<PAGE>
As filed with the Securities and Exchange Commission on September 12, 1996.
Registration No. 333-
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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 75-187395
(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)
----------------
Don J. McDermett, Jr. With a copy to:
Vice President, Legal
Sterling Software, Inc. James E. O'Bannon
8080 North Central Expressway, Suite 1100 Jones, Day, Reavis & Pogue
Dallas, Texas 75206 2300 Trammell Crow Center
(214) 891-8600 2001 Ross Avenue
Dallas, Texas 75201
(Name, address, including zip code, and (214) 220-3939
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
================================================================================
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to to be Price per Offering Registration
be Registered Registered (1) Share Price Fee (2)
- --------------------------------------------------------------------------------
Common Stock, par value
$0.10 per share........... 4,478 $64.75 $289,951 $100
================================================================================
(1) Represents shares issuable in connection with the exercise of options
available for grant under the Sterling Software, Inc. Non-Statutory Stock
Option Plan (the "Plan"). Pursuant to Rule 416, there are also registered
hereunder such indeterminate number of additional shares as may become
subject to awards under the Plan as a result of the antidilution provisions
contained therein.
(2) The registration fee has been computed in accordance with Rule 457(h).
Pursuant to Rule 457(h)(3), the registration fee has been calculated on the
basis of a single fee with respect to the shares issuable in connection
with options granted under the Plan and the resale of such shares.
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 439,921 SHARES OF THE REGISTRANT'S
COMMON STOCK COVERED BY REGISTRATION STATEMENT NO. 33-59107.
================================================================================
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification of these securities under the securities laws
of any such State.
Subject to Completion, Dated September 12, 1996
PROSPECTUS
444,399 SHARES
STERLING SOFTWARE, INC.
Common Stock
This Prospectus relates to the offer and sale by Sterling Software, Inc.
("Sterling Software" or the "Company") of up to 444,399 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 to eligible
persons pursuant to the provisions of the Sterling Software, Inc. Non-Statutory
Stock Option Plan (the "Plan") and which may be offered and sold from time to
time by such persons or permitted transferees (the "Selling Stockholders").
This Prospectus also relates to such indeterminate number of additional shares
of Common Stock as may become subject to awards under the Plan as a result of
the antidilution provisions contained therein. A copy of the Plan is attached
as Annex A to this Prospectus.
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 September 9, 1996, the closing price of the Common Stock on the NYSE was
$64.75. The Company will pay all expenses in connection with this offering,
which are estimated to be approximately $7,600.
----------------
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 September __, 1996.
<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. The Commission maintains a Web site
that contains reports, proxy and information statements and other information
regarding registrants that file electronically with the Commission and that is
located at http://www.sec.gov. Documents filed by the Company can also be
inspected at the offices of the NYSE, 20 Broad Street, New York, New York
10005, on which exchange the Common Stock is 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 issuable pursuant to the Plan and 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 (i)
the Company's Annual Report on Form 10-K for the fiscal year ended September 30,
1995, as amended by the Company's Form 10-K/A filed January 29, 1996; (ii) the
Company's Quarterly Reports on Form 10-Q for the periods ended December 31,
1995, March 31, 1996 and June 30, 1996; (iii) the Company's Current Reports on
Form 8-K dated October 31, 1995, January 4, 1996, March 7, 1996 and May 29,
1996; and (iv) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A (Registration No. 0-108465), 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 herein or 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: Don J. McDermett, Jr.,
Vice President, Legal (telephone: (214) 891-8600).
-2-
<PAGE>
THE COMPANY
Sterling Software is a recognized worldwide supplier of software
products and services within the 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 an aggregate
of up to 444,399 Shares, plus such indeterminate number of additional shares as
may become subject to awards under the Plan as a result of the antidilution
provisions contained therein, 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 following table 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.
<TABLE>
<CAPTION>
COMMON STOCK COMMON STOCK
OWNERSHIP OWNERSHIP AFTER
PRIOR TO OFFERING(1)(2) THE OFFERING (2)
NAME AND POSITION ----------------------- COMMON STOCK --------------------
- --------------------------------- NUMBER PERCENTAGE OFFERED HEREBY NUMBER PERCENTAGE
------ ---------- -------------- ------ ----------
<S> <C> <C> <C> <C> <C>
Werner L. Frank 133,547 (3) * 69,700 63,847 *
Executive Vice President,
Business Development
Jeannette P. Meier 51,253 (4) * 47,775 3,478 *
Executive Vice President,
Secretary and General Counsel
Sterling L. Williams 184,000 (5) * 180,000 4,000 *
President, Chief Executive
Officer and Director
- -----------------
</TABLE>
* Less than 1% of class.
