As filed with the Securities and Exchange Commission on September 1, 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.
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(Exact name of registrant as specified in its charter)
DELAWARE 75-1873956
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(State of incorporation) (I.R.S. employer identification no.)
300 Crescent Court, Suite 1200
Dallas, Texas 75201
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(Address of principal executive offices) (Zip Code)
INFORMATION ADVANTAGE, INC. 1992 STOCK OPTION PLAN
AND 1997 EQUITY INCENTIVE PLAN;
IQ SOFTWARE CORPORATION 1993 STOCK OPTION PLAN,
1987 STOCK OPTION PLAN AND 1994 NON-EMPLOYEE
DIRECTORS STOCK OPTION PLAN
--------------------------------------------------
(Full title of the plans)
Don J. McDermett, Esq.,
Senior Vice President, General Counsel and Secretary
Sterling Software, Inc.
300 Crescent Court, Suite 1200
Dallas, Texas 75201
(214) 981-1000
---------------------------------------------------------
(Name, address and telephone number, including area code,
of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=============================================================================================
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered (2) Per Share (3) Price (3) Fee (4)
- ---------------------------------------------------------------------------------------------
Common Stock, par
value $0.10 per
<S> <C> <C> <C> <C>
share (1) 1,388,502 shares $12.5211 $17,385,572.39 $4,833.19
=============================================================================================
</TABLE>
(1) Includes associated rights to purchase shares of Series A Junior
Participating Preferred Stock, par value $0.10 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 ("Sterling Common Stock") issuable upon
the exercise of options granted pursuant to the Information
Advantage, Inc, 1997 Equity Incentive Plan and 1992 Stock Option
Plan; and the IQ Software Corporation 1993 Stock Option Plan, 1987
Stock Option Plan and 1994 Non-Employee Directors Stock Option Plan
(collectively, the "Stock Option Plans"), that were outstanding at
the effective time of the merger of Information Advantage, 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 Plans.
(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 Sterling Common Stock issuable upon
the exercise of the Options.
(4) Computed in accordance with Rule 457(h).
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
INTRODUCTORY STATEMENT
On July 15, 1999, Sterling Software Acquisition Corp. ("Purchaser"),
a wholly owned subsidiary of Sterling Software, entered into an agreement
and plan of merger (the "Merger Agreement") to acquire all of the issued
and outstanding shares of common stock, par value $.01 per share (including
the associated Preferred Stock Purchase Rights, the "Shares"), of
Information Advantage, Inc. (the "Company").
Pursuant to the terms of the Merger Agreement, at the effective time
of the merger (the "Effective Time") of Purchaser with and into the Company
with the Company surviving (the "Merger"), each Option under the Stock
Option Plans, whether or not then exercisable or fully vested, was assumed
by Sterling Software and converted into an option (a "Substitute Option")
to acquire, on substantially the same terms and subject to substantially
the same conditions as were applicable under such Option, including without
limitation the term, vesting, exercisability, status as an "incentive stock
option" (if applicable) under Section 422 of the Internal Revenue Code of
1986, as amended (the "Code") and termination provisions thereof, the
number of shares of Sterling Common Stock, rounded down to the nearest
whole share, determined by multiplying the number of Shares subject to such
Option immediately prior to the Effective Time by the Conversion Factor (as
defined below), at an exercise price per share of Sterling Common Stock
(increased to the nearest whole cent) equal to the exercise per Share
subject to such Option divided by the Conversion Factor; provided, however,
that in the case of any Option to which Section 421 of the Code applied by
reason of its qualification as an incentive stock option under Section 422
of the Code, the conversion formula was adjusted if necessary to comply
with Section 424(a) of the Code. As determined pursuant to the terms of the
Merger Agreement, the Conversion Factor is .316109422.
ITEM 1. PLAN INFORMATION
The document(s) containing the information specified in Item 1 will
be sent or given to Participants in the Stock Option Plans as specified by
Rule 428(b)(1) and are not required to be filed as part of this
Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The document(s) containing the information specified in Item 2 will
be sent or given to participants in the Stock Option Plans as specified by
Rule 428(b)(1) and are not required to be filed as part of this
Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Sterling Software, Inc. ("Parent")
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:
(i) Annual Report on Form 10-K for the fiscal year ended
September 30, 1998 filed with the Commission on November
17, 1999, as amended by Amendment No. 1 thereto on Form
10-K/A filed with the Commission on January 27, 1999;
(ii) All other reports filed by Parent pursuant to Section
13(a) or 15(d) of the Exchange Act since the end of the
fiscal year covered by the Annual Report on Form 10-K
referred to in (i) above;
(iii) The description of common stock, par value $0.10 per
share, of Parent ("Sterling Common Stock"), which is
incorporated by reference to the Registration
Statement on Form 8-A/A filed with the Commission on
May 27, 1998; and
(iv) The description of the rights to purchase shares of
Series A Junior Participating Preferred Stock, par value
$0.10 per share, of Parent (the "Sterling Rights"), which
is incorporated by reference to Parent's Current Report
on Form 8-K dated December 18, 1996, as updated by
Parent's Registration Statement on Form 8-A/A filed with
the Commission on April 3, 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 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.
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 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 an officer or director of
another corporation or other enterprise against any 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
indemnities 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
The following exhibits are filed as part of this Registration
Statement or, where so indicated, have been previously filed and are
incorporated herein by reference.
Exhibit No. Description
- ----------- -----------
4.1 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).
4.2 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).
4.3 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 regarding legality.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of General Counsel (included in Exhibit 5.1) .
24.1 Power of Attorney.
ITEM 9. UNDERTAKINGS.
A. Sterling Software (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 of 1933, as amended (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(h) 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.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 the
1st day of September, 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, this
Registration Statement has been signed below by the following persons on
behalf of the Registrant and in the capacities indicated on September 1,
1999.
Signature Title
--------- -----
* Chief Executive Officer and President;
- ------------------------------ Director (Principal Executive Officer)
Sterling L. Williams
* Senior Vice President and Chief
- ------------------------------ Financial-Officer (Principal Financial
R. Logan Wray 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
* 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
LIST OF EXHIBITS
Designation Description of Exhibit
- ----------- ----------------------
4.1 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).
4.2 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).
4.3 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 regarding legality.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of General Counsel (included in Exhibit 5.1).
24.1 Power of Attorney.
EXHIBIT 5.1
Sterling Software, Inc.
300 Crescent Court, Suite 1200
Dallas, TX 75201
September 1, 1999
Sterling Software, Inc.
300 Crescent Court
Suite 1200
Dallas, Texas 75201
Re: Registration Statement on Form S-8 relating to
1,388,502 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 1,388,502 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 Stock Option Plans against payment of the consideration therefor as
provided in the Options and the Stock Option Plans, will be validly issued,
fully paid and nonassessable.
In rendering the foregoing opinion, I have (i) assumed (a) that the
Stock Option Plans 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
EXHIBIT 23.1
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 Information Advantage, Inc. 1992 Stock Option Plan and 1997 Equity
Incentive Plan and the IQ Software Corporation 1993 Stock Option Plan, 1987
Stock Option Plan and 1994 Non-Employee Directors 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 year ended September 30, 1998, filed with the Securities and
Exchange Commission.
Dallas, Texas
September 1, 1999
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 Information Advantage,
Inc. 1992 Stock Option Plan and 1997 Equity Incentive Plan and the IQ
Software Corporation 1993 Stock Option Plan,1987 Stock Option Plan and 1994
Non-Employee Directors 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: August 20, 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
