-----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, G8r1CxP/c/5Jx6yXb+IJQ1CNZxtLPSgQ9eoyg4tF6GeRzbxnRiy9kk4QayEynQk5 v1y4BJRbv+wJfI/Ny76LzA== 0000930661-98-002192.txt : 19981028 0000930661-98-002192.hdr.sgml : 19981028 ACCESSION NUMBER: 0000930661-98-002192 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19981027 EFFECTIVENESS DATE: 19981027 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-8 SEC ACT: SEC FILE NUMBER: 333-66167 FILM NUMBER: 98731189 BUSINESS ADDRESS: STREET 1: 300 CRESCENT COURT STREET 2: SUITE 1200 CITY: DALLAS STATE: TX ZIP: 75201 BUSINESS PHONE: 2149811000 MAIL ADDRESS: STREET 1: 300 CRESCENT COURT STREET 2: SUITE 1200 CITY: DALLAS STATE: TX ZIP: 75201 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on October 27, 1998 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) BACHMAN INFORMATION SYSTEMS, INC. AMENDED AND RESTATED 1986 INCENTIVE AND NONQUALIFIED STOCK OPTION PLAN CAYENNE SOFTWARE, INC. AMENDED 1996 INCENTIVE AND NONQUALIFIED STOCK OPTION PLAN CAYENNE SOFTWARE, INC. 1998 NONQUALIFIED STOCK OPTION PLAN CADRE TECHNOLOGIES, INC. 1988 INCENTIVE AND NON-STATUTORY STOCK OPTION PLAN CADRE TECHNOLOGIES, INC. 1989 NON-STATUTORY STOCK OPTION PLAN STOCK OPTION AGREEMENTS DATED DECEMBER 29, 1997 BETWEEN CAYENNE SOFTWARE, INC. AND EACH OF MASSOOD ZARRABIAN AND FREDERICK PHILLIPS (Full title of the plans) DON J. MCDERMETT, JR., ESQ. WITH A COPY TO: SENIOR VICE PRESIDENT AND GENERAL COUNSEL MARK E. BETZEN, ESQ. STERLING SOFTWARE, INC. JONES, DAY, REAVIS & POGUE 300 CRESCENT COURT, SUITE 1200 2300 TRAMMELL CROW CENTER DALLAS, TEXAS 75201 2001 ROSS AVENUE (214) 981-1000 DALLAS, TEXAS 75201 (Name, address, including zip code, and (214) 220-3939 telephone number, including area code, of agent for service) ------------------ CALCULATION OF REGISTRATION FEE
========================================================================================================================== 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) - -------------------------------------------------------------------------------------------------------------------------- Common Stock, par value $0.10 per share (1). . . . . . . 40,266 shares $200.39 $8,069,089 $2,244 ==========================================================================================================================
(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 Bachman Information Systems, Inc. Amended and Restated 1986 Incentive and Nonqualified Stock Option Plan, the Cayenne Software, Inc. Amended 1996 Incentive and Nonqualified Stock Option Plan, the Cayenne Software, Inc. 1998 Nonqualified Stock Option Plan, the Cadre Technologies, Inc. 1988 Incentive and Non-Statutory Stock Option Plan, the Cadre Technologies, Inc. 1989 Non-Statutory Stock Option Plan and the Stock Option Agreements, dated December 29, 1997, between Cayenne Software, Inc. and each of Massood Zarrabian and Frederick Phillips (collectively, the "Plans"), that were outstanding at the effective time of the merger of Cayenne Software, 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 Common Stock issuable upon the exercise of the Options. (4) Computed in accordance with Rule 457(h). ================================================================================ 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; (b) Quarterly Reports on Form 10-Q for the fiscal quarters ended December 31, 1997, March 31, 1998 and June 30, 1998; (c) Current Report on Form 8-K, dated June 21, 1998; (d) Proxy Statement on Schedule 14A for the Annual Meeting of Stockholders of Sterling Software held on March 11, 1998; 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 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. 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. II-1 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 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 II-2 23.1 Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5.1) 23.2 Consent of Ernst & Young LLP 24.1 Power of Attorney 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; 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. II-3 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 October 26, 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 October 26, 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. * Vice President; 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 II-4 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 Power of Attorney EX-5.1 2 OPINION OF JONES, DAY, REAVIS & POGUE EXHIBIT 5.1 ----------- Jones, Day, Reavis & Pogue 2300 Trammell Crow Center 2001 Ross Avenue Dallas, TX 75201-2958 October 26, 1998 Sterling Software, Inc. 300 Crescent Court Suite 1200 Dallas, Texas 75201 Re: Registration Statement on Form S-8 relating to 40,266 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 40,266 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 applicable Plan against payment of the consideration therefor as provided in the Options and the applicable Plan, will be validly issued, fully paid and nonassessable. In rendering the foregoing opinion, we have (i) assumed (a) that the 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 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 EX-23.2 3 CONSENT OF ERNST & YOUNG LLP 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 Bachman Information Systems, Inc. Amended and Restated 1986 Incentive and Nonqualified Stock Option Plan, the Cayenne Software, Inc. Amended 1996 Incentive and Nonqualified Stock Option Plan, the Cayenne Software, Inc. 1998 Nonqualified Stock Option Plan, the Cadre Technologies, Inc. 1988 Incentive and Non-Statutory Stock Option Plan, the Cadre Technologies, Inc. 1989 Non-Statutory Stock Option Plan and the Stock Option Agreements, dated December 29, 1997, between Cayenne Software, Inc. and each of Massood Zarrabian and Frederick Phillips, 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 October 23, 1998 EX-24.1 4 POWER OF ATTORNEY 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., 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 Bachman Information Systems, Inc. Amended and Restated 1986 Incentive and Nonqualified Stock Option Plan, the Cayenne Software, Inc. Amended 1996 Incentive and Nonqualified Stock Option Plan, the Cayenne Software, Inc. 1998 Nonqualified Stock Option Plan, the Cadre Technologies, Inc. 1988 Incentive and Non-Statutory Stock Option Plan, the Cadre Technologies, Inc. 1989 Non- Statutory Stock Option Plan and the Stock Option Agreements, dated December 29, 1997, between Cayenne Software, Inc. and each of Massood Zarrabian and Frederick Phillips, following the merger of Cayenne Software, 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: October 23, 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 -----END PRIVACY-ENHANCED MESSAGE-----