<PAGE>
As filed with the Securities and Exchange Commission on December 23, 1994
Registration No. 33-56683
================================================================================
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.
Pursuant to Rule 429, this Registration Statement contains a combined
prospectus relating to this Registration Statement, Registration Statement No.
33-48553 and Registration Statement No. 33-53831.
<PAGE>
PROSPECTUS
4,610,000 Shares
STERLING SOFTWARE, INC.
Common Stock
This Prospectus relates to the offer and sale by Sterling Software, Inc.
("Sterling" or the "Company") of up to 4,610,000 shares (the "Shares") of the
Company's common stock, par value $0.10 per share (the "Common Stock"), issuable
by the Company upon exercise of options (the "Options") granted or to be granted
from time to time to eligible persons pursuant to the provisions of the
Company's 1992 Non-Statutory Stock Option Plan (as amended, the "Plan"). This
Prospectus also relates to the offer and sale of up to 4,610,000 Shares by
certain stockholders (the "Selling Stockholders") who will acquire such Shares
upon the exercise of Options.
The Shares may be sold from time to time by the Selling Stockholders, or by
pledgees, donees, transferees or other successors in interest. Such sales may
be made on one or more exchanges, including the New York Stock Exchange (the
"NYSE"), or in the over the counter market, or in negotiated transactions, in
each case at prices and at terms then prevailing or at prices related to the
then current market price or at negotiated prices and terms. Upon any sale of
the Shares offered hereby, Selling Stockholders or such successors in interest
and participating agents, brokers or dealers may be deemed to be underwriters as
that term is defined in the Securities Act of 1933, as amended (the "Securities
Act"), and commissions or discounts or any profit realized on the resale of such
securities may be deemed to be underwriting commissions or discounts under the
Securities Act. See "Plan of Distribution."
The Common Stock is listed for trading on the NYSE under the symbol "SSW."
On December 21, 1994, the closing price of the Common Stock on the NYSE was
$34.50. The Company will pay all expenses in connection with this offering,
which are estimated to be approximately $28,300.
----------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
----------------
The date of this Prospectus is __________, 1994.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Judiciary Plaza, Room 1024,
450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's regional
offices at Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60611 and at 7 World Trade Center, Suite 1300, New York, New
York 10048. Copies of such materials can also be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. The Common Stock is listed on the NYSE. Reports,
proxy statements and other information concerning the Company can also be
inspected at the offices of the NYSE at 20 Broad Street, New York, New York
10005.
This Prospectus, which constitutes part of a Registration Statement filed
by the Company with the Commission under the Securities Act (the "Registration
Statement"), omits certain of the information contained in the Registration
Statement. Reference is made to the Registration Statement and to the exhibits
thereto for further information with respect to the Company and the Common Stock
offered hereby. Copies of such Registration Statement are available from the
Commission. Statements contained herein concerning the provisions of documents
filed herewith as exhibits are necessarily summaries of such documents, and each
such statement is qualified in its entirety by reference to the copy of the
applicable document filed with the Commission.
The Company's principal executive offices are located at 8080 North Central
Expressway, Suite 1100, Dallas, Texas 75206, and its telephone number at such
address is (214) 891-8600.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed with the Commission by the
Company, are incorporated herein by reference and made a part hereof:
(i) Annual Report on Form 10-K (File No. 1-8465) for the year ended
September 30, 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 Company's Common Stock contained in the
Company's Registration Statement on Form 8-A (File No. 0-108465),
filed March 7, 1990.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of Common Stock to be made hereunder
shall be deemed to be incorporated by reference herein and to be a part hereof
from the date of filing thereof. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for all purposes of this Prospectus to the
extent that a statement contained herein or therein or in any other subsequently
filed document that also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will provide, without charge, to each person to whom a copy of
this Prospectus is delivered, upon the written or oral request of such person, a
copy of any or all of the documents incorporated herein by reference (other than
exhibits to such documents, unless such exhibits are specifically incorporated
by reference into the information that this Prospectus incorporates). Written
or telephonic requests for copies should be directed to the Company's principal
office: Sterling Software, Inc., 8080 N. Central Expressway, Suite 1100,
-3-
<PAGE>
Dallas, Texas 75206, Attention: Jeannette P. Meier, Executive Vice President,
Secretary and General Counsel (telephone: (214) 891-8600).
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sales of the
Shares offered hereby, except for proceeds from the exercise of the Options.
