<PAGE>
As filed with the Securities and Exchange Commission on February , 1996.
Registration No. 33-64073
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------
STERLING SOFTWARE, INC.
(Exact name of registrant as specified in its charter)
Delaware 75-1873956
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
8080 North Central Expressway
Suite 1100
Dallas, Texas 75206
(214) 891-8600
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
----------------
Jeannette P. Meier, Esq. With a copy to:
Executive Vice President,
Secretary and General Counsel Robert L. Estep, Esq.
Sterling Software, Inc. Jones, Day, Reavis & Pogue
8080 North Central Expressway 2300 Trammell Crow Center
Suite 1100 2001 Ross Avenue
Dallas, Texas 75206 Dallas, Texas 75201
(214) 891-8685 (214) 220-3939
(Name, address, including zip code, and
telephone number, including area code,
of agent for service)
----------------
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following
box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]__________.
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]__________.
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
----------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(a), MAY
DETERMINE.
IN ACCORDANCE WITH RULE 429 UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
THE PROSPECTUS CONTAINED HEREIN ALSO RELATES TO (I) 350,000 SHARES OF THE
REGISTRANT'S COMMON STOCK COVERED BY REGISTRATION STATEMENT NO. 33-62057, (II)
1,110,000 SHARES OF THE REGISTRANT'S COMMON STOCK COVERED BY REGISTRATION
STATEMENT NO. 33-56683, AND (III) 1,200,478 SHARES OF THE REGISTRANT'S COMMON
STOCK COVERED BY REGISTRATION STATEMENT NO. 33-53831.
================================================================================
<PAGE>
Subject to Completion, Dated February , 1996
PROSPECTUS
2,985,678 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 2,985,678 shares (the "Shares")
of the Company's common stock, par value $0.10 per share (the "Common Stock"),
issuable by the Company upon exercise of options ("Options") granted or to be
granted from time to time to eligible persons pursuant to the provisions of the
Company's 1992 Non-Statutory Stock Option Plan (as amended, the "Plan") and
which may be offered and sold from time to time by such persons or permitted
transferees (the "Selling Stockholders").
Sales by the Selling Stockholders may be made on one or more exchanges,
including the New York Stock Exchange (the "NYSE"), or in the over the counter
market, or in negotiated transactions, in each case at prices and at terms then
prevailing or at prices related to the then current market price or at
negotiated prices and terms. Upon any sale of the Shares offered hereby, the
Selling Stockholders and participating agents, brokers or dealers may be deemed
to be underwriters as that term is defined in the Securities Act of 1933, as
amended (the "Securities Act"), and commissions or discounts or any profit
realized on the resale of such securities may be deemed to be underwriting
commissions or discounts under the Securities Act. See "Plan of Distribution."
The Common Stock is listed for trading on the NYSE under the symbol "SSW."
On February , 1996, the closing price of the Common Stock on the NYSE was
$ . The Company will pay all expenses in connection with this offering,
which are estimated to be approximately $25,000.
----------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
----------------
The date of this Prospectus is , 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. Documents filed by the Company can
also be inspected at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005, on which exchange certain of the Company's
securities are listed.
This Prospectus constitutes a part of a Registration Statement filed by the
Company with the Commission under the Securities Act relating to the securities
offered hereby. This Prospectus omits certain of the information contained in
the Registration Statement, and reference is hereby made to the Registration
Statement and to the exhibits relating thereto for further information with
respect to the Company and the securities offered hereby. Any statements
contained herein concerning the provisions of any document are not necessarily
complete, and in each instance reference is made to the copy of such document
filed as an exhibit to the Registration Statement or otherwise filed with the
Commission. Each such statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference into this Prospectus (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 Report on Form 10-Q for the fiscal quarter ended
December 31, 1995, (iii) the Company's Current Report on Form 8-K dated
January 4, 1996, (iv) the Company's Current Report on Form 8-K dated
December 20, 1995 and (v) the description of the Company's Common Stock
contained in the Company's Registration Statement on Form 8-A, filed March 7,
1990.
