<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule 13D
Under the Securities Exchange Act of 1934
(Amendment No. 24)
Sterling Software, Inc.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, par value $0.10 per share
- --------------------------------------------------------------------------------
(Title of Class of Securities)
859547-10-1
-------------------------------------------------------
(CUSIP Number)
Charles D. Maguire, Jr.
901 Main Street, Suite 6000
Dallas, Texas 75202
(214) 953-6000
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
August 30, 1995
-------------------------------------------------------
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [_].
Check the following box if a fee is being paid with the statement [_]. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 1 of 10 Pages
<PAGE>
CUSIP NO. 859547-10-1 13D Page 2 of 10 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Sam Wyly ###-##-####
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [_]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [_]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
395,954
- --------------------------------------------------------------------------------
8 SHARED VOTING POWER
300,000
- --------------------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
1,596,965
- --------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
300,000
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,896,965
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [_]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.4%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP NO. 859547-10-1 13D Page 3 of 10 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Charles J. Wyly, Jr. ###-##-####
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [_]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [_]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
563,590
- --------------------------------------------------------------------------------
8 SHARED VOTING POWER
300,000
- --------------------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
1,248,273
- --------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
300,000
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,548,273
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [_]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP NO. 859547-10-1 13D Page 4 of 10 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Maverick Entrepreneurs Fund, Ltd. (f/k/a First Dallas Limited) 75-2319145
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [_]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [_]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Texas
- --------------------------------------------------------------------------------
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
300,000
- --------------------------------------------------------------------------------
8 SHARED VOTING POWER
0
- --------------------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
300,000
- --------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
300,000
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [_]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.1%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP NO. 859547-10-1 13D Page 5 of 10 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The Wyly Group
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [_]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [_]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Texas
- --------------------------------------------------------------------------------
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
1,259,544
- --------------------------------------------------------------------------------
8 SHARED VOTING POWER
0
- --------------------------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
3,145,238
- --------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,145,238
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [_]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.3%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN, PN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP NO. 859547-10-1 13D Page 6 of 10 Pages
Item 1. Security and Issuer.
-------------------
Not amended.
Item 2. Identity and Background.
-----------------------
Not amended.
Item 3. Source and Amount of Funds or Other Consideration.
-------------------------------------------------
Not applicable.
Item 4. Purpose of Transaction.
----------------------
Not amended.
Item 5. Interest in Securities of the Issuer.
------------------------------------
Item 5 is hereby amended to read in its entirety as follows:
As more fully described in Item 6, effective February 23, 1995,
Maverick Entrepreneurs entered into an arrangement with Lehman Brothers Finance,
S.A. (the "Lender") in respect of 300,000 shares of Common Stock, and Maverick
Entrepreneurs and the Lender amended that arrangement on August 30, 1995.
Sam Wyly beneficially owns 1,896,965 shares, or 7.4%, of the Common
Stock of the Company. Sam Wyly beneficially owns 1,100,000 of such shares by
virtue of his ownership of options, beneficially owns 138,612 of such shares as
sole general partner of Tallulah, Ltd., beneficially owns 300,000 of such shares
as a general partner of Maverick Entrepreneurs and beneficially owns an
aggregate of 358,353 of such shares as trustee of the trusts listed below
(through direct ownership by such trusts of 257,342 shares and beneficial
ownership by such trusts of an additional 101,011 shares as a result of such
trusts' ownership of warrants):
<TABLE>
<CAPTION>
Name of Trust Number of Shares
------------- Beneficially Owned
------------------
<S> <C>
1. The Christiana Parker Wyly Trust 34,890
2. The Andrew David Sparrow Wyly Trust 34,890
3. The Laurie L. Wyly Revocable Trust 97,624
4. The Lisa Wyly Revocable Trust 95,425
5. The Kelly Wyly Elliott Trust 95,524
</TABLE>
Sam Wyly possesses sole voting power with respect to 394,954 shares
of Common Stock, sole dispositive power with respect to 1,596,965 shares of
Common Stock and shared voting and dispositive power with respect to 300,000
shares of Common Stock.
