<PAGE>
As filed with the Securities and Exchange Commission on December 23, 1994
Registration No. 33-56679
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
PRE-EFFECTIVE AMENDMENT No. 1
to
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]
----------------
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
82,650 Shares
STERLING SOFTWARE, INC.
Common Stock
Pursuant to an Amended and Restated Agreement and Plan of Merger dated as
of August 31, 1994 (as amended, the "Merger Agreement"), Sterling Software,
Inc., a Delaware corporation ("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.
This Prospectus relates to the issuance by Sterling of up to 82,650 shares
(the "Warrant Shares") of Common Stock, par value $.10 per share ("Sterling
Common Stock"), that are issuable upon exercise of certain warrants (the
"Warrants") that had been issued by KnowledgeWare in June 1994 and were assumed
by Sterling pursuant to the Merger. As a result of the Merger, each Warrant
entitles the holder thereof to purchase .1653 of a share of Sterling Common
Stock (the exchange ratio in the Merger (the "Exchange Ratio")) at an exercise
price of $17.50 for such fraction, subject to certain adjustments, at anytime
until June 9, 1997; provided that Warrants are exercisable only for whole shares
of Sterling Common Stock and no cash will be paid in lieu of fractional Warrants
or fractional shares of Sterling Common Stock. In general, the Warrant Shares,
when and if issued upon the exercise of the Warrants, may be resold without
restriction under the Securities Act of 1933, as amended (the "Securities Act").
See "Description of Warrants and Plan of Distribution."
The Sterling Common Stock is listed for trading on the New York Stock
Exchange (the "NYSE") under the symbol "SSW." On December 21, 1994, the
closing price of the Sterling Common Stock on the NYSE was $34.50. The Company
will pay all expenses incurred in connection with this offering, which are
estimated to be approximately $18,000.00.
----------------
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 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, 1994;
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<PAGE>
(ii) Current Report on Form 8-K (File No. 1-8465) dated November 3, 1994,
filed November 3, 1994;
(iii) Current Report on Form 8-K (File No. 1-8465) dated November 14,
1994, filed November 14, 1994;
(iv) Current Report on Form 8-K (File No. 1-8465) dated November 14,
1994, filed November 25, 1994;
(v) Current Report on Form 8-K (File No. 1-8465) dated November 30,
1994, filed December 15, 1994; and
(vi) 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,
-3-
<PAGE>
Texas 75206, Attention: Jeannette P. Meier, Executive Vice President, Secretary
and General Counsel (telephone: (214) 891-8600).
USE OF PROCEEDS
The proceeds received by the Company upon exercise of the Warrants, if any,
will be used for general corporate purposes, including, but not limited to,
operating and working capital requirements. As of the date of this Prospectus,
there were outstanding Warrants to purchase an aggregate of 82,650 shares of
Sterling Common Stock, exercisable at the price of $105.87 per share, and
expiring on June 9, 1997. The number of shares of Sterling Common Stock
issuable upon exercise of the Warrants, and the exercise price thereof, are
subject to adjustment for stock splits and similar events in accordance with the
terms of the Warrant Agreement (as amended or supplemented, the "Warrant
Agreement") dated June 9, 1994 between KnowledgeWare and Trust Company Bank,
Atlanta, Georgia, as warrant agent (the "Warrant Agent"), pursuant to which the
Warrants were issued.
DESCRIPTION OF WARRANTS AND PLAN OF DISTRIBUTION
BACKGROUND
According to the public filings of KnowledgeWare prior to the effectiveness
of the Merger, the Warrants were issued in connection with a complaint that was
filed on December 18, 1994, in the United States District Court for the Northern
District of Georgia, Atlanta Division which consolidated and amended several
class action lawsuits previously filed against KnowledgeWare in October 1991.
