8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

Date of report (Date of earliest event reported): June 19, 2013

BMC SOFTWARE, INC.

(Exact Name of Registrant As Specified In Charter) 

Delaware	001-16393	74-2126120
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(IRS Employer Identification No.)

2101 CITYWEST BLVD., HOUSTON, TX	77042-2827
(Address of principal executive offices)	(Zip Code)

(713) 918-8800

(Registrant’s telephone number, including area code)

Not Applicable

(Former Name or Former Address, if Changed Since Last Report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

x Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 1.01 Entry into a Material Definitive Agreement.

On June 19, 2013, BMC Software, Inc., a Delaware corporation (the “Company”), and Wells Fargo Bank, N.A. (the “Trustee”), as trustee, entered into the second supplemental indenture (the “Second Supplemental Indenture”), relating to the indenture, dated as of June 4, 2008 (the “Base Indenture”), supplemented by the first supplemental indenture, dated as of June 4, 2008 (the “First Supplemental Indenture” and together with the Base Indenture, the “Indenture”), governing the Company’s 7.25% Notes due 2018.

The Second Supplemental Indenture was entered into in connection with the Company’s previously announced solicitation of consents (the “Consent Solicitation”) from the holders of the notes, which the Company commenced on June 7, 2013.

The Second Supplemental Indenture amends the Indenture in connection with the Agreement and Plan of Merger, dated as of May 6, 2013, by and among the Company, Boxer Parent Company Inc., a Delaware corporation, and Boxer Merger Sub Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”), as amended from time to time (the “Merger Agreement”), pursuant to which Merger Sub will be merged with and into the Company with the Company continuing as the surviving corporation (such transaction, the “Acquisition”).

The Second Supplemental Indenture amends the definition of “Change of Control” in the Indenture so that the Acquisition does not constitute a “Change of Control” or result in a “Change of Control Triggering Event” under the Indenture and makes certain other related changes to the Indenture (collectively, the “Amendments”). The Company executed the Second Supplemental Indenture as of June 19, 2013, but the Amendments will not become operative unless and until certain conditions, including the closing of the Acquisition, have been satisfied or waived.

The full text of the press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.

Item 3.03 Material Modification to Rights of Security Holders.

The disclosure under Item 1.01 of this report is also responsive to Item 3.03 of this report and is incorporated herein by reference.

Item 8.01 Other Events.

On June 20, 2013, the Company issued a press release announcing that, in connection with the Consent Solicitation, the Company received the requisite consents to approve the Second Supplemental Indenture and that the Second Supplemental Indenture was executed by the Company and the Trustee. The Consent Solicitation expired at 5:00 p.m., New York City time, on Wednesday, June 19, 2013. A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits. The following exhibits are filed as part of this report:

4.1	Second Supplemental Indenture, dated June 19, 2013, by BMC Software, Inc. and Wells Fargo Bank, N.A., as trustee
99.1	Press Release, dated June 20, 2013

Additional Information and Where to Find It

In connection with the proposed transaction, the Company filed with the Securities and Exchange Commission (the “SEC”) a preliminary proxy statement and other documents relating to the proposed merger on May 24, 2013. When completed, a definitive proxy statement and a form of proxy will be filed with the SEC and mailed to the Company’s stockholders. BEFORE MAKING ANY VOTING DECISION, THE COMPANY’S STOCKHOLDERS ARE URGED TO READ THE DEFINITIVE PROXY STATEMENT IN ITS ENTIRETY WHEN IT BECOMES AVAILABLE AND ANY OTHER DOCUMENTS TO BE FILED WITH THE SEC IN CONNECTION WITH THE PROPOSED MERGER OR INCORPORATED BY REFERENCE IN THE PROXY STATEMENT BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION AND THE PARTIES TO THE PROPOSED TRANSACTION. Investors and security holders may obtain a free copy of documents filed by BMC Software, Inc. with the SEC at the SEC’s website at http://www.sec.gov. In addition, investors and security holders may obtain a free copy of BMC Software, Inc.’s filings with the SEC from BMC Software, Inc.’s website at http://investors.bmc.com/sec.cfm or by directing a request to: BMC Software, Inc., 2101 CityWest Blvd., Houston, Texas 77042-2827, Attn: Investor Relations, (713) 918-1805.

