<PAGE>
As filed with the Securities and Exchange Commission on December 1, 1994
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------
STERLING SOFTWARE, INC.
(Exact name of registrant as specified in its charter)
Delaware 75-1873956
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
8080 North Central Expressway
Suite 1100
Dallas, Texas 75206
(214) 891-8600
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
----------------
JEANNETTE P. MEIER, ESQ. With a copy to:
Executive Vice President, CHARLES D. MAGUIRE, JR., ESQ.
Secretary and General Counsel Jackson & Walker, L.L.P.
Sterling Software, Inc. 901 Main Street
8080 North Central Expressway Suite 6000
Suite 1100 Dallas, Texas 75202
Dallas, Texas 75206 (214) 953-5850
(214) 891-8685
(Name, address, including zip code, and
telephone number, including area code,
of agent for service)
----------------
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered in connection with
dividend or interest reinvestment plans, check the following box. [X]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==========================================================================================================
Title of Each Class Amount Proposed Maximum Proposed Maximum
of Securities to to be Offering Price Aggregate Amount of
be Registered Registered Per Unit/(1)/ Offering Price/(1)/ Registration Fee
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.10 per share 1,110,000 shares $29.50 $32,745,000 $11,292
===========================================================================================================
</TABLE>
/(1)/ Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(c), the offering price and registration fee are
computed on the basis of the average of the high and low prices of the
Common Stock as reported by the New York Stock Exchange on November 23,
1994.
----------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to Section 8(a), may
determine.
Pursuant to Rule 429, this Registration Statement contains a combined
prospectus relating to this Registration Statement, Registration Statement No.
33-48553 and Registration Statement No. 33-53831.
<PAGE>
PROSPECTUS
4,610,000 Shares
STERLING SOFTWARE, INC.
Common Stock
This Prospectus relates to the offer and sale by Sterling Software, Inc.
("Sterling" or the "Company") of up to 4,610,000 shares (the "Shares") of the
Company's common stock, par value $0.10 per share (the "Common Stock"), issuable
by the Company upon exercise of options (the "Options") granted or to be granted
from time to time to eligible persons pursuant to the provisions of the
Company's 1992 Non-Statutory Stock Option Plan (as amended, the "Plan"). This
Prospectus also relates to the offer and sale of up to 4,610,000 Shares by
certain stockholders (the "Selling Stockholders") who will acquire such Shares
upon the exercise of Options.
The Shares may be sold from time to time by the Selling Stockholders, or by
pledgees, donees, transferees or other successors in interest. Such sales may
be made on one or more exchanges, including the New York Stock Exchange (the
"NYSE"), or in the over the counter market, or in negotiated transactions, in
each case at prices and at terms then prevailing or at prices related to the
then current market price or at negotiated prices and terms. Upon any sale of
the Shares offered hereby, Selling Stockholders or such successors in interest
and participating agents, brokers or dealers may be deemed to be underwriters as
that term is defined in the Securities Act of 1933, as amended (the "Securities
Act"), and commissions or discounts or any profit realized on the resale of such
securities may be deemed to be underwriting commissions or discounts under the
Securities Act. See "Plan of Distribution."
The Common Stock is listed for trading on the NYSE under the symbol "SSW."
On November 29, 1994, the closing price of the Common Stock on the NYSE was
$30.00. The Company will pay all expenses in connection with this offering,
which are estimated to be approximately $28,300.
----------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
----------------
The date of this Prospectus is __________, 1994.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Judiciary Plaza, Room 1024,
450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's regional
offices at Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60611 and at 7 World Trade Center, Suite 1300, New York, New
York 10048. Copies of such materials can also be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. The Common Stock is listed on the NYSE. Reports,
proxy statements and other information concerning the Company can also be
inspected at the offices of the NYSE at 20 Broad Street, New York, New York
10005.
This Prospectus, which constitutes part of a Registration Statement filed
by the Company with the Commission under the Securities Act (the "Registration
Statement"), omits certain of the information contained in the Registration
Statement. Reference is made to the Registration Statement and to the exhibits
thereto for further information with respect to the Company and the Common Stock
offered hereby. Copies of such Registration Statement are available from the
Commission. Statements contained herein concerning the provisions of documents
filed herewith as exhibits are necessarily summaries of such documents, and each
such statement is qualified in its entirety by reference to the copy of the
applicable document filed with the Commission.
