-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Ej3KZMERALiEcqiSDbofxbNfQv9QpR5G58npRb1FIdDfUclrsJ9VGRaFq8f6exWU L/Tx3M8XsRXb3fLBEKPNHA== 0000930661-95-000362.txt : 19951026 0000930661-95-000362.hdr.sgml : 19951026 ACCESSION NUMBER: 0000930661-95-000362 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19951025 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: STERLING SOFTWARE INC CENTRAL INDEX KEY: 0000716714 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 751873956 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-3/A SEC ACT: 1933 Act SEC FILE NUMBER: 033-62401 FILM NUMBER: 95583873 BUSINESS ADDRESS: STREET 1: 8080 N CENTRAL EXPWY STE 1100 CITY: DALLAS STATE: TX ZIP: 75206 BUSINESS PHONE: 2148918600 S-3/A 1 AMENDMENT NO. 2 TO FORM S-3 As filed with the Securities and Exchange Commission on October 25, 1995 Registration No. 33-62401 ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------- PRE-EFFECTIVE 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, CHARLES D. MAGUIRE, JR., ESQ. Secretary and General Counsel Jackson & Walker, L.L.P. Sterling Software, Inc. 901 Main Street 8080 North Central Expressway Suite 6000 Suite 1100 Dallas, Texas 75202 Dallas, Texas 75206 (214) 953-5850 (214) 891-8685 (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. PROSPECTUS 269,380 Shares STERLING SOFTWARE, INC. Common Stock This Prospectus relates to the offer and sale by certain stockholders (the "Selling Stockholders") of Sterling Software, Inc. ("Sterling" or the "Company") of up to 269,380 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 warrants (the "Warrants") that were issued pursuant to the provisions of the Exchange Agreement dated June 27, 1995 by and among the Company and the individuals and entities listed therein (the "Exchange Agreement"). The Shares may be sold from time to time by the Selling Stockholders, or by permitted transferees. Such sales 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, Selling Stockholders or permitted transferees 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 September 5, 1995, the closing price of the Common Stock on the NYSE was $45.00. The Company will pay all expenses in connection with this offering, which are estimated to be approximately $21,176.43. ---------------- 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 October 25, 1995. 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., Room 1024, Washington, D.C. 20549, and at the regional offices of 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 from the Public Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C., 20549, at prescribed rates. The Common Stock is listed on the NYSE. Reports, proxy statements and other information concerning the Company can also be inspected at the offices of the NYSE at 20 Broad Street, New York, New York 10005. The Company has filed with the Commission a Registration Statement on Form S-3 (together with all amendments and exhibits thereto, the "Registration Statement") under the Securities Act with respect to the offer and sale of the Common Stock to be issued by the Company upon exercise of the Warrants. As permitted by the rules and regulations of the Commission, this Prospectus omits certain of the information contained in the Registration Statement. Copies of the Registration Statement are available from the Public Reference Section of the Commission at prescribed rates. Statements contained herein concerning the provisions of documents filed with the Registration Statement are necessarily summaries of such documents, and each such statement is qualified in its entirety by reference to the copy of the applicable document filed with the Commission. 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. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents, which have been filed with the Commission by the Company, are incorporated herein by reference and made a part hereof: (i) Annual Report on Form 10-K (File No. 1-8465) for the year ended September 30, 1994, as amended by Form 10-K/A Amendment No. 1; (ii) Quarterly Report on Form 10-Q for the quarter ended December 31, 1994; (iii) Quarterly Report on Form 10-Q for the quarter ended March 31, 1995; -2- (iv) Quarterly Report on Form 10-Q/A for the quarter ended March 31, 1995; (v) Quarterly Report on Form 10-Q for the quarter ended June 30, 1995; (vi) Current Report on Form 8-K (File No. 1-8465) dated November 3, 1994; (vii) Current Report of Form 8-K (File No. 1-8465) dated November 14, 1994; (viii) Current Report on Form 8-K (File No. 1-8465) dated November 14, 1994; (ix) Current Report on Form 8-K (File No. 1-8465) dated November 30, 1994; (x) Current Report on Form 8-K (File No. 1-8465) dated February 28, 1995; and (xi) the description of the Company's Common Stock contained in the