<PAGE>
As filed with the Securities and Exchange Commission on May 26, 1994.
Registration No. 33-__________________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
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 Number)
8080 North Central Expressway
Suite 1100 75206-1895
Dallas, Texas (Zip Code)
(Address of principal executive offices)
--------------------
STERLING SOFTWARE, INC. INCENTIVE STOCK OPTION PLAN
STERLING SOFTWARE, INC. NON-STATUTORY STOCK OPTION PLAN
(Full title of each Plan)
Jeannette P. Meier, Esq.
Executive Vice President,
Secretary and General Counsel
8080 North Central Expressway
Suite 1100
Dallas, Texas 75206-1895
(Name and address of agent for service)
(214) 891-8600
(Telephone number, including
area code, of agent for service)
___________________________
COPIES TO:
Charles D. Maguire, Jr.
Jackson & Walker, L.L.P.
901 Main Street, Suite 6000
Dallas, Texas 75202
APPROXIMATE DATE OF PROPOSED COMMENCEMENT OF SALES
PURSUANT TO THE PLANS:
From time to time after this Registration Statement becomes effective.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------
Title of Proposed Maximum Proposed Maximum
Securities to be Amount to be Offering Price Per Aggregate Offering Amount of
Registered Registered Share(1) Price (1) Registration Fee
- -----------------------------------------------------------------------------------------------------
<C> <S> <S> <S> <S>
Common Stock,
$0.10 par value 1,750,000 shares $30.00 $52,500,000 $18,103
- -----------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rules 457(c) and 457(h), 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
May 24, 1994.
<PAGE>
Pursuant to General Instruction E of Form S-8, this Registration Statement
incorporates by reference the contents of the Registrant's Registration
Statement No. 33-47131 on Form S-8.
<PAGE>
PROSPECTUS
4,374,725 Shares
STERLING SOFTWARE, INC.
Common Stock
This Prospectus has been prepared by Sterling Software, Inc., a Delaware
corporation (the "Company"), for use upon resale by certain officers and
directors of the Company (the "Selling Stockholders") of up to 4,374,725 shares
of Common Stock, par value $0.10 per share (the "Common Stock"), of the Company.
The Selling Stockholders have acquired and/or may in the future acquire shares
of Common Stock from the Company pursuant to the exercise of outstanding options
heretofore granted and options to be hereafter granted to the Selling
Stockholders pursuant to the provisions of the Company's Incentive Stock Option
Plan (as amended to date, the "Incentive Plan") and/or the Company's Non-
Statutory Stock Option Plan (as amended to date, the "Non-Statutory Plan"). The
Incentive Plan and the Non-Statutory Plan are sometimes collectively referred to
herein as the "Plans."
It is anticipated that each of the persons named herein under the caption
"Selling Stockholders" directly, through agents designated from time to time, or
through brokers, dealers or underwriters also to be designated, may sell the
Common Stock from time to time on terms to be determined at the time of sale.
To the extent required, the specific Common Stock to be sold, names of the
Selling Stockholders, purchase price, public offering price, the names of any
such agent, dealer or underwriter, and any applicable commission or discount
with respect to a particular offer will be set forth in an accompanying
Prospectus Supplement. See "Plan of Distribution." The Common Stock is listed
for trading on the New York Stock Exchange (the "NYSE") and may be sold from
time to time by the Selling Stockholders either directly in private
transactions, or through one or more brokers or dealers on the NYSE, at such
prices and upon such terms as may be obtainable.
Upon any sale of the Common Stock offered hereby, the Selling Stockholders
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 purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act. The Company, however, understands that the
Selling Stockholders do not admit that they are underwriters within the meaning
of the Securities Act. The Company will not receive any of the proceeds from
the sales by Selling Stockholders.
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 THE PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is May 26, 1994.
1
<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, 450 Fifth
Street, N.W., Room 1024, Washington, D.C. 20549, and at the regional offices of
the Commission 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., 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.
The Company has filed with the Commission a Registration Statement on Form S-8
(together with all amendments and exhibits thereto, the "Registration
Statement") under the Securities Act with respect to the offer and sale of the
Common Stock to be issued pursuant to the Plans. As permitted by the rules and
regulations of the Commission, this Prospectus does not contain all of the
information set forth or incorporated by reference in the Registration
Statement. Copies of the Registration Statement are available from the Public
Reference Section of the Commission at prescribed rates.