The Company's principal executive offices are located at 8080 North Central
Expressway, Suite 1100, Dallas, Texas 75206, and its telephone number at such
address is (214) 891-8600.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed with the Commission by the
Company, are incorporated herein by reference and made a part hereof:
(i) Annual Report on Form 10-K (File No. 1-8465) for the year ended
September 30, 1993, as amended by Form 10-K/A Amendment No. 1, filed
January 26, 1994;
(ii) Quarterly Report on Form 10-Q (File No. 1-8465) for the quarter
ended December 31, 1993;
(iii) Quarterly Report on Form 10-Q (File No. 1-8465) for the quarter
ended March 31, 1994, as amended by Form 10-Q/A Amendment No. 1,
filed May 16, 1994;
-2-
<PAGE>
(iv) Quarterly Report on Form 10-Q (File No. 1-8465) for the quarter
ended June 30, 1994;
(v) Current Report on Form 8-K (File No. 1-8465) dated November 15,
1993, filed November 16, 1993;
(vi) Current Report on Form 8-K (File No. 1-8465) dated July 31, 1994,
filed August 2, 1994;
(vii) Current Report on Form 8-K (File No. 1-8465) dated August 1, 1994,
filed August 2, 1994;
(viii) Current Report on Form 8-K (File No. 1-8465) dated August 31, 1994,
filed September 2, 1994;
(ix) Current Report on Form 8-K (File No. 1-8465) dated November 3, 1994,
filed November 3, 1994;
(x) Current Report on Form 8-K (File No. 1-8465) dated November 14,
1994, filed November 14, 1994;
(xi) Current Report on Form 8-K (File No. 1-8465) dated November 14,
1994, filed November 25, 1994; and
(xii) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A (File No. 0-108465),
filed March 7, 1990.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of Common Stock to be made hereunder
shall be deemed to be incorporated by reference herein and to be a part hereof
from the date of filing thereof. 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 all purposes of this Prospectus to the
extent that a statement contained herein or therein or in any other subsequently
filed document that also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will provide, without charge, to each person to whom a copy of
this Prospectus is delivered, upon the written or oral request of such person, a
copy of any or all of the documents incorporated herein by reference (other than
exhibits to such documents, unless such exhibits are specifically incorporated
by reference into the information that this Prospectus incorporates). Written
or telephonic requests for copies should be directed to the Company's principal
office: Sterling Software, Inc., 8080 N. Central Expressway, Suite 1100,
-3-
<PAGE>
Dallas, Texas 75206, Attention: Jeannette P. Meier, Executive Vice President,
Secretary and General Counsel (telephone: (214) 891-8600).
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sales of the
Shares offered hereby, except for proceeds from the exercise of the Options.
The proceeds received by the Company upon exercise of the Options will be used
for general corporate purposes, including, but not limited to, operating and
working capital requirements.
SELLING STOCKHOLDERS
This Prospectus covers the purchase from the Company of up to 4,610,000
Shares in the aggregate, by the holders of the Options upon the exercise thereof
in accordance with their terms and the subsequent offer and resale of Shares to
be acquired by certain holders of Options upon the exercise thereof.
The Board of Directors of the Company (the "Board") or a Stock Option
Committee appointed by the Board, subject to the provisions of the Plan, will
determine from time to time (i) the individuals, from among the Company's full
time employees and key advisors, including directors, to whom Options will be
granted, (ii) the number of shares of Common Stock to be covered by each Option
and (iii) the purchase price of Common Stock subject to each Option, which may
be equal to, less than or greater than the fair market value of the Common Stock
on the date of grant. Unless sooner terminated by action of the Board, the Plan
will terminate on March 31, 2002, and no Options may be granted pursuant to the
Plan after such date.
The table below sets forth information concerning the Common Stock owned by
the following Selling Stockholders, none of whom has, or within the past three
years has had, any position, office or other material relationship with the
Company, except as noted herein:
<TABLE>
<CAPTION>
COMMON STOCK
OFFERED FOR
OWNERSHIP OF SELLING AMOUNT AND
COMMON STOCK STOCKHOLDERS' PERCENTAGE
PRIOR TO ACCOUNT UPON OF CLASS OF AFTER
NAME OFFERING /(1)/ EXERCISE OFFERING /(2)/
- ---- -------------- -------- --------------
<S> <C> <C> <C>
Richard Connelly 24,313 /(3)/ 3,688 20,625 /(3)/ /(*)/
George H. Ellis 152,500 /(4)/ 80,000 72,500 /(4)/ /(*)/
Greenbriar Limited 500,000 500,000 -0- /(*)/
Albert K. Hoover 20,938 /(5)/ 16,250 4,688 /(5)/ /(*)/
James E. Jenkins, Jr. 22,250 /(6)/ 12,875 9,375 /(6)/ /(*)/
Jeannette P. Meier 142,950 /(7)/ 48,800 94,150 /(7)/ /(*)/
</TABLE>
-4-
<PAGE>
<TABLE>
<S> <C> <C> <C>
Donald R. Miller, Jr. 40,000 40,000 -0- /(*)/
William D. Plumb 225,050 /(8)/ 195,800 29,250 /(8)/ /(*)/
Quayle Limited 333,000 333,000 -0- /(*)/
Sarnia Investments 167,000 167,000 -0- /(*)/
Limited
Geno P. Tolari 202,500 /(9)/ 100,000 102,500 /(9)/ /(*)/
Anne Vahala 29,000 /(10)/ 28,250 750 /(10)//(*)/
Sterling L. Williams 804,000 /(11)/ 300,000 504,000 /(11)/
(2.4%)
Charles J. Wyly, Jr. 1,013,590 /(12)/ 150,000 863,590 /(12)/
(4.2%)
Sam Wyly 995,954 /(13)/ 300,000 695,954 /(13)/
(3.4%)
</TABLE>
______________
/(*)/ Indicates shares held are less than 1% of class.