(1) Based on ownership as of August 31, 1996.
(2) Based on 37,506,211 shares of Common Stock issued and outstanding as of
August 31, 1996. The number of shares shown includes outstanding shares
owned by such person(s) indicated on August 31, 1996 and shares underlying
options owned by such person(s) on such date. The percent of class is
computed giving effect to the exercise by such person(s) of such options.
(3) Includes 69,700 Shares to be acquired upon exercise of Options granted under
the Plan.
(4) Includes 47,775 Shares to be acquired upon exercise of Options granted under
the Plan, and 2,225 shares of Common Stock to be acquired upon exercise of
options granted under the Sterling Software, Inc. Incentive Stock Option
Plan.
(5) Includes 180,000 Shares to be acquired upon exercise of Options granted
under the Plan.
-3-
<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 and an employee of the Company.
EXPERTS
The consolidated financial statements and financial statement schedule
appearing in the Company's Annual Report on Form 10-K for the year ended
September 30, 1995, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon included therein and incorporated
herein by reference. Such consolidated financial statements and financial
statement schedule are incorporated herein by reference in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing.
-4-
<PAGE>
FORWARD-LOOKING INFORMATION
This Prospectus (including the documents incorporated herein by reference)
contains certain forward-looking statements and information relating to the
Company that are based on the beliefs of the Company's management as well as
assumptions made by and information currently available to the Company's
management. When used in this Prospectus, words such as "anticipate,"
"believe," "estimate," "expect," "intend" and similar expressions, as they
relate to the Company or the Company's management, identify forward-looking
statements. Such statements reflect the current views of the Company with
respect to future events and are subject to certain risks, uncertainties and
assumptions, relating to the operations and results of operations of the
Company, competitive factors and pricing pressures, shifts in market demand, the
performance and needs of the industries served by the Company, the costs of
product development, general economic conditions and acts by third parties, as
well as the other factors described in this Prospectus. Should one or more of
these risks or uncertainties materialize, or should underlying assumptions prove
incorrect, actual results or outcomes may vary materially from those described
herein as anticipated, believed, estimated, expected or intended.
-5-
<PAGE>
Annex A
-------
STERLING SOFTWARE, INC.
NON-STATUTORY STOCK OPTION PLAN
(AS AMENDED, THROUGH JUNE 15, 1995)
1. Purpose. The purpose of the Non-Statutory Stock Option Plan of Sterling
Software, Inc. (the "Plan") is to provide key employees and 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 key employees
and advisors who share primary responsibility for the management, growth and
protection of the business of the Company;
b. Recognize the contributions made by certain key employees and advisors
to the Company's growth during its development stage;
c. Furnish an incentive to such key employees and advisors to continue
their services for the Company; and
d. Provide a means through which the Company may attract able persons to
engage as key employees and advisors.
With respect to persons subject to Section 16 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), transactions under the Plan are
intended to comply with all applicable conditions of Rule 16b-3 or its
successors under the Exchange Act. To the extent that any provision of the Plan
or action by the Committee (as defined in Section 2) fails to so comply, it
shall be deemed null and void, to the extent permitted by law and deemed
advisable by the Committee.
2. Administration. With respect to Participants who are directors or
executive officers of the Company ("Insiders"), the Plan shall be administered
in accordance with the requirements of Rule 16b-3 of the Exchange Act by a
committee (the "16b-3 Committee") consisting of such number of directors as are
appointed by the Board of Directors of the Company (the "Board of Directors" or
"Board") from time to time in accordance with the requirements of Rule 16b-3.
With respect to all other Participants, the Plan shall be administered by the
Board or by a committee (the "Stock Option Committee") consisting of not less
than two directors of the Company appointed by the Board. As used herein,
"Committee" shall mean (i) with respect to decisions relating to Insiders, the
16b-3 Committee, and (ii) with respect to decisions relating to all other
Participants, the Stock Option Committee. Except as otherwise provided by the
terms of this Plan or by the Board, the Committee shall have all the power and
authority of the Board hereunder.
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.
Non-employee members of the Board ("non-employee directors") shall not be
eligible to receive Options under the Plan except as expressly provided in
Section 21.
