Attached files
file | filename |
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10-Q - FORM 10-Q - BMC SOFTWARE INC | c03730e10vq.htm |
EX-31.2 - EXHIBIT 31.2 - BMC SOFTWARE INC | c03730exv31w2.htm |
EX-32.1 - EXHIBIT 32.1 - BMC SOFTWARE INC | c03730exv32w1.htm |
EX-31.1 - EXHIBIT 31.1 - BMC SOFTWARE INC | c03730exv31w1.htm |
EXCEL - IDEA: XBRL DOCUMENT - BMC SOFTWARE INC | Financial_Report.xls |
EX-32.2 - EXHIBIT 32.2 - BMC SOFTWARE INC | c03730exv32w2.htm |
Exhibit
3.1
FILED
AUG 19 1988
12:45 pm
RESTATED
CERTIFICATE OF INCORPORATION
OF
BMC SOFTWARE, INC.
CERTIFICATE OF INCORPORATION
OF
BMC SOFTWARE, INC.
This Restated Certificate of Incorporation of BMC Software, Inc. (the Company)
has been duly executed and is being filed by the undersigned in accordance with the
provisions of Section 103 of the General Corporation Law of the State of Delaware to
amend and restate the original Certificate of Incorporation, which was filed on June
29, 1988, under the Companys present name, with the Secretary of State of the State
of Delaware (the Certificate), to form a corporation under the General Corporation
Law of the State of Delaware. The Restated Certificate of Incorporation was duly
adopted by the directors of the Company with the approval of the stockholders, all in
accordance with the provisions of Sections 242 and 245 of the General Corporation Law
of the State of Delaware.
The Certificate is hereby amended and restated in its entirety to read as
follows:
FIRST: The name of the Corporation is BMC SOFTWARE, INC.
SECOND: The address of the registered office of the Corporation in the State of
Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle. The
name of the registered agent of the Corporation at such address is The Corporation Trust
Company.
THIRD: The nature of the business or purposes to be conducted or promoted by the
Corporation is to engage in any lawful business, act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware.
FOURTH: The aggregate number of shares which the Corporation shall have authority
to issue is Forty Six Million (46,000,000) shares, of which One Million
(1,000,000) shall be shares of Preferred Stock, of the par value of One Cent ($.01)
per share (the Preferred Stock), and Forty Five Million (45,000,000) shall be shares
of Common Stock, of the par value of One Cent ($.01) per share
(Common Stock).
The following is a statement of the designations, preferences, limitations and relative
rights in respect of the shares of each class of stock:
I.
Provisions Applicable to Preferred Stock
The Preferred Stock may be issued from time to time in one or more series and in such amounts
as may be fixed and determined herein or by the Board of Directors. The designations, preferences
and relative, participating, optional and other special rights, and the qualifications,
limitations or restrictions thereof, of each series of Preferred Stock shall be such as are fixed
by the Board of Directors, and stated and expressed in a resolution or resolutions adopted by the
Board of Directors providing for the establishment of any such series of Preferred Stock. The
Board of Directors is hereby expressly authorized to establish any series of unissued shares of
Preferred Stock by fixing and determining the relative rights and preferences of the shares of any
series so established, within the limitations set forth herein, and to increase or decrease the
number of shares within each such series; provided, however, that the Board of Directors may not
decrease the number of shares within a series below the number of shares within such series that
is then issued.
Except in respect of the particulars fixed by the Board of Directors for series established
by the Board of Directors as permitted hereby, all shares of Preferred Stock shall be of equal
rank and shall be identical. All shares of any one series of Preferred Stock so designated by the
Board of Directors shall be alike in every particular, except that shares of any one series issued
at different times may differ as to the dates from which dividends thereon shall be cumulative.
II.
Provisions Applicable to Common Stock
1. Junior Stock. The Common Stock is junior to each series of the Preferred Stock and
is subject to all of the rights, privileges and preferences and priorities of the Preferred Stock.
