<PAGE>
As filed with the Securities and Exchange Commission on November 8, 1995.
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------
STERLING SOFTWARE, INC.
(Exact name of registrant as specified in its charter)
Delaware 75-1873956
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
8080 North Central Expressway
Suite 1100
Dallas, Texas 75206
(214) 891-8600
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
----------------
Jeannette P. Meier, Esq. With a copy to:
Executive Vice President,
Secretary and General Counsel Robert L. Estep, Esq.
Sterling Software, Inc. Jones, Day, Reavis & Pogue
8080 North Central Expressway 2300 Trammell Crow Center
Suite 1100 2001 Ross Avenue
Dallas, Texas 75206 Dallas, Texas 75201
(214) 891-8685 (214) 220-3939
(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 only in connection with dividend or interest
reinvestment plans, check the following
box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]__________.
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]__________.
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
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 Share(1) Offering Price(1) Registration Fee
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value $.10 per share 335,000 shares $45.6875 $15,305,313 $5,278
===================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c), using the average of the high and low prices for
Common Stock of the Company traded on the New York Stock Exchange on
November 7, 1995.
----------------
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.
IN ACCORDANCE WITH RULE 429 UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
THE PROSPECTUS CONTAINED HEREIN ALSO RELATES TO (I) 350,000 SHARES OF THE
REGISTRANT'S COMMON STOCK COVERED BY REGISTRATION STATEMENT NO. 33-62057, (II)
1,110,000 SHARES OF THE REGISTRANT'S COMMON STOCK COVERED BY REGISTRATION
STATEMENT NO. 33-56683, AND (III) 1,265,988 SHARES OF THE REGISTRANT'S COMMON
STOCK COVERED BY REGISTRATION STATEMENT NO. 33-53831.
================================================================================
<PAGE>
Subject to Completion, Dated November 8, 1995
PROSPECTUS
3,060,988 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 3,060,988 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 ("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") and
which may be offered and sold from time to time by such persons or permitted
transferees (the "Selling Stockholders").
Sales by the Selling Stockholders 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, the
Selling Stockholders and participating agents, brokers or dealers may be deemed
to be underwriters as that term is defined in the Securities Act of 1933, as
amended (the "Securities Act"), and commissions or discounts or any profit
realized on the resale of such securities 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 November 7, 1995, the closing price of the Common Stock on the NYSE was
$45.125. The Company will pay all expenses 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 November 8, 1995.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the public reference facilities
maintained by the Commission at Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511, and at 7 World Trade Center, Suite 1300, New
York, New York 10048. Copies of such materials can also be obtained at
prescribed rates from the Public Reference Section of the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549. Documents filed by the Company can
also be inspected at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005, on which exchange certain of the Company's
securities are listed.
This Prospectus constitutes a part of a Registration Statement filed by the
Company with the Commission under the Securities Act relating to the securities
offered hereby. This Prospectus omits certain of the information contained in
the Registration Statement, and reference is hereby made to the Registration
Statement and to the exhibits relating thereto for further information with
respect to the Company and the securities offered hereby. Any statements
contained herein concerning the provisions of any document are not necessarily
complete, and in each instance reference is made to the copy of such document
filed as an exhibit to the Registration Statement or otherwise filed with the
Commission. Each such statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference into this Prospectus the
Company's (i) Annual Report on Form 10-K for the year ended September 30, 1994,
as amended by Form 10-K/A; (ii) Quarterly Reports on Form 10-Q for the quarters
ended December 31, 1994, March 31, 1995, as amended by Form 10-Q/A, and June 30,
1995; (iii) Current Reports on Form 8-K dated November 3, 1994, November 14,
1994, November 14, 1994, November 30, 1994, February 28, 1995 and October 25,
1995; and (iv) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, filed March 7, 1990.
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act, prior to the termination of the offering
made hereby, shall be deemed incorporated by reference in this Prospectus and to
be a part of this Prospectus from the date of the filing of such reports.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
Any person receiving a copy of this Prospectus may obtain, without charge,
upon written or oral request, a copy of any of the documents incorporated by
reference herein, except for the exhibits to such documents (other than the
exhibits expressly incorporated in such documents by reference). Requests
should be directed to: Sterling Software, Inc., 8080 N. Central Expressway,
Suite 1100, Dallas, Texas 75206, Attention: Jeannette P. Meier, Executive Vice
President, Secretary and General Counsel (telephone: (214) 891-8600).
