exv4w2






Exhibit 4.2




EXECUTION VERSION




 






BMC SOFTWARE, INC.




$300,000,000




7.25% NOTES DUE 2018




 






SUPPLEMENTAL INDENTURE




Dated as of June 4, 2008




To




INDENTURE




Dated as of June 4, 2008




 



WELLS FARGO BANK, N.A.




Trustee




 







 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	Article 1.
	 	 	 	 
	DEFINITIONS AND INCORPORATION
	 	 	 	 
	BY REFERENCE
	 	 	 	 
	 	 	 
	 	 	 	 
	Section 1.1	 	Relationship with Base Indenture
	 	 	1	 
	 	 	 
	 	 	 	 
	Section 1.2	 	Definitions
	 	 	2	 
	 	 	 
	 	 	 	 
	Section 1.3	 	Other Definitions
	 	 	6	 
	 	 	 
	 	 	 	 
	Article 2.
	 	 	 	 
	THE NOTES
	 	 	 	 
	 	 	 
	 	 	 	 
	Section 2.1	 	Form and Dating
	 	 	6	 
	 	 	 
	 	 	 	 
	Section 2.2	 	Transfer and Exchange
	 	 	6	 
	 	 	 
	 	 	 	 
	Section 2.3	 	Issuance of Additional Notes
	 	 	10	 
	 	 	 
	 	 	 	 
	Article 3.
	 	 	 	 
	REDEMPTION AND PREPAYMENT
	 	 	 	 
	 	 	 
	 	 	 	 
	Section 3.1	 	Optional Redemption
	 	 	11	 
	 	 	 
	 	 	 	 
	Section 3.2	 	Mandatory Redemption
	 	 	11	 
	 	 	 
	 	 	 	 
	Article 4.
	 	 	 	 
	PARTICULAR COVENANTS
	 	 	 	 
	 	 	 
	 	 	 	 
	Section 4.1	 	Liens
	 	 	11	 
	 	 	 
	 	 	 	 
	Section 4.2	 	Offer to Purchase Upon Change of Control Triggering Event
	 	 	14	 
	 	 	 
	 	 	 	 
	Section 4.3	 	Sale and Lease-Back Transactions
	 	 	15	 
	 	 	 
	 	 	 	 
	Article 5.
	 	 	 	 
	DEFAULTS AND REMEDIES
	 	 	 	 
	 	 	 
	 	 	 	 
	Section 5.1	 	Events of Default
	 	 	16	 
	 	 	 
	 	 	 	 
	Article 6.
	 	 	 	 
	MISCELLANEOUS
	 	 	 	 
	 	 	 
	 	 	 	 
	Section 6.1	 	Trust Indenture Act Controls
	 	 	16	 
	 	 	 
	 	 	 	 
	Section 6.2	 	Governing Law
	 	 	16	 






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	 	 	 	 	Page	 
	Section 6.3	 	Successors
	 	 	16	 
	 	 	 
	 	 	 	 
	Section 6.4	 	Severability
	 	 	17	 
	 	 	 
	 	 	 	 
	Section 6.5	 	Counterpart Originals
	 	 	17	 
	 	 	 
	 	 	 	 
	Section 6.6	 	Table of Contents, Headings, Etc
	 	 	17	 
	 	 	 
	 	 	 	 
	EXHIBITS	 	 	 	 
	 	 	 
	 	 	 	 
	Exhibit A      FORM OF NOTE	 	 	 	 






ii 









 





     SUPPLEMENTAL INDENTURE dated as of June 4, 2008 by and between BMC Software, Inc., a Delaware
corporation (the “Company”), and Wells Fargo Bank, N.A., a national banking association, as trustee
(the “Trustee”).



     The Company has heretofore executed and delivered to the Trustee an indenture, dated as of
June 4, 2008 (the “Base Indenture”, and together with this Supplemental Indenture, the
“Indenture”), providing for the issuance from time to time of one or more Series of the Company’s
securities.



     The Company desires and has requested the Trustee pursuant to Section 9.1 of the Base
Indenture to join with it in the execution and delivery of this Supplemental Indenture in order to
supplement the Base Indenture as, and to the extent set forth herein to provide for the issuance of
and establish the form and terms and conditions of the Notes (as defined below).



     Section 9.1 of the Base Indenture provides that the Company and the Trustee, without the
consent of any holders of the Company’s Securities, may amend or supplement certain terms and
conditions in the Base Indenture as permitted by Sections 2.1 and 2.2 thereof.



     The execution and delivery of this Supplemental Indenture has been duly authorized by a
resolution of the Board of Directors of the Company or a duly authorized committee thereof.



     All conditions and requirements necessary to make this Supplemental Indenture a valid, binding
and legal instrument in accordance with its terms have been performed and fulfilled by the parties
hereto and the execution and delivery thereof have been in all respects duly authorized by the
parties hereto.



     The Company and the Trustee agree as follows for the benefit of each other and for the equal
and ratable benefit of the Holders (as defined herein) of the 7.25% Notes due 2018 (the “Notes”):



ARTICLE 1.

DEFINITIONS AND INCORPORATION

BY REFERENCE




Section 1.1 Relationship with Base Indenture.




     The terms and provisions contained in the Base Indenture will constitute, and are hereby
expressly made, a part of this Supplemental Indenture and the Company and the Trustee, by their
execution and delivery of this Supplemental Indenture, expressly agree to such terms and provisions
and to be bound thereby. However, to the extent any provision of the Base Indenture conflicts with
the express provisions of this Supplemental Indenture, the provisions of this Supplemental
Indenture will govern and be controlling.



     The Trustee accepts the amendment of the Base Indenture effected by this Supplemental
Indenture and agrees to execute the trust created by the Base Indenture as hereby amended, but only
upon the terms and conditions set forth in this Supplemental Indenture, including the terms and
provisions defining and limiting the liabilities and responsibilities of the Trustee in the
performance of the trust created by the Base Indenture, and without limiting the generality of the
foregoing, the Trustee will not be responsible in any manner whatsoever for or with respect to any
of the recitals or statements contained herein, all of which recitals or statements are made solely
by the Company, or for or with respect to (1) the validity or sufficiency of this Supplemental
Indenture or any of the terms or provisions hereof, (2) the proper authorization hereof by the
Company, (3) the due execution hereof by the Company or (4) the consequences (direct or indirect
and whether deliberate or inadvertent) of any amendment herein provided for, and the Trustee makes
no representation with respect to any such matters.



1









 




Section 1.2 Definitions. Capitalized terms used herein without definition shall have the
respective meanings set forth in the Base Indenture. The following terms have the meanings given
to them in this Section 1.2:




     “Additional Notes” means any Notes (other than the Initial Notes) issued under this
Supplemental Indenture in accordance with Section 2.3 hereof, as part of the same Series as the
Initial Notes.