-2-
2. Dividends. Subject to all rights of each series of the Preferred Stock, dividends
may be paid on the Common Stock as and when declared by the Board of Directors of the Corporation
out of any funds of the Corporation legally available for the payment thereof.
3. Liquidation Preference. After payment shall have been made in full to the holders
of each series of the Preferred Stock in the event of any liquidation, dissolution or winding up
of the Corporation, to the extent of the liquidation preferences of such class of stock, the
remaining assets and funds of the Corporation shall be distributed to the holders of the Common
Stock according to their respective shares.
4. Voting. The holders of shares of Common Stock shall possess full voting power for
the election of directors and for all other purposes. In the exercise of its voting power, the
Common Stock shall be entitled to one vote for each share held. In all cases in which the holders
of the Common Stock have the right to vote, the affirmative vote of a majority of the outstanding
shares of the Common Stock shall constitute approval of the Common Stock.
III.
Provisions Applicable to Preferred Stock and Common Stock
1. No Cumulative Voting. The right of holders of Preferred Stock and Common Stock to
cumulative voting in the election of directors is expressly prohibited.
2. No Preemptive Rights. The holders of Preferred
Stock and Common Stock shall not have a preemptive right to acquire any shares or securities of
any class, whether now or hereafter authorized, which may at any time be issued, sold or offered
for sale by the Corporation.
FIFTH: Except as otherwise provided by statute, any action that might have been taken at a
meeting of stockholders by a vote of the stockholders may be taken with the written consent of
stockholders owning (and by such written consent, voting) in the aggregate not less than the
minimum percentage of the total number of shares that by statute, this Restated Certificate of
Incorporation or the by-laws are required to be voted with respect to such proposed corporate
action; provided, however, that the written
consent of a stockholder who would not have been entitled to vote upon the action if a meeting
were held shall not be counted; and further provided, that prompt notice shall be given to all
stockholders of the taking of such corporate action without a meeting if less than unanimous
written consent of all stockholders who would have been entitled to vote on the action if a
meeting were held is obtained.
-3-
SIXTH: In furtherance of, and not in limitation of, the powers conferred by statute, the
Board of Directors is expressly authorized to adopt, amend or repeal the by-laws of the
Corporation or adopt new by-laws, without any action on the part of the stockholders; provided,
however, that no such adoption, amendment, or repeal shall be valid with respect to by-law
provisions which have been adopted, amended, or repealed by the stockholders; and further
provided, that by-laws adopted or amended by the directors and any powers thereby conferred may be
amended, altered, or repealed by the stockholders.
SEVENTH: A director of the Corporation shall not be personally liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a director, except for such
liability as is expressly not subject to limitation under the General Corporation Law of the State
of Delaware, as the same exists or may hereafter be amended to further limit or eliminate such
liability. Moreover, the Corporation shall, to the fullest extent permitted by law, indemnify any
and all officers and directors of the Corporation, and may, to the fullest extent permitted by law
or to such lesser extent as is determined in the discretion of the Board of Directors, indemnify
any and all other persons whom it shall have power to indemnify, from and against all expenses,
liabilities or other matters arising out of their status as such or their acts, omissions or
services rendered in such capacities. The Corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another Corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the Corporation would have the power to indemnify him against
such liability.
-4-
EIGHTH: The Corporation shall have the right, subject to any express provisions or
restrictions contained in this Restated Certificate of Incorporation or by-laws of the Corporation,
from time to time, to amend this Restated Certificate of Incorporation or any provision thereof in
any manner now or hereafter provided by law, and all rights and powers of any kind conferred upon a
director or stockholder of the Corporation by this Restated Certificate of Incorporation or any
amendment thereof are conferred subject to such right.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 19th day of
August, 1988.
