<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 24, 1999
REGISTRATION NO. 333-67263
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 4
TO
FORM S-4
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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DELAWARE 7274 74-21226120
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
<TABLE>
<S> <C>
M. BRINKLEY MORSE
SENIOR VICE PRESIDENT
BMC SOFTWARE, INC.
2101 CITYWEST BLVD. 2101 CITYWEST BLVD.
HOUSTON, TEXAS 77042-2827 HOUSTON, TX 77042-2827
(713) 918-8800 (713) 918-8800
(Address, including zip code, and telephone (Name, address, including zip code, and
number, including area code, of telephone number, including area
registrant's principal executive offices) code, of agent for service)
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Copies to:
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JOHN S. WATSON KEITH A. FLAUM
VINSON & ELKINS L.L.P. COOLEY GODWARD LLP
2300 FIRST CITY TOWER FIVE PALO ALTO SQUARE
1001 FANNIN 3000 EL CAMINO REAL
HOUSTON, TEXAS 77002-6760 PALO ALTO, CA 94306-2155
(713) 758-2222 (650) 843-5000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: As soon as practicable following the effectiveness of this Registration
Statement.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, 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, check the following box and
list the Securities Act registration statement number of the earlier
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier registration statement for the same
offering. [ ]
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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.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law, Article SEVENTH of
BMC's Restated Certificate of Incorporation, Sections 1 and 2 or Article VI of
BMC's bylaws, as amended, and indemnification agreements entered into by BMC
with its directors provide for the indemnification of officers, directors,
employees and agents under certain circumstances.
Set forth below is Article SEVENTH of BMC'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, 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 BMC'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
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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, BMC has entered into indemnification agreements with its
directors, pursuant to which BMC 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.
BMC has also purchased liability insurance policies covering directors and
officers of BMC.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
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EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
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2.1 -- Agreement and Plan of Reorganization dated as of October
31, 1998 by and among BMC Software, Inc., Ranger
Acquisition Corp. and Boole & Babbage, Inc. (included as
Appendix A to the Proxy Statement/Prospectus).
2.2 -- Stock Option Agreement dated as of October 31, 1998 by
and between BMC Software, Inc. and Boole & Babbage, Inc.
(included as Appendix B to the Proxy
Statement/Prospectus).
2.3 -- Form of Voting Agreement between BMC and certain
stockholders of Boole (included as Appendix C to the
Proxy Statement/Prospectus).
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EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
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3.1 -- Restated Certificate of Incorporation of BMC
(incorporated by reference to Exhibit 3.1 to the
Registrant's Registration Statement on Form S-1
(Registration No. 33-22892)).
3.2 -- Certificate of Amendment of Restated Certificate of
Incorporation (incorporated by reference to Exhibit 3.2
to the Company's Annual Report on Form 10-K for the year
ended March 31, 1997).
3.3 -- BMC By-Laws, as amended (incorporated by reference to
Exhibit 3.2 to the Registrant's Registration Statement on
Form S-1 (Registration No. 33-22892)).
4.1 -- Rights Agreement dated as of May 8, 1995 between the
Registrant and Bank Boston N.A. (incorporated by
reference to Exhibit 1 to the Registrant's Registration
Statement on Form 8-A dated May 10, 1995).
4.2 -- Amendment to Rights Agreement dated as of April 27, 1997
(incorporated by reference to Exhibit 4.3 to the
Registrant's Annual Report on Form 10-K for the year
ended March 31, 1997).
5.1 -- Opinion of Vinson & Elkins L.L.P. regarding the legality
of the securities.
8.1 -- Opinion of Vinson & Elkins L.L.P. regarding tax matters.
8.2 -- Opinion of Cooley Godward LLP regarding tax matters.
11.1 -- Statement re computation of per share earnings.
23.1 -- Consent of Vinson & Elkins L.L.P. (set forth in Exhibit
5.1).
23.2 -- Consent of Cooley Godward LLP (set forth in Exhibit 8.2).
23.3 -- Consent of Arthur Andersen LLP (BMC).
23.4 -- Consent of Ernst & Young LLP (Boole).
*23.5 -- Consent of PricewaterhouseCoopers LLP (Boole)
23.6 -- Consent of Morgan Stanley & Co. Incorporated.
23.7 -- Consent of Ernst & Young LLP (BMC)
24.1 -- Powers of Attorney (set forth on signature page).
99.1 -- Form of Boole Proxy.
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* Filed herewith.
All other exhibits have been previously filed.
FINANCIAL STATEMENT SCHEDULES:
The Financial Statement Schedules have previously been filed as part of
BMC's Form 10-K for the fiscal year ended March 31, 1998.
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ITEM 22. 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;
(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 (1)(i) and (1)(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;
(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 tide offering thereof;
(5) To respond to requests for information that is incorporated by
reference into the prospectus pursuant to Items 4, 10(b), 11 or 13 of this
Form, within one business day of receipt of such request, and to send the
incorporated documents by first class mail or other equally prompt means.
