-----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, DhbTUsmlomiQciO2XrdeQgODYZp+228/diFB2tPubTZ4pmSPZHR6OeibF0S1Z9S0 XIxdsrYN2CUDB8E234HsHA== 0000950129-02-004787.txt : 20020930 0000950129-02-004787.hdr.sgml : 20020930 20020930162407 ACCESSION NUMBER: 0000950129-02-004787 CONFORMED SUBMISSION TYPE: SC TO-I/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20020930 SUBJECT COMPANY: 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: SC TO-I/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-40115 FILM NUMBER: 02776677 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 FILED BY: 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: SC TO-I/A 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 SC TO-I/A 1 h99965a1sctoviza.txt BMC SOFTWARE, INC.- AMENDMENT NO.1 As filed with the Securities and Exchange Commission on September 30, 2002 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------------------ SCHEDULE TO (RULE 13e-4) TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1) OF THE SECURITIES EXCHANGE ACT OF 1934 (Amendment No. 1) ------------------------------------ BMC SOFTWARE, INC. (Name of Subject Company (Issuer)) ------------------------------------ BMC SOFTWARE, INC. (Name of Filing Person (Offeror)) Certain Options Under the BMC Software, Inc. 1994 Employee Incentive Plan, as amended, and the BMC Software, Inc. 2000 Employee Stock Incentive Plan, as amended, to Purchase Common Stock, par value $0.01 per share, that have an Exercise Price of $30.00 Per Share or More From Eligible Holders (Title of Class of Securities) 055 407105 (CUSIP Number of Class of Securities) (Underlying Common Stock) Robert H. Whilden, Jr. Senior Vice President and General Counsel BMC Software, Inc. 2101 CityWest Boulevard Houston, Texas 77042-2827 Telephone: (713) 918-8800 ------------------------------------ (Name, Address and Telephone Number of Persons Authorized to Receive Notices and Communications on Behalf of Person Filing Statement) CALCULATION OF FILING FEE
Transaction Valuation* Amount of Filing Fee ---------------------- -------------------- $154,886,000 $14,250**
* CALCULATED SOLELY FOR PURPOSES OF DETERMINING THE FILING FEE. THIS AMOUNT ASSUMES THAT OPTIONS TO PURCHASE 7,362,796 SHARES OF COMMON STOCK OF BMC SOFTWARE, INC. HAVING A WEIGHTED AVERAGE EXERCISE PRICE OF $42.16 AS OF SEPTEMBER 10, 2002 WILL BE EXCHANGED PURSUANT TO THIS OFFER. THE AGGREGATE VALUE OF SUCH OPTIONS WAS CALCULATED USING THE BLACK-SCHOLES OPTION PRICING MODEL. THE AMOUNT OF THE FILING FEE, CALCULATED IN ACCORDANCE WITH RULE 0-11 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, EQUALS .000092 OF ONE PERCENT OF THE VALUE OF THE TRANSACTION. ** PREVIOUSLY PAID [ ] Check box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. Amount Previously Paid: Not applicable. Form or Registration No.: Not applicable. Filing party: Not applicable. Date filed: Not applicable.
[] Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. Check the appropriate boxes below to designate any transactions to which the statement relates: [ ] third party tender offer subject to Rule 14d-1. [X] issuer tender offer subject to Rule 13e-4. [ ] going-private transaction subject to Rule 13e-3. [ ] amendment to Schedule 13D under Rule 13d-2. [ ] Check the following box if the filing is a final amendment reporting the results of the tender offer. [ ] ITEM 10. FINANCIAL STATEMENTS. Item 10 of the Schedule TO is hereby amended and restated as follows: (a) FINANCIAL INFORMATION. The information set forth in the Supplement dated September 30, 2002 to the Offer to Exchange under the paragraph captioned "Financial Information," the information set forth in Items 8 and 14 of the Company's Annual Report on Form 10-K for its fiscal year ended March 31, 2001 and the information set forth in Item 1 of the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 2002 are incorporated herein by reference. See Section 16 of the Offer to Exchange for instructions on how you can obtain copies of our filings with the Securities and Exchange Commission ("SEC"), including filings that contain our financial statements. (b) PRO FORMA INFORMATION. Not applicable. ITEM 12. EXHIBITS. Item 12 of the Schedule TO is hereby amended and restated as follows: (a)(1)(A) Offer to Exchange, dated September 10, 2002* (a)(1)(B) Form of Election to Exchange* (a)(1)(C) Form of E-mail from CEO to Eligible Option Holders* (a)(1)(D) Form of E-mail from Human Resources to Eligible Option Holders* (a)(1)(E) Form of Employee Program Description and Decision Guide* (a)(1)(F) Form of Modeling Tool* (a)(1)(G) Form of Confirmation* (a)(1)(H) BMC Software, Inc. Annual Report on Form 10-K for its fiscal year ended March 31, 2002, previously filed with the SEC and incorporated herein by reference (a)(1)(I) BMC Software, Inc. Quarterly Report on Form 10-Q for its quarter ended June 30, 2002, previously filed with the SEC and incorporated herein by reference (a)(1)(J) BMC Software, Inc. Proxy Statement on Schedule 14A filed with the SEC on July 25, 2002 and incorporated herein by reference (a)(1)(K) Form of Internal Website* (a)(1)(L) Supplement to Offer to Exchange, dated September 30, 2002 (a)(1)(M) Form of Acceptance (a)(1)(N) Form of Reminder (a)(1)(O) Form of Email Accompanying Supplement (a)(1)(P) Addendum to Election to Exchange (included as Annex A to the Supplement to Offer to Exchange dated September 30, 2002) -4- (b) Not applicable (d)(1) BMC Software, Inc. 1994 Employee Incentive Plan (incorporated by reference to Exhibit 10.7(a) to the Company's Annual Report on Form 10-K for the year ended March 31, 1995 (the "1995 10-K")) (d)(2) Form of Option Agreement pursuant to the BMC Software, Inc. 1994 Employee Incentive Plan (incorporated by reference to Exhibit 10.7(b) to the 1995 10-K)) (d)(3) Memorandum to Participants regarding BMC Software, Inc. 1994 Employee Incentive Plan* (d)(4) BMC Software, Inc. 2000 Employee Stock Incentive Plan (incorporated by reference to Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 2003) (d)(5) First Amendment to 2000 Employee Stock Incentive Plan (incorporated by reference to Exhibit 10.4(b) to the Company's Annual Report on Form 10-K for the year ended March 31, 2002 (the "2002 10-K")) (d)(6) Second Amendment to 2000 Employee Stock Incentive Plan (incorporated by reference to Exhibit 10.4(c) to the Company's 2002 10-K) (d)(7) Form of Option Agreement pursuant to the BMC Software, Inc. 2000 Employee Stock Incentive Plan (incorporated by reference to Exhibit 10.4(d) to the Company's 2002 10-K) (d)(8) Memorandum to Participants regarding BMC Software, Inc. 2000 Employee Stock Incentive Plan* (g) Not applicable (h) Not applicable ------------------------- * Previously filed ITEM 13. INFORMATION REQUIRED BY SCHEDULE 13E-3. Not applicable. -5- SIGNATURES AFTER DUE INQUIRY AND TO THE BEST OF MY KNOWLEDGE AND BELIEF, I CERTIFY THAT THE INFORMATION SET FORTH IN THIS AMENDMENT NO. 1 TO SCHEDULE TO IS TRUE, COMPLETE AND CORRECT. Dated: September 30, 2002 BMC SOFTWARE, INC. By: /s/ Robert H. Whilden, Jr. ------------------------------------ Name: Robert