S-3/A 1 AMEND. NO. 1 TO FORM S-3 As filed with the Securities and Exchange Commission on May 23, 1995 Registration No. 33-59107 ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------- PRE-EFFECTIVE AMENDMENT NO. 1 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] --------- 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 19, 1995, the closing price of the Common Stock on the NYSE was $35 7/8. 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) Quarterly Report on Form 10-Q (File No. 1-8465) for the quarter ended March 31, 1995, as amended by Form 10-Q/A Amendment No. 1, filed May 19, 1995; (iv) Current Report on Form 8-K (File No. 1-8465) dated November 3, 1994, filed November 3, 1994; -2- (v) Current Report on Form 8-K (File No. 1-8465) dated November 14, 1994, filed November 14, 1994; (vi) Current Report on Form 8-K (File No. 1-8465) dated November 14, 1994, filed November 25, 1994; (vii) Current Report on Form 8-K (File No. 1-8465) dated November 30, 1994, filed December 15, 1994; (viii) Current Report on Form 8-K dated February 28, 1995, filed February 28, 1995; and (ix) 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 its 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. 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 Amount and Ownership of Selling Percentage Common Stock Stockholders' of Class of Position with Prior to Account Upon after Name the Company Offering (1) Exercise Offering (2) ---- ----------- ------------ -------- ------------ Warner C. Blow Executive Vice President 320,100 318,750 1,350* Richard Connelly Vice President and 30,688 (3) 20,000 10,688 (3)* Controller Robert J. Donachie Director 41,100 41,000 100* George H. Ellis Executive Vice President 332,500 (4) 259,500 73,000 (4)* and Chief Financial Officer Werner L. Frank Executive Vice President, 303,187 (5) 302,000 1,187 (5)* Business Development Michael C. French Director 65,800 65,000 800* Albert K. Hoover Vice President, Assistant 24,989 (6) 3,126 21,863 (6)* Secretary and Assistant General Counsel M. Gene Konopik Executive Vice President 159,812 (7) 108,000 51,812 (7)* Jeannette P. Meier Executive Vice President, 262,725 (8) 201,150 61,575 (8)* Secretary and General Counsel Phillip A. Moore Executive Vice President, 189,399 (9) 144,250 45,149 (9)* Chief Technology Officer and Director A. Maria Smith Executive Vice President 225,000 (10) 165,000 60,000 (10)* Clive A. Smith Executive Vice President 207,076 (11) 168,100 38,976 (11)* Geno P. Tolari Executive Vice President 250,000 (12) 150,000 100,000 (12)* Anne Vahala Vice President, Investor 65,876 (13) 41,000 24,876 (13)* Relations Sterling L. Williams President, Chief Executive 1,454,000 (14) 500,000 954,000 (14) Officer and Director (4.0%) Evan A. Wyly Vice President and 92,754 40,000 52,754* Director
------------- -4- * Indicates shares held are less than 1% of class. (1) Based on ownership as of April 30, 1995. Includes shares to be acquired upon exercise of Options granted under the Plan, some of which are not exercisable within 60 days of the date of this Prospectus. (2) Assumes the exercise of all Options granted under the Plan and the sale of the Common Stock acquired thereby. (3) Includes 3,688 shares purchasable pursuant to options not granted under the Plan, some of which are not exercisable within 60 days of the date of this Prospectus. (4) Includes 73,000 shares purchasable pursuant to options not granted under the Plan, some of which are not exercisable within 60 days of the date of this Prospectus. (5) Includes 90 shares held in escrow in connection with the Company's acquisition of Knowledgeware, Inc. (6) Includes 21,863 shares purchasable pursuant to options not granted under the Plan, some of which are not exercisable within 60 days of the date of this Prospectus. (7) Includes 38,150 shares purchasable pursuant to options not granted under the Plan, some of which are not exercisable within 60 days of the date of this Prospectus, and 1,324 shares held in escrow in connection with the Company's acquisition of Knowledgeware, Inc. (8) Includes 56,800 shares purchasable pursuant to options not granted under the Plan, some of which are not exercisable within 60 days of the date of this Prospectus. (9) Includes 150 shares directly held by Mr. Moore's son and 13,000 shares purchasable pursuant to options not granted under the Plan, some of which are not exercisable within 60 days of the date of this Prospectus. (10) Includes 60,000 shares purchasable pursuant to options not granted under the Plan, some of which are not exercisable within 60 days of the date of this Prospectus. (11) Includes 38,976 shares purchasable pursuant to options not granted under the Plan, some of which are not exercisable within 60 days of the date of this Prospectus. (12) Includes 100,000 shares purchasable pursuant to options not granted under the Plan, some of which are not exercisable within 60 days of the date of this Prospectus. (13) Includes 24,876 shares purchasable pursuant to options not granted under the Plan, some of which are not exercisable within 60 days of the date of this Prospectus. (14) Includes 950,000 shares purchasable pursuant to options not granted under the Plan, all of which are immediately exercisable. 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 -5- 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. -6- 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. -7- 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........................ 6 Experts.............................. 7