The Company and certain of its directors, executive officers, and certain other members of management and employees of the Company may be deemed to be participants in the solicitation of proxies from stockholders of the Company in favor of the proposed merger. Information about the directors and executive officers of the Company is set forth in the proxy statement for the Company’s 2012 annual meeting of stockholders, as filed with the SEC on Schedule 14A on June 5, 2012 (as amended by the proxy statement supplement filed on July 3, 2012). Additional information regarding the interests of these individuals and other persons who may be deemed to be participants in the solicitation will be included in the proxy statement the Company will file with the SEC.

Forward-Looking Statements

Statements about the expected timing, completion and effects of the proposed transaction and all other statements in this report, other than historical facts, constitute forward-looking statements within the meaning of the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. Readers are cautioned not to place undue reliance on these forward-looking statements and any such forward-looking statements are qualified in their entirety by reference to the following cautionary statements. All forward-looking statements speak only as of the date hereof and are based on current expectations and involve a number of assumptions, risks and uncertainties that could cause the actual results to differ materially from such forward-looking statements. The Company may not be able to complete the proposed transaction on the terms described above or other acceptable terms or at all because of a number of factors, including (1) the occurrence of any event, change or other circumstances that could give rise to the termination of the Agreement and Plan of Merger Agreement, dated as of May 6, 2013, by and among Boxer Parent Company Inc., Boxer Merger Sub Inc. and the Company (the “Merger Agreement”), (2) the failure to obtain stockholder approval or the failure to satisfy the closing conditions, (3) the failure to obtain the necessary financing arrangements set forth in the debt and equity commitment letters delivered pursuant to the Merger Agreement, (4) risks related to disruption of management’s attention from the Company’s ongoing business operations due to the transaction and (5) the effect of the announcement of the Merger on the ability of the Company to retain and hire key personnel and maintain relationships with its customers, suppliers, operating results and business generally.

Actual results may differ materially from those indicated by such forward-looking statements. In addition, the forward-looking statements represent the Company’s views as of the date on which such statements were made. The Company anticipates that subsequent events and developments may cause its views to change. However, although the Company may elect to update these forward-looking statements at some point in the future, it specifically disclaims any obligation to do so. These forward-looking statements should not be relied upon as representing the Company’s views as of any date subsequent to the date hereof. Additional factors that may affect the business or financial results of the Company are described in the risk factors included in the Company’s filings with the SEC, including the Company’s 2013 Annual Report on Form 10-K and later filed quarterly reports on Form 10-Q and Current Reports on Form 8-K, which factors are incorporated herein by reference. The Company expressly disclaims a duty to provide updates to forward-looking statements, whether as a result of new information, future events or other occurrences.

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

BMC SOFTWARE, INC.

/s/ Christopher C. Chaffin

Christopher C. Chaffin

Vice President, Deputy General Counsel & Asst. Secretary

Date: June 20, 2013

EXHIBIT INDEX

Exhibit Number	Description
4.1	Second Supplemental Indenture, dated June 19, 2013, by BMC Software, Inc. and Wells Fargo Bank, N.A., as trustee
99.1	Press Release, dated June 20, 2013

EX-4.1

Exhibit 4.1

BMC SOFTWARE, INC.

7.25% NOTES DUE 2018

SECOND SUPPLEMENTAL INDENTURE

Dated as of June 19, 2013

To

INDENTURE

Dated as of June 4, 2008

As already amended and supplemented by

SUPPLEMENTAL INDENTURE

Dated as of June 4, 2008

WELLS FARGO BANK, N.A.

Trustee

SECOND SUPPLEMENTAL INDENTURE (this “Second Supplemental Indenture”), dated as of June 19, 2013, between BMC Software, Inc., a Delaware corporation (the “Company”), and Wells Fargo Bank, N.A., as trustee under the Indenture referred to below (the “Trustee”).

WITNESSETH

WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture dated as of June 4, 2008 (the “Base Indenture”), by and between the Company and the Trustee, which was supplemented by a supplemental indenture dated as of June 4, 2008 (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), by and between the Company and the Trustee, pursuant to which the Company’s 7.25% Notes due 2018 (the “Notes”) were issued;

WHEREAS, the Company has entered into the Agreement and Plan of Merger, dated May 6, 2013, by and among the Company, Boxer Parent Company Inc., a Delaware corporation, and Boxer Merger Sub Inc., a Delaware Corporation, as amended from time to time (the “Merger Agreement”);

