As filed with the Securities and Exchange Commission on March 12, 1999
Registration No. 333-
---------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________
STERLING COMMERCE, INC.
(Exact name of registrant as specified in its charter)
300 CRESCENT COURT, SUITE 1200
DALLAS, TEXAS 75201
DELAWARE (214) 981-1000 75-2623341
(State or other (Address, including zip code, (I.R.S. Employer
jurisdiction of and telephone number, including Identification
incorporation area code, of registrant's Number)
or organization) principal executive offices)
STERLING COMMERCE, INC. 1999 STOCK OPTION PLAN
(Full title of the plan)
ALBERT K. HOOVER, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL & SECRETARY
STERLING COMMERCE, INC.
300 CRESCENT COURT, SUITE 1200
DALLAS, TEXAS 75201
(214) 981-1000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
_________________
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
-----------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered(2) per Share(3) Price(3) Fee
------------------- ------------- ---------------- ------------------ ------------
<S> <C> <C> <C> <C>
Common Stock, par 3,000,000
shares 26 13/16 $80,437,500 $22,361.63
value $0.01 per
share(1)
</TABLE>
--------------------
(1) Includes associated rights to purchase shares of Series A Junior
Participating Preferred Stock, par value $0.01 per share, of Sterling
Commerce, Inc.
(2) Represents the number of shares of common stock, par value $0.01
per share ("Common Stock"), of Sterling Commerce, Inc. issuable upon the
exercise of options granted pursuant to the Sterling Commerce, Inc. 1999
Stock Option Plan (the "Plan"). Pursuant to Rule 416 under the Securities
Act of 1933 (the "Securities Act"), there are registered hereunder such
indeterminate number of additional shares as may become issuable upon the
exercise of options as a result of the antidilution provisions contained in
the Plan.
(3) Estimated solely for the purpose of calculating the registration
fee under Rule 457(h) under the Securities Act upon the basis of the
average high and low prices of shares of the Common Stock of the registrant
on the Composite Tape of the New York Stock Exchange, Inc. on March 8,
1999.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I of Form
S-8 have been or will be sent or given to participants in the Plan as
specified by Rule 428(b)(1) under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Sterling Commerce, Inc. ("Sterling
Commerce") with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), are incorporated by reference, as of their respective dates, in this
Registration Statement:
(a) Annual Report on Form 10-K for the fiscal year ended September
30, 1998 filed with the Commission on November 19, 1998;
(b) Quarterly Report on Form 10-Q for the quarter ended December 31,
1998 filed with the Commission on February 4, 1999; and
(c) Registration Statement on Form 8-A/A filed with the Commission on
December 18, 1996.
In addition, all documents hereafter filed by Sterling Commerce pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing
of a post-effective amendment which indicates that all securities offered
hereby have been sold or which deregisters all such securities then
remaining unsold shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of
such documents.
Any statement contained herein or in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any subsequently filed document which also
is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable (securities to be offered are registered under
Section 12 of the Exchange Act).
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sterling Commerce is a Delaware corporation. Section 145 of the
Delaware General Corporation Law (the "DGCL") allows the indemnification of
officers and directors of a corporation against liabilities and expenses
arising out of actions brought by a third party, provided that the board of
directors determines that such person acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests
of the corporation and, with respect to a criminal matter, had no
reasonable cause to believe his or her conduct was unlawful. Such law also
permits indemnification against expenses in actions brought by or in right
of a corporation if the standards of conduct required for indemnification
in third-party actions are met, except that no indemnification shall be
made in respect of any action as to which a person shall have been adjudged
to be liable to the corporation unless and only to the extent the Delaware
Chancery Court or other court in which the action was brought determines
that such person is fairly and reasonably entitled to be indemnified.
Indemnification provided pursuant to Section 145 of the DGCL is not
exclusive, and a corporation is empowered to purchase and maintain
insurance on behalf of any person who is or was an officer or director of
the corporation or is or was serving at the request of the corporation as a
director or officer of another corporation against any liability asserted
against such person and incurred by him or her in any such capacity or
arising out of his or her status as such, whether or not the corporation
would have the power to indemnify such person against such liability under
such section. Sterling Commerce's bylaws provide that Sterling Commerce
shall indemnify its directors and officers to the fullest extent permitted
by the DGCL and that Sterling Commerce may, if and to the extent authorized
by Sterling Commerce's board of directors and permitted by the DGCL,
indemnify any other person or entity against any liability.
The DGCL permits a Delaware corporation to include a provision in its
certificate of incorporation eliminating or limiting the personal liability
of any director to the corporation or its stockholders for monetary damages
for a breach of the director's fiduciary duty as a director except for
liability (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the DGCL, which concerns unlawful payments
of dividends, stock purchases or redemptions or (iv) for any transaction
from which the director derived an improper personal benefit. Sterling
Commerce's certificate of incorporation (the "Certificate of
Incorporation") provides that to the fullest extent permitted by the DGCL,
directors of Sterling Commerce shall not be liable to Sterling Commerce or
its stockholders for monetary damages for breach of their fiduciary duties
as directors.
