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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 13, 1998
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. 1994 EMPLOYEE INCENTIVE PLAN
(Full title of the plan)
M. BRINKLEY MORSE
SENIOR VICE PRESIDENT
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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<CAPTION>
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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 (1) offering price (1) registration fee
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value (2) 10,000,000 shares $43.31 $433,100,000 $120,402
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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.
Registration Statement No. 33-63411 relates to 9,600,000 shares (as
adjusted for stock splits) of Common Stock of the Registrant (the "Previously
Registered Securities"). This Registration Statement registers additional
securities for offering pursuant to General Instruction E of Form S-8 under the
Securities Act of 1933, as amended, to the total amount of Previously
Registered Securities registered on Registration Statement No. 33-63411. The
Registrant hereby incorporates by reference into this Registration Statement on
Form S-8 in its entirety the Registration Statement No. 33-63411, including
each of the documents filed by the Registrant with the Securities and Exchange
Commission and incorporated or deemed to be incorporated by reference therein
and including each of the documents filed as Exhibits to such Registration
Statement.
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PART II
INFORMATION REQUIRED IN THIS REGISTRATION STATEMENT
ITEM 8. EXHIBITS.
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).
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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 13th day of November,
1998.
BMC SOFTWARE, INC.
By: /s/ M. BRINKLEY MORSE
------------------------------------
M. Brinkley Morse
Senior Vice President
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.
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SIGNATURES TITLE DATE
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<S> <C> <C>
/s/ MAX P. WATSON, JR. Chairman of the Board, President and November 13, 1998
- ----------------------------------------- Chief Executive Officer
Max P. Watson, Jr. (Principal Executive Officer)
/s/ WILLIAM M. AUSTIN Senior Vice President and Chief Financial November 13, 1998
- ----------------------------------------- Officer
William M. Austin (Principal Financial Officer)
/s/ KEVIN N. KLAUSMEYER Vice President, Controller and Chief November 13, 1998
- ----------------------------------------- Accounting Officer
Kevin N. Klausmeyer (Principal Accounting Officer)
/s/ JOHN W. BARTER Director November 13, 1998
- -----------------------------------------
John W. Barter
/s/ B. GARLAND CUPP Director November 13, 1998
- -----------------------------------------
B. Garland Cupp
/s/ MELDON K. GAFNER Director November 13, 1998
- -----------------------------------------
Meldon K. Gafner
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<TABLE>
<S> <C> <C>
/s/ LEW W. GRAY Director November 13, 1998
- -----------------------------------------
Lew W. Gray
/s/ GEORGE F. RAYMOND Director November 13, 1998
- -----------------------------------------
George F. Raymond
/s/ TOM C. TINSLEY Director November 13, 1998
- -----------------------------------------
Tom C. Tinsley
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EXHIBIT INDEX
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Exhibit Description
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Number
- ------
<S> <C>
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).
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EXHIBIT 5.1
[VINSON & ELKINS LETTERHEAD]
November 13, 1998
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
10,000,000 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 Restated 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.
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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 reports dated May 1, 1998
included in BMC Software, Inc.'s Form 10-K for the year ended March 31, 1998
and to all references to our Firm included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
Houston, Texas
November 11, 1998
