<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 484,185 shares $29.50 $14,283,457 $4,926
=====================================================================================================
</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.
<PAGE>
PROSPECTUS
484,185 Shares
STERLING SOFTWARE, INC.
Common Stock
Pursuant to an Amended and Restated Agreement and Plan of Merger dated
August 31, 1994 (as amended, the "Merger Agreement"), Sterling Software, Inc.
("Sterling" or the "Company") acquired KnowledgeWare, Inc., a Georgia
corporation ("KnowledgeWare"), through the merger (the "Merger") of a wholly
owned subsidiary of Sterling ("Merger Sub") with and into KnowledgeWare
effective November 30, 1994 (the "Effective Time"). As a result of the Merger,
(i) KnowledgeWare became a wholly owned subsidiary of Sterling and (ii) each
outstanding share of common stock, without par value ("KnowledgeWare Common
Stock"), of KnowledgeWare (other than (a) shares owned by Sterling, Merger Sub
or any other subsidiary of Sterling and (b) shares held in KnowledgeWare's
treasury immediately prior to the Effective Time) were converted into the right
to receive up to .1653 of a share of common stock, par value $.10 per share
("Sterling Common Stock"), of Sterling. Upon effectiveness of the Merger,
holders of KnowledgeWare Common Stock became entitled to receive .1322 of a
share of Sterling Common Stock for each share of KnowledgeWare Common Stock; the
remaining 20% of the number of shares of Sterling Common Stock issuable upon
effectiveness of the Merger were placed in escrow (the "Escrowed Shares")
pursuant to the terms of an escrow agreement (the "Escrow Agreement") and will
be distributed to KnowledgeWare common stockholders only if and to the extent
that such shares are not necessary to cover certain losses, claims, liabilities,
judgments, costs and expenses that may be incurred by Sterling, Merger Sub or
KnowledgeWare in connection with any pending or threatened litigation, action,
claim, proceeding, dispute or investigation ("Action") (including amounts paid
in settlement) to which Sterling, Merger Sub or KnowledgeWare is or may become a
party and with respect to which Sterling is entitled to indemnification under
the Merger Agreement.
Pursuant to the Escrow Agreement, if Sterling delivers to the escrow agent
(the "Escrow Agent") under the Escrow Agreement a notice of a claim for
indemnification, then, subject to the dispute mechanism provided in the Escrow
Agreement, the Escrow Agent will, at Sterling's direction, transfer to Sterling
either (i) a number of Escrowed Shares having a value equal to the amount so
claimed, following which Sterling may sell all or a portion of such shares or
take all or a portion of such shares into treasury, or (ii) proceeds from the
sale of Escrowed Shares equal to the amounts so claimed. This Prospectus
relates to the offer and sale of the Escrowed
(cover continued on next page)
----------------
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>
(cover page continued)
Shares on behalf of Sterling by the Escrow Agent or by Sterling in the event
Escrowed Shares are first returned to Sterling by the Escrow Agent, the proceeds
from which sales will be used to satisfy claims by Sterling for indemnification
pursuant to the Merger Agreement and the Escrow Agreement. See "Use of
Proceeds" and "Plan of Distribution."
The Escrowed Shares may be sold from time to time by the Escrow Agent or
Sterling, 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 Escrowed Shares offered hereby, the Escrow Agent 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 sale of such securities may be deemed to be underwriting
commissions or discounts under the Securities Act. See "Plan of Distribution."
The Sterling Common Stock is listed for trading on the NYSE under the
symbol "SSW." On November 29, 1994, the closing price of the Sterling Common
Stock on the NYSE was $30.00. The Company will pay all expenses incurred in
connection with this offering, which are estimated to be approximately $22,000.
-2-
<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 material 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 Sterling 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 Sterling
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;
-3-
<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 Sterling Common Stock contained in Sterling'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 which 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,
Dallas,
-4-
<PAGE>
Texas 75206, Attention: Jeannette P. Meier, Executive Vice President, Secretary
and General Counsel (telephone: (214) 891-8600).