H. Whilden, Jr. Title: Senior Vice President and General Counsel -6- EXHIBIT INDEX ITEM 14. EXHIBITS. (a)(1)(A) Offer to Exchange, dated September 10, 2002* (a)(1)(B) Form of Election to Exchange* (a)(1)(C) Form of E-mail from CEO to Eligible Option Holders* (a)(1)(D) Form of E-mail from Human Resources to Eligible Option Holders* (a)(1)(E) Form of Employee Program Description and Decision Guide* (a)(1)(F) Form of Modeling Tool* (a)(1)(G) Form of Confirmation* (a)(1)(H) BMC Software, Inc. Annual Report on Form 10-K for its fiscal year ended March 31, 2002, previously filed with the SEC and incorporated herein by reference (a)(1)(I) BMC Software, Inc. Quarterly Report on Form 10-Q for its quarter ended June 30, 2002, previously filed with the SEC and incorporated herein by reference (a)(1)(J) BMC Software, Inc. Proxy Statement on Schedule 14A filed with the SEC on July 25, 2002 and incorporated herein by reference (a)(1)(K) Form of Internal Website* (a)(1)(L) Supplement to Offer to Exchange dated September 30, 2002 (a)(1)(M) Form of Acceptance (a)(1)(N) Form of Reminder (a)(1)(O) Form of email accompanying Supplement (a)(1)(P) Addendum to Election to Exchange (included as Annex A to the Supplement to Offer to Exchange dated September 30, 2002) (b) Not applicable (d)(1) BMC Software, Inc. 1994 Employee Incentive Plan, as amended (incorporated by reference to Exhibit 10.7(a) to the Company's Annual Report on Form 10-K for the year ended March 31, 1995 (the "1995 10-K")) (d)(2) Form of Option Agreement pursuant to the BMC Software, Inc. 1994 Employee Incentive Plan (incorporated by reference to Exhibit 10.7(b) to the 1995 10-K)) (d)(3) Memorandum to Participants regarding BMC Software, Inc. 1994 Employee Incentive Plan* (d)(4) BMC Software, Inc. 2000 Employee Stock Incentive Plan (incorporated by reference to Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 2003) (d)(5) First Amendment to 2000 Employee Stock Incentive Plan (incorporated by reference to Exhibit 10.4(b) to the Company's Annual Report on Form 10-K for the year ended March 31, 2002 (the "2002 10-K")) (d)(6) Second Amendment to 2000 Employee Stock Incentive Plan (incorporated by reference to Exhibit 10.4(c) to the Company's 2002 10-K) (d)(7) Form of Option Agreement pursuant to the BMC Software, Inc. 2000 Employee Stock Incentive Plan (incorporated by reference to Exhibit 10.4(d) to the Company's 2002 10-K) (d)(8) Memorandum to Participants regarding BMC Software, Inc. 2000 Employee Stock Incentive Plan* (g) Not applicable (h) Not applicable
------------------------- * Previously filed -7- EX-99.A1.L 3 h99965a1exv99wa1wl.txt SUPPLEMENT TO OFFER TO EXCHANGE EXHIBIT (a)(1)(L) SUPPLEMENT DATED SEPTEMBER 30, 2002 TO OFFER TO EXCHANGE DATED SEPTEMBER 10, 2002 BMC SOFTWARE, INC. CITYWEST BOULEVARD HOUSTON, TEXAS 77042-2827 (713) 918-8800 OFFER TO EXCHANGE CERTAIN OUTSTANDING OPTIONS TO PURCHASE BMC SOFTWARE, INC. COMMON STOCK THAT HAVE A PER SHARE EXERCISE PRICE OF $30.00 PER SHARE OR MORE FOR NEW OPTIONS - -------------------------------------------------------------------------------- THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 5:00 P.M., HOUSTON TIME, ON OCTOBER 9, 2002 UNLESS THE OFFER IS EXTENDED. - -------------------------------------------------------------------------------- BMC Software, Inc. ("BMC", "we" or "us") is offering to certain current U.S. employees the right to exchange outstanding options to purchase shares of our common stock granted under the BMC Software, Inc. 1994 Employee Incentive Plan, as amended (the "1994 Plan"), or the BMC Software, Inc. 2000 Employee Stock Incentive Plan, as amended (the "2000 Plan") (the 1994 Plan and the 2000 Plan are sometimes collectively referred to herein as the "stock incentive plans") that have an exercise price of $30.00 per share or more (the "eligible options") for new options we will grant under the stock incentive plans that cover a lesser number of shares. In connection with this offer, you were previously provided with an offer to exchange as well as certain other offering documents, including an election to exchange. This supplement to the offer to exchange provides certain supplemental information regarding