-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, XhVA7lWXn2W+4xRG/+AKyCFcLMQvTa199T1tBZ1pgWYGFjGOGGSHUnQU+/UAuIPd a6tOBXupf3fckpq7oA4Xkw== 0000950109-95-001654.txt : 19950505 0000950109-95-001654.hdr.sgml : 19950505 ACCESSION NUMBER: 0000950109-95-001654 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19950504 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 SEC ACT: 1933 Act SEC FILE NUMBER: 033-59107 FILM NUMBER: 95534687 BUSINESS ADDRESS: STREET 1: 8080 N CENTRAL EXPWY STE 1100 CITY: DALLAS STATE: TX ZIP: 75206 BUSINESS PHONE: 2148918600 S-3 1 FORM S-3 As filed with the Securities and Exchange Commission on May 4, 1995 Registration No. 33- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------- 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]
CALCULATION OF REGISTRATION FEE ============================================================================================================= Title of Each Class Amount Proposed Maximum Proposed Maximum of Securities to to be Offering Price Aggregate Amount of be Registered Registered Per Unit(1) Offering Price(1) Registration Fee - ------------------------------------------------------------------------------------------------------------- Common Stock, par value $.10 per share 3,873,203 shares $35.125 $136,046,291 $46,913 =============================================================================================================
(1) Estimated solely for the purpose of calculating the registration fee. Pursuant to Rule 457(c), the offering price and registration fee are computed on the basis of the average of the high and low prices of the Common Stock as reported by the New York Stock Exchange on May 1, 1995. --------- 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 3,873,203 Shares STERLING SOFTWARE, INC. Common Stock This Prospectus relates to the offer and sale by Sterling Software, Inc. ("Sterling" or the "Company") of up to 3,873,203 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 options (the "Options") granted or to be granted from time to time to eligible persons pursuant to the provisions of the Company's Non-Statutory Stock Option Plan (as amended through April 26, 1995, the "Plan"). This Prospectus also relates to the offer and sale of up to 3,873,203 Shares by certain stockholders (the "Selling Stockholders") who hold Shares acquired upon the exercise of Options. The Shares may be sold from time to time by the Selling Stockholders, or by pledgees, donees, transferees or other successors in interest. 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 such successors in interest 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 May 1, 1995, the closing price of the Common Stock on the NYSE was $35 1/8. The Company will pay all expenses in connection with this offering, which are estimated to be approximately $64,000.00. ---------------- 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 __________, 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, Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's regional offices at Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60611 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. This Prospectus, which constitutes part of a Registration Statement filed by the Company with the Commission under the Securities Act (the "Registration Statement"), omits certain of the information contained in the Registration Statement. Reference is made to the Registration Statement and to the exhibits thereto for further information with respect to the Company and the Common Stock offered hereby. Copies of such Registration Statement are available from the Commission. Statements contained herein concerning the provisions of documents filed herewith as exhibits 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 North Central Expressway, Suite 1100, Dallas, Texas 75206, and its 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, filed January 25, 1995; (ii) Quarterly Report on Form 10-Q (File No. 1-8465) for the quarter ended December 31, 1994; (iii) Current Report on Form 8-K (File No. 1-8465) dated November 3, 1994, filed November 3, 1994; -2- (iv) Current Report on Form 8-K (File No. 1-8465) dated November 14, 1994, filed November 14, 1994; (v) Current Report on Form 8-K (File No. 1-8465) dated November 14, 1994, filed November 25, 1994; (vi) Current Report on Form 8-K (File No. 1-8465) dated November 30, 1994, filed December 15, 1994; (vii) Current Report on Form 8-K dated February 28, 1995, filed February 28, 1995; and (viii) the description of the Company's Common Stock contained in the Company's Registration Statement on Form 8-A (File 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 by reference herein and to be a part hereof from the date of filing thereof. 