<PAGE>
As filed with the Securities and Exchange Commission on December 23, 1994
Registration No. 33-56677
================================================================================
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]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================
Title of Each Class Amount Proposed Maximum Proposed Maximum
of Securities to to be Offering Price Aggregate Amount of
be Registered Registered Per Unit(1) Offering Price(1) Registration Fee (1)
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.10 per share 645,017 shares (1) (1) $6,566
=======================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(c), the offering price and registration fee are
computed on the basis of the average of the high and low prices of the
Common Stock as reported by the New York Stock Exchange (i) on November 23,
1994 with respect to the 642,539 shares initially registered (for a
proposed maximum offering price per unit of $29.50 and a proposed maximum
aggregate offering price of $18,954,900) and (ii) on December 19, 1994 with
respect to the registration of 2,478 additional shares (for a proposed
maximum offering price per unit of $33.875 and a proposed maximum aggregate
offering price of $83,943). $6,537 of the total amount of registration fee
was paid with the initial filing of this Registration Statement.
----------------
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
645,017 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. This Prospectus relates to the offer and sale of up to
645,017 shares (the "Merger Shares") of Common Stock, par value $.10 per share,
of Sterling ("Sterling Common Stock") that were acquired or may be acquired
pursuant to the Merger by certain former stockholders of KnowledgeWare (the
"Selling Stockholders"). See "Selling Stockholders."
The Merger 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 Merger 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 Sterling Common Stock is listed for trading on 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
$24,000.
----------------
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;
-2-
<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 Company will not receive any of the proceeds from the sales of the
securities offered hereby.
SELLING STOCKHOLDERS
This Prospectus covers offers from time to time by each Selling Stockholder
of the Merger Shares owned by each such Selling Stockholder, including shares
that may be issued to the Selling Stockholders which are currently held in
escrow. Pursuant to the Merger Agreement, upon effectiveness of the Merger each
outstanding share of common stock, without par value ("KnowledgeWare Common
Stock"), of KnowledgeWare (other than (a) shares owned by Sterling, Merger Sub
or any other subsidiary of Sterling and (b) shares held in KnowledgeWare's
treasury immediately prior to the effective time of the Merger) was converted
into the right to receive up to .1653 of a share of Sterling Common Stock (the
"Exchange Ratio"). Upon effectiveness of the Merger, holders of KnowledgeWare
Common Stock became entitled to receive .1322 of a share of Sterling Common
Stock for each share of KnowledgeWare Common Stock; the remaining 20% of the
number of shares of Sterling Common Stock issuable upon effectiveness of the
Merger were placed in escrow (the "Escrowed Shares") pursuant to the terms of an
escrow agreement and will be distributed to KnowledgeWare stockholders only if
and to the extent that such shares are not necessary to cover certain losses,
claims, liabilities, judgments, costs and expenses that may be incurred by
Sterling, Merger Sub or KnowledgeWare in connection with any pending or
threatened litigation, action, claims, proceeding, dispute or investigation
(including amounts paid in settlement) to which Sterling, Merger Sub or
KnowledgeWare is or may become a party and with respect to which Sterling is
entitled to indemnification under the Merger Agreement.
In connection with the Merger, the Company has agreed to register for sale
under the Securities Act all shares of Sterling Common Stock acquired by the
Selling Stockholders pursuant to the Merger, including the Escrowed Shares if
any are distributed to the Selling Stockholders.
Set forth below are the names of each Selling Stockholder, the number of
shares of Sterling Common Stock owned as of November 30, 1994 by each Selling
Stockholder (which includes the maximum number of Escrowed Shares that could be
issued to such Selling Stockholder), the number of Merger Shares (including
Escrowed Shares) that may be offered by each Selling Stockholder pursuant to
this Prospectus, and the number of shares of Sterling Common Stock to be owned
by each Selling Stockholder upon completion of the offering if all Merger Shares
are sold. Any or all of the Merger Shares listed below may be offered for sale
by the Selling Stockholders from time to time; provided that interests in the
Escrowed Shares
-4-
<PAGE>
prior to their distribution are not transferable pursuant to this Prospectus or
otherwise except by operation of law.