The proceeds received by the Company upon exercise of the Options will be used
for general corporate purposes, including, but not limited to, operating and
working capital requirements.
SELLING STOCKHOLDERS
This Prospectus covers the purchase from the Company of up to 4,610,000
Shares in the aggregate, by the holders of the Options upon the exercise thereof
in accordance with their terms and the subsequent offer and resale of Shares to
be acquired by certain holders of Options upon the exercise thereof.
The Board of Directors of the Company (the "Board") or a Stock Option
Committee appointed by the Board, subject to the provisions of the Plan, will
determine from time to time (i) the individuals, from among the Company's full
time employees and key advisors, including directors, to whom Options will be
granted, (ii) the number of shares of Common Stock to be covered by each Option
and (iii) the purchase price of Common Stock subject to each Option, which may
be equal to, less than or greater than the fair market value of the Common Stock
on the date of grant. Unless sooner terminated by action of the Board, the Plan
will terminate on March 31, 2002, and no Options may be granted pursuant to the
Plan after such date.
The table below sets forth information concerning the Common Stock owned by
the following Selling Stockholders, none of whom has, or within the past three
years has had, any position, office or other material relationship with the
Company, except as noted herein:
<TABLE>
<CAPTION>
COMMON STOCK
OFFERED FOR
OWNERSHIP OF SELLING AMOUNT AND
COMMON STOCK STOCKHOLDERS' PERCENTAGE
PRIOR TO ACCOUNT UPON OF CLASS OF AFTER
NAME OFFERING /(1)/ EXERCISE OFFERING /(2)/
- ---- -------------- -------- --------------
<S> <C> <C> <C>
Richard Connelly 31,313 /(3)/ 3,688 27,625 /(3)/ /(*)/
George H. Ellis 352,500 /(4)/ 80,000 272,500 /(4)/ /(*)/
Greenbriar Limited 500,000 500,000 -0- /(*)/
Albert K. Hoover 28,738 /(5)/ 16,250 12,488 /(5)/ /(*)/
James E. Jenkins, Jr. 27,650 /(6)/ 12,875 14,775 /(6)/ /(*)/
M. Gene Konopik 173,812 /(7)/ 51,950 121,862 /(7)/ /(*)/
Jeannette P. Meier 267,950 /(8)/ 48,800 219,150 /(8)/ /(*)/
</TABLE>
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<PAGE>
<TABLE>
<S> <C> <C> <C>
Donald R. Miller, Jr. 40,000 40,000 -0- /(*)/
William D. Plumb 225,050 /(9)/ 195,800 29,250 /(9)/ /(*)/
Quayle Limited 333,000 333,000 -0- /(*)/
Sarnia Investments 167,000 167,000 -0- /(*)/
Limited
A. Maria Smith 225,000 /(10)/ 60,000 165,000 /(10)/ /(*)/
Clive A. Smith 224,963 /(11)/ 53,113 171,850 /(11)/ /(*)/
Geno P. Tolari 250,000 /(12)/ 100,000 150,000 /(12)/ /(*)/
Anne Vahala 70,000 /(13)/ 28,250 41,750 /(13)//(*)/
Sterling L. Williams 1,454,000 /(14)/ 625,000 829,000 /(14)/
(3.6%)
Charles J. Wyly, Jr. 1,413,590 /(15)/ 150,000 1,263,590 /(15)/
(5.5%)
Sam Wyly 1,795,954 /(16)/ 700,000 1,095,954 /(16)/
(4.7%)
</TABLE>
______________
/(*)/ Indicates shares held are less than 1% of class.
/(1)/ Based on ownership as of December 1, 1994. Includes Shares to be acquired
upon exercise of Options granted under the Plan, some of which are not
exercisable within 60 days of the date of this Prospectus.
/(2)/ Based on 20,655,332 shares of Common Stock outstanding as of October 31,
1994. Assumes the exercise of all Options granted under the Plan, the
exercise of which is covered by this Prospectus, and the sale of the
Shares acquired thereby.
/(3)/ Includes 27,625 shares purchasable pursuant to options not granted under
the Plan, some of which are not exercisable within 60 days of the date of
this Prospectus.
/(4)/ Includes 272,500 shares purchasable pursuant to options not granted under
the Plan, none of which are exercisable within 60 days of the date of
this Prospectus.