/(1)/ Based on ownership as of October 31, 1994. Includes Shares to be acquired
upon exercise of Options granted under the Plan, some of which are not
exercisable within 60 days of the date of this Prospectus.
/(2)/ Based on 20,655,332 shares of Common Stock outstanding as of October 31,
1994. Assumes the exercise of all Options granted under the Plan, the
exercise of which is covered by this Prospectus, and the sale of the
Shares acquired thereby.
/(3)/ Includes 20,625 shares purchasable pursuant to options not granted under
the Plan, some of which are not exercisable within 60 days of the date of
this Prospectus.
/(4)/ Includes 72,500 shares purchasable pursuant to options not granted under
the Plan, some of which are not exercisable within 60 days of the date of
this Prospectus.
/(5)/ Includes 4,688 shares purchasable pursuant to options not granted under
the Plan, some of which are not exercisable within 60 days of the date of
this Prospectus.
/(6)/ Includes 9,375 shares purchasable pursuant to options not granted under
the Plan, some of which are not exercisable within 60 days of the date of
this Prospectus.
/(7)/ Includes 94,150 shares purchasable pursuant options not granted under the
Plan, some of which are not exercisable within 60 days of the date of
this Prospectus.
/(8)/ Includes 28,000 shares purchasable pursuant options not granted under the
Plan, some of which are not exercisable within 60 days of the date of
this Prospectus.
/(9)/ Includes 102,500 shares purchasable pursuant to options not granted under
the Plan, some of which are not exercisable within 60 days of the date of
this Prospectus.
/(10)/ Includes 22,625 shares purchasable pursuant to options not granted under
the Plan, all of which are exercisable within 60 days of the date of this
Prospectus.
/(11)/ Includes 500,000 shares purchasable pursuant to options not granted under
the Plan, all of which are exercisable within 60 days of the date of this
Prospectus.
/(12)/ Includes 307,016 shares directly owned by family trusts of which Charles
J. Wyly, Jr. is trustee. Also includes 556,574 shares held of record by
two limited partnerships of which Charles J. Wyly, Jr. is general
partner.
/(13)/ Includes 257,342 shares directly owned by family trusts of which Sam Wyly
is trustee. Also includes 438,612 shares held of record by two limited
partnerships of which Sam Wyly is general partner.
Richard Connelly serves as Vice President and Controller of the
Company. George H. Ellis serves as Executive Vice President and Chief Financial
Officer of the Company. Albert
-5-
<PAGE>
K. Hoover serves as Vice President, Assistant Secretary and Assistant General
Counsel of the Company. James E. Jenkins, Jr. serves as Vice President, Tax,
and Assistant Secretary of the Company. Jeannette P. Meier serves as Executive
Vice President, Secretary and General Counsel of the Company. Donald R. Miller,
Jr. serves as a Director of the Company. William D. Plumb serves as Executive
Vice President of the Company. Geno P. Tolari serves as Executive Vice
President of the Company. Anne Vahala serves as Vice President, Corporate
Communications, of the Company. Sterling L. Williams serves as President, Chief
Executive Officer and Director of the Company. Charles J. Wyly, Jr. serves as
Vice Chairman of the Board. Sam Wyly serves as Chairman of the Board.
