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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 12, 1996
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_________________
BMC SOFTWARE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 74-21226120
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2101 CITYWEST BOULEVARD
HOUSTON, TEXAS 77042-2827
(Address of principal executive offices, including zip code)
____________________
BMC SOFTWARE, INC. 1996 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
M. BRINKLEY MORSE
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
2101 CITYWEST 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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TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED REGISTERED PER SHARE* OFFERING PRICE* REGISTRATION FEE
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Common Stock, $.01 par value..250,000 shares $62.50 $15,625,000 $5,388
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*Estimated, solely for purposes of calculating the registration fee.
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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:
(a) Annual Report on Form 10-K for the year ended March 31, 1995; and
(b) Quarterly Reports on Form 10-Q for the Quarters ended June
30, September 30 and December 31, 1995
(c) 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, partnership,
joint venture, trust or other enterprise against any liability
asserted against him and incurred by
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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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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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:
4.1 Restated Certificate of Incorporation of the Company,
incorporated by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-1 (Registration No. 33-22892)
(the "S-1 Registration Statement").
4.2 Bylaws of the Company; incorporated by reference to Exhibit
3.2 to the S-1 Registration Statement.
4.3 Specimen Stock Certificate for the Common Stock of the
Company, incorporated by reference to Exhibit 4.1 to the S-1
Registration Statement.
4.4 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).
UNDERTAKINGS
The Company 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.
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(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 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 4th
day of June 1996.
BMC SOFTWARE, INC.
By: /s/ Max P. Watson, Jr.
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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.
NAME TITLE DATE
- ---- ----- ----
/s/ Max P. Watson, Jr. Chairman of the Board, President
- ----------------------------- and Chief Executive Officer June 4, 1996
Max P. Watson Jr. (Principal Executive Officer and
Financial Officer)
/s/ Kevin M. Klausmeyer Principal Accounting Officer June 4, 1996
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Kevin M. Klausmeyer
/s/ John W. Barter Director June 4, 1996
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John W. Barter
/s/ B. Garland Cupp Director June 4, 1996
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B. Garland Cupp
/s/ Meldon K. Gafner Director June 4, 1996
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Meldon K. Gafner
/s/ L.W. Gray Director June 4, 1996
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L.W. Gray
/s/ George F. Raymond Director June 4, 1996
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George F. Raymond
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M. Brinkley Morse,
as Attorney-in-Fact
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EXHIBIT INDEX
EXHIBIT PAGE
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4.1 Restated Certificate of Incorporation of the Company,
incorporated by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-1 (Registration No. 33-22892)
(the "S-1 Registration Statement").
4.2 Bylaws of the Company; incorporated by reference to
Exhibit 3.2 to the S-1 Registration Statement.
4.3 Specimen Stock Certificate for the Common Stock of the
Company, incorporated by reference to Exhibit 4.1 to the S-1
Registration Statement.
4.4 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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EXHIBIT 5.1
[LETTERHEAD]
June 12, 1996
BMC Software, Inc.
2101 CityWest 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 250,000 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-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.
Sincerely,
/s/ VINSON & ELKINS L.L.P.
Vinson & Elkins L.L.P.
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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
June 10, 1996
Houston, Texas