/(5)/ Includes 12,488 shares purchasable pursuant to options not granted under
the Plan, some of which are not exercisable within 60 days of the date of
this Prospectus.
/(6)/ Includes 14,775 shares purchasable pursuant to options not granted under
the Plan, some of which are not exercisable within 60 days of the date of
this Prospectus.
/(7)/ Includes 108,000 shares purchasable pursuant to options not granted under
the Plan, none of which are exercisable within 60 days of the date of
this Prospectus.
/(8)/ Includes 219,150 shares purchasable pursuant options not granted under
the Plan, some of which are not exercisable within 60 days of the date of
this Prospectus.
/(9)/ Includes 28,000 shares purchasable pursuant options not granted under the
Plan, some of which are not exercisable within 60 days of the date of
this Prospectus.
/(10)/ Includes 165,000 shares purchasable pursuant to options not granted under
the Plan, none of which are exercisable within 60 days of the date of
this Prospectus.
/(11)/ Includes 171,850 shares purchasable pursuant to options not granted under
the Plan, some of which are not exercisable within 60 days of the date of
this Prospectus.
/(12)/ Includes 150,000 shares purchasable pursuant to options not granted under
the Plan, some of which are not exercisable within 60 days of the date of
this Prospectus.
/(13)/ Includes 41,750 shares purchasable pursuant to options not granted under
the Plan, some of which are not exercisable within 60 days of the date of
this Prospectus.
/(14)/ Includes 825,000 shares purchasable pursuant to options not granted under
the Plan, all of which are exercisable within 60 days of the date of this
Prospectus.
/(15)/ Includes 307,016 shares directly owned by family trusts of which Charles
J. Wyly, Jr. is trustee. Also includes 556,574 shares held of record by
two limited partnerships of which Charles J. Wyly, Jr. is general
partner. Also includes 400,000 shares purchasable pursuant to options not
granted under the Plan, none of which are exercisable within 60 days of
the date of this Prospectus.
/(16)/ Includes 257,342 shares directly owned by family trusts of which Sam Wyly
is trustee. Also includes 438,612 shares held of record by two limited
partnerships of which Sam Wyly is general partner. Also includes 400,000
shares purchasable pursuant to options not granted under the Plan, none
of which are exercisable within 60 days of the date of this Prospectus.
Richard Connelly serves as Vice President and Controller of the
Company. George H. Ellis serves as Executive Vice President and Chief Financial
Officer of the Company. Albert
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<PAGE>
K. Hoover serves as Vice President, Assistant Secretary and Assistant General
Counsel of the Company. James E. Jenkins, Jr. serves as Vice President, Tax, and
Assistant Secretary of the Company. M. Gene Konopik serves as Executive Vice
President of the Company. Jeannette P. Meier serves as Executive Vice President,
Secretary and General Counsel of the Company. Donald R. Miller, Jr. serves as a
Director of the Company. William D. Plumb serves as Executive Vice President of
the Company. A. Maria Smith serves as Executive Vice President of the Company.
Clive A. Smith serves as Executive Vice President of the Company. Geno P. Tolari
serves as Executive Vice President of the Company. Anne Vahala serves as Vice
President, Corporate Communications, of the Company. Sterling L. Williams serves
as President, Chief Executive Officer and Director of the Company. Charles J.
Wyly, Jr. serves as Vice Chairman of the Board. Sam Wyly serves as Chairman of
the Board.
PLAN OF DISTRIBUTION
The Shares may be issued to the Selling Stockholders from time to time by
the Company upon exercise of the Options. The Shares may be sold from time to
time by any of the Selling Stockholders, or by pledgees, donees, transferees or
other successors in interest. The Shares may be disposed of from time to time in
one or more transactions through any one or more of the following: (i) to
purchasers directly, (ii) in ordinary brokerage transactions and transactions in
which the broker solicits purchasers, (iii) through underwriters or dealers who
may receive compensation in the form of underwriting discounts, concessions or
commissions from the Selling Stockholders or such successors in interest and/or
from the purchasers of the Shares for whom they may act as agent, (iv) the
writing of options on the Shares, (v) the pledge of the Shares as security for
any loan or obligation, including pledges to brokers or dealers who may, from
time to time, themselves effect distributions of the Shares or interests
therein, (vi) purchases by a broker or dealer as principal and resale by such
broker or dealer for its own account pursuant to this Prospectus, (vii) a block
trade in which the broker or dealer so engaged will attempt to sell the Shares
as agent but may position and resell a portion of the block as principal to
facilitate the transaction and (viii) an exchange distribution in accordance
with the rules of such exchange, including the NYSE, or in transactions in the
over the counter market. Such sales may be made at prices and at terms then
prevailing or at prices related to the then current market price or at
negotiated prices and terms. In effecting sales, brokers or dealers may arrange
for other brokers or dealers to participate. The Selling Stockholders or such
successors in interest, and any underwriters, brokers, dealers or agents that
participate in the distribution of the Shares, may be deemed to be
"underwriters" within the meaning of the Securities Act, and any profit on the
sale of the Shares by them and any discounts, commissions or concessions
received by any such underwriters, brokers, dealers or agents may be deemed to
be underwriting commissions or discounts under the Securities Act.