This action, styled In re: KnowledgeWare, Inc. Shareholder Litigation, Master
File No. 1:92-CV-1651-JTC, pending in the United States District Court for the
Northern District of Georgia (the "1991 Class Action"), was a class action
lawsuit alleging violations of Sections 20 and 10(b) of the Exchange Act and
Rule 10b-5 under the Exchange Act. In summary, the complaint alleged that
KnowledgeWare misrepresented or failed to disclose material facts which would
have a material adverse impact on KnowledgeWare or approved such
misrepresentations and omissions. The complaint sought compensatory damages and
reimbursements for the plaintiffs' fees and expenses. On January 26, 1994,
KnowledgeWare entered into and the District Court preliminarily approved a
stipulation of settlement of the 1991 Class Action (the "Settlement Agreement").
By entering into the settlement, KnowledgeWare did not admit the allegations in
the suit and, to the contrary, denied any wrongdoing. The Settlement Agreement,
which received final court approval in April 1994, required a cash payment of
$1,750,000, all of which was paid by KnowledgeWare's insurance carrier, and the
issuance by KnowledgeWare of the Warrants, which allowed the holders to acquire
an aggregate of 500,000 shares of common stock, without par value
("KnowledgeWare Common Stock"), of KnowledgeWare at a price of $17.50 per share.
On August 30, 1994, the plaintiffs in the 1991 Class Action filed a "Motion to
Enforce Stipulation of Settlement, for Temporary Injunction of Merger and for
Damages Resulting from Fraud" (the "Motion"). In the Motion, the plaintiffs
allege that the proposed business combination between KnowledgeWare and Sterling
and the
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<PAGE>
announcement by KnowledgeWare that it modified its accounting policy for revenue
recognition and restated financial results for the first three quarters of
fiscal year 1994 resulted in a substantially reduced value of the Warrants
available to the plaintiffs under the Settlement Agreement. Accordingly, the
plaintiffs moved the District Court for a decree of specific performance of the
terms of the Settlement Agreement entailing the delivery of new warrants of
equivalent value to the original value of the Warrants, and for a preliminary
injunction of the consummation of any business combination between KnowledgeWare
and Sterling, pending compliance by KnowledgeWare with the terms of the
Settlement Agreement. Alternatively, the plaintiffs moved for a declaration
that the Warrant Agreement set forth in the Settlement Agreement was the product
of fraud and for an award to the plaintiffs of the appropriate measure of
damages. The plaintiffs have subsequently filed a motion requesting the
withdrawal of their request for the preliminary injunction.
EFFECT OF THE MERGER
Pursuant to the terms of the Merger Agreement, Sterling assumed the
Warrants upon consummation of the Merger. Each Warrant is exercisable on the
terms and conditions set forth in the Warrant Agreement, except that in
accordance with the automatic adjustment provisions of the Warrant Agreement,
(a) each such Warrant became exercisable for the number of shares of Sterling
Common Stock into which the number of shares of KnowledgeWare Common Stock under
the unexercised portion of the Warrant would have been converted immediately
prior to the effective time of the Merger, and (b) the exercise price per share
of Sterling Common Stock became equal to an amount equal to the exercise price
for a share of KnowledgeWare Common Stock subject to such Warrant immediately
prior to the effective time of the Merger divided by the Exchange Ratio.
Accordingly, as a result of the Merger, there currently are outstanding Warrants
to purchase an aggregate of 82,650 shares of Sterling Common Stock with an
exercise price of $105.87 for each share of Sterling Common Stock.
DESCRIPTION OF WARRANTS
GENERAL. The Warrants are issued in certificated form ("Warrant
-------
Certificates") pursuant to the provisions of the Warrant Agreement. The
following summary description of the Warrants and the Warrant Agreement does not
purport to be complete and is qualified in its entirety by reference to the
Warrant Agreement, which is filed as an exhibit to the Registration Statement.
Each Warrant entitles the registered holder thereof (the "Warrantholder")
to purchase .1653 of a share of Sterling Common Stock at an exercise price of
$17.50 for such fraction, subject to certain adjustments, at any time from June
9, 1994 through June 9, 1997 (the "Exercise Period"); provided that Warrants are
exercisable only for whole shares of Sterling Common Stock and no cash will be
paid in lieu of fractional Warrants or fractional shares of Sterling Common
Stock.