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 not receive any of the proceeds from the sales of the Shares offered hereby, except for proceeds from the exercise of the Options. The proceeds received by the Company upon exercise of the Options will be used for general corporate purposes, including, but not limited to, operating and working capital requirements. -3- SELLING STOCKHOLDERS This Prospectus covers the purchase from the Company of up to 3,873,203 Shares in the aggregate, by the holders of the Options upon the exercise thereof in accordance with their terms and the subsequent offer and resale of Shares by certain stockholders who hold Shares acquired upon the exercise of Options upon the exercise thereof. Subject to the provisions of the Plan, a Stock Option Committee (the "Committee") appointed by the Board of Directors of the Company will determine from time to time the individuals from among the Company's key employees and advisors, including officers and directors (other than non-employee directors) of the Company, to whom Options will be granted and the number of shares of Common Stock to be covered by each Option. The purchase price of Common Stock subject to any Option granted pursuant to the Plan may not be less than the fair market value of the Common Stock on the date of grant. Options held by directors and executive officers of the Company are not transferable other than by will or the laws of descent and distribution, or pursuant to a qualified domestic relations order, as defined by the Internal Revenue Code of 1986, as amended, or Title I of the Employee Retirement Income Security Act, or the rules thereunder. The Committee has the power to include in or amend any Option agreement held by a participant who is not a director or executive officer of the Company such provisions regarding transferability of the participant's Options as the Committee, in its sole discretion, deems to be appropriate. The Committee also has the power to include in each Option agreement such provisions regarding exercisability following termination of a participant's employment or service as a director (other than a non-employee director) or advisor for any reason (including termination due to death or disability) as the Committee, in is sole discretion, deems to be appropriate. Unless sooner terminated by action of the Board, the Plan will terminate on December 31, 2011, and no Options may be granted pursuant to the Plan after such date. Certain information required pursuant to the Securities Act relating to the Selling Stockholders will be provided by a Prospectus Supplement. PLAN OF DISTRIBUTION The Shares may be issued to the Selling Stockholders or any permitted transferees from time to time by the Company upon exercise of the Options. The Shares may be sold from time to time by any of the Selling Stockholders, or by pledgees, donees, transferees or other successors in interest. 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 successors in interest and/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 -4- 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 securities offered hereby have been passed upon for the Company by Jackson & Walker, L.L.P., Dallas, Texas. Michael C. French, a partner in Jackson & Walker, L.L.P., is a director of the Company. -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, as amended by Form 10-K/A Amendment No. 1 filed January 25, 1995, have been audited by Ernst & Young LLP, independent auditors, as set forth in their reports thereon included therein and incorporated by reference herein, which as to the year 1992, are based in part on the report of Arthur Andersen LLP, independent public accountants. Such consolidated financial statements and schedules 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 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 authority of that firm as experts in accounting and auditing. -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................. 4 Legal Matters........................ 5 Experts.............................. 6
3,873,203 SHARES STERLING SOFTWARE, INC. COMMON STOCK -------------------------------- PROSPECTUS --------------------------------- __________, 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......................... $46,913.00 Printing, Engraving and Filing Expenses.. 6,000.00 Accounting Fees and Expenses............. 5,000.00 Legal Fees and Expenses.................. 5,000.00 Miscellaneous............................ 1,087.00 ---------- Total.................................... $64,000.00 ==========