As authorized by the Certificate of Incorporation, Sterling Commerce
has entered into indemnification agreements with each of its directors and
officers. These indemnification agreements provide for, among other
things, (i) the indemnification by Sterling Commerce of the persons
indemnified thereunder to the extent described above, (ii) the advancement
of attorneys' fees and other expenses, and (iii) the establishment, upon
approval by Sterling Commerce's board of directors, of trusts or other
funding mechanisms to fund Sterling Commerce's indemnification obligations
thereunder.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
4.1 Fourth Amended and Restated Certificate of Incorporation and
Certificate of Designation, as amended
4.2 Amended and Restated Bylaws (previously filed as an exhibit
to Sterling Commerce's Annual Report on Form 10-K filed on November 19,
1998 and incorporated herein by reference)
4.3 Form of Common Stock Certificate (previously filed as an
exhibit to Sterling Commerce's Registration Statement No. 33-80595 and
incorporated herein by reference)
4.4 Rights Agreement, dated December 18, 1996, between Sterling
Commerce and The First National Bank of Boston, as Rights Agent (previously
filed as an exhibit to Sterling Commerce's Current Report on Form 8-K dated
December 18, 1996 and incorporated herein by reference)
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
23.1 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included
in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
24.1 Power of Attorney
ITEM 9. UNDERTAKINGS
A. The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most recent
post-effective amendment thereof), which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. The Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer, or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer, or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Dublin, State of Ohio, on March
12, 1999.
STERLING COMMERCE, INC.
By: /s/ Warner C. Blow
-----------------------------
Warner C. Blow
President and Chief Executive
Officer and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in
the capacities indicated on March 12, 1999.
Signatures Title
/s/ Warner C. Blow President and Chief Executive Officer and
------------------------------ Director (Principal Executive Officer)
Warner C. Blow
/s/ Sterling L. Williams* Chairman of the Board and Director
------------------------------
Sterling L. Williams
/s/ Charles J. Wyly, Jr.* Director
------------------------------
Charles J. Wyly, Jr.
/s/ Sam Wyly* Director
------------------------------
Sam Wyly
/s/ Evan A. Wyly* Director
------------------------------
Evan A. Wyly
/s/ Honor R. Hill* Director
------------------------------
Honor R. Hill
/s/ Robert E. Cook* Director
------------------------------
Robert E. Cook
/s/ Steven P. Shiflet Senior Vice President and Chief
------------------------------ Financial Officer (Principal Financial
Steven P. Shiflet and Accounting Officer)
* The undersigned, by signing his name hereto, does sign and execute this
Registration Statement pursuant to the Power of Attorney executed on behalf
of the above-named directors and filed herewith.
By: /s/ Dennis Byrnes
---------------------------
Dennis Byrnes
Attorney-in-Fact
INDEX TO EXHIBITS
Exhibit No. Description
----------- -----------
4.1 Fourth Amended and Restated Certificate of Incorporation and
Certificate of Designation, as amended
4.2 Amended and Restated Bylaws (previously filed as an exhibit
to Sterling Commerce's Annual Report on Form 10-K filed on
November 19, 1998 and incorporated herein by reference)
4.3 Form of Common Stock Certificate (previously filed as an
exhibit to Sterling Commerce's Registration Statement
No. 33-80595 and incorporated herein by reference)
4.4 Rights Agreement, dated December 18, 1996, between Sterling
Commerce and The First National Bank of Boston, as Rights
Agent (previously filed as an exhibit to Sterling Commerce's
Current Report on Form 8-K dated December 18, 1996 and
incorporated herein by reference)
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
23.1 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included
in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
24.1 Power of Attorney
EXHIBIT 4.1
FOURTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION AND
CERTIFICATE OF DESIGNATION, AS AMENDED
FOURTH AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
STERLING COMMERCE, INC.
Pursuant to the provisions of Section 245 of the Delaware General
Corporation Law (the "DGCL"), Sterling Commerce, Inc., a Delaware
corporation (the "Company"), does hereby certify as follows:
1. The name of the Company is Sterling Commerce, Inc.
2. The original Certificate of Incorporation of the Company was
filed in the office of the Secretary of State of the State of Delaware on
December 1, 1995, under the name of December Corporation.
3. This Fourth Amended and Restated Certificate of Incorporation has
been duly adopted in accordance with the provisions of Sections 242 and 245
of the DGCL.
4. The text of the Certificate of Incorporation of the Company is
hereby amended and restated in its entirety to read as follows:
ARTICLE I.
The name of the corporation is Sterling Commerce, Inc.
ARTICLE II.
The address of the corporation's registered office in the State of
Delaware is 1013 Centre Road, in the City of Wilmington, County of New
Castle, Delaware 19805. The name of its registered agent at such address
is Corporation Service Company.