- 2 -
<PAGE>
THE COMPANY
Sterling is a recognized worldwide supplier of software products and
services within the electronic commerce, enterprise systems and applications
management software markets and also provides technical professional services to
certain sectors of the federal government. The Company's principal executive
offices are located at 8080 N. Central Expressway, Suite 1100, Dallas, Texas
75206, and the Company's telephone number at such address is (214) 891-8600.
USE OF PROCEEDS
The proceeds from the issuance of the Shares upon exercise of Options will
be added to the Company's funds and used for general corporate purposes. The
Company will not receive any of the proceeds from the sale of Shares by the
Selling Stockholders.
SELLING STOCKHOLDERS
This Prospectus covers the purchase from the Company of up to 3,060,988
Shares, in the aggregate, by the holders of Options upon the exercise thereof in
accordance with their terms and the subsequent offer and resale of Shares
previously acquired or 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,
among other things, 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 on the following page sets forth certain information concerning
the Common Stock owned by the Selling Stockholders and any positions, offices or
other material relationships of the Selling Stockholders with the Company.
- 3 -
<PAGE>
<TABLE>
<CAPTION>
COMMON STOCK COMMON STOCK
OWNERSHIP OWNERSHIP AFTER
PRIOR TO OFFERING (1)(2) THE OFFERING (2)
------------------------- COMMON STOCK -----------------------
NAME AND POSITION NUMBER PERCENTAGE OFFERED HEREBY NUMBER PERCENTAGE
- --------------------------------------- ---------- ------------- -------------- ---------- -----------
<S> <C> <C> <C> <C> <C>
Richard Connelly (3) 18,844 * 1,844 17,000 *
Vice President and Controller
Robert E. Cook (4) 39,209 * 30,000 9,209 *
Director
Albert K. Hoover (5) 20,340 * 12,540 7,800 *
Vice President, Assistant Secretary
and Assistant General Counsel
James E. Jenkins, Jr. (6) 19,495 * 6,969 12,526 *
Vice President, Tax and
Assistant Secretary
M. Gene Konopik (7) 137,474 * 24,350 113,124 *
Executive Vice President
Jeannette P. Meier (8) 226,875 * 24,400 202,475 *
Executive Vice President,
Secretary and General Counsel
Donald R. Miller, Jr. (9) 70,000 * 40,000 30,000 *
Director
Clive A. Smith (10) 192,938 * 24,838 168,100 *
Executive Vice President
A. Maria Smith (11) 225,000 * 60,000 165,000 *
Executive Vice President
Geno P. Tolari (12) 195,313 * 100,000 95,313 *
Executive Vice President
Anne Vahala (13) 53,438 * 12,438 41,000 *
Vice President,
Corporate Communications
Sterling L. Williams (14) 1,154,000 4.1% 75,000 1,079,000 3.7%
President, Chief Executive
Officer and Director
Charles J. Wyly, Jr. (15) 1,881,607 6.8% 391,667 1,489,940 5.4%
Vice Chairman of the Board
Evan A. Wyly (16) 186,440 * 60,000 126,440 *
Vice President and Director
Sam Wyly (17) 2,563,631 9.0% 1,183,333 1,380,298 4.8%
Chairman of the Board
The Concho Trust (18) 95,000 * 30,000 65,000 *
</TABLE>
- 4 -
<PAGE>
- -----------------
* Less than 1% of class.
(1) Based on ownership as of October 31, 1995.
(2) Based on 26,674,545 shares of Common Stock issued and outstanding as of
October 31, 1995.
(3) Includes 1,844 Shares to be acquired upon exercise of Options granted under
the Plan and 17,000 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.
(4) Includes 30,000 Shares to be acquired upon exercise of Options granted
under the Plan and 2,709 shares purchasable pursuant to options not granted
under the Plan (which options are held by Mr. Cook's spouse and as to which
Mr. Cook has expressly disclaimed ownership), all of which are exercisable
within 60 days of the date of this Prospectus.