     “Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial
interests in any Global Note, the rules and procedures of the Depositary that apply to such
transfer or exchange.



     “Attributable Debt” with regard to a Sale and Lease-Back Transaction with respect to any
Principal Property means, at the time of determination, the lesser of (1) the fair market value of
the Principal Property subject to the Sale and Lease-Back Transaction or (2) the present value of
the total net amount of rent required to be paid under such lease during the remaining term thereof
(including any period for which such lease has been extended), discounted at the rate of interest
set forth or implicit in the terms of such lease (or, if not practicable to determine such rate,
the weighted average interest rate per annum borne by the securities then outstanding under the
Base Indenture, which may include securities in addition to the Notes) compounded semi-annually.



     “Base Indenture” has the meaning set forth in the preamble to this Supplemental Indenture, as
it may be amended, supplemented or otherwise modified from time to time in accordance with the
terms thereof.



     “Change of Control” means the occurrence of any of the following:




     (1) the direct or indirect sale, transfer, conveyance or other disposition (other than
by way of merger or consolidation), in one or more series of related transactions, of all or
substantially all of the Company’s assets and the assets of its Subsidiaries, taken as a
whole, to any person, other than the Company or one of its Subsidiaries;




     (2) the consummation of any transaction (including, without limitation, any merger or
consolidation) the result of which is that any person becomes the beneficial owner (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more
than 50% of the Company’s outstanding Voting Stock or other Voting Stock into which the
Company’s Voting Stock is reclassified, consolidated, exchanged or changed, measured by
voting power rather than number of shares;




     (3) the Company consolidates with, or merges with or into, any person, or any person
consolidates with, or merges with or into, the Company, in any such event pursuant to a
transaction in which any of the Company’s outstanding Voting Stock or the Voting Stock of
such other person is converted into or exchanged for cash, securities or other property,
other than any such transaction where the shares of the Company’s Voting Stock outstanding
immediately prior to such transaction constitute, or are converted into or exchanged for, a
majority of the Voting Stock of the surviving person or any direct or indirect parent
company of the surviving person immediately after giving effect to such transaction;




     (4) the first day on which a majority of the members of the Company’s Board of
Directors are not Continuing Directors; or




     (5) the adoption of a plan relating to the Company’s liquidation or dissolution.



2









 






     Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of
Control if (1) the Company becomes a direct or indirect wholly owned Subsidiary of a holding
company and (2)(A) the direct or indirect holders of the Voting Stock of such holding
company immediately following that transaction are substantially the same as the holders of
the Company’s Voting Stock immediately prior to that transaction or (B) immediately
following that transaction no person (other than a holding company satisfying the
requirements of this sentence) is the beneficial owner, directly or indirectly, of more than
50% of the Voting Stock of such holding company. The term “person,” as used in this
definition, has the meaning given thereto in Section 13(d)(3) of the Exchange Act.



     “Change of Control Triggering Event” means the occurrence of both a Change of Control and a
Rating Event.



     “Comparable Treasury Issue” means the United States Treasury security selected by an
Independent Investment Banker as having an actual or interpolated maturity comparable to the
remaining term of the Notes to be redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of such Notes.



     “Comparable Treasury Price” means (A) the arithmetic average of the Reference Treasury Dealer
Quotations for such redemption date after excluding the highest and lowest Reference Treasury
Dealer Quotations, or (B) if the Quotation Agent obtains fewer than four Reference Treasury Dealer
Quotations, the arithmetic average of all Reference Treasury Dealer Quotations for such redemption
date.



     “Consolidated Net Tangible Assets” means, as of any date on which the Company effects a
transaction requiring such Consolidated Net Tangible Assets to be measured hereunder, the aggregate
amount of assets (less applicable reserves) after deducting therefrom (a) all current liabilities,
except for current maturities of long-term debt, the current portion of deferred revenue and
obligations under capital leases; and (b) all intangible assets, to the extent included in said
aggregate amount of assets, all as set forth on the Company’s most recent consolidated balance
sheet and computed in accordance with GAAP.



     “Continuing Directors” means, as of any date of determination, any member of the Company’s
Board of Directors who (1) was a member of such Board of Directors on the date the Notes were
issued or (2) was nominated for election, elected or appointed to such Board of Directors with the
approval of a majority of the Continuing Directors who were members of such Board of Directors at
the time of such nomination, election or appointment (either by a specific vote or by approval of
the Company’s proxy statement in which such member was named as a nominee for election as a
director, without objection to such nomination).



     “Definitive Note” means a certificated Note registered in the name of the Holder thereof and
issued in accordance with Section 2.2 hereof, substantially in the form of Exhibit A hereto except
that such Note will not bear the Global Note Legend.



     “Depositary” means, with respect to the Notes issuable or issued in whole or in part in global
form, the person specified in Section 2.1 hereof as the Depositary, with respect to the Notes, and
any and all successors thereto appointed as depositary hereunder.



     “Global Note Legend” means the legend set forth in Section 2.2(e), which is required to be
placed on all Global Notes issued under this Supplemental Indenture.



3









 





     “Global Notes” means, individually and collectively, each of the Global Notes, in the form of
Exhibit A hereto issued in accordance with Section 2.1 hereof.



     “Hedging Obligations” means, with respect to any specified person, the obligations of such
person under (1) interest rate swap agreements (whether from fixed to floating or from floating to
fixed), interest rate cap agreements and interest rate collar agreements, (2) other agreements or
arrangements designed to manage interest rates or interest rate risk; and (3) other agreements or
arrangements designed to protect such person against fluctuations in currency exchange rates or
commodity prices.



     “Holder” means a person in whose name a Note is registered.



     “Indenture” means the Base Indenture, as supplemented by this Supplemental Indenture,
governing the Notes, in each case, as amended, supplemented or restated from time to time.



     “Independent Investment Banker” means any of Banc of America Securities LLC and Credit Suisse
Securities (USA) LLC or their respective successors as may be appointed from time to time by the
Quotation Agent after consultation with the Company; provided, however, that if any of the
foregoing shall cease to be a primary U.S. Government securities dealer in New York City (a
“primary treasury dealer”), another primary treasury dealer shall be substituted therefor by the
Company.



     “Indirect Participant” means a person who holds a beneficial interest in a Global Note through
a Participant.



     “Initial Notes” means the first $300,000,000 aggregate principal amount of Notes issued under
this Supplemental Indenture on the date hereof.



     “Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by
Moody’s and BBB- (or the equivalent) by S&P.



     “Moody’s” means Moody’s Investors Service, Inc., and its successors.