PLAN OF DISTRIBUTION
The Shares may be issued to the Selling Stockholders from time to time by
the Company upon exercise of the Options. The Shares may be sold from time to
time by any of the Selling Stockholders, or by pledgees, donees, transferees or
other successors in interest. The Shares may be disposed of from time to time in
one or more transactions through any one or more of the following: (i) to
purchasers directly, (ii) in ordinary brokerage transactions and transactions in
which the broker solicits purchasers, (iii) through underwriters or dealers who
may receive compensation in the form of underwriting discounts, concessions or
commissions from the Selling Stockholders or such successors in interest and/or
from the purchasers of the Shares for whom they may act as agent, (iv) the
writing of options on the Shares, (v) the pledge of the Shares as security for
any loan or obligation, including pledges to brokers or dealers who may, from
time to time, themselves effect distributions of the Shares or interests
therein, (vi) purchases by a broker or dealer as principal and resale by such
broker or dealer for its own account pursuant to this Prospectus, (vii) a block
trade in which the broker or dealer so engaged will attempt to sell the Shares
as agent but may position and resell a portion of the block as principal to
facilitate the transaction and (viii) an exchange distribution in accordance
with the rules of such exchange, including the NYSE, or in transactions in the
over the counter market. Such sales may be made at prices and at terms then
prevailing or at prices related to the then current market price or at
negotiated prices and terms. In effecting sales, brokers or dealers may arrange
for other brokers or dealers to participate. The Selling Stockholders or such
successors in interest, and any underwriters, brokers, dealers or agents that
participate in the distribution of the Shares, may be deemed to be
"underwriters" within the meaning of the Securities Act, and any profit on the
sale of the Shares by them and any discounts, commissions or concessions
received by any such underwriters, brokers, dealers or agents may be deemed to
be underwriting commissions or discounts under the Securities Act.
The Company will pay all of the expenses incident to the offering and sale
of the Shares to the public other than underwriting discounts or commissions,
brokers' fees and the fees and expenses of any counsel to the Selling
Stockholders related thereto.
In the event of a material change in the plan of distribution disclosed in
this Prospectus, the Selling Stockholders will not be able to effect
transactions in the Shares pursuant to this Prospectus until such time as a
post-effective amendment to the Registration Statement is filed with, and
declared effective by, the Commission.
-6-
<PAGE>
LEGAL MATTERS
Certain legal matters in connection with the validity of the securities
offered hereby have been passed upon for the Company by Jackson & Walker,
L.L.P., Dallas, Texas. Michael C. French, a partner in Jackson & Walker, L.L.P.,
is a director of the Company.
EXPERTS
The consolidated financial statements and financial statement schedules
appearing in Sterling's Annual Report on Form 10-K for the year ended September
30, 1993, as amended by Form 10-K/A Amendment No.1 filed January 26, 1994, have
been audited by Ernst & Young LLP, independent auditors, as set forth in their
report thereon included therein and incorporated by reference herein, which as
to the years 1992 and 1991, are based in part on the report of Arthur Andersen
LLP, independent public accountants. Such consolidated financial statements and
schedules are incorporated herein by reference in reliance upon such reports
given upon the authority of such firms as experts in accounting and auditing.
The consolidated financial statements of KnowledgeWare, Inc. and
subsidiaries as of June 30, 1994 and 1993 and for each of the three years in the
period ending June 30, 1994 incorporated by reference in this Prospectus have
been incorporated herein on the report, which includes an explanatory paragraph
about KnowledgeWare, Inc.'s ability to continue as a going concern, of Coopers &
Lybrand L.L.P., independent certified public accountants, given upon authority
of that firm as experts in accounting and auditing.
-7-
<PAGE>
No person has been authorized in
connection with the offering made hereby
to give any information or to make any
representation not contained in this
Prospectus and, if given or made, such 4,610,000 SHARES
information or representation must not
be relied upon as having been authorized
by the Company. This Prospectus does not
constitute an offer to sell or a
solicitation of an offer to buy any
securities to any person or by anyone in
any jurisdiction where such offer or
solicitation would be unlawful. Neither
the delivery of this Prospectus nor any STERLING SOFTWARE,
sale made hereunder shall, under any INC.
circumstances, create any implication
that the information contained herein is
correct as of any date subsequent to the
date hereof.
--------------------------
TABLE OF CONTENTS
-----------------
COMMON STOCK
<TABLE>
<CAPTION>
Page
----
<S> <C> -----------------
Available Information...... 2
Incorporation of Certain
Documents by Reference.. 2
PROSPECTUS
Use of Proceeds............ 4
Selling Stockholders....... 4
Plan of Distribution....... 6
-----------------
Legal Matters.............. 7
Experts.................... 7 __________, 1994
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
-------------------------------------------
The estimated expenses to be incurred in connection with the issuance and
distribution of the Common Stock covered by this Registration Statement, all of
which will be paid by the Registrant, are as follows:
<TABLE>
<S> <C>
Registration Fee......................... $11,292.00
Printing, Engraving and Filing Expenses.. 6,000.00
Accounting Fees and Expenses............. 5,000.00
Legal Fees and Expenses.................. 5,000.00
Miscellaneous............................ 1,008.00
__________
28,300.00
Total.................................... ==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
-----------------------------------------
Section 145 of the Delaware General Corporation Law empowers a corporation
to indemnify its directors and officers or former directors or officers and to
purchase insurance with respect to liability arising out of their capacity or
status as directors and officers. Such law provides further that the
indemnification permitted thereunder shall not be deemed exclusive of any other
rights to which the directors and officers may be entitled under a corporation's
certificate of incorporation, bylaws, any agreement or otherwise.