(5) Includes 12,540 Shares to be acquired upon exercise of Options granted
under the Plan and 7,800 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 6,969 Shares to be acquired upon exercise of Options granted under
the Plan and 12,526 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 24,350 Shares to be acquired upon exercise of Options granted
under the Plan and 108,000 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.
(8) Includes 24,400 Shares to be acquired upon exercise of Options granted
under the Plan and 201,825 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.
(9) Includes 40,000 Shares to be acquired upon exercise of Options granted
under the Plan and 30,000 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.
(10) Includes 24,838 Shares to be acquired upon exercise of Options granted
under the Plan and 168,100 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.
(11) Includes 60,000 Shares to be acquired upon exercise of Options granted
under the Plan and 165,000 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.
(12) Includes 100,000 Shares to be acquired upon exercise of Options granted
under the Plan and 95,313 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 12,438 Shares to be acquired upon exercise of Options granted
under the Plan and 41,000 shares purchasable pursuant to options not
granted under the Plan, none of which are exercisable within 60 days of the
date of this Prospectus.
(14) Includes 75,000 Shares to be acquired upon exercise of Options granted
under the Plan and 1,075,000 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.
(15) Includes 307,016 shares directly owned by family trusts of which Charles J.
Wyly, Jr. is trustee, 556,574 shares held of record by two limited
partnerships of which Charles J. Wyly, Jr. is general partner, 391,667
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,
491,667 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, and 134,683 shares purchasable pursuant to warrants owned by
family trusts of which Charles J. Wyly, Jr. is trustee, all of which are
exercisable within 60 days of the date of this Prospectus.
(16) Includes 60,000 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, 40,000 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, and 33,686 shares purchasable pursuant to
warrants, all of which are exercisable within 60 days of the date of this
Prospectus.
(17) Includes 257,342 shares owned by family trusts of which Sam Wyly is
trustee, 438,612 shares held of record by two limited partnerships of which
Sam Wyly is general partner, 1,183,333 Shares to be acquired upon exercise
of Options granted under the Plan, some of which are not exercisable within
60 days of the date
- 5 -
<PAGE>
of this Prospectus, 583,333 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, and 101,011 shares purchasable pursuant to
warrants owned by family trusts of which Sam Wyly is trustee, all of which
are exercisable within 60 days of the date of this Prospectus.
(18) Includes 30,000 Shares to be acquired upon exercise of Options granted
under the Plan and 65,000 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.
- 6 -
<PAGE>
PLAN OF DISTRIBUTION
The Shares may be issued to the Selling Stockholders from time to time by the
Company upon exercise of Options. The Shares may be sold or otherwise disposed
of from time to time by any of the Selling Stockholders 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 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 hereby 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.
LEGAL MATTERS
Certain legal matters in connection with the validity of the Common Stock
offered hereby have been passed upon for the Company by Jones, Day, Reavis &
Pogue, Dallas, Texas. Michael C. French, a consultant to Jones, Day, Reavis &
Pogue, is a director of the Company.
EXPERTS
The consolidated financial statements and financial statement schedules
appearing in Sterling's Annual Report on Form 10-K for the year ended September
30, 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 ended September 30, 1992, is 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 filed in the Company's Current Report on Form 8-K dated
November 30, 1994 and incorporated by reference in this Prospectus have been
incorporated herein in reliance 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 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 HEREBY TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS AND,
IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN
OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES TO ANY PERSON
OR BY ANYONE IN ANY JURISDICTION WHERE SUCH OFFER OR SOLICITATION WOULD BE
UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION
CONTAINED HEREIN IS CORRECT AS OF ANY DATE SUBSEQUENT TO THE DATE HEREOF.
----------------------------------------
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
Available Information...... 2
Incorporation of Certain
Documents by Reference.. 2
The Company................ 3
Use of Proceeds............ 3
Selling Stockholders....... 3
Plan of Distribution....... 6
Legal Matters.............. 6
Experts.................... 6
</TABLE>
3,068,988 SHARES
STERLING SOFTWARE,
INC.