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. (2) 4.3 Certificate of Amendment of Certificate of Incorporation of the Registrant. (3) 4.4 Restated Bylaws of the Registrant. (4) 4.5 Form of Common Stock Certificate. (5) 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 (appearing on page II-6 of this Registration Statement). (6) 25 None. 26 None. II-2 27 None. 28 None. 99 Form of Non-Statutory Stock Option Plan of the Registrant (as amended through April 26, 1995). (6) - --------------- (1) Previously filed as an exhibit to the Registrant's Registration Statement No. 2-82506 on Form S-1 and incorporated herein by reference. (2) Previously filed as an exhibit to the Registrant's Annual Report on Form 10-K for the fiscal year ended September 30, 1993 and incorporated herein by reference. (3) Previously filed as an exhibit to the Registrant's Registration Statement No. 33-69926 on Form S-8 and incorporated herein by reference. (4) Previously filed as an exhibit to the Registrant's Registration Statement No. 33-47131 on Form S-8 and incorporated herein by reference. (5) Previously filed as an exhibit to the Registrant's Registration Statement No. 2-86825 on Form S-1 and incorporated herein by reference. (6) Filed herewith. II-3 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; (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. II-4 (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-5 POWER OF ATTORNEY Each person whose signature appears below authorizes Sterling L. Williams, George H. Ellis and Jeannette P. Meier, and each of them, each of whom may act without joinder of the others, to execute in the name of each such person who is then an officer or director of the Registrant and to file any amendments to this Registration Statement necessary or advisable to enable the Registrant to comply with the Securities Act of 1933, as amended, and any rules, regulations and requirements of the Securities and Exchange Commission, in respect thereof, in connection with the registration of the securities which are the subject of this Registration Statement, which amendments may make such changes in the Registration Statement as such attorney may deem appropriate. 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 Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Dallas, State of Texas on the 2nd day of May, 1995. STERLING SOFTWARE, INC. By: /s/ Jeannette P. Meier -------------------------------- Name: Jeannette P. Meier ------------------------- Title: Executive Vice President ------------------------ II-6 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 /s/ Sterling L. Williams Executive Officer 5/2/95 - ------------------------- and Director Sterling L. Williams (Principal Executive Officer) Executive Vice President /s/ George H. Ellis and Chief 5/2/95 - ------------------------- Financial Officer George H. Ellis (Principal Financial and Accounting Officer) /s/ Sam Wyly 5/2/95 - ------------------------- Chairman of the Sam Wyly Board of Directors /s/ Charles J. Wyly, Jr. 5/2/95 - ------------------------- Vice Chairman of the Charles J. Wyly, Jr. Board of Directors /s/ Evan A. Wyly 5/2/95 - ------------------------- Vice President and Evan A. Wyly Director - ------------------------- Director Michael C. French /s/ Robert J. Donachie 5/2/95 - ------------------------- Chairman of the Audit Robert J. Donachie Committee and Director /s/ Phillip A. Moore 5/2/95 - ------------------------- Executive Vice Phillip A. Moore President, Chief Technology Officer and Director - ------------------------- Director Robert E. Cook - ------------------------- Director Donald R. Miller, Jr. - ------------------------- Director Francis A. Tarkenton 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. (2) 4.3 Certificate of Amendment of Certificate of Incorporation of the Registrant. (3) 4.4 Restated Bylaws of the Registrant. (4) 4.5 Form of Common Stock Certificate. (5) 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 (appearing on page II-6 of this Registration Statement). (6) 25 None. 26 None. 27 None. 28 None. 99 Form of Non-Statutory Stock Option Plan of the Registrant (as amended through April 26, 1995). (6) - -------- (1) Previously filed as an exhibit to the Registrant's Registration Statement No. 2-82506 on Form S-1 and incorporated herein by reference. (2) Previously filed as an exhibit to the Registrant's Annual Report on Form 10-K for the fiscal year ended September 30, 1993 and incorporated herein by reference. (3) Previously filed as an exhibit to the Registrant's Registration Statement No. 33-69926 on Form S-8 and incorporated herein by reference. (4) Previously filed as an exhibit to the Registrant's Registration Statement No. 33-47131 on Form S-8 and incorporated herein by reference. (5) Previously filed as an exhibit to the Registrant's Registration Statement No. 2-86825 on Form S-1 and incorporated herein by reference. (6) Filed herewith. EX-5 2 JACKSON WALKER OPINION EXHIBIT 5 [LETTERHEAD OF JACKSON & WALKER, L.L.P. APPEARS HERE] May 3, 1995 Sterling Software, Inc. 8080 N. Central Expressway Suite 1100 Dallas, Texas 75206 Re: Registration Statement 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 offering and sale of up to 3,873,203 shares of the Company's Common Stock, par value $0.10 per share (the "Shares"), which Shares are issuable upon the exercise of options granted or to be granted from time to time under the Company's Non-Statutory Stock Option Plan (the "Plan"). A Registration Statement on Form S-3 covering the offering and sale of the Shares (the "Registration Statement") 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 a copy of the Plan. 