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As filed with the Securities and Exchange Commission on July 10, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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STERLING SOFTWARE, INC.
(Exact name of registrant as specified in its charter)
300 CRESCENT COURT, SUITE 1200
DALLAS, TEXAS 75201
(214) 981-1000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
DELAWARE 75-2623341
(State of incorporation) (I.R.S. Employer
Identification Number)
MYSTECH ASSOCIATES, INC. STOCK OPTION PLAN
(Full title of the plan)
DON J. MCDERMETT, JR., ESQ.
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
STERLING SOFTWARE, INC.
300 CRESCENT COURT, SUITE 1200
DALLAS, TEXAS 75201
(214) 981-1000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
WITH A COPY TO:
MARK E. BETZEN, ESQ.
JONES, DAY, REAVIS & POGUE
2300 TRAMMELL CROW CENTER
2001 ROSS AVENUE
DALLAS, TEXAS 75201
(214) 220-3939
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================================
Title of Amount Offering Aggregate Amount of
Securities to to be Price per Offering Registration
be Registered Registered (2) Share (3) Price (3) Fee (4)
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $0.10 per share (1). . . . . . . 174,146 $10.4876 $1,826,369 $538.78
=========================================================================================================================
</TABLE>
(1) Includes associated rights to purchase shares of Series A Junior
Participating Preferred Stock, par value $.10 per share, of Sterling
Software, Inc. ("Sterling Software").
(2) Represents the number of shares of Common Stock, par value $0.10 per
share, of Sterling Software ("Common Stock") issuable upon the exercise of
options granted pursuant to the Mystech Associates, Inc. Stock Option
Plan, as amended (the "Plan"), that were outstanding at the effective time
of the merger of Mystech Associates, Inc. with a wholly owned subsidiary
of Sterling Software (the "Options"). Pursuant to Rule 416, there are
registered hereunder such indeterminate number of additional shares as may
become issuable upon the exercise of Options as a result of the
antidilution provisions contained in the Plan.
(3) The aggregate offering price represents the aggregate price payable upon
the exercise of the Options. The offering price per share represents the
quotient obtained by dividing the aggregate offering price by the number
of shares of Common Stock issuable upon the exercise of the Options.
(4) Computed in accordance with Rule 457(h).
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
EXPLANATORY NOTE
The information called for by Part I of this Registration Statement on
Form S-8 (this "Registration Statement") will be sent or given to holders of
Options in accordance with the provisions of Rule 428(b)(1) promulgated under
the Securities Act of 1933, as amended (the "Securities Act"). Pursuant to the
Note to Part I of Form S-8, this information is not being filed with or included
in this Registration Statement.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Sterling Software with the Securities
and Exchange Commission (the "Commission") pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), are incorporated by reference, as
of their respective dates, in this Registration Statement:
(a) Annual Report on Form 10-K for the fiscal year ended September
30, 1997 (Commission File No. 1-8465);
(b) Quarterly Reports on Form 10-Q for the fiscal quarters ended
December 31, 1997 and March 31, 1998 and Current Report on Form 8-K, dated June
21, 1998;
(c) Proxy Statement on Schedule 14A for the Annual Meeting of
Stockholders held on March 11, 1998; and
(d) Registration Statement on Form 8-A/A filed with the Commission on
May 27, 1998.
In addition, all documents hereafter filed by Sterling Software pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all such securities then remaining unsold shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents.
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 Registration Statement 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 Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable (securities to be offered are registered under Section
12 of the Exchange Act).
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Certain legal matters in connection with the validity of the Common
Stock registered hereby will be passed upon for Sterling Software by Jones, Day,
Reavis & Pogue. Michael C. French, a consultant to Jones, Day, Reavis & Pogue,
is a director and an employee of Sterling Software.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sterling Software's Certificate of Incorporation (the "Certificate")
provides that the personal liability of directors of Sterling Software to
Sterling Software is eliminated to the maximum extent permitted by Delaware law.
The Certificate and Sterling Software's Bylaws (the "Bylaws") provide for the
indemnification of the directors, officers, employees and agents of Sterling
Software and its subsidiaries to the fullest extent that may be permitted by
Delaware law from time to time, and the Bylaws provide for various procedures
relating thereto.