COMMON STOCK
--------------------------------
PROSPECTUS
--------------------------------
November 8, 1995
<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 have been or will be paid by the Registrant, are as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission filing fee.. $ 5,278
NYSE listing fee............................... 1,500
Printing expenses.............................. 6,000
Accounting fees and expenses................... 5,000
Legal fees and expenses........................ 5,000
Miscellaneous.................................. 1,222
-------
Total.......................................... $24,000
=======
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware (the
"GCL") 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. The GCL
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.
The Company's Certificate of Incorporation, as amended, provides that, to
the fullest extent permitted by the GCL, 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.
The Company's Restated Bylaws provide that the Company shall indemnify its
directors to the fullest extent of the GCL and may, if and to the extent
authorized by the Board, so indemnify its officers against any liability,
expense or other matter whatsoever. 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.
ITEM 16. EXHIBITS
Exhibit No. Description
- ----------- -----------
5.1 -- Opinion of Jones, Day, Reavis & Pogue
23.1 -- Consent of Ernst & Young LLP
23.2 -- Consent of Arthur Andersen LLP
23.3 -- Consent of Coopers & Lybrand, L.L.P.
23.4 -- Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5.1)
24.1 -- Powers of Attorney of directors and officers of the Company
24.2 -- Power of Attorney of the Company
99.1 -- 1992 Non-Statutory Stock Option Plan of the Registrant (as
amended through September 11, 1995)
II-1
<PAGE>
ITEM 17. UNDERTAKINGS
The 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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of a prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(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;
(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.
(4) 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.
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-2
<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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Dallas, State of Texas on the 8th day of November,
1995.
STERLING SOFTWARE, INC.
By: /s/ JEANNETTE P. MEIER
--------------------------------------
Jeannette P. Meier
Executive Vice President, Secretary
and General Counsel
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 indicated on the 8th day of November, 1995.
Signatures Title
---------- -----
STERLING L. WILLIAMS* President, Chief Executive Officer
- ------------------------ and Director
Sterling L. Williams (Principal Executive Officer)
GEORGE H. ELLIS* Executive Vice President
- ------------------------ and Chief Financial Officer
George H. Ellis (Principal Financial and Accounting Officer)
Chairman of the
- ------------------------ Board of Directors
Sam Wyly
Vice Chairman of the
- ------------------------ Board of Directors
Charles J. Wyly, Jr.
EVAN A. WYLY* Director
- ------------------------
Evan A. Wyly
MICHAEL C. FRENCH* Director
- ------------------------
Michael C. French
ROBERT J. DONACHIE* Director
- ------------------------
Robert J. Donachie
PHILLIP A. MOORE* Director
- ------------------------
Phillip A. Moore
Director
- ------------------------
Robert E. Cook
DONALD R. MILLER, JR.* Director
- ------------------------
Donald R. Miller, Jr.
Director
- ------------------------
Frances A. Tarkenton
* The undersigned, by signing her name hereto, does sign and execute this
Registration Statement pursuant to the Powers of Attorney executed on behalf of
the above-named officers and directors and contemporaneously filed herewith with
the Securities and Exchange Commission.
/s/ JEANNETTE P. MEIER
----------------------------------
Jeannette P. Meier
Attorney-in-Fact
II-3
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Description
- ----------- -----------
5.1 -- Opinion of Jones, Day, Reavis & Pogue
23.1 -- Consent of Ernst & Young LLP
23.2 -- Consent of Arthur Andersen LLP
23.3 -- Consent of Coopers & Lybrand, L.L.P.
23.4 -- Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5.1)
24.1 -- Powers of Attorney of directors and officers of the Company
24.2 -- Power of Attorney of the Company
99.1 -- 1992 Non-Statutory Stock Option Plan of the Registrant (as
amended through September 11, 1995)
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF JONES, DAY, REAVIS & POGUE]
November 8, 1995
Sterling Software, Inc.
8080 North Central Expressway
Suite 1100
Dallas, Texas 75206
Re: Registration on Form S-3 of 335,000 Shares of Common Stock, par value
$0.10 per share, of Sterling Software, Inc.
Ladies and Gentlemen:
We are acting as counsel to Sterling Software, Inc., a Delaware
corporation (the "Company"), in connection with the registration of 335,000
shares (the "Shares") of Common Stock, par value $0.10 per share, of the Company
pursuant to the Company's Registration Statement on Form S-3 (the "Registration
Statement").