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 and sold in accordance with the terms of the Plan, will be duly authorized, validly issued, fully paid and nonassessable. Sterling Software, Inc. May 3, 1995 Page 2 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 Registration Statement. 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. EX-23.1 3 ERNST & YOUNG CONSENT Exhibit 23.1 Consent of Ernst & Young LLP, Independent Auditors We consent to the reference to our firm under the caption "Experts" in the Registration Statement (Form S-3) pertaining to the registration of 3,873,203 shares of common stock of Sterling Software, Inc. and to the incorporation by reference therein of our reports dated December 1, 1994, with respect to the consolidated financial statements and financial statement schedules of Sterling Software, Inc. included in its Annual Report on Form 10-K for the year ended September 30, 1994, as amended by Form 10-K/A Amendment No. 1, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Ernst & Young LLP Dallas, Texas May 3, 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, D.C. May 3, 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 May 4, 1995 EX-99 6 NON-STAT STOCK OPTION PLAN EXHIBIT 99 STERLING SOFTWARE, INC. NON-STATUTORY STOCK OPTION PLAN (As amended, through April 26, 1995) 1. Purpose. The purpose of the Non-Statutory Stock Option Plan of Sterling Software, Inc. (the "Plan") is to provide key employees and advisors with a proprietary interest in Sterling Software, Inc., a Delaware corporation, and its subsidiaries (the "Company") through the granting of options ("Option" or "Options") to purchase shares of the Company's authorized Common Stock, par value $0.10 per share ("Common Stock"), in order to: a. Increase the interest in the Company's welfare of those key employees and advisors who share primary responsibility for the management, growth and protection of the business of the Company; b. Recognize the contributions made by certain key employees and advisors to the Company's growth during its development stage; c. Furnish an incentive to such key employees and advisors to continue their services for the Company; and d. Provide a means through which the Company may attract able persons to engage as key employees and advisors. With respect to persons subject to Section 16 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), transactions under the Plan are intended to comply with all applicable conditions of Rule 16b-3 or its successors under the Exchange Act. To the extent that any provision of the Plan or action by the Committee (as defined in Section 2) fails to so comply, it shall be deemed null and void, to the extent permitted by law and deemed advisable by the Committee. 2. Administration. With respect to Participants who are directors or executive officers of the Company ("Insiders"), the Plan shall be administered in accordance with the requirements of Rule 16b-3 of the Exchange Act by a committee (the "16b-3 Committee") consisting of such number of directors as are appointed by the Board of Directors of the Company (the "Board of Directors" or "Board") from time to time in accordance with the requirements of Rule 16b-3. With respect to all other Participants, the Plan shall be administered by the Board or by a committee (the "Stock Option Committee") consisting of not less than two directors of the Company appointed by the Board. As used herein, "Committee" shall mean (i) with respect to decisions relating to Insiders, the 16b-3 Committee, and (ii) with respect to decisions relating to all other Participants, the Stock Option Committee. Except as otherwise provided by the terms of this Plan or by the Board, the Committee shall have all the power and authority of the Board hereunder. The Committee shall have full and final authority in its discretion, but subject to the provisions of the Plan, to determine from time to time the individuals to whom Options shall be granted and the number of shares to be covered by each Option; to determine the time or times at which Options shall be granted; to interpret the Plan and the instruments by which Options will be evidenced; to make, amend and rescind rules and regulations relating to the Plan; to determine the terms and provisions of the instruments by which Options shall be evidenced; with the consent of the Participant (as defined in Section 3), to modify or amend any Option agreement or waive any conditions or restrictions applicable to any Option or the exercise thereof; and to make all other determinations necessary or advisable for the administration of the Plan. Non-employee members of the Board ("non-employee directors") shall not be eligible to receive Options under the Plan except as expressly provided in Section 21. 