ARTICLE III.
The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
ARTICLE IV.
The total number of shares of stock of all classes which the
corporation shall have authority to issue is 350,000,000, consisting of
300,000,000 shares of Common Stock having a par value of $.01 per share,
and 50,000,000 shares of Preferred Stock having a par value of $.01 per
share.
The Preferred Stock may be issued in one or more series as may be
determined from time to time by the Board of Directors. The Preferred
Stock of each such series shall have such voting powers, full or limited,
or no voting powers, and such designations, preferences and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions thereof, as shall be stated and expressed by
the Board of Directors in the resolution or resolutions providing for the
issue of such series of Preferred Stock pursuant to the authority to do so
which is hereby expressly vested in the Board of Directors.
Except as otherwise provided in any resolution or resolutions of the
Board of Directors providing for the issue of any particular series of
Preferred Stock, the number of shares of stock of any such series so set
forth in such resolution or resolutions may be increased or decreased (but
not below the number of shares of such series then outstanding) by a
resolution or resolutions likewise adopted by the Board of Directors. No
approval by class or series vote or otherwise, of the holders of the
Preferred Stock or any series thereof shall be required for the issue by
the Board of Directors of any other series of Preferred Stock, whether or
not in any respect senior to or on a parity with any such outstanding
series, provided, however, that the Board of Directors may condition the
issue of such additional series of Preferred Stock on the approval, by such
proportion as the Board of Directors may specify, of any such outstanding
series.
Except as otherwise provided in any resolution or resolutions of the
Board of Directors providing for the issue of any particular series of
Preferred Stock, Preferred Stock redeemed or otherwise acquired by the
corporation shall assume the status of authorized but unissued Preferred
Stock and shall be unclassified as to series and may thereafter, subject to
the provisions of this Article IV and to any restrictions contained in any
resolution or resolutions of the Board of Directors providing for the issue
of any such series of Preferred Stock, be reissued in the same manner as
other authorized but unissued Preferred Stock.
Shares of Common Stock and, subject to the provisions of this Article
IV, shares of any series of Preferred Stock may be issued from time to time
as the Board of Directors determines and on such terms and for such
consideration as may be fixed by the Board of Directors.
Subject to the provisions of law and the preferences of the Preferred
Stock, dividends may be paid on the Common Stock at such time and in such
amounts as the Board of Directors may deem advisable.
The authorized amount of shares of Common Stock and of Preferred Stock
may, without a class or series vote, be increased or decreased from time to
time by the affirmative vote of the holders of a majority of the stock of
the corporation entitled to a vote thereon.
Except as otherwise specifically required by law or as specifically
provided in any resolution or resolutions of the Board of Directors
providing for the issue of any particular series of Preferred Stock, the
exclusive voting power of the corporation shall be vested in the Common
Stock of the corporation. Each share of Common Stock shall entitle the
holder thereof to one vote at all meetings of the stockholders of the
corporation.
See attached Certificate of Designation filed December 26, 1996 for
terms of Series A Junior Participating Preferred Stock.
ARTICLE V.
In furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware, the Board of Directors is expressly
authorized to make, amend or repeal the Bylaws of the corporation. Any
bylaw made by the Board of Directors under the powers conferred hereby may
be amended or repealed by the Board of Directors (except as specified in
any such bylaw so made or amended) or by the stockholders in the manner
provided in the Bylaws. Notwithstanding the foregoing and anything
contained in this Certificate of Incorporation to the contrary, Sections 1,
2 and 4 of Article II of the Bylaws, Sections 2, 3 and 4 of Article III of
the Bylaws and Article X of the Bylaws may not be amended or repealed by
the stockholders, and no provision inconsistent therewith may be adopted by
the stockholders, without the affirmative vote of the holders of at least
75% of the voting power of all shares of the corporation entitled to vote
generally in the election of directors, voting together as a single class.
ARTICLE VI.
All power of the corporation shall be exercised by or under the
direction of the Board of Directors except as otherwise provided herein or
required by law.
For the management of the business and for the conduct of the affairs
of the corporation, and in further creation, definition, limitation and
regulation of the power of the corporation and of its directors and of its
stockholders, it is further provided:
1. Election of Directors. Election of directors need not be by
written ballot unless the Bylaws of the corporation shall so provide.
2. Number, Election and Term of Directors. Except as otherwise
fixed pursuant to the provisions of Article IV hereof relating to the
rights of the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation
to elect additional directors under specified circumstances, the
number of directors of the corporation shall be fixed from time to
time by or pursuant to the Bylaws. The directors, other than those
who may be elected by the holders of any class or series of stock
having preference over the Common Stock as to dividends or upon
liquidation, shall be classified, with respect to the time for which
they severally hold office, into three classes, as nearly equal in
number as possible, as shall be provided in the manner specified in
the Bylaws, one class to hold office initially for a term expiring at
the annual meeting of stockholders to be held in 1997, another class
to hold office initially for a term expiring at the annual meeting of
stockholders to be held in 1998, and another class to hold office
initially for a term expiring at the annual meeting of stockholders to
be held in 1999, with members of each class to hold office until their
successors are elected and qualified. At each annual meeting of the
stockholders of the corporation, the successors to the class of
directors whose term expires at that meeting shall be elected to hold
office for a term expiring at the annual meeting of stockholders held
in the third year following the year of their election.
