon the foregoing, we are of the opinion that the Shares have been
duly authorized and validly issued and are fully paid and non-assessable.
The foregoing opinion is limited to the laws of the United States of America
and the State of Texas and to the General Corporation Law of the State of
Delaware. For purposes of this opinion, we assume that the Shares will be issued
in compliance with all applicable state securities or Blue Sky laws.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name in the Prospectus forming a
part of the Registration Statement under the caption "Legal Matters." In giving
this consent, we do not admit that we are within the category of persons whose
consent is required under Section 7 of the Securities Act and the rules and
regulations thereunder.
Very truly yours,
/s/ Vinson & Elkins L.L.P.
Vinson & Elkins L.L.P.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated April 27, 1995
included in BMC Software, Inc.'s Form 10-K for the year ended March 31, 1995 and
to all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
October 12, 1995
Houston, Texas