BMC and the offer. To the extent that any inconsistencies exist between this supplement and the offer to exchange, this supplement will govern. We are also providing you with an addendum to the election to exchange. The addendum to the election to exchange is described in this supplement under "Addendum to Election to Exchange" and is attached to this supplement as Annex A. If you have not already executed and delivered the election to exchange that was previously delivered to you and you decide to participate in the offer, to validly tender your eligible options pursuant to the offer, you must, in accordance with the terms of the election to exchange, properly complete, duly execute and deliver to us both the election to exchange and the addendum, along with any other required documents. We must receive all of the required documents at 2101 CityWest Boulevard, Houston, Texas 22042-2827, Attn: Linda Caldwell (facsimile: 713-918-2382), before the expiration date. If you have already delivered the election to exchange and have received a confirmation of receipt, you are not required to take any action. However, since the addendum is beneficial to you, you are entitled to execute the addendum and deliver it to Linda Caldwell in accordance with the instructions described above, in which case your election to exchange will be amended as provided in the addendum. Shares of our common stock are listed on the New York Stock Exchange under the symbol "BMC." On September 27, 2002, the last reported sales price during regular business hours of our common stock on the New York Stock Exchange was $13.36 per share. We recommend that you obtain current market quotations for our common stock before deciding whether or not to exchange your eligible options. You should direct questions about the offer or requests for assistance or for additional or paper copies of the offer to exchange, this supplement or the election to exchange by email at compensation@bmc.com. IMPORTANT We have not authorized any person to make any recommendation on our behalf as to whether you should elect to exchange or refrain from exchanging your eligible options pursuant to the offer. You should rely only on the information contained in this document or to which we have referred you. We have not authorized anyone to give you any information or to make any representation in connection with the offer other than the information and representations contained in this document or in the election to exchange. If anyone makes any recommendation or representation to you or gives you any additional information, you should not rely upon that recommendation, representation or information as having been authorized by us. NEITHER THIS SUPPLEMENT NOR THE OFFER TO EXCHANGE HAS BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION (THE "SEC") OR ANY STATE SECURITIES COMMISSION NOR HAS THE SEC OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THE INFORMATION CONTAINED IN THIS SUPPLEMENT OR THE OFFER TO EXCHANGE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. TABLE OF CONTENTS
PAGE INTRODUCTION......................................................................................................1 FINANCIAL INFORMATION.............................................................................................1 ADDENDUM TO ELECTION TO EXCHANGE..................................................................................4 FORWARD LOOKING INFORMATION.......................................................................................4
INTRODUCTION The following information amends and supplements our offer to exchange dated September 10, 2002. Except to the extent expressly set forth in this supplement, this supplement dos not alter the terms and conditions previously set forth in the offer to exchange, and should be read in conjunction with the offer to exchange. FINANCIAL INFORMATION The following tables set forth selected financial data of BMC. The selected historical statement of operations data for the years ended March 31, 2001 and 2002 and the selected historical balance sheet data as of March 31, 2001 and 2002 have been derived from the audited financial statements included in our annual report on Form 10-K for the year ended March 31, 2002. The selected historical statement of operations data for the three months ended June 30, 2000, 2001 and 2002 and the selected historical balance sheet data as of June 30, 2002, which are included in our quarterly report on Form 10-Q for the quarter ended June 30, 2002, are unaudited, but include, in the opinion of management, all adjustments, consisting only of normal recurring adjustments, necessary for a fair presentation of such data. The information presented below should be read together with our financial statements and related notes. 