We have examined such documents, records, and matters of law as we
have deemed necessary for purposes of this opinion. Based on such examination
and on the assumptions set forth below, we are of the opinion that the Shares
are duly authorized and, when issued and delivered in accordance with the
provisions of the Company's 1992 Non-Statutory Stock Option Plan (as amended,
the "Plan") against payment of the consideration therefor as provided in the
Plan and having a value not less than the par value thereof, will be validly
issued, fully paid, and nonassessable.
In rendering the foregoing opinion, we have relied as to certain
factual matters upon certificates of officers of the Company and public
officials, and we have not independently checked or verified the accuracy of the
statements contained therein. In addition, our examination of matters of law
has been limited to the General Corporation Law of the State of Delaware and the
federal laws of the United States of America, in each case as in effect on the
date hereof.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference to us in the Prospectus under the
caption "Legal Matters."
Very truly yours,
/S/ Jones, Day, Reavis & Pogue
Jones, Day, Reavis & Pogue
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference of our firm under the caption "Experts" in the
Registration Statement on Form S-3 of Sterling Software, Inc., related to
registration of 335,000 shares of common stock issuable under the 1992 Non-
Statutory Stock Option Plan and to the incorporation by reference therein of our
reports dated December 1, 1994, with respect to the consolidated financial
statements and schedules of Sterling Software, Inc. included in its Annual
Report (Form 10-K) for the year ended September 30, 1994, filed with the
Securities and Exchange Commission.
/S/ Ernst & Young LLP
Dallas, Texas
November 3, 1995
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBIC 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 Form 10-K for the year ended
September 30, 1994 and to all references to our Firm included in this
registration statement.
/S/ Arthur Andersen LLP
Washington, DC
November 3, 1995
<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 audits of the financial statements of KnowledgeWare, Inc. and
Subsidiaries. We also consent to the reference to our firm under the caption
"Experts".
/S/ Coopers & Lybrand L.L.P.
Coopers & Lybrand L.L.P.
Atlanta, Georgia
November 7, 1995
<PAGE>
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby
constitutes and appoints Robert L. Estep, James E. O'Bannon, Kristi D. Bohling
and Jeannette P. Meier the true and lawful attorney-in-fact, with full power of
substitution and resubstitution, for him and in his name, place and stead, to
sign on his behalf, as a director or officer, or both, as the case may be, of
Sterling Software, Inc., a Delaware corporation (the "Corporation"), a
Registration Statement on Form S-3 or any other appropriate form, for the
purpose of registering, pursuant to the Securities Act of 1933, as amended, up
to 335,000 shares of Common Stock, par value $0.10 per share, of the Corporation
and to sign any or all amendments and any or all post-effective amendments to
such Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney or attorneys-in-fact, each of them with
or without the others, full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorney or attorneys-in-fact or
any of them or their substitute or substitutes may lawfully do or cause to be
done by virtue hereof.
Dated: October 18, 1995
/S/ Sterling L. Williams /S/ Robert J. Donachie
- ---------------------------------- ----------------------------------
Sterling L. Williams Robert J. Donachie
/S/ George H. Ellis /S/ Phillip A. Moore
- ---------------------------------- ----------------------------------
George H. Ellis Phillip A. Moore
- ---------------------------------- ----------------------------------
Sam Wyly Robert E. Cook
/S/ Donald R. Miller, Jr.
- ---------------------------------- ----------------------------------
Charles J. Wyly, Jr. Donald R. Miller, Jr.
/S/ Evan A. Wyly
- ---------------------------------- ----------------------------------
Evan A. Wyly Frances A. Tarkenton
/S/ Michael C. French
- ----------------------------------
Michael C. French
<PAGE>
EXHIBIT 24.2
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, on behalf of
Sterling Software, Inc., a Delaware corporation (the "Corporation"), hereby
constitutes and appoints Robert L. Estep, James E. O'Bannon, Kristi D. Bohling
and Jeannette P. Meier the true and lawful attorney-in-fact, with full power of
substitution and resubstitution, for the Corporation to sign on the
Corporation's behalf a Registration Statement on Form S-3 or any other
appropriate form, for the purpose of registering, pursuant to the Securities Act
of 1933, as amended, up to 335,000 shares of Common Stock, par value $0.10 per
share, of the Corporation and to sign any or all amendments and any or all post-
effective amendments to such Registration Statement, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney or attorneys-in-
fact, each of them with or without the others, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said attorney or
attorneys-in-fact or any of them or their substitute or substitutes may lawfully
do or cause to be done by virtue hereof.