TRANSFER AND EXCHANGE. Warrants may be presented for exchange or
---------------------
registration of transfer (with the form of assignment on the reverse side
thereof fully completed and executed)
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<PAGE>
at the stock transfer office of the Warrant Agent. The Warrants have not been,
and are not expected to be, listed on any exchange or traded in an interdealer
quotation system. There is no assurance that there will be a market for the
Warrants.
EXERCISE OF WARRANTS. The Warrants can be exercised for whole shares of
--------------------
Sterling Common Stock, at any time and from time to time during the Exercise
Period, by surrendering to the stock transfer office of the Warrant Agent a
Warrant Certificate with the form of election to purchase on the reverse side
thereof duly completed and signed by the Warrantholder or his or her duly
authorized agent indicating the Warrantholder's election to exercise all or a
portion (consisting of whole Warrants) of the Warrant evidenced by such Warrant
Certificate. The election to purchase must be accompanied by (i) payment of the
exercise price of the Warrants to be exercised and (ii) an amount equal to any
applicable transfer tax, which payment may be made in the form of cash or a
certified or official bank check payable in lawful money of the United States to
the order of the Company. The Warrant Agent will return a certificate
evidencing the number of shares of Sterling Common Stock issued upon exercise of
the Warrant, together with a new Warrant Certificate if less than all of the
shares covered by the Warrant Certificate are being purchased. The shares of
Sterling Common Stock received upon exercise of the Warrants are being offered
directly by the Company to the Warrantholders, without participation by any
brokers, dealers or underwriters. No discounts, commissions or other
compensation will be paid in connection with this offering.
In general, the Warrant Shares, when and if issued upon the exercise of the
Warrants, may be resold without restriction under the Securities Act.
ADJUSTMENTS. The number of securities issuable upon exercise of the
-----------
Warrants and the exercise price of the Warrants are subject to adjustment upon
the occurrence of specified events including stock dividends, stock splits,
reorganization or certain other occurrences, all as set forth in the Warrant
Agreement. There is no adjustment for the payment of cash dividends, if any, by
the Company on the Sterling Common Stock.
MODIFICATION AND WAIVER. The Company and the Warrant Agent may from time
-----------------------
to time supplement or amend the Warrant Agreement or the provisions of the
Warrant Certificates without the approval of the Warrantholders in order to cure
any ambiguity or to correct any defective or inconsistent provision or clerical
omission therein, or to make any other provisions in regard to matters or
questions arising thereunder and which shall not be inconsistent with the
provisions of the Warrant Certificates and which shall not adversely affect the
interest of the Warrantholders.
FRACTIONAL INTERESTS. No Warrant Certificate evidencing a fraction of a
--------------------
Warrant, fractions of shares of Sterling Common Stock on the exercise of the
Warrants, or cash in lieu of fractional Warrants or shares will be issued.
NO RIGHTS AS STOCKHOLDERS. The Warrantholders as such are not entitled to
-------------------------
vote, receive dividends or exercise any of the rights of holders of shares of
Sterling Common Stock for any
-6-
<PAGE>
purpose until such Warrants have been duly exercised and payment of the exercise
price has been made.
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 appearing in Sterling's Annual Report
on Form 10-K for the year ended September 30, 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 year 1992, are
based in part on the report of Arthur Andersen LLP, independent public
accountants. Such consolidated financial statements 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.
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<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 STERLING SOFTWARE, INC.
to the date hereof.