The Company will pay all of the expenses incident to the offering and sale
of the Shares to the public other than underwriting discounts or commissions,
brokers' fees and the fees and expenses of any counsel to the Selling
Stockholders related thereto.
In the event of a material change in the plan of distribution disclosed in
this Prospectus, the Selling Stockholders will not be able to effect
transactions in the Shares pursuant to this Prospectus until such time as a
post-effective amendment to the Registration Statement is filed with, and
declared effective by, the Commission.
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<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 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 4,610,000 SHARES
information or representation must not
be relied upon as having been authorized
by the Company. This Prospectus does not
constitute an offer to sell or a
solicitation of an offer to buy any
securities to any person or by anyone in
any jurisdiction where such offer or
solicitation would be unlawful. Neither
the delivery of this Prospectus nor any STERLING SOFTWARE,
sale made hereunder shall, under any INC.
circumstances, create any implication
that the information contained herein is
correct as of any date subsequent to the
date hereof.
--------------------------
TABLE OF CONTENTS
-----------------
COMMON STOCK
<TABLE>
<CAPTION>
Page
----
<S> <C> -----------------
Available Information...... 2
Incorporation of Certain
Documents by Reference.. 2
PROSPECTUS
Use of Proceeds............ 4
Selling Stockholders....... 4
Plan of Distribution....... 6
-----------------
Legal Matters.............. 7
Experts.................... 7 __________, 1994
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
-------------------------------------------
The estimated expenses to be incurred in connection with the issuance and
distribution of the Common Stock covered by this Registration Statement, all of
which will be paid by the Registrant, are as follows:
<TABLE>
<S> <C>
Registration Fee......................... $11,292.00
Printing, Engraving and Filing Expenses.. 6,000.00
Accounting Fees and Expenses............. 5,000.00
Legal Fees and Expenses.................. 5,000.00
Miscellaneous............................ 1,008.00
__________
28,300.00
Total.................................... ==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
-----------------------------------------
Section 145 of the Delaware General Corporation Law empowers a corporation
to indemnify its directors and officers or former directors or officers and to
purchase insurance with respect to liability arising out of their capacity or
status as directors and officers. Such law provides further that the
indemnification permitted thereunder shall not be deemed exclusive of any other
rights to which the directors and officers may be entitled under a corporation's
certificate of incorporation, bylaws, any agreement or otherwise.
Article IX of the Company's Certificate of Incorporation, as amended,
provides that, to the fullest extent permitted by the Delaware General
Corporation Law, as the same exists or may hereafter be amended, a director of
the Company shall not be liable to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director. Article IX of the Company's
Restated Bylaws provides for indemnification of officers and directors. In
addition, the Company has entered into Indemnity Agreements with each of its
officers and directors pursuant to which such officers and directors may be
indemnified against losses arising from certain claims, including claims under
the Securities Act, which may be made by reason of their being officers or
directors.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been advised that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
II-1
<PAGE>
ITEM 16. EXHIBITS.
--------
The following is a list of all exhibits filed as a part of this
Registration Statement on Form S-3, including those incorporated herein by
reference.