Company's Registration Statement on Form 8-A (No. 0-108465), filed March 7, 1990. All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to the termination of the offering of Common Stock to be made hereunder shall be deemed to be incorporated herein by reference and made 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 all purposes of this Prospectus to the extent that a statement contained herein or therein or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. The Company will provide, without charge, to each person to whom a copy of this Prospectus is delivered, upon the written or oral request of such person, a copy of any or all of the documents incorporated herein by reference (other than exhibits to such documents, unless such exhibits are specifically incorporated by reference into the information that this Prospectus incorporates). Written or telephonic requests for copies should be directed to the Company's principal office: 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). USE OF PROCEEDS The Company will derive no proceeds from any sale of the Common Stock by the Selling Stockholders. -3- SELLING STOCKHOLDERS This Prospectus covers the offer and resale of Shares to be acquired by certain holders of Warrants upon the exercise thereof. The Exchange Agreement provided for the exchange by certain holders of an aggregate of 200,000 shares of Series B Preferred Stock, par value $.10 per share, of the Company (the "Preferred Shares") for the Warrants to purchase 269,380 shares of Common Stock. Pursuant to the Exchange Agreement, the exercise price of the Warrants is $36.50 per share. The Warrants will expire on June 27, 1997 and no Warrants may be exercised pursuant to the Exchange Agreement after such date. The table below sets forth information concerning the Common Stock owned by the following Selling Stockholders, none of whom has, or within the past three years has had, any position, office or other material relationship with the Company, except as noted herein:
Common Stock Offered for Ownership of Selling Amount and Common Stock Stockholders' Percentage of Position with Prior to Account Upon Class after Name the Company Offering (1) Exercise Offering (2) - ---------------------- ------------------ ------------- ------------- --------------- Evan A. Wyly Vice President 186,440 (3) 33,686 152,754 (3)* and Director Martha Carolyn Wyly 110,425 33,671 76,754* Trust(5) Charles J. Wyly, III 110,425 33,671 76,754* Trust(5) Emily Ann Wyly 110,424 33,670 76,754* Trust(5) Jennifer Lynn Wyly 110,425 33,671 76,754* Trust(5) Laurie L. Wyly Revocable 97,624 33,670 63,954*(4) Trust(4) Lisa Wyly Revocable 95,425 33,671 61,754* Trust(4) Kelly Wyly Elliott 95,524 33,670 61,854* Trust(4) - ----------------------------
* Indicates shares held are less than 1% of class. (1) Includes shares to be acquired upon exercise of the Warrants, which will become exercisable on September 25, 1995. (2) Based on 25,396,766 shares of Common Stock outstanding on August 28, 1995. Assumes the exercise of all of the Warrants and the sale of the Common Stock acquired thereby. (3) Includes 40,000 shares purchasable pursuant to options granted under the Company's Non-Statutory Stock Option Plan and 60,000 shares purchasable pursuant to the Company's 1992 Non-Statutory Stock Option Plan, some of which are not exercisable within 60 days of the date of this Prospectus. (4) The Trustee for this trust is Sam Wyly. Mr. Wyly is Chairman of the Board of Directors of the Company. (5) The Trustee for this trust is Charles J. Wyly, Jr. Mr. Wyly is Vice Chairman of the Board of Directors of the Company. -4- PLAN OF DISTRIBUTION The Shares may be issued to the Selling Stockholders from time to time by the Company upon exercise of the Warrants. The Shares may be sold from time to time by any of the Selling Stockholders, or permitted transferees. The Shares may be disposed of from time to time 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 such permitted transferees/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 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. In the event of a material change in the plan of distribution disclosed in this Prospectus, the Selling Stockholders will not be able to effect transactions in the Shares pursuant to this Prospectus until such time as a post-effective amendment to the Registration Statement is filed with, and declared effective by, the Commission. LEGAL MATTERS Certain legal matters in connection with the validity of the Common Stock offered hereby have been passed upon for the Company by Jackson & Walker, L.L.P., Dallas, Texas. -5- EXPERTS The consolidated financial statements and financial statement schedules appearing in Sterling's Annual Report on Form 10-K for the year ended September 30, 1994, have