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act, prior to the termination of the offering
made hereby, shall be deemed incorporated by reference in this Prospectus and to
be a part of this Prospectus from the date of the filing of such reports.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
Any person receiving a copy of this Prospectus may obtain, without charge,
upon written or oral request, a copy of any of the documents incorporated by
reference herein, except for the exhibits to such documents (other than the
exhibits expressly incorporated in such documents by reference). Requests
should be directed to: Sterling Software, Inc., 8080 N. Central Expressway,
Suite 1100, Dallas, Texas 75206, Attention: Jeannette P. Meier, Executive Vice
President, Secretary and General Counsel (telephone: (214) 891-8600).
- 2 -
<PAGE>
THE COMPANY
Sterling Software is a recognized worldwide supplier of software products
and services within the electronic commerce, enterprise systems and applications
management software markets and also provides technical professional services to
certain sectors of the federal government. The Company's principal executive
offices are located at 8080 N. Central Expressway, Suite 1100, Dallas, Texas
75206, and the Company's telephone number at such address is (214)
891-8600.
RECENT DEVELOPMENTS
Proposed Subsidiary Initial Public Offering. On December 20, 1995,
Sterling Commerce, Inc. ("SCI"), a wholly owned subsidiary of the Company, filed
a Registration Statement on Form S-1 with the Commission for the purpose of
effecting an initial public offering (the "SCI Offering") of up to 13,800,000
shares (the "SCI Shares") of common stock, par value $.01 per share, of SCI
("SCI Common Stock"). SCI has preliminarily estimated that the initial public
offering price will be between $20.00 and $22.00 per share. In the SCI Offering,
up to 12,000,000 SCI Shares are to be sold by the Company and 1,800,000 SCI
Shares are to be sold by SCI. Following completion of the SCI Offering as
presently contemplated, the Company would own approximately 84.0% of the
outstanding SCI Common Stock (approximately 81.6% if the over-allotment options
to be granted by Sterling Software to the underwriters are exercised in full).
The SCI Offering is expected to be completed in the second quarter of fiscal
1996.
Proposed Distribution. Following the completion of the SCI Offering, the
Company intends to distribute pro rata to its stockholders as a dividend the
remaining shares of SCI Common Stock then owned by it by means of a tax-free
distribution (the "Distribution"). The Distribution will be subject to certain
conditions, including (i) approval by the Company's stockholders of both the
Distribution and a new stock option plan of the Company under which the total
number of shares of Common Stock available for issuance will be not less than
20% of the total number of such shares then outstanding and (ii) the declaration
by the Company's Board of Directors of a dividend of the shares of SCI Common
Stock then owned by the Company. Such declaration will be conditioned upon the
receipt of a favorable ruling from the Internal Revenue Service (the "IRS") as
to the tax-free nature of the Distribution and the absence of any change in
market conditions or other circumstances that would cause the Company's Board of
Directors to conclude that the Distribution is not in the best interests of the
Company's stockholders. The Company has applied to the IRS for a ruling as to
the tax-free nature of the Distribution. The Company presently anticipates that
the Distribution will occur prior to September 30, 1996.
Sterling Software incorporated SCI as a Delaware corporation in December
1995. In contemplation of the SCI Offering, among other things, (i) Sterling
Software will cause to be transferred to SCI all of the issued and outstanding
shares of capital stock of the subsidiaries through which SCI will conduct its
business, which subsidiaries include all of the subsidiaries comprising Sterling
Software's Electronic Commerce Group, (ii) Sterling Software will cause to be
transferred to SCI certain assets relating to the electronic commerce business
conducted by Sterling Software's International Group and certain assets relating
to the electronic commerce business conducted by Sterling Software's Federal
Systems Group, and (iii) SCI will enter into contractual arrangements with
Sterling Software related to space sharing, tax allocations, international
marketing and certain services.