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. (4) 4.2 Certificate of Amendment of Certificate of Incorporation of the Registrant. (4) 4.3 Certificate of Amendment of Certificate of Incorporation of the Registrant. (4) 4.4 Certificate of Amendment of Certificate of Incorporation of the Registrant. (4) 4.5 Restated Bylaws of the Registrant. (1) 4.6 Form of Common Stock Certificate. (2) 5 Opinion of Jackson & Walker, L.L.P. (3) 8 None. 12 None. 15 None. 23.1 Consent of Ernst & Young LLP. (4) 23.2 Consent of Arthur Andersen LLP. (4) 23.3 Consent of Coopers & Lybrand L.L.P. (4) 23.4 Consent of Jackson & Walker, L.L.P. (included in its opinion filed as Exhibit 5 to this Registration Statement). (3) 24 Power of Attorney. (3) 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). (3) --------------- (1) Previously filed as an exhibit to the Registrant's Registration Statement No. 33-47131 on Form S-8 and incorporated herein by reference. (2) Previously filed as an exhibit to the Registrant's Registration Statement No. 2-86825 on Form S-1 and incorporated herein by reference. (3) Previously filed. (4) 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 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 22nd 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 Amendment to Registration Statement has been signed by the following persons in the capacities and on the dates indicated. Signatures Title Date ---------- ----- ---- President, Chief Sterling L. Williams* Executive Officer May 22, 1995 ------------------------- and Director Sterling L. Williams (Principal Executive Officer) Executive Vice President George H. Ellis* and Chief May 22, 1995 ------------------------- Financial Officer George H. Ellis (Principal Financial and Accounting Officer) Sam Wyly* May 22, 1995 ------------------------- Chairman of the Sam Wyly Board of Directors Charles J. Wyly, Jr.* May 22, 1995 ------------------------- Vice Chairman of the Charles J. Wyly, Jr. Board of Directors Evan A. Wyly* May 22, 1995 ------------------------- Vice President and Evan A. Wyly Director ------------------------- Director Michael C. French Robert J. Donachie* May 22, 1995 ------------------------- Chairman of the Audit Robert J. Donachie Committee and Director Phillip A. Moore* May 22, 1995 ------------------------- Executive Vice Phillip A. Moore President, Chief Technology Officer and Director ------------------------- Director Robert E. Cook ------------------------- Director Donald R. Miller, Jr. ------------------------- Director Francis A. Tarkenton *By: /s/ Jeannette P. Meier ------------------------ Jeannette P. Meier Attorney-in-Fact II-7 INDEX TO EXHIBITS Exhibit Number Description of Exhibit ------ ---------------------- 1 None. 2 None. 4.1 Certificate of Incorporation of the Registrant. (4) 4.2 Certificate of Amendment of Certificate of Incorporation of the Registrant. (4) 4.3 Certificate of Amendment of Certificate of Incorporation of the Registrant. (4) 4.4 Certificate of Amendment of Certificate of Incorporation of the Registrant. (4) 4.5 Restated Bylaws of the Registrant. (1) 4.6 Form of Common Stock Certificate. (2) 5 Opinion of Jackson & Walker, L.L.P. (3) 8 None. 12 None. 15 None. 23.1 Consent of Ernst & Young LLP. (4) 23.2 Consent of Arthur Andersen LLP. (4) 23.3 Consent of Coopers & Lybrand L.L.P. (4) 23.4 Consent of Jackson & Walker, L.L.P. (included in its opinion filed as Exhibit 5 to this Registration Statement). (3) 24 Power of Attorney. (3) 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). (3) -------- (1) Previously filed as an exhibit to the Registrant's Registration Statement No. 33-47131 on Form S-8 and incorporated herein by reference. (2) Previously filed as an exhibit to the Registrant's Registration Statement No. 2-86825 on Form S-1 and incorporated herein by reference. (3) Previously filed. (4) Filed herewith. EX-4.1 2 CERTIFICATE OF INCORPORATION EXHIBIT 4.1 CERTIFICATE OF INCORPORATION OF STERLING SOFTWARE, INC. ARTICLE I The name of the corporation is STERLING SOFTWARE, INC. ARTICLE II The address of the corporation's registered office in the State of Delaware is 100 West Tenth Street, in the City of Wilmington, County of New Castle, Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company. ARTICLE III The nature of the business or purposes to be conducted or promoted by the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. ARTICLE IV The total number of shares of stock of all classes which the corporation shall have authority to issue is Twenty-Two Million (22,000,000), consisting of Twenty Million (20,000,000) shares of Common Stock having a par value of $.10 per share, and Two Million (2,000,000) shares of Preferred Stock having a par value of $.10 per share. The Preferred Stock may be issued in one or more series as may be determined from time to time by the Board of Directors. The Preferred Stock of each such series shall have such voting powers, full or limited, or no voting powers, and such designations, preferences, and relative, participating, optional, redemption, conversion, exchange or other special