<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 5, 2000
REGISTRATION NO. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM S-3
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)
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
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As
soon as practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
============================================================================================================================
PROPOSED PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE MAXIMUM OFFERING AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PRICE PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$0.01 per share(2)........... 1,582,415 shares $ 44.84 $ 70,955,489 $ 18,732
============================================================================================================================
</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 May 3, 2000 ($44.84 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.
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 SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
===============================================================================
<PAGE> 2
The information in this prospectus is not complete and may be changed. The
securities covered by this prospectus may not be sold until the registration
statement filed with the Securities and Exchange Commission is declared
effective. This prospectus is not an offer to sell these securities and we are
not soliciting offers to buy these securities in any state where the offer or
sale is not permitted.
PROSPECTUS
SUBJECT TO COMPLETION, DATED MAY 5, 2000
1,582,415 Shares
BMC SOFTWARE, INC.
COMMON STOCK
This prospectus relates to the offer and sale from time to time of up
to an aggregate of 1,582,415 shares of our common stock for the account of our
stockholders named in this prospectus.
Our common stock is listed for trading on The NASDAQ Stock Market under
the trading symbol "BMCS." On May 4, 2000, the last reported sale price of our
common stock on NASDAQ was $44.94 per share. The shares covered by this
prospectus may be sold at market prices prevailing at the time of sale or at
negotiated prices. We will not receive any of the proceeds from the sale of the
shares covered by this prospectus. Each stockholder named in this prospectus is
a party to an Agreement and Plan of Reorganization dated as of April 25, 2000,
with our company, under which we have agreed to pay all expenses of registration
of the sale of the shares covered by this prospectus, estimated at $41,000.
The address of our executive offices is 2101 CityWest Boulevard,
Houston, Texas 77042-2827, and our telephone number is (713) 918-8800.
------------------------
THE SECURITIES AND EXCHANGE COMMISSION AND STATE SECURITIES REGULATORS HAVE NOT
APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THE PROSPECTUS IS
TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
No person has been authorized to give any information or to make any
representation contained or incorporated by reference in this prospectus and, if
given or made, such information or representation must not be relied upon as
having been authorized by our company. This prospectus does not constitute an
offer to sell or a solicitation of any offer to buy any securities other than
the common stock offered by this prospectus, or an offer to sell or a
solicitation of an offer to buy the common stock in any jurisdiction to or from
any person to whom it is unlawful to make such offer or solicitation in such
jurisdiction. Neither the delivery of this prospectus nor any sale made under
this prospectus will under any circumstances create any implication that there
has been no change in our affairs since the date of this prospectus or that the
information contained herein is correct as of any time subsequent to the date of
this prospectus.
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The date of this Prospectus is ___, 2000.
<PAGE> 3
TABLE OF CONTENTS
Prospectus
Page
----
Where You Can Find More Information ........................................ 2
The Company ................................................................ 3
Use of Proceeds ............................................................ 3
Selling Stockholders ....................................................... 3
Plan of Distribution ....................................................... 3
Legal Matters .............................................................. 4
Experts .................................................................... 4
<PAGE> 4
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the Securities and Exchange Commission (the "SEC"). Our
SEC filings are available to the public over the Internet at the SEC's website
at http://www.sec.gov. You may also read and copy any document we file with the
SEC at its public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms. Our filings with the SEC are also available at
the office of the NASDAQ located at 1735 K Street, N.W., Washington, D.C. 20006.
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,
1999;
o Our quarterly reports on form 10-Q for the quarterly periods ended June
30, 1999, September 30, 1999 and December 31, 1999, and amended
quarterly reports on form 10-Q/A for the quarterly periods ended June
30, 1999 and December 31, 1999;
o Our current reports on form 8-K filed with the SEC on April 13, 1999,
April 28, 1999, and amended current reports on form 8-K/A filed with
the SEC on June 14, 1999 and June 28, 1999.
You may request a copy of these filings (other than an exhibit to a
filing unless that exhibit is specifically incorporated by reference into that
filing) at no cost, by writing or telephoning us at the following address:
BMC Software, Inc.
2101 CityWest Boulevard
Houston, Texas 77042-2827
(713) 918-8800
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<PAGE> 5
THE COMPANY
The principal executive offices of our company are located at 2101 CityWest
Boulevard, Houston, Texas 77042-2827, and our telephone number is (713)
918-8800.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the shares covered
by this prospectus.