1 BMC SOFTWARE, INC. AND SUBSIDIARIES CONDENSED CONSOLIDATED BALANCE SHEETS (IN MILLIONS)
ASSETS MARCH 31, JUNE 30, 2001 2002 2002 ----------- ----------- ----------- Current assets: Cash and cash equivalents .................................... $ 146.0 $ 330.0 $ 544.0 Marketable securities ........................................ 144.7 215.8 217.2 Trade accounts receivable, net ............................... 292.6 182.6 136.3 Trade finance receivables, current ........................... 213.5 129.9 130.3 Income taxes receivable ...................................... 8.3 70.1 69.3 Other current assets ......................................... 97.6 68.4 112.7 ----------- ----------- ----------- Total current assets ................................... 902.7 996.8 1,209.8 Property and equipment, net ..................................... 456.5 443.0 429.2 Software development costs and related assets, net .............. 242.7 211.8 206.5 Long-term marketable securities ................................. 713.3 557.9 488.8 Long-term finance receivables ................................... 236.3 176.3 145.2 Acquired technology, net ........................................ 95.3 50.2 40.4 Goodwill, and other intangible assets, net ...................... 317.6 133.6 132.4 Other long-term assets .......................................... 69.5 106.6 107.1 ----------- ----------- ----------- $ 3,033.9 $ 2,676.2 $ 2,759.4 =========== =========== =========== LIABILITIES AND STOCKHOLDERS' EQUITY Current liabilities: Trade accounts payable ....................................... $ 22.1 $ 16.2 $ 35.9 Accrued liabilities .......................................... 182.3 204.2 186.3 Short-term borrowings ........................................ 150.0 -- -- Current portion of deferred revenue .......................... 474.6 460.2 475.2 ----------- ----------- ----------- Total current liabilities .............................. 829.0 680.6 697.4 Long-term deferred revenue ...................................... 382.8 483.1 570.8 Other long-term liabilities ..................................... 6.8 5.9 13.8 ----------- ----------- ----------- Total liabilities ...................................... 1,218.6 1,169.6 1,282.0 Commitments and contingencies Stockholders' equity: Preferred stock .............................................. -- -- -- Common stock ................................................. 2.5 2.5 2.5 Additional paid-in capital ................................... 530.9 536.9 536.9 Retained earnings ............................................ 1,336.2 1,126.6 1,106.9 Accumulated other comprehensive loss ......................... (9.8) (18.8) (27.7) ----------- ----------- ----------- 1,859.8 1,647.2 1,618.6 Less treasury stock, at cost ................................. (20.9) (135.2) (137.1) Less unearned portion of restricted stock compensation ....... (23.6) (5.4) (4.1) ----------- ----------- ----------- Total stockholders' equity ............................. 1,815.3 1,506.6 1,477.4 ----------- ----------- ----------- $ 3,033.9 $ 2,676.2 $ 2,759.4 =========== =========== ===========
2 BMC SOFTWARE, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF OPERATIONS AND COMPREHENSIVE INCOME (LOSS)