3. Stockholder Nomination of a Director. Advance notice of
nominations for the election of directors, other than by the Board of
Directors or a Committee thereof, shall be given in the manner
provided by the Bylaws.
4. Newly Created Directorships and Vacancies. Subject to the
rights, if any, of the holders of any class or series of stock having
a preference over the Common Stock as to dividends or upon liquidation
to elect additional directors under specified circumstances, newly
created directorships resulting from any increase in the number of
directors and any vacancies on the Board of Directors resulting from
death, resignation, disqualification, removal or other cause shall be
filled solely by the affirmative vote of a majority of the remaining
directors then in office, even though less than a quorum of the Board
of Directors, by a sole remaining director, or, if there is no
remaining director, by the stockholders. Any director elected in
accordance with the preceding sentence shall hold office for the
remainder of the full term of the class of directors in which the new
directorship was created or the vacancy occurred and until such
directorship was created or the vacancy occurred and until such
director's successor has been elected and qualified. No decrease in
the number of directors constituting the Board of Directors may
shorten the term of any incumbent director.
5. Removal. Subject to the rights, if any, of the holders of
any class or series of stock having a preference over the Common Stock
as to dividends or upon liquidation in respect of the election of
additional directors under specified circumstances, any director may
be removed from office by the stockholders only for cause and only in
the manner provided in this Section 5. At any annual meeting or
special meeting of the stockholders, the notice of which states that
the removal of a director or directors is among the purposes of the
meeting, the affirmative vote of the holders of at least 75% of the
voting power of all shares of the corporation entitled to vote
generally in the election of directors, voting together as a single
class, may remove such director or directors for cause.
6. Amendment, Repeal, etc. Notwithstanding anything contained
in this Certificate of Incorporation to the contrary, the affirmative
vote of the holders of at least 75% of the voting power of all shares
of the corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required to
amend or repeal, or adopt any provisions inconsistent with, this
Article VI or any provision hereof.
ARTICLE VII.
The corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, to the extent
and in the manner now or hereafter prescribed by the laws of the State of
Delaware, and additional provisions authorized by such laws as are then in
force may be added hereto. All rights conferred upon the directors,
officers and stockholders of the corporation herein or in any amendment
hereof are granted subject to this reservation.
ARTICLE VIII.
To the fullest extent permitted by the General Corporation Law of
Delaware as the same exists or may hereafter be amended, a director of the
corporation shall not be liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director. Any amendment
or repeal of, or adoption of any provision inconsistent with, this Article
VIII shall not adversely affect any right or protection of a director of
the corporation in respect of any breach of fiduciary duty occurring in
whole or in part prior to such amendment or repeal.
ARTICLE IX.
Each person who is or was a director or officer of the corporation,
and each such director or officer who is or was serving at the request of
the Board of Directors or an officer of the corporation as an employee or
agent of the corporation or as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
whether for profit or not for profit (including the heirs, executors,
administrators or estate of such person), shall be indemnified by the
corporation to the full extent permitted by the General Corporation Law of
Delaware or any other applicable law as currently or hereafter in effect.
The right of indemnification provided in this Article IX shall not be
exclusive of any other rights to which any person seeking indemnification
may otherwise be entitled, including without limitation pursuant to any
contract approved by the Board of Directors (whether or not the directors
approving such contract are or are to be parties to such contract or
similar contracts). Without limiting the generality or the effect of the
foregoing, the corporation may adopt Bylaws, or enter into one or more
agreements with any person, which provide for indemnification greater or
otherwise different from that provided in this Article IX or the General
Corporation Law of Delaware, and any such agreement approved by the Board
of Directors shall be a valid and binding obligation of the corporation
regardless of whether one or more members of the Board of Directors, or all
members of the Board of Directors, are parties thereto or to similar
agreements. Any amendment or repeal of, or adoption of any provision
inconsistent with, this Article IX shall not adversely affect any right or
protection existing hereunder, or arising out of events occurring or
circumstances existing, in whole or in part, prior to such amendment,
repeal or adoption and no such amendment, repeal or adoption, shall affect
the legality, validity or enforceability of any contract entered into or
right granted prior to the effective date of such amendment, repeal or
adoption.
ARTICLE X.
No action required to be taken, or which may be taken, at any annual
or special meeting of stockholders of the corporation may be taken without
a meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
Special meetings of stockholders of the corporation may be called only
by (i) the Chairman of the Board of the corporation, (ii) the President
of the corporation, or (iii) the Secretary of the corporation within 10
calendar days after receipt of the written request of a majority of the
total number of directors then in office.