Proposed Acceleration of Employee Stock Options. In connection with the
proposed SCI Offering, the Company has approved the acceleration of
substantially all outstanding options granted under the Company's existing stock
option plans (including the Plan), effective as of the completion of the SCI
Offering. If all options and warrants to purchase Common Stock outstanding at
January 31, 1996 were exercised, an additional 8,512,000 shares of Common Stock
would be issued and outstanding, with resulting proceeds to the Company of
approximately $269,710,000. There can be no assurance, however, as to whether or
when any of such options or warrants will be exercised.
Redemption of 5.75% Convertible Subordinated Debentures. On December 20,
1995, Sterling Software gave notice of the redemption of all of the $114,922,000
then outstanding principal amount of its 5.75% Convertible Subordinated
Debentures due February 1, 2003 (the "Debentures") issued pursuant to the
Indenture, dated as of February 2, 1993, between Sterling Software and Bank of
America Texas, National Association, as trustee. The effective date of the
redemption was February 12, 1996. The Debentures were convertible into shares of
Common Stock. Approximately $114,912,000 principal amount of the Debentures was
presented for conversion. In addition, approximately $78,000 principal amount of
the Debentures had been converted prior to the announcement of the redemption.
As of February 5, 1996 approximately 4,056,000 shares of Sterling Common Stock
had been issued upon conversion of the Debentures. Approximately $10,000
principal amount of Debentures was redeemed for cash on February 12, 1996.
Other. As of the date of this Prospectus, no assurance can be given that
(i) the SCI Offering will be completed or, if completed, will be completed on
the terms, including the assumed public offering price of the SCI Common Stock,
described above or (ii) each of the conditions to the Distribution will be
satisfied, including (i) approval by Sterling Software's stockholders of both
the Distribution and a new Sterling Software stock option plan under which the
total number of shares of Common Stock available for issuance will be no less
than 20% of the total number of such shares then outstanding and (ii) the
declaration by Sterling Software's Board of Directors of a dividend of the
shares of SCI Common Stock then owned by Sterling Software. As described above,
such declaration will be conditioned upon the receipt of a favorable ruling from
the IRS as to the tax-free nature of the Distribution and the absence of any
change in market conditions or other circumstances that would cause the Board of
Directors of Sterling Software to conclude that the Distribution is not in the
best interests of the stockholders of Sterling Software.
For further information regarding the Offering, the Distribution, the
proposed acceleration of the Company's stock options, the redemption of the
Debentures and related matters, including certain pro forma financial
information of the Company and SCI, see the Company's Quarterly Report on Form
10-Q for the fiscal quarter ended December 31, 1995 and the Company's Current
Report on Form 8-K dated December 20, 1995. See "Incorporation of Certain
Documents by Reference."
USE OF PROCEEDS
The proceeds from the issuance of the Shares upon exercise of Options will
be added to the Company's funds and used for general corporate purposes. The
Company will not receive any of the proceeds from the sale of Shares by the
Selling Stockholders.
SELLING STOCKHOLDERS
This Prospectus covers the purchase from the Company of up to 2,985,678
Shares, in the aggregate, by the holders of Options upon the exercise thereof in
accordance with their terms and the subsequent offer and resale of Shares
previously acquired or to be acquired by certain holders of Options upon the
exercise thereof.
The Board of Directors of the Company (the "Board") or a Stock Option
Committee appointed by the Board, subject to the provisions of the Plan, will,
among other things, determine from time to time (i) the individuals, from among
the Company's full time employees and key advisors, including directors, to whom
Options will be granted, (ii) the number of shares of Common Stock to be covered
by each Option, and (iii) the purchase price of Common Stock subject to each
Option, which may be equal to, less than or greater than the fair market value
of the Common Stock on the date of grant. Unless sooner terminated by action of
the Board, the Plan will terminate on March 31, 2002, and no Options may be
granted pursuant to the Plan after such date.