3. Participants. The Committee may, from time to time, select particular key employees and advisors of the Company, or of any subsidiary of the Company, to whom Options are to be granted, and upon the grant of such Options, the selected key employees and advisors shall become Participants in the Plan. As used herein, the term "Participant" means a key employee or advisor who accepts an Option, or the estate, personal representative or beneficiary thereof having the right to exercise an Option pursuant to its terms. 4. Shares Subject to the Plan. The shares of Common Stock subject to Options granted pursuant to the Plan shall be either shares of authorized but unissued Common Stock or shares of Common Stock reacquired by the Company. Shares that by reason of the expiration of an Option, or for any other reason, are no longer subject to purchase pursuant to an Option granted under the Plan, and shares from time to time rendered in payment of the exercise price of Options, may be made subject to additional Options granted pursuant to the Plan. The maximum aggregate number of shares of Common Stock that may be issued from time to time pursuant to the Plan shall be 4,875,000; provided that the Committee may adjust the number of shares available for Options, the number of shares subject to and the exercise price of Options granted hereunder to effect a change in capitalization of the Company, such as a stock dividend, stock split, reverse stock split, share combination, exchange of shares, merger, consolidation, reorganization, liquidation, or the like, of or by the Company. 5. Grant of Options. Options granted hereunder shall be evidenced by written stock option agreements containing such terms and provisions as are recommended and approved from time to time by the Committee, but subject to and not more favorable than the terms of the Plan. The Committee may from time to time require additional terms which the Committee deems necessary or advisable. The Company shall execute stock option agreements upon instruction from the Committee. 6. Maximum Amount of Stock Subject to Options. Subject to Section 21, the maximum aggregate fair market value (determined as of the time the Option is granted) of the Common Stock for which any Participant may be granted Options in any calendar year shall be determined by the Committee in its discretion. 7. Option Exercise Price. The purchase price of Common Stock subject to an Option granted pursuant to the Plan shall be no less than the fair market value of the Common Stock on the date of grant. 8. Restrictions. The Committee may, but need not, at the time of granting of an Option or at any subsequent time impose such restrictions, if any, on issuance, voluntary disposition and release from escrow of any Options including, without limitation, permitting exercise of Options only in installments over a period of years. 9. Payment. Full payment for Common Stock purchased upon the exercise of an Option shall be made at the time of exercise. No Common Stock shall be issued until full payment has been made and a Participant shall have none of the rights of a shareholder until shares of Common Stock are issued to him. Any federal, state or local taxes required to be paid or withheld at the time of exercise shall also be paid or withheld in full prior to any delivery of shares of Common Stock upon exercise. Payment may be made in cash, in shares of Common Stock then owned by the Participant, or in any other form of valid consideration, or a combination of any of the foregoing, as required by the Committee in its discretion. Shares of Common Stock tendered in payment of the exercise price of any Options may be reissued to the Participant who tendered the shares of Common Stock as part of the shares of Common Stock issuable upon exercise of other Options granted from time to time pursuant to the Plan. 10. Transferability of Options. Except as may be agreed upon by the Committee in accordance with the following paragraph, Options granted under the Plan shall not be transferable other than by will or the laws of descent and distribution, or pursuant to a qualified domestic relations order, as defined by the Internal Revenue Code of 1986, as amended (the "Code"), or Title I of the Employee Retirement Income Security Act ("ERISA"), or the rules thereunder. The designation by the holder of an Option of a beneficiary shall not constitute a transfer of the Option. The Committee shall have the discretion to include in or amend any Option agreement held by a Participant who is not an Insider such provisions regarding transferability of the Options as the Committee, in its sole discretion, deems to be appropriate. 11. Time of Granting of an Option. The grant of an Option pursuant to the Plan shall be deemed to have occurred when the Stock Option Committee shall have adopted a resolution approving such grant. -2- 12. Rights in Event of Death or Disability of Participant. The Committee shall have discretion to include in each Option agreement such provisions regarding exercisability of the Options following the death or disability of the Participant as it, in its sole discretion, deems to be appropriate. 