The Company's principal executive offices are located at 8080 N. Central
Expressway, Suite 1100, Dallas, Texas 75206, and its telephone number 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 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 for the quarter ended December 31, 1993;
(iii) Quarterly Report on Form 10-Q for the quarter ended March 31, 1994,
as amended by Form 10-Q/A Amendment No. 1, filed May 16, 1994; and
(iv) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A (No. 0-108465), filed
March 7, 1990.
2
<PAGE>
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 herein by reference and made a part hereof
from the date of filing of such documents. Any statement contained herein or in
a document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for 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, 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 proceeds from the sale of the Common Stock
offered hereby.
SELLING STOCKHOLDERS
The following officers and directors of the Company are eligible to receive
shares of the Company's Common Stock upon exercise of options granted under the
Plans:
<TABLE>
<CAPTION>
COMMON STOCK
OFFERED FOR AMOUNT AND
OWNERSHIP OF SELLING PERCENTAGE
COMMON STOCK STOCKHOLDERS' OF CLASS OF
POSITION WITH PRIOR TO ACCOUNT UPON AFTER
NAME THE COMPANY OFFERING (1) EXERCISE OFFERING (2)
- ----------------------- -------------------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Warner C. Blow Executive Vice President 243,750 243,750 -0- *
Richard Connelly Vice President and 28,000 (3) 20,625 7,375 (3)*
Controller
Robert J. Donachie Director 41,100 41,000 100 *
</TABLE>
3
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
George H. Ellis Executive Vice President 188,750 (4) 108,750 80,000 (4)*
and Chief Financial
Officer
Werner L. Frank Executive Vice President 302,741 302,000 741 *
Michael C. French Director 65,400 65,000 400 *
Vicki L. Hill Vice President, Treasurer 26,438 (5) 20,750 5,688 (5)*
Albert K. Hoover Vice President, Assistant 22,188 (6) 5,938 16,250 (6)*
Secretary and Assistant
General Counsel
James E. Jenkins, Jr. Vice President, Tax, and 22,250 (7) 9,375 12,875 (7)*
Assistant Secretary
Edward J. Lott Executive Vice President 130,750 130,750 -0- *
Jeannette P. Meier Executive Vice President, 142,950 (8) 94,150 48,800 (8)*
Secretary and General
Counsel
Phillip A. Moore Executive Vice President, 184,149 153,000 31,149 *
Technology, and Director
William D. Plumb Executive Vice President 200,050 (9) 4,250 195,800 (9)*
Geno P. Tolari Executive Vice President 202,500 (10) 102,500 100,000 (10)*
Anne Vahala Vice President, Corporate 29,000 (11) 750 28,250 (11)*
Communications
Sterling L. Williams President, Chief 804,000 (12) 500,000 304,000 (12)
Executive (1.5 %)
Officer and Director
Evan A. Wyly Director 92,754 40,000 52,754 *
</TABLE>
- ------------
* Indicates shares held are less than 1% of class.
(1) Based on ownership as of April 30, 1994. Includes shares to be acquired
upon exercise of options granted under the Plans, some of which are not
exercisable within 60 days of the date of this Prospectus.
(2) Based on 20,160,902 shares of Common Stock outstanding as of April 30,
1994. Assumes the exercise of all options granted under the Plans and the
sale of the Common Stock acquired thereby.
(3) Includes 7,375 shares purchasable pursuant to options granted under the
Company's 1992 Non-Statutory Stock Option Plan, some of which are not
exercisable within 60 days of the date of this Prospectus.
(4) Includes 80,000 shares purchasable pursuant to options granted under the
Company's 1992 Non-Statutory Stock Option 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 granted under the
Company's 1992 Non-Statutory Stock Option Plan, some of which are not
exercisable within 60 days of the date of this Prospectus.
(6) Includes 16,250 shares purchasable pursuant to options granted under the
Company's 1992 Non-Statutory Stock Option Plan, some of which are not
exercisable within 60 days of the date of this Prospectus.
(7) Includes 12,875 shares purchasable pursuant to options granted under the
Company's 1992 Non-Statutory Stock Option Plan, some of which are not
exercisable within 60 days of the date of this Prospectus.
4
<PAGE>
(8) Includes 48,800 shares purchasable pursuant to options granted under the
Company's 1992 Non-Statutory Stock Option Plan, some of which are not
exercisable within 60 days of the date of this Prospectus.