SELLING STOCKHOLDERS
The common stock covered by this prospectus is to be offered for the
account of the following stockholders of our company:
<TABLE>
<CAPTION>
NUMBER OF SHARES OF COMMON STOCK
NAME OF SELLING STOCKHOLDER OFFERED HEREUNDER
- --------------------------- --------------------------------
<S> <C>
Clay Davis 309,140
Robert Neville 309,140
Christopher Marich 85,014
L&H Leasing Co., LTD. 879,121
</TABLE>
On April 25, 2000, we, BMC Acquisition Corp., a wholly owned subsidiary of
our company ("Merger Sub"), Evity, Inc. and the selling stockholders entered
into an Agreement and Plan of Reorganization (the "Merger Agreement"). In
connection with the Merger Agreement, Merger Sub was merged with and into Evity
(the "Merger"). In the Merger, the selling stockholders received shares of our
common stock and cash in exchange for their outstanding shares of Evity common
and preferred stock. In connection with the Merger, we agreed to register the
resale by the selling stockholders of the shares issued to the selling
stockholders in the Merger.
PLAN OF DISTRIBUTION
We have been advised by the selling stockholders that the shares may from
time to time be offered for sale either directly by the selling stockholders or
through underwriters, dealers or agents or on any exchange on which the shares
may from time to time be traded, or in independently negotiated transactions or
otherwise; provided that such transactions will not include an underwritten
public offering. The shares may be sold at market prices prevailing at the time
of sale or at negotiated prices. The selling stockholders and any underwriters,
dealers or agents that participate in distribution of the shares may be deemed
to be underwriters, and any profit on sale of the shares by them and any
discounts, commissions or concessions received by any underwriter, dealer or
agent may be deemed to be underwriting discounts and commissions under the
Securities Act. The methods by which the shares may be sold include:
o a block trade (which may involve crosses) in which the broker or
dealer so engaged will attempt to sell the securities as agent but may
position and resell a portion of the block as principal to facilitate
the transaction;
o purchases by a broker or dealer as principal and resale by such broker
or dealer for its own account pursuant to this prospectus;
o exchange distributions and/or secondary distributions in accordance
with the rules of NASDAQ;
o ordinary brokerage transactions and transactions in which the broker
solicits purchasers; and
o privately negotiated transactions.
We have agreed to register the shares for sale under the Securities Act and
to indemnify the selling stockholders and each person who participates as an
underwriter in the offering of the shares, against certain civil liabilities,
including certain liabilities under the Securities Act.
There can be no assurances that the selling stockholders will sell any or
all of the shares offered under this prospectus.
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<PAGE> 6
LEGAL MATTERS
The validity of the shares offered by this prospectus has been passed upon
by Vinson & Elkins L.L.P., Houston, Texas.
EXPERTS
The consolidated financial statements and schedule incorporated by
reference in this prospectus and elsewhere in the registration statement have
been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their reports with respect thereto, and are included herein in
reliance upon the authority of said firm as experts in giving said reports.
Ernst & Young LLP, independent auditors, have audited the consolidated
financial statements of Boole & Babbage, Inc., ("Boole & Babbage") included in
our Annual Report on Form 10-K for the year ended March 31, 1999 (which
financial statements are not presented separately therein) as set forth in their
report, which is incorporated by reference in this prospectus and elsewhere in
the registration statement. Boole & Babbage's financial statements are
incorporated by reference in reliance on Ernst & Young LLP's report, given on
their authority as experts in accounting and auditing.
The report on the financial statements of MAXM Systems, Inc. for the year
ended September 30, 1996, incorporated by reference in this prospectus, have
been so incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the registration of the shares of common
stock covered by this prospectus are set forth in the following table. All
amounts except the registration fee are estimated.
<TABLE>
<S> <C>
Registration Fee (Securities and Exchange Commission) .......... $18,732
Accountant's Fees and Expenses ................................. 6,000
Legal Fees and Expenses ........................................ 15,000
Printing Expenses .............................................. 1,000
Miscellaneous .................................................. 268
-------
Total........................................................... $41,000
=======
</TABLE>
We will bear the expenses of registration of the shares of common stock
covered by this prospectus; the selling stockholders will not bear any of such
expenses.
ITEM 15. 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 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
II-1
<PAGE> 8
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.
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<PAGE> 9
ITEM 16. EXHIBITS.
<TABLE>
<S> <C> <C>
* 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
*** 5.1 - Opinion of Vinson & Elkins L.L.P.
***23.1 - Consent of Arthur Andersen LLP
***23.2 - Consent of Ernst & Young LLP
***23.3 - Consent of PricewaterhouseCoopers LLP
***23.4 - 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)
</TABLE>
- ----------
* 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.
