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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):
JANUARY 31, 1998
BGS SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
MASSACHUSETTS 0-12192 04-2559993
(State or other jurisdiction (Commission File (IRS Employer
of incorporation) Number) Identification No.)
ONE FIRST AVENUE, WALTHAM, MASSACHUSETTS 02254-9111
(Address of principal executive offices and zip code)
(781) 891-0000
(Registrant's telephone number, including area code)
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ITEM 5. OTHER EVENTS.
On January 31, 1998, BGS Systems, Inc. ("BGS") and BMC Software, Inc.
("BMC") entered into a merger agreement (the "Merger Agreement") pursuant to
which a wholly-owned subsidiary of BMC would be merged with and into BGS (the
"Merger") and BGS will become a wholly-owned subsidiary of BMC. As consideration
for the Merger, BMC will issue to each stockholder of BGS the equivalent of $45
of BMC common stock in exchange for each share of BGS common stock held by such
stockholder, with the value of the BMC common stock being determined based on
the average of the closing sales prices of BGS common stock (rounded to the
nearest thousandth) as reported by the Nasdaq National Market for the ten
consecutive trading days ending on the third trading day prior to the meeting of
BGS stockholders held for the purpose of approving the Merger.
Completion of the Merger is subject to a number of conditions,
including approval of the transaction by the stockholders of BGS, expiration or
early termination of the waiting period under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 and satisfaction of other customary closing conditions.
The foregoing description of the Merger is qualified in its entirety by
reference to the Merger Agreement, a copy of which is filed herewith as
Exhibit 2.1 and incorporated herein by reference.
In connection with the execution of the Merger Agreement, certain
stockholders of BGS, who hold, in the aggregate, approximately 52.2% of the
outstanding common stock of BGS, entered into stockholder agreements with BMC in
which such stockholders have (i) agreed to vote their shares of BGS common stock
in favor of the Merger and (ii) granted BMC an irrevocable option to purchase
their shares of BGS common stock for $45 per share, with such option to become
exercisable by BMC upon (A) the termination of the Merger Agreement under
certain circumstances or (B) the failure of the holders of two-thirds of the
outstanding shares of BGS common stock to approve the Merger after the public
announcement of, or the disclosure to the Board of Directors of BGS of, a
competing proposal to acquire BGS. The form of stockholder agreement is filed
herewith as Exhibit 99.1.
Also in connection with the execution of the Merger Agreement, BGS
entered into employment and non-competition agreements with Harold S. Schwenk,
Jr., its President and Chief Executive Officer, and Jeffrey P. Buzen, its Senior
Vice President and Chief Scientist. The form of these agreements is filed
herewith as Exhibit 99.2.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
2.1 Agreement and Plan of Reorganization dated as of
January 31, 1998 between BMC Software, Inc., Ranger
Acquisition Corp. and BGS Systems, Inc. Filed herewith.
Pursuant to Item 601(b)(2) of Regulation S-K, the schedules
referred to in the Agreement and Plan of Reorganization are
omitted. The Registrant hereby undertakes to furnish
supplementally a copy of any omitted schedule upon request.
99.1 Form of Stockholder Agreement between certain stockholders
of BGS Systems, Inc. and BMC Software, Inc. Filed herewith.
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99.2 Form of Employment Agreement dated as of January 31, 1998
between BGS Systems, Inc. and each of Harold S. Schwenk,
Jr. and Jeffrey P. Buzen. Filed herewith.
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SIGNATURES
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.
Date: February 3, 1998 BGS SYSTEMS, INC.
/s/ Harold S. Schwenk, Jr.
By: _________________________________
Harold S. Schwenk, Jr.
President and Chief Executive Officer
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EXHIBIT INDEX
EXHIBIT SEQUENTIAL
NO. DESCRIPTION PAGE NO.
- ------- ----------- ----------
2.1 Agreement and Plan of Reorganization dated as of
January 31, 1998 between BMC Software, Inc., Ranger
Acquisition Corp. and BGS Systems, Inc. Filed herewith.
Pursuant to Item 601(b)(2) of Regulation S-K, the
schedules referred to in the Agreement and Plan of
Reorganization are omitted. The Registrant hereby
undertakes to furnish supplementally a copy of any omitted
schedule upon request.
99.1 Form of Stockholder Agreement between certain stockholders
of BGS Systems, Inc. and BMC Software, Inc. Filed
herewith.
99.2 Form of Employment Agreement dated as of January 31, 1998
between BGS Systems, Inc. and each of Harold S. Schwenk,
Jr. and Jeffrey P. Buzen. Filed herewith.