STERLING SOFTWARE, INC.
By: /S/ Sterling L. Williams
----------------------------------
Sterling L. Williams,
President and Chief Executive
Officer
Dated: October 18, 1995
<PAGE>
EXHIBIT 99.1
1992 NON-STATUTORY STOCK OPTION PLAN
(AS AMENDED THROUGH SEPTEMBER 11, 1995)
1. Purpose. The purpose of the 1992 Non-Statutory Stock Option Plan of
Sterling Software, Inc. (the "Plan") is to provide employees and key advisors
with a proprietary interest in Sterling Software, Inc., a Delaware corporation,
and its subsidiaries (the "Company") through the granting of options ("Option"
or "Options") to purchase shares of the Company's authorized Common Stock, par
value $0.10 per share ("Common Stock"), in order to:
a. Increase the interest in the Company's welfare of those employees
and key advisors who share primary responsibility for the management,
growth and protection of the business of the Company;
b. Recognize the contributions made by certain employees and key
advisors to the Company's growth during its development stage;
c. Furnish an incentive to such employees and key advisors to
continue their services for the Company; and
d. Provide a means through which the Company may attract able persons
to engage as employees and key advisors.
2. Administration. The Plan shall be administered by a Stock Option
Committee (the "Committee") of not less than two directors of the Company
appointed by the Board of Directors (the "Board"); provided that any and all of
the powers granted to the Committee hereunder may be exercised by the full Board
or by the Executive Committee of the Board. No member of the Committee shall
take any action with respect to Options granted to such member.
The Committee shall have full and final authority in its discretion, but
subject to the provisions of the Plan, to determine from time to time the
individuals to whom Options shall be granted and the number of shares to be
covered by each Option; to determine the time or times at which Options shall be
granted; to interpret the Plan and the instruments by which Options will be
evidenced; to make, amend and rescind rules and regulations relating to the
Plan; to determine the terms and provisions of the instruments by which Options
shall be evidenced; with the consent of the Participant (as defined in Section
3), to modify or amend any Option agreement or waive any conditions or
restrictions applicable to any Option or the exercise thereof; and to make all
other determinations necessary or advisable for the administration of the Plan.
3. Participants. The Committee may, from time to time, select particular
full-time employees and key advisors, including directors, of the Company, or of
any subsidiary of the Company, to whom Options are to be granted, and upon the
grant of such Options, the selected employees and key advisors shall become
Participants in the
-1-
<PAGE>
Plan. As used herein, the term "Participant" means an employee or key advisor
who accepts an Option, or the estate, personal representative or beneficiary
thereof having the right to exercise an Option pursuant to its terms.
4. Shares Subject to the Plan. The shares of Common Stock subject to
Options granted pursuant to the Plan shall be either shares of authorized but
unissued Common Stock or shares of Common Stock reacquired by the Company. The
maximum aggregate number of shares of Common Stock that may be issued from time
to time pursuant to the Plan shall be 5,295,000 Shares that by reason of the
expiration of an Option, or for any other reason, are no longer subject to
purchase pursuant to an Option granted under the Plan, and shares from time to
time rendered in payment of the exercise price of Options, may be made subject
to additional Options granted pursuant to the Plan. The Committee may adjust
the number of shares available for Options, the number of shares subject to and
the exercise price of Options granted hereunder to effect a change in
capitalization of the Company, such as a stock dividend, stock split, reverse
stock split, share combination, exchange of shares, merger, consolidation,
reorganization, liquidation, or the like, of or by the Company.
5. Grant of Options. Options granted hereunder shall be evidenced by
written stock option agreements containing such terms and provisions as are
recommended and approved from time to time by the Committee, but subject to and
not more favorable than the terms of the Plan. The Committee may from time to
time require additional terms which the Committee deems necessary or advisable.
The Company shall execute stock option agreements upon instruction from the
Committee.