been audited by Ernst & Young LLP, independent auditors, as set forth in their report thereon included therein and incorporated by reference herein, which as to the year ended September 1992, is based in part on the report of Arthur Andersen LLP, independent public accountants. Such consolidated financial statements are incorporated herein by reference in reliance upon such reports given upon the authority of such firms as experts in accounting and auditing. The consolidated financial statements of KnowledgeWare, Inc. and subsidiaries as of June 30, 1994 and 1993 and for each of the three years in the period ending June 30, 1994 incorporated by reference in this Prospectus have been incorporated herein in reliance on the report, which includes an explanatory paragraph about KnowledgeWare, Inc.'s ability to continue as a going concern, of Coopers & Lybrand L.L.P., independent certified public accountants, given upon the authority of such firm as an expert in accounting and auditing. INDEMNIFICATION Section 145 of the Delaware General Corporation Law 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. Such law 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. Article IX of the Company's Certificate of Incorporation, as amended, provides that, to the fullest extent permitted by the Delaware General Corporation Law, 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. Article IX of the Company's Restated Bylaws provides for indemnification of officers and directors. 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. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the Company pursuant to the foregoing provisions, the Company 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. -6- No person has been authorized in connection with the offering made 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 -----------------
Page ---- Available Information...... 2 Incorporation of Certain Documents by Reference.. 2 Use of Proceeds............ 3 Selling Stockholders....... 4 Plan of Distribution....... 5 Legal Matters.............. 5 Experts.................... 6 Indemnification............ 6
269,380 SHARES STERLING SOFTWARE, INC. COMMON STOCK -------------------------------- PROSPECTUS --------------------------------- October 25, 1995 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT 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 will be paid by the Registrant, are as follows: Registration Fee......................... $ 4,168.43 Printing, Engraving and Filing Expenses.. $ 6,000.00 Accounting Fees and Expenses............. $ 5,000.00 Legal Fees and Expenses.................. $ 5,000.00 Miscellaneous............................ $ 1,008.00 ---------- Total.................................... $21,176.43 ==========
Item 15. Indemnification of Directors and Officers. ----------------------------------------- Section 145 of the Delaware General Corporation Law 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. Such law 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. Article IX of the Company's Certificate of Incorporation, as amended, provides that, to the fullest extent permitted by the Delaware General Corporation Law, 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. Article IX of the Company's Restated Bylaws provides for indemnification of officers and directors. 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. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the Company pursuant to the foregoing provisions, the Company 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. II-1 Item 16. Exhibits. -------- The following is a list of all exhibits filed as a part of this Registration Statement on Form S-3, including those incorporated herein by reference. Exhibit Number Description of Exhibit - -------- ---------------------- 1 None. 2 None. 4.1 Certificate of Incorporation of the Registrant.(1) 4.2 Certificate of Amendment of Certificate of Incorporation of the Registrant.(1) 4.3 Certificate of Amendment of Certificate of Incorporation of the Registrant.(1) 4.4 Certificate of Amendment of Certificate of Incorporation of the Registrant.(1) 4.5 Restated Bylaws of the Registrant.(2) 4.6 Form of Common Stock Certificate.(3) 4.7 Form of Common Stock Purchase Warrant dated as of June 27, 1995(4) 4.8 Exchange Agreement dated as of June 27, 1995 among Sterling Software, Inc. and Preferred Stockholders named therein (4) 5 Opinion of Jackson & Walker, L.L.P.(6) 8 None. 12 None. 15 None. 23.1 Consent of Ernst & Young LLP(6) 23.2 Consent of Arthur Andersen LLP(6) 23.3 Consent of Coopers & Lybrand L.L.P.(6) 23.4 Consent of Jackson & Walker, L.L.P. (included in its opinion filed as Exhibit 5 to this Registration Statement).(6) II-2 24 Power of Attorney.