Article IX of the Company's Certificate of Incorporation, as amended,
provides that, to the fullest extent permitted by the Delaware General
Corporation Law, as the same exists or may hereafter be amended, a director of
the Company shall not be liable to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director. Article IX of the Company's
Restated Bylaws provides for indemnification of officers and directors. In
addition, the Company has entered into Indemnity Agreements with each of its
officers and directors pursuant to which such officers and directors may be
indemnified against losses arising from certain claims, including claims under
the Securities Act, which may be made by reason of their being officers or
directors.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company 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.
II-1
<PAGE>
ITEM 16. EXHIBITS.
--------
The following is a list of all exhibits filed as a part of this
Registration Statement on Form S-3, including those incorporated herein by
reference.
Exhibit
Number Description of Exhibit
- -------- ----------------------
1 None.
2 None.
4.1 Certificate of Incorporation of the Registrant. /(1)/
4.2 Certificate of Amendment of Certificate of Incorporation of the
Registrant. /(2)/
4.3 Certificate of Amendment of Certificate of Incorporation of the
Registrant. /(3)/
4.4 Restated Bylaws of the Registrant. /(4)/
4.5 Form of Common Stock Certificate. /(5)/
5 Opinion of Jackson & Walker, L.L.P. /(6)/
8 None.
12 None.
15 None.
23.1 Consent of Ernst & Young LLP. /(6)/
23.2 Consent of Arthur Andersen LLP. /(6)/
23.3 Consent of Coopers & Lybrand L.L.P. /(6)/
23.4 Consent of Jackson & Walker, L.L.P. (included in its opinion filed as
Exhibit 5 to this Registration Statement). /(6)/
24 Power of Attorney (appearing on page II-6 of this Registration
Statement). /(6)/
25 None.
26 None.
27 None.
II-2
<PAGE>
28 None.
99 1992 Non-Statutory Stock Option Plan of the Registrant (as amended
through November 30, 1994). (6)
- ------------------------
/(1)/ Previously filed as an exhibit to the Registrant's Registration Statement
No. 2-82506 on Form S-1 and incorporated herein by reference.
/(2)/ Previously filed as an exhibit to the Registrant's Annual Report on Form
10-K for the fiscal year ended September 30, 1993 and incorporated herein
by reference.
/(3)/ Previously filed as an exhibit to the Registrant's Registration Statement
No. 33-69926 on Form S-8 and incorporated herein by reference.
/(4)/ Previously filed as an exhibit to the Registrant's Registration Statement
No. 33-47131 on Form S-8 and incorporated herein by reference.
/(5)/ Previously filed as an exhibit to the Registrant's Registration Statement
No. 2-86825 on Form S-1 and incorporated herein by reference.
/(6)/ Filed herewith.
II-3
<PAGE>
ITEM 17. UNDERTAKINGS.
------------
(a) The undersigned 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 the 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 the Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
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 the 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.
(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 undersigned 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 the 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.
II-4
<PAGE>
(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.
II-5
<PAGE>
POWER OF ATTORNEY
Each person whose signature appears below authorizes Sterling L. Williams,
George H. Ellis and Jeannette P. Meier, and each of them, each of whom may act
without joinder of the others, to execute in the name of each such person who is
then an officer or director of the Registrant and to file any amendments to this
Registration Statement necessary or advisable to enable the Registrant to comply
with the Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission, in respect thereof, in
connection with the registration of the securities which are the subject of this
Registration Statement, which amendments may make such changes in the
Registration Statement as such attorney may deem appropriate.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Dallas, State of Texas on the 30th day of November,
1994.
STERLING SOFTWARE, INC.
By: /s/ Jeannette P. Meier
--------------------------------
Name: Jeannette P. Meier
--------------------------
Title: Executive Vice President
-------------------------
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
President, Chief
/s/ STERLING L. WILLIAMS Executive Officer
- ------------------------ and Director November 30, 1994
Sterling L. Williams (Principal Executive Officer)
Executive Vice President
/s/ GEORGE H. ELLIS and Chief
- ------------------------ Financial Officer November 30, 1994
George H. Ellis (Principal Financial and
Accounting Officer)
/s/ SAM WYLY Chairman of the
- ------------------------ Board of Directors November 30, 1994
Sam Wyly
/s/ CHARLES J. WYLY, JR. Vice Chairman of the
- ------------------------ Board of Directors November 30, 1994
Charles J. Wyly, Jr.
