-----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, Mkld5A6xlroZm5aTxZN+J/kw1agvZ7Fx34nXsrFUTTX142TwWxUHh9d8MIvJON9z gehS4z/LcIi5Co4LHRHK+w== 0000950129-01-504126.txt : 20020411 0000950129-01-504126.hdr.sgml : 20020411 ACCESSION NUMBER: 0000950129-01-504126 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20011115 EFFECTIVENESS DATE: 20011115 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: 1933 Act SEC FILE NUMBER: 333-73388 FILM NUMBER: 1792286 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 h92346s-8.txt BMC SOFTWARE, INC. AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 15, 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. 2000 EMPLOYEE STOCK INCENTIVE PLAN (Full title of the plans) 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 PROPOSED MAXIMUM TITLE OF EACH CLASS OF AMOUNT TO BE MAXIMUM OFFERING AGGREGATE AMOUNT OF SECURITIES TO BE REGISTERED REGISTERED(1) PRICE PER SHARE(2) OFFERING PRICE(2) REGISTRATION FEE - ----------------------------------------------------------------------------------------------------------------- Common Stock, par value $0.01 per share (3)......... 10,000,000 shares $15.125 $151,250,000 $37,813 =================================================================================================================
(1) Under General Instruction E of Form S-8, this Registration Statement registers an additional 10,000,000 shares of Common Stock to be issued under the BMC Software, Inc. 2000 Employee Stock Incentive Plan (the "Plan"). A Registration Statement (File No. 333-44546) was previously filed with the Securities and Exchange Commission on August 25, 2000 covering 12,000,000 shares of Common Stock to be issued under the Plan. (2) 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 New York Stock Exchange on November 12, 2001 ($15.125 per share). (3) Each share of common stock includes Rights under our Rights Agreement, which Rights are attached to and trade with our common stock. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Pursuant to the requirements of General Instruction E of Form S-8, the contents of the Registration Statement on Form S-8 (File No. 333-44546) of BMC Software, Inc. (the "Company") are hereby incorporated by reference herein, including each of the documents filed by the Company 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. ITEM 8. EXHIBITS. 5.1 -- Opinion of Vinson & Elkins L.L.P. 23.1 -- Consent of Arthur Andersen 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) 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 14th day of November, 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/ B. GARLAND CUPP Chairman of the Board November 14, 2001 - --------------------------------- B. Garland Cupp /s/ ROBERT E. BEAUCHAMP President, Chief Executive Officer November 14, 2001 - --------------------------------- and Director Robert E. Beauchamp /s/ JOHN W. COX Vice President, Chief Financial Officer November 14, 2001 - --------------------------------- and Chief Accounting Officer John W. Cox (Principal Financial and Accounting Officer) /s/ JON E. BARFIELD Director November 14, 2001 - --------------------------------- Jon E. Barfield /s/ JOHN W. BARTER Director November 14, 2001 - --------------------------------- John W. Barter /s/ MELDON K. GAFNER Director November 14, 2001 - --------------------------------- Meldon K. Gafner /s/ LEW W. GRAY Director November 14, 2001 - --------------------------------- Lew W. Gray
II-2 - --------------------------------- Director George F. Raymond /s/ TOM C. TINSLEY Director November 14, 2001 - --------------------------------- Tom C. Tinsley
II-3 INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION ------- ----------- 5.1 -- Opinion of Vinson & Elkins L.L.P. 23.1 -- Consent of Arthur Andersen 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)
II-4 EX-5.1 3 h92346ex5-1.txt OPINION OF VINSON & ELKINS L.L.P. EXHIBIT 5.1 [VINSON & ELKINS L.L.P. LETTERHEAD] November 12, 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 10,000,000 shares (the "Shares") of common stock, par value $.01 per share, of the Company pursuant to the BMC Software, Inc. 2000 Employee Stock Incentive Plan (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 issued in accordance with 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, /s/ VINSON & ELKINS L.L.P. VINSON & ELKINS L.L.P. EX-23.1 4 h92346ex23-1.txt CONSENT OF ARTHUR ANDERSEN LLP 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 June 8, 2001 included in BMC Software, Inc.'s Form 10-K for the year ended March 31, 2001 and to all references to our Firm included in this registration statement. ARTHUR ANDERSEN LLP Houston, Texas November 12, 2001 -----END PRIVACY-ENHANCED MESSAGE-----