(5) 25 None. 26 None. 27 None. 28 None. 99 Second Amended and Restated Revolving Credit and Term Loan Agreement dated as of August 24, 1995 among Sterling Software, Inc. and the First National Bank of Boston as Agent and the Banks listed on Schedules 1.1 thereto.(5) - ------------------------ (1) Previously filed as an exhibit to the Registrant's Registration Statement No. 33-59107 on Pre-Effective Amendment to Form S-3 and incorporated herein by reference. (2) Previously filed as an exhibit to the Registrant's Registration Statement No. 33-47131 on Form S-8 and incorporated herein by reference. (3) Previously filed as an exhibit to the Registrant's Registration Statement No. 2-86825 on Form S-1 and incorporated herein by reference. (4) Previously filed as an exhibit to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1995 and incorporated herein by reference. (5) Previously filed. (6) Filed herewith. Item 17. Undertakings. ------------ (a) The undersigned 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 II-3 estimated maximum offering range may be reflected in the form of a prospectus filed with the Commission pursuant to Rule 424(b) ((S) 230.424 (b) of this chapter) 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.; (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; 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 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. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in 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. (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. II-4 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 to Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Dallas, State of Texas on the 25th day of October 1995. STERLING SOFTWARE, INC. By: /s/ Jeannette P. Meier ------------------------------ Name: Jeannette P. Meier ---------------------------- Title: Executive Vice President --------------------------- II-5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signatures Title Date - --------------------------- ----------------------------- ---- President, Chief October 25, 1995 /s/ Sterling L. Williams* Executive Officer - --------------------------- and Director Sterling L. Williams (Principal Executive Officer) Executive Vice President October 25, 1995 /s/ George H. Ellis* and Chief - --------------------------- Financial Officer George H. Ellis (Principal Financial and Accounting Officer) /s/ Sam Wyly* - --------------------------- Chairman of the October 25, 1995 Sam Wyly Board of Directors /s/ Charles J. Wyly, Jr.* - --------------------------- Vice Chairman of the October 25, 1995 Charles J. Wyly, Jr. Board of Directors /s/ Evan A. Wyly* - --------------------------- Director October 25, 1995 Evan A. Wyly /s/ Michael C. French* - --------------------------- Director October 25, 1995 Michael C. French /s/ Robert J. Donachie* - --------------------------- Chairman of the Audit October 25, 1995 Robert J. Donachie Committee and Director /s/ Phillip A. Moore* - --------------------------- Executive Vice October 25, 1995 Phillip A. Moore President, Technology and Director - --------------------------- Director Robert E. Cook /s/ Donald R. Miller, Jr.* - --------------------------- Director October 25, 1995 Donald R. Miller, Jr. - --------------------------- Director Frances A. Tarkenton * /s/ Jeannette P. Meier -------------------------- By Jeannette P. Meier Attorney-in-Fact
II-6 INDEX TO EXHIBITS Exhibit Number Description of Exhibit - ------- ---------------------------- 1 None. 2 None. 4.1 Certificate of Incorporation of the Registrant.(1) 4.2 Certificate of Amendment of Certificate of Incorporation of the Registrant.(1) 4.3 Certificate of Amendment of Certificate of Incorporation of the Registrant.(1) 4.4 Certificate of Amendment of Certificate of Incorporation of the Registrant.(1) 4.5 Restated Bylaws of the Registrant.(2) 4.6 Form of Common Stock Certificate.(3) 4.7 Form of Common Stock Purchase Warrant dated as of June 27, 1995(4) 4.8 Exchange Agreement dated as of June 27, 1995 among Sterling Software, Inc. and Preferred Stockholders named therein.(4) 5 Opinion of Jackson & Walker, L.L.P.(6) 8 None. 12 None. 15 None. 23.1 Consent of Ernst & Young LLP(6) 23.2 Consent of Arthur Andersen LLP(6) 23.3 Consent of Coopers & Lybrand L.L.P.(6) 23.4 Consent of Jackson & Walker, L.L.P. (included in its opinion filed as Exhibit 5 to this Registration Statement).(6) 24 Power of Attorney.(5) 25 None. 26 None. II-7 27 None. 28 None. 99 Second Amended and Restated Revolving Credit and Term Loan Agreement dated as of August 24, 1995 among Sterling Software, Inc. and the First National Bank of Boston as Agent and the Banks listed on Schedules 1.1 thereto.