     “Notes” has the meaning assigned to it in the preamble to this Supplemental Indenture. The
Initial Notes and the Additional Notes will be treated as a single class for all purposes under
this Supplemental Indenture, and unless the context otherwise requires, all references to the Notes
will include the Initial Notes and any Additional Notes.



     “Participant” means, with respect to the Depositary, a person who has an account with the
Depositary.



     “Principal Property” means (i) the Company’s principal corporate office (including any
leasehold interest therein) and (ii) any facility with a primary function of distribution of the
Company’s products or development (whether now owned or hereafter acquired) which is owned or
leased by the Company or any of the Company’s Subsidiaries and is located within the United States
of America, unless (as to both (i) and (ii)) the Company’s Board of Directors has determined in
good faith that such office or facility is not of material importance to the total business
conducted by the Company and the Company’s Subsidiaries, taken as a whole; provided, however, that
any office or facility for which the annual lease obligation on the date as of which the
determination is being made is equal to or less than $2.0 million shall in no event be deemed a
Principal Property. With respect to any Sale and Lease-Back Transaction or series of related Sale
and Lease-Back Transactions, the determination of whether any property is a Principal Property
shall be determined by reference to all properties affected by such transaction or series of
transactions.



4









 





     “Quotation Agent” means, for purposes of determining the redemption price, such primary
treasury dealer as may be selected by the Company.



     “Rating Agencies” means each of Moody’s and S&P; provided, that if either of Moody’s and S&P
ceases to provide rating services to issuers or investors, the Company may appoint a replacement
for such Rating Agency that is a “nationally recognized statistical rating organization” within the
meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act.



     “Rating Event” means the Notes are rated below an Investment Grade Rating by each of the
Rating Agencies on any day within the 60-day period (which period shall be extended so long as the
rating of the Notes is under publicly announced consideration for a possible change by any of the
Rating Agencies) after the earlier of (1) public notice of the occurrence of a Change of Control or
the Company’s intention to effect a Change of Control and (2) consummation of such Change of
Control.



     “Reference Treasury Dealer” means each of Banc of America Securities LLC and Credit Suisse
Securities (USA) LLC or their respective successors and any other primary treasury dealer selected
by the Quotation Agent after consultation with the Company.



     “Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer
and any redemption date, the arithmetic average, as determined by the Quotation Agent, of the bid
and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Quotation Agent by such Reference Treasury Dealer at
5:00 p.m. on the third Business Day preceding such redemption date.



     “Remaining Scheduled Payments” means, with respect to any Note, the remaining scheduled
payments of the principal and interest thereon that would be due after the related redemption date
but for such redemption; provided, however, that, if such redemption date is not an interest
payment date with respect to such Note, the amount of the next scheduled interest payment thereon
shall be reduced by the amount of interest accrued thereon to such redemption date.



     “S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.,
and its successors.



     “Sale and Lease-Back Transaction” means any arrangement with any person providing for the
leasing by the Company or any Subsidiary of the Company of any Principal Property, whether now
owned or hereafter acquired, which Principal Property has been or is to be sold or transferred by
the Company or such Subsidiary of the Company to such person.



     “Supplemental Indenture” means this Supplemental Indenture, dated as of the date hereof, by
and between the Company and the Trustee, governing the Notes, as amended, supplemented or otherwise
modified from time to time in accordance with the Base Indenture and the terms hereof.



     “Treasury Rate” means, with respect to any redemption date, the rate per annum equal to the
semi-annual equivalent yield to maturity or interpolated yield to maturity of the Comparable
Treasury Issue. In determining this rate, the price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) shall be assumed to be equal to the Comparable Treasury Price
for such redemption date.



     “Voting Stock” means, with respect to any specified “person” (as that term is used in Section
13(d)(3) of the Exchange Act) as of any date, the Capital Stock of such person that is at the time
entitled to vote generally in the election of the board of directors of such person.



5









 





Section 1.3 Other Definitions.




	 	 	 	 	 
	 	 	Defined in
	Term	 	Section
	“Change of Control Offer”
	 	 	4.2	 
	“Change of Control Payment”
	 	 	4.2	 
	“Change of Control Payment Date”
	 	 	4.2	 
	“DTC”
	 	 	2.1	 
	“Event of Default”
	 	 	5.1	 
	“Lien”
	 	 	4.1	 






ARTICLE 2.

THE NOTES




Section 2.1 Form and Dating.




     (a) General. The Notes and the Trustee’s certificate of authentication will be substantially
in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements
required by law, stock exchange rule or usage. Each Note will be dated the date of its
authentication. The Notes will be in denominations of $2,000 with integral multiples of $1,000
thereof.



     The terms and provisions contained in the Notes will constitute, and are hereby expressly
made, a part of this Supplemental Indenture and the Company and the Trustee, by their execution and
delivery of this Supplemental Indenture, expressly agree to such terms and provisions and to be
bound thereby. However, to the extent any provision of any Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture will govern and be controlling.



     (b) Global Notes. Notes issued in global form will be substantially in the form of
Exhibit A attached hereto (including the Global Note Legend thereon). Notes issued in
definitive form will be substantially in the form of Exhibit A attached hereto (but without
the Global Note Legend thereon). Each Global Note will represent such of the outstanding Notes as
will be specified therein and each will provide that it will represent the aggregate principal
amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal
amount of outstanding Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the
amount of any increase or decrease in the aggregate principal amount of outstanding Notes
represented thereby will be made by the Trustee or the Custodian, at the direction of the Trustee,
in accordance with instructions given by the Holder thereof as required by Section 2.2 hereof.
The Company initially appoints The Depository Trust Company (“DTC”) to act as Depositary with
respect to the Global Notes.



Section 2.2 Transfer and Exchange.




     (a) Transfer and Exchange of Global Notes. A Global Note may not be transferred as a whole
except by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes will be exchanged
by the Company for Definitive Notes if:



6









 






     (1) the Company delivers to the Trustee notice from the Depositary that it is unwilling
or unable to continue to act as Depositary or that it is no longer a clearing agency
registered under the Exchange Act and, in either case, a successor Depositary is not
appointed by the Company within 90 days after the date of such notice from the Depositary;
or




     (2) the Company in its sole discretion determines that the Global Notes (in whole but
not in part) should be exchanged for Definitive Notes and delivers a written notice to such
effect to the Trustee.



     Upon the occurrence of either of the preceding events in (1) or (2) above, Definitive Notes
will be issued in such names and in any approved denominations as the Depositary will instruct the
Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in
Sections 2.8 and 2.11 of the Base Indenture. Every Note authenticated and delivered in exchange
for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.2 or Sections
2.8 or 2.11 of the Base Indenture, will be authenticated and delivered in the form of, and will be,
a Global Note. A Global Note may not be exchanged for another Note other than as provided in this
Section 2.2(a); however, beneficial interests in a Global Note may be transferred and exchanged as
provided in Sections 2.2(b) or (f) hereof.



