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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
OPTISYSTEMS SOLUTIONS, LTD.
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(Name of Issuer)
ORDINARY SHARES, NIS $0.05 PER SHARE
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(Title of Class of Securities)
M75252102
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(CUSIP Number)
M. BRINKLEY MORSE
SENIOR VICE PRESIDENT
BMC SOFTWARE, INC.
2101 CITYWEST BOULEVARD
HOUSTON, TEXAS 77042
(713) 918-8800
with a copy to:
JOHN S. WATSON, ESQ.
VINSON & ELKINS L.L.P.
1001 FANNIN STREET, SUITE 2300
HOUSTON, TEXAS 77002-6760
(713) 758-2222
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(Name, Address and Telephone Number of Persons
Authorized to Receive Notices and Communications)
MAY 22, 2000
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(Date of Event which Requires Filing of This Statement)
If the filing person has previously filed a Statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box: [ ]
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or otherwise subject to the liabilities
of that Section of the Exchange Act but shall be subject to all other provisions
of the Exchange Act.
Beneficial ownership percentages set forth herein assume that at May 22, 2000
there were 6,060,080 ordinary shares of OptiSystems outstanding.
(Continued on following pages)
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SCHEDULE 13D
CUSIP NO. M75252102
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
BMC SOFTWARE, INC. 74-21226120
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) OR 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
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NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 1,212,016*
OWNED BY ---------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON None
WITH ---------------------------------------------------------
9 SOLE DISPOSITIVE POWER
1,212,016*
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10 SHARED DISPOSITIVE POWER
None
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,212,016*
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20%
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14 TYPE OF REPORTING PERSON
CO
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* BMC Software, Inc. has the right, subject to certain conditions, to purchase
up to 1,212,016 shares of OptiSystems Ordinary Shares (as defined below) upon
the exercise of options granted to BMC Software, Inc. pursuant to Stock Option
Agreements dated as of May 22, 2000, between BMC Software, Inc. and certain
shareholders of OptiSystems. These options are not currently exercisable, and
until the options become exercisable and are exercised, BMC Software, Inc. does
not have any right to vote (or to direct the voting of) or dispose (or to direct
the disposition of) any shares of OptiSystems Ordinary Shares that may be
purchased upon exercise of the options. Accordingly, BMC Software, Inc.
expressly disclaims beneficial ownership of all shares of OptiSystems Ordinary
Shares that may be purchased upon exercise of the options.
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Item 1. Security and Issuer:
This Schedule 13D relates to the ordinary shares, NIS 0.05 per share
("OptiSystems Ordinary Shares"), of OptiSystems Solutions, Ltd., a corporation
organized under the laws of the State of Israel ("OptiSystems"). The principal
executive offices of OptiSystems are located at 3B Netanyahu Street, Or-Yehuda
60376, Israel.
Item 2. Identity and Background:
This Schedule 13D is being filed by BMC Software, Inc., a corporation
organized under the laws of the State of Delaware ("BMC Software"). BMC Software
is a leading vendor of software products and services to companies throughout
the world. The principal executive offices of BMC Software are located at 2101
CityWest Boulevard, Houston, Texas 77042.
Appendix I attached hereto sets forth certain additional information
with respect to each executive officer and director of BMC Software. The filing
of this statement on Schedule 13D shall not be construed as an admission that
any person listed on Appendix I hereto is, for the purposes of Section 13(d) or
(g) of the Securities Exchange Act of 1934, as amended, the beneficial owner of
any securities covered by this statement.
During the last five years, neither BMC Software nor, to the knowledge
of BMC Software, any executive officer or director of BMC Software listed in
Appendix I, has been: (i) convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or (ii) a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to, federal
or state securities laws, or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration:
On May 22, 2000, BMC Software entered into Stock Option Agreements (the
"Stock Option Agreements") with certain shareholders of OptiSystems (the
"Shareholders"). Pursuant to the Stock Option Agreements, the Shareholders
granted to BMC Software irrevocable options (the "Stock Options") to purchase up
to 1,212,016 shares of OptiSystems Ordinary Shares (subject to adjustment) at a
purchase price per share equal to $10.00 (subject to adjustment). The Stock
Options may only be exercised upon the happening of certain events, which are
outlined in Item 5. The Stock Options are currently not exercisable. If the
Options were to become exercisable, the purchase price required to purchase all
shares of OptiSystems Ordinary Shares subject to the Stock Options would be
$12,120,160. BMC Software anticipates that all funds to be paid by it upon
exercise of the Stock Options would be provided from its working capital.
No consideration was paid in connection with the Stock Option Agreements,
the Shareholder Undertakings (as defined below) or the Irrevocable Proxies (as
defined below). The descriptions of the Stock Option Agreements, the Shareholder
Undertakings and the Irrevocable Proxies contained herein are qualified in their
entirety by reference to the forms of Stock Option Agreement, Shareholder
Undertaking and Irrevocable Proxy, which are attached hereto as Exhibits B, C
and D,
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respectively. For a more detailed description of the Stock Option Agreements,
Shareholder Undertakings and Irrevocable Proxies, see Item 5.