rights, and qualifications, limitations or restrictions thereof, as shall be stated and expressed by the Board of Directors in the resolution or resolutions providing for the issue of such series of Preferred Stock pursuant to the authority to do so which is hereby expressly vested in the Board of Directors. Except as otherwise provided in any resolution or resolutions of the Board of Directors providing for the issue of any particular series of Preferred Stock, the number of shares of stock of any such series so set forth in such resolution or resolutions may be increased or decreased (but not below the number of shares of such series then outstanding) by a resolution or resolutions likewise adopted by the Board of Directors. No approval by class or series vote or otherwise, of the holders of the Preferred Stock or any series thereof will be required for the issue by the Board of Directors of any other series of Preferred Stock, whether or not in any respect senior to or on a parity with any such outstanding series, provided, however, that the Board of Directors may condition - 2 - the issue of such additional series of Preferred Stock on the approval, by such proportion as the Board of Directors may specify, of any such outstanding series. Except as otherwise provided in any resolution or resolutions of the Board of Directors providing for the issue of any particular series of Preferred Stock, Preferred Stock redeemed or otherwise acquired by the corporation shall assume the status of authorized but unissued Preferred Stock and shall be unclassified as to series and may thereafter, subject to the provisions of this Article IV and to any restrictions contained in any resolution or resolutions of the Board of Directors providing for the issue of any such series of Preferred Stock, be reissued in the same manner as other authorized by unissued Preferred Stock. Shares of Common Stock and, subject to the provisions of this Article, shares of any series of Preferred Stock may be issued from time to time as the Board of Directors determines and on such terms and for such consideration as may be fixed by the Board of Directors. Subject to the provisions of law and the preferences of the Preferred Stock, dividends may be paid on the Common Stock at such time and in such amounts as the Board of Directors may deem advisable. The authorized amount of shares of Common Stock and of Preferred Stock may, without a class or series vote, be - 3 - increased or decreased from time to time by the affirmative vote of the holders of a majority of the stock of the corporation entitled to vote thereon. Except as otherwise specifically required by law or as specifically provided in any resolution or resolutions of the Board of Directors providing for the issue of any particular series of Preferred Stock, the exclusive voting power of the corporation shall be vested in the Common Stock of the corporation. Each share of Common Stock shall entitle the holder thereof to one vote at all meetings of the stockholders of the corporation. ARTICLE V Section 1. The name and mailing address of the incorporator is as follows: Robert L. Jones 4400 InterFirst One Dallas, Texas 75202 Section 2. The name and mailing address of each person who is to serve as a director of the corporation until the first annual meeting of the stockholders of the corporation or until a successor is elected and qualified is as follows: Sterling L. Williams 1001 Campbell Centre 8350 North Central Expressway Dallas, Texas 75206 ARTICLE VI In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of - 4 - Directors is expressly authorized to make, alter or repeal the by-laws of the corporation. ARTICLE VII Election of directors need not be by written ballot unless the by-laws of the corporation shall so provide. Meetings of stockholders may be held within or without the State of Delaware, as the by-laws may provide. The books of the corporation may be kept (subject to any provision contained in the statutes of the State of Delaware) outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the by-laws of the corporation. ARTICLE VIII The corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, to the extent and in the manner now or hereafter prescribed by the laws of the State of Delaware, and additional provisions authorized by such laws as are then in force may be added hereto. All rights conferred upon the directors, officers and stockholders of the corporation herein or in any amendment hereof are granted subject to this reservation. I, THE UNDERSIGNED, being the incorporator hereinabove named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, do make this Certificate, hereby declaring and certifying that this is my - 5 - act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 10th day of February, 1983. /s/ Robert L. Jones ----------------------------- Robert L. Jones - 6 - EX-4.2 3 CERTIFICATE OF AMENDMENT EXHIBIT 4.2 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION Sterling Software, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That at a meeting of the Board of Directors of Sterling Software, Inc. and by a separate unanimous written consent of the Directors, resolutions were duly adopted setting forth proposed amendments of the Certificate of Incorporation of said corporation, declaring said