WHEREAS, the Company has solicited (the “Consent Solicitation”) the Holders to direct the Trustee to execute and deliver amendments to the Indenture as set forth in Article I hereof (the “Amendments”);

WHEREAS, Section 9.2 of the Base Indenture provides that, subject to certain exceptions inapplicable hereto, the Company and the Trustee may amend or supplement the Indenture and the Notes with the consent of the Holders of at least a majority in principal amount of the Notes then outstanding (the “Requisite Consents”);

WHEREAS, in connection with the Consent Solicitation, Holders that have delivered and have not withdrawn a valid consent on a timely basis (the “Consenting Holders”) are entitled to receive a consent fee with respect to the Notes in respect of which they have validly consented, payable only if all conditions to the Consent Solicitation, including, without limitation, the consummation of the transactions contemplated by the Merger Agreement, are satisfied or waived by the Company (the “Consent Fee”);

WHEREAS, the Holders that have approved the Amendments and this Second Supplemental Indenture constitute Holders of at least a majority in aggregate principal amount of the Notes now outstanding; and

WHEREAS, the execution and delivery of this Second Supplemental Indenture have been duly authorized by the Company and all conditions and requirements necessary to make this instrument a valid and binding agreement have been duly performed and complied with.

NOW, THEREFORE, in consideration of the above premises, and for the purpose of memorializing the amendments to the Indenture consented to by the Holders, each party agrees, for the benefit of the others and for the equal and ratable benefit of the Holders of the Notes, as follows:

ARTICLE I

AMENDMENT OF INDENTURE

Section 1.1 Amendment to Definitions. Section 1.2 of the Supplemental Indenture is hereby amended as follows:

(a) The following definitions are hereby inserted alphabetically into Section 1.2 of the Supplemental Indenture:

“Parent” means any person of which the Company at any time is a subsidiary, or at any time after the issue date of the Notes becomes a subsidiary, and any holding company established by any Permitted Holder for purposes of holding its investment in any Parent.

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“Permitted Holders” means, collectively, (1) Bain Capital Partners, LLC, Golden Gate Private Equity, Inc., GIC Special Investments Pte Ltd, and Insight Venture Management, LLC, any of their respective successors and their respective Affiliates, (2) any one or more persons, together with such persons’ Affiliates, whose beneficial ownership constitutes or results in a Change of Control in respect of which a Change of Control Offer is made in accordance with the requirements of this Indenture, (3) any person who is acting as an underwriter in connection with a public or private offering of Capital Stock of any Parent or the Company, acting in such capacity, and (4) any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) of which any of the foregoing are members; provided that, in the case of such “group” and without giving effect to the existence of such group or any other group any one or more of the persons specified in (1), collectively, has beneficial ownership of more than 50% of the total voting power of the Voting Stock of the Company or any of its Parents held by such “group.”

(b) The definition of “Change of Control” is hereby amended and restated in its entirety as follows:

“Change of Control” means the occurrence of any of the following:

(1) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or more series of related transactions, of all or substantially all of the Company’s assets and the assets of its Subsidiaries, taken as a whole, to any person, other than the Company, one of its Subsidiaries, or one or more Permitted Holders;

(2) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any person, other than one or more Permitted Holders, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Company’s outstanding Voting Stock or other Voting Stock into which the Company’s Voting Stock is reclassified, consolidated, exchanged or changed, measured by voting power rather than number of shares;

(3) the Company consolidates with, or merges with or into, any person other than a Permitted Holder, or any person other than a Permitted Holder consolidates with, or merges with or into, the Company, in any such event pursuant to a transaction in which any of the Company’s outstanding Voting Stock or the Voting Stock of such other person is converted into or exchanged for cash, securities or other property, other than any such transaction where the shares of the Company’s Voting Stock outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving person or any direct or indirect parent company of the surviving person immediately after giving effect to such transaction;

(4) the first day on which a majority of the members of the Company’s Board of Directors are not Continuing Directors; or

(5) the adoption of a plan relating to the Company’s liquidation or dissolution.

Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control if (1) the Company becomes a direct or indirect wholly owned Subsidiary of a holding company and (2)(A) the direct or indirect holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of the Company’s Voting Stock immediately prior to that transaction or (B) immediately following that transaction no person (other than a holding company satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of such holding company. The term “person,” as used in this definition, has the meaning given thereto in Section 13(d)(3) of the Exchange Act.