The table on the following page sets forth certain information concerning
the Common Stock owned by the Selling Stockholders and any positions, offices or
other material relationships of the Selling Stockholders with the Company.
- 3 -
<PAGE>
<TABLE>
<CAPTION>
COMMON STOCK COMMON STOCK
OWNERSHIP OWNERSHIP AFTER
PRIOR TO OFFERING (1)(2) THE OFFERING (2)
------------------------- COMMON STOCK -----------------------
NAME AND POSITION NUMBER PERCENTAGE OFFERED HEREBY NUMBER PERCENTAGE
- --------------------------------------- ---------- ------------- -------------- ---------- -----------
<S> <C> <C> <C> <C> <C>
Richard Connelly (3) 18,844 * 1,844 17,000 *
Vice President and Controller
Robert E. Cook (4) 40,209 * 30,000 10,209 *
Director
Albert K. Hoover (5) 19,440 * 11,640 7,800 *
Vice President, Assistant Secretary
and Assistant General Counsel
James E. Jenkins, Jr. (6) 19,495 * 6,969 12,526 *
Vice President, Tax and
Assistant Secretary
M. Gene Konopik (7) 136,150 * 24,350 111,800 *
Executive Vice President
Jeannette P. Meier (8) 228,020 * 24,715 203,305 *
Executive Vice President,
Secretary and General Counsel
Donald R. Miller, Jr. (9) 70,000 * 40,000 30,000 *
Director
Clive A. Smith (10) 192,938 * 24,838 168,100 *
Executive Vice President
A. Maria Smith (11) 225,000 * 60,000 165,000 *
Executive Vice President
Geno P. Tolari (12) 195,313 * 100,000 95,313 *
Executive Vice President
Anne Vahala (13) 43,188 * 12,438 30,750 *
Vice President,
Acquisitions
Sterling L. Williams (14) 1,154,000 4.2% 75,000 1,079,000 3.4%
President, Chief Executive
Officer and Director
Evan A. Wyly (15) 186,440 * 60,000 126,440 *
Vice President and Director
The Concho Trust (18) 95,000 * 30,000 65,000 *
The Arlington Trust (17) 150,000 * 150,000 0 *
The Crazy Horse Trust (18) 950,000 3.0% 550,000 400,000 1.3%
The Maroon Creek Trust (19) 250,000 * 150,000 100,000 *
The Sitting Bull Trust (20) 666,666 2.1% 483,333 183,333 *
The Lincoln Creek Trust (21) 333,334 1.1% 241,667 91,667 *
</TABLE>
- 4 -
<PAGE>
- -----------------
* Less than 1% of class.
(1) Based on ownership as of February 9, 1996. The Company has approved the
acceleration of substantially all outstanding options granted under the
Company's existing stock option plans (including the Plan) effective as of
the completion of the SCI Offering. See "Recent Developments--Proposed
Acceleration of Employee Stock Options." Upon completion of the SCI
Offering, the options (including the Options) held by the Selling
Stockholders which are not presently exercisable will become
exercisable.
(2) Based on 30,414,099 shares of Common Stock issued and outstanding as of
February 9, 1996.
(3) Includes 1,844 Shares to be acquired upon exercise of Options granted under
the Plan and 17,000 shares purchasable pursuant to options not granted
under the Plan, some of which are not exercisable within 60 days of the
date of this Prospectus.
(4) Includes 30,000 Shares to be acquired upon exercise of Options granted
under the Plan and 2,709 shares purchasable pursuant to options not granted
under the Plan (which options are held by Mr. Cook's spouse and as to which
Mr. Cook has expressly disclaimed ownership), some of which are not
exercisable within 60 days of the date of this Prospectus.
(5) Includes 11,640 Shares to be acquired upon exercise of Options granted
under the Plan and 7,800 shares purchasable pursuant to options not granted
under the Plan, some of which are not exercisable within 60 days of the
date of this Prospectus.