/s/ EVAN A. WYLY Director
- ------------------------ November 30, 1994
Evan A. Wyly
/s/ MICHAEL C. FRENCH Director
- ------------------------ November 30, 1994
Michael C. French
/s/ ROBERT J. DONACHIE Chairman of the Audit
- ------------------------ Committee and Director November 30, 1994
Robert J. Donachie
/s/ PHILLIP A. MOORE Executive Vice
- ------------------------ President, November 30, 1994
Phillip A. Moore Technology and Director
/s ROBERT E. COOK Director
- ------------------------ November 30, 1994
Robert E. Cook
/s/ DONALD R. MILLER, JR. Director
- ------------------------ November 30, 1994
Donald R. Miller, Jr.
</TABLE>
II-7
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description of Exhibit
- ------ ----------------------
1 None.
2 None.
4.1 Certificate of Incorporation of the Registrant. /(1)/
4.2 Certificate of Amendment of Certificate of Incorporation of the
Registrant. /(2)/
4.3 Certificate of Amendment of Certificate of Incorporation of the
Registrant. /(3)/
4.4 Restated Bylaws of the Registrant. /(4)/
4.5 Form of Common Stock Certificate. /(5)/
5 Opinion of Jackson & Walker, L.L.P. /(6)/
8 None.
12 None.
15 None.
23.1 Consent of Ernst & Young LLP. /(6)/
23.2 Consent of Arthur Andersen LLP. /(6)/
23.3 Consent of Coopers & Lybrand L.L.P. /(6)/
23.4 Consent of Jackson & Walker, L.L.P. (included in its opinion
filed as Exhibit 5 to this Registration Statement). /(6)/
24 Power of Attorney (appearing on page II-6 of this Registration
Statement). /(6)/
25 None.
26 None.
27 None.
<PAGE>
28 None.
99 1992 Non-Statutory Stock Option Plan of the Registrant (as amended
through November 30, 1994). /(6)/
- ------------
/(1)/ Previously filed as an exhibit to the Registrant's Registration Statement
No. 2-82506 on Form S-1 and incorporated herein by reference.
/(2)/ Previously filed as an exhibit to the Registrant's Annual Report on Form
10-K for the fiscal year ended September 30, 1993 and incorporated herein
by reference.
/(3)/ Previously filed as an exhibit to the Registrant's Registration Statement
No. 33-69926 on Form S-8 and incorporated herein by reference.
/(4)/ Previously filed as an exhibit to the Registrant's Registration Statement
No. 33-47131 on Form S-8 and incorporated herein by reference.
/(5)/ Previously filed as an exhibit to the Registrant's Registration Statement
No. 2-86825 on Form S-1 and incorporated herein by reference.
/(6)/ Filed herewith.
<PAGE>
[LETTERHEAD OF JACKSON & WALKER, L.L.P. APPEARS HERE]
EXHIBIT 5
November 30, 1994
Sterling Software, Inc.
8080 N. Central Expressway
Suite 1100
Dallas, Texas 75206
Re: Registration Statement on Form S-3 of Sterling Software, Inc.
Gentlemen:
We are acting as counsel for Sterling Software, Inc., a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended (the "Act"), of the offering and sale of up
to 1,110,000 shares of the Company's Common Stock, par value $0.10 per shares
(the "Shares"), which Shares are issuable upon the exercise of options granted
or to be granted from time to time under the Company's 1992 Non-Statutory Stock
Option Plan (the "Plan"). A Registration Statement on Form S-3 covering the
offering and sale of the Shares (the "Registration Statement") is expected to be
filed with the Securities and Exchange Commission (the "Commission") on or about
the date hereof.
In reaching the conclusions expressed in this opinion, we have examined and
relied upon the originals or certified copies of all documents, certificates and
instruments as we have deemed necessary to the opinions expressed herein,
including the Certificate of Incorporation, as amended, and the Restated Bylaws
of the Company and a copy of the Plan. In making the foregoing examinations, we
have assumed the genuineness of all signatures on original documents, the
authenticity of all documents submitted to us as originals and the conformity to
original documents of all copies submitted to us.
Based solely upon the foregoing, subject to the comments hereinafter
stated, and limited in all respects to the laws of the State of Texas, the
General Corporation Law of the State of Delaware and the federal laws of the
United States of America, it is our opinion that the Shares, when issued and
sold in accordance with the terms of the Plan, will be duly authorized, validly
issued, fully paid and nonassessable.
<PAGE>
Sterling Software, Inc.
November 30, 1994
Page 2
You should be aware that we are not admitted to the practice of law in the
State of Delaware. Accordingly, any opinion herein as to the laws of the State
of Delaware is based solely upon the latest generally available compilation of
the statutes and case law of such state.