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ARTICLE II

MISCELLANEOUS PROVISIONS

Section 2.1 Effect of Second Supplemental Indenture.

From and after the Amendment Operative Time (as defined below), the Indenture shall be amended and supplemented in accordance herewith. Each reference in the Indenture to “this Indenture,” “hereunder,” “hereof,” or “herein” shall mean and be a reference to the Indenture as amended and supplemented by this Second Supplemental Indenture unless the context otherwise requires. The Indenture as amended and supplemented by this Second Supplemental Indenture shall be read, taken and construed as one and the same instrument, and every Holder of the Notes heretofore or hereafter authenticated and delivered under the Indenture as supplemented by this Second Supplemental Indenture shall be bound thereby.

Section 2.2 Effectiveness.

This Second Supplemental Indenture shall become effective and binding on the Company, the Trustee and every Holder of the Notes heretofore or hereafter authenticated and delivered under the Indenture, upon the execution and delivery by the parties to this Second Supplemental Indenture; provided, however, that the Amendments shall become operative only upon (a) payment of the Consent Fee to the Consenting Holders in accordance with the terms and conditions of the Consent Solicitation and (b) the consummation of the transactions contemplated by the Merger Agreement (the “Amendment Operative Time”).

Section 2.3 Indenture Remains in Full Force and Effect.

Except as supplemented and amended hereby, all provisions in the Indenture shall remain in full force and effect.

Section 2.4 Confirmation of Indenture.

The Indenture, as supplemented and amended by this Second Supplemental Indenture, is in all respects confirmed and ratified.

Section 2.5 Conflict with Trust Indenture Act.

If any provision of this Second Supplemental Indenture limits, qualifies or conflicts with another provision hereof or of the Indenture which is required to be included in this Second Supplemental Indenture or the Indenture by any of the provisions of the Trust Indenture Act of 1939, such required provision shall control.

Section 2.6 Severability.

In case any one or more of the provisions in this Second Supplemental Indenture shall be held invalid, illegal or unenforceable, in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions shall not in any way be affected or impaired thereby, it being intended that all of the provisions hereof shall be enforceable to the full extent permitted by law.

Section 2.7 Successors.

All agreements of the Company in this Second Supplemental Indenture shall bind its successors. All agreements of the Trustee in this Second Supplemental Indenture shall bind its successor.

Section 2.8 Certain Duties and Responsibilities of the Trustee.

In entering into this Second Supplemental Indenture, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee, whether or not elsewhere herein so provided. The Trustee, for itself and its successor or successors, accepts the terms of the Indenture as amended by this Second Supplemental Indenture, and agrees to perform the same, but only upon the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee, which terms and provisions shall in like manner define and limit its liabilities and responsibilities in the performance of the trust created by the Indenture. The Trustee makes no representations as to the validity or sufficiency of this Second Supplemental Indenture other than as to the validity of its execution and delivery by the Trustee.

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Section 2.9 Governing Law.

This Second Supplemental Indenture will be governed by and construed in accordance with the laws of the State of New York.

Section 2.10 Duplicate Originals.

All parties may sign any number of copies of this Second Supplemental Indenture. Each signed copy or counterpart shall be an original, but all of them together shall represent the same agreement.

Section 2.11 Effect of Headings.

The Section headings herein are for convenience only and shall not affect the construction hereof.

[Signature Page Follows]

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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed, all as of the date first written above.

BMC SOFTWARE, INC.
By:	/s/ Stephen B. Solcher
Name:	Stephen B. Solcher
Title:	Senior Vice President and Chief Financial Officer

[Signature Page to Second Supplemental Indenture]

WELLS FARGO BANK, N.A., as Trustee
By:	/s/ John Stohlmann
	Authorized Signatory

[Signature Page to Second Supplemental Indenture]

EX-99.1

Exhibit 99.1

BMC SOFTWARE ANNOUNCES EXPIRATION OF CONSENT SOLICITATION AND

RECEIPT OF REQUISITE CONSENTS

HOUSTON, June 20, 2013 — BMC Software, Inc. (NASDAQ: BMC) (the “Company”) announced today that it has received the requisite consents (the “Consents”) with respect to its previously announced solicitation (the “Solicitation”) of Consents with respect to certain proposed amendments (the “Proposed Amendments”) to the Supplemental Indenture, dated as of June 4, 2008, between the Company and Wells Fargo Bank, N.A., as trustee (the “Supplemental Indenture,”), to the Base Indenture, dated as of June 4, 2008, by and between the Company and Wells Fargo Bank, N.A., as trustee (the “Base Indenture,” and together with the Supplemental Indenture, the “Indenture”), governing its 7.25% Notes due 2018 (the “Notes”) upon the terms and subject to the conditions set forth in the Consent Solicitation Statement (the “Statement”) and the accompanying Form of Consent (the “Consent Form”), each dated as of June 7, 2013.