13. Termination of Option Rights and Awards. The Committee may provide in each Option agreement for the circumstances under which Options granted hereunder may terminate for any reason that the Committee, in its sole discretion, deems appropriate. 14. Stock Purchased for Investment. At the discretion of the Committee, any Option agreement may provide that the Option holder shall, by accepting an Option, represent and agree on behalf of himself and his transferees by will or the laws of descent and distribution that all shares of Common Stock purchased upon the exercise of the Option will be acquired for investment and not for resale or distribution, and that upon each exercise of any portion of an Option, the person entitled to exercise the same shall furnish evidence satisfactory to the Company (including a written and signed representation) to the effect that the shares of Common Stock are being acquired in good faith and for investment and not for resale or distribution. 15. Amendment or Discontinuation. The Plan may be amended, altered or discontinued by the Board or, if the Board has specifically delegated this authority to the Committee, by the Committee, without approval of the stockholders. In the event any law, or any rule or regulation issued or promulgated by the Internal Revenue Service, Securities and Exchange Commission, National Association of Securities Dealers, Inc., any stock exchange upon which the Common Stock is listed for trading or other governmental or quasi- governmental agency having jurisdiction over the Company, its Common Stock or the Plan requires the Plan to be amended, the Plan will be amended at that time and all Options then outstanding will be subject to such amendment. 16. Employment. This Plan and any Option granted under this Plan do not confer upon the Participant any right to be employed or to continue employment with the Company. 17. No Obligation to Exercise Option. The granting of an Option pursuant to the Plan shall not impose any obligation upon the Participant to exercise such Option. 18. Termination. Unless sooner terminated by action of the Board or, if the Board has specifically delegated its authority to terminate the Plan to the Committee, by the Committee, the Plan shall terminate on December 31, 2011, and no Options may be granted pursuant to the Plan after such date. 19. Use of Proceeds. The proceeds derived from the sale of stock pursuant to Options granted under the Plan shall constitute general funds of the Company. 20. Effective Date of the Plan. The Plan shall be effective, as amended, on April 26, 1995. 21. Automatic Grants to Non-Employee Directors. Grants to non-employee directors on or after the date hereof shall be solely pursuant to the following formula: each non-employee director elected or appointed to the Board will receive, at the time of his or her initial election or appointment, an automatic grant of Options to purchase 40,000 shares of Common Stock. In addition, during the term of this Plan, each non-employee director will receive an additional automatic grant of Options to purchase 40,000 shares of Common Stock every five years on the anniversary date of his or her initial election or appointment to the Board, beginning on the fifth anniversary of his or her initial election or appointment to the Board; provided that such non-employee director has served continuously as a director of the Company since the date of his or her initial election or appointment to the Board. The exercise price of each such Option will be equal to the fair market value of the Common Stock on the date of grant. Each such Option will become exercisable in cumulative annual installments of one-fourth of the shares covered by the grant, commencing one year after the date of grant, and will expire five years from the date of grant; provided that each such Option will become immediately exercisable with respect to 100% of the shares covered by the grant in the event of a change of control. A change of control is deemed to occur (i) when any person, other -3- than Sam Wyly or Charles J. Wyly, Jr., or an affiliate of either of them, becomes the beneficial owner of securities of the Company representing 20% or more of the combined voting power of the Company's outstanding securities, (ii) if, during any three consecutive years, individuals who constitute the Board of Directors at the beginning of such period cease to constitute a majority of the Board of Directors or (iii) upon the occurrence of any event that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Exchange Act. This section shall not be amended more than once in any six-month period, other than to comport with changes in the Code or ERISA, or the rules thereunder. STERLING SOFTWARE, INC. By: ----------------------------------------- Sterling L. Williams President and Chief Executive Officer -4- -----END PRIVACY-ENHANCED MESSAGE-----