We hereby consent to the use of this opinion as an Exhibit to the
Registration Statement. In giving this consent, we do not admit that we come
within the category of persons whose consent is required under Section 7 of the
Act or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Jackson & Walker, L.L.P.
<PAGE>
Exhibit 23.1
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) pertaining to the registration of 1,110,000
shares of common stock of Sterling Software, Inc. and to the incorporation by
reference therein of our report dated November 15, 1993, with respect to the
consolidated financial statements and schedules of Sterling Software, Inc.
included in its Annual Report on Form 10-K for the year ended September 30,
1993, as amended by Form 10-K/A Amendment No. 1 filed January 26, 1994, filed
with the Securities and Exchange Commission.
/s/Ernst & Young LLP
Dallas, Texas
November 30, 1994
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated June 18, 1993
(except with respect to the matter discussed in Note 19 as to which the date is
July 1, 1993), included in Sterling Software, Inc.'s Annual Report on form 10-K
for the year ended September 30, 1993, and to all references to our Firm
included in this registration statement.
Washington, D.C.
November 30, 1994
/s/ ARTHUR ANDERSEN LLP
<PAGE>
Exhibit 23.3
Consent of Independent Accountants
We consent to the incorporation by reference in this registration statement on
Form S-3 of our report, which includes an explanatory paragraph about
KnowledgeWare, Inc.'s ability to continue as a going concern, dated August 31,
1994, on our audit of the financial statements of KnowledgeWare, Inc. and
Subsidiaries. We also consent to the reference to our firm under the caption
"Experts".
Atlanta, Georgia
November 30, 1994
/s/ Coopers & Lybrand L.L.P.
<PAGE>
EXHIBIT 99
STERLING SOFTWARE, INC.
1992 NON-STATUTORY STOCK OPTION PLAN
(AS AMENDED THROUGH NOVEMBER 30, 1994)
1. Purpose. The purpose of the 1992 Non-Statutory Stock Option Plan of
Sterling Software, Inc. (the "Plan") is to provide employees and key advisors
with a proprietary interest in Sterling Software, Inc., a Delaware corporation,
and its subsidiaries (the "Company") through the granting of options ("Option"
or "Options") to purchase shares of the Company's authorized Common Stock, par
value $0.10 per share ("Common Stock"), in order to:
a. Increase the interest in the Company's welfare of those employees
and key advisors who share primary responsibility for the management,
growth and protection of the business of the Company;
b. Recognize the contributions made by certain employees and key
advisors to the Company's growth during its development stage;
c. Furnish an incentive to such employees and key advisors to
continue their services for the Company; and
d. Provide a means through which the Company may attract able persons
to engage as employees and key advisors.
2. Administration. The Plan shall be administered by a Stock Option
Committee (the "Committee") of not less than two directors of the Company
appointed by the Board of Directors (the "Board"); provided that any and all of
the powers granted to the Committee hereunder may be exercised by the full Board
or by the Executive Committee of the Board. No member of the Committee shall
take any action with respect to Options granted to such member.
The Committee shall have full and final authority in its discretion, but
subject to the provisions of the Plan, to determine from time to time the
individuals to whom Options shall be granted and the number of shares to be
covered by each Option; to determine the time or times at which Options shall be
granted; to interpret the Plan and the instruments by which Options will be
evidenced; to make, amend and rescind rules and regulations relating to the
Plan; to determine the terms and provisions of the instruments by which Options
shall be evidenced; with the consent of the Participant (as defined in Section
3), to modify or amend any Option agreement or waive any conditions or
restrictions applicable to any Option or the exercise thereof; and to make all
other determinations necessary or advisable for the administration of the Plan.
<PAGE>
3. Participants. The Committee may, from time to time, select particular
full-time employees and key advisors, including directors, of the Company, or of
any subsidiary of the Company, to whom Options are to be granted, and upon the
grant of such Options, the selected employees and key advisors shall become
Participants in the Plan. As used herein, the term "Participant" means an
employee or key advisor who accepts an Option, or the estate, personal
representative or beneficiary thereof having the right to exercise an Option
pursuant to its terms.
4. Shares Subject to the Plan. The shares of Common Stock subject to
Options granted pursuant to the Plan shall be either shares of authorized but
unissued Common Stock or shares of Common Stock reacquired by the Company. The
maximum aggregate number of shares of Common Stock that may be issued from time
to time pursuant to the Plan shall be 4,610,000. Shares that by reason of the
expiration of an Option, or for any other reason, are no longer subject to
purchase pursuant to an Option granted under the Plan, and shares from time to
time rendered in payment of the exercise price of Options, may be made subject
to additional Options granted pursuant to the Plan. The Committee may adjust
the number of shares available for Options, the number of shares subject to and
the exercise price of Options granted hereunder to effect a change in
capitalization of the Company, such as a stock dividend, stock split, reverse
stock split, share combination, exchange of shares, merger, consolidation,
reorganization, liquidation, or the like, of or by the Company.