USE OF PROCEEDS
The proceeds from the sale of the Escrowed Shares covered by this
Prospectus, whether by the Escrow Agent or Sterling, will be used to satisfy
claims by Sterling for indemnification pursuant to the Merger Agreement and the
Escrow Agreement. Pursuant to the Merger Agreement, KnowledgeWare agreed to
indemnify Sterling and Merger Sub, and their respective subsidiaries, directors,
officers, employees and agents from and against all losses, claims,
counterclaims, obligations, causes of action, liabilities, costs, damages,
judgments and expenses (including attorneys' fees, and expenses incurred in
connection with investigating, preparing for, pursuing or defending any Action)
(collectively, "Damages") asserted against or incurred by KnowledgeWare,
Sterling, Merger Sub or such other persons from or after the date of the Merger
Agreement, by reason of or arising from any Action pending as of the date of the
Merger Agreement or thereafter arising, including Actions arising out of
violations or alleged violations of securities laws, but excluding Actions
arising out of ordinary course of business transactions, Actions brought by
current or former employees with respect to their employment or termination
thereof and certain other Actions. The remedies of Sterling, Merger Sub and the
other persons to be indemnified are limited in all cases to the Escrowed Shares
and the provisions of the Escrow Agreement. Since August 30, 1994, a number of
Actions have been filed against KnowledgeWare and certain of its officers
alleging violations of securities laws. Losses, claims, liabilities, judgments,
costs or expenses of KnowledgeWare, Sterling or Merger Sub resulting from these
Actions will result in claims for indemnification to be satisfied from the
Escrowed Shares.
SALES OF ESCROWED SHARES BY THE ESCROW AGENT
This Prospectus covers offers and sales from time to time by the Escrow
Agent on behalf of Sterling of the Escrowed Shares pursuant to the Merger
Agreement and the Escrow Agreement, as well as offers and sales by Sterling in
the event Escrowed Shares are first returned to Sterling by the Escrow Agent.
The First National Bank of Boston, N.A. (the "Bank") currently is serving as the
Escrow Agent, subject to being removed and to its right to resign as set forth
in the Escrow Agreement. Set forth below are the number of shares of Sterling
Common Stock owned (including the Escrowed Shares) by the Bank, the number of
Escrowed Shares that may be offered and sold by the Bank pursuant to this
Prospectus and the number of shares of Sterling Common Stock to be owned by the
Bank upon completion of the offering if all Escrowed Shares are sold.
-5-
<PAGE>
<TABLE>
<CAPTION>
Ownership of Sterling Number of Ownership of Sterling
Common Stock Prior to Escrowed Shares Common Stock
Offering Offered After the Offering
- ----------------------- ---------------- -----------------------
<S> <C> <C>
484,185 484,185 ----
</TABLE>
The Bank is a lender under the Company's revolving credit and term loan
agreement and acts as the Company's stock transfer agent. In addition, the Bank
is acting as exchange agent in connection with the Merger and acted as exchange
agent in connection with the Company's acquisition of Systems Center, Inc. in
July 1993.
PLAN OF DISTRIBUTION
Pursuant to the Escrow Agreement, if prior to the second anniversary of the
Effective Time Sterling delivers to the Escrow Agent written notice (a "Sterling
Notice") of a claim for indemnification for Damages, on the twentieth business
day following receipt of such notice, the Escrow Agent will, at Sterling's
direction, transfer to Sterling either (i) a number of Escrowed Shares having a
value equal to such Damages, following which Sterling may sell all or a portion
of such shares or take all or a portion of such shares into treasury, or (ii)
proceeds from the sale of Escrowed Shares equal to such Damages, unless within
that time period the representative designated as such in the Escrow Agreement
(the "Representative") delivers to the Escrow Agent a written notice disputing
Sterling's claim. The number of Escrowed Shares to be transferred or sold shall
be determined by dividing the dollar amount of Damages by the most recently
reported closing sale price per share of the Sterling Common Stock preceding the
date of the Sterling Notice. If the Representative delivers a dispute notice,
the Escrow Agent will retain the Escrowed Shares until either (i) the Escrow
Agent receives joint instructions from Sterling and the Representative or (ii)
the dispute is settled by litigation. Within 30 days prior to the second
anniversary of the Effective Time, Sterling may deliver to the Escrow Agent a
notice (a "Contingent Claim Notice") that Sterling believes there exist one or
more Actions ("Contingent Actions") with respect to which Sterling believes it
will be entitled to indemnification for Damages subsequent to the second
anniversary of the Effective Time, together with Sterling's reasonable good
faith estimate of the maximum amount of Damages for which it would be entitled
to indemnification.
