-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, GoKFaysrs5u533JKbMuw5q6cmaUA+xThIaWdJpJ+mlJQnzwynUTWqsynROc8NbT8 0UPK2MOlY2FZi6iZuEsR7g== 0000950129-01-000261.txt : 20010123 0000950129-01-000261.hdr.sgml : 20010123 ACCESSION NUMBER: 0000950129-01-000261 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20010119 EFFECTIVENESS DATE: 20010119 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BMC SOFTWARE INC CENTRAL INDEX KEY: 0000835729 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 742126120 STATE OF INCORPORATION: DE FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-54022 FILM NUMBER: 1511962 BUSINESS ADDRESS: STREET 1: 2101 CITYWEST BLVD CITY: HOUSTON STATE: TX ZIP: 77042-2827 BUSINESS PHONE: 7139188800 MAIL ADDRESS: STREET 1: 2101 CITYWEST BLVD CITY: HOUSTON STATE: TX ZIP: 77042-2827 S-8 1 h83449s-8.txt BMC SOFTWARE INC 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 19, 2001 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. 1996 EMPLOYEE STOCK PURCHASE PLAN (Full title of the plan) ROBERT H. WHILDEN, JR. SENIOR VICE PRESIDENT AND GENERAL COUNSEL 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
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 - ------------------------------- ---------------- -------------------- ------------------ ---------------- Common Stock, par value $0.01 per share(2) .............. 2,000,000 shares $ 26.3750 $ 52,750,000 $ 13,188
(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 January 12, 2001. (2) Each share of common stock includes Rights under our Rights Agreement, which Rights are attached to and trade with our common stock. Registration Statement No. 333-05869 relates to 1,000,000 shares (as adjusted for stock splits) of our common stock (the "Previously Registered Securities"). This Registration Statement registers additional securities for offering pursuant to General Instruction E of Form S-8 under the Securities Act of 1933, as amended, to the total amount of Previously Registered Securities registered on Registration Statement 333-05869. The Registrant hereby incorporates by reference into this Registration Statement on Form S-8 in its entirety the Registration Statement No. 333-05869, including each of the documents filed by the Registrant with the Securities and Exchange Commission and incorporated or deemed to be incorporated by reference therein and including each of the documents filed as Exhibits to such Registration Statement. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 8. EXHIBITS. 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) 3 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 19th day of January, 2001. BMC SOFTWARE, INC. By: /s/ Robert H. Whilden, Jr. -------------------------- Robert H. Whilden, Jr. Senior Vice President and General Counsel POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert H. Whilden, Jr. and Christopher C. Chaffin, 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.
SIGNATURE TITLE DATE --------- ----- ---- /s/ Max P. Watson Jr. Chairman of the Board January 19, 2001 - ----------------------------------------- Max P. Watson Jr. /s/ Robert E. Beauchamp President, Chief Executive Officer January 19, 2001 - ----------------------------------------- and Director Robert E. Beauchamp /s/ William M. Austin Senior Vice President and Chief January 19, 2001 - ----------------------------------------- Financial Officer William M. Austin (Principal Financial Officer) /s/ John W. Cox Vice President January 19, 2001 - ----------------------------------------- (Principal Accounting Officer) John W. Cox /s/ John W. Barter Director January 19, 2001 - ----------------------------------------- John W. Barter /s/ B. Garland Cupp Director January 19, 2001 - ----------------------------------------- B. Garland Cupp /s/ Meldon K. Gafner Director January 19, 2001 - ----------------------------------------- Meldon K. Gafner /s/ Lew W. Gray Director January 19, 2001 - ----------------------------------------- Lew W. Gray /s/ George F. Raymond Director January 19, 2001 - ----------------------------------------- George F. Raymond /s/ Tom C. Tinsley Director January 19, 2001 - ----------------------------------------- Tom C. Tinsley
II-2 4 EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION - ------- ----------- 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)
EX-5.1 2 h83449ex5-1.txt OPINION OF VINSON & ELKINS L.L.P. 1 EXHIBITS 5.1 AND 23.3 January 19, 2001 BMC Software, Inc. 2101 CityWest Boulevard Houston, Texas 77042-2827 Ladies and Gentlemen: We have acted as counsel for BMC Software, Inc., a Delaware corporation (the "Company"), with respect to certain legal matters in connection with the registration by the Company under the Securities Act of 1933, as amended (the "Securities Act"), of the offer and sale of up to 2,000,000 shares (the "Shares") of common stock, par value $.01 per share, pursuant to the BMC Software, Inc. 1996 Employee Stock Purchase Plan, as amended (the "Plan"). In connection with the foregoing, we have examined or are familiar with the Certificate of Incorporation of the Company, the Bylaws of the Company, the corporate proceedings with respect to the registration of the Shares, and the Registration Statement on Form S-8 filed in connection with the registration of the Shares (the "Registration Statement"), and such other certificates, instruments and documents as we have considered necessary or appropriate for purposes of this opinion. Based upon the foregoing, we are of the opinion that the Shares have been duly authorized and, when the Shares are issued in accordance with the provisions of the Plan, will be validly issued, fully paid and non-assessable. The foregoing opinion is limited to the laws of the United States of America and the State of Texas and to the General Corporation Law of the State of Delaware. For purposes of this opinion, we assume that the Shares will be issued in compliance with all applicable state securities or Blue Sky laws. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act and the rules and regulations thereunder. Very truly yours, VINSON & ELKINS L.L.P. EX-23.1 3 h83449ex23-1.txt CONSENT OF ARTHUR ANDERSEN LLP 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 28, 2000 included in BMC Software, Inc.'s Form 10-K for the year ended March 31, 2000 and to all references to our Firm included in this registration statement. ARTHUR ANDERSEN LLP Houston, Texas January 19, 2001 EX-23.2 4 h83449ex23-2.txt CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS 1 EXHIBIT 23.2 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to the 1996 Employee Stock Purchase Plan of BMC Software, Inc. of our report dated October 21, 1998, with respect to the consolidated financial statements of Boole & Babbage, Inc., included in the BMC Software, Inc. Annual Report on Form 10-K for the year ended March 31, 2000 (which financial statements are not presented separately therein), filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP San Jose, California January 19, 2001 -----END PRIVACY-ENHANCED MESSAGE-----