At any annual meeting or special meeting of stockholders of the
corporation, only such business shall be conducted or considered as has
been brought before such meeting in the manner provided in the Bylaws.
Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of at least 75% of the
voting power of all shares of the corporation entitled to vote generally in
the election of directors, voting together as a single class, shall be
required to amend or repeal, or adopt any provisions inconsistent with,
this Article X or any provision hereof.
This Fourth Amended and Restated Certificate of Incorporation shall be
effective on the date of its filing with the Secretary of State of the
State of Delaware.
EXECUTED effective as of March 4, 1999.
STERLING COMMERCE, INC.
By: /s/ Albert K. Hoover
Albert K. Hoover
Senior Vice President, General
Counsel and Secretary
Attest:
/s/ Dennis P. Byrnes
Dennis P. Byrnes
Assistant Secretary
CERTIFICATE OF DESIGNATION
of
SERIES A JUNIOR PARTICIPATING
PREFERRED STOCK
of
STERLING COMMERCE, INC.
(Pursuant to Section 151 of the
General Corporation Law of the State of Delaware)
Sterling Commerce, Inc., a corporation organized and existing under
the General Corporation Law of the State of Delaware (hereinafter called
the "Company"), DOES HEREBY CERTIFY:
That, pursuant to authority vested in the Board of Directors of the
Company by its Certificate of Incorporation, and pursuant to the provisions
of Section 151 of the General Corporation Law of the State of Delaware, the
Board of Directors of the Company has adopted the following resolution
providing for the issuance of a series of Preferred Stock:
RESOLVED, that pursuant to the authority expressly granted to and
vested in the Board of Directors of the Company (hereinafter called the
"Board of Directors" or the "Board") by the Certificate of Incorporation of
the Company, a series of Preferred Stock, par value $0.01 per share (the
"Preferred Stock"), of the Company be, and it hereby is, created, and that
the designation and amount thereof and the powers, designations,
preferences and relative, participating, optional and other special rights
of the shares of such series, and the qualifications, limitations or
restrictions thereof are as follows:
ARTICLE I. Designation and Amount
The shares of such series will be designated as Series A Junior
Participating Preferred Stock (the "Series A Preferred") and the number of
shares constituting the Series A Preferred is 1,500,000. Such number of
shares may be increased or decreased by resolution of the Board; provided,
however, that no decrease will reduce the number of shares of Series A
Preferred to a number less than the number of shares then outstanding plus
the number of shares reserved for issuance upon the exercise of outstanding
options, rights or warrants or upon the conversion of any outstanding
securities issued by the Company convertible into shares of Series A
Preferred.
ARTICLE II. Dividends and Distributions
(a) Subject to the rights of the holders of any shares of
any series of Preferred Stock ranking prior to the shares of Series A
Preferred with respect to dividends, the holders of shares of Series A
Preferred, in preference to the holders of Common Stock, par value $0.01
per share (the "Common Stock"), of the Company, and of any other junior
stock, will be entitled to receive, when, as and if declared by the Board
out of funds legally available for the purpose, dividends payable in cash
on such dates as are from time to time established for the payment of cash
dividends on the Common Stock (each such date being referred to herein as a
"Dividend Payment Date"), commencing on the first Dividend Payment Date
after the first issuance of a share or fraction of a share of Series A
Preferred (the "First Dividend Payment Date"), in an amount per share
(rounded to the nearest cent) equal to the greater of (i) $1.00 or (ii)
subject to the provision for adjustment hereinafter set forth, one hundred
times the aggregate per share amount of all cash dividends, and one hundred
times the aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions, other than a dividend payable in shares
of Common Stock or a subdivision of the outstanding shares of Common Stock
(by reclassification or otherwise), declared on the Common Stock since the
immediately preceding Dividend Payment Date or, with respect to the First
Dividend Payment Date, since the first issuance of any share or fraction of
a share of Series A Preferred. In the event that the Company at any time
(i) declares a dividend on the outstanding shares of Common Stock payable
in shares of Common Stock, (ii) subdivides the outstanding shares of Common
Stock, (iii) combines the outstanding shares of Common Stock into a smaller
number of shares, or (iv) issues any shares of its capital stock in a
reclassification of the outstanding shares of Common Stock (including any
such reclassification in connection with a consolidation or merger in which
the Company is the continuing or surviving corporation), then, in each such
case and regardless of whether any shares of Series A Preferred are then
issued or outstanding, the amount to which holders of shares of Series A
Preferred would otherwise be entitled immediately prior to such event under
clause (ii) of the preceding sentence will be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
(b) Dividends will accrue on outstanding shares of Series A
Preferred from the Dividend Payment Date next preceding the date of issue
of such shares, unless (i) the date of issue of such shares is prior to the
record date for the First Dividend Payment Date, in which case dividends on
such shares will accrue from the date of the first issuance of a share of
Series A Preferred or (ii) the date of issue is a Dividend Payment Date or
is a date after the record date for the determination of holders of shares
of Series A Preferred entitled to receive a dividend and before such
Dividend Payment Date, in either of which events such dividends will accrue
from such Dividend Payment Date. Accrued but unpaid dividends will
cumulate from the applicable Dividend Payment Date but will not bear
interest. Dividends paid on the shares of Series A Preferred in an amount
less than the total amount of such dividends at the time accrued and
payable on such shares will be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board may fix a record
date for the determination of holders of shares of Series A Preferred
entitled to receive payment of a dividend or distribution declared thereon,
which record date will be not more than 60 calendar days prior to the date
fixed for the payment thereof.