<PAGE>
CUSIP NO. 859547-10-1 13D Page 7 of 10 Pages
Charles J. Wyly, Jr. beneficially owns 1,548,273 shares, or 6%, of
the Common Stock of the Company. Charles Wyly beneficially owns 550,000 of such
shares by virtue of his ownership of options, beneficially owns 256,574 of such
shares as sole general partner of Brush Creek, Ltd., beneficially owns 300,000
of such shares as a general partner of Maverick Entrepreneurs, and beneficially
owns an aggregate of 441,699 of such shares as trustee of the trusts listed
below (through direct ownership by such trusts of 307,016 shares and beneficial
ownership by such trusts of an additional 134,683 shares as a result of such
trusts' ownership of warrants):
<TABLE>
<CAPTION>
Name of Trust Number of Shares
------------- Beneficially Owned
------------------
<S> <C>
1. The Martha Caroline Wyly Trust 110,425
2. The Charles J. Wyly, III Trust 110,425
3. The Emily Ann Wyly Trust 110,424
4. The Jennifer Lynn Wyly Trust 110,425
</TABLE>
Charles J. Wyly, Jr. possesses sole voting power with respect to
563,590 shares of Common Stock, sole dispositive power with respect to 1,248,273
shares of Common Stock and shared voting and dispositive power with respect to
300,000 shares of Common Stock.
Maverick Entrepreneurs beneficially owns and possesses sole voting
and dispositive power with respect to 300,000 shares, or 1.1%, of the Common
Stock of the Company.
The Reporting Persons as a group beneficially own 3,145,238 shares,
or 12.3%, of the Common Stock of the Company. The Reporting Persons as a group
possess sole voting power with respect to 1,259,544 shares of Common Stock and
sole dispositive power with respect to 3,145,238 shares of Common Stock.
Except as otherwise reflected in this Item 5 or Item 6, no
transactions in the Common Stock were effected by any of the Reporting Persons
during the last 60 days or since the most recent filing on Schedule 13D,
whichever is less.
<PAGE>
CUSIP NO. 859547-10-1 13D Page 8 of 10 Pages
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
---------------------------------------------------------------------
to Securities of the Issuer.
- ---------------------------
Item 6 is hereby amended to read in its entirety as follows:
On February 23, 1995, Maverick Entrepreneurs entered into a Loan
Agreement with the Lender providing for loans to Maverick Entrepreneurs from
time to time (the "Loan Agreement"). In connection with the Loan Agreement
Maverick Entrepreneurs entered into various security documents (the "Security
Documents") provided for in the Loan Agreement. Included in the Security
Documents are documents that provide, in general, that: (i) with respect to an
aggregate of 300,000 shares of Common Stock (the "Shares"), if the market price
of such Shares on or before February 23, 1998, is less than $29.00 (adjusted to
$32.57 after June 1, 1995), then the Lender, upon the request of Maverick
Entrepreneurs, will pay to Maverick Entrepreneurs the difference between such
market price and such specified amount at the time of such request, and if the
market price on February 23, 1998, is greater than $53.56, Maverick
Entrepreneurs will, on that date, pay to the Lender the difference between such
market price and such specified amount; and (ii) Maverick Entrepreneurs is
required to pledge such rights and an aggregate of 300,000 Shares to secure its
obligations under the Security Documents. Reference is made to the complete
terms of the Loan Agreements and Security Documents in the forms attached hereto
as exhibits.
On August 30, 1995, Maverick Entrepreneurs and the Lender amended the
Loan Agreement and the Security Documents to provide, in general, that: (i) with
respect to an aggregate of 300,000 shares of Common Stock (the "Shares"), if the
market price of such Shares on or before February 23, 1998, is less than
$40.491, then the Lender, upon the request of Maverick Entrepreneurs, will pay
to Maverick Entrepreneurs the difference between such market price and such
specified amount at the time of such request, and if the market price on
February 23, 1998, is greater than $70.00, Maverick Entrepreneurs will, on that
date, pay to the Lender the difference between such market price and such
specified amount; and (ii) Maverick Entrepreneurs is required to pledge such
rights and an aggregate of 300,000 Shares to secure its obligations under the
Security Documents. Reference is made to the complete terms of the Loan
Agreements and Security Documents, as amended, in the forms attached hereto as
exhibits.
Item 7. Material to be Filed as Exhibits.