A-1
<PAGE>
3. Participants. The Committee may, from time to time, select particular
key employees and advisors 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 key employees and advisors shall become Participants in the Plan. As
used herein, the term "Participant" means a key employee or 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.
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 maximum aggregate number of shares of Common Stock that may be issued from
time to time pursuant to the Plan shall be 4,875,000; provided that 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. Maximum Amount of Stock Subject to Options. Subject to Section 21, the
maximum aggregate fair market value (determined as of the time the Option is
granted) of the Common Stock for which any Participant may be granted Options in
any calendar year shall be determined by the Committee in its discretion.
7. Option Exercise Price. The purchase price of Common Stock subject to an
Option granted pursuant to the Plan shall be no less 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 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. Except as may be agreed upon by the
Committee in accordance with the following two paragraphs, Options granted under
the Plan shall not be transferable other than by will or the laws of descent and
distribution, or pursuant to a qualified domestic relations order, as defined by
the Internal Revenue Code of 1986, as amended (the "Code"), or Title I of the
Employee Retirement Income Security Act ("ERISA"), or the rules thereunder. The
designation by the holder of an Option of a beneficiary shall not constitute a
transfer of the Option.
A-2
<PAGE>
The Committee shall have the discretion to include in (or amend to include
in) any Option agreement held by a Participant who is not an Insider such
provisions regarding transferability of the Options as the Committee, in its
sole discretion, deems to be appropriate.
The Committee shall have the discretion to include in (or amend to include
in) any Option agreement held by a Participant who is an Insider (other than a
non-employee director) a provision permitting such Participant's Option to be
transferred by the Participant to members of the Participant's immediate family,
trusts for the benefit of such immediate family members and partnerships in
which such immediate family members are the only partners, provided that there
cannot be any consideration for the transfer.
11. Time of Granting of 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. 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 appropriate.
14. 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.
15. Amendment or Discontinuation. The Plan may be amended, altered or
discontinued by the Board or, if the Board has specifically delegated this
authority to the Committee, by the Committee, 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.
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 or, if the
Board has specifically delegated its authority to terminate the Plan to the
Committee, by the Committee, the Plan shall terminate on December 31, 2011, 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 shall be effective, as amended, on
June 15, 1995.
A-3
<PAGE>
21. Automatic Grants to Non-Employee Directors. Grants to non-employee
directors on or after the date hereof shall be solely pursuant to the following
formula: each non-employee director elected or appointed to the Board will
receive, at the time of his or her initial election or appointment, an automatic
grant of Options to purchase 40,000 shares of Common Stock. In addition, during
the term of this Plan, each non-employee director will receive an additional
automatic grant of Options to purchase 40,000 shares of Common Stock every five
years on the anniversary date of his or her initial election or appointment to
the Board, beginning on the fifth anniversary of his or her initial election or
appointment to the Board; provided that such non-employee director has served
continuously as a director of the Company since the date of his or her initial
election or appointment to the Board. The exercise price of each such Option
will be equal to the fair market value of the Common Stock on the date of grant.
Each such Option will become exercisable in cumulative annual installments of
one-fourth of the shares covered by the grant, commencing one year after the
date of grant, and will expire five years from the date of grant; provided that
each such Option will become immediately exercisable with respect to 100% of the
shares covered by the grant in the event of a change of control. A change of
control is deemed to occur (i) when any person, other than Sam Wyly or Charles
J. Wyly, Jr., or an affiliate of either of them, becomes the beneficial owner of
securities of the Company representing 20% or more of the combined voting power
of the Company's outstanding securities, (ii) if, during any three consecutive
years, individuals who constitute the Board of Directors at the beginning of
such period cease to constitute a majority of the Board of Directors or (iii)
upon the occurrence of any event that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the
Exchange Act. This section shall not be amended more than once in any six-month
period, other than to comport with changes in the Code or ERISA, or the rules
thereunder.
STERLING SOFTWARE, INC.
By: /s/ Sterling L. Williams
------------------------------------
Sterling L. Williams
President and Chief Executive Officer
A-4
<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................ 4
Legal Matters....................... 4
Experts............................. 4
Forward-Looking Information......... 5
Annex A -- Sterling Software, Inc.
Non-Statutory Stock Option
Plan............................. A-1
</TABLE>
444,399 SHARES
STERLING SOFTWARE,
INC.