THREE MONTHS YEARS ENDED MARCH 31, ENDED JUNE 30, ----------------------------------------- -------------------------- 2000 2001 2002 2001 2002 ----------- ----------- ----------- ----------- ----------- (IN MILLIONS, EXCEPT PER SHARE DATA) Revenues: License ...................................... $ 1,180.2 $ 892.2 $ 625.0 $ 180.0 $ 136.0 Maintenance .................................. 485.7 524.1 575.8 139.3 149.7 Professional services ........................ 53.3 93.3 88.1 21.7 19.5 ----------- ----------- ----------- ----------- ----------- Total revenues ............................. 1,719.2 1,509.6 1,288.9 341.0 305.2 ----------- ----------- ----------- ----------- ----------- Selling and marketing expenses ................... 559.7 600.7 538.8 152.8 119.5 Research and development expenses ................ 390.4 442.6 479.2 113.0 118.2 Cost of professional services .................... 74.1 101.1 95.3 26.9 21.4 General and administrative expenses .............. 135.1 165.5 151.7 41.9 36.0 Acquired research and development ................ 80.8 21.4 -- -- -- Amortization and impairment of acquired technology, goodwill and intangibles .......... 139.1 178.2 241.8 48.2 12.4 Restructuring and severance costs ................ -- -- 52.9 12.0 (0.1) Legal settlement ................................. 55.4 -- -- -- -- Merger-related costs and compensation charges .... 14.1 8.6 12.8 2.7 0.6 ----------- ----------- ----------- ----------- ----------- Total operating expenses ................... 1,448.7 1,518.1 1,572.5 397.5 308.0 ----------- ----------- ----------- ----------- ----------- Operating income (loss) .................... 270.5 (8.5) (283.6) (56.5) (2.8) Interest and other income, net ................... 62.6 79.4 62.3 16.4 15.8 Interest expense ................................. (23.4) (11.3) (0.4) (0.4) -- Gain (loss) on marketable securities ............. 1.7 0.8 (8.8) (7.4) (6.3) ----------- ----------- ----------- ----------- ----------- Other income, net .......................... 40.9 68.9 53.1 8.6 9.5 ----------- ----------- ----------- ----------- ----------- Earnings (loss) before income taxes ........ 311.4 60.4 (230.5) (47.9) 6.7 Income tax provision (benefit).................... 68.9 18.0 (46.4) (13.4) 1.5 ----------- ----------- ----------- ----------- ----------- Net earnings (loss) ........................ $ 242.5 $ 42.4 $ (184.1) $ (34.5) $ 5.2 =========== =========== =========== =========== =========== Basic earnings (loss) per share .................. $ 1.01 $ 0.17 $ (0.75) $ (0.14) 0.02 =========== =========== =========== =========== =========== Diluted earnings (loss ) per share ............... $ 0.96 $ 0.17 $ (0.75) $ (0.14) $ 0.02 =========== =========== =========== =========== =========== Shares used in computing basic earnings (loss) per share .............................. 241.0 245.4 245.0 247.3 240.9 =========== =========== =========== =========== =========== Shares used in computing diluted earnings (loss) per share .............................. 253.0 252.5 245.0 247.3 242.5 =========== =========== =========== =========== =========== Comprehensive income (loss): Net earnings (loss) .......................... $ 242.5 $ 42.4 $ (184.1) $ (34.5) $ 5.2 Foreign currency translation adjustment ...... 5.1 (1.9) (9.5) 0.2 (7.4) Unrealized gain (loss) on securities available for sale: Unrealized gain (loss), net of taxes of $0.5, $1.0, $0.6, $0.1 and $0.1 ....... (7.7) (1.9) 1.1 0.2 0.2 Realized (gain) loss included in net earnings (loss), net of taxes of $0.4, $0.3, $1.0, $2.6 and $0.5 .......... (1.3) (0.5) 1.9 4.8 1.0 Elimination of unrealized gain on New Dimension shares in purchase accounting, net of taxes of $8.5 $--, $--, $-- and $-- .................... (12.7) -- -- -- -- ----------- ----------- ----------- ----------- ----------- (21.7) (2.4) 3.0 5.0 1.2 Unrealized gain on derivative instruments: Unrealized gain (loss), net of taxes of $7.8, $6.3, $0.6, $1.5 and $2.1 ............ 14.5 11.6 1.0 2.8 (3.9)
3
THREE MONTHS YEARS ENDED MARCH 31, ENDED JUNE 30, ----------------------------------------- -------------------------- 2000 2001 2002 2001 2002 ----------- ----------- ----------- ----------- ----------- Realized (gain) loss included in net earnings (loss), net of taxes of $5.4, $7.4, $1.9, $0.8 and $0.6 .......... (10.1) (13.7) (3.5) (1.4) 1.2 ----------- ----------- ----------- ----------- ----------- 4.4 (2.1) (2.5) 1.4 (2.7) ----------- ----------- ----------- ----------- ----------- Comprehensive income (loss) ................ $ 230.3 $ 36.0 $ (193.1) $ (27.9) $ (3.7) =========== =========== =========== =========== ===========