     (b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and
exchange of beneficial interests in the Global Notes will be effected through the Depositary, in
accordance with the provisions of this Supplemental Indenture and the Applicable Procedures.
Transfers of beneficial interests in the Global Notes also will require compliance with either
subparagraph (1) or (2) below, as applicable, as well as one or more of the other following
subparagraphs, as applicable:




     (1) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in
any Global Note may be transferred to persons who take delivery thereof in the form of a
beneficial interest in a Global Note. No written orders or instructions will be required to
be delivered to the Registrar to effect the transfers described in this Section 2.2(b)(1).




     (2) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In
connection with all transfers and exchanges of beneficial interests that are not subject to
Section 2.2(b)(1) above, the transferor of such beneficial interest must deliver to the
Registrar:




          (i) a written order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the Depositary to
credit or cause to be credited a beneficial interest in another Global Note in an
amount equal to the beneficial interest to be transferred or exchanged; and




          (ii) instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited with such
increase.



     Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests
in Global Notes contained in this Supplemental Indenture and the Notes or otherwise applicable
under the Securities Act of 1933, as amended, the Trustee will adjust the principal amount of the
relevant Global Note(s) pursuant to Section 2.2(f) hereof.



     (c) Transfer and Exchange of Definitive Notes for Beneficial Interests.



     A Holder of a Definitive Note may exchange such Note for a beneficial interest in a Global
Note or transfer such Definitive Notes to a person who takes delivery thereof in the form of a
beneficial interest



7









 







in a Global Note at any time. Upon receipt of a request for such an exchange or transfer, the
Trustee will cancel the applicable Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Global Notes.



     If any such exchange or transfer from a Definitive Note to a beneficial interest is effected
pursuant to the previous paragraph at a time when a Global Note has not yet been issued, the
Company will issue and, upon receipt of the Company’s order, the Trustee will authenticate one or
more Global Notes in an aggregate principal amount equal to the principal amount of Definitive
Notes so transferred.



     A Holder of Definitive Notes may transfer such Notes to a person who takes delivery thereof in
the form of a Definitive Note.



     (d) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder
of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.2(d), the
Registrar will register the transfer or exchange of Definitive Notes. Prior to such registration
of transfer or exchange, the requesting Holder will present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar duly executed by such Holder or by his attorney, duly authorized in
writing. In addition, the requesting Holder will provide any additional required certifications,
documents and information, as applicable.



     (e) Legends. The following legends will appear on the face of all Global Notes issued under
this Supplemental Indenture unless specifically stated otherwise in the applicable provisions of
this Supplemental Indenture.




“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE SUPPLEMENTAL
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 2.2 OF THE SUPPLEMENTAL INDENTURE, (II) THIS GLOBAL
NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.2(a) OF THE
SUPPLEMENTAL INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.12 OF THE BASE INDENTURE AND (IV) THIS GLOBAL
NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
THE COMPANY.




THIS GLOBAL NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE
DEPOSITARY. THIS GLOBAL NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW



8









 







YORK) (“DTC”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”



     (f) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests
in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note
has been redeemed, repurchased or canceled in whole and not in part, each such Global Note will be
returned to or retained and canceled by the Trustee in accordance with Section 2.12 of the Base
Indenture. At any time prior to such cancellation, if any beneficial interest in a Global Note is
exchanged for or transferred to a person who will take delivery thereof in the form of a beneficial
interest in another Global Note, the principal amount of Notes represented by such Global Note will
be reduced accordingly and an endorsement will be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial
interest is being exchanged for or transferred to a person who will take delivery thereof in the
form of a beneficial interest in another Global Note, such other Global Note will be increased
accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary
at the direction of the Trustee to reflect such increase.



     (g) General Provisions Relating to Transfers and Exchanges.




     (1) To permit registrations of transfers and exchanges, the Company will execute and
the Trustee will authenticate Global Notes and Definitive Notes upon the Company’s order or
at the Registrar’s request.




     (2) No service charge will be made to a holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but
the Company may require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to Sections 2.11, 3.6
and 9.6 of the Base Indenture).




     (3) The Registrar will not be required to register the transfer of or exchange any Note
selected for redemption in whole or in part, except the unredeemed portion of any Note being
redeemed in part.




     (4) All Global Notes and Definitive Notes issued upon any registration of transfer or
exchange of Global Notes or Definitive Notes will be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this Supplemental
Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of
transfer or exchange.




     (5) The Company will not be required:




     (A) to issue, to register the transfer of or to exchange any Notes during a
period of 15 days before the day of any selection of Notes for redemption under
Section 3.2 of the Base Indenture and ending at the close of business on the day of
selection;



9









 






     (B) to register the transfer of or to exchange any Note so selected for
redemption in whole or in part, except the unredeemed portion of any Note being
redeemed in part; or




     (C) to register the transfer of or to exchange a Note between a record date
and the next succeeding interest payment date.




     (6) Prior to due presentment for the registration of a transfer of any Note, the
Trustee, any Agent and the Company may deem and treat the person in whose name any Note is
registered as the absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and none of the Trustee,
any Agent or the Company will be affected by notice to the contrary.




     (7) The Trustee will authenticate Global Notes and Definitive Notes in accordance with
the provisions of Section 2.3 of the Base Indenture.




     (8) All certifications, certificates and Opinions of Counsel required to be submitted
to the Registrar pursuant to this Section 2.2 to effect a registration of transfer or
exchange may be submitted by facsimile.




     (9) The Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Supplemental Indenture or
under applicable law with respect to any transfer of any interest in any Note other than to
require delivery of such certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by the terms of, this Supplemental
Indenture, and to examine the same to determine substantial compliance as to form with the
express requirements hereof.




     (10) Neither the Trustee nor any Agent shall have any responsibility for any actions
taken or not taken by the Depositary.



Section 2.3 Issuance of Additional Notes.




     The Company will be entitled, upon delivery of an Officer’s Certificate and an Opinion of
Counsel, to issue Additional Notes under this Supplemental Indenture which will have identical
terms as the Initial Notes issued on the date hereof, other than with respect to the date of
issuance and issue price. The Initial Notes issued on the date hereof and any Additional Notes
issued will be treated as a single class for all purposes under this Supplemental Indenture.



     With respect to any Additional Notes, the Company will set forth in a resolution of its Board
of Directors and an Officer’s Certificate, a copy of each which will be delivered to the Trustee,
the following information:



     (a) the aggregate principal amount of such Additional Notes to be authenticated and delivered
pursuant to this Supplemental Indenture; and



     (b) the issue price, the issue date and the CUSIP number of such Additional Notes.