This includes information contained in documents filed subsequent to the
effective date of the Registration Statement through the date of responding
to the request;
(6) That, prior to any public reoffering of the securities registered
hereunder through use of a prospectus which is a part of this Registration
Statement, by any person or party who is deemed to be an underwriter within
the meaning of Rule 145(c), the issuer undertakes that such reoffering
prospectus will contain the information called for by the applicable
registration form with respect to reofferings by persons who may be
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deemed underwriters, in addition to the information called for by the other
Items of the applicable form;
(7) That every prospectus (i) that is filed pursuant to paragraph (6)
immediately preceding, or (ii) that purports to meet the requirements of
section 10(a)(3) of the Securities Act and is used in connection with an
offering of securities subject to Rule 415, will be filed as a part of an
amendment to the registration statement and will not be used until such
amendment is effective, and that, for purposes 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; and
(8) To supply by means of a post-effective amendment all information
concerning a transaction, and BMC being acquired involved therein, that was
not the subject of and included in the Registration Statement when it
became effective.
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 20 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 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 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, as amended, the
registrant has duly caused this Amendment No. 4 to Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in Houston,
Texas, on the 24th day of February, 1999.
BMC SOFTWARE, INC.
By: /s/ WILLIAM M. AUSTIN
----------------------------------
William M. Austin
Senior Vice President
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 4 to Registration Statement has been signed by the following persons in the
capacities indicated on the dates indicated.
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SIGNATURE TITLE DATE
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* Chairman of the Board, February 24, 1999
- ----------------------------------------------------- President and Chief Executive
Max P. Watson, Jr. Officer
(Principal-Executive-Officer
/s/ WILLIAM M. AUSTIN (Principal-Financial-Officer) February 24, 1999
- -----------------------------------------------------
William M. Austin
/s/ KEVIN M. KLAUSMEYER (Principal-Accounting-Officer) February 24, 1999
- -----------------------------------------------------
Kevin M. Klausmeyer
* Director February 24, 1999
- -----------------------------------------------------
John W. Barter
* Director February 24, 1999
- -----------------------------------------------------
B. Garland Cupp
* Director February 24, 1999
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Meldon K. Gafner
* Director February 24, 1999
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Lew W. Gray
* Director February 24, 1999
- -----------------------------------------------------
George F. Raymond
* Director February 24, 1999
- -----------------------------------------------------
Tom C. Tinsley
*By: /s/ M. BRINKLEY MORSE
-------------------------------------------------
M. Brinkley Morse
Attorney-in-fact
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EXHIBIT INDEX
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EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
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2.1 -- Agreement and Plan of Reorganization dated as of October
31, 1998 by and among BMC Software, Inc., Ranger Acquisition
Corp. and Boole & Babbage, Inc. (included as Appendix A
to the Proxy Statement/Prospectus)
2.2 -- Stock Option Agreement dated as of October 31, 1998 by
and among BMC Software, Inc. and Boole & Babbage, Inc.
(included as Appendix B to the Proxy
Statement/Prospectus).
2.3 -- Form of Voting Agreement between BMC and certain
stockholders of Boole (included as Appendix C to the Proxy
Statement/Prospectus)
3.1 -- Restated Certificate of Incorporation of BMC
(incorporated by reference to Exhibit 3.1 to the
Registrant's Registration Statement on Form S-1
(Registration No. 33-22892)
3.2 -- Certificate of Amendment of Restated Certificate of
Incorporation (incorporated by reference to Exhibit 3.2 to
the Company's Annual Report on Form 10-K for the year
ended March 31, 1997)
3.3 -- BMC By-Laws, as amended (incorporated by reference to
Exhibit 3.2 to the Registrant's Registration Statement on
Form S-1 (Registration No. 33-22892)
4.1 -- Rights Agreement dated as of May 8, 1995 between the
Registrant and Bank Boston N.A. (incorporated by reference
to Exhibit 1 to the Registrant's Registration Statement
on Form 8-A dated May 10, 1995
4.2 -- Amendment to Rights Agreement dated as of April 27, 1997
(incorporated by reference to Exhibit 4.3 to the
Registrant's Annual Report on Form 10-K for the year
ended March 31, 1997)
5.1 -- Opinion of Vinson & Elkins L.L.P. regarding the legality
of the securities
8.1 -- Opinion of Vinson & Elkins L.L.P. regarding tax matters.
8.2 -- Opinion of Cooley Godward LLP regarding tax matters
11.1 -- Statement re computation of per share earnings.
23.1 -- Consent of Vinson & Elkins L.L.P. (set forth in Exhibit
5.1)
23.2 -- Consent of Cooley Godward LLP (set forth in Exhibit 8.2)
23.3 -- Consent of Arthur Andersen LLP (BMC)
23.4 -- Consent of Ernst & Young LLP (Boole)
*23.5 -- Consent of PricewaterhouseCoopers LLP (Boole)
23.6 -- Consent of Morgan Stanley & Co. Incorporated
23.7 -- Consent of Ernst & Young LLP (BMC)
24.1 -- Powers of Attorney (set forth on signature page)
99.1 -- Form of Boole Proxy
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* Filed herewith.
All other exhibits have been previously filed.
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EXHIBIT 23.5
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement on
Form S-4 of BMC Software, Inc. of our report, dated April 10, 1997, on our audit
of the financial statements of MAXM Systems, Inc. as of September 30, 1996 and
for the year then ended, as included in the Current Report on Form 8-K/A for
Boole & Babbage, Inc. dated April 22, 1997 (File No. 000-13258) as incorporated
by reference in the annual report on Form 10-K of Boole & Babbage, Inc. for the
year ended September 30, 1998, which report is incorporated by reference in this
registration statement on Form S-4. We also consent to the reference to our firm
under the caption "Experts" in the registration statement.
/s/ PRICEWATERHOUSECOOPERS LLP
PricewaterhouseCoopers LLP
McLean, Virginia
February 19, 1999
