Item
1.01 Entry into a Material Definitive Agreement.
On
March 17, 2008, BladeLogic, Inc., a Delaware corporation (the Company),
entered into an Agreement and Plan of Merger (the Merger Agreement) with BMC
Software, Inc., a Delaware corporation (BMC), and Bengal Acquisition
Corporation, a Delaware corporation and a wholly-owned subsidiary of BMC (the Purchaser),
pursuant to which, among other things, the Purchaser will commence a tender
offer for all the outstanding shares of common stock of the Company, subject to
the terms and conditions of the Merger Agreement.
Merger
Agreement
Pursuant
to the Merger Agreement, and upon the terms and subject to the conditions
thereof, the Purchaser will commence a tender offer (the Offer) to acquire
all the outstanding shares of the Companys common stock, par value $0.001 per
share (Company Common Stock), at a price of $28.00 per share, net to the
selling stockholders in cash, without interest (the Offer Price). The Merger Agreement provides that the Offer
will be commenced by March 26, 2008 (or such other day as the parties
agree in writing), and will remain open for 20 business days, subject to
possible extension on the terms set forth in the Merger Agreement. Pursuant to the Merger Agreement, after the
consummation of the Offer, and subject to the satisfaction or waiver of certain
conditions set forth in the Merger Agreement, the Purchaser will merge with and
into the Company (the Merger) and the Company will become a wholly-owned
subsidiary of BMC (the Surviving Corporation). At the effective time of the Merger, each
issued and outstanding share of Company Common Stock (Shares) (other than
Shares owned by the Company, BMC or the Purchaser, and stockholders who have
perfected their statutory rights of appraisal under Section 262 of the
Delaware General Corporation Law), will be automatically converted into the
right to receive an amount in cash, without interest, equal to the Offer Price.
The
Merger Agreement includes customary representations, warranties and covenants
of the Company, BMC and the Purchaser.
The Company has agreed to operate its business in the ordinary course
until the Offer is consummated. The Company has also agreed not to solicit or
initiate discussions with third parties regarding other proposals to acquire
the Company and to certain other restrictions on its ability to respond to such
proposals. The Merger Agreement also includes customary termination provisions
for both the Company and BMC and provides that, in connection with the
termination of the Merger Agreement under specified circumstances, the Company
may be required to pay to BMC a termination fee of $28,500,000.
Consummation
of the Offer is subject to various conditions, including the tender of at least
a majority of the fully diluted shares of common stock of the Company (assuming
conversion or exercise of all derivative securities regardless of the
conversion or exercise price, the vesting schedule or the other terms and
conditions thereof) in the Offer, the expiration or termination of applicable
waiting periods under the United States Hart-Scott-Rodino Antitrust
Improvements Act, and other customary closing conditions. Subject to the terms of the Merger Agreement,
the Company has granted the Purchaser an option to purchase that number of
newly-issued Shares that is equal to one Share more than the amount needed to
give the Purchaser ownership of 90% of the outstanding Shares (determined on a
fully-diluted basis (which assumes
2
conversion
or exercise of all derivative securities regardless of the conversion or
exercise price, the vesting schedule or the other terms and conditions
thereof)) (the Top-Up Option). The
Top-Up Option is exercisable only if the Purchaser acquires at least 85% of the
outstanding Shares pursuant to the Offer or otherwise. The Purchaser will pay the Company the Offer
Price for each share acquired upon exercise of the Top-Up Option.
The
foregoing summary of the Merger Agreement and the transactions contemplated
thereby does not purport to be complete and is subject to, and qualified in its
entirety by, the full text of the Merger Agreement attached as Exhibit 2.1
hereto and incorporated herein by reference.
On
March 17, 2008, the Company and BMC issued a joint press release relating
to the Merger Agreement. A copy of the
press release is attached hereto as Exhibit 99.1.
The
Merger Agreement has been attached as an exhibit to provide investors and
security holders with information regarding its terms. It is not intended to
provide any other factual information about the Company. The representations,
warranties and covenants contained in the Merger Agreement were made only for
the purposes of such agreement and as of specified dates, were solely for the
benefit of the parties to such agreement, and may be subject to limitations agreed
upon by the contracting parties. The representations and warranties may have
been made for the purposes of allocating contractual risk between the parties
to the agreement instead of establishing these matters as facts, and may be
subject to standards of materiality applicable to the contracting parties that
differ from those applicable to investors. Investors are not third-party
beneficiaries under the Merger Agreement and should not rely on the
representations, warranties and covenants or any descriptions thereof as
characterizations of the actual state of facts or condition of the Company or
BMC or any of their respective subsidiaries or affiliates. In addition, the
assertions embodied in the representations and warranties contained in the
Merger Agreement are qualified by information in a confidential disclosure
schedule that the parties have exchanged. Accordingly, investors should not
rely on the representations and warranties as characterizations of the actual
state of facts, since (i) they were made only as of the date of such
agreement or a prior, specified date, (ii) in some cases they are subject
to qualifications with respect to materiality, knowledge and/or other matters,
and (iii) they may be modified in important part by the underlying disclosure
schedule. Moreover, information concerning the subject matter of the
representations and warranties may change after the date of the Merger
Agreement, which subsequent information may or may not be fully reflected in
the Companys public disclosures.
Additional
Information
The
tender offer described in this report has not yet commenced, and this report is
neither an offer to purchase nor a solicitation of an offer to sell securities.
At the time the tender offer is commenced, the Purchaser will file a tender
offer statement with the U.S. Securities and Exchange Commission (the SEC).
Investors and Company security holders are strongly advised to read the tender
offer statement (including an offer to purchase, letter of transmittal and
related tender offer documents) and the related solicitation/recommendation
statement that will
3
be
filed by the Company with the SEC, because they will contain important
information. These documents will be available at no charge on the SECs Web
site at www.sec.gov.
Safe
Harbor for Forward-Looking Statements
Statements
in this Current Report on Form 8-K may contain, in addition to historical information, certain forward-looking
statements. All statements included in
this Current Report on Form 8-K concerning activities, events or developments that BMC and the Company
expects, believes or anticipates will or may occur in the future are
forward-looking statements. Actual
results could differ materially from the results discussed in the
forward-looking statements. Forward-looking statements are based on current
expectations and projections about future events and involve known and unknown
risks, uncertainties and other factors that may cause actual results and performance
to be materially different from any future results or performance expressed or
implied by forward-looking statements, including the risk that the tender offer
will not close because of a failure to satisfy one or more of the closing
conditions and that the Companys business will have been adversely impacted
during the pendency of the tender offer.
Additional information on these and other risks, uncertainties and
factors is included in the Companys Annual Report on Form 10-K, Quarterly
Reports on Form 10-Q, Current Reports on Form 8-K and other documents
filed with the SEC.
Item 9.01.
Financial Statements and Exhibits.
Exhibits.
The
following exhibits are attached to this Current Report on Form 8-K:
Exhibit 2.1
|
|
Agreement
and Plan of Merger, dated as of March 17, 2008, by and among BMC
Software, Inc., a Delaware corporation, Bengal Acquisition Corporation,
a Delaware corporation, and BladeLogic, Inc., a Delaware corporation.*
|
|
|
|
Exhibit 99.1
|
|
Press
Release, dated March 17, 2008.
|
*
Exhibits
omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company
agrees to furnish a supplemental copy of any omitted exhibit to the SEC upon
request.
4