Item 4. Purpose of Transaction:
BMC Software and the Shareholders entered into the Stock Option
Agreements and the Shareholder Undertakings, and the Shareholders granted the
Irrevocable Proxies, to facilitate the consummation of the transactions
contemplated by the Agreement of Merger, dated as of May 22, 2000 (the
"Agreement of Merger"), by and among BMC Software, Hansen Acquisitions, Ltd., a
corporation organized under the laws of the State of Israel and a wholly owned
subsidiary of BMC Software ("Merger Sub"), and OptiSystems. Pursuant to the
Agreement of Merger, Merger Sub will merge with and into OptiSystems (the
"Merger"). In the Merger, each issued and outstanding OptiSystems Ordinary Share
will automatically be transferred to BMC Software in return for the right to
receive $10.00 in cash for such OptiSystems Ordinary Share. Consequently,
OptiSystems will become a wholly owned subsidiary of BMC Software, and the
OptiSystems Ordinary Shares will cease to be traded on the Nasdaq National
Market or any other exchange and will become eligible for termination of
registration under the Securities Exchange Act of 1934, as amended.
The Merger is subject to customary closing conditions, including, among
other things, the affirmative vote of 75% of the voting power of OptiSystems
present and voting at the OptiSystems General Meeting to be held to approve the
Merger and certain regulatory approvals. There can be no assurance that the
required approvals will be obtained in a timely fashion, if at all, or, in the
case of the regulatory approvals, if obtained, will not contain certain
conditions.
The descriptions of the Agreement of Merger, the Stock Option
Agreements, the Shareholder Undertakings and the Irrevocable Proxies contained
herein are qualified in their entirety by reference to such agreements, forms of
which are attached hereto as Exhibits A, B, C and D, respectively.
Except as set forth herein, BMC Software presently does not have any
plans or proposals that relate to or would result in any of the actions
specified in clauses (a) through (j) of Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer:
Pursuant to the terms of the Stock Option Agreements, the Shareholders
granted BMC Software the right to purchase up to an aggregate of 1,212,016
OptiSystems Ordinary Shares (representing 20% of the issued and outstanding
OptiSystems Ordinary Shares), subject to certain adjustments, at a price equal
to $10.00 per share (the "Exercise Price"). The Stock Options may be exercised
by BMC Software if (i) any Person commences a tender offer to purchase any
OptiSystems Ordinary Shares such that, upon consummation of such offer, such
Person would own or control 20% or more of the then outstanding OptiSystems
Ordinary Shares; (ii) OptiSystems receives a proposal or inquiry (an
"Acquisition Proposal"), or such an Acquisition Proposal is published, that
constitutes, or may reasonably be expected to lead to, an acquisition or
purchase of a substantial amount of assets of, or any equity interest in,
OptiSystems, or any merger or similar transaction involving OptiSystems, the
consummation of which would impede, interfere with, prevent or materially delay
the Merger (an "Acquisition Transaction"); (iii) any Person acquires beneficial
ownership of 20% or more of the then outstanding OptiSystems Ordinary Shares; or
(iv) an event
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occurs which gives rise to a right by BMC Software of payment of the Termination
Fee under the Agreement of Merger. The Options will terminate upon the earliest
of (i) the Effective Time of the Merger and (ii) the first anniversary of the
valid termination of the Agreement of Merger.
The Options are not currently exercisable, and until the Options become
exercisable and are exercised, BMC Software does not have any right to vote (or
to direct the vote of) or dispose (or to direct the disposition of) any shares
of OptiSystems that may be purchased upon exercise of the Options. Accordingly,
BMC Software expressly disclaims beneficial ownership of all such shares.
Pursuant to the terms of the Shareholder Undertakings, each of the
Shareholders has agreed that (i) he will not transfer any of the OptiSystems
securities beneficially owned by him; (ii) he will not deposit such securities
into a voting trust; (iii) he will not grant any proxy or power-of-attorney or
enter into a voting agreement with respect to such securities (other than the
Irrevocable Proxy); (iv) in the event an Acquisition Transaction is consummated
on or before the expiration date of the Agreement of Merger, he will pay to BMC
Software an amount equal to the difference between the aggregate consideration
received by such Shareholder in such Acquisition Transaction and the aggregate
consideration to have been received by such Shareholder in the Merger; and (v)
he will not solicit, initiate, encourage (including by way of furnishing
information) or take any other action to facilitate, any inquiry or the making
of any Acquisition Proposal.