amendments to be advisable and directing that said amendments be considered at the next annual meeting of the stockholders. The resolutions setting forth the proposed amendments are as follows: RESOLVED, that the Certificate of Incorporation of this corporation be amended by changing the first paragraph of the Article numbered "IV" so that, as amended, said paragraph of said Article shall be and read as follows: "The total number of shares of stock of all classes which the corporation shall have authority to issue is Fifty-Two Million (52,000,000), consisting of Fifty Million (50,000,000) shares of Common Stock having a par value of $.10 per share, and Two Million (2,000,000) shares of Preferred Stock having a par value of $.10 per share." RESOLVED, that the Certificate of Incorporation of this corporation be amended by changing the Article thereof numbered "VII" so that, as amended said Article shall be and read as follows: "ARTICLE VII All power of the corporation shall be exercised by or under the direction of the Board of Directors except as otherwise provided herein or required by law. For the management of the business and for the conduct of the affairs of the corporation, and in further creation, definition, limitation and regulation of the power of the corporation and of its directors and of its stockholders, it is further provided: (i) Election of Directors. Election of directors need not be by written ballot unless the Bylaws of the corporation shall so provide. (ii) Number, Election and Term of Directors. Except as otherwise fixed pursuant to the provisions of Article IV hereof relating to the rights of the holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation to elect additional directors under specified circumstances, the number of directors of the corporation shall be fixed from time to time by or pursuant to the Bylaws. The directors, other than those who may be elected by the holders of any class or series of stock having preference over the Common Stock as to dividends or upon liquidation, shall be classified, with respect to the time for which they severally hold office, into three classes, as nearly equal in number as possible, as shall be provided in the manner specified in the Bylaws, one class to hold office initially for a term expiring at the annual meeting of stockholders to be held in 1988, another class to hold office initially for a term expiring at the annual meeting of stockholders to be held in 1989, and another class to hold office initially for a term expiring at the annual meeting of stockholders to be held in 1990, with members of each class to hold office until their successors are elected and qualified. At each annual meeting of the stockholders of the corporation, the successors to the class of directors whose term expires at that meeting shall be elected to hold office for a term expiring at the annual meeting of stockholders held in the third year following the year of their election. (iii) Stockholder Nomination of a Director. Advance notice of nominations for the election of directors, other than by the Board of Directors or a Committee thereof, shall be given in the manner provided by the Bylaws. (iv) Amendment, Repeal, etc. Notwithstanding anything contained in this Certificate of Incorporation to the contrary, the affirmative vote of the holders of at least 75% of the voting power of all shares of the corporation entitled to vote generally in the election of directors, - 2 - voting together as a single class, shall be required to alter, amend or adopt any provision inconsistent with, or repeal, this Article VII or any provision hereof." RESOLVED, that the Certificate of Incorporation of this corporation be amended by adding a new Article numbered "IX" to read in its entirety as follows: "ARTICLE IX To the fullest extent permitted by the Delaware General Corporation Law as the same exists or may hereafter be amended, a director of the corporation shall not be liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director." RESOLVED, that the Certificate of Incorporation of this corporation be amended by adding a new Article numbered "X" to read in its entirety as follows: "ARTICLE X No action required to be taken, or which may be taken, at any annual or special meeting of stockholders of the corporation may be taken without a meeting, and the power of stockholders to consent in writing, without a meeting, to the taking of any action is specifically denied." SECOND: That thereafter, pursuant to certain resolutions, the Board of Directors directed that said amendments be considered at the next annual meeting of the stockholders. An annual meeting of the stockholders of said corporation was duly called and held, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware, at which meeting the necessary number of shares as required by statute were voted in favor of each of the amendments. THIRD: That said amendments were duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. FOURTH: That the capital of said corporation shall not be reduced under or by reason of said amendments. - 3 - IN WITNESS WHEREOF, Sterling Software, Inc. has caused this certificate to be signed by Sterling L. Williams, its President, and Jeannette P. Meier, its Secretary, this 13th day of March, 1987. By: /s/ Sterling L. Williams --------------------------------- Sterling L. Williams, President ATTEST: /s/ Jeannette P. Meier ----------------------------- Jeannette P. Meier, Secretary - 4 - STATE OF TEXAS ) ) SS: COUNTY OF DALLAS ) BEFORE ME, the undersigned authority, on this day personally appeared Sterling L. Williams and Jeannette P. Meier, President and Secretary, respectively, of Sterling Software, Inc., known to me to be the persons whose names are subscribed to the foregoing instrument, and acknowledged to me that they executed the same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL of office this 13th day of March, 1987. Sharon B. Cron -------------------------------- Notary Public in and for the State of Texas My Commission Expires: July 31, 1987 ---------------------- - 5 - EX-4.3 4 CERTIFICATE OF AMENDMENT EXHIBIT 4.3 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION Sterling Software, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That at a meeting of the Board of Directors of Sterling Software, Inc. and by a separate unanimous written consent of the Directors, resolutions were duly adopted setting forth a proposed amendment of the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and directing that said amendment be considered at the next annual meeting of the stockholders. The resolutions setting forth the proposed amendment is as follows: RESOLVED, that the Certificate of Incorporation of this corporation be amended by changing the first paragraph of the Article numbered "IV" so that, as amended, said paragraph of said Article shall be read as follows: "The total number of shares of stock of all classes which the corporation shall have authority to issue is Sixty Million (60,000,000), consisting of Fifty Million (50,000,000) shares of Common Stock having a par value of $.10 per share, and Ten Million (10,000,000) shares of Preferred Stock having a par value of $.10 per share." SECOND: That thereafter, pursuant to certain resolutions, the Board of Directors directed that said amendment be considered at the next annual meeting of the stockholders. An annual meeting of the stockholders of said corporation was duly called and held, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware, at which meeting the necessary number of shares as required by statute were voted in favor of the amendment. THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. FOURTH: That the capital of said corporation shall not be reduced under or by reason of said amendment. IN WITNESS WHEREOF, Sterling Software, Inc. has caused this Certificate to be signed by Sterling L. Williams, its President, and Jeannette P. Meier, its Secretary, this 14th day of October 1988. By: /s/ Sterling L. Williams ------------------------------- Sterling L. Williams, President ATTEST: /s/ Jeannette P. Meier --------------------------- Jeannette P. Meier, Secretary EX-4.4 5 CERTIFICATE OF AMENDMENT EXHIBIT 4.4 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION Sterling Software, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That at a meeting of the Board of Directors of Sterling Software, Inc., resolutions were duly adopted setting forth a proposed amendment of the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and directing that said amendment be considered at the next annual meeting of the stockholders. The resolution setting forth the proposed amendment is as follows: RESOLVED, that, subject to approval of the Company's stockholders of the Charter Amendment, the Company's Certificate of Incorporation be, and it hereby is, amended by changing the first paragraph of the Article numbered "IV" so that, as amended, said paragraph of said Article shall read as follows: "The total number of shares of stock of all classes which the corporation shall have authority to issue is Eighty-Five Million (85,000,000), consisting of Seventy-Five Million (75,000,000) shares of Common Stock having a par value of $.10 per share, and Ten Million (10,000,000) shares of Preferred Stock having a par value of $.10 per share." SECOND: That thereafter, pursuant to certain resolutions, the Board of Directors directed that said amendment be considered at the next annual meeting of the stockholders. An annual meeting of the stockholders of said corporation was duly called and held, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware, at which meeting the necessary number of shares as required by statute were voted in favor of the amendment. THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, Sterling Software, Inc. has caused this certificate to be signed by Albert K. Hoover, its Vice President, on this 11th day of May, 1995. By: /s/ Albert K. Hoover -------------------------------------- Albert K. Hoover, Vice President EX-23.1 6 CONSENT (E&Y) Exhibit 23.1 Consent of Ernst & Young LLP, Independent Auditors We consent to the reference to our firm under the caption "Experts" in Pre- effective Amendment No. 1 to 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 22, 1995 EX-23.2 7 CONSENT (AA) 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 22, 1995 EX-23.3 8 CONSENT (COOPERS & LYBRAND) Exhibit 23.3 Consent of Independent Accountants We consent to the incorporation by reference in this pre-effective Amendment No. 1 to the 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 22, 1995