On the second anniversary of the Effective Time, the Escrow Agent will
disburse to the holders of KnowledgeWare Common Stock as of the Effective Time
any Escrowed Shares remaining subject to the Escrow Agreement, other than shares
that are the subject of a Sterling Notice or a Contingent Claim Notice. With
respect to any Escrowed Shares remaining subject to the Escrow Agreement due to
a Contingent Claim Notice, if the related Contingent Action has not been
resolved or is not subject to litigation by the fourth anniversary of the
Effective
-6-
<PAGE>
Time, such Escrowed Shares will be disbursed to the holders of KnowledgeWare
Common Stock as of the Effective Time.
The Representative will be compensated for its services under the Escrow
Agreement at hourly rates, out of the Escrowed Shares, upon submission of
invoices therefor. The Representative also will be indemnified, out of the
Escrowed Shares, for any loss or damages it may incur as a result of its
services under the Escrow Agreement, except any such loss or damages arising out
of the Representative's willful misconduct. Sterling will not receive any of
the proceeds from the sales of Escrowed Shares for such purposes.
The Escrowed Shares offered hereby may be sold from time to time by the
Escrow Agent or Sterling, or by pledgees, donees, transferees or other
successors in interest. The Escrowed 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 Escrow Agent or Sterling or such successors in interest
and/or from the purchasers of the Escrowed Shares for whom they may act as
agent, (iv) the writing of options on the Escrowed Shares, (v) the pledge of the
Escrowed 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 Escrowed 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 Escrowed 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 Escrow Agent or such successors in interest, and any
underwriters, brokers, dealers or agents that participate in the distribution of
the Escrowed Shares, may be deemed to be "underwriters" within the meaning of
the Securities Act, and any profit on the sale of the Escrowed 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 Escrowed Shares to the public.
In the event of a material change in the plan of distribution disclosed in
this Prospectus, the Escrow Agent and Sterling will not be able to effect
transactions in the Escrowed 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.
-7-
<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.
-8-
<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 information or
representation must not be relied upon.
This Prospectus does not constitute an offer
to sell or a solicitation of an offer to buy
any securities other than registered securities
to which it relates, or an offer to or a
solicitation of any person in any jurisdiction
where such offer or solicitation would be
unlawful. Neither the delivery of this
Prospectus nor any sale made hereunder
shall, under any circumstances, create any
implication that the information contained
herein is correct as of any date subsequent
to the date hereof.
STERLING SOFTWARE, INC.
PROSPECTUS
, 1994
--------
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
<S> <C>
Available Information............... 3
Incorporation of Certain
Documents by Reference............ 3
Use of Proceeds..................... 5
Sales of Escrowed Shares
by The Escrow Agent............... 5
Plan of Distribution................ 6
Legal Matters....................... 8
Experts............................. 8
</TABLE>
=============================================== ==============================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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................. $ 4,926.00
Printing and Engraving Expenses.. 6,000.00
Accounting Fees and Expenses..... 5,000.00
Legal Fees and Expenses.......... 5,000.00
Miscellaneous.................... 1,074.00
_________
Total............................ $22,000.00
=========
</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.