Under the terms of the Irrevocable Proxies, the Shareholders granted a
third party the right to vote all of their OptiSystems Ordinary Shares at the
Special Meeting of OptiSystems' Shareholders. The third party has an
understanding with BMC Software that all of the Shareholders' OptiSystems
Ordinary Shares that are entitled to vote at the Special Meeting will be voted
in favor of the Merger.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to
Securities of the Issuer:
Except as described in Items 4 and 5 of this Schedule 13D, neither BMC
Software, nor, to the best knowledge of BMC Software, any person listed in
Appendix I, has any contract, arrangement, understanding or relationship (legal
or otherwise) with any person with respect to any securities of OptiSystems,
including, but not limited to, the transfer or voting of any of the securities,
finder's fees, joint ventures, loan or option arrangements, puts or calls,
guarantees of profits, division of profits or losses, or the giving or
withholding of proxies.
Item 7. Material to be Filed as Exhibits:
The following Exhibits are filed as part of this Schedule 13D:
Exhibit A: Agreement of Merger, dated as of May 22, 2000, by and among
BMC Software, Merger Sub and OptiSystems.
Exhibit B: Form of Stock Option Agreement.
Exhibit C: Form of Shareholder Undertaking.
Exhibit D: Form of Irrevocable Proxy.
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
certify that the information set forth in this statement is true, complete and
correct.
Date: June 1, 2000. BMC Software, Inc.
By: /s/ ROBERT H. WHILDEN, JR.
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Robert H. Whilden, Jr.
Senior Vice President
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APPENDIX I
The following table sets forth the name, present principal occupation or
employment and material occupation, positions, offices or employment for the
past five years of each director and executive officer of BMC Software. Unless
otherwise indicated below, the address of each director and officer is BMC
Software, Inc., 2101 CityWest Blvd., Houston, TX 77042-2827 and each such person
is a citizen of the United States.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR
EMPLOYMENT AND FIVE-YEAR
NAME EMPLOYMENT HISTORY
<S> <C>
Max P. Watson, Jr. Chairman of the Board (1992-present); President and
Chief Executive Officer (1990-present)
William M. Austin Senior Vice President and Chief Financial Officer (1997-
present); Vice President and Chief Financial Officer,
McDonnell Douglas Corporation (1991-1997)
Robert E. Beauchamp Senior Vice President, Research and Development (1997-
present); various sales and marketing positions (1988-
1997)
M. Brinkley Morse Senior Vice President, Corporate Development (1998-
present); Secretary (1988-present); General Counsel
(1988-1998)
Kevin Weiss Senior Vice President, Americas (1999-present); Vice
President, North American Sales (1995-1999)
Darroll Buytenhuys Senior Vice President, EMEA (2000-present); Vice
(citizen of South Africa) President (1999-2000); President, New Dimension Inc.
(1995-1999)
Theodore W. Van Duyn Chief Technology Officer (1993-present); Senior Vice
President, Research and Development (1986-1993)
Roy J. Wilson Senior Vice President, Human Resources (1997-present);
Vice President, Human Resources, Compaq Computer
Corporation (1993-1997)
Wayne Morris Vice President, Marketing (1998-present); various senior
marketing positions (1995-1998)
Robert H. Whilden, Jr. Senior Vice President, General Counsel (2000-present);
Partner, Vinson & Elkins L.L.P. law firm for more than
five years
</TABLE>
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<TABLE>
<S> <C>
John W. Cox Vice President, Chief Accounting Officer (1999-present);
Vice President, Tax and Investor Relations (1998-1999);
various tax and investor relations positions for more than
five years
Stephen B. Solcher Vice President (1998-present); Treasurer (1992-present)
John W. Barter Director (1988-present); Executive Vice President and
President Allied Signal Automotive (1994-1997) and
Senior Vice President and Chief Financial Officer (1988-
1994) and various other positions (1977-1988), Allied
Signal, Inc.; Director, Iomega Corp. (1998-present);
Director, Louisiana Pacific Corporation (1998-present);
Director, Kestrel Solutions, Inc. (1998-present)
B. Garland Cupp Director (1989-present); Executive Vice President and
Chief Information Officer (1985-1995), TRS
Technologies; various other positions (1978-1995),
American Express Corporation
Meldon R. Gafner Director (1987-present); Chairman of the Board, Kestrel
Solutions, Inc. (1997-present); Vice Chairman of Board
(1992-1997) and President (1988-1992), Comstream
Corporation
L. W. Gray Director (1991-present); Vice President (1983-1987) and
various other positions (1961-1983), International
Business Machines Corporation
George F. Raymond Director (1987-present); Founder, Automatic Business
Centers, Inc.; Director (1988-present), DocuCorp
International, Inc.; Director (1998-present), Atlantic Data
Services, Inc.; Director (1998-present) Balance Bar Inc.
Tom C. Tinsley Director (1997-present); Chief Executive Officer (1998-
present) and Managing Director and President (1995-
present) and Chief Operating Officer (1995-1998), The Baan
Company; McKinsey & Company Inc. (1978-1995)
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Ex. No. Description
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<S> <C>
A Agreement of Merger, dated as of May 22, 2000, by and among BMC
Software, Merger Sub and OptiSystems.
B Form of Stock Option Agreement.
C Form of Shareholder Undertaking.
D Form of Irrevocable Proxy.
</TABLE>