Although the Certificate generally absolves Sterling Software's
directors from personal liability for monetary damages resulting from breaches
of their fiduciary duty of care, Sterling Software's directors remain liable for
breaches of their duty of loyalty to Sterling Software and its stockholders, as
well as for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law and transactions from which a director
derives
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improper personal benefit. In addition, the Certificate does not absolve
directors of liability under Section 174 of the Delaware General Corporation
Law, which makes directors personally liable for unlawful dividends or unlawful
stock repurchases or redemptions in certain circumstances and expressly sets
forth a negligence standard with respect to such liability.
Under Delaware law, directors, officers, employees, and other
individuals may be indemnified against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with specified
actions, suits or proceedings, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation -- a
"derivative action") if they acted in good faith and in a manner they reasonably
believed to be in or not opposed to the best interests of the corporation and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe their conduct was unlawful. A similar standard of conduct is applicable
in the case of a derivative action, but indemnification extends only to expenses
(including attorneys' fees) incurred in connection with defense or settlement of
such an action and Delaware law requires court approval before there can be any
indemnification of expenses where the person seeking indemnification has been
found liable to the corporation.
As authorized by the Certificate, Sterling Software has entered into
indemnification agreements with each of its directors and officers. These
indemnification agreements provide for, among other things, (i) the
indemnification by Sterling Software 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 Sterling Software's Board of
Directors, of trusts or other funding mechanisms to fund Sterling Software's
indemnification obligations thereunder.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
4.1 Certificate of Incorporation (previously filed as an exhibit to
Sterling Software's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1998 and incorporated herein by reference)
4.2 Bylaws (previously filed as an exhibit to Sterling Software's
Registration Statement on Form 8-A/A filed on May 27, 1998 and
incorporated herein by reference)
4.3 Form of Common Stock Certificate (previously filed as an exhibit to
Sterling Software's Registration Statement No. 2-86825 and
incorporated herein by reference)
4.4 Rights Agreement, dated December 18, 1996, between Sterling Software
and BankBoston, N.A., as Rights Agent (previously filed as an exhibit
to Sterling Software's Current Report on Form 8-K dated December 18,
1996 and incorporated herein by reference)
4.5 First Amendment to Rights Agreement, dated as of March 12, 1998,
between Sterling Software and BankBoston, N.A., as Rights Agent
(previously filed as an exhibit to Sterling Software's Registration
Statement on Form 8-A/A filed April 3, 1998 and incorporated herein by
reference)
5.1 Opinion of Jones, Day, Reavis & Pogue
23.1 Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
24.1 Powers of Attorney
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ITEM 9. 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; 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 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 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 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.
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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-8 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 July 10, 1998.
STERLING SOFTWARE, INC.
By: /s/ Don J. McDermett, Jr.
--------------------------------------------
Don J. McDermett, Jr.
Senior Vice President and General Counsel
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 July 10, 1998.
Signatures Title
---------- -----
* Chief Executive Officer and President; Director
- ----------------------- (Principal Executive Officer)
Sterling L. Williams
* Senior Vice President and Chief Financial Officer
- ----------------------- (Principal Financial and Accounting Officer)
R. Logan Wray
* Chairman of the Board; Director
- -----------------------
Sam Wyly
* Vice Chairman of the Board; Director
- -----------------------
Charles J. Wyly, Jr.
* Director
- -----------------------
Evan A. Wyly
* Director
- -----------------------
Phillip A. Moore
* Director
- -----------------------
Michael C. French
* Director
- -----------------------
Donald R. Miller
* Director
- -----------------------
Robert J. Donachie
* Director
- -----------------------
Alan W. Steelman
*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.
By: /s/ Don J. McDermett, Jr.
-------------------------------------------
Don J. McDermett, Jr.
Attorney-in-Fact
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INDEX TO EXHIBITS
Exhibit No. Description
- ----------- -----------
4.1 Certificate of Incorporation (previously filed as an exhibit to
Sterling Software's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1998 and incorporated herein by reference)
4.2 Bylaws (previously filed as an exhibit to Sterling Software's
Registration Statement on Form 8-A/A filed on May 27, 1998 and
incorporated herein by reference)
4.3 Form of Common Stock Certificate (previously filed as an exhibit
to Sterling Software's Registration Statement No. 2-86825 and
incorporated herein by reference)
4.4 Rights Agreement, dated December 18, 1996, between Sterling
Software and BankBoston, N.A., as Rights Agent (previously filed
as an exhibit to Sterling Software's Current Report on Form 8-K
dated December 18, 1996 and incorporated herein by reference)
4.5 First Amendment to Rights Agreement, dated as of March 12, 1998,
between Sterling Software and BankBoston, N.A., as Rights Agent
(previously filed as an exhibit to Sterling Software's
Registration Statement on Form 8-A/A filed April 3, 1998 and
incorporated herein by reference)
5.1 Opinion of Jones, Day, Reavis & Pogue
23.1 Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
24.1 Powers of Attorney
<PAGE>
Exhibit 5.1
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[Letterhead of Jones, Day, Reavis & Pogue]
July 10, 1998
Sterling Software, Inc.
