<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 4, 1998
REGISTRATION NO. 333-
================================================================================
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)
DELAWARE 7274 74-21226120
(State or other jurisdiction (Primary Standard (I.R.S. Employer
of incorporation or organization) Industrial Classifi- Identification Number)
cation Code Number)
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 Copies of all communications,
SENIOR VICE PRESIDENT, GENERAL COUNSEL including all communications sent to the
AND SECRETARY agent for service, should be sent to:
2101 CITY WEST BOULEVARD
HOUSTON, TEXAS 77042-2827 JOHN S. WATSON
(713) 918-8800 VINSON & ELKINS L.L.P.
2300 FIRST CITY TOWER
(Name, address, including zip code, and telephone 1001 FANNIN
number, including area code, of agent for service) 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>
==============================================================================================================
TITLE OF EACH CLASS OF AMOUNT PROPOSED PROPOSED AMOUNT OF
SECURITIES TO BE TO BE MAXIMUM OFFERING MAXIMUM AGGREGATE REGISTRATION
REGISTERED REGISTERED PRICE PER SHARE(1) OFFERING PRICE (1) FEE
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.01(2) . . . . . . . . 20,000 shares $ 75.6875 $ 1,513,750 $ 447
==============================================================================================================
</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> 2
SUBJECT TO COMPLETION, DATED MARCH 4, 1998
PROSPECTUS
20,000 SHARES
Logo
BMC SOFTWARE, INC.
SHARES OF COMMON STOCK, $.01 PAR VALUE
------------------------------
All of the shares of Common Stock offered hereby are being sold by a
certain stockholder (the "Selling Stockholder") of the Company. See "Selling
Stockholder." The Company will not receive any proceeds from the sale of
shares of Common Stock by the Selling Stockholder.
The Common Stock is quoted on the NASDAQ National Market under the
Symbol "BMCS." On March 3, 1998, the last reported sales price for the Common
Stock on the NASDAQ National Market was $75.4375 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 Stockholder 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 Stockholder
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 Stockholder will be paid by the Selling
Stockholder. The Company has agreed to indemnify the Selling Stockholder
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 ____________ , 1998
<PAGE> 3
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> 4
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 60621-2511.
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. In addition, the Company is required to file
electronic versions of these documents with the Commission through the
Commission's Electronic Data Gathering, Analysis and Retrieval (EDGAR) system.
The Commission maintains a World Wide Web site at http://www.sec.gov that
contains reports, proxy statements and other information regarding registrants
that file electronically with the Commission. The Common Stock is quoted on
the NASDAQ National Market. Reports, proxy 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.
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.
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, 1997; (ii) the Company's
Quarterly Reports on Form 10-Q for the quarters ended June 30, 1997, September
30, 1997 and December 31, 1997; (iii) the Company's Current Report on Form 8-K
filed on February 4, 1998; (iv) all other reports filed pursuant to Section
13(a) or 15(d) of the Exchange Act since the end of the fiscal period covered
by the annual report referred to in (i) above; and (v) the description of the
Company's Common Stock contained in its Registration Statement filed under
Section 12 of the Exchange Act, including any amendment or reports filed for
the purposes of updating such description.
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> 5
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 Stockholder. The Company will not receive any
consideration for the shares of the Common Stock registered hereunder.
SELLING STOCKHOLDER
The following table sets forth the name 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>
Terlingua Software, Inc. 20,000
</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 have been audited by Arthur Andersen LLP, independent
public accountants, as indicated in their report with respect thereto, and are
included herein in reliance upon the authority of said firm as experts in giving
said reports.
-2-
<PAGE> 6
================================================================================
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 the 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 Stockholder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Legal Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
</TABLE>
================================================================================
================================================================================
LOGO
BMC SOFTWARE, INC.
20,000 Shares
Common Stock
($.01 Par Value)
Prospectus
, 1998
================================================================================
<PAGE> 7
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 . . . . . . . . $ 447
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $20,447
</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
II-1
<PAGE> 8
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, 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> 9
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.
