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): July 24, 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)

¨ 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.

Merger Agreement Amendment

As previously announced, on May 6, 2013, BMC Software, Inc. (the “Company”) entered into an Agreement and Plan of Merger (the “Merger Agreement”) with 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”). Parent and Merger Sub were formed by Bain Capital Partners, LLC, Golden Gate Private Equity, Inc., GIC Special Investments Pte Ltd, and Insight Venture Management, LLC (collectively, the “Buyer Group”).

On July 9, 2013, in accordance with the terms of the Merger Agreement, the Company received a request (the “Rollover Request”) from representatives of Parent requesting that the Company provide its consent pursuant to Section 5.12 of the Merger Agreement to allow Elliott Associates, L.P. (“Elliott”), a current stockholder of the Company, to join the Buyer Group as an equity sponsor of Parent. The Rollover Request included, among other things, a preliminary proposal to increase the consideration payable under the Merger Agreement in respect of common stock of the Company (the “Merger Consideration”) by $0.05 from $46.25 per share to $46.30 per share, which increase would have been funded by an additional equity investment by Elliott.

Upon review of the Rollover Request and discussions with representatives of Morgan Stanley, BofA Merrill Lynch and Wachtell, Lipton, Rosen & Katz (“Wachtell Lipton”), on July 12, 2013, the board of directors of the Company (the “Board”) directed its representatives to respond to the Rollover Request with a request, among other items, to increase the $0.05 per share increase in the Merger Consideration that had been proposed.

On July 15, 2013, representatives of Kirkland & Ellis LLP (“Kirkland & Ellis”) informed representatives of Wachtell Lipton that Elliott would not increase the Merger Consideration by more than $0.05 per share of common stock of the Company. As discussed below, the Board withdrew its request that there be an increase in the Merger Consideration, and therefore there will be no increase in the Merger Consideration and as a result the Merger Consideration will remain unchanged at $46.25.

Negotiations between the parties regarding the Rollover Request continued over the following days until July 24, 2013, on which date the Company announced that it had provided the Company Consent to a rollover contribution by Elliott to Parent of approximately $137 million (the “Elliott Rollover”) at a price which represents a premium to the investment price paid by the members of the Buyer Group. In connection with the granting of the Company Consent, Parent, Merger Sub and the Company entered into Amendment No. 1 to the Merger Agreement (the “Amendment”). The Amendment provides that Company has the right to revoke the Company Consent and terminate Elliott’s rights and obligations to the Company with respect to the Elliott Rollover, in the event the Elliott Rollover (1) will or would reasonably be expected to result in a non-de minimis delay of the consummation of the transactions contemplated by the Merger Agreement, (2) will have or would reasonably be expected to have an adverse impact on the ability of the Company to secure the approval of the Merger Agreement by the Company’s stockholders, or (3) in the event the equity commitment letter entered into by Elliott in connection with the Elliott Rollover is terminated under certain specified circumstances (any of such events, a “Removal Event”). The foregoing summary of the Amendment does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Amendment, which is filed as Exhibit 2.1 and is incorporated herein by reference.

Concurrent with the negotiation of the Elliott Rollover, the parties to the consolidated stockholder litigation commenced in connection with Parent’s proposed acquisition of BMC have reached an agreement in principle (the “Agreement”) to provide for the settlement of all claims related to such litigation. The Agreement provides for, among other things, a stay of all proceedings in such litigation, and releases for all defendants and their agents, from all claims arising from or in

connection with such litigation. Under the Agreement, promptly following approval of the settlement by the Delaware Chancery Court, but no sooner than the closing of the transaction, $12.4 million in cash (the “Payment”) will be distributed pro rata to all holders of BMC common stock and equity awards as of the closing. BMC will use funds taken from the proceeds of the Elliott Rollover to fund all of the Payment. Elliott will waive its right to participate in such payment, such that the entire Payment will be distributed to the other equity holders of BMC. The Agreement is subject to entering into a Memorandum of Understanding and other final documentation, approval by the Delaware Chancery Court, consummation of the proposed acquisition of BMC, and completion of the Elliott Rollover. In light of the settlement and the related provision of the Payment, the Board withdrew its request for an increase in the Merger Consideration in connection with the Elliott Rollover.

In connection with transactions contemplated by the Merger Agreement, China’s Ministry of Commerce notified the parties on July 8, 2013 that it had formally accepted their notification. The mandatory waiting periods under China’s Anti-Monopoly Law have not yet expired or been terminated. On July 17, 2013, the Committee on Foreign Investment in the United States notified the parties that it had opened an investigation of the transactions contemplated by the Merger Agreement, which is scheduled to be completed no later than September 3, 2013.

Rights Agreement Amendment

Also on July 24, 2013, the Company entered into Amendment No. 3 (the “Rights Agreement Amendment”) to the Rights Agreement, dated as of May 12, 2012 and as amended as of May 5, 2013 and May 10, 2013, between the Company and Computershare Trust Company, N.A., as Rights Agent (the “Rights Agreement”). The Rights Agreement Amendment specifies that (1) none of Parent, Merger Sub, or any of their Affiliates (as defined in the Rights Agreement) or Associates (as defined in the Rights Agreement), or any of the Guarantors (as defined in the Merger Agreement) or any of their Affiliates or Associates, or Elliott or Elliott International, L.P or any of their Affiliates or Associates will be deemed to have become an Acquiring Person (as defined in the Rights Agreement), and (2) none of the Rights (as defined in the Rights Plan) shall become exercisable and no holder of any Rights shall be entitled to exercise such Rights under, or be entitled to any adjustments or rights pursuant to, any of Sections 3, 7, 11 or 13 of the Rights Agreement, in any such case by reason of the approval, execution or delivery of (x) the Merger Agreement or the Amendment or the consummation of any of the transactions contemplated by the Merger Agreement (as amended by the Amendment) or (y) the equity commitment letters and the limited guarantees by affiliates of the Buyer Group (including Elliott), the Specified Guarantor Agreement (as defined in the Rights Agreement Amendment) or the consummation of any of the transactions contemplated thereby. The Rights Agreement Amendment further provides that nothing in the Rights Agreement will be construed to give any holder of Rights or any other person any legal or equitable rights, remedies or claims under the Rights Agreement by virtue of the approval, execution, delivery or performance of (x) the Merger Agreement (as amended by the Amendment) or the consummation of any of the transactions contemplated by the Merger Agreement (as amended by the Amendment) or (y) the equity commitment letters and the limited guarantees by affiliates of the Buyer Group (including Elliott), the Specified Guarantor Agreement or the consummation of any of the transactions contemplated thereby. The foregoing summary of the Rights Agreement Amendment does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Rights Agreement Amendment, which is filed as Exhibit 4.1 and is incorporated herein by reference.

Elliott Standstill

Also on July 24, 2013, the Company entered into an agreement (the “Elliott Standstill”) with Elliott and Elliott International, L.P. (the “Stockholders”), which restricts certain actions of the Stockholders with respect to the Company’s common stock and the Company’s 2013 annual meeting. The foregoing summary of the Elliott Standstill does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Elliott Standstill, which is filed as Exhibit 10.1 and is incorporated herein by reference.

Item 3.03 Material Modification to Rights of Security Holders.

Item 1.01 above is incorporated herein by reference.

Item 5.07 Submission of Matters to a Vote of Security Holders.

Also on July 24, 2013, the Company held a special meeting of stockholders (the “Special Meeting”) to consider certain proposals related to the merger of the Merger Sub with and into the Company (the “Merger”) with the Company continuing as the surviving corporation in the Merger.

As of June 24, 2013, the record date for the Special Meeting, there were 141,454,283 shares of the Company’s common stock, par value $0.01 per share, outstanding, each of which was entitled to one vote for each proposal at the Special Meeting. Set forth below are the final voting results for each of the proposals voted on at the Special Meeting as certified by the inspector of elections. For more information on each of these proposals, see the Company’s definitive proxy statement filed with the Securities and Exchange Commission on June 25, 2013.

Proposal 1: A proposal to adopt the Merger Agreement.

For	Against	Abstain
95,033,127	234,219	532,730

Proposal 2: A proposal to approve, on an advisory (non-binding) basis, specified compensation that may become payable to the named executive officers of the Company in connection with the Merger.

For	Against	Abstain
75,041,485	18,319,511	2,439,080

Proposal 3: A proposal to approve the adjournment of the Special Meeting, if necessary or appropriate, to solicit additional proxies if there are insufficient votes at the time of the Special Meeting to approve the proposal to adopt the Merger Agreement.

For	Against	Abstain
87,244,034	8,097,852	458,190

Item 8.01 Other Events.

On July 24, 2013, the Company issued a press release announcing the results of the stockholder votes at the Special Meeting, the execution of the Amendment and the commitment to an agreement in principle on the Stockholder Settlement. A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated by reference herein.

Item 9.01. Financial Statements and Exhibits.

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

2.1	Amendment No. 1, dated as of July 24, 2013, to the Agreement and Plan of Merger dated as of May 6, 2013, by and among Boxer Parent Company Inc., Boxer Merger Sub Inc. and BMC Software, Inc.
4.1	Amendment No. 3 to the Rights Agreement, dated as of July 24, 2013, between the Company and Computershare Trust Company, N.A., as Rights Agent.
10.1	Agreement dated as of July 24, 2013, by and between BMC Software, Inc., Elliott Associates, L.P. and Elliott International, L.P.
99.1	Press Release, dated July 24, 2013

Forward-Looking Statements

Statements about the expected timing, completion and effects of the proposed transaction 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 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 Merger Agreement, (2) the failure to obtain any required regulatory approval or the failure to satisfy any 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: July 24, 2013

EXHIBIT INDEX

Exhibit Number	Description
2.1	Amendment No. 1, dated as of July 24, 2013, to the Agreement and Plan of Merger dated as of May 6, 2013, by and among Boxer Parent Company Inc., Boxer Merger Sub Inc. and BMC Software, Inc.
4.1	Amendment No. 3 to the Rights Agreement, dated as of July 24, 2013, between the Company and Computershare Trust Company, N.A., as Rights Agent.
10.1	Agreement dated as of July 24, 2013, by and between BMC Software, Inc., Elliott Associates, L.P. and Elliott International, L.P.
99.1	Press Release, dated July 24, 2013

EX-2.1

Exhibit 2.1

AMENDMENT NO. 1

TO

AGREEMENT AND PLAN OF MERGER

AMENDMENT NO. 1 (this “Amendment”), dated as of July 24, 2013, to the AGREEMENT AND PLAN OF MERGER (the “Merger Agreement”), dated as of May 6, 2013, by and among Boxer Parent Company Inc., a Delaware corporation (“Parent”), Boxer Merger Sub Inc., a Delaware corporation and a direct wholly owned subsidiary of Parent (“Merger Sub”), and BMC Software, Inc., a Delaware corporation (the “Company”).

RECITALS

WHEREAS, the parties hereto have entered into the Merger Agreement;

WHEREAS, Section 8.11 of the Merger Agreement permits the parties to amend the Merger Agreement by an amendment that is in writing and signed by the Company, Parent and Merger Sub;

WHEREAS, pursuant to Section 5.12 of the Merger Agreement, the Company has provided its written consent (the “Company Consent”), conditioned upon the execution of this Amendment, to permit Elliott Associates, L.P., a Delaware limited partnership (“Elliott”), to directly or indirectly obtain shares of stock in Parent (“Parent Stock”), prior to the Effective Time, in exchange for the Contribution (as defined in the Elliott Equity Commitment Letter (as defined below)) as contemplated by the Elliott Equity Commitment Letter (as defined below) (the “Participation”);WHEREAS, in connection with the Participation and concurrently with the execution and delivery of this Amendment, each of the existing Guarantors is entering into an amended and restated equity commitment letter in favor of Parent and Elliott is entering into an equity commitment letter (the “Elliott Equity Commitment Letter”) in favor of Parent, pursuant to which each of the existing Guarantors and Elliott has agreed to invest in Parent the amounts set forth therein in connection with the Merger Agreement, as amended by this Amendment, as specified and subject to the terms and conditions therein;

WHEREAS, in connection with the Participation and concurrently with the execution and delivery of this Amendment, each of the existing Guarantors is entering into an amended and restated limited guarantee in favor of the Company and Elliott is entering into a limited guarantee (the “Elliott Guarantee”) in favor of the Company, pursuant to which each of the existing Guarantors and Elliott is guaranteeing certain obligations of Parent and Merger Sub in connection with the Merger Agreement, as amended by this Amendment, as specified and subject to the terms and conditions therein;

WHEREAS, the Board of Directors of the Company has (i) determined that it is in the best interests of the Company and its stockholders, and declared it advisable, to enter into this Amendment, (ii) approved the execution, delivery and performance of this Amendment, and (iii) resolved to recommend adoption of the Merger Agreement, as amended by this Amendment, by the stockholders of the Company;

WHEREAS, the Boards of Directors of Parent and Merger Sub have approved this Amendment and declared it advisable for Parent and Merger Sub, respectively, to enter into this Amendment; and

WHEREAS, in connection with the execution of this Amendment, the Company has amended the Rights Plan such that the entry into this Amendment, the Elliott Equity Commitment Letter, the Elliott Guarantee and the Specified Guarantor Agreement, and the consummation of any of the transactions contemplated by the Merger Agreement (as amended by this Amendment), the Elliot Equity Commitment Letter, the Elliott Guarantee and the Specified Guarantor Agreement, will not cause Parent, Merger Sub or any of the Guarantors (including Elliott) to become an “Acquiring Person” under the Rights Plan.

NOW, THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements contained herein, and intending to be legally bound hereby, Parent, Merger Sub and the Company agree as follows:

ARTICLE I

DEFINITIONS AND TERMS

1.1 Definitions. Unless otherwise specifically defined herein, each capitalized term used but not defined herein shall have the meaning given to such term in the Merger Agreement. Each reference herein to “the date of this Amendment” shall refer to the date first set forth above and each reference herein to “the date of the Merger Agreement” or similar references and each reference in the Merger Agreement to “the date of this Agreement” or “the date hereof” shall refer to May 6, 2013.

ARTICLE II

AMENDMENTS TO THE AGREEMENT

2.1 Revocation of Consent. Upon written notice from the Company to Parent (which written notice may be given at the Company’s sole discretion only upon the occurrence of a Removal Event), the Company Consent shall be deemed to be null and void and the Elliott Equity Commitment Letter and the Elliott Guarantee shall be terminated with no further action by any Person. “Removal Event” shall mean (a) the Company provides written notice to Parent of the Company’s determination, to be made in good faith, that the Participation or the performance of the transactions contemplated hereby and by the Merger Agreement, as amended by this Amendment (i) will or would reasonably be expected to result in a non-de minimis delay of the consummation of the Merger or the other transactions contemplated by the Merger Agreement or (ii) will have or would reasonably be expected to have an adverse impact on the ability of the Company to secure the Company Stockholder Approval, or (b) the Elliott Equity Commitment Letter is validly terminated pursuant to Section 4(c)(ii) or Section 4(c)(iii) thereof. For the avoidance of doubt, in the event the Company revokes the Company Consent pursuant to this Section 2.1, such revocation shall not change any approval by, actions taken by or exemptions granted by the Company’s Board of Directors referred to in Section 3.1(b) of this Amendment, including the approval by the Company’s Board of Directors for purposes of causing any Takeover Statute and the Rights Plan to be inapplicable to the Merger and the other transactions contemplated by the Merger Agreement, as amended by this Agreement. In the event the Company revokes the Company Consent prior to the Company Meeting, the Board of Directors of the Company shall publicly reaffirm the Recommendation in connection with such revocation.

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2.2 Amendments to Section 8.15 of the Merger Agreement.

(a) Section 8.15 of the Merger Agreement is hereby amended by adding the following definitions:

(i) “Elliott” means Elliott Associates, L.P.

(ii) “Specified Guarantor Agreement” means one or more agreements solely among Parent, Merger Sub, the Guarantors and their respective Affiliates providing for arrangements with respect to the consummation of the transactions contemplated by this Agreement and the Equity Commitment Letters, arrangements with respect to Parent and the Company following consummation of the Merger, and/or obligations under the Limited Guarantees, and not providing for (x) any rights to acquire beneficial ownership (as defined in the Rights Plan) of Common Stock or coordination of activities with respect to any acquisition of beneficial ownership (as defined in the Rights Plan) of Common Stock following termination of the Merger Agreement or (y) activities with respect to any acquisition of beneficial ownership (as defined in the Rights Plan) of Common Stock prior to the termination of this Agreement other than in connection with the transactions contemplated by this Agreement, the Equity Commitment Letters and the Limited Guarantees (it being understood, however, that a Specified Guarantor Agreement may contain restrictions on those activities referred to in clause (y)).

(b) From and after the date of this Amendment (and not with respect any date prior to the date of this Amendment), any reference in the Merger Agreement to “Guarantors” shall mean Bain Capital Fund X, L.P., Golden Gate Capital Opportunity Fund, L.P., Westhorpe Investment Pte Ltd, Insight Venture Partners VII, L.P., Insight Venture Partners (Cayman) VII, L.P., Insight Venture Partners VII (Co-Investors), L.P., Insight Venture Partners (Delaware) VII, L.P., Insight Venture Partners Coinvestment Fund II, L.P., and Elliott.

(c) From and after the date of this Amendment (and not with respect any date prior to the date of this Amendment), (i) any reference in the Merger Agreement to “Equity Commitment Letters” shall be deemed to include the Elliott Equity Commitment Letter and the other Equity Commitment Letters executed on the date hereof, (ii) any reference in the Merger Agreement to “Limited Guarantees” shall be deemed to include the Elliott Guarantee and the other Limited Guarantees executed on the date hereof, (iii) the defined term “Cash Equity” shall be deemed to include the Participation, and (iv) the defined term “Recommendation” shall be deemed to mean the recommendation contemplated by clause (iii) of Section 3.1(b) of this Amendment.

ARTICLE III

ADDITIONAL REPRESENTATIONS AND WARRANTIES

3.1 Additional Representations and Warranties of the Company. The Company hereby represents and warrants to Parent and Merger Sub as follows:

(a) The Company has all requisite corporate power and authority to enter into this Amendment and to perform its obligations hereunder. The execution and delivery by the Company of this Amendment and its performance of its obligations hereunder have been duly authorized by all necessary corporate action of the Company. This Amendment has been duly

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and validly executed and delivered by the Company and, assuming this Amendment constitutes the valid and binding agreement of Parent and Merger Sub, constitutes the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to the Bankruptcy and Equity Exception.

(b) The Board of Directors of the Company at a duly held meeting in a unanimous vote of those directors present (which directors constituted a quorum) has (i) determined that it is in the best interests of the Company and its stockholders, and declared it advisable, to enter into this Amendment, (ii) approved (x) the execution, delivery and performance of this Amendment and the consummation of the transactions contemplated by the Merger Agreement, as amended by this Amendment, and (y) the acquisition of beneficial ownership of Shares that may be deemed to occur by virtue of the Equity Commitment Letters (pursuant to the terms thereof as of the date hereof) and/or the Specified Guarantor Agreement, including for purposes of the Takeover Statutes, and (iii) resolved to recommend that the stockholders of the Company approve the adoption of the Merger Agreement, as amended by this Amendment, and directed that such matter be submitted for a vote of the stockholders of the Company at the Company Meeting, (iv) assuming that the representations of Parent and Merger Sub set forth in Section 4.13 of the Merger Agreement and the representations of Parent and Merger Sub with respect to Section 4.13 of the Merger Agreement set forth in Section 3.2(d) of this Amendment are correct, taken all necessary actions so that the restrictions in Takeover Statutes are not applicable to the Company, Parent, Merger Sub or their Affiliates or the Guarantors (including Elliott) or their Subsidiaries, or the Merger Agreement (as amended by this Amendment) or the transactions contemplated thereby (including the Merger), and (v) exempted Parent, Merger Sub, the Guarantors (including Elliott) or any of their Affiliates or Associates (each as defined in the Rights Plan) from being an “Acquiring Person” under the Rights Plan as a result of entry into the Merger Agreement, this Amendment, the Equity Commitment Letters, the Limited Guarantees, the Elliott Equity Commitment Letter, the Elliott Limited Guarantee and the Specified Guarantor Agreement, and the consummation of any of the transactions contemplated by the Merger Agreement (as amended by this Amendment), the Equity Commitment Letters, the Limited Guarantees, the Elliott Equity Commitment Letter, the Elliott Limited Guarantee and the Specified Guarantor Agreement, on the terms set forth herein and therein.

3.2 Additional Representations and Warranties of Parent and Merger Sub. Except as disclosed in the Parent Disclosure Letter, which is hereby amended connection with this Amendment as set forth in Annex A attached hereto (the “Amendment to the Parent Disclosure Letter”) (provided, that, disclosure of any item in any section or subsection of the Amendment to the Parent Disclosure Letter shall be deemed disclosed with respect to any other section or subsection only to the extent that the relevance of any disclosed event, item or occurrence in such section or subsection to such other section or subsection is reasonably apparent from the substance of the disclosure made as to matters and items which are the subject of the corresponding representation or warranty), Parent and Merger Sub hereby represent and warrant to the Company as follows:

(a) Each of Parent and Merger Sub has all requisite corporate power and authority to enter into this Amendment and to perform its obligations hereunder. The execution and delivery by Parent and Merger Sub of this Amendment and the performance of their respective obligations hereunder have been duly authorized by all necessary corporate action of each of Parent and Merger Sub. This Amendment has been duly and validly executed and delivered by Parent and Merger Sub and, assuming this Amendment constitutes the valid and binding agreement of the Company, constitutes the valid and binding agreement of Parent and Merger Sub, enforceable against each of Parent and Merger Sub in accordance with its terms, subject to the Bankruptcy and Equity Exception.

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(b) Parent has received and accepted (i) an executed Elliott Equity Commitment Letter, dated as of the date of this Amendment, pursuant to which Elliott has agreed, subject to the terms and conditions thereof, to invest and/or contribute directly or indirectly to Parent the amounts set forth therein and (ii) executed amended and restated equity commitment letters, dated as of the date of this Amendment, from the Guarantors (as defined in the Merger Agreement), pursuant to which the Guarantors (as defined in the Merger Agreement) have agreed, subject to the terms and conditions thereof, to invest in Parent the amounts set forth therein (together with the Elliott Equity Commitment Letter, the “Equity Commitment Letters”). As of the date of this Amendment, the Equity Commitment Letters are valid, binding and in full force and effect (except to the extent enforcement may be limited by the Bankruptcy and Equity Exception) and, as of the date of this Amendment, no event has occurred that, with or without notice, lapse of time, or both, would reasonably be expected to constitute a default or breach or a failure to satisfy a condition precedent on the part of Parent or Elliott, as the case may be, under the terms and conditions of the Equity Commitment Letters. Parent and Elliott, as the case may be, have paid in full any and all commitment fees or other fees required to be paid pursuant to the terms of the Equity Commitment Letters on or before the date of this Amendment, and will pay in full any such amounts due on or before the Closing Date. As of the date of this Amendment, (A) none of the Equity Commitment Letters has been modified, amended or altered and (B) none of the respective commitments under any of the Equity Commitment Letters has been withdrawn or rescinded.

(c) Concurrently with the execution of this Amendment, Parent has delivered to the Company the Elliott Guarantee and amended and restated limited guarantees of each Guarantor (as defined in the Merger Agreement) (together with the Elliott Guarantee, the “Limited Guarantees”), duly executed by Elliott and such Guarantor (as defined in the Merger Agreement), as the case may be, with respect to certain matters, including guaranteeing certain obligations of Parent and Merger Sub in connection with the Merger Agreement and subject to the terms and conditions set forth therein. As of the date of this Amendment, each Limited Guarantee is in full force and effect and constitutes the valid and binding obligation of Elliott and the applicable Guarantor (as defined in the Merger Agreement), as the case may be, and is enforceable in accordance with its terms, subject to the Bankruptcy and Equity Exception.

(d) Other than as set forth on the Amendment to the Parent Disclosure Letter, assuming for this purpose that Elliott is the only Guarantor, the portions of the representations and warranties set forth in Section 4.3, Section 4.11, Section 4.12 and Section 4.13 of the Merger Agreement solely to the extent they relate to Elliott (in its capacity as a Guarantor), are true and correct as of the date hereof.

(e) At the Closing Date, all shares of Parent Stock directly or indirectly held by Elliott (the “Elliott Shares”) shall be shares that do not entitle any such holder of such shares to vote in the election of directors of Parent or with respect to any other corporate matters presented to the shareholders of Parent for vote. At the Closing Date, (i) the Elliott Shares will be directly held by a newly formed Delaware limited liability company (the “Elliott AIV”), (ii) the managing members of the Elliott AIV shall be one or more affiliates of Golden Gate Capital Opportunity Fund, L.P. and (iii) Elliott will not be entitled to appoint a director to the board of Parent or Merger Sub.

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(f) Other than as set forth on Annex B to this Amendment, as of the date hereof, no Person, other than Elliott, has contacted Parent regarding the possibility of such Person obtaining shares of (or rights to obtain shares of) Parent Stock in exchange for such Person’s contribution of common stock of the Company.

ARTICLE IV

MISCELLANEOUS AND GENERAL

4.1 Acknowledgement. Notwithstanding anything in the Merger Agreement to the contrary, Parent and Merger Sub hereby agree and acknowledge that the Participation and the execution of this Amendment, the Equity Commitment Letters, the Limited Guarantees, and the public announcements of such agreements and actions (including the Participation) and the Company’s and its Affiliates’, Subsidiaries’ and/or Representatives’ participation or involvement in any of the foregoing, either alone or in combination with each other, (a) do not constitute an Alternative Proposal or an Alternative Acquisition Agreement and (b) have not and do not in and of themselves entitle Parent to terminate the Merger Agreement pursuant to Section 7.1 thereof, nor entitle Parent to the payment of the Company Termination Fee (including pursuant to Section 7.3(a)(i) of the Merger Agreement) nor entitle Parent to the payment of any expenses pursuant to Section 7.3(b) of the Merger Agreement.

4.2 Ratification; No Further Amendment. Except as expressly amended hereby, all terms, conditions and provisions of the Merger Agreement shall remain unmodified and in full force and effect. This Amendment is limited precisely as written and shall not be deemed to be an amendment to any other term, condition or provision of the Merger Agreement or any of the documents, schedules or exhibits referred to therein. For the avoidance of doubt, the conditions in Section 6.1(b), Section 6.1(c) or Section 6.3(e) of the Merger Agreement shall remain unmodified.

4.3 Effect of Amendment. This Amendment shall form a part of the Merger Agreement for all purposes (including, for the avoidance of doubt, Articles III, IV, VI and VII of the Merger Agreement). From and after the date of this Amendment, any reference in the Merger Agreement to “this Agreement”, “hereof”, “herein”, and “hereunder” and words or expressions of similar import shall refer to the Merger Agreement as amended by this Amendment. The provisions of Article VIII (Miscellaneous) of the Merger Agreement shall apply mutatis mutandis to this Amendment, and to the Merger Agreement as amended by this Amendment, taken together as a single agreement, reflecting the terms therein as modified hereby.

[Remainder of page intentionally left blank.]

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered as of the date first above written.

BOXER PARENT COMPANY INC.
By:	/s/ Ian Loring
	Name:  Ian Loring
	Title:    President
BOXER MERGER SUB INC.
By:	/s/ Ian Loring
	Name:  Ian Loring
	Title:    President
BMC SOFTWARE, INC.
By:	/s/ Robert E. Beauchamp
	Name: Robert E. Beauchamp
	Title: Chairman of the Board, President and Chief Executive Officer

[Signature Page to Amendment No. 1 to the Agreement and Plan of Merger]

EX-4.1

Exhibit 4.1

THIRD AMENDMENT TO THE RIGHTS AGREEMENT

This THIRD AMENDMENT TO THE RIGHTS AGREEMENT (this “Amendment”) is made and entered into as of July 24, 2013, between BMC Software, Inc., a Delaware corporation (the “Company”), and Computershare Trust Company, N.A., as rights agent (the “Rights Agent”). Except as otherwise provided herein, all capitalized terms used in this Amendment and not defined herein shall have the meanings ascribed thereto in the Rights Agreement.

WHEREAS, the Company and the Rights Agent have entered into that certain Rights Agreement, dated as of May 12, 2012, as amended on May 4, 2013 and May 10, 2013 (as amended, the “Rights Agreement”);

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

WHEREAS, Parent, the Company and Elliott Associates, L.P. (“Elliott Associates”) and Elliott International, L.P. entered into a Voting Agreement, dated as of May 4, 2013;

WHEREAS, the Company, Parent and Merger Sub have determined to amend the Merger Agreement (such amendment, the “Merger Agreement Amendment”) in connection with the Company’s consent, which consent is conditioned upon the execution of the Merger Agreement Amendment, to permit Elliott Associates to directly or indirectly acquire shares of stock in Parent, prior to the Effective Time (as defined in the Merger Agreement), pursuant to the terms of the Merger Agreement Amendment and certain related agreements specifically referred to in this Amendment, including a Specified Guarantor Agreement (as defined below);

WHEREAS, pursuant to Section 27 of the Rights Agreement, at any time prior to the time at which any Person becomes an Acquiring Person, the Company may supplement or amend the Rights Agreement without the approval of any holders of Right Certificates in order to make any provisions with respect to the Rights which the Company may deem necessary or desirable, any such supplement or amendment to be evidenced by a writing signed by the Company and the Rights Agent;

WHEREAS, the Board of Directors desires to amend the Rights Agreement to exempt Parent, Merger Sub, any of the Guarantors (as defined in the Merger Agreement) and Elliott Associates from the definition of “Acquiring Person” as set forth in the Rights Agreement so as to render the Rights Agreement inapplicable to Parent, Merger Sub, any of the Guarantors and Elliott Associates as a result of the execution of the Merger Agreement Amendment, the Equity Commitment Letters (as defined in the Merger Agreement Amendment), the Limited Guarantees (as defined in the Merger Agreement Amendment) or any Specified Guarantor Agreement, and the consummation of the transactions contemplated by the Merger Agreement (as amended by the Merger Agreement Amendment), the Equity Commitment Letters, the Limited Guarantees or any Specified Guarantor Agreement, in each case on the terms set forth therein;

WHEREAS, no person has yet become an Acquiring Person and, subject to and in accordance with the terms of this Amendment, the Company has directed and the Rights Agent has agreed to amend the Rights Agreement in certain respects, as more particularly set forth herein.

NOW, THEREFORE, in consideration of these premises and the mutual covenants and agreements set forth in the Rights Agreement and this Amendment, the parties hereto agree to modify the Rights Agreement as set forth below.

1. Amendment to Section 1.

1.1 Section 1 of the Rights Agreement is hereby amended and supplemented to include the following definitions in the appropriate location, which shall read as follows:

“Equity Commitment Letters” has the meaning set forth in the Merger Agreement Amendment.

“Specified Guarantor Agreement” means one or more agreements solely among Parent, Merger Sub, the Guarantors (as defined by the Merger Agreement) and their respective Affiliates (as defined by the Merger Agreement) providing for arrangements with respect to the consummation of the transactions contemplated by the Merger Agreement and the Equity Commitment Letters, arrangements with respect to Parent and the Company following consummation of the Merger (as defined by the Merger Agreement), and/or obligations under the Limited Guarantees, and not providing for (x) any rights to acquire Beneficial Ownership of Common Shares or coordination of activities with respect to any acquisition of Beneficial Ownership of Common Shares following termination of the Merger Agreement or (y) activities with respect to any acquisition of Beneficial Ownership of Common Shares prior to the termination of the Merger Agreement other than in connection with the transactions contemplated by the Merger Agreement, the Equity Commitment Letters and the Limited Guarantees (it being understood, however, that a Specified Guarantor Agreement may contain restrictions on those activities referred to in clause (y)).

“Limited Guarantees” has the meaning set forth in the Merger Agreement Amendment.

“Elliott Associates” shall mean Elliott Associates, L.P.

“Merger Agreement Amendment” shall mean Amendment No. 1, dated as of July 24, 2013, to the Merger Agreement.

2. Addition of New Section 36.

2.1 The Rights Agreement is hereby amended and supplemented to add the following new section as follows:

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“Section 36. Exception For Merger Agreement Amendment. Notwithstanding any provision of this Agreement to the contrary, as long as the Merger Agreement is not validly terminated (or, in the case of any Specified Guarantor Agreement, as long as such Specified Guarantor Agreement is not validly terminated or expired, but only for so long as any such Specified Guarantor Agreement remains a Specified Guarantor Agreement as defined herein), neither a Distribution Date nor a Shares Acquisition Date shall be deemed to have occurred, none of Boxer Parent Company Inc. or Boxer Merger Sub Inc. or any of their Affiliates or Associates, nor any of the Guarantors (as defined in the Merger Agreement) or any of their Affiliates or Associates nor Elliott Associates, L.P. or Elliott International, L.P. or any of their Affiliates or Associates shall be deemed to have become an Acquiring Person, none of the Rights shall become exercisable and no holder of any Rights shall be entitled to exercise such Rights under, or be entitled to any adjustments or rights pursuant to, any of Sections 3, 7, 11 or 13 of this Agreement, in any such case by reason of the approval, execution or delivery of (a) the Merger Agreement or the Merger Agreement Amendment or the consummation of any of the transactions contemplated by the Merger Agreement (as amended by the Merger Agreement Amendment) or (b) the Equity Commitment Letters, the Limited Guarantees, any Specified Guarantor Agreement or the consummation of any of the transactions contemplated thereby. Nothing in this Rights Agreement shall be construed to give any holder of Rights or any other Person any legal or equitable rights, remedies or claims under this Rights Agreement by virtue of the approval, execution, delivery or performance of (x) the Merger Agreement (as amended by the Amendment) or the consummation of any of the transactions contemplated by the Merger Agreement (as amended by the Merger Agreement Amendment) or (y) the Equity Commitment Letters, the Limited Guarantees, any Specified Guarantor Agreement or the consummation of any of the transactions contemplated thereby.”

3. Effective Time of this Amendment

This Amendment shall be deemed effective as of the date first written above, as if executed on such date.

4. Confirmation of the Rights Agreement

Except as amended or modified hereby, all terms, covenants and conditions of the Rights Agreement as heretofore in effect shall remain in full force and effect and are hereby ratified and confirmed in all respects.

5. Governing Law

This Amendment shall be deemed to be a contract made under the laws of the State of Delaware and for all purposes shall be governed by and construed in accordance with the laws of such State applicable to contracts to be made and performed entirely within such State.

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6. Counterparts

This Amendment may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts together shall constitute but one and the same instrument. A signature to this Amendment transmitted electronically shall have the same authority, effect and enforceability as an original signature.

[Remainder of Page Intentionally Left Blank]

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and attested, all as of the day and year first above written.

Attest:		BMC Software, Inc.
By:	/s/ Mary A. Hayes	By:	/s/ Robert E. Beauchamp
	Name:  Mary A. Hayes		Name:  Robert E. Beauchamp
	Title:    Corporate Governance		Title:    Chairman of the Board,
	Manager		President and Chief
			Executive Officer
Attest:		COMPUTERSHARE TRUST
		COMPANY, N.A.
		as Rights Agent
By:	/s/ Colleen Shea-Kating	By:	/s/ Dennis J. Moccip
Name:	Colleen Shea-Kating		Name: Dennis J. Moccip
Title:	Contract Consultant		Title: Manager, Contract Administration

EX-10.1

Exhibit 10.1

EXECUTION VERSION

AGREEMENT

THIS AGREEMENT (“Agreement”), dated as of July 24, 2013, is entered into by and between BMC Software, Inc., a Delaware corporation (the “Company”), and Elliott Associates, L.P., a Delaware limited partnership (“Elliott”), and Elliott International, L.P., a Cayman Islands limited partnership (together, the “Stockholders”).

WITNESSETH:

WHEREAS, pursuant to Section 5.12 of the Merger Agreement (as may be amended from time to time, the “Merger Agreement”), dated as of May 6, 2013, by and among Boxer Parent Company Inc., a Delaware corporation (“Parent”), Boxer Merger Sub Inc., a Delaware corporation and a direct wholly owned subsidiary of Parent (“Merger Sub”), and the Company, the Company has provided its written consent (the “Company Consent”) to permit Elliott Associates, to directly or indirectly obtain shares of stock in Parent (“Parent Stock”), prior to the Effective Time (as defined in the Merger Agreement), in exchange for the Contribution (as defined in the Elliott Equity Commitment Letter (as defined below)) as contemplated by the Elliott Equity Commitment Letter (the “Participation”);

WHEREAS, in connection with the Participation and concurrently with the execution of the Amendment No. 1 to the Merger Agreement (the “Amendment”), dated as of the date hereof, Elliott is entering into an equity commitment letter (the “Elliott Equity Commitment Letter”) in favor of Parent, pursuant to which Elliott has agreed to invest in Parent the amounts set forth therein in connection with the Merger Agreement, as amended by the Amendment, as specified and subject to the terms and conditions therein; and

WHEREAS, in connection with the Participation and concurrently with the execution of the Amendment, Elliott is entering into a limited guarantee (the “Elliott Guarantee”) in favor of the Company, pursuant to which Elliott is guaranteeing certain obligations of Parent and Merger Sub in connection with the Merger Agreement, as amended by the Amendment, as specified and subject to the terms and conditions therein.

NOW, THEREFORE, in consideration of the foregoing and the mutual promises, representations, warranties, covenants and agreements of the parties contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the parties hereto, the parties hereto, intending to be legally bound hereby, agree as follows:

ARTICLE 1

COVENANTS

1.1 Covenants of the Stockholders. Each of the Stockholders agrees with the Company that, during the period commencing on the date hereof and ending on the date when this Agreement terminates in accordance with Section 3.1 (the “Covered Period”), it shall

not, and shall cause each of its affiliates and each of its and their respective directors, officers, partners, members and agents (acting in such capacity) (collectively, “Representatives”) not to, in any manner, directly or indirectly, alone or in concert with others:

(i) form, join, encourage, influence, advise or in any way participate in a “partnership, limited partnership, syndicate or other group” (within the meaning of Section 13(d)(3) of the United States Securities Exchange Act of 1934 (the “Exchange Act”)) with respect to any securities of the Company (other than any “group” solely among the Stockholders and their affiliates (the “Stockholder Affiliates”); provided that the Stockholder Affiliates shall not include either competitors of the Company or companies in the computer software industry) or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement and in the Voting Agreement, dated as of May 4, 2013, by and among Parent, the Company and the Stockholders (the “Voting Agreement”);

(ii) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv)) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company for the election of individuals to the Company’s board of directors (the “Board”) or to approve stockholder proposals, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used under the Exchange Act), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any stockholder meeting;

(iii) make or be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);

(iv) (A) call or seek to call any meeting of stockholders, including by written consent, (B) seek representation on the Board, (C) seek the removal of any member of the Board, (D) solicit consents from stockholders, (E) conduct a referendum of stockholders or (F) make a request for any stockholder list or other similar Company records;

(v) sell, offer or agree to sell, all or substantially all, directly or indirectly, through swap or hedging transactions or otherwise, voting rights decoupled from the underlying common stock, par value $0.01 per share, of the Company (“Common Stock”) held by the Stockholders to any Third Party (as defined below);

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(vi) take any action, alone or in concert with others, in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or (except as provided in Section 1.1) to fill any vacancies on the Board, (B) any material change in the capitalization or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive, or make amendments or modifications to, the Company’s Certificate of Incorporation or Bylaws, or other actions which may impede the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (F) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;

(vii) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to the foregoing, or advise, assist, intentionally encourage or seek to persuade any Third Party to take any action with respect to any of the foregoing, or otherwise take or cause any action inconsistent with any of the foregoing; or

(viii) request, directly or indirectly, any amendment or waiver of the foregoing matters.

For purposes of this Agreement, the terms “affiliate” and “associate” shall have the respective meanings set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act, and the term “Third Party” shall mean any person or entity that is not a party to this Agreement or an affiliate thereof, a member of the Board, a director or officer of the Company, or legal counsel to any party to this Agreement.

The foregoing provisions of this Section 1.1 shall not be deemed to prohibit the Stockholders and their Representatives from (i) communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications, (ii) negotiating, consummating or (subject to the confidentiality and other obligations of Parent under the Merger Agreement and of the Stockholders under the Existing Confidentiality Agreement (as defined in the Elliott Guarantee) and under any other agreement with Parent or any of the other Guarantors (as defined in the Merger Agreement) publicly commenting on the transactions contemplated by the Elliott Guarantee, the Elliott Equity Commitment Letter or the Merger Agreement or Elliott’s direct or indirect equity ownership of Parent resulting therefrom, in each case in accordance with the provisions of the Voting Agreement or (iii) complying with its obligations under the Voting Agreement.

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ARTICLE 2

REPRESENTATIONS AND WARRANTIES

2.1 Representations of the Stockholders

The Stockholders represent and warrant as follows:

(a) The Stockholders have the power and authority to execute, deliver and carry out the terms and provisions of this Agreement and to consummate the transactions contemplated hereby.

(b) This Agreement has been duly and validly authorized, executed and delivered by the Stockholders, constitutes a valid and binding obligation and agreement of the Stockholders and is enforceable against the Stockholders in accordance with its terms.

2.2 Representations of the Company

The Company represents and warrants as follows:

(a) The Company has the power and authority to execute, deliver and carry out the terms and provisions of this Agreement and to consummate the transactions contemplated hereby.

(b) This Agreement has been duly and validly authorized, executed and delivered by the Company, constitutes a valid and binding obligation and agreement of the Company and is enforceable against the Company in accordance with its terms.

ARTICLE 3

TERMINATION

3.1 Termination

This Agreement shall remain in full force and effect until the earliest of:

(a) the valid termination of the Elliott Guarantee; and

(b) such other date established by mutual written agreement of the Company and the Stockholders.

3.2 Effect of Termination

Article 4 shall survive the termination of this Agreement. No termination pursuant to Section 3.1 shall relieve any party hereto from liability for any breach of this Agreement prior to such termination.

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ARTICLE 4

GENERAL

4.1 Notices

All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given to a party if delivered in person or sent by overnight delivery (providing proof of delivery) to the party at the following addresses (or at such other address for a party as shall be specified by like notice) on the date of delivery, or if by facsimile, upon confirmation of receipt:

If to the Company:	BMC Software, Inc. 2101 CityWest Boulevard Houston, TX 77042-2827 Attention: Patrick K. Tagtow Telephone: 713-918-3301 Facsimile: 713-918-8000
with a copy (which shall not constitute notice) to	Wachtell, Lipton, Rosen & Katz 51 West 52nd Street New York, NY 10019 Attention: David C. Karp Telephone: 212-403-1327 Facsimile: 212-403-2327
If to the Stockholders and any of their Representatives	c/o Elliott Management Corporation 40 West 57th Street New York, NY 10019 Attention: Jesse Cohn Telephone: 212-478-2870 Facsimile: 212-478-2871
with a copy (which shall not constitute notice) to	Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, NY 10019 Attention: Robert B. Schumer,         Steven J. Williams Facsimile: 212-757-3990

4.2 No Third-Party Beneficiaries

Nothing in this Agreement, whether express or implied, is intended to or shall confer any rights, benefits or remedies under or by reason of this Agreement on any persons other than the parties hereto, nor is anything in this Agreement intended to relieve or discharge the obligation or liability of any third persons to any party.

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4.3 Governing Law

This Agreement shall be governed and construed in accordance with the laws of the State of Delaware, without regard to the conflict of law principles thereof. The parties and their respective Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agree that service of any process, summons, notice or document by U.S. registered mail to the address set forth in Section 4.1 of this Agreement shall be effective service of process for any action, suit or proceeding brought against them; (c) irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally waive the right to plead or claim, and irrevocably and unconditionally agree not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.

4.4 Assignment

This Agreement shall be binding upon and inure to the benefit of and be enforceable only by the parties hereto. No party to this Agreement may assign its rights or delegate its obligations under this Agreement, whether by operation of law or otherwise.

4.5 Amendments; Waivers

This Agreement may only be amended pursuant to a written agreement executed by all the parties, and no waiver of compliance with any provision or condition of this Agreement and no consent provided for in this Agreement shall be effective unless evidenced by a written instrument executed by the party against whom such waiver or consent is to be effective. No failure or delay by a party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.

4.6 Entire Agreement

This Agreement, the Amendment, the Merger Agreement, the Voting Agreement, Existing Confidentiality Agreement, the Equity Commitment Letters (as defined in the Amendment) and the Limited Guarantees (as defined in the Amendment) constitute the entire agreement of all the parties and supersedes any and all prior and contemporaneous agreements, memoranda, arrangements and understandings, both written and oral, between the parties, or any of them, with respect to the subject matter hereof. No representation, warranty, promise, inducement or statement of intention has been made by any party which is not contained in this Agreement and no party shall be bound by, or be liable for, any alleged representation, promise, inducement or statement of intention not contained herein. The parties expressly disclaim reliance on any information, statements, representations or warranties regarding the subject matter of this Agreement other than the terms of this Agreement.

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4.7 Counterparts

This Agreement may be executed in any number of counterparts (including by facsimile transmission), each of which shall be deemed to be an original, but all of which together shall constitute one binding agreement on the parties, notwithstanding that not all parties are signatories to the same counterpart.

4.8 Expenses

All attorneys’ fees, costs and expenses incurred in connection with this Agreement and all matters related hereto will be paid by the party incurring such fees, costs or expenses.

4.9 Captions

The captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement.

4.10 Specific Performance

The parties agree that irreparable damage would occur in the event any of the provisions of this Agreement were not performed in accordance with the terms hereof and that such damage would not be adequately compensable in damages. It is accordingly agreed that the parties are entitled to seek an injunction or specific performance of the terms hereof in addition to any other remedies at law or in equity, and a party will not take any action, directly or indirectly, in opposition to another party seeking relief on the grounds that any other remedy or relief is available at law or in equity, and the parties further agree to waive any requirement for the security or posting of any bond in connection with such remedy or relief.

[Remainder of Page Intentionally Left Blank; Signature Page Follows]

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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first above written.

BMC SOFTWARE, INC.
By:	/s/ Robert E. Beauchamp
Name:	Robert E. Beauchamp
Title:	Chairman of the Board, President and Chief Executive Officer
ELLIOTT ASSOCIATES, L.P.
By: Elliott Capital Advisors, L.P., as General Partner
By: Braxton Associates, Inc., as General Partner
By:	/s/ Elliot Greenberg
Name:	Elliot Greenberg
Title:	Vice President
ELLIOTT INTERNATIONAL, L.P.
By: Elliott International Capital Advisors Inc.,as Attorney-in-Fact
By:	/s/ Elliot Greenberg
Name:	Elliot Greenberg
Title:	Vice President

[Signature Page to the Standstill Agreement between BMC Software, Inc. and Elliott]

EX-99.1

Exhibit 99.1

For Immediate Release

BMC Software Announces Stockholder Approval of Merger Agreement With Investor Group

Reaches Agreement in Principle to Settle Stockholder Litigation With Additional Payment to Stockholders

HOUSTON – July 24, 2013 – BMC Software (NASDAQ: BMC) (“BMC” or “the Company”) today announced that, in accordance with the terms of the Agreement and Plan of Merger (the “Merger Agreement”), dated May 6, 2013, by and among the Company, Boxer Parent Company Inc., a Delaware corporation (“Parent”), and Boxer Merger Sub Inc., a Delaware corporation (“Merger Sub”) and a wholly owned subsidiary of Parent, the Company’s stockholders overwhelmingly voted to approve all of the stockholder proposals required for the proposed merger of Merger Sub with and into the Company, providing for merger consideration of $46.25 per share. Parent was formed by affiliates of investment funds advised by Bain Capital, LLC, Golden Gate Private Equity, Inc., Insight Venture Management, LLC, and a company affiliated with GIC Special Investments Pte Ltd (collectively, “Buyer Group”). “We are excited to achieve the next milestone in this process and are pleased with the outcome of today’s vote,” said Bob Beauchamp, chairman and chief executive officer at BMC. “We thank our stockholders for their support and look forward to completing the remaining steps required to close the transaction. We believe this transaction will provide compelling opportunities for the future of BMC, and for our employees and customers around the world.”

In addition to the receipt of stockholder approval of the Merger Agreement, the Board of Directors of the Company has provided its consent (the “Company Consent”) to a rollover contribution by Elliott Associates, L.P. (“Elliott”), a current stockholder of the Company, to Parent of approximately $137 million (the “Elliott Rollover”) at a price which represents a premium to the investment price paid by the members of the Buyer Group. In connection with the Company Consent, Parent, Merger Sub and the Company entered into Amendment No. 1 to the Merger Agreement (the “Amendment”). The Amendment provides that the Company has the right to revoke the Company Consent and terminate Elliott’s rights and obligations to the Company with respect to the Elliott Rollover, in the event the Elliott Rollover (1) will or would reasonably be expected to result in a non-de minimis delay of the consummation of the transactions contemplated by the Merger Agreement, (2) will have or would reasonably be expected to have an adverse impact on the ability of the Company to secure the approval of the Merger Agreement by the Company’s stockholders, or (3) in the event the equity commitment letter entered into by Elliott in connection with the Elliott Rollover is terminated under certain specified circumstances.

Concurrent with the negotiation of the Elliott Rollover, the parties to the consolidated stockholder litigation commenced in connection with Parent’s proposed acquisition of BMC have reached an agreement in principle (the “Agreement”) to provide for the settlement of all claims related to such litigation. The Agreement provides for, among other things, a stay of all proceedings in such litigation, and releases for all defendants and their agents, from all claims arising from or in connection with such litigation. Under the Agreement, promptly following approval of the settlement by the Delaware Chancery Court, but no sooner than the closing of the transaction, $12.4 million in cash (the “Payment”) will be distributed pro rata to all holders of

BMC common stock and equity awards as of the closing. The Company will use funds taken from the proceeds of the Elliott Rollover to fund all of the Payment. Elliott will waive its right to participate in such payment, such that the entire Payment will be distributed to the other equity holders of the Company. The Agreement is subject to entering into a Memorandum of Understanding and other final documentation, approval by the Delaware Chancery Court, consummation of the proposed acquisition of the Company, and completion of the Elliott Rollover.

Business Runs on IT. IT Runs on BMC Software.

More than 20,000 IT organizations – from the Global 100 to the smallest businesses – in over 120 countries rely on BMC Software (NASDAQ: BMC) to manage their business services and applications across distributed, mainframe, virtual and cloud environments. With the industry’s broadest choice of leading IT management solutions, including the award-winning Cloud Management and MyIT offerings, BMC helps customers cut costs, reduce risk and achieve business objectives. For the four fiscal quarters ended March 31, 2013, BMC revenue was $2.2 billion. www.bmc.com

Forward-Looking Statements

Statements about the expected timing, completion and effects of the proposed transaction 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 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 Merger Agreement, (2) the failure to obtain any required regulatory approval or the failure to satisfy any 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.

BMC Software:

Mark Stouse, 281-468-1608

Global Communications

mark_stouse@bmc.com

Derrick Vializ, 713-918-1805

Investor Relations

derrick_vializ@bmc.com

or

Joele Frank, Wilkinson Brimmer Katcher

Andy Brimmer / Nicholas Lamplough

212-355-4449

abrimmer@joelefrank.com

nlamplough@joelefrank.com

or

For Bain Capital:

Stanton Public Relations & Marketing

Alex Stanton/Charlyn Lusk

212-780-0701

AStanton@stantonprm.com

CLusk@stantonprm.com

or

For Golden Gate Capital:

Sard Verbinnen & Co

Paul Kranhold/Jenny Gore, 415-618-8750

Nathaniel Garnick, 212-687-8080

or

For GIC:

Ms. Mah Lay Choon

Senior Vice President, Corporate Affairs & Communications

Tel: (65) 6889 6841

H/P: (65) 9838 9425

mahlaychoon@gic.com.sg

or

For Insight Venture Management, LLC:

GF Bunting PR

David Satterfield, 408-802-6767