ADDENDUM TO ELECTION TO EXCHANGE You have previously been delivered an election to exchange. Attached as Annex A to this supplement is an addendum to the election to exchange. The addendum amends the election to exchange by deleting the following sentence from page 3 of the election to exchange: "I have read, understand and agree to all of the terms and conditions of the Offer" and replaces it with the following sentence: "I agree to all of the terms and conditions of the Offer." If you have not already executed and delivered the election to exchange that was previously delivered to you and you decide to participate in the offer, to validly tender your eligible options pursuant to the offer, you must, in accordance with the terms of the election to exchange, properly complete, duly execute and deliver to us both the election to exchange and the addendum, along with any other required documents. We must receive all of the required documents at 2101 CityWest Boulevard, Houston, Texas 22042-2827, Attn: Linda Caldwell (facsimile: 713-918-2382), before the expiration date. If you have already delivered the election to exchange and have received a confirmation of receipt, you are not required to take any action. However, since the addendum is beneficial to you, you are entitled to execute the addendum and deliver it to Linda Caldwell in accordance with the instructions described above, in which case your election to exchange will be amended as provided in the addendum. FORWARD LOOKING INFORMATION The first paragraph under Section 17 of the offer to exchange is amended and restated in its entirety to read as follows: "This offer to exchange and our SEC reports referred to above contain forward-looking statements, which are identified by the use of the words "believe," "expect," "anticipate," "will," "contemplate," "would," and similar expressions that contemplate future events. Numerous important factors, risks and uncertainties affect our operating results, including, without limitation, those contained in this report, and could cause our actual results to differ materially form the results implied by these or any other forward-looking statements made by us or on our behalf. There can be no assurance that future results will meet expectations. You should also carefully review the cautionary statements described in the other documents we file from time to time with the SEC, specifically all Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K." 4 ANNEX A ADDENDUM TO ELECTION TO EXCHANGE OPTIONS TO PURCHASE SHARES OF COMMON STOCK THAT HAVE AN EXERCISE PRICE OF $30.00 OR MORE AND ARE HELD BY CERTAIN OPTION HOLDERS FOR NEW OPTIONS UNDER THE BMC SOFTWARE, INC. 1994 EMPLOYEE INCENTIVE PLAN OR THE BMC SOFTWARE, INC. 2000 EMPLOYEE STOCK INCENTIVE PLAN PURSUANT TO THE OFFER TO EXCHANGE DATED SEPTEMBER 10, 2002 THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 5:00 P.M., HOUSTON TIME, ON OCTOBER 9, 2002, UNLESS THE OFFER IS EXTENDED To: Linda Caldwell BMC Software, Inc. 2101 CityWest Boulevard Houston, Texas 77042-2827 Facsimile: (713) 918-2382 Reference is made to that certain Election to Exchange in respect of the offer made by BMC Software, Inc. pursuant to the Offer to Exchange dated September 10, 2002, as further supplemented (the "Election to Exchange"), which I have executed and delivered on or prior to the date of this Addendum. At the request and with the consent of BMC Software, Inc., I hereby amend the Election to Exchange to delete the final sentence on page 3 of the Election to Exchange, which reads as follows: "I have read, understand and agree to all of the terms and conditions of the Offer" and replace it with the following sentence: "I agree to all of the terms and conditions of the Offer." HOLDER PLEASE SIGN HERE You must complete and sign the following exactly as your name appears on the option agreement or agreements evidencing the Eligible Options you are tendering. SIGNATURE OF OWNER x --------------------------------------------------------- (Signature of Eligible Holder) Date: , 2002 ------------------- NAME: EMPLOYEE ID: 5 EX-99.A1.M 4 