5. Grant of Options. Options granted hereunder shall be evidenced by
written stock option agreements containing such terms and provisions as are
recommended and approved from time to time by the Committee, but subject to and
not more favorable than the terms of the Plan. The Committee may from time to
time require additional terms which the Committee deems necessary or advisable.
The Company shall execute stock option agreements upon instruction from the
Committee.
6. Amount of Stock Subject to Options. The number of shares of Common
Stock subject to an Option to be granted to a Participant shall be determined by
the Committee in its sole discretion.
7. Option Exercise Price. The purchase price of Common Stock subject to
an Option shall be determined by the Committee on the date of grant and may be
equal to, less than or greater than the fair market value of the Common Stock on
the date of grant.
8. Restrictions. The Committee may, but need not, at the time of
granting of an Option or at any subsequent time impose such restrictions, if
any, on issuance, voluntary disposition and release from escrow of any Options
including, without limitation, permitting exercise of Options only in
installments over a period of years.
9. Payment. Full payment for Common Stock purchased upon the exercise of
an Option shall be made at the time of exercise. No Common Stock shall be
issued until full payment has been made and a Participant shall have none of the
rights of a shareholder until shares of Common Stock are issued to him. Any
federal, state or local taxes required to be paid
-16-
<PAGE>
or withheld at the time of exercise shall also be paid or withheld in full prior
to any delivery of shares of Common Stock upon exercise. Payment may be made in
cash, in shares of Common Stock then owned by the Participant, or in any other
form of valid consideration, or a combination of any of the foregoing, as
required by the Committee in its discretion. Shares of Common Stock tendered in
payment of the exercise price of any Options may be reissued to the Participant
who tendered the shares of Common Stock as part of the shares of Common Stock
issuable upon exercise of other Options granted from time to time pursuant to
the Plan.
10. Transferability of Options. Options granted under the Plan may be
transferred by the holder thereof upon five days prior written notice to the
Company.
11. Time of Granting of an Option. The grant of an Option pursuant to the
Plan shall be deemed to have occurred when the Stock Option Committee shall have
adopted a resolution approving such grant.
12. Rights in Event of Death or Disability of Participant. The Committee
shall have discretion to include in each Option agreement such provisions
regarding exercisability of the Options following the death or disability of the
Participant as it, in its sole discretion, deems to be appropriate.
13. Stock Purchased for Investment. At the discretion of the Committee,
any Option agreement may provide that the Option holder shall, by accepting an
Option, represent and agree on behalf of himself and his transferees by will or
the laws of descent and distribution that all shares of Common Stock purchased
upon the exercise of the Option will be acquired for investment and not for
resale or distribution, and that upon each exercise of any portion of an Option,
the person entitled to exercise the same shall furnish evidence satisfactory to
the Company (including a written and signed representation) to the effect that
the shares of Common Stock are being acquired in good faith and for investment
and not for resale or distribution.
14. Termination of Option Rights and Awards. The Committee may provide in
each Option agreement for the circumstances under which Options granted
hereunder may terminate for any reason that the Committee, in its sole
discretion, deems to be appropriate.
15. Amendment or Discontinuation. The Plan may be amended, altered or
discontinued by the Board without approval of the stockholders. In the event
any law, or any rule or regulation issued or promulgated by the Internal Revenue
Service, Securities and Exchange Commission, National Association of Securities
Dealers, Inc., any stock exchange upon which the Common Stock is listed for
trading or other governmental or quasi-governmental agency having jurisdiction
over the Company, its Common Stock or the Plan requires the Plan to be amended,
the Plan will be amended at that time and all Options then outstanding will be
subject to such amendment.
16. Employment. This Plan and any Option granted under this Plan do not
confer upon the Participant any right to be employed or to continue employment
with the Company.
-17-
<PAGE>
17. No Obligation to Exercise Option. The granting of an Option pursuant
to the Plan shall not impose any obligation upon the Participant to exercise
such Option.
18. Termination. Unless sooner terminated by action of the Board, the
Plan shall terminate on March 31, 2002, and no Options may be granted pursuant
to the Plan after such date.
19. Use of Proceeds. The proceeds derived from the sale of stock pursuant
to Options granted under the Plan shall constitute general funds of the Company.
20. Effective Date of the Plan. The Plan, as originally adopted, was
effective as of the first day of April, 1992. The Plan, as amended and
restated, shall be effective as of the 30th day of November, 1994.
STERLING SOFTWARE, INC.
Dated: As of November 30, 1994 By: /s/ Sterling L. Williams
--------------------------------------
Sterling L. Williams
President and
Chief Executive Officer
-18-