(6) Includes 6,969 Shares to be acquired upon exercise of Options granted under
the Plan and 12,526 shares purchasable pursuant to options not granted
under the Plan, some of which are not exercisable within 60 days of the
date of this Prospectus.
(7) Includes 24,350 Shares to be acquired upon exercise of Options granted
under the Plan and 108,000 shares purchasable pursuant to options not
granted under the Plan, some of which are not exercisable within 60 days of
the date of this Prospectus.
(8) Includes 315 Shares acquired from the previous exercise of Options granted
under the Plan, 24,400 Shares to be acquired upon exercise of Options
granted under the Plan and 194,050 shares purchasable pursuant to options
not granted under the Plan, some of which are not exercisable within 60
days of the date of this Prospectus.
(9) Includes 40,000 Shares to be acquired upon exercise of Options granted
under the Plan and 30,000 shares purchasable pursuant to options not
granted under the Plan, some of which are not exercisable within 60 days of
the date of this Prospectus.
(10) Includes 24,838 Shares to be acquired upon exercise of Options granted
under the Plan and 168,100 shares purchasable pursuant to options not
granted under the Plan, some of which are not exercisable within 60 days of
the date of this Prospectus.
(11) Includes 60,000 Shares to be acquired upon exercise of Options granted
under the Plan and 165,000 shares purchasable pursuant to options not
granted under the Plan, some of which are not exercisable within 60 days of
the date of this Prospectus.
(12) Includes 100,000 Shares to be acquired upon exercise of Options granted
under the Plan and 95,313 shares purchasable pursuant to options not
granted under the Plan, some of which are not exercisable within 60 days of
the date of this Prospectus.
(13) Includes 12,438 Shares to be acquired upon exercise of Options granted
under the Plan and 30,750 shares purchasable pursuant to options not
granted under the Plan, none of which are exercisable within 60 days of
the date of this Prospectus.
(14) Includes 75,000 Shares to be acquired upon exercise of Options granted
under the Plan and 1,075,000 shares purchasable pursuant to options not
granted under the Plan, all of which are exercisable within 60 days of the
date of this Prospectus.
(15) Includes 60,000 Shares to be acquired upon exercise of Options granted
under the Plan, none of which are exercisable within 60 days of the
date of this Prospectus, 40,000 shares purchasable pursuant to options not
granted under the Plan, some of which are not exercisable within 60 days of
the date of this Prospectus, and 33,686 shares purchasable pursuant to
warrants, all of which are exercisable within 60 days of the date of this
Prospectus.
- 5 -
<PAGE>
(16) Includes 30,000 Shares to be acquired upon exercise of Options granted
under the Plan and 65,000 shares purchasable pursuant to options not
granted under the Plan, some of which are not exercisable within 60 days of
the date of this Prospectus.
(17) Includes 150,000 Shares to be acquired upon exercise of Options granted
under the Plan, all of which are exercisable within 60 days of the date of
this Prospectus.
(18) Includes 550,000 Shares to be acquired upon exercise of Options granted
under the Plan and 400,000 shares to be acquired upon exercise of options
not granted under the Plan, all of which are exercisable within 60 days of
the date of this Prospectus.
(19) Includes 150,000 Shares to be acquired upon exercise of Options granted
under the Plan and 100,000 shares to be acquired upon exercise of options
not granted under the Plan, all of which are exercisable within 60 days of
the date of this Prospectus.
(20) Includes 483,333 Shares to be acquired upon exercise of Options granted
under the Plan and 183,333 shares to be acquired upon exercise of options
not granted under the Plan, none of which are exercisable within 60 days of
the date of this Prospectus.
(21) Includes 241,667 Shares to be acquired upon exercise of Options granted
under the Plan and 91,667 shares to be acquired upon exercise of options
not granted under the Plan, none of which are exercisable within 60 days of
the date of this Prospectus.