10









 





ARTICLE 3.

REDEMPTION AND PREPAYMENT




Section 3.1 Optional Redemption.




     The Notes are redeemable at the option of the Company, at any time or from time to time,
either in whole or in part, at a redemption price equal to the greater of the following amounts,
plus, in each case, accrued and unpaid interest thereon to the redemption date:



          (i) 100% of the principal amount of the Notes to be redeemed; and




          (ii) the sum of the present values of the Remaining Scheduled Payments.




     In determining the present values of the Remaining Scheduled Payments, such payments shall be
discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) using a discount rate equal to the Treasury Rate plus 50 basis points.



     Calculation of the foregoing shall be made by the Company or on the Company’s behalf by such
person as the Company shall designate; provided, however, that such calculation shall not be a duty
or obligation of the Trustee.



     On and after the redemption date, interest will cease to accrue on the Notes or portions
thereof called for redemption as long as the Company has deposited with the Paying Agent funds in
satisfaction of the applicable redemption price.



     A partial redemption of the Notes may be effected by such method as the Trustee shall deem
fair and appropriate and may provide for the selection for redemption of a portion of the principal
amount of the Notes equal to an authorized denomination.



     No Notes of $2,000 or less can be redeemed in part.



Section 3.2 Mandatory Redemption.




     The Company is not required to make any mandatory redemption or sinking fund payments with
respect to the Notes.



ARTICLE 4.

PARTICULAR COVENANTS




Section 4.1 Liens.




     The Company will not (nor will it permit any Subsidiary of the Company to) issue, incur,
create, assume or guarantee any debt for borrowed money (including all obligations evidenced by
bonds, debentures, notes or similar instruments) secured by a mortgage, deed of trust, security
interest, pledge, lien, charge or other encumbrance (collectively, a “Lien”) upon any Principal
Property or upon any shares of stock of any Subsidiary of the Company that owns or leases any
Principal Property (whether such Principal Property or shares are now existing or owed or hereafter
created or acquired) without in any such case effectively providing, substantially concurrently
with or prior to the issuance, incurrence, creation, assumption or guaranty of any such secured
debt, or the grant of such Lien, that the Notes (together with, if the Company shall so determine,
any other indebtedness of or guarantee by the Company or such Subsidiary of the Company ranking
equally with the Notes) shall be secured equally



11









 







and ratably with (or, at the Company’s option, prior to) such secured debt. The foregoing
restriction, however, will not apply to each of the following:



     (a) Liens on property, shares of stock or other assets of any person existing at the time such
person becomes a Subsidiary of the Company, provided that such Liens are not incurred in
anticipation of such person’s becoming a Subsidiary of the Company and do not extend to any assets
other than those of such person;



     (b) Liens on property, shares of stock or other assets existing at the time of acquisition
thereof by the Company or a Subsidiary, or Liens thereon to secure the payment of all or any part
of the purchase price thereof, or Liens on property, shares of stock or indebtedness or other
assets to secure any debt incurred prior to, at the time of, or within 12 months after, the latest
of the acquisition thereof or, in the case of property, the completion of construction, the
completion of improvements or the commencement of substantial commercial operation of such property
for the purpose of financing all or any part of the purchase price thereof, such construction or
the making of such improvements;



     (c) Liens in favor of, or which secure debt owing to, the Company or any Subsidiary of the
Company;



     (d) Liens existing at the date of the issuance of the Notes;



     (e) Liens on property of a person existing at the time such person is merged into or
consolidated with the Company or a Subsidiary of the Company or at the time of a sale, lease or
other disposition of the properties of such person as an entirety or substantially as an entirety
to the Company or a Subsidiary of the Company, provided that such Lien was not incurred in
anticipation of such merger or consolidation or sale, lease or other disposition and do not extend
to any assets other than those of the person merged into or consolidated with the Company or a
Subsidiary of the Company or such property sold, leased or disposed;



     (f) Liens in favor of the United States of America or any state, territory or possession
thereof (or the District of Columbia), or any department, agency, instrumentality or political
subdivision of the United States of America or any state, territory or possession thereof (or the
District of Columbia), to secure partial, progress, advance or other payments pursuant to any
contract or statute or to secure any indebtedness incurred for the purpose of financing all or any
part of the purchase price or the cost of constructing or improving the property subject to such
Liens;



     (g) inchoate Liens incident to construction or maintenance of real property, or Liens incident
to construction or maintenance of real property, now or hereafter filed of record for sums not yet
delinquent or being contested in good faith, if reserves or other appropriate provisions, if any,
as shall be required by GAAP shall have been made therefore;



     (h) Liens in favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods;



     (i) Liens upon specific items of inventory or other goods and proceeds of any person securing
such person’s obligations in respect of bankers’ acceptances issued or created for the account of
such person to facilitate the purchase, shipment or storage of such inventory or other goods;



     (j) Liens encumbering customary initial deposits and margin deposits and other liens in the
ordinary course of business, in each case securing Hedging Obligations and forward contract,
option, futures contracts, futures options or similar agreements or arrangements designed to
protect the Company



12









 







or any of the Company’s Subsidiaries from fluctuations in interest rates, currencies or the
price of commodities;



     (k) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into by the Company or any of the Company’s Subsidiaries
in the ordinary course of business;



     (l) statutory Liens arising in the ordinary course of business with respect to obligations
which are not delinquent or are being contested in good faith, if reserves or other appropriate
provisions, if any, as shall be required by GAAP shall have been made therefore;



     (m) Liens consisting of pledges or deposits to secure obligations under workers’ compensation
laws or similar legislation, including Liens of judgments thereunder which are not currently
dischargeable;



     (n) Liens consisting of pledges or deposits of property to secure performance in connection
with operating leases made in the ordinary course of business to which the Company or any of the
Company’s Subsidiaries is a party as lessee;



     (o) Liens created by or resulting from any litigation or other proceeding which is being
contested in good faith by appropriate proceedings, including Liens arising out of judgments or
awards against the Company or any of the Company’s Subsidiaries;



     (p) Liens imposed by law, such as mechanics’, workmen’s, repairmen’s, materialmen’s,
carriers’, warehousemen’s, vendors’ or other similar liens arising in the ordinary course of
business, or governmental (Federal, state or municipal) Liens arising out of contracts for the sale
of products or services by the Company or any of the Company’s Subsidiaries, or deposits or pledges
to obtain the release of any of the foregoing;



     (q) Liens arising solely by virtue of any statutory or common law provision relating to
banker’s Liens, rights of setoff or similar rights and remedies as to deposit accounts or other
funds maintained with a creditor depository institution;



     (r) Liens for taxes or assessments or governmental charges or levies not yet due or
delinquent, or which can thereafter be paid without penalty, or which are being contested in good
faith by appropriate proceedings;



     (s) Liens on or sales of receivables and customary cash reserves established in connection
therewith; 



     (t) Liens consisting of easements, rights-of-way, zoning restrictions, restrictions on the use
of real property, and defects and irregularities in the title thereto, landlords’ liens and other
similar liens and encumbrances none of which interfere materially with the use of the property
covered thereby in the ordinary course of the business of the Company or any of the Company’s
Subsidiaries and which do not, in the Company’s opinion, materially detract from the value of such
properties; or



     (u) extensions, renewals or replacements of any Liens referred to in the foregoing clauses;
provided, however, that (i) the principal amount of indebtedness secured thereby shall not exceed
the principal amount of indebtedness so secured at the time of such extension, renewal or
replacement and (ii) such extension, renewal or replacement Liens will be limited to all or part of
the same property and



13









 







improvement thereon which secured the indebtedness so secured at the time of such extension,
renewal or replacement.