(5) - ------------------------ (1) Previously filed as an exhibit to the Registrant's Registration Statement No. 33-59107 on Pre-Effective Amendment to Form S-3 and incorporated herein by reference. (2) Previously filed as an exhibit to the Registrant's Registration Statement No. 33-47131 on Form S-8 and incorporated herein by reference. (3) Previously filed as an exhibit to the Registrant's Registration Statement No. 2-86825 on Form S-1 and incorporated herein by reference. (4) Previously filed as an exhibit to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1995 and incorporated herein by reference. (5) Previously filed. (6) Filed herewith. II-8 EX-5 2 JACKSON-WALKER OPINION Jackson & Walker, L.L.P. Letterhead EXHIBIT 5 October 25, 1995 Sterling Software, Inc. 8080 N. Central Expressway Suite 1100 Dallas, Texas 75206 Re: Pre-effective Amendment No. 2 to Registration Statement No. 33-62401 on Form S-3 of Sterling Software, Inc. Gentlemen: We are acting as counsel for Sterling Software, Inc., a Delaware corporation (the "Company"), in connection with the registration under the Securities Act of 1933, as amended (the "Act"), of the sale by certain stockholders (the "Selling Stockholders") of up to 269,380 shares of the Company's Common Stock, par value $0.10 per share (the "Shares"), which Shares are issuable upon the exercise of warrants that were received pursuant to an Exchange Agreement dated June 27, 1995 by and among the Company and the individuals and entities listed therein (the "Exchange Agreement"). A Pre-effective Amendment No. 2 to Registration Statement No. 33-62401 on Form S-3 covering the sale of the Shares by the Selling Stockholders (the "Pre-effective Amendment") is expected to be filed with the Securities and Exchange Commission (the "Commission") on or about the date hereof. In reaching the conclusions expressed in this opinion, we have examined and relied upon the originals or certified copies of all documents, certificates and instruments as we have deemed necessary to the opinions expressed herein, including the Certificate of Incorporation, as amended, and the Restated Bylaws of the Company and copies of the Exchange Agreement. In making the foregoing examinations, we have assumed the genuineness of all signatures on original documents, the authenticity of all documents submitted to us as originals and the conformity to original documents of all copies submitted to us. Based solely upon the foregoing, subject to the comments hereinafter stated, and limited in all respects to the laws of the State of Texas, the General Corporation Law of the State of Delaware and the federal laws of the United States of America, it is our opinion that the Shares, when issued upon exercise of the Warrants, will be validly issued, fully paid and nonassessable. You should be aware that we are not admitted to the practice of law in the State of Delaware. Accordingly, any opinion herein as to the laws of the State of Delaware is based solely upon the latest generally available compilation of the statutes and case law of such state. We hereby consent to the use of this opinion as an Exhibit to the Pre-effective Amendment. In giving this consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder. Very truly yours, /s/ Jackson & Walker, L.L.P. Jackson & Walker, L.L.P. EX-23.1 3 ERNST & YOUNG CONSENT EXHIBIT 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement on Form S-3 Pre-Effective Amendment No. 1 of Sterling Software, Inc., related to registration of 269,380 shares of common stock related to the exercise of certain warrants of our reports dated December 1, 1994, with respect to the consolidated financial statements and schedules of Sterling Software, Inc. included in its Annual Report (Form 10-K) for the year ended September 30, 1994, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Ernst & Young LLP Dallas, Texas October 23, 1995 EX-23.2 4 ARTHUR ANDERSEN CONSENT EXHIBIT 23.2 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our report dated June 18, 1993 (except with respect to the matter discussed in Note 19 as to which the date is July 1, 1993) included in Sterling Software, Inc.'s Form 10-K for the year ended September 30, 1994 and to all references to our Firm included in this registration statement. /s/ Arthur Andersen LLP Washington, DC October 20, 1995 EX-23.3 5 COOPERS & LYBRAND CONSENT EXHIBIT 23.3 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in this registration statement on Form S-3 of our report, which includes an explanatory paragraph about KnowledgeWare, Inc.'s ability to continue as a going concern, dated August 31, 1994, on our audit of the financial statements of KnowledgeWare, Inc. and Subsidiaries. We also consent to the reference to our firm under the caption "Experts". /s/ Coopers & Lybrand L.L.P. Coopers & Lybrand L.L.P. Atlanta, Georgia October 24, 1995 -----END PRIVACY-ENHANCED MESSAGE-----