--------------------------------
Exhibit 1. Agreement pursuant to Rule 13d-1(f)(1)(iii).//(1)//
Exhibit 2. Form of Loan Agreement dated as of February 23, 1995
between Maverick Entrepreneurs Fund, Ltd. and Lehman
Brothers Finance, S.A., including Form of Promissory
Note.//(2)//
Exhibit 3. Option Transaction dated February 23, 1995 between
Maverick Entrepreneurs Fund, Ltd. and Lehman Brothers
Finance S.A.//(2)//
Exhibit 4. Option Transaction dated February 23, 1995 between
Maverick Entrepreneurs Fund, Ltd. and Lehman Brothers
Finance S.A.//(2)//
Exhibit 5. Form of Guarantee of Lehman Brothers Holdings
Inc.//(2)//
<PAGE>
CUSIP NO. 859547-10-1 13D Page 9 of 10 Pages
Exhibit 6. Form of Pledge Agreement, dated as of February 23,
1995, between Maverick Entrepreneurs Fund, Ltd. and
Lehman Brothers Finance S.A.//(2)//
Exhibit 7. Form of Amendment Agreement dated as of August 30,
1995, between Maverick Entrepreneurs Fund, Ltd., and
Lehman Brothers Finance, S.A., including Form of
Promissory Note.//(1)//
Exhibit 8. Revised Option Transaction dated August 30, 1995,
between Maverick Entrepreneurs Fund, Ltd., and Lehman
Brothers Finance, S.A.//(1)//
Exhibit 9. Revised Option Transaction dated August 30, 1995,
between Maverick Entrepreneurs Fund, Ltd., and Lehman
Brothers Finance, S.A.//(1)//
- -------------
(1) Filed herewith.
(2) Previously filed with Amendment No. 21 to this Schedule 13D.
<PAGE>
CUSIP NO. 859547-10-1 13D Page 10 of 10 Pages
SIGNATURES
After reasonable inquiry, and to the best of our knowledge and belief, we
certify that the information set forth in this statement is true, complete and
correct.
Date: September 5, 1995 /s/ Sam Wyly
-----------------------------------------
Sam Wyly
/s/ Charles J. Wyly, Jr.
-----------------------------------------
Charles J. Wyly, Jr.
MAVERICK ENTREPRENEURS FUND, LTD.
(formerly
FIRST DALLAS LIMITED)
By: /s/ Sam Wyly
-------------------------------------
Sam Wyly,
General Partner
By: /s/ Charles J. Wyly, Jr.
-------------------------------------
Charles J. Wyly, Jr.,
General Partner
<PAGE>
CUSIP NO. 859547-10-1 13D
EXHIBIT 1
Pursuant to Rule 13d-1(f)(1)(iii) of Regulation 13D-G of the General
Rules and Regulations of the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended, the undersigned agree that
the statement to which this Exhibit is attached is filed on behalf of each
of them.
Date: September 5, 1995 /s/ Sam Wyly
-----------------------------------------
Sam Wyly
/s/ Charles J. Wyly, Jr.
-----------------------------------------
Charles J. Wyly, Jr.
MAVERICK ENTREPRENEURS FUND, LTD.
(formerly
FIRST DALLAS LIMITED)
By: /s/ Sam Wyly
-------------------------------------
Sam Wyly,
General Partner
By: /s/ Charles J. Wyly, Jr.
-------------------------------------
Charles J. Wyly, Jr.,
General Partner
<PAGE>
EXHIBIT 7
---------
LEHMAN BROTHERS
FINANCE
Amendment No. 1
This AMENDMENT AGREEMENT, dated as of August 30, 1995, by and between
MAVERICK ENTREPRENEURS FUND, LTD. (the "Borrower") and LEHMAN BROTHERS FINANCE
S.A., a Swiss Corporation (the "Lender").
WITNESSETH
WHEREAS, the Borrower and the Lender are party to a Loan Agreement
dated as of February 23, 1995 (the "Loan Agreement") under which the Lender
made a loan to the Borrower in the principal amount of USD9,771,000, secured
by a pledge of certain securities, and
WHEREAS, the Collar Documentation referenced in the Loan Agreement
has been amended and, as a result thereof, the Lender has agreed to advance
additional funds to the Borrower under the terms and conditions of the Loan
Agreement.
NOW, THEREFORE the parties hereto agree as follows:
1. Definition of Terms. Unless expressly stated otherwise, all terms
-------------------
used herein shall have the same meanings as those ascribed to them in the
Loan Agreement.
2. Amendment.
----------
A. The introductory paragraph of the Loan Agreement is hereby amended
to read as follows:
"The Borrower has applied to the Lender for a loan in the aggregate prinicipal
amount of USD12,147,300. The Lender is willing to make such loan to the
Borrower, subject to the terms and conditions hereinafter set forth."