6. Amount of Stock Subject to Options. The number of shares of Common
Stock subject to an Option to be granted to a Participant shall be determined by
the Committee in its sole discretion.
7. Option Exercise Price. The purchase price of Common Stock subject to
an Option shall be determined by the Committee on the date of grant and may be
equal to, less than or greater than the fair market value of the Common Stock on
the date of grant.
8. Restrictions. The Committee may, but need not, at the time of
granting of an Option or at any subsequent time impose such restrictions, if
any, on issuance, voluntary disposition and release from escrow of any Options
including, without limitation, permitting exercise of Options only in
installments over a period of years.
9. Payment. Full payment for Common Stock purchased upon the exercise of
an Option shall be made at the time of exercise. No Common Stock shall be
issued until full payment has been made and a Participant shall have none of the
rights of a shareholder until shares of Common Stock are issued to him. Any
federal, state or local taxes required to be paid or withheld at the time of
exercise shall also be paid or withheld in full prior to any delivery of shares
of Common Stock upon exercise. Payment may be made in cash, in shares of Common
Stock then owned by the Participant, or in any other form of valid
consideration, or a combination of any of the
-2-
<PAGE>
foregoing, as required by the Committee in its discretion. Shares of Common
Stock tendered in payment of the exercise price of any Options may be reissued
to the Participant who tendered the shares of Common Stock as part of the shares
of Common Stock issuable upon exercise of other Options granted from time to
time pursuant to the Plan.
10. Transferability of Options. Options granted under the Plan may be
transferred by the holder thereof upon five days prior written notice to the
Company.
11. Time of Granting an Option. The grant of an Option pursuant to the
Plan shall be deemed to have occurred when the Stock Option Committee shall have
adopted a resolution approving such grant.
12. Rights in Event of Death or Disability of Participant. The Committee
shall have discretion to include in each Option agreement such provisions
regarding exercisability of the Options following the death or disability of the
Participant as it, in its sole discretion, deems to be appropriate.
13. Stock Purchased for Investment. At the discretion of the Committee,
any Option agreement may provide that the Option holder shall, by accepting an
Option, represent and agree on behalf of himself and his transferees by will or
the laws of descent and distribution that all shares of Common Stock purchased
upon the exercise of the Option will be acquired for investment and not for
resale or distribution, and that upon each exercise of any portion of an Option,
the person entitled to exercise the same shall furnish evidence satisfactory to
the Company (including a written and signed representation) to the effect that
the shares of Common Stock are being acquired in good faith and for investment
and not for resale or distribution.
14. Termination of Option Rights and Awards. The Committee may provide in
each Option agreement for the circumstances under which Options granted
hereunder may terminate for any reason that the Committee, in its sole
discretion, deems to be appropriate.
15. Amendment or Discontinuation. The Plan may be amended, altered or
discontinued by the Board without approval of the stockholders. In the event
any law, or any rule or regulation issued or promulgated by the Internal Revenue
Service, Securities and Exchange Commission, National Association of Securities
Dealers, Inc., any stock exchange upon which the Common Stock is listed for
trading or other governmental or quasi-governmental agency having jurisdiction
over the Company, its Common Stock or the Plan requires the Plan to be amended,
the Plan will be amended at that time and all Options then outstanding will be
subject to such amendment.
16. Employment. This Plan and any Option granted under this Plan do not
confer upon the Participant any right to be employed or to continue employment
with the Company.
-3-
<PAGE>
17. No Obligation to Exercise Option. The granting of an Option pursuant
to the Plan shall not impose any obligation upon the Participant to exercise
such Option.
18. Termination. Unless sooner terminated by action of the Board, the
Plan shall terminate on March 31, 2002, and no Options may be granted pursuant
to the Plan after such date.
19. Use of Proceeds. The proceeds derived from the sale of stock pursuant
to Options granted under the Plan shall constitute general funds of the Company.
20. Effective Date of the Plan. The Plan, as originally adopted, was
effective as of the first day of April, 1992. The Plan, as amended and
restated, shall be effective as of the 11th day of September, 1995.
STERLING SOFTWARE, INC.
Dated: As of September 11, 1995 By: /S/ Sterling L. Williams
---------------------------------
Sterling L. Williams
President and
Chief Executive Officer
-4-