ARTICLE III. Voting Rights
The holders of shares of Series A Preferred will have the following
voting rights:
(a) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Preferred will entitle the holder thereof to
one hundred votes on all matters submitted to a vote of the stockholders of
the Company. In the event the Company at any time (i) declares a dividend
on the outstanding shares of Common Stock payable in shares of Common
Stock, (ii) subdivides the outstanding shares of Common Stock, (iii)
combines the outstanding shares of Common Stock into a smaller number of
shares, or (iv) issues any shares of its capital stock in a
reclassification of the outstanding shares of Common Stock (including any
such reclassification in connection with a consolidation or merger in which
the Company is the continuing or surviving corporation), then, in each such
case and regardless of whether any shares of Series A Preferred are then
issued or outstanding, the number of votes per share to which holders of
shares of Series A Preferred would otherwise be entitled immediately prior
to such event will be adjusted by multiplying such number by a fraction,
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such
event.
(b) Except as otherwise provided herein, in any other
Preferred Stock Designation creating a series of Preferred Stock or any
similar stock, or by law, the holders of shares of Series A Preferred and
the holders of shares of Common Stock and any other capital stock of the
Company having general voting rights will vote together as one class on all
matters submitted to a vote of stockholders of the Company.
(c) Except as set forth in the Certificate of Incorporation
or herein, or as otherwise provided by law, holders of shares of Series A
Preferred will have no voting rights.
ARTICLE IV. Certain Restrictions
(a) Whenever dividends or other distributions payable on
the Series A Preferred are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on shares of
Series A Preferred outstanding have been paid in full, the Company will
not:
(i) Declare or pay dividends, or make any
other distributions, on any shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or
winding up) to the shares of Series A Preferred;
(ii) Declare or pay dividends, or make any
other distributions, on any shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution, or
winding up) with the shares of Series A Preferred, except
dividends paid ratably on the shares of Series A Preferred and
all such parity stock on which dividends are payable or in
arrears in proportion to the total amounts to which the holders
of all such shares are then entitled;
(iii) Redeem, purchase or otherwise
acquire for consideration shares of any stock ranking junior
(either as to dividends or upon liquidation, dissolution or
winding up) to the shares of Series A Preferred; provided,
however, that the Company may at any time redeem, purchase or
otherwise acquire shares of any such junior stock in exchange for
shares of any stock of the Company ranking junior (either as to
dividends or upon dissolution, liquidation or winding up) to the
shares of Series A Preferred; or
(iv) Redeem, purchase or otherwise acquire
for consideration any shares of Series A Preferred, or any shares
of stock ranking on a parity with the shares of Series A
Preferred, except in accordance with a purchase offer made in
writing or by publication (as determined by the Board) to all
holders of such shares upon such terms as the Board, after
consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and
classes, may determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(b) The Company will not permit any majority-owned
subsidiary of the Company to purchase or otherwise acquire for
consideration any shares of stock of the Company unless the Company could,
under paragraph (a) of this Article IV purchase or otherwise acquire such
shares at such time and in such manner.
ARTICLE V. Reacquired Shares
Any shares of Series A Preferred purchased or otherwise acquired by
the Company in any manner whatsoever will be retired and canceled promptly
after the acquisition thereof. All such shares will upon their
cancellation become authorized but unissued shares of Preferred Stock and
may be reissued as part of a new series of Preferred Stock subject to the
conditions and restrictions on issuance set forth herein, in the
Certificate of Incorporation of the Company, or in any other Preferred
Stock Designation creating a series of Preferred Stock or any similar stock
or as otherwise required by law.
