<PAGE>
As filed with the Securities and Exchange Commission on May 14, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________
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 75-1873956
(State of incorporation) (I.R.S. Employer
Identification Number)
STERLING SOFTWARE, INC. 1999 EMPLOYEE STOCK OPTION PLAN
(Full title of the plan)
DON J. MCDERMETT, JR., ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL & SECRETARY
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)
_________________
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=============================================================================================================================
Title of Amount Proposed Proposed Amount of
Securities to to be Maximum Maximum Registration
be Registered Registered (2) Offering Aggregate Fee
Price per Offering
Share (3) Price (3)
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.10 per share (1)........ 4,000,000 shares $19.9375 $79,750,000 $24,167
=============================================================================================================================
</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 Sterling Software, Inc. 1999 Employee Stock
Option Plan (the "Plan"). Pursuant to Rule 416 under the Securities Act of 1933
(the "Securities Act"), 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) Estimated solely for the purpose of calculating the registration fee
under Rule 457(h) under the Securities Act upon the basis of the average high
and low prices of shares of the Common Stock of the Registrant on the Composite
Tape of the New York Stock Exchange, Inc. on May 10, 1999.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I of Form S-8
have been or will be sent or given to participants in the Plan as specified by
Rule 428(b)(1) under the Securities Act.
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,
1998, as amended by Amendment No. 1 thereto on Form 10-K/A filed with
the Commission on January 27, 1999;
(b) Quarterly Report on Form 10-Q for the quarter ended December 31, 1998;
(c) Quarterly Report on Form 10-Q for the quarter ended March 31, 1999;
(d) Proxy Statement on Schedule 14A for the Annual Meeting of Stockholders
of Sterling Software held on March 31, 1999; and
(e) 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
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sterling Software is a Delaware corporation. Section 145 of the Delaware
General Corporation Law (the "DGCL") allows the indemnification of officers and
directors of a corporation against liabilities and expenses arising out of
actions brought by a third party, provided that the Board of Directors
determines that such person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to a criminal matter, had no reasonable cause to
believe his or her conduct was unlawful. Such law also permits indemnification
against expenses in actions brought by or in right of a corporation if the
standards of conduct required for indemnification in third party actions are
met, and either (1) such person was not adjudged liable to the corporation, or
(2) the Delaware Chancery Court or other court in which the action was brought
determines that such person is fairly and reasonably entitled to be indemnified.
Indemnification provided pursuant to Section 145 is not exclusive, and a
corporation is empowered to purchase and maintain insurance on behalf of any
person who is or was an officer or director of another corporation or other
enterprise against any
2
<PAGE>
liability asserted against such person and incurred by him or her in any such
capacity, or arising out of his or her status as such, whether or not the
corporation would have the power to indemnify such person against such liability
under such section. Sterling Software's Bylaws (the "Bylaws") provide that
Sterling Software shall indemnify its directors to the fullest extent permitted
by the DGCL, and that Sterling Software may, if and to the extent authorized by
Sterling Software's Board of Directors, indemnify its officers and any other
person whom it had the power to indemnify against any liability, expense or
other matter.
The DGCL permits a Delaware corporation to include a provision in its
certificate of incorporation eliminating or limiting the personal liability of
any director to the corporation or its stockholders for monetary damages for a
breach of the director's fiduciary duty as a director except for liability (i)
for any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the DGCL, which concerns unlawful payments of dividends, stock purchases or
redemptions or (iv) for any transaction from which the director derived an
improper personal benefit. Sterling Software's Certificate of Incorporation
(the "Certificate of Incorporation") provides that to the fullest extent
permitted by the DGCL, directors of Sterling Software shall not be liable to
Sterling Software or its stockholders for monetary damages for breach of their
fiduciary duties as directors.
As authorized by the Certificate of Incorporation, 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, 1999 and incorporated herein by reference, SEC File
No. 99617213)
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, SEC File No. 98632257)
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, SEC File No. S766400)
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, SEC File No. 96682898)
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, SEC File No. 98587026)
5.1 Opinion of General Counsel
23.1 Consent of General Counsel (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
24.1 Power of Attorney
3
<PAGE>
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 this 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. 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 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 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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.
4
<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-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 May 14, 1999.
STERLING SOFTWARE, INC.
By: /s/ Don J. McDermett, Jr.
----------------------------------------------------
Don J. McDermett, Jr.
Senior Vice President, General Counsel and Secretary
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 May 14, 1999.
<TABLE>
<CAPTION>
Signatures Title
<S> <C>
* Chief Executive Officer and President; Director
_______________________________________
Sterling L. Williams (Principal Executive Officer)
* Senior Vice President and Chief Financial Officer
_______________________________________
R. Logan Wray (Principal Financial and Accounting Officer)
* 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
</TABLE>
*The undersigned, by signing his name hereto, does sign and execute this
Registration Statement pursuant to the Power 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
5
<PAGE>
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, 1999 and incorporated herein by reference, SEC
File No. 99617213)
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, SEC File No. 98632257)
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, SEC File No. S766400)
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, SEC
File No. 96682898)
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, SEC File No. 98587026)
5.1 Opinion of General Counsel
23.1 Consent of General Counsel (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
24.1 Power of Attorney
6
<PAGE>
EXHIBIT 5.1
-----------
Sterling Software, Inc.
300 Crescent Court, Suite 1200
Dallas, TX 75201
May 14, 1999
Sterling Software, Inc.
300 Crescent Court
Suite 1200
Dallas, Texas 75201
Re: Registration Statement on Form S-8 relating to 4,000,000
shares of Common Stock, par value $0.10 per share, of
Sterling Software, Inc.
--------------------------------------------------------
Ladies and Gentlemen:
I am the General Counsel of Sterling Software, Inc., a Delaware corporation
(the "Company"), and have acted as such in connection with the registration of
4,000,000 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.
I have examined such documents, records and matters of law as I have deemed
necessary for purposes of this opinion. Based on such examination and on the
assumptions set forth below, I am 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, I 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 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 me as
originals and the conformity to original documents of all documents submitted to
me 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, my 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.
I hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ Don J. McDermett, Jr.
Don J. McDermett, Jr.
Senior Vice President, General Counsel & Secretary
<PAGE>
EXHIBIT 23.2
------------
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
Sterling Software, Inc. 1999 Employee Stock Option Plan of our report dated
November 6, 1998, with respect to the consolidated financial statements and
schedule of the Company included in its Annual Report (Form 10-K) for the fiscal
year ended September 30, 1998, filed with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG LLP
Dallas, Texas
May 11, 1999
<PAGE>
EXHIBIT 24.1
------------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes and
appoints each of Don J. McDermett, Jr. and Mark H. Kleinman, or either 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 Sterling Software, Inc.
1999 Employee Stock Option Plan, 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 other, 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 either of them or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Dated: April 30, 1999
/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