Exhibit
Number Description
------ -----------
4.1 - Restated 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 - Certificate of Amendment of Restated Certificate of
Incorporation (filed with the Commission as Exhibit 3.2 to
the Company's Annual Report on Form 10-K for the year ended
March 31, 1997 and incorporated herein by reference).
4.3 - Bylaws, as amended, 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).
4.4 - Rights Agreement dated as of May 8, 1995 between the
Company and BankBoston N.A. (filed with the Commission as
Exhibit 1 to the Company's Registration Statement on Form
8-A dated May 10, 1995 and incorporated herein by
reference).
4.5 - Amendment to Rights Agreement dated as of April 27, 1997
(filed with the Commission as Exhibit 4.3 to the Company's
Annual Report on Form 10-K for the year ended March 31,
1997 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).
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;
II-3
<PAGE> 10
(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 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> 11
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-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 4th day of March, 1998.
BMC SOFTWARE, INC.
By: /s/ M. BRINKLEY MORSE
---------------------------------
M. Brinkley Morse
Senior Vice President,
General Counsel and Secretary
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
---------- ----- ----
<S> <C> <C>
/s/ MAX P. WATSON, JR. Chairman of the Board, President and Chief
--------------------------------------- Executive Officer (Principal Executive
Max P. Watson, Jr. Officer) March 4, 1998
/s/ WILLIAM M. AUSTIN (Principal Financial Officer) March 4, 1998
---------------------------------------
William M. Austin
/s/ KEVIN N. KLAUSMEYER (Principal Financial Officer) March 4, 1998
---------------------------------------
Kevin N. Klausmeyer
Director
--------------------------------------
John W. Barter
/s/ B. GARLAND CUPP Director March 1, 1998
--------------------------------------
B. Garland Cupp
Director
--------------------------------------
Meldon K. Gafner
</TABLE>
II-5
<PAGE> 12
<TABLE>
<S> <C> <C>
/s/ LEW W. GRAY Director March 1, 1998
--------------------------------------
Lew W. Gray
/s/ GEORGE F. RAYMOND Director March 2, 1998
--------------------------------------
George F. Raymond
/s/ TOM C. TINSLEY Director March 2, 1998
--------------------------------------
Tom C. Tinsley
</TABLE>
II-6
<PAGE> 13
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description Location
------ ----------- --------
<S> <C> <C>
4.1 - Restated Certificate of Incorporation of the Company (filed I
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 - Certificate of Amendment of Restated Certificate of I
Incorporation (filed with the Commission as Exhibit 3.2 to
the Company's Annual Report on Form 10-K for the year ended
March 31, 1997 and incorporated herein by reference).
4.3 - Bylaws, as amended, of the Company (filed with the I
Commission as Exhibit 3.2 to the Company's Registration
Statement on Form S-1 (registration No. 33-22892) and
incorporated herein by reference).
4.4 - Rights Agreement dated as of May 8, 1995 between the I
Company and BankBoston N.A. (filed with the Commission as
Exhibit 1 to the Company's Registration Statement on Form
8-A dated May 10, 1995 and incorporated herein by
reference).
4.5 - Amendment to Rights Agreement dated as of April 27, 1997 I
(filed with the Commission as Exhibit 4.3 to the Company's
Annual Report on Form 10-K for the year ended March 31,
1997 and incorporated herein by reference).
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 F
5.1).
24.1 - Powers of Attorney (included on the signature page to this F
Registration Statement).
</TABLE>
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* "I" indicates that the exhibit is incorporated by reference herein. "F"
indicates that the Exhibit is filed herewith.
II-7
<PAGE> 1
EXHIBIT 5.1
[VINSON & ELKINS LETTERHEAD]
March 4, 1998
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 20,000 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.
Very truly yours,
Vinson & Elkins L.L.P.
<PAGE> 1
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 reports dated May 2, 1997
included in BMC Software, Inc.'s Form 10-K for the year ended March 31, 1997
and to all references to our firm included in this registration statement.
Arthur Andersen LLP
Houston, Texas
March 2, 1998