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
- -------- ----------------------
<S> <C>
1 None.
2.1 Amended and Restated Agreement and Plan of Merger dated as of August
31, 1994 among the Registrant, KnowledgeWare, Inc. and SSI
Corporation./(1)/
2.2 Agreement dated October 11, 1994 among the Registrant, KnowledgeWare,
Inc. and SSI Corporation./(1)/
2.3 First Amendment to Amended and Restated Agreement and Plan of Merger
dated as of October 24, 1994 among the Registrant, KnowledgeWare, Inc.
and SSI Corporation./(1)/
4.1 Certificate of Incorporation of the Registrant./(2)/
4.2 Certificate of Amendment of Certificate of Incorporation of the
Registrant./(3)/
4.3 Certificate of Amendment of Certificate of Incorporation of the
Registrant./(4)/
4.4 Restated Bylaws of the Registrant./(5)/
4.5 Form of Common Stock Certificate./(6)/
5 Opinion of Jackson & Walker, L.L.P./(7)/
8 None.
12 None.
15 None.
23.1 Consent of Ernst & Young LLP./(7)/
23.2 Consent of Arthur Andersen LLP./(7)/
23.3 Consent of Coopers & Lybrand L.L.P./(7)/
</TABLE>
II-2
<PAGE>
<TABLE>
<S> <C>
23.4 Consent of Jackson & Walker, L.L.P. (included in its opinion filed as
Exhibit 5 to this Registration Statement)./(7)/
24 Power of Attorney (appearing on page II-6 of this Registration
Statement)./(7)/
25 None.
26 None.
27 None.
28 None.
99 Form of Escrow Agreement dated as of November 30, 1994 among the
Registrant, KnowledgeWare, Inc., The First National Bank of Boston,
N.A. and Stuart Finestone./(1)/
</TABLE>
________________
/(1)/ Previously filed as an exhibit to the Registrant's Registration Statement
No. 33-56185 on Form S-4 and incorporated herein by reference.
/(2)/ Previously filed as an exhibit to the Registrant's Registration Statement
No. 2-82506 on Form S-1 and incorporated herein by reference.
/(3)/ 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.
/(4)/ Previously filed as an exhibit to the Registrant's Registration Statement
No. 33-69926 on Form S-8 and incorporated herein by reference.
/(5)/ Previously filed as an exhibit to the Registrant's Registration No. 33-
47131 on Form S-8 and incorporated herein by reference.
/(6)/ Previously filed as an exhibit to the Registrant's Registration Statement
No. 2-86825 on Form S-1 and incorporated herein by reference.
/(7)/ 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 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.
(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.
(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
II-4
<PAGE>
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.
Date: November 30, 1994 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
Executive Officer
/s/ STERLING L. WILLIAMS and Director November 30, 1994
- --------------------------
Sterling L. Williams (Principal Executive Officer)
Executive Vice President
and Chief
/s/ GEORGE H. ELLIS Financial Officer November 30, 1994
- --------------------------
George H. Ellis (Principal Financial and
Accounting Officer)
/s/ SAM WYLY Chairman of the November 30, 1994
- --------------------------
Sam Wyly Board of Directors
/s/ CHARLES J. WYLY, JR. Vice Chairman of the November 30, 1994
- --------------------------
Charles J. Wyly, Jr. Board of Directors
/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 November 30, 1994
- --------------------------
Robert J. Donachie Committee and Director
/s/ PHILLIP A. MOORE Executive Vice November 30, 1994
- --------------------------
Phillip A. Moore President,
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
<TABLE>
<CAPTION> Sequentially
Exhibit Numbered
Number Description of Exhibit Page
- ------ ---------------------- ----
<S> <C> <C>
1 None.
2.1 Amended and Restated Agreement and Plan of Merger dated as of August
31, 1994 among the Registrant, KnowledgeWare, Inc. and SSI
Corporation./(1)/
2.2 Agreement dated October 11, 1994 among the Registrant, KnowledgeWare,
Inc. and SSI Corporation./(1)/
2.3 First Amendment to Amended and Restated Agreement and Plan of Merger
dated as of October 24, 1994 among the Registrant, KnowledgeWare, Inc.
