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EX-3.1 - BYLAW AMENDMENT - BMC SOFTWARE INC | rrd273764_31915.htm |
Delaware
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74-2126120
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(State or other jurisdiction of
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(IRS Employer
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incorporation)
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Identification No.)
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[ ] 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))
On April 26, 2010, the Board of Directors of BMC Software, Inc. (the "Company")approved an amendment to our Amended and Restated Bylaws (the "Bylaw Amendment"), subject to stockholder approval of a related amendment to the Company's Restated Certificate of Incorporation at the 2010 Annual Meeting (the "Charter Amendment"), to provide for the following stockholder voting standards:
The Bylaw Amendment does not become effective unless and until the Charter Amendment is approved by stockholders at the 2010 Annual Meeting and filed with the Secretary of State of the State of Delaware.
The pending amendment to Article II of the Amended and Restated Bylaws will replace language that provides for a plurality voting standard in director elections. The text of the Bylaw Amendment states:
"Unless otherwise required by law, the Restated Certificate of Incorporation of the Corporation, these Bylaws or the rules of any securities exchange on which the Corporation's shares are listed and traded, any matter brought before any meeting of stockholders, other than the election of directors, shall be decided by the vote of the holders of a majority of the total number of votes of the Corporation's capital stock represented at the meeting and entitled to vote on such matter, voting as a single class.
Except as provided in Section 2.2 of these Bylaws, a nominee for director shall be elected to the Board of Directors if the votes cast for such nominee's election exceed the votes cast against such nominee's election; provided, however, that directors shall be elected by a plurality of the votes cast at any meeting of stockholders for which the Secretary of the Corporation determines that the number of nominees exceeds the number of directors to be elected as of the record date of such meeting."
On April 26, 2010, the Company's Board of Directors approved an amendment to the Company's Corporate Governance Guidelines, contingent upon stockholder approval of the Charter Amendment, to include a director resignation policy.
The pending amendment to the Corporate Governance Guidelines reads as follows:
"BMC's Bylaws provide that, in the case of uncontested elections, a director is elected if more shares vote in favor of the director nominee than against the director nominee. A director who fails to receive the required number of votes for election where the election is uncontested must, promptly following the certification of the stockholder vote, tender his or her written resignation to the Chairman of the Corporate Governance & Nominating Committee for consideration by the Board.
The Corporate Governance & Nominating Committee (excluding, if applicable, the director who tendered the resignation) will consider the tendered resignation and make a recommendation to the Board. The Board (excluding the director who tendered the resignation) will evaluate whether to accept or reject the resignation or take any other action in light of the best interests of BMC and its stockholders. In making this determination, the Board (and, in making its recommendation to the Board, the Corporate Governance & Nominating Committee) may consider any factors it deems relevant, including the director's qualifications, the director's past and expected future contributions to BMC, the overall composition of the Board and whether accepting the resignation would cause BMC to fail to meet any applicable rule or regulation.
The Board will accept or reject the resignation no later than 90 days following the date of the stockholders' meeting at which the election occurred. The Company will promptly and publicly disclose the Board's decision and, if applicable, the Board's reason or reasons for rejecting the tendered resignation.
The foregoing policy will be summarized in the proxy statement for each meeting of stockholders (annual or special) at which directors are to be elected."
The pending amendment to the Corporate Governance Guidelines does not become effective unless and until the Charter Amendment is approved by stockholders at the 2010 Annual Meeting and filed with the Secretary of State of the State of Delaware.
Exhibit Number Description
BMC Software, Inc.
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Date: April 29, 2010
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By:
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/s/ Christopher C. Chaffin
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Christopher C. Chaffin
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Vice President, Deputy General Counsel & Assistant Secretary
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Exhibit No.
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Description
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EX-3.1
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Bylaw Amendment
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