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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 13, 1995
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BMC SOFTWARE, INC.
(Exact name of registrant as specified in its charter)
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<S> <C>
DELAWARE 74-21226120
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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2101 CITY WEST BOULEVARD
HOUSTON, TEXAS 77042-2827
(Address of principal executive offices, including zip code)
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BMC SOFTWARE, INC. 1994 EMPLOYEE INCENTIVE PLAN
BMC SOFTWARE, INC. 1994 NONEMPLOYEE DIRECTORS' STOCK OPTION PLAN
(Full title of the plans)
M. BRINKLEY MORSE
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
2101 CITY WEST BOULEVARD
HOUSTON, TEXAS 77042-2827
(Name and address of agent for service)
(713) 918-8800
(Telephone number, including area code, of agent for service)
Copy to:
John S. Watson
Vinson & Elkins L.L.P.
2300 First City Tower
Houston, Texas 77002-6760
CALCULATION OF REGISTRATION FEE
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PROPOSED
PROPOSED MAXIMUM
MAXIMUM AGGREGATE AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE OFFERING PRICE REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE (1) (1) FEE
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 3,200,000
(2).......................... shares $34.25 $109,600,000 $37,794
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(1) Estimated solely for purposes of calculating the registration fee.
(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.
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PART II
INFORMATION REQUIRED IN THIS REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed with the Securities and
Exchange Commission (the "Commission") by BMC Software, Inc., a Delaware
corporation (the "Company"), are incorporated herein by reference and made a
part hereof: (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, no par
value, included in the Company's Registration Statement on Form 8-A as filed
with the Commission with respect to the Common Stock on August 25, 1988.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act subsequent to the effective date of this Registration
Statement, prior to the filing of a post-effective amendment to this
Registration Statement indicating that all securities offered hereby have been
sold or deregistering all securities then remaining unsold, shall be deemed to
be incorporated by reference herein and to be a part hereof from the date of
filing of such documents. Any statement contained herein or in any document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which 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 to constitute a part of this Registration
Statement, except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. 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 person
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,
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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 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, judgments, 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 only 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.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. 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:
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<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. (included in Exhibit 5.1).
24.1 Powers of Attorney (included on the signature page to this Registration
Statement).
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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:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(b) To reflect in the prospectus any facts or events arising after the
effective date of this 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 this
Registration Statement;
(c) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
PROVIDED, HOWEVER, that paragraphs (1)(a) and (1)(b) 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 Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act, 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 the purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
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Exchange Act) that is incorporated by reference in this 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) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the 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.
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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-8 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, PRESIDENT
AND CHIEF EXECUTIVE OFFICER
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints M. Brinkley Morse and Max P. Watson Jr. 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 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 and on the dates indicated below.
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NAME TITLE DATE
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<C> <S> <C>
/s/ MAX P. WATSON JR. Chairman of the Board, President and October 12, 1995
------------------------------------------- Chief Executive Officer (Principal
Max P. Watson Jr. Executive 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
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EXHIBIT INDEX
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EXHIBIT
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<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).
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. (included in Exhibit 5.1).
24.1 Powers of Attorney (included on the signature page to this Registration Statement).
</TABLE>
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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 3,200,000 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-8 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. 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