h99965a1exv99wa1wm.txt FORM OF ACCEPTANCE EXHIBIT (a)(1)(M) BMC SOFTWARE, INC. CITYWEST BOULEVARD HOUSTON, TEXAS 77042-2827 (713) 918-8800 ACCEPTANCE OF ELECTION TO EXCHANGE Under the election to exchange, you have elected to exchange options in accordance with the terms and conditions of the offer to exchange previously delivered to you. This email confirms our acceptance and cancellation of your __________ options tendered pursuant to the election to exchange. As a result, subject to the terms and conditions of the option exchange program described in the offer to exchange and any supplement thereto, the election to exchange and all of the other offer documents delivered to you (including the requirement that you remain employed with BMC through the grant date), on _______, 2003, you will be granted a new option to purchase _______ shares at a per share exercise price equal to the mean of the high and low sales prices of our common stock reported by the New York Stock Exchange on the date of that grant. EX-99.A1.N 5 h99965a1exv99wa1wn.txt FORM OF REMINDER EXHIBIT (a)(1)(n) FORM OF REMINDER You have received this email because we have not registered any reply from you on our Offer to Exchange as sent to you on September 10, 2002 meaning that your Election to Exchange has not been received by Linda Caldwell yet. o If you do not want to participate in the program, no further action from you is required. o If you select to surrender some or all of your eligible outstanding option grants, please send in the Election to Exchange and the Addendum to the Election to Exchange to Linda Caldwell before 5 pm on October 9, 2002. o If you already have selected to take part in the program and have sent in your forms to Linda Caldwell, but did not get a confirmation of receipt, please contact Linda as soon as possible. EX-99.A1.O 6 h99965a1exv99wa1wo.txt FORM OF EMAIL ACCOMPANYING SUPPLEMENT EXHIBIT (a)(1)(o) From: Human Resources Compensation To: Eligible Optionholders Subject: Offer to Exchange You have previously received a number of documents relating to the Option Exchange Program, including an Offer to Exchange and an Election to Exchange. In connection with this program, we were required to file the exchange offer documents with the Securities and Exchange Commission (the "SEC"). Following the SEC's review of the exchange offer documents, the SEC had a couple of comments to the Offer to Exchange and the Election to Exchange, including: o a requirement that we provide additional financial information regarding BMC; and o a requirement that we modify the terms of the Election to Exchange as described below. As a result, attached to this email is a Supplement to the Offer to Exchange, which reflects the comments of the SEC. The Supplement modifies the Offer to Exchange previously circulated to you. In addition, attached as Annex A to the Supplement is an Addendum to the Election to Exchange. The Addendum modifies the Election to Exchange previously delivered to you by deleting the following sentence from the Election to Exchange: "I have read, understand and agree to all of the terms and conditions of the Offer" and replacing it with the following sentence: "I agree to all of the terms and conditions of the Offer." If you have not already executed and delivered the Election to Exchange that was previously delivered to you and you decide to participate in the Offer, please execute both the Election to Exchange and the Addendum and deliver each of them to Linda Caldwell in accordance with the instructions set forth in the Offer to Exchange. If you have already delivered the Election to Exchange, you are not required to take any action. However, since the Addendum is beneficial to you, you are entitled to execute the Addendum and deliver it to Linda Caldwell by 5:00 p.m., Houston time, October 9, 2002 in accordance with the instructions contained in the Offer to Exchange, in which case your Election to Exchange will be amended as provided in the Addendum. If you have any questions about the exchange offer, the Supplement or the Addendum, please feel free to email compensation@bmc.com or call Barbara Fanning at (713) 918-4141. -----END PRIVACY-ENHANCED MESSAGE-----