*** Filed herewith.
ITEM 17. 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.
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<PAGE> 10
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.
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<PAGE> 11
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-3 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 5th day of May, 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 May 5, 2000
- ---------------------------------- and Chief Executive Officer
Max P. Watson Jr.
/s/ WILLIAM M. AUSTIN Senior Vice President and Chief May 5, 2000
- ---------------------------------- Financial Officer
William M. Austin (Principal Financial Officer)
/s/ JOHN W. COX Vice President May 5, 2000
- ---------------------------------- (Principal Accounting Officer)
John W. Cox
- ---------------------------------- Director
John W. Barter
/s/ B. GARLAND CUPP Director May 5, 2000
- ----------------------------------
B. Garland Cupp
/s/ MELDON K. GAFNER Director May 5, 2000
- ----------------------------------
Meldon K. Gafner
</TABLE>
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<PAGE> 12
<TABLE>
<S> <C> <C>
Director
- ----------------------------------
Lew W. Gray
/s/ GEORGE F. RAYMOND Director May 5, 2000
- ----------------------------------
George F. Raymond
/s/ TOM C. TINSLEY Director May 5, 2000
- ----------------------------------
Tom C. Tinsley
</TABLE>
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<PAGE> 13
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBITS DESCRIPTION
-------- -----------
<S> <C>
* 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
*** 5.1 - Opinion of Vinson & Elkins L.L.P.
***23.1 - Consent of Arthur Andersen LLP
***23.2 - Consent of Ernst & Young LLP
***23.3 - Consent of PricewaterhouseCoopers LLP
***23.4 - 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)
</TABLE>
- ----------
* 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.
*** Filed herewith.
<PAGE> 1
EXHIBITS 5.1 AND 23.4
May 5, 2000
BMC Software, Inc.
2101 CityWest Boulevard
Houston, Texas 77042-2827
Ladies and Gentlemen:
We have acted as counsel to BMC Software, Inc., a Delaware corporation
(the "Company"), in connection with the preparation of the Company's
Registration Statement on Form S-3 as filed by the Company with the Securities
and Exchange Commission pursuant to the Securities Act of 1933, as amended (the
"Registration Statement"), which Registration Statement relates to the proposed
offer and sale by the persons named as Selling Stockholders in the Registration
Statement (the "Selling Stockholders") of an aggregate of up to 1,582,415
shares of the Company's common stock, $0.01 par value (the "Shares"). In such
connection, we are passing on certain legal matters in connection with the
issuance of the Shares. At your request, this opinion is being furnished to you
for filing as an exhibit to the Registration Statement.
In connection with rendering this opinion, we have examined such
certificates, instruments and documents and reviewed such questions of law as
we have considered necessary or appropriate for the purposes of this opinion.
In addition, we have relied as to factual matters on certificates of certain
public officials and officers of the Company.
Based upon the foregoing examination and review, we are of the opinion
that the Shares have been validly authorized for issuance and have been validly
issued and are fully paid and non-assessable.
This opinion is rendered as of the effective date of the Registration
Statement. We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our name in the Registration
Statement. In giving this consent, however, we do not hereby admit that we are
within the category of persons whose consent is required under Section 7 of the
Securities Act of 1933 and the rules and regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
VINSON & ELKINS L.L.P.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our reports dated April 27, 1999
included in BMC Software, Inc.'s Form 10-K for the year ended March 31, 1999
and to all references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Houston, Texas
May 4, 2000
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and the related Prospectus of BMC Software,
Inc. for the registration of 1,582,415 shares of its common stock and to the use
of our report dated October 21, 1998, with respect to the financial statements
of Boole & Babbage, Inc., included in the Annual Report (Form 10-K) of BMC
Software, Inc., for the year ended March 31, 1999 (which financial statements
are not presented separately therein), filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
San Jose, California
May 4, 2000
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EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-3 of BMC Software, Inc., of our report, dated
April 10, 1997, on our audit of the financial statements of MAXM Systems, Inc.
for the year ended September 30, 1996, as included in the Current Report on
Form 8-K/A for Boole & Babbage, Inc. dated April 22, 1997 (File No. 000-13258),
which report is included in the March 31, 1999 BMC Software, Inc. and
Subsidiaries Form 10-K. We also consent to the reference to us under the
heading "Experts" in such Registration Statement.
PricewaterhouseCoopers LLP
McLean, Virginia
May 4, 2000