COMMON STOCK
--------------------------------
PROSPECTUS
---------------------------------
SEPTEMBER __, 1996
<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 Company, are as follows:
<TABLE>
<CAPTION>
<S> <C>
Securities and Exchange Commission filing fee.. $ 100
NYSE listing fee............................... 1,500
Printing expenses.............................. 1,000
Accounting fees and expenses................... 1,500
Legal fees and expenses........................ 2,500
Miscellaneous.................................. 1,000
------
Total.......................................... $7,600
======
</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.
As authorized by the Company's Certificate of Incorporation, the Company has
entered into indemnification agreements with each of its directors and officers.
These indemnification agreements provide for, among other things, (i) the
indemnification by the Company of the indemnitees thereunder to the extent
described above, (ii) the advancement of attorneys' fees and other expenses, and
(iii) the establishment, upon approval by the Board, of trusts or other funding
mechanisms to fund the Company's indemnification obligations thereunder.
ITEM 16. EXHIBITS
4.1 Certificate of Incorporation of the Company (previously filed as
Exhibit 4.1 to the Company's Registration Statement (Registration No.
33-59107) and incorporated herein by reference).
4.2 Certificate of Amendment of Certificate of Incorporation of the
Company (previously filed as Exhibit 4.2 to the Company's
Registration Statement (Registration No. 33-59107) and incorporated
herein by reference).
4.3 Certificate of Amendment of Certificate of Incorporation of the
Company (previously filed as Exhibit 4.3 to the Company's
Registration Statement (Registration No. 33-59107) and incorporated
herein by reference).
II-1
<PAGE>
4.4 Certificate of Amendment of Certificate of Incorporation of the
Company (previously filed as Exhibit 4.4 to the Company's
Registration Statement (Registration No. 33-59107) and incorporated
herein by reference).
4.5 Restated Bylaws of the Company (previously filed as Exhibit 4.4 to
the Company's Registration Statement (Registration No. 33-47131) and
incorporated herein by reference).
4.6 Specimen Common Stock Certificate (previously filed as Exhibit 4.5 to
the Company's Registration Statement (Registration No. 2-86825) and
incorporated herein by reference).
5.1 Form of opinion of Jones, Day, Reavis & Pogue (filed herewith).
23.1 Consent of Ernst & Young LLP (filed herewith).
23.2 Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5.1).
24.1 Power of Attorney of the Company (filed herewith).
24.2 Powers of Attorney of certain officers and directors of the Company
(filed herewith).
99.1 Sterling Software, Inc. Non-Statutory Stock Option Plan (previously
filed as Exhibit 99.2 to the Company's Registration Statement
(Registration No. 33-62059) and incorporated herein by reference).
ITEM 17. UNDERTAKINGS
A. 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 this Registration Statement or
any material change to such information in this 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
II-2
<PAGE>
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof; and
(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 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 this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
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-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 September 10, 1996.
STERLING SOFTWARE, INC.
By: /s/ Sterling L. Williams
------------------------------------
Sterling L. Williams
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on September 10, 1996.
<TABLE>
<CAPTION>
Signatures Title
---------- -----
<S> <C>
/s/ Sterling L. Williams President and Chief Executive Officer; Director
- ---------------------------- (Principal Executive Officer)
Sterling L. Williams
Jeannette P. Meier * Executive Vice President, Chief Financial
- ---------------------------- Officer, General Counsel and Secretary
Jeannette P. Meier (Principal Financial and Accounting Officer)
Chairman of the Board of Directors
- ----------------------------
Sam Wyly
Charles J. Wyly, Jr. * 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 * Executive Vice President and Director
- ----------------------------
Phillip A. Moore
Donald R. Miller, Jr. * Director
- ----------------------------
Donald R. Miller, Jr.
Francis A. Tarkenton * Director
- ----------------------------
Francis A. Tarkenton
</TABLE>
*The undersigned, by signing his 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 filed herewith.
/s/ Don J. McDermett, Jr.
------------------------------------
Don J. McDermett, Jr.
Attorney-in-Fact
II-4
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Description
- ----------- -----------
4.1 Certificate of Incorporation of the Company (previously filed as
Exhibit 4.1 to the Company's Registration Statement (Registration
No. 33-59107) and incorporated herein by reference).
4.2 Certificate of Amendment of Certificate of Incorporation of the
Company (previously filed as Exhibit 4.2 to the Company's
Registration Statement (Registration No. 33-59107) and
incorporated herein by reference).