The Solicitation expired at 5:00 p.m., New York City time, on June 19, 2013 (the “Expiration Time”). As of the Expiration Time, the Company received the requisite number of Consents required to approve the Proposed Amendments. These Consents may not be revoked.

The Proposed Amendments are changes to the Indenture in connection with the Agreement and Plan of Merger, dated as of May 6, 2013, by and among the Company, Boxer Parent Company Inc., a Delaware corporation (“Parent”) and Boxer Merger Sub Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub,” as amended from time to time, the “Merger Agreement”), pursuant to which Merger Sub will be merged with and into the Company with the Company continuing as the surviving corporation (such transaction, the “Acquisition”).

The Proposed Amendments will be effected by a second supplemental indenture to the Indenture (the “Second Supplemental Indenture”) that is described in more detail in the Statement. Having received the Consents, the Company and the Trustee executed the Second Supplemental Indenture following the Expiration Time.

In the event that each of the conditions to the Solicitation described in the Statement is satisfied or waived, including, but not limited to, the consummation of the Acquisition, the Company will pay to each holder of record of Notes as of 5:00 p.m., New York City time, on June 6, 2013 (each such holder, a “Holder”), who delivered a valid Consent in respect of such Notes prior to the Expiration Time (and did not properly revoke such consent prior to the Expiration Time), $3.75 in cash for each $1,000 principal amount of such Notes in respect of which a valid Consent was so delivered (and was not properly revoked) (the “Consent Fee”). The Company will pay the Consent Fee at such time as all of the conditions enumerated in the Statement, including consummation of the Acquisition, have been satisfied or waived. Holders of Notes who deliver Consents but validly revoke such Consents in accordance with the Statement or deliver Consents after the Expiration Time will not receive a Consent Fee. Subject to applicable law, the Solicitation may be abandoned or terminated for any reason at any time, including after the Expiration Time and prior to the Proposed Amendments becoming operative, in which case any Consents received will be voided and no Consent Fee will be paid to any Holders.

The Company anticipates completing the Acquisition in the third calendar quarter of 2013, subject to the adoption of the Merger Agreement by the Company’s stockholders and the satisfaction of the other closing conditions.

The Company engaged Credit Suisse Securities (USA) LLC to act as Solicitation Agent and D.F. King & Co., Inc. to act as Information and Tabulation Agent for the Solicitation. Questions regarding the Solicitation may be directed to Credit Suisse Securities (USA) LLC at (800) 820-1653 (toll-free) or (212) 538-2147 (collect). Requests for documents relating to the Solicitation may be directed to D.F. King & Co., Inc. at (800) 967-5550 (toll-free), (212) 269-5550 (banks and brokers), (212) 809-8838 (facsimile) and (212) 709-3328 (confirmation).

This press release is for informational purposes only and the Solicitation was only made pursuant to the terms of the Statement and the related Consent Form. The Solicitation was not being made to, and Consents were not solicited from, Holders of Notes in any jurisdiction in which it is unlawful to make such Solicitation or grant such Consent. None of the Company, the Trustee, the Solicitation Agent or the Information and Tabulation Agent made any recommendation as to whether or not Holders should deliver Consents.

This communication does not constitute an offer to sell or the solicitation of an offer to buy any securities.

Business runs better when IT runs at its best.

Tens of thousands of IT organizations around the world — from small and mid-market businesses to the Global 100 — rely on BMC Software (NASDAQ: BMC) to manage their business services and applications across distributed, mainframe, virtual and cloud environments. BMC helps customers cut costs, reduce risk and achieve business objectives with the broadest choice of IT management solutions, including industry-leading Business Service Management and Cloud Management offerings. For the four fiscal quarters ended March 31, 2013, BMC revenue was approximately $2.2 billion. www.bmc.com

BMC, BMC Software, and the BMC Software logo are the exclusive properties of BMC Software Inc., are registered with the U.S. Patent and Trademark Office, and may be registered or pending registration in other countries. All other BMC trademarks, service marks, and logos may be registered or pending registration in the U.S. or in other countries. All other trademarks or registered trademarks are the property of their respective owners. ^© Copyright 2013 BMC Software, Inc.

Additional Information and Where to Find It

In connection with the proposed acquisition, BMC Software, Inc. (the “Company” or “BMC”) filed with the Securities and Exchange Commission (the “SEC”) a preliminary proxy statement and other documents relating to the proposed merger on May 24, 2013. When completed, a definitive proxy statement and a form of proxy will be filed with the SEC and mailed to the Company’s stockholders. BEFORE MAKING ANY VOTING DECISION, THE COMPANY’S STOCKHOLDERS ARE URGED TO READ THE DEFINITIVE PROXY STATEMENT IN

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ITS ENTIRETY WHEN IT BECOMES AVAILABLE AND ANY OTHER DOCUMENTS TO BE FILED WITH THE SEC IN CONNECTION WITH THE PROPOSED MERGER OR INCORPORATED BY REFERENCE IN THE PROXY STATEMENT BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED ACQUISITION AND THE PARTIES TO THE PROPOSED ACQUISITION. Investors and security holders may obtain a free copy of documents filed by BMC Software, Inc. with the SEC at the SEC’s website at http://www.sec.gov. In addition, investors and security holders may obtain a free copy of BMC Software, Inc.’s filings with the SEC from BMC Software, Inc.’s website at http://investors.bmc.com/sec.cfm or by directing a request to: BMC Software, Inc., 2101 CityWest Blvd., Houston, Texas 77042-2827, Attn: Investor Relations, (713) 918-1805. The Company and certain of its directors, executive officers, and certain other members of management and employees of the Company may be deemed to be participants in the solicitation of proxies from stockholders of the Company in favor of the proposed merger. Information about the directors and executive officers of the Company is set forth in the proxy statement for the Company’s 2012 annual meeting of stockholders, as filed with the SEC on Schedule 14A on June 5, 2012 (as amended by the proxy statement supplement filed on July 3, 2012). Additional information regarding the interests of these individuals and other persons who may be deemed to be participants in the solicitation will be included in the proxy statement the Company will file with the SEC.

Forward-Looking Statements

Statements about the expected timing, completion and effects of the proposed acquisition and all other statements in this report and the exhibits furnished or filed herewith, other than historical facts, constitute forward-looking statements within the meaning of the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. Readers are cautioned not to place undue reliance on these forward-looking statements and any such forward-looking statements are qualified in their entirety by reference to the following cautionary statements. All forward-looking statements speak only as of the date hereof and are based on current expectations and involve a number of assumptions, risks and uncertainties that could cause the actual results to differ materially from such forward-looking statements. The Company may not be able to complete the proposed acquisition on the terms described above or other acceptable terms or at all because of a number of factors, including (1) the occurrence of any event, change or other circumstances that could give rise to the termination of the merger agreement, (2) the failure to obtain stockholder approval or the failure to satisfy the closing conditions, (3) the failure to obtain the necessary financing arrangements set forth in the debt and equity commitment letters delivered pursuant to the merger agreement, (4) risks related to disruption of management’s attention from the Company’s ongoing business operations due to the acquisition and (5) the effect of the announcement of the merger on the ability of the Company to retain and hire key personnel and maintain relationships with its customers, suppliers, operating results and business generally.

Actual results may differ materially from those indicated by such forward-looking statements. In addition, the forward-looking statements represent the Company’s views as of the date on which such statements were made. The Company anticipates that subsequent events and developments may cause its views to change. However, although the Company may elect to update these forward-looking statements at some point in the future, it specifically disclaims any obligation to do so. These

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forward-looking statements should not be relied upon as representing the Company’s views as of any date subsequent to the date hereof. Additional factors that may affect the business or financial results of the Company are described in the risk factors included in the Company’s filings with the SEC, including the Company’s 2013 Annual Report on Form 10-K and later filed quarterly reports on Form 10-Q and Current Reports on Form 8-K, which factors are incorporated herein by reference. The Company expressly disclaims a duty to provide updates to forward-looking statements, whether as a result of new information, future events or other occurrences.

Contact Details

Mark Stouse, Global Communications

Mobile 281-468-1608

mark_stouse@bmc.com

Derrick Vializ, Investor Relations

Office 713-918-1805

derrick_vializ@bmc.com

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