     Notwithstanding the restrictions in the preceding paragraph, the Company or any Subsidiary of
the Company may issue, incur, create, assume or guarantee debt secured by a Lien which would
otherwise be subject to such restrictions, without equally and ratably securing the Notes, provided
that after giving effect thereto, the aggregate amount of all debt so secured by Liens (not
including Liens permitted under clauses (a) through (u) above) plus the aggregate amount of
Attributable Debt in respect to Sale and Lease-Back Transactions entered into after the date of
issuance of the Notes and permitted pursuant to Section 4.3 hereof does not exceed 20% of the
Company’s Consolidated Net Tangible Assets.



Section 4.2 Offer to Purchase Upon Change of Control Triggering Event.




     (a) If a Change of Control Triggering Event occurs, unless the Company has exercised its
option to redeem the Notes, the Company shall be required to make an offer (a “Change of Control
Offer”) to each Holder of the Notes to repurchase all or any part (equal to $2,000 or an integral
multiple of $1,000 in excess thereof) of that Holder’s Notes on the terms set forth herein. In a
Change of Control Offer, the Company shall be required to offer payment in cash equal to 101% of
the aggregate principal amount of the Notes repurchased, plus accrued and unpaid interest, if any,
on the Notes repurchased to the date of repurchase (a “Change of Control Payment”). Within 30 days
following any Change of Control Triggering Event or, at the Company’s option, prior to any Change
of Control, but after public announcement of the transaction that constitutes or may constitute the
Change of Control, a notice shall be mailed to Holders of the Notes describing the transaction that
constitutes or may constitute the Change of Control Triggering Event and offering to repurchase
such Notes on the date specified in the notice, which date shall be no earlier than 30 days and no
later than 60 days from the date such notice is mailed (a “Change of Control Payment Date”). The
notice shall, if mailed prior to the date of consummation of the Change of Control, state that the
offer to purchase is conditioned on the Change of Control Triggering Event occurring on or prior to
the Change of Control Payment Date.



     (b) Such notice shall also state:




     (i) that the Change of Control Offer is being made pursuant to this Section 4.2 and
that all Notes validly tendered will be accepted for payment;




     (ii) the Change of Control Payment and the Change of Control Payment Date;




     (iii) that any Note not tendered will continue to accrue interest;




     (iv) that any Note accepted for payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Change of Control Payment Date unless the Company shall
default in the payment of the Change of Control Payment of the Notes and the only remaining
right of the Holder is to receive payment of the Change of Control Payment upon surrender of
the Notes to the Paying Agent;




     (v) that Holders electing to have a portion of a Note purchased pursuant to a Change of
Control Offer may only elect to have such Note purchased in integral multiples of $1,000;




     (vi) that if a Holder elects to have a Note purchased pursuant to the Change of Control
Offer it will be required to surrender the Note, with the form entitled “Option of Holder to
Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to
the



14









 







Paying Agent at the address specified in the notice prior to the close of business on
the third Business Day prior to the Change of Control Payment Date;




     (vii) that a Holder will be entitled to withdraw its election if the Company receives,
not later than the third Business Day preceding the Change of Control Payment Date, a
facsimile transmission or letter setting forth the name of such Holder, the principal amount
of Notes such Holder delivered for purchase, and a statement that such Holder is withdrawing
its election to have such Note purchased; and




     (viii) that if Notes are purchased only in part, a new Note of the same type will be
issued in principal amount equal to the unpurchased portion of the Notes surrendered.



     (c) On the Change of Control Payment Date, the Company shall, to the extent lawful:




     (i) accept for payment all Notes or portions of such Notes properly tendered pursuant
to the Change of Control Offer;




     (ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in
respect of all Notes or portions of such Notes properly tendered; and




     (iii) deliver or cause to be delivered to the Trustee the Notes properly accepted
together with an Officers’ Certificate stating the aggregate principal amount of Notes or
portions of such Notes being repurchased.



     (d) The Company shall not be required to make a Change of Control Offer upon the occurrence of
a Change of Control Triggering Event if a third party makes such an offer in the manner, at the
times and otherwise in compliance with the requirements for an offer made by the Company and the
third party purchases all Notes properly tendered and not withdrawn under its offer.



     (e) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and
any other securities laws and regulations thereunder to the extent such securities laws and
regulations are applicable in connection with the repurchase of the Notes as a result of a Change
of Control Triggering Event. To the extent that the provisions of any such securities laws or
regulations conflict with the provisions under this Section 4.2, the Company shall comply with such
securities laws and regulations and shall not be deemed to have breached its obligations under this
Section 4.2 by virtue of any such conflict.



Section 4.3 Sale and Lease-Back Transactions.




     The Company will not, and will not permit any of its Subsidiaries to, enter into any Sale and
Lease-Back Transaction with respect to any Principal Property, other than any such Sale and
Lease-Back Transaction involving a lease for a term of not more than three years or any such Sale
and Lease-Back Transaction between the Company and one of its Subsidiaries, or between its
Subsidiaries, unless:



     (i) the Company or such Subsidiary of the Company, as applicable, would be entitled to incur
indebtedness secured by a Lien on the Principal Property involved in such Sale and Lease-Back
Transaction at least equal in amount to the Attributable Debt with respect to such Sale and
Lease-Back Transaction, without equally and ratably securing the Notes, pursuant to Section 4.1
hereof; or



     (ii) the proceeds of such Sale and Lease-Back Transaction are at least equal to the fair
market value of the affected Principal Property (as determined in good faith by the Company’s Board
of



15









 







Directors) and the Company applies the net proceeds of such Sale and Lease-Back Transaction
within 180 days of such Sale and Lease-Back Transaction to either (or a combination of): (A) the
prepayment or retirement of debt for borrowed money of the Company or a Subsidiary of the Company
(other than debt that is subordinated to the Notes or debt owed to the Company or a Subsidiary of
the Company) that by its terms matures more than 12 months after its creation or (B) the purchase,
construction, development, expansion or improvement of comparable properties or facilities.