4.3 Certificate of Amendment of Certificate of Incorporation of the
Company (previously filed as Exhibit 4.3 to the Company's
Registration Statement (Registration No. 33-59107) and
incorporated herein by reference).
4.4 Certificate of Amendment of Certificate of Incorporation of the
Company (previously filed as Exhibit 4.4 to the Company's
Registration Statement (Registration No. 33-59107) and
incorporated herein by reference).
4.5 Restated Bylaws of the Company (previously filed as Exhibit 4.4
to the Company's Registration Statement (Registration No. 33-
47131) and incorporated herein by reference).
4.6 Specimen Common Stock Certificate (previously filed as Exhibit
4.5 to the Company's Registration Statement (Registration No. 2-
86825) and incorporated herein by reference).
5.1 Form of opinion of Jones, Day, Reavis & Pogue (filed herewith).
23.1 Consent of Ernst & Young LLP (filed herewith).
23.2 Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5.1).
24.1 Power of Attorney of the Company (filed herewith).
24.2 Powers of Attorney of certain officers and directors of the
Company (filed herewith).
99.1 Sterling Software, Inc. Non-Statutory Stock Option Plan
(previously filed as Exhibit 99.2 to the Company's Registration
Statement (Registration No. 33-62059) and incorporated herein by
reference).
II-5
<PAGE>
Exhibit 5.1
-----------
[Form of Opinion]
September __, 1996
Sterling Software, Inc.
8080 North Central Expressway
Suite 1100
Dallas, Texas 75206
Re: Registration Statement on Form S-3 relating to 4,478 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 4,478 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 Non-Statutory Stock Option Plan (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,
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 of Sterling Software, Inc., related to registration
of 4,478 shares of common stock issuable under the Non-Statutory Stock Option
Plan and to the incorporation by reference therein of our report dated November
16, 1995 with respect to the consolidated financial statements and schedule of
Sterling Software, Inc. included in its Annual Report (Form 10-K) for the year
ended September 30, 1995, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Dallas, Texas
September 11, 1996
<PAGE>
Exhibit 24.1
------------
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 Don J. McDermett, Jr., Mark H. Kleinman, Robert L.
Estep, James E. O'Bannon and Michael C. Gibbs the true and lawful attorney-in-
fact, with full power of substitution and resubstitution, for the Corporation to
sign on the Corporation's behalf one or more Registration Statements on Form S-3
or any other appropriate form (collectively, the "Registration Statement"), for
the purpose of registering, pursuant to the Securities Act of 1933, as amended,
shares of Common Stock, par value $0.10 per share, of the Corporation issuable
in connection with the exercise of options granted or available for grant under
the Sterling Software, Inc. Non-Statutory Stock Option Plan and the resale of
such shares, and to sign any or all amendments and any or all post-effective
amendments to the 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: September 10, 1996
<PAGE>
Exhibit 24.2
------------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes and
appoints Don J. McDermett, Jr., Mark H. Kleinman, Robert L. Estep, James E.
O'Bannon and Michael C. Gibbs the true and lawful attorney-in-fact, with full
power of substitution and resubstitution, for him or her and in his or her name,
place and stead, to sign on his or her behalf, as a director or officer, or
both, as the case may be, of Sterling Software, Inc., a Delaware corporation
(the "Corporation"), one or more Registration Statements on Form S-3 or any
other appropriate form (collectively, the "Registration Statement"), for the
purpose of registering, pursuant to the Securities Act of 1933, as amended,
shares of Common Stock, par value $0.10 per share, of the Corporation issuable
in connection with the exercise of options granted or available for grant under
the Sterling Software, Inc. Non-Statutory Stock Option Plan and the resale of
such shares, and to sign any or all amendments and any or all post-effective
amendments to the 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: September 10, 1996
/s/ Sterling L. Williams /s/ Robert J. Donachie
- ---------------------------- ---------------------------
Sterling L. Williams Robert J. Donachie
/s/ Jeannette P. Meier /s/ Phillip A. Moore
- ---------------------------- ---------------------------
Jeannette P. Meier Philip A. Moore
/s/ Donald R. Miller, Jr.
- ---------------------------- ---------------------------
Sam Wyly Donald R. Miller, Jr.
/s/ Charles J. Wyly, Jr. /s/ Francis A. Tarkenton
- ---------------------------- ---------------------------
Charles J. Wyly, Jr. Francis A. Tarkenton
/s/ Evan A. Wyly
- ----------------
Evan A. Wyly
/s/ Michael C. French
- ---------------------
Michael C. French
