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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 26, 1998
Registration No. 333-
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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)
DELAWARE 74-21226120
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2101 CITY WEST BOULEVARD
HOUSTON, TEXAS 77042-2827
(Address of principal executive offices, including zip code)
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BGS SYSTEMS, INC. 1983 STOCK OPTION PLAN
BGS SYSTEMS, INC. 1993 STOCK OPTION PLAN
BGS SYSTEMS, INC. 1993 OUTSIDE DIRECTOR STOCK OPTION PLAN
1997 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
M. BRINKLEY MORSE
SENIOR 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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Title of Amount to be Proposed maximum Proposed maximum Amount of
securities to be registered offering price aggregate registration fee
registered per share (1) offering price (1)
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<S> <C> <C> <C> <C>
Common Stock,
$.01 par value (2) 393,257 shares $78.25 $30,772,360 $9,078
======================================================================================================================
</TABLE>
(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 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 this Registration Statement.
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 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
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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, 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.
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:
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).
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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).
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 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
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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 26th day of March
1998.
BMC SOFTWARE, INC.
By: /s/ M. Brinkley Morse
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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.
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<CAPTION>
SIGNATURES TITLE DATE
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<S> <C> <C>
/s/ Max P. Watson, Jr. Chairman of the Board, President and Chief
- ----------------------------------- Executive Officer (Principal Executive March 26, 1998
Max P. Watson, Jr. Officer
/s/ William M. Austin (Principal Financial Officer) March 26, 1998
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William M. Austin
/s/ Kevin N. Klausmeyer (Principal Accounting Officer) March 26, 1998
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Kevin N. Klausmeyer
/s/ John W. Barter Director March 26, 1998
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John W. Barter
/s/ B. Garland Cupp Director March 26, 1998
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B. Garland Cupp
/s/ Meldon K. Gafner Director March 26, 1998
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Meldon K. Gafner
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Lew W. Gray Director March 26, 1998
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Lew W. Gray
/s/ George F. Raymond Director March 26, 1998
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George F. Raymond
/s/ Tom C. Tinsley Director March 26, 1998
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Tom C. Tinsley
</TABLE>
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EXHIBIT INDEX
<TABLE>
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Exhibit Description Location
Number
<S> <C>
4.1 - Restated Certificate of Incorporation of the Company (filed with the Commission as I
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 I
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 I
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 I
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 I
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 5.1). F
24.1 - Powers of Attorney (included on the signature page to this Registration Statement). F
</TABLE>
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* "I" indicates that the exhibit is incorporated by reference herein.
"F" indicates that the Exhibit is filed herewith.
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EXHIBIT 5.1
[VINSON & ELKINS LETTERHEAD]
March 25, 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 393,257 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.
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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 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.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Houston, Texas
March 25, 1998