<TABLE>
<CAPTION>
Ownership of Merger Shares Ownership of
Sterling Common Offered for Selling Sterling Common
Stock Prior to Stockholder's Stock after the
Name Offering Account Offering
---- --------------- ------------------- ---------------
<S> <C> <C> <C>
Francis A. Tarkenton/(1)//(2)/ 203,187 203,187 ----
Richard M. Haddrill/(1)//(3)/ 158 158 ----
Rick W. Gossett/(1)//(4)/ 334 334 ----
Sam A. Brooks/(1)//(5)/ 1,239 1,239 ----
P. E. Sadler/(1)//(6)/ 4,132 4,132 ----
James Martin/(7)/ 255,471 255,471 ----
International Business
Machines Corporation /(8)/ 180,496 180,496 ----
Tarkenton Group, Inc./(9)/ 5,734 5,734 ----
</TABLE>
- ------------------------
/(1)/ Former executive officer and/or director of KnowledgeWare. Shares listed
do not include shares issuable upon exercise of employee stock options.
/(2)/ Includes an aggregate of 40,687 Escrowed Shares. Also includes the 5,734
Merger Shares (of which 1,148 shares are Escrowed Shares) owned by the
Tarkenton Group, Inc., which is wholly owned by Mr. Tarkenton. Following
the effectiveness of the Merger, Mr. Tarkenton was elected to the Board
of Directors of Sterling.
/(3)/ Includes 32 Escrowed Shares.
/(4)/ Includes 67 Escrowed Shares.
/(5)/ Includes 248 Escrowed Shares.
/(6)/ Includes 827 Escrowed Shares.
/(7)/ Includes 51,156 Escrowed Shares.
/(8)/ Includes 36,143 Escrowed Shares.
/(9)/ Includes 1,148 Escrowed Shares.
The Company and the Selling Stockholders have also agreed to indemnify each
other against certain civil liabilities under the Securities Act.
PLAN OF DISTRIBUTION
The Merger Shares offered hereby may be sold from time to time by any of
the Selling Stockholders, or by pledgees, donees, transferees or other
successors in interest. The Merger
-5-
<PAGE>
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
Merger Shares for whom they may act as agent, (iv) the writing of options on the
Merger Shares, (v) the pledge of the Merger Shares as security for any loan or
obligation, including pledges to broker or dealers who may, from time to time,
themselves effect distributions of the Merger 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 Merger 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 Merger Shares, may be deemed to be "underwriters" within
the meaning of the Securities Act, and any profit on the sale of the Merger
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 Merger 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 Merger 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.
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.
-6-
<PAGE>
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.
-7-
<PAGE>
========================================== ===============================
No person has been authorized in connection
with the offering made hereby to give any
information or to make any representation
not contained in this Prospectus and, if
given or made, such 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
Selling Stockholders................. 4
Plan of Distribution................. 5
Legal Matters........................ 6
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>
<CAPTION>
<S> <C>
Registration Fee................. $ 6,537.00
Printing and Engraving Expenses.. 6,000.00
Accounting Fees and Expenses..... 5,000.00
Legal Fees and Expenses.......... 5,000.00
Miscellaneous.................... 1,463.00
_________
Total............................ $24,000.00
=========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
-----------------------------------------
Section 145 of the Delaware General Corporation Law empowers a corporation
to indemnify its directors and officers or former directors or officers and to
purchase insurance with respect to liability arising out of their capacity or
status as directors and officers. Such law provides further that the
indemnification permitted thereunder shall not be deemed exclusive of any other
rights to which the directors and officers may be entitled under a corporation's
Certificate of Incorporation, Bylaws, any agreement or otherwise.
Article IX of the Company's Certificate of Incorporation, as amended,
provides that, to the fullest extent permitted by the Delaware General
Corporation Law, as the same exists or may hereafter be amended, a director of
the Company shall not be liable to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director. Article IX of the Company's
Restated Bylaws provides for indemnification of officers and directors. In
addition, the Company has entered into Indemnity Agreements with each of its
officers and directors pursuant to which such officers and directors may be
indemnified against losses arising from certain claims, including claims under
the Securities Act, which may be made by reason of their being officers or
directors.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been advised that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
II-1
<PAGE>
ITEM 16. EXHIBITS.
--------
The following is a list of all exhibits filed as a part of this Registration
Statement on Form S-3, including those incorporated herein by reference.
