-----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, FgOc+gS4D5OtsSf1i39r5fcMYa1IEvKyfaQP52YjE5zCJE6Ac3Dh5uvjC7Oc8StI 7ieqXbjO17IS8Ee1C+zwTw== 0000950129-02-005282.txt : 20021030 0000950129-02-005282.hdr.sgml : 20021030 20021030165251 ACCESSION NUMBER: 0000950129-02-005282 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20021030 EFFECTIVENESS DATE: 20021030 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: 333-100860 FILM NUMBER: 02803450 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 h00769sv8.txt BMC SOFTWARE,INC.- 1996 EMPLOYEE STOCK PURCHASE AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 30, 2002 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 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 VINSON & ELKINS L.L.P. 1001 FANNIN, SUITE 2300 HOUSTON, TEXAS 77002-6760 (713) 758-2222 CALCULATION OF REGISTRATION FEE
===================================================================================================================== PROPOSED PROPOSED MAXIMUM AMOUNT OF TITLE OF EACH CLASS OF AMOUNT TO BE MAXIMUM OFFERING AGGREGATE REGISTRATION SECURITIES TO BE REGISTERED REGISTERED PRICE PER SHARE(1) OFFERING PRICE(1) FEE - --------------------------------------------------------------------------------------------------------------------- Common Stock, par value $0.01 per share(2)...................... 3,000,000 shares $14.185 $42,555,000 $3,915 =====================================================================================================================
(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 New York Stock Exchange on October 29, 2002. (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 stock and Registration Statement No. 333-54022 relates to 2,000,000 shares of our common stock (collectively, 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 Statements 333-05869 and 333-54022. The Registrant hereby incorporates by reference into this Registration Statement on Form S-8 in its entirety Registration Statement Nos. 333-05869 and 333-54022, 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 Statements. ITEM 8. EXHIBITS. 5.1 Opinion of Vinson & Elkins L.L.P. 23.1 Consent of Ernst & Young LLP 23.2 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) Certain of the financial statements incorporated by reference in this Registration Statement have been audited by Arthur Andersen LLP, independent public accountants, as indicated in their report with respect thereto, and are incorporated by reference herein in reliance upon the authority of said firm as experts in accounting and auditing in giving said report. Arthur Andersen LLP has not consented to the inclusion of their report in this Registration Statement, and the Company has not obtained their consent to do so in reliance upon Rule 437a of the Securities Act of 1933 (the "Securities Act"). Because Arthur Andersen LLP has not consented to the inclusion of their report in this prospectus, participants in the BMC Software, Inc. 1996 Employee Stock Purchase Plan will not be able to recover against Arthur Andersen LLP under Section 11(a) of the Securities Act for any untrue statements of a material fact contained in the financial statements audited by Arthur Anderson LLP or any omissions to state a material fact required to be stated therein. 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 30th day of October, 2002. BMC SOFTWARE, INC. By: /s/ ROBERT H. WHILDEN, JR. -------------------------- Robert H. Whilden, Jr. Senior Vice President, General Counsel and Secretary 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 October 23, 2002 - -------------------------------- B. Garland Cupp /s/ Robert E. Beauchamp President and Chief Executive Officer and Director October 30, 2002 - -------------------------------- Robert E. Beauchamp October 30, 2002 /s/ John W. Cox Vice President, Chief Financial Officer and Chief - -------------------------------- Accounting Officer John W. Cox October 23, 2002 /s/ Jon E. Barfield Director - -------------------------------- Jon E. Barfield /s/ John W. Barter Director October 23, 2002 - -------------------------------- John W. Barter /s/ Meldon K. Gafner Director October 22, 2002 - -------------------------------- Meldon K. Gafner /s/ L.W. Gray Director October 22, 2002 - -------------------------------- L.W. Gray /s/ George F. Raymond Director October 23, 2002 - -------------------------------- George F. Raymond /s/ Tom C. Tinsley Director October 28, 2002 - -------------------------------- Tom C. Tinsley
INDEX TO EXHIBITS
5.1 Opinion of Vinson & Elkins L.L.P. 23.1 Consent of Ernst & Young LLP 23.2 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 3 h00769exv5w1.txt OPINION OF VINSON & ELKINS L.L.P. EXHIBIT 5.1 VINSON & ELKINS 2300 FIRST CITY TOWER 1001 FANNIN STREET HOUSTON, TEXAS 77002-6760 (713) 758-2222 October 30, 2002 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 3,000,000 shares of common stock, par value $.01 per share, of the Company (the "Common Stock") pursuant to the BMC Software, Inc. 1996 Employee Stock Purchase Plan (the "Plan"). The shares of Common Stock that are to be issued under the Plan are collectively referred to herein as the "Shares." In connection with the foregoing, we have examined or are familiar with the Certificate of Incorporation of the Company, as amended, the Bylaws of the Company, the corporate proceedings with respect to the issuance of the Shares, 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, as applicable, will be validly issued and are fully paid and non-assessable. The foregoing opinion is limited to the laws of the United States of America and the State of Texas, the Constitution of the State of Delaware and the General Corporation Law of the State of Delaware, as interpreted by federal courts and the courts of the State of Delaware. 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. EX-23.1 4 h00769exv23w1.txt CONSENT OF ERNST & YOUNG LLP EXHIBIT 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in this Registration Statement on Form S-8 of BMC Software, Inc. pertaining to the BMC Software, Inc. 1996 Employee Stock Purchase Plan of our reports dated May 3, 2002, with respect to the consolidated financial statements and schedule of BMC Software, Inc. included in its Annual Report (Form 10-K) for the year ended March 31, 2002, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Houston, Texas October 30, 2002 -----END PRIVACY-ENHANCED MESSAGE-----