ARTICLE 5.

DEFAULTS AND REMEDIES




Section 5.1 Events of Default.




     In addition to the Events of Default set forth in the Base Indenture, the following is an
“Event of Default” with respect to the Notes:



     (a) (i) the failure of the Company or any of its Subsidiaries to pay indebtedness for money
borrowed in an aggregate principal amount of at least $100,000,000, at the later of final maturity
and the expiration of any related applicable grace period and such defaulted payment shall not have
been made, waived or extended within 30 days after written notice from the trustee or the holders
of at least 25% in principal amount of such indebtedness that is outstanding or (ii) acceleration
of the maturity of indebtedness for money borrowed by the Company or any of its Subsidiaries in an
aggregate principal amount of at least $100,000,000, if that acceleration results from a default
under the instrument giving rise to or securing such indebtedness for money borrowed and such
indebtedness has not been discharged in full or such acceleration has not been rescinded or
annulled within 30 days after written notice from trustee or the holders of at least 25% in
principal amount of such indebtedness that is outstanding.



ARTICLE 6.

MISCELLANEOUS




Section 6.1 Trust Indenture Act Controls.




     If any provision of this Supplemental Indenture limits, qualifies or conflicts with another
provision which is required or deemed to be included in this Supplemental Indenture by the TIA,
such required or deemed provision shall control.



Section 6.2 Governing Law.




     THIS SUPPLEMENTAL INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE
CONFLICT OF LAWS PROVISIONS THEREOF.



Section 6.3 Successors.




     All agreements of the Company in this Supplemental Indenture and the Notes will bind its
successors. All agreements of the Trustee in this Supplemental Indenture will bind its successors.



16









 





Section 6.4 Severability.




     In case any provision in this Supplemental Indenture or in the Notes will be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining provisions will not in
any way be affected or impaired thereby.



Section 6.5 Counterpart Originals.




     This Supplemental Indenture may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.



Section 6.6 Table of Contents, Headings, Etc.




     The Table of Contents and headings of the Articles and Sections of this Supplemental Indenture
have been inserted for convenience of reference only, are not to be considered a part of this
Supplemental Indenture and will in no way modify or restrict any of the terms or provisions hereof.



[Signatures on following page]




17









 








SIGNATURES




Dated as of June 4, 2008




	 	 	 	 	 	 	 
	 	 	BMC SOFTWARE, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Christopher C. Chaffin
 

Christopher C. Chaffin
	 	 
	 

	 	Title:
	 	Vice President, Deputy General Counsel and

Assistant Secretary	 	 
	 
	 	 	 	 	 	 
	 	 	WELLS FARGO BANK, N.A., as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Patrick Giordano	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Patrick Giordano	 	 
	 

	 	Title:
	 	Vice President	 	 






 









 








EXHIBIT A




(Face of Note)



[Insert the Global Note Legend, if applicable pursuant to the provisions of the Supplemental
Indenture]




CUSIP:




7.25% Notes due 2018




			
	     	 	 
	No.
	 	$                    






BMC SOFTWARE, INC.



promises to pay to CEDE & CO. or registered assigns, the principal sum of            on June 1, 2018.



Interest Payment Dates: June 1 and December 1



Record Dates: May 15 and November 15




Dated:




	 	 	 	 	 
	 	BMC SOFTWARE, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Date of Authentication:




This is one of the Global

Notes referred to in the

within-mentioned Supplemental Indenture:




Dated:




WELLS FARGO BANK, N.A.

as Trustee




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 







A-1









 








(Back of Note)

7.25% Notes due 2018




     Capitalized terms used herein have the meanings assigned to them in the Indenture referred to
below unless otherwise indicated.



     1. INTEREST. BMC Software, Inc., a Delaware corporation (the “Company”), promises to pay
interest on the principal amount of this Note at 7.25% per annum from the date hereof until
maturity. The Company will pay interest semi-annually on June 1 and December 1 of each year, or if
any such day is not a Business Day, on the next succeeding Business Day (each an “Interest Payment
Date”). Interest on the Notes will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from the date of issuance; provided that if there is no
existing Default in the payment of interest, and if this Note is authenticated between a record
date referred to on the face hereof and the next succeeding Interest Payment Date, interest will
accrue from such next succeeding Interest Payment Date; provided, further, that the first Interest
Payment Date will be December 1, 2008. The Company will pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal at the rate equal to the
then applicable interest rate on the Notes to the extent lawful; it will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest at the same rate to the extent lawful. Interest will be computed on the basis of a
360-day year of twelve 30-day months.



     2. METHOD OF PAYMENT. The Company will pay interest on the Notes (except defaulted interest)
to the persons who are registered Holders of Notes at the close of business on the May 15 or
November 15 next preceding the Interest Payment Date, even if such Notes are canceled after such
record date and on or before such Interest Payment Date, except as provided in Section 2.13 of the
Base Indenture with respect to defaulted interest. Principal and interest on the Notes will be
payable at the office or agency of the Paying Agent and Registrar within the City and State of New
York or, at the option of the Company, payment of interest may be made by check mailed to the
Holders of the Notes at their respective addresses set forth in the register of Holders of Notes;
provided that payment by wire transfer of immediately available funds will be required with respect
to principal of and interest on all Global Securities and all other Notes the Holders of which will
have provided wire transfer instructions to the Company or the Paying Agent. Such payment will be
in such coin or currency of the United States of America as at the time of payment is legal tender
for payment of public and private debts.



     3. PAYING AGENT AND REGISTRAR. Initially, Wells Fargo Bank, N.A., the Trustee under the
Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.



     4. INDENTURE. This Note is one of a duly authenticated Series of securities of the Company
issued and to be issued in one or more Series under an indenture (the “Base Indenture”), dated as
of June 4, 2008 between the Company and the Trustee, as amended by the Supplemental Indenture,
dated as of June 4, 2008, between the Company and the Trustee (the “Supplemental Indenture” and,
together with the Base Indenture, the “Indenture”). The terms of the Notes include those stated in
the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939,
as amended (15 U.S. Code Sections 77aaa-77bbbb). The Notes are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of such terms. To the extent
any provision of this Note conflicts with the express provisions of the Indenture, the provisions
of the Indenture will govern and be controlling, and to the extent any provision of the Base
Indenture conflicts with the express provisions of the Supplemental Indenture, the provisions of
the Supplemental Indenture will govern and



A-2









 







be controlling. The Company will be entitled to issue Additional Notes pursuant to Section
2.3 of the Supplemental Indenture.