(9) Includes 195,800 shares purchasable pursuant to options granted under the
Company's 1992 Non-Statutory Stock Option Plan, some of which are not
exercisable within 60 days of the date of this Prospectus.
(10) Includes 100,000 shares purchasable pursuant to options granted under the
Company's 1992 Non-Statutory Stock Option Plan, some of which are not
exercisable within 60 days of the date of this Prospectus.
(11) Includes 28,250 shares purchasable pursuant to options granted under the
Company's 1992 Non-Statutory Stock Option Plan, some of which are not
exercisable within 60 days of the date of this Prospectus.
(12) Includes 300,000 shares purchasable pursuant to options granted under the
Company's 1992 Non-Statutory Stock Option Plan, all of which are
exercisable within 60 days of the date of this Prospectus.
Information relating to any additional Selling Stockholders will be provided by
a Prospectus Supplement.
PLAN OF DISTRIBUTION
The Common Stock offered hereby may be sold from time to time to purchasers
directly by any of the Selling Stockholders. Alternatively, the Selling
Stockholders may from time to time offer the Common Stock through underwriters,
dealers or agents, who may receive compensation in the form of underwriting
discounts, concessions or commissions from the Selling Stockholders and/or the
purchasers of the Common Stock for whom they may act as agent. The Selling
Stockholders and any underwriters, dealers or agents that participate in the
distribution of the Common Stock may be deemed to be underwriters under the
Securities Act, and any profit on the sale of the Common Stock by them and any
discounts, commissions or concessions received by any such underwriters, dealers
or agents might be deemed to be underwriting discounts and commissions under the
Securities Act.
At the time a particular offer of the Common Stock is made, to the extent
required, a Prospectus Supplement will be distributed that will set forth the
number of shares of Common Stock being offered and the terms of the offering,
including the name or names of any underwriters, dealers or agents, any
discounts, commissions and other items constituting compensation from the
Selling Stockholders and any discounts, commissions or concessions allowed or
re-allowed or paid to dealers.
The Common Stock may be sold from time to time in one or more transactions
at a fixed offering price, which may be changed, or at varying prices determined
at the time of sale or at negotiated prices.
LEGAL MATTERS
Certain legal matters in connection with the validity of the Common Stock
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.
5
<PAGE>
EXPERTS
The consolidated financial statements and financial statement
schedules of the Company appearing in the Company'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, independent
auditors, as set forth in their reports 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 & Co., 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.
INDEMNIFICATION
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.
6
<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 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
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.
----------------------------------------
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information.......... 2
Incorporation of Certain
Documents by Reference...... 2
Use of Proceeds................ 3
Selling Stockholders........... 3
Plan of Distribution........... 5
Legal Matters.................. 5
Experts........................ 6
Indemnification................ 6
</TABLE>
4,374,725 SHARES
STERLING SOFTWARE,
INC.
COMMON STOCK
--------------------------------
PROSPECTUS
---------------------------------
May 26, 1994
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF 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 for the year ended September 30, 1993, as amended by
Form 10K/A Amendment No. 1, filed January 26, 1994; (ii) Quarterly Report on
Form 10-Q for the quarter ended December 31, 1993; (iii) Quarterly Report on
Form 10-Q for the quarter ended March 31, 1994, as amended by Form 10-Q/A
Amendment No. 1, filed May 16, 1994; and (iv) the description of the Common
Stock contained in the Company's Registration Statement on Form 8-A (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 Registration
Statement and prior to a post-effective amendment that indicates that all of the
Common Stock offered hereunder has been sold or that deregisters all of such
Common Stock then remaining unsold, 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 Registration Statement 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
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
-------------------------
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
--------------------------------------
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.
ITEM 6. 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 and
officers and to purchase insurance
II-1
<PAGE>
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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
-----------------------------------
Not applicable.
II-2
<PAGE>
ITEM 8. EXHIBITS.
--------
The following is a list of all exhibits filed as a part of this
Registration Statement on Form S-8, including those incorporated herein by
reference.
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
- -------- ----------------------
<C> <S>
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./(7)/
15 None.
23.1 Consent of Ernst & Young./(7)/
23.2 Consent of Arthur Andersen & Co./(7)/
23.3 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.