- 6 -
<PAGE>
PLAN OF DISTRIBUTION
The Shares may be issued to the Selling Stockholders from time to time by the
Company upon exercise of Options. The Shares may be sold or otherwise disposed
of from time to time by any of the Selling Stockholders in one or more
transactions through any one or more of the following: (i) to purchasers
directly, (ii) in ordinary brokerage transactions and transactions in which the
broker solicits purchasers, (iii) through underwriters or dealers who may
receive compensation in the form of underwriting discounts, concessions or
commissions from the Selling Stockholders or from the purchasers of the Shares
for whom they may act as agent, (iv) the writing of options on the Shares, (v)
the pledge of the Shares as security for any loan or obligation, including
pledges to brokers or dealers who may, from time to time, themselves effect
distributions of the Shares or interests therein, (vi) purchases by a broker or
dealer as principal and resale by such broker or dealer for its own account
pursuant to this Prospectus, (vii) a block trade in which the broker or dealer
so engaged will attempt to sell the Shares as agent but may position and resell
a portion of the block as principal to facilitate the transaction and (viii) an
exchange distribution in accordance with the rules of such exchange, including
the NYSE, or in transactions in the over the counter market. Such sales may be
made at prices and at terms then prevailing or at prices related to the then
current market price or at negotiated prices and terms. In effecting sales,
brokers or dealers may arrange for other brokers or dealers to participate. The
Selling Stockholders or such successors in interest, and any underwriters,
brokers, dealers or agents that participate in the distribution of the Shares,
may be deemed to be "underwriters" within the meaning of the Securities Act, and
any profit on the sale of the Shares by them and any discounts, commissions or
concessions received by any such underwriters, brokers, dealers or agents may be
deemed to be underwriting commissions or discounts under the Securities Act.
The Company will pay all of the expenses incident to the offering hereby and
sale of the Shares to the public other than underwriting discounts or
commissions, brokers' fees and the fees and expenses of any counsel to the
Selling Stockholders related thereto.
LEGAL MATTERS
Certain legal matters in connection with the validity of the Common Stock
offered hereby have been passed upon for the Company by Jones, Day, Reavis &
Pogue, Dallas, Texas. Michael C. French, a consultant to Jones, Day, Reavis &
Pogue, is a director and an employee of the Company.
EXPERTS
The consolidated financial statements and financial statement schedules
appearing in Sterling Software'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
by reference herein. Such consolidated financial statements are incorporated
herein by reference in reliance upon such reports given upon the authority of
such firm as experts in accounting and auditing.
- 7 -
<PAGE>
NO PERSON HAS BEEN AUTHORIZED IN CONNECTION WITH THE OFFERING HEREBY TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS AND,
IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN
OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES TO ANY PERSON
OR BY ANYONE IN ANY JURISDICTION WHERE SUCH OFFER OR SOLICITATION WOULD BE
UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION
CONTAINED HEREIN IS CORRECT AS OF ANY DATE SUBSEQUENT TO THE DATE HEREOF.
----------------------------------------
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
Available Information...... 2
Incorporation of Certain
Documents by Reference.. 2
The Company................ 3
Recent Developments........ 3
Use of Proceeds............ 4
Selling Stockholders....... 4
Plan of Distribution....... 8
Legal Matters.............. 8
Experts.................... 8
</TABLE>
2,985,678 SHARES
STERLING SOFTWARE,
INC.
COMMON STOCK
--------------------------------
PROSPECTUS
--------------------------------
, 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 Registrant, are as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission filing fee.. $ 5,278
NYSE listing fee............................... 1,500
Printing expenses.............................. 6,000
Accounting fees and expenses................... 5,000
Legal fees and expenses........................ 6,000
Miscellaneous.................................. 1,222
-------
Total.......................................... $25,000
=======
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware (the
"GCL") empowers a corporation to indemnify its directors and officers or former
directors or officers and to purchase insurance with respect to liability
arising out of their capacity or status as directors and officers. The GCL
provides further that the indemnification permitted thereunder shall not be
deemed exclusive of any other rights to which the directors and officers may be
entitled under a corporation's certificate of incorporation, bylaws, any
agreement or otherwise.
