<PAGE>
As filed with the Securities and Exchange Commission on September 12, 1996.
Registration No. 333-
================================================================================
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)
----------------
Don J. McDermett, Jr., Esq. 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
(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>
=============================================================================================
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)
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.10 per share.. 4,478 $64.75 $289,951 $100
=============================================================================================
</TABLE>
(1) Represents shares issuable in connection with the exercise of options
available for grant under the Sterling Software, Inc. 1992 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 the exercise of 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 225,301 SHARES OF THE REGISTRANT'S
COMMON STOCK COVERED BY REGISTRATION STATEMENT NO. 33-64073.
================================================================================
<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
229,779 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 229,779 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 ("Optionholders") pursuant to the provisions of the Sterling Software,
Inc. 1992 Non-Statutory Stock Option Plan (the "Plan"). 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.
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 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.
PLAN OF DISTRIBUTION
The Shares may be issued to the Optionholders from time to time by the
Company upon exercise of Options. The Company will pay all of the expenses
incident to the offering hereby.
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.
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.
-3-
<PAGE>
Annex A
-------
STERLING SOFTWARE, INC.
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 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
A-1
<PAGE>
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 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.
A-2
<PAGE>
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.
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
A-3
<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
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<TABLE>
<CAPTION>
Page
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<S> <C>
Available Information............ 2
Incorporation of Certain
Documents by Reference........ 2
The Company...................... 3
Use of Proceeds.................. 3
Plan of Distribution............. 3
Legal Matters.................... 3
Experts.......................... 3
Forward-Looking Information...... 3
Annex A -- Sterling Software, Inc.
1992 Non-Statutory Stock Option
Plan.......................... A-1
</TABLE>
229,779 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. 1992 Non-Statutory Stock Option Plan
(previously filed as Exhibit 99.1 to the Company's Registration
Statement (Registration No. 33-64073) 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;
II-2
<PAGE>
(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; 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. 1992 Non-Statutory Stock Option Plan
(previously filed as Exhibit 99.1 to the Company's Registration
Statement (Registration No. 33-64073) 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 1992 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 1992 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. 1992 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. 1992 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 Phillip 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