and SSI Corporation./(1)/
4.1 Certificate of Incorporation of the Registrant./(2)/
4.2 Certificate of Amendment of Certificate of Incorporation of the
Registrant./(3)/
4.3 Certificate of Amendment of Certificate of Incorporation of the
Registrant./(4)/
4.4 Restated Bylaws of the Registrant./(5)/
4.5 Form of Common Stock Certificate./(6)/
5 Opinion of Jackson & Walker, L.L.P./(7)/
8 None.
12 None.
15 None.
23.1 Consent of Ernst & Young LLP./(7)/
23.2 Consent of Arthur Andersen LLP./(7)/
23.3 Consent of Coopers & Lybrand L.L.P./(7)/
</TABLE>
<PAGE>
<TABLE>
<S> <C>
23.4 Consent of Jackson & Walker, L.L.P. (included in its opinion filed as
Exhibit 5 to this Registration Statement)./(7)/
24 Power of Attorney (appearing on page II-6 of this Registration
Statement)./(7)/
25 None.
26 None.
27 None.
28 None.
99 Form of Escrow Agreement dated as of November 30, 1994 among the
Registrant, KnowledgeWare, Inc., The First National Bank of Boston,
N.A. and Stuart Finestone./(1)/
</TABLE>
- ------------------------
/(1)/ Previously filed as an exhibit to the Registrant's Registration Statement
No. 33-56185 on Form S-4 and incorporated herein by reference.
/(2)/ Previously filed as an exhibit to the Registrant's Registration Statement
No. 2-82506 on Form S-1 and incorporated herein by reference.
/(3)/ 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.
/(4)/ Previously filed as an exhibit to the Registrant's Registration Statement
No. 33-69926 on Form S-8 and incorporated herein by reference.
/(5)/ Previously filed as an exhibit to the Registrant's Registration No. 33-
47131 on Form S-8 and incorporated herein by reference.
/(6)/ Previously filed as an exhibit to the Registrant's Registration Statement
No. 2-86825 on Form S-1 and incorporated herein by reference.
/(7)/ Filed herewith.
<PAGE>
EXHIBIT 5
November 30, 1994
Sterling Software, Inc.
8080 North Central Expressway
Suite 1100
Dallas, Texas 75206
Re: Registration Statement on Form S-3 of Sterling Software, Inc.
Ladies and 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 offer and sale of up to
484,185 shares of common stock, par value $.10 per share, of the Company (the
"Shares") by the Company or by an escrow agent on behalf of the Company pursuant
to the terms of an Escrow Agreement dated as of November, 30, 1994 among the
Company, KnowledgeWare, Inc., The First National Bank of Boston, N.A., and
Stuart Finestone. A Registration Statement on Form S-3 covering the sale of the
Shares (the "Registration Statement") is expected to be filed under the Act 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 original or copies, certified to our satisfaction, of all
documents, certificates and instruments as we have deemed necessary for the
expression of the opinions expressed herein. In making the foregoing
examinations, we have assumed that all signatures on all documents submitted to
us are genuine, that all documents submitted to us as originals are accurate and
complete, and that all documents submitted to us as copies are true, correct and
complete copies of the originals thereof.
Based solely upon the foregoing and subject to the comments and exceptions
herein stated and limited in all respects to the laws of the State of Texas, the
General Corporation Law of the State of Delaware, the laws of the United States
of America, and subject to the issuance by the Commission of an order declaring
the Registration Statement effective, we are of the opinion that the Shares have
been duly authorized, validly issued, fully paid and are nonassessable.
<PAGE>
Sterling Software, Inc.
November 30, 1994
Page 2
We express no opinion as to the laws of any jurisdiction other than the
State of Texas and, solely with respect to matters of corporate law, the State
of Delaware. You should be aware that we are not admitted to practice 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 filing of this opinion with the Commission as an
exhibit to the Registration Statement and to the reference to our firm therein
under the caption "Legal Matters". In giving this consent, we do not hereby
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 484,185
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 at 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.