B. Exhibit A to the Loan Agreement is hereby replaced with the FORM
OF PROMISSORY NOTE attached as Exhibit A to this Amendment Agreement.
<PAGE>
3. Other Terms and Conditions. Except as expressly amended hereby, the
------------------------------
Loan Agreement remains unchanged and in full force and effect. The Borrower
hereby confirms all of its obligations under the Loan Agreement as amended
hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement
to be duly executed as of the date first stated above.
LEHMAN BROTHERS FINANCE S.A.
By: /s/ J. Staricco
-------------------
Name: Jim Staricco
Title: General Manager
By: /s/ M. Corsat
-------------------
Name: Marcelle Corsat
Title: Fonde de Pouvoir
Confirmed as of the date
first above written:
MAVERICK ENTREPENEURS FUND, LTD.
By: /s/ Sam Wyly
-------------------
Name:
Title:
<PAGE>
EXHIBIT A
FORM OF PROMISSORY NOTE
Date: Principal Amount: $12,147,300
FOR VALUE RECEIVED, the undersigned, MAVERICK ENTREPRENEURS FUND, LTD.
(the "Maker"), hereby promises to pay to the order of LEHMAN BROTHERS
FINANCE, S.A. (the "Holder"), at [office or bank of the Borrower], on the
Maturity Date, the lesser of the principal amount hereof and the aggregate
unpaid principal amount of the Loan, in lawful money of the United States
of America in immediately available funds, and to pay interest from the
date hereof on the principal amount hereof from time to time outstanding,
in like funds, at said office, at a rate or rates per annum and payable
on such dates as determined pursuant to the terms of the Loan Agreement
(as defined below).
This Note is the Note referred to in the Loan Agreement dated as of
February 23, 1995 between the Maker and the Holder, as the same may be amended
or modified from time to time (the "Loan Agreement"). The Loan Agreement
contains additional rights of the holder hereof. Capitalized terms used
but not defined herein have the meaning assigned thereto to the Loan Agreement.
This Note is subject to mandatory repayment, prior to the Maturity Date, in
whole or in part, as provided in the Loan Agreement. If an Event of Default
occurs and is continuing, the principal and accrued interest hereon may be
declared to be due and payable in the manner and with the effect provided in the
Loan Agreement.
If the Maker shall default in the payment of the principal of or interest
on the Loan or any other amount becoming due under the Loan Agreement, by
acceleration or otherwise, the Maker promises to pay interest on demand
from time to time, to the extent permitted by law, on such defaulted amount
up to (but not including) the date of actual payment.
The Maker hereby waives diligence, presentment, demand, protest and
notice of any kind whatsoever, other than as expressly required by the Loan
Agreement. The nonexercise by the Holder of any of its rights hereunder
in any particular instance shall not constitute a waiver thereof in that
or any subsequent instance.
This Note shall be construed in accordance with and governed by the
laws of the State of New York and any applicable laws of the United States
of America. This Note is secured by and entitled to the benefits of the
Security Documents.
MAVERICK ENTREPRENEURS FUND, LTD.
by
----------------------------
Title:
<PAGE>
EXHIBIT 8
---------
LEHMAN BROTHERS
FINANCE
- --------------------------------------------------------------------------------
August 30, 1995
Revised Option Transaction
Maverick Entrepreneurs Fund, Ltd.
8800 North Central Expressway
Suite 1300
Dallas, Texas 75206
- --------------------------------------------------------------------------------
Master Number: MAVE0494
LEF Reference Number: N95020071A
Gentlemen:
The purpose of this letter agreement (this "Confirmation") is to confirm
the revised terms and conditions of the Transaction entered into between us on
the Trade Date specified below (the "Option Transaction"). This letter
agreement constitutes a "Confirmation" as referred to in the ISDA Master
Agreement specified below.
The definitions and provisions contained in the 1991 ISDA Definitions (as
published by the International Swaps and Derivatives Association, Inc. (formerly
known as the International Swap Dealers Association, Inc. ("ISDA")), are
incorporated into this Confirmation. In the event of any inconsistency between
those definitions and provisions and this Confirmation, this Confirmation will
govern.