PROSPECTUS
, 1994
-----------
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
<S> <C>
Available Information................. 2
Incorporation of Certain
Documents by Reference............... 2
Use of Proceeds....................... 4
Description of Warrants
and Plan of Distribution............. 4
Legal Matters......................... 7
Experts............................... 7
</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................. $ 841.00
Printing and Engraving Expenses.. 6,000.00
Accounting Fees and Expenses..... 5,000.00
Legal Fees and Expenses.......... 5,000.00
Miscellaneous.................... 1,159.00
__________
Total............................ $18,000.00
==========
</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)
4.6 Warrant Agreement dated June 9, 1994 between KnowledgeWare, Inc. and
Trust Company Bank.(7)
4.7 Supplemental Warrant Agreement dated as of November 30, 1994 between
KnowledgeWare, Inc. and Trust Company Bank.(7)
5 Opinion of Jackson & Walker, L.L.P.(7)
8 None.
12 None.
15 None.
</TABLE>
II-2
<PAGE>
<TABLE>
<S> <C>
23.1 Consent of Ernst & Young LLP./(8)/
23.2 Consent of Arthur Andersen LLP./(8)/
23.3 Consent of Coopers & Lybrand L.L.P. /(8)/
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./(7)/
25 None.
26 None.
27 None.
28 None.
</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)/ Previously filed.
/(8)/ 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>
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 Amendment to
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized in the City of Dallas, State of Texas on the 22nd
day of December, 1994.
STERLING SOFTWARE, INC.
By: /s/ George H. Ellis
--------------------------
Name: George H. Ellis
------------------------
Title: Executive Vice President
-------------------------------
and Chief Financial Officer
-------------------------------
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<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
STERLING L. WILLIAMS* and Director December 22, 1994
- -------------------------- (Principal Executive Officer)
Sterling L. Williams Executive Vice President
and Chief
GEORGE H. ELLIS* Financial Officer December 22, 1994
- -------------------------- (Principal Financial and
George H. Ellis Accounting Officer)
SAM WYLY* Chairman of the December 22, 1994
- -------------------------- Board of Directors
Sam Wyly
CHARLES J. WYLY, JR.* Vice Chairman of the December 22, 1994
- -------------------------- Board of Directors
Charles J. Wyly, Jr.
EVAN A. WYLY* Director December 22, 1994
- --------------------------
Evan A. Wyly
MICHAEL C. FRENCH* Director December 22, 1994
- --------------------------
Michael C. French
ROBERT J. DONACHIE* Chairman of the Audit December 22, 1994
- -------------------------- Committee and Director
Robert J. Donachie
PHILLIP A. MOORE* Executive Vice December 22, 1994
- -------------------------- President,
Phillip A. Moore Technology and Director
ROBERT E. COOK* Director December 22, 1994
- --------------------------
Robert E. Cook
DONALD R. MILLER, JR.* Director December 22, 1994
- --------------------------
Donald R. Miller, Jr.
</TABLE>
*By: /s/ George H. Ellis
-----------------------
George H. Ellis
Attorney-in-Fact
II-7
<PAGE>
INDEX TO EXHIBITS
<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)/
4.6 Warrant Agreement dated June 9, 1994 between KnowledgeWare, Inc. and
Trust Company Bank./(7)/
4.7 Supplemental Warrant Agreement dated as of November 30, 1994 between
KnowledgeWare, Inc. and Trust Company Bank./(7)/
5 Opinion of Jackson & Walker, L.L.P./(7)/
8 None.
12 None.
15 None.
23.1 Consent of Ernst & Young LLP./(8)/
23.2 Consent of Arthur Andersen LLP./(8)/
23.3 Consent of Coopers & Lybrand L.L.P. /(8)/
</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./(7)/
25 None.
26 None.
27 None.
28 None.
</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)/ Previously filed.
/(8)/ Filed herewith.
<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 82,650
shares of common stock of Sterling Software, Inc. and to the incorporation by
reference therein of our report dated December 1, 1994, with respect to the
consolidated financial statements of Sterling Software, Inc. included in its
Annual Report on Form 10-K for the year ended September 30, 1994, filed with the
Securities and Exchange Commission.
/s/Ernst & Young LLP
Ernst & Young LLP
Dallas, Texas
December 22, 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, 1994, and to all references to our Firm
included in this registration statement.
Washington, D.C.
December 22, 1994
/s/ ARTHUR ANDERSEN LLP
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
December 22, 1994
/s/ Coopers & Lybrand L.L.P.
Coopers & Lybrand L.L.P.