     5. OPTIONAL REDEMPTION.



     The Notes are redeemable at the option of the Company, at any time or from time to time,
either in whole or in part, at a redemption price equal to the greater of the following amounts,
plus, in each case, accrued and unpaid interest thereon to the redemption date:



          (i) 100% of the principal amount of the Notes to be redeemed; and




          (ii) the sum of the present values of the Remaining Scheduled Payments.




     In determining the present values of the Remaining Scheduled Payments, such payments shall be
discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) using a discount rate equal to the Treasury Rate plus 50 basis points.



     Calculation of the foregoing shall be made by the Company or on the Company’s behalf by such
person as the Company shall designate; provided, however, that such calculation shall not be a duty
or obligation of the Trustee.



     On and after the redemption date, interest will cease to accrue on the Notes or portions
thereof called for redemption as long as the Company has deposited with the Paying Agent funds in
satisfaction of the applicable redemption price.



     A partial redemption of the Notes may be effected by such method as the Trustee shall deem
fair and appropriate and may provide for the selection for redemption of a portion of the principal
amount of the Notes equal to an authorized denomination.



     Notice of any redemption shall be mailed at least 15 days but not more than 60 days before the
redemption date to each Holder of the Notes to be redeemed at its registered address. Notes in
denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000,
unless all of the Notes held by a Holder are to be redeemed.



     6. MANDATORY REDEMPTION. Except as set forth in paragraph 7, the Company shall not be
required to make mandatory redemption payments with respect to the Notes.



     7. OFFER TO PURCHASE UPON CHANGE OF CONTROL.



     If a Change of Control Triggering Event occurs, unless the Company has exercised its option to
redeem the Notes, the Company shall be required to make an offer (a “Change of Control Offer”) to
each Holder of the Notes to repurchase all or any part (equal to $2,000 or an integral multiple of
$1,000 in excess thereof) of that Holder’s Notes on the terms set forth in the Indenture. In a
Change of Control Offer, the Company shall be required to offer payment in cash equal to 101% of
the aggregate principal amount of the Notes repurchased, plus accrued and unpaid interest, if any,
on the Notes repurchased to the date of repurchase.



     8. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in
denominations of $2,000 and integral multiples of $1,000. Notes may be transferred or exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things,
to furnish appropriate endorsements and transfer documents and the Company may require a



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Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company
need not exchange or transfer any Note or portion of a Note selected for redemption, except for the
unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange or
register the transfer of any Notes for a period of 15 days before a selection of Notes to be
redeemed or during the period between a record date and the corresponding Interest Payment Date.



     9. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all
purposes.



     10. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture or the
Notes may be amended or supplemented with the consent of the Holders of at least a majority in
principal amount of the Notes then outstanding, including, without limitation, consents obtained in
connection with a tender offer or exchange offer for the Notes, and any existing default or
compliance with any provision of the Indenture or the Notes may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding Notes, including, without
limitation, consents obtained in connection with a tender offer or exchange offer for the Notes.
Without the consent of any Holder of a Note, the Indenture or the Notes may be amended or
supplemented (i) to cure any ambiguity, defect or inconsistency; (ii) to provide for the assumption
of the Company’s obligations to Holders of the Notes in case of a merger or consolidation or sale
of all or substantially all of the Company’s assets; (iii) to provide for uncertificated Notes in
addition to or in place of certificated Notes; (iv) to make any change that does not adversely
affect the rights of any Holder; (v) to provide for the issuance of and establish the form and
terms and conditions of the Securities of any Series as permitted by the Indenture; (vi) to
evidence and provide for the acceptance of appointment by a successor trustee and to add to or
change any provision of the Indenture as shall be necessary to provide for or facilitate the
administration of trusts hereunder by more than one trustee; or (vii) to comply with the
requirements of the SEC in order to effect or maintain the qualification of the Indenture under the
Trust Indenture Act.



     11. DEFAULTS AND REMEDIES. If an Event of Default relating to the payment of interest or
principal involving the Notes has occurred and is continuing, the Trustee or the Holders of not
less than 25% in aggregate principal amount of the Notes outstanding may declare the entire
principal of all of the outstanding Notes, and any accrued interest, to be due and payable
immediately.



     12. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any other capacity, may
become the owner or pledgee of the Notes, and may otherwise deal with the Company or an Affiliate
of the Company with the same rights it would have if it were not Trustee.



     13. NO RECOURSE AGAINST OTHERS. A director, officer, employee or stockholder, of the Company,
as such, will not have any liability for any obligations of the Company under the Notes or the
Indenture or for any claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the Notes.



     14. AUTHENTICATION. This Note will not be valid until authenticated by the manual signature
of the Trustee or an authenticating agent.



     15. ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (=
joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).



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     16. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes
and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the other identification
numbers placed thereon. The Company will furnish to any Holder upon written request and without
charge a copy of the Base Indenture and the Supplemental Indenture. Requests may be made to:


BMC Software, Inc.

2101 Citywest Boulevard, Suite 2015A

Houston, TX 77042

Attention: General Counsel





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ASSIGNMENT FORM




     To assign this Note, fill in the form below:



	 	 	 	 	 
	(I) or (we) assign and transfer this Note to:
	 	 	 	 
	 

	 	 

(Insert assignee’s legal name)
	 	 






 




(Insert assignee’s soc. sec. or tax I.D. no.)




 





 





 





 




(Print or type assignee’s name, address and zip code)



and irrevocably appoint                                                                                                    
to transfer this Note on the books of the Company. The agent may substitute another to act for
him.




Date:                                                            




	 	 	 	 	 	 	 
	 

	 	Your Signature:
	 	  

(sign
exactly as your name appears

on the face of this Note)
	 	 
	 
	 	 	 	 	 	 
	 

	 	Tax Identification No:
	 	 
 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Signature Guarantee:
	 	 
 

	 	 





Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of
the Registrar, which requirements include membership or participation in the Security Transfer
Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined
by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.





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Option of Holder to Elect Purchase




     If you want to elect to have this Note purchased by the Company pursuant to Section 4.2 of the
Supplemental Indenture, check the box below:



     o Section 4.2



     If you want to elect to have only part of the Note purchased by the Company pursuant to
Section 4.2 of the Supplemental Indenture, state the amount you elect to have purchased: $



Date:                                                            




	 	 	 	 	 	 	 
	 

	 	Your Signature:
	 	  

(sign
exactly as your name appears

on the face of this Note)
	 	 
	 
	 	 	 	 	 	 
	 

	 	Tax Identification No:
	 	 
 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Signature Guarantee:
	 	 
 

	 	 





Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of
the Registrar, which requirements include membership or participation in the Security Transfer
Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined
by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.




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