1. This Confirmation supplements, forms part of, and is subject to, the
ISDA Master Agreement, including the Pledge Agreement (the "Agreement"), to be
negotiated between Lehman Brothers Finance S.A. ("LBF") and Maverick
Entrepreneurs Fund, Ltd. ("Counterparty"). All provisions contained in
the Agreement govern this Confirmation except as expressly modified below. In
addition, this Confirmation shall itself evidence a complete and binding
agreement between you and us as to the terms and conditions of the Option
Transaction to which this Confirmation relates.
2. The terms of the Option Transaction to which this Confirmation relates
are as follows:
General Terms:
Agent: Lehman Brothers Inc. is confirming as
agent for both Buyer and Seller
Trade Date: February 23, 1995
Option Style: European Option
Option Type: Call Option
Seller: Counterparty
Buyer: LBF
Underlying Shares: Common Shares of Sterling Software, Inc.
Underlying Currency: USD
Quotation Exchange: The New York Stock Exchange
Number of Options: 300,000
Share Entitlement per Option: 1 Underlying Share
<PAGE>
Strike Price: USD 70.00
---------
Premium: USD 1,503,000
-------------
Premium Payment Date September 1, 1995
-------------------- -----------------
Related Option Transaction: The American Put Option Transaction entered
into between Buyer and Seller on the Trade
Date (LBF Reference No.: N95020071B).
Exchange Business Day: A day that is (or, but for the occurrence
of a Market Disruption Event, would have
been) a trading day on the relevant Market
Disruption Exchange(s) other than a day
on which trading on any Market Disruption
Exchange(s) is scheduled to close prior to
its regular weekday closing time.
Calculation Agent: Lehman Brothers Inc., whose determinations
and calculations shall be binding in the
absence of manifest error.
Exercise:
Exercise Period: The Expiration Date
Expiration Date: February 23, 1998
Exercise Date: The Exchange Business Day during the
Exercise Period on which that Option is
or is deemed to be exercised.
Automatic Exercise: If, on the Expiration Date, the Option is
in-the-money, then the Option shall be
deemed automatically exercised unless the
Buyer notifies the Seller to the contrary.
Multiple Exercise: Inapplicable
Seller's telephone or Shari Robertson
facsimile number and Tel.# 214-891-8341
contact details for Fax # 214-891-8311
purposes of giving notice:
2
<PAGE>
Valuation:
Valuation Date: Each Exchange Business Day during the
Valuation Period on which a Market
Disruption Event has not occurred.
Valuation Period: The ten (10) Exchange Business Days
immediately prior to, and including, the
Exercise Date.
Final Price: The arithmetic average of the closing
prices of the Underlying Shares on each
Valuation Date. If a Market Disruption
Event occurs on one or more of the
Exchange Business Days during the
Valuation Period, then the Final Price
will equal the average of the closing
prices of the Underlying Shares on the
Exchange Business Days during the
Valuation Period on which a Market
Disruption Event has not occurred or, if
there is only one such Exchange Business
Day, the closing price of the Underlying
Shares on such day. If a Market Disruption
Event occurs on all Exchange Business Days
during the Valuation Period, then the
Calculation Agent will determine the Final
Price of the Underlying Shares on the last
Exchange Business Day of the Valuation
Period, regardless of whether a Market
Disruption Event has occurred on such day.
Market Disruption Event: The occurrence or existence during the
Market Disruption Period that ends at the
close of the Market Disruption
Exchange(s) on the Valuation Date of any
of the following events, in the
determination of the Calculation Agent:
The suspension of or material limitation
imposed on trading in (1) the Underlying
Shares or (2) any options contracts on the
Underlying Shares.
Market Disruption Period: One-half hour
Market Disruption Exchange(s): The Quotation Exchange
Settlement:
Method of Settlement: Cash Settlement
Settlement Currency: The Underlying Currency
Cash Settlement Amount: An amount, as calculated by the
Calculation Agent, equal to the Number of
Options multiplied by the Strike Price
----------
Differential multiplied by the Share
----------
Entitlement per Option.
Strike Price Differential: An amount equal to the greater of (i)
the excess of the Final Price over the
Strike Price and (ii) zero.
Cash Settlement Payment Date: Five (5) Exchange Business Days after the
final Valuation Date.
Dividends: If, at any time during the period from
and including the Trade Date to but
excluding the Cash Settlement Payment
Date, an ex-dividend date occurs with
respect to the Underlying Shares, then
the Strike Price shall be reduced by the
corresponding amount.