Exhibit
Number Description of Exhibit
- -------- ----------------------
1 None.
2 None.
4.1 Certificate of Incorporation of the Registrant. /(1)/
4.2 Certificate of Amendment of Certificate of Incorporation of the
Registrant. /(2)/
4.3 Certificate of Amendment of Certificate of Incorporation of the
Registrant. /(3)/
4.4 Restated Bylaws of the Registrant. /(4)/
4.5 Form of Common Stock Certificate. /(5)/
5 Opinion of Jackson & Walker, L.L.P. /(6)/
8 None.
12 None.
15 None.
23.1 Consent of Ernst & Young LLP. /(7)/
23.2 Consent of Arthur Andersen LLP. /(7)/
23.3 Consent of Coopers & Lybrand L.L.P. /(7)/
23.4 Consent of Jackson & Walker, L.L.P. (included in its opinion filed as
Exhibit 5 to this Registration Statement). /(6)/
24 Power of Attorney. /(6)/
25 None.
26 None.
27 None.
II-2
<PAGE>
28 None.
99 1992 Non-Statutory Stock Option Plan of the Registrant (as amended
through November 30, 1994). (6)
- ------------------------
/(1)/ Previously filed as an exhibit to the Registrant's Registration Statement
No. 2-82506 on Form S-1 and incorporated herein by reference.
/(2)/ Previously filed as an exhibit to the Registrant's Annual Report on Form
10-K for the fiscal year ended September 30, 1993 and incorporated herein
by reference.
/(3)/ Previously filed as an exhibit to the Registrant's Registration Statement
No. 33-69926 on Form S-8 and incorporated herein by reference.
/(4)/ Previously filed as an exhibit to the Registrant's Registration Statement
No. 33-47131 on Form S-8 and incorporated herein by reference.
/(5)/ Previously filed as an exhibit to the Registrant's Registration Statement
No. 2-86825 on Form S-1 and incorporated herein by reference.
/(6)/ Previously filed.
/(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 the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-4
<PAGE>
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-5
<PAGE>
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
STERLING L. WILLIAMS* Executive Officer
- ------------------------ and Director December 22, 1994
Sterling L. Williams (Principal Executive Officer)
Executive Vice President
GEORGE H. ELLIS* and Chief
- ------------------------ Financial Officer December 22, 1994
George H. Ellis (Principal Financial and
Accounting Officer)
SAM WYLY* Chairman of the
- ------------------------ Board of Directors December 22, 1994
Sam Wyly
CHARLES J. WYLY, JR.* Vice Chairman of the
- ------------------------ Board of Directors December 22, 1994
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
- ------------------------ Committee and Director December 22, 1994
Robert J. Donachie
PHILLIP A. MOORE* Executive Vice
- ------------------------ President, December 22, 1994
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
--------------------
Attorney-in-Fact
II-7
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description of Exhibit
- ------ ----------------------
1 None.
2 None.
4.1 Certificate of Incorporation of the Registrant. /(1)/
4.2 Certificate of Amendment of Certificate of Incorporation of the
Registrant. /(2)/
4.3 Certificate of Amendment of Certificate of Incorporation of the
Registrant. /(3)/
4.4 Restated Bylaws of the Registrant. /(4)/
4.5 Form of Common Stock Certificate. /(5)/
5 Opinion of Jackson & Walker, L.L.P. /(6)/
8 None.
12 None.
15 None.
23.1 Consent of Ernst & Young LLP. /(7)/
23.2 Consent of Arthur Andersen LLP. /(7)/
23.3 Consent of Coopers & Lybrand L.L.P. /(7)/
23.4 Consent of Jackson & Walker, L.L.P. (included in its opinion
filed as Exhibit 5 to this Registration Statement). /(6)/
24 Power of Attorney. /(6)/
25 None.
26 None.
27 None.
<PAGE>
28 None.
99 1992 Non-Statutory Stock Option Plan of the Registrant (as amended
through November 30, 1994). /(6)/
- ------------
/(1)/ Previously filed as an exhibit to the Registrant's Registration Statement
No. 2-82506 on Form S-1 and incorporated herein by reference.
/(2)/ Previously filed as an exhibit to the Registrant's Annual Report on Form
10-K for the fiscal year ended September 30, 1993 and incorporated herein
by reference.
/(3)/ Previously filed as an exhibit to the Registrant's Registration Statement
No. 33-69926 on Form S-8 and incorporated herein by reference.
/(4)/ Previously filed as an exhibit to the Registrant's Registration Statement
No. 33-47131 on Form S-8 and incorporated herein by reference.
/(5)/ Previously filed as an exhibit to the Registrant's Registration Statement
No. 2-86825 on Form S-1 and incorporated herein by reference.
/(6)/ Previously filed.
/(7)/ 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 1,110,000
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.