ARTICLE VI. Liquidation, Dissolution or Winding Up
Upon any liquidation, dissolution or winding up of the Company, no
distribution will be made (a) to the holders of shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution, or winding
up) to the shares of Series A Preferred unless, prior thereto, the holders
of shares of Series A Preferred have received $100 per share, plus an
amount equal to accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment; provided, however,
that the holders of shares of Series A Preferred will be entitled to
receive an aggregate amount per share, subject to the provision for
adjustment hereinafter set forth, equal to one hundred times the aggregate
amount to be distributed per share to holders of shares of Common Stock or
(b) to the holders of shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution, or winding up) with the shares
of Series A Preferred, except distributions made ratably on the shares of
Series A Preferred and all such parity stock in proportion to the total
amounts to which the holders of all such shares are entitled upon such
liquidation, dissolution, or winding up. In the event the Company at any
time (i) declares a dividend on the outstanding shares of Common Stock
payable in shares of Common Stock, (ii) subdivides the outstanding shares
of Common Stock, (iii) combines the outstanding shares of Common Stock into
a smaller number of shares, or (iv) issues any shares of its capital stock
in a reclassification of the outstanding shares of Common Stock (including
any such reclassification in connection with a consolidation or merger in
which the Company is the continuing or surviving corporation), then, in
each such case and regardless of whether any shares of Series A Preferred
are then issued or outstanding, the aggregate amount to which each holder
of shares of Series A Preferred would otherwise be entitled immediately
prior to such event under the proviso in clause (a) of the preceding
sentence will be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such
event.
ARTICLE VII. Consolidation, Merger, Etc.
In the event that the Company enters into any consolidation, merger,
combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any
other property, then, in each such case, each share of Series A Preferred
will at the same time be similarly exchanged for or changed into an amount
per share, subject to the provision for adjustment hereinafter set forth,
equal to one hundred times the aggregate amount of stock, securities, cash
and/or any other property (payable in kind), as the case may be, into which
or for which each share of Common Stock is changed or exchanged. In the
event the Company at any time (a) declares a dividend on the outstanding
shares of Common Stock payable in shares of Common Stock, (b) subdivides
the outstanding shares of Common Stock, (c) combines the outstanding shares
of Common Stock in a smaller number of shares, or (d) issues any shares of
its capital stock in a reclassification of the outstanding shares of Common
Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing or surviving
corporation), then, in each such case and regardless of whether any shares
of Series A Preferred are then issued or outstanding, the amount set forth
in the preceding sentence with respect to the exchange or change of shares
of Series A Preferred will be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately
prior to such event.
ARTICLE VIII. Redemption
The shares of Series A Preferred are not redeemable.
ARTICLE IX. Rank
The shares of Series A Preferred rank, with respect to the payment of
dividends and the distribution of assets, junior to all other series of the
Company's Preferred Stock.
ARTICLE X. Amendment
Notwithstanding anything contained in the Certificate of Incorporation
of the Company to the contrary and in addition to any other vote required
by applicable law, the Certificate of Incorporation of the Company may not
be amended in any manner that would materially alter or change the powers,
preferences or special rights of the Series A Preferred so as to affect
them adversely without the affirmative vote of the holders of at least 80%
of the outstanding shares of Series A Preferred, voting together as a
single series.
IN WITNESS WHEREOF, this Certificate of Designation is executed on
behalf of the Company by its Executive Vice President, Chief Financial
Officer, General Counsel and Secretary and attested by its Assistant
Secretary this 18th day of December, 1996.
/s/ Jeanette P. Meier
Jeannette P. Meier,
Executive Vice President, Chief Financial
Officer, General Counsel and Secretary
Attest:
/s/ Dawn Wheeler
Dawn Wheeler,
Vice President
FIRST AMENDED CERTIFICATE OF DESIGNATION
of
SERIES A JUNIOR PARTICIPATING
PREFERRED STOCK
of
STERLING COMMERCE, INC.
(Pursuant to Section 151 of the
General Corporation Law of the State of Delaware)
Sterling Commerce, Inc., a Delaware corporation (hereinafter called
the "Company"),
DOES HEREBY CERTIFY:
1. That, pursuant to the authority expressly granted to and vested
in the Board of Directors of the Company by its Certificate of
Incorporation and in accordance with the provisions of Section 151 of the
Delaware General Corporation Law (the "DGCL"), the Board of Directors of
the Company, by resolutions adopted as of December 16, 1996, created a
series of Preferred Stock designated as Series A Junior Participating
Preferred Stock ("Series A Preferred") and designated 1,500,000 shares of
Preferred Stock as Series A Preferred; and
2. That a Certificate of Designation of Series A Junior
Participating Preferred Stock (the "Certificate of Designation") setting
forth the number of shares constituting the Series A Preferred, the powers,
designations, preferences and relative, participating, optional and other
special rights of the shares of Series A Preferred, and the qualifications,
limitations or restrictions of the shares of Series A Preferred was filed
of record with the Secretary of State of the State of Delaware; and
3. That no shares of Series A Preferred have been issued; and
4. That, pursuant to the authority vested in the Board of Directors
of the Company by its Certificate of Incorporation and the DGCL, the Board
of Directors, on March 4, 1999, adopted resolutions providing for the
amendment of the Certificate of Designation solely to effect an increase in
the number of shares of such Series A Preferred from 1,500,000 shares to
3,000,000 shares.