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
- -------- ----------------------
<S> <C>
1 None.
2.1 Amended and Restated Agreement and Plan of Merger dated as of August
31, 1994 among the Registrant, KnowledgeWare, Inc. and SSI
Corporation./(1)/
2.2 Agreement dated October 11, 1994 among the Registrant, KnowledgeWare,
Inc. and SSI Corporation./(1)/
2.3 First Amendment to Amended and Restated Agreement and Plan of Merger
dated as of October 24, 1994 among the Registrant, KnowledgeWare, Inc.
and SSI Corporation./(1)/
4.1 Certificate of Incorporation of the Registrant./(2)/
4.2 Certificate of Amendment of Certificate of Incorporation of the
Registrant./(3)/
4.3 Certificate of Amendment of Certificate of Incorporation of the
Registrant./(4)/
4.4 Restated Bylaws of the Registrant./(5)/
4.5 Form of Common Stock Certificate./(6)/
5 Opinion of Jackson & Walker, L.L.P./(7)/
8 None.
12 None.
15 None.
23.1 Consent of Ernst & Young LLP./(8)/
23.2 Consent of Arthur Andersen LLP./(8)/
23.3 Consent of Coopers & Lybrand L.L.P./(8)/
</TABLE>
II-2
<PAGE>
<TABLE>
<S> <C>
23.4 Consent of Jackson & Walker, L.L.P. (included in its opinion filed as
Exhibit 5 to this Registration Statement)./(7)/
24 Power of Attorney./(7)/
25 None.
26 None.
27 None.
28 None.
99.1 Form of Registration Rights Agreement dated as of November 30, 1994
among the Registrant and the Selling Stockholders./(1)/
99.2 Form of Escrow Agreement dated as of November 30, 1994 among the
Registrant, KnowledgeWare, Inc., The First National Bank of Boston,
N.A. and Stuart Finestone./(1)/
</TABLE>
- ------------------------
/(1)/ Previously filed as an exhibit to the Registrant's Registration Statement
No. 33-56185 on Form S-4 and incorporated herein by reference.
/(2)/ Previously filed as an exhibit to the Registrant's Registration Statement
No. 2-82506 on Form S-1 and incorporated herein by reference.
/(3)/ Previously filed as an exhibit to the Registrant's Annual Report on Form
10-K for the fiscal year ended September 30, 1993 and incorporated herein
by reference.
/(4)/ Previously filed as an exhibit to the Registrant's Registration Statement
No. 33-69926 on Form S-8 and incorporated herein by reference.
/(5)/ Previously filed as an exhibit to the Registrant's Registration Statement
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 of 1933 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
II-4
<PAGE>
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
----------------------------
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
President, Chief
Executive Officer
STERLING L. WILLIAMS* and Director
- -------------------------- (Principal Executive Officer) December 22, 1994
Sterling L. Williams
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 December 22, 1994
- -------------------------- Board of Directors
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 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)/
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)/
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)/
</TABLE>
<PAGE>
<TABLE>
<S> <C>
25 None.
26 None.
27 None.
28 None.
99.1 Form of Registration Rights Agreement dated as of November 30, 1994
among the Registrant and the Selling Stockholders./(1)/
99.2 Form of Escrow Agreement dated as of November 30, 1994 among the
Registrant, KnowledgeWare, Inc., The First National Bank of Boston,
N.A. and Stuart Finestone./(1)/
</TABLE>
- ----------------
/(1)/ Previously filed as an exhibit to the Registrant's Registration Statement
No. 33 -56185 on Form S-4 and incorporated herein by reference.
/(2)/ Previously filed as an exhibit to the Registrant's Registration Statement
No. 2-82506 on Form S-1 and incorporated herein by reference.
/(3)/ Previously filed as an exhibit to the Registrant's Annual Report on Form
10-K for the fiscal year ended September 30, 1993 and incorporated herein
by reference.
/(4)/ Previously filed as an exhibit to the Registrant's Registration Statement
No. 33-69926 on Form S-8 and incorporated herein by reference.
/(5)/ Previously filed as an exhibit to the Registrant's Registration No. 33-
47131 on Form S-8 and incorporated herein by reference.
/(6)/ Previously filed as an exhibit to the Registrant's Registration Statement
No. 2-86825 on Form S-1 and incorporated herein by reference.
/(7)/ 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 645,017
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.