300 Crescent Court
Suite 1200
Dallas, Texas 75201
Re: Registration Statement on Form S-8 relating to 174,146
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 174,146 shares (the
"Shares") of Common Stock, par value $0.10 per share, of the Company ("Common
Stock") pursuant to the Company's Registration Statement on Form S-8 to which
this opinion is attached as Exhibit 5.1 (the "Registration Statement"). Unless
otherwise defined herein, terms used herein with initial capital letters are so
used with the respective meanings ascribed to such terms in 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 upon the exercise of the Options in
accordance with the provisions of the Options and the Plan against payment of
the consideration therefor as provided in the Options and the Plan, will be
validly issued, fully paid and nonassessable.
In rendering the foregoing opinion, we have (i) assumed (a) that the Plan
and each other instrument (collectively, the "Instruments") pursuant to which
any of the Shares are to be issued will at the time of such issuance constitute
valid, binding and enforceable obligations of the Company or a subsidiary
thereof, (b) that any issuance of Shares pursuant to the Instruments will be
effected in accordance with the provisions of the Instruments, (c) that the
resolutions of the Executive Committee of the Company's Board of Directors
authorizing the Company to issue the Shares will remain in full force and effect
until all of the Shares have been issued, and (d) the authenticity of all
documents submitted to us as originals and the conformity to original documents
of all documents submitted to us as copies and (ii) relied, as to certain
factual matters, without any independent investigation, inquiry or verification,
upon statements or certificates of public officials and of representatives of
the Company. 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.
Very truly yours,
/s/ Jones, Day, Reavis & Pogue
Jones, Day, Reavis & Pogue
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Exhibit 23.2
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CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) of Sterling Software, Inc. (the "Company"), pertaining to the Mystech
Associates, Inc. Stock Option Plan, of our report dated November 7, 1997, with
respect to the consolidated financial statements and schedule of the Company
included in its Annual Report (Form 10-K) for the year ended September 30, 1997,
filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Dallas, Texas
July 8, 1998
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Exhibit 24.1
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes and
appoints Jeannette P. Meier, Don J. McDermett, Jr., Mark H. Kleinman, Robert L.
Estep, Mark E. Betzen, or any of them, the true and lawful attorney-in-fact,
with full power of substitution and resubstitution, for him and in his name,
place and stead, to sign on his behalf, as a director or officer, or both, as
the case may be, of Sterling Software, Inc., a Delaware corporation (the
"Corporation"), a Registration Statement on Form S-8 or any other appropriate
form (the "Registration Statement"), for the purpose of registering pursuant to
the Securities Act of 1933, as amended, the shares of Common Stock, par value
$0.10 per share, of the Corporation issuable upon the exercise of options
granted pursuant to the Mystech Associates, Inc. Stock Option Plan, as amended,
following the merger of Mystech Associates, Inc. with a wholly owned subsidiary
of the Corporation, 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 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: July 1, 1998
/s/ Sterling L. Williams /s/ R. Logan Wray
- ------------------------ ------------------------
Sterling L. Williams R. Logan Wray
/s/ Sam Wyly /s/ Michael C. French
- ------------------------ ------------------------
Sam Wyly Michael C. French
/s/ Charles J. Wyly, Jr. /s/ Phillip A. Moore
- ------------------------ ------------------------
Charles J. Wyly, Jr. Phillip A. Moore
/s/ Evan A. Wyly /s/ Donald R. Miller
- ------------------------ ------------------------
Evan A. Wyly Donald R. Miller
/s/ Robert J. Donachie /s/ Alan W. Steelman
- ------------------------ ------------------------
Robert J. Donachie Alan W. Steelman
