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