The Company's Certificate of Incorporation, as amended, provides that, to
the fullest extent permitted by the GCL, as the same exists or may hereafter be
amended, a director of the Company shall not be liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director.
The Company's Restated Bylaws provide that the Company shall indemnify its
directors to the fullest extent of the GCL and may, if and to the extent
authorized by the Board, so indemnify its officers against any liability,
expense or other matter whatsoever. In addition, the Company has entered into
Indemnity Agreements with each of its officers and directors pursuant to which
such officers and directors may be indemnified against losses arising from
certain claims, including claims under the Securities Act, which may be made by
reason of their being officers or directors.
ITEM 16. EXHIBITS
Exhibit No. Description
- ----------- -----------
5.1* -- Opinion of Jones, Day, Reavis & Pogue
23.1 -- Consent of Ernst & Young LLP
23.2* -- Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5.1)
24.1* -- Powers of Attorney of directors and officers of the Company
24.2* -- Power of Attorney of the Company
99.1* -- 1992 Non-Statutory Stock Option Plan of the Registrant (as
amended through September 11, 1995)
- -------------
*Filed previously.
II-1
<PAGE>
ITEM 17. UNDERTAKINGS
The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of a prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Amendment
No. 1 to the Registrant's Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized in the City of Dallas, State of Texas
on the 16th day of February, 1996.
STERLING SOFTWARE, INC.
By: /s/ JAMES E. O'BANNON
--------------------------------------
James E. O'Bannon
Attorney-in-Fact
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment No. 2 to the Registrant's Registration Statement has been signed
by the following persons in the capacities indicated on the 16th day of
February, 1996.
Signatures Title
---------- -----
STERLING L. WILLIAMS* President, Chief Executive Officer
- ------------------------ and Director
Sterling L. Williams (Principal Executive Officer)
GEORGE H. ELLIS* Executive Vice President
- ------------------------ and Chief Financial Officer
George H. Ellis (Principal Financial and Accounting Officer)
Chairman of the
- ------------------------ Board of Directors
Sam Wyly
Vice Chairman of the
- ------------------------ Board of Directors
Charles J. Wyly, Jr.
EVAN A. WYLY* Director
- ------------------------
Evan A. Wyly
MICHAEL C. FRENCH* Director
- ------------------------
Michael C. French
ROBERT J. DONACHIE* Director
- ------------------------
Robert J. Donachie
PHILLIP A. MOORE* Director
- ------------------------
Phillip A. Moore
Director
- ------------------------
Robert E. Cook
DONALD R. MILLER, JR.* Director
- ------------------------
Donald R. Miller, Jr.
Director
- ------------------------
Frances A. Tarkenton
* The undersigned, by signing his name hereto, does sign and execute this
Amendment No. 2 to the Registrant's Registration Statement pursuant to the
Powers of Attorney executed on behalf of the above-named officers and directors
and filed previously with the Securities and Exchange Commission.
/s/ JAMES E. O'BANNON
----------------------------------
James E. O'Bannon
Attorney-in-Fact
II-3
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Description
- ----------- -----------
5.1* -- Opinion of Jones, Day, Reavis & Pogue
23.1 -- Consent of Ernst & Young LLP
23.2* -- Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5.1)
24.1* -- Powers of Attorney of directors and officers of the Company
24.2* -- Power of Attorney of the Company
99.1* -- 1992 Non-Statutory Stock Option Plan of the Registrant (as
amended through September 11, 1995)
- --------------
*Filed previously.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference of our firm under the caption "Experts" in Pre-
effective Amendment No. 2 of the Registration Statement No. 33-64073 of Sterling
Software, Inc., related to registration of 335,000 shares of common stock
issuable under the 1992 Non-Statutory Stock Option Plan and to the incorporation
by reference therein of our 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
February 16, 1996