/s/ Richard A. Hosley II | ||||
President and Chief | ||||
Executive Officer |
ATTEST:
/s/ David A. Farley |
||
Secretary |
DELART: 22
-5-
ANNEX A
Proposed Amendment to
the Restated Certificate of Incorporation
of
BMC Software, Inc.
the Restated Certificate of Incorporation
of
BMC Software, Inc.
Fourth: The aggregate number of shares which the Corporation shall have the authority to issue
is Ninety One Million (91,000,000) shares, of which One Million (1,000,000) shall be shares of
Preferred Stock, of the par value of One Cent ($.01) per share (the Preferred Stock), and Ninety
Million (90,000,000) shall be shares of Common Stock, of the par value of One Cent ($.01) per share
(Common Stock).
STATE OF DELAWARE
|
||
SECRETARY OF STATE |
||
DIVISION OF CORPORATIONS |
||
FILED 11:00 AM 10/22/1996 |
||
960306450 2165371 |
CERTIFICATE OF CORRECTION
TO THE
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTICATE OF INCORPORATION
OF
BMC SOFTWARE, INC.
TO THE
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTICATE OF INCORPORATION
OF
BMC SOFTWARE, INC.
BMC Software, Inc., a Delaware corporation organized and existing under and by
virtue of The General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
1. | The name of the corporation is BMC Software, Inc. |
||
2. | A Certificate of Amendment of Restated
Certificate of Incorporation was
filed with the Secretary of State of Delaware on September 3, 1992,
and said
Certificate of Amendment of Restated Certificate of Incorporation
requires
correction as permitted by subsection (f) of Section 103 of The
General Corporation Law of the State of Delaware. |
||
3. | The inaccuracy or defect of said Certificate of
Amendment of the Restated
Certificate of Incorporation to be corrected is as follows: The
words to
amend the first paragraph of article FOURTH were omitted between
the
words Company and in in the second line of the resolution
setting forth
the proposed amendment to the Restated Certificate of Incorporation
set forth
in article FIRST. |
||
4. | The resolution setting forth the proposed
amendment to the first paragraph
of article FOURTH contain in article FIRST of said Certificate of
Amendment to the Restated Certificate of Incorporation is corrected
to read
as follows: |
RESOLVED, that the Proposed Amendment
to the Restated Certificate of Incorporation
of the Company to amend the first paragraph
of article FOURTH in the form of Annex A to
the Companys proxy statement is hereby
adopted and approved, subject to the approval
of such amendment by the stockholders of the
Company.
IN WITNESS WHEREOF, the undersigned authorized officer has executed this
Certificate of Correction the 21st day of October, 1996.
BMC SOFTWARE, INC. |
||||
By: | /s/ M. Brinkley Morse | |||
M. Brinkley Morse, Vice President | ||||
STATE OF DELAWARE
|
||
SECRETARY OF STATE |
||
DIVISION OF CORPORATIONS |
||
FILED 11:31 AM 10/22/1996 |
||
960306454 2165371 |
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
BMC SOFTWARE, INC.
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
BMC SOFTWARE, INC.
BMC Software, Inc., a corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of BMC Software, Inc.,
resolutions were duly adopted setting forth a proposed amendment of the
Restated Certificate of Incorporation of said corporation, declaring
said amendment to be advisable and calling a meeting of the stockholders
of said corporation for consideration thereof. The resolution setting
forth the proposed amendment is as follows:
RESOLVED, that the Restated Certificate of Incorporation of
the Company is hereby amended to delete the first paragraph
of Article FOURTH of the Restated Certificate of
Incorporation and substitute therefore the following new
first paragraph of Article FOURTH:
FOURTH: The aggregate number of shares which the
corporation shall have the authority to issue is
Three Hundred One Million (301,000,000) shares, of
which One Million (1,000,000) shall be shares of
Preferred Stock, of the par value of One Cent ($.01)
per share (the Preferred Stock), and Three Hundred
Million (300,000,000) shall be shares of Common
Stock, of the par value of One Cent ($.01 per share
(Common Stock).