3
<PAGE>
Collateral: On the Trade Date, Counterparty shall pledge to
LBF the Underlying Shares as Collateral for this
Option Transaction (the "Upfront Collateral").
Such Upfront Collateral shall be pledged
to LBF until the Cash Settlement Payment Date
and Counterparty's performance of its
obligations under this Option Transaction shall
be secured by the Upfront Collateral.
Other Provisions:
Counterparty Representation: Counterparty represents that (i) it is not
entering into the Option Transaction on behalf
of or for the accounts of any other person or
entity, and will not transfer or assign its
obligations under the Option Transaction or
any portion of such obligations to any other
person or entity except in compliance with
applicable laws and the terms of the Option
Transaction; (ii) it is authorized to enter
into the Option Transaction and such action
does not violate any laws of its jurisdiction
of organization or residence or the terms of any
agreement to which it is a party; and (iii) it
has reached its own conclusions about the
Option Transaction, and any legal, regulatory,
tax, accounting or economic consequences
arising from the Option Transaction, and has
concluded that the Option Transaction is
suitable in light of its own investment
objectives, financial capabilities and
expertise.
Counterparty represents that (i) it has
held the Underlying Shares since at least
April 30, 1993; (ii) it acquired the Underlying
Shares in open-market purchases; (iii) the
amount of Underlying Shares sold by it and by
all persons whose sales are required to be taken
into consideration pursuant to paragraph (e) of
Rule 144 under the Securities Act of 1933
during the preceeding three months is zero; and
(iv) it, and any person whose sales are
required to be taken into consideration pursuant
to paragraph (e) of Rule 144 under the
Securities Act of 1933, will not sell
additional securities of the same class
through any other means during (a) the period
commencing on the Trade Date through April 30,
1996, or (b) the three month period
immediately prior to the Expiration Date, in
each case, without the prior written consent of
LBF, which consent shall not be unreasonably
withheld. Notwithstanding the above,
Counterparty or any person whose sales are
required to be taken into consideration by it
pursuant to paragraph (e) of Rule 144 under the
Securities Act of 1933 may, at any other time
during the term of this Option Transaction,
sell additional securities of the same class
upon providing LBF with written notice two
(2) Exchange Business Days immediately prior
to the date of such sale.
Neither LBF nor any of its affiliates has
advised Counterparty with respect to any
legal, regulatory, tax, accounting or economic
consequences arising from this Option
Transaction, and neither LBF nor any of its
affiliates is acting as agent or advisor for
Counterparty in connection with this Option
Transaction.
4
<PAGE>
Settlement Provision: a) All payments under this Option Transaction
will be made without any deduction or
withholding for or on account of any withholding
tax, stamp tax, or any other tax, duties, fees or
commissions required by any applicable law.
b) Seller's obligations to Buyer hereunder are
secured under the terms of the Pledge Agreement.
Adjustments: The Calculation Agent will make adjustments to
this Option Transaction in case of the occurrence
of certain events as follows:
(i) If a stock dividend or other stock
distribution is declared with respect to the
Underlying Shares, then (a) the Number of Options
shall be increased by the same number of shares
issued multiplied by the Share Entitlement per
----------
Option, and (b) the Strike Price shall be
proportionately reduced as soon as such event
becomes effective.
(ii) If a spin-off has occurred with respect to
the Underlying Shares, then (a) any property
distributed or apportioned with respect to the
Underlying Shares, to the extent of such
distribution or apportionment, shall be included
in any valuation of the Underlying Shares, and
(b) the Strike Price shall not be adjusted.
Governing Law: New York
Transfer: Neither party may transfer any Option, in whole
or in part, without the prior written consent of
the non-transferring party, which consent shall
not be unreasonably withheld. Notwithstanding the
foregoing LBF may assign this Option Transaction
to any affiliated entity whose obligations in
respect of such assignment are guaranteed by the
guarantor of LBF's obligations; provided,
--------
however, that (i) the transferring party will
-------
notify the other party of any such assignment and
(ii) such assignment shall not be permitted
hereunder if, as a result of the assignment, a
payment hereunder becomes subject to any
deduction or withholding for or on account of any
tax which would not have arisen had such
assignment not been effected.
Guarantee: Lehman Brothers Holdings Inc. shall
unconditionally guarantee to Counterparty the due
and punