SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 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): NOVEMBER 20, 2002
BMC SOFTWARE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 001-16393 74-2126120
(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of incorporation) Identification No.)
2101 CITYWEST BOULEVARD
HOUSTON, TEXAS 77042-2827
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code: (713) 918-8800
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On November 20, 2002, BMC Software, Inc. ("BMC") completed its
acquisition of the Remedy business (the "Remedy Business") from Peregrine
Systems, Inc. ("Peregrine") for $355 million in cash and the assumption of
certain operating liabilities of the Remedy Business. The Remedy Business
focuses on automating service-related business processes through a complete
suite of best practice service management applications, including IT service
management and customer service and support solutions.
The acquisition was consummated in accordance with the terms of an
Acquisition Agreement, dated as of September 20, 2002, by and among Peregrine,
Peregrine Remedy, Inc, a wholly owned subsidiary of Peregrine ("Remedy") and BMC
(the "Acquisition Agreement") and the amendments thereto (the "Amendments"). The
$355 million purchase price is subject to an upward or downward adjustment on a
dollar-for-dollar basis to the extent that the acquired current assets of the
Remedy Business less the assumed liabilities (excluding deferred revenues) of
the Remedy Business as of November 20, 2002 calculated in accordance with
generally accepted accounting principles is greater or less than $28.67 million.
Of the $355 million purchase price, $10 million is being held in escrow in
accordance with the terms and conditions of an escrow agreement by and among
J.P. Morgan Chase Bank, as escrow agent, BMC and Peregrine to satisfy any
obligations of Peregrine to repay a portion of the purchase price pursuant to
the purchase price adjustment or to indemnify BMC against any claims made by BMC
against Peregrine for any breaches of its representations or warranties
contained in or made pursuant to the Acquisition Agreement, as amended by the
Amendments.
Prior to closing of the acquisition, pursuant to a Debtor In Possession
Credit Agreement, dated as of September 24, 2002, by and among Peregrine,
certain subsidiaries of Peregrine and BMC, BMC provided Peregrine with
debtor-in-possession financing of $54 million. This financing, which was netted
against the purchase price, was terminated upon the closing of the acquisition.
The purchase price was funded with BMC's available cash.
The purchase price for the Remedy Business was determined through
negotiations between BMC and Peregrine. Prior to the acquisition, there were no
material relationships between Peregrine or Remedy, on the one hand, and BMC,
any of BMC's affiliates, directors or officers or any associate of such
directors or officers, on the other hand.
Copies of the Acquisition Agreement, the Amendments and the Escrow
Agreement are filed herewith as exhibits and incorporated herein by reference.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) FINANCIAL STATEMENTS OF BUSINESSES ACQUIRED.
Financial statements of the Remedy Business have not been included
herein but are expected to be included in an amendment to this Current Report on
Form 8-K to be filed not later than 60 days after the date that this Current
Report on Form 8-K is required to be filed.
(c) EXHIBITS.
The following exhibits are filed with this Current Report on Form 8-K:
2.1 Acquisition Agreement, dated as of September 20, 2002, by and among BMC
Software, Inc., Peregrine Systems, Inc. and Peregrine Remedy, Inc.
(incorporated by reference to Exhibit 10.1 of BMC Software, Inc.'s
Quarterly Report on Form 10-Q for the quarter ended September 30,
2002).
2.2 First Amendment to Acquisition Agreement, dated as of September 24,
2002, by and among BMC Software, Inc., Peregrine Systems, Inc. and
Peregrine Remedy, Inc. (incorporated by reference to Exhibit 10.2 of
BMC Software, Inc.'s Quarterly Report on Form 10-Q for the quarter
ended September 30, 2002).
2.3 Second Amendment to Acquisition Agreement, dated as of October 25,
2002, by and among BMC Software, Inc., Peregrine Systems, Inc. and
Peregrine Remedy, Inc.
2.4 Third Amendment to Acquisition Agreement, dated as of November 18,
2002, by and among BMC Software, Inc., Peregrine Systems, Inc. and
Peregrine Remedy, Inc.
2.5 Escrow Agreement, dated as of November 20, 2002, by and among
J.P. Morgan Chase Bank, Peregrine Systems, Inc. and BMC Software, Inc.
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.
Date: December 4, 2002 By: /s/ Robert H. Whilden, Jr.
-----------------------------------------
Robert H. Whilden, Jr.
Senior Vice President and General Counsel
EXHIBIT INDEX
2.1 Acquisition Agreement, dated as of September 20, 2002, by and among
BMC Software, Inc., Peregrine Systems, Inc. and Peregrine Remedy, Inc.
(incorporated by reference to Exhibit 10.1 of BMC Software, Inc.'s
Quarterly Report on Form 10-Q for the quarter ended September 30,
2002).
2.2 First Amendment to Acquisition Agreement, dated as of September 24,
2002, by and among BMC Software, Inc., Peregrine Systems, Inc. and
Peregrine Remedy, Inc. (incorporated by reference to Exhibit 10.2 of
BMC Software, Inc.'s Quarterly Report on Form 10-Q for the quarter
ended September 30, 2002).
2.3 Second Amendment to Acquisition Agreement, dated as of October 25,
2002, by and among BMC Software, Inc., Peregrine Systems, Inc. and
Peregrine Remedy, Inc.
2.4 Third Amendment to Acquisition Agreement, dated as of November 18,
2002, by and among BMC Software, Inc., Peregrine Systems, Inc. and
Peregrine Remedy, Inc.
2.5 Escrow Agreement, dated as of November 20, 2002, by and among
J.P. Morgan Chase Bank, Peregrine Systems, Inc. and BMC Software, Inc.