27 None.
28 None.
99.1 Incentive Stock Option Plan of the Registrant (as amended through
January 31, 1994)./(6)/
99.2 Non-Statutory Stock Option Plan of the Registrant (as amended through
January 31, 1994)./(6)/
</TABLE>
- ---------------
II-3
<PAGE>
(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) Previously filed as an exhibit to the Registrant's Quarterly Report on Form
10-Q for the quarter ended March 31, 1994 and incorporated herein by
reference.
(7) Filed herewith.
ITEM 9. 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.
II-4
<PAGE>
(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 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-8 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 26th day of May, 1994.
STERLING SOFTWARE, INC.
/s/ GEORGE H. ELLIS
By:_______________________________________
GEORGE H. ELLIS
Name:_________________________________
Executive Vice President,
Chief Financial Officer
Title:________________________________
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 May 26, 1994
Sterling L. Williams (Principal Executive Officer)
Executive Vice President
/s/ George H. Ellis and Chief
- ----------------------- Financial Officer May 26, 1994
George H. Ellis (Principal Financial and
Accounting Officer)
/s/ Sam Wyly
- ----------------------- Chairman of the May 26, 1994
Sam Wyly Board of Directors
/s/ Charles J. Wyly, Jr.
- ----------------------- Vice Chairman of the May 26, 1994
Charles J. Wyly, Jr. Board of Directors
/s/ Evan A. Wyly
- ----------------------- Director May 26, 1994
Evan A. Wyly
/s/ Michael C. French
- ----------------------- Director May 26, 1994
Michael C. French
/s/ Robert J. Donachie
- ----------------------- Chairman of the Audit May 26, 1994
Robert J. Donachie Committee and Director
/s/ Phillip A. Moore
- ----------------------- Executive Vice President, May 26, 1994
Phillip A. Moore Technology and Director
/s/ Robert E. Cook
- ----------------------- Director May 26, 1994
Robert E. Cook
/s/ Donald R. Miller, Jr.
- ----------------------- May 26, 1994
Donald R. Miller, Jr. Director
</TABLE>
II-7
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Description of Exhibit Page
- ------ ---------------------- ------------
<C> <S> <C>
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./(7)/
15 None.
23.1 Consent of Ernst & Young./(7)/
23.2 Consent of Arthur Andersen & Co./(7)/
23.3 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.
27 None.
28 None.
99.1 Incentive Stock Option Plan of the Registrant (as amended through
January 31, 1994)./(6)/
99.2 Non-Statutory Stock Option Plan of the Registrant (as amended through
January 31, 1994)./(6)/
</TABLE>
- ---------------------------------
(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.
<PAGE>
(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) Previously filed as an exhibit to the Registrant's Quarterly Report on Form
10-Q for the quarter ended March 31, 1994 and incorporated herein by
reference.
(7) Filed herewith.
<PAGE>
EXHIBIT 5
JACKSON & WALKER, L.L.P.
ATTORNEYS AND COUNSELORS OTHER LOCATIONS
901 MAIN STREET
CABLE-JWAL SUITE 6000 HOUSTON
TELEX-73-385 DALLAS, TEXAS 75202-3797 FORT WORTH
TELECOPIER-(214)953-5822 (214) 953-6000 SAN ANTONIO
May 26, 1994
Sterling Software, Inc.
8080 N. Central Expressway
Suite 1100
Dallas, Texas 75206
Re: Registration Statement on Form S-8 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 1,750,000 shares of the Company's Common Stock, par value $0.10 per share
(the "Shares"). Of the Shares, 250,000 Shares have been reserved for issuance
upon exercise of options granted or to be granted from time to time under the
Company's Incentive Stock Option Plan, and 1,500,000 Shares have been reserved
for issuance upon exercise of options granted or to be granted under the
Company's Non-Statutory Stock Option Plan. The Incentive Option Plan and the
Non-Statutory Stock Option Plan are referred to herein collectively as the
"Plans." A Registration Statement on Form S-8 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 copies of the Plans. 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 sold in
accordance with the terms of the Plans, will be validly issued, fully paid and
nonassessable.
<PAGE>
Sterling Software, Inc.
May 26, 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,
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-8) pertaining to the registration of 1,750,000
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 (Form 10-K) for the year ended September 30, 1993
filed with the Securities and Exchange Commission.
Ernst & Young
Dallas, Texas
May 25, 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.
Arthur Andersen & Co.
Washington, D.C.
May 25, 1994