IN WITNESS WHEREOF, this First Amended Certificate of Designation is
executed on behalf of the Company by its Senior Vice President, General
Counsel and Secretary and attested by its Assistant Secretary this 4th day
of March 1999.
STERLING COMMERCE, INC.
By: /s/ Albert K. Hoover
Albert K. Hoover
Senior Vice President, General
Counsel and Secretary
Attest:
/s/ Dennis P. Byrnes
Dennis P. Byrnes
Assistant Secretary
CORP:3-5-99 cert of increase
EXHIBIT 5.1
OPINION OF SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
March 12, 1999
Sterling Commerce, Inc.
300 Crescent Court, Suite 1200
Dallas, Texas 75201
Ladies and Gentlemen:
We have acted as special counsel to Sterling Commerce, Inc., a
Delaware corporation (the "Company"), in connection with the proposed
issuance by the Company of up to 3,000,000 shares (the "Shares") of common
stock, par value $0.01 per share (the "Common Stock"), of the Company upon
exercise of stock options of the Company to be granted under the Sterling
Commerce, Inc. 1999 Stock Option Plan (the "Plan").
This opinion is delivered to you in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Securities Act
of 1933, as amended (the "Securities Act").
In rendering the opinion set forth herein, we have examined and
relied on originals or copies, certified or otherwise identified to our
satisfaction, of (i) the Registration Statement on Form S-8 relating to the
Shares, to be filed herewith with the Securities and Exchange Commission
(the "Commission") under the Securities Act (together with all exhibits
thereto, the "Registration Statement"), (ii) the certificate of
incorporation and bylaws of the Company, each as currently in effect, (iii)
the Plan, (iv) a specimen of the certificates to be used to represent the
Shares, and (v) certain resolutions (the "Resolutions") dated March 4, 1999
of the board of directors of the Company (the "Board") relating to the
Shares and the 1999 Stock Option Committee of the Board relating to the
issuance of options to acquire the Shares. We have also examined originals
or copies, certified or otherwise identified to our satisfaction, of such
records of the Company and such agreements, certificates of public
officials, certificates of officers or other representatives of the Company
and others, and such other documents, certificates, records, as we have
deemed necessary or appropriate as a basis for the opinions set forth
herein.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such latter documents. We
have also assumed that the certificates representing the Shares will be
signed by facsimile or otherwise by authorized officers of the Company and
of the transfer agent for the Common Stock and registered by the registrar
for the Common Stock and will conform to the specimen thereof examined by
us. As to any facts material to the opinion expressed herein that were not
independently established or verified, we have relied upon oral or written
statements and representations of officers and other representatives of the
Company and others.
Based upon and subject to the foregoing, it is our opinion that
the Shares have been duly authorized and, when issued and delivered as set
forth in the Resolutions and in accordance with the terms and conditions of
the Plan, and against payment therefor, will be validly-issued, fully-paid
and nonassessable.
We hereby consent to the filing of this opinion with the
Commission as Exhibit 5.1 to the Registration Statement and with the New
York Stock Exchange in connection with the filing of a listing application
relating to the Shares.
Very truly yours,
/s/ SKADDEN, ARPS, SLATE, MEAGHER
& FLOM LLP
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) of Sterling Commerce, Inc. (the "Company"), pertaining
to the Sterling Commerce, Inc. 1999 Stock Option Plan, of our report dated
November 17, 1998, with respect to the consolidated financial statements
and schedule of the Company included in its Annual Report (Form 10-K) for
the fiscal year ended September 30, 1998, filed with the Securities and
Exchange Commission.
/s/ ERNST & YOUNG LLP
Dallas, Texas
March 12, 1999
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby
constitutes and appoints each of Albert K. Hoover and Dennis P. Byrnes, or
either of them, their true and lawful attorney-in-fact, with full power of
substitution and resubstitution, for him and in his name, place and stead,
to sign on his behalf, as a director of Sterling Commerce, Inc., a Delaware
corporation (the "Corporation"), a Registration Statement on Form S-8 or
any other appropriate form (the "Registration Statement"), for the purpose
of registering pursuant to the Securities Act of 1933, as amended, the
shares of common stock, par value $0.01 per share, of the Corporation
issuable upon the exercise of options granted pursuant to the Sterling
Commerce, Inc. 1999 Stock Option Plan, and to sign any or all amendments
and any or all post-effective amendments to the Registration Statement, and
to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact, each of them with or without the other, full
power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact or either of them
or their substitute or substitutes may lawfully do or cause to be done by
virtue hereof.
Dated: March 9, 1999
/s/ Sterling L. Williams /s/ Honor R. Hill
------------------------------ -------------------------------
Sterling L. Williams Honor R. Hill
/s/ Sam Wyly /s/ Robert E. Cook
------------------------------ -------------------------------
Sam Wyly Robert E. Cook
/s/ Charles J. Wyly, Jr. /s/ Evan A. Wyly
------------------------------ -------------------------------
Charles J. Wyly, Jr. Evan A. Wyly