SECOND: That thereafter, pursuant to resolution of its Board of
Directors, an annual meeting of the stockholders of said corporation was
duly called and held, upon notice in accordance with Section 222 of the
General Corporation Law of the State of Delaware at which meeting the
necessary number of shares as required by statute were voted in favor of
the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions to Section 242 of the General Corporation Law of the State of
Delaware.
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
BMC SOFTWARE, INC.
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
BMC SOFTWARE, INC.
BMC Software, Inc., a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of BMC Software, Inc.,
resolutions were duly adopted setting forth a proposed amendment of the
Restated Certificate of Incorporation of said corporation, declaring said
amendment to be advisable and calling a meeting of the stockholders of
said corporation for consideration thereof. The resolution setting forth
the proposed amendment is as follows:
RESOLVED, that the Restated Certificate of Incorporation of
the Company is hereby amended to delete the first paragraph
of Article FOURTH of the Restated Certificate of
Incorporation and substitute therefore the following new
first paragraph of Article FOURTH:
FOURTH: The aggregate number of shares which the
corporation shall have the authority to issue is
Six Hundred One Million (601,000,000) shares, of
which One Million (1,000,000) shall be shares of
Preferred Stock, of the par value of One Cent
($.01) per share (the Preferred Stock), and Six
Hundred Million (600,000,000) shall be shares of
Common Stock, of the par value of One Cent ($.01)
per share (Common Stock).
SECOND: That thereafter, pursuant to a resolution of its Board of
Directors, an annual meeting of the stockholders of said corporation was
duly called and held, upon notice in accordance with Section 222 of the
General Corporation Law of the State of Delaware, at which meeting the
necessary number of shares as required by statute were voted in favor of the
amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, BMC Software, Inc. has caused this certificate to be signed by
M. Brinkley Morse, its Senior Vice President, this 30th day of November 1999.
BMC SOFTWARE, INC. |
||||
By: | /s/ M. Brinkley Morse | |||
M. Brinkley Morse | ||||
Senior Vice President | ||||
STATE OF DELAWARE | ||
SECRETARY OF STATE | ||
DIVISION OF CORPORATIONS | ||
FILED 12:00 PM 11/30/1999 | ||
991509322 2165371 |
CERTIFICATE OF AMENDMENT
TO THE
RESTATED CERTIFICATE OF INCORPORATION
OF
BMC SOFTWARE, INC.
TO THE
RESTATED CERTIFICATE OF INCORPORATION
OF
BMC SOFTWARE, INC.
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
Corporation Law of the State of Delaware
BMC Software, Inc., a Delaware corporation (hereinafter called the Corporation), does
hereby certify as follows:
FIRST: Section II.4 of Article FOURTH of the Corporations Restated Certificate of
Incorporation is hereby amended to read in its entirety as set forth below:
4. Voting. Except as otherwise expressly required by law or
provided in this Restated Certificate of Incorporation and subject to any voting
rights provided to holders of Preferred Stock at any time outstanding, the holders of
shares of Common Stock shall possess full voting power for the election of directors
and for all other matters with respect to which stockholders are entitled to vote
under applicable law, this Restated Certificate of Incorporation or the by-laws of
the Corporation, or upon which a vote of stockholders is otherwise called for by the
Corporation. Each holder of shares of Common Stock as of the record date for
determining the stockholders entitled to vote shall be entitled to one vote for each
share of Common Stock held by such stockholder.
SECOND: The foregoing amendment was duly adopted in accordance with Section 242 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, BMC Software, Inc. has caused this Certificate to be duly executed in its
corporate name this 21st day of July, 2010.
BMC SOFTWARE, INC. |
||||
By: | /s/ Christopher C. Chaffin | |||
Christopher C. Chaffin | ||||
Vice President, Deputy General Counsel and Assistant Secretary | ||||