<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 25, 2000
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
BMC SOFTWARE, INC.
(Name of Registrant as specified in its charter)
DELAWARE 74-21226120
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2101 CITYWEST BOULEVARD
HOUSTON, TEXAS 77042-2827
(713) 918-8800
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
BMC SOFTWARE, INC. 2000 EMPLOYEE STOCK INCENTIVE PLAN
(Full title of the plans)
M. BRINKLEY MORSE
SENIOR VICE PRESIDENT
BMC SOFTWARE, INC.
2101 CITYWEST BOULEVARD
HOUSTON, TEXAS 77042-2827
(713) 918-8800
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
Copies to:
JOHN S. WATSON, ESQ.
VINSON & ELKINS L.L.P.
1001 FANNIN, SUITE 2300
HOUSTON, TEXAS 77002-6760
(713) 758-2222
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED SHARE(1) PRICE(1) REGISTRATION FEE
------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$0.01 per share(2)........... 12,000,000 shares $24.09 $289,125,000 $76,329
==================================================================================================================
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, based upon
the average of the high and low prices reported on The NASDAQ Stock
Market on August 22, 2000 ($24.09 per share).
(2) Each share of common stock includes Rights under our Rights Agreement,
which Rights are attached to and trade with our common stock.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this Prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below and any future filings made with the SEC
under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
until all of the securities described in this prospectus are sold.
o The description of our common stock contained in our registration
statement on form 8-A, as filed with the SEC on August 25, 1988;
o Our annual report on form 10-K for the fiscal year ended March 31,
2000; and
o Our quarterly report on form 10-Q for the quarterly period ended
June 30, 2000.
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
our Restated Certificate of Incorporation, Sections 1 and 2 of Article VI of our
bylaws, as amended, and indemnification agreements entered into by us with our
directors provide for the indemnification of our officers, directors, employees
and agents under certain circumstances.
Set forth below is Article SEVENTH of our 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 our 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
<PAGE> 3
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, we have entered into indemnification agreements with our
directors, under which we have 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.
We have also purchased liability insurance policies covering our
directors and officers.
ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
* 3.1 -- Restated Certificate of Incorporation of BMC Software, Inc.
* 3.2 -- Bylaws of BMC Software, Inc.
** 3.3 -- Amendment to Certificate of Incorporation of BMC Software,
Inc.
* 4.1 -- Specimen Common Stock certificate
*** 4.2 -- BMC Software, Inc.'s 2000 Employee Stock Incentive Plan
+ 5.1 -- Opinion of Vinson & Elkins L.L.P.
+ 23.1 -- Consent of Arthur Andersen LLP
+ 23.2 -- Consent of Ernst & Young LLP, Independent Auditors
+ 23.3 -- Consent of Vinson & Elkins L.L.P. (contained in Exhibit 5.1
hereto)
+ 24.1 -- Powers of Attorney (included on the signature page to this
Registration Statement)
------------------------
* These Exhibits are incorporated herein by reference to the
Exhibits bearing the same Exhibit numbers in the Registrant's Form
S-1 Registration Statement No. 33-22892.
** This Exhibit is incorporated herein by reference to Exhibit 3.2 in
the Registrant's Annual Report on Form 10-K for the fiscal year
end March 31, 1997.
*** This Exhibit is incorporated herein by reference to Exhibit 10.1
to the Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 2000.
+ All other Exhibits are filed herewith.
II-2
<PAGE> 4
ITEM 9. 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 by Section 10(a)(3)
of the Securities Act of 1933, as amended (the "Securities Act");
(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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of a prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20% change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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 Exchange Act that are incorporated by
reference in the 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.
The undersigned Registrant hereby undertakes that, for 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 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.
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 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-3
<PAGE> 5
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-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 25th day of
August, 2000.
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 below constitutes and appoints M. Brinkley Morse and Robert H. Whilden,
Jr., 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 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, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Max P. Watson, Jr. Chairman of the Board, President August 25, 2000
----------------------------------------- and Chief Executive Officer
Max P. Watson Jr.
/s/ William M. Austin Senior Vice President and Chief August 25, 2000
----------------------------------------- Financial Officer
William M. Austin (Principal Financial Officer)
/s/ John W. Cox Vice President August 25, 2000
----------------------------------------- (Principal Accounting Officer)
John W. Cox
/s/ John W. Barter Director August 25, 2000
-----------------------------------------
John W. Barter
/s/ B. Garland Cupp Director August 25, 2000
-----------------------------------------
B. Garland Cupp
Director
-----------------------------------------
Meldon K. Gafner
/s/ Lew W. Gray Director August 25, 2000
-----------------------------------------
Lew W. Gray
</TABLE>
II-4
<PAGE> 6
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ George F. Raymond Director August 25, 2000
-----------------------------------------
George F. Raymond
Director
Tom C. Tinsley
</TABLE>
II-5
<PAGE> 7
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
------- -----------
* 3.1 -- Restated Certificate of Incorporation of BMC Software, Inc.
* 3.2 -- Bylaws of BMC Software, Inc.
** 3.3 -- Amendment to Certificate of Incorporation of BMC Software,
Inc.
* 4.1 -- Specimen Common Stock certificate
*** 4.2 -- BMC Software, Inc.'s 2000 Employee Stock Incentive Plan
+ 5.1 -- Opinion of Vinson & Elkins L.L.P.
+ 23.1 -- Consent of Arthur Andersen LLP
+ 23.2 -- Consent of Ernst & Young LLP, Independent Auditors
+ 23.3 -- Consent of Vinson & Elkins L.L.P. (contained in Exhibit 5.1
hereto)
+ 24.1 -- Powers of Attorney (included on the signature page to this
Registration Statement)
------------------------
* These Exhibits are incorporated herein by reference to the
Exhibits bearing the same Exhibit numbers in the Registrant's Form
S-1 Registration Statement No. 33-22892.
** This Exhibit is incorporated herein by reference to Exhibit 3.2 in
the Registrant's Annual Report on Form 10-K for the fiscal year
end March 31, 1997.
*** This Exhibit is incorporated herein by reference to Exhibit 10.1
to the Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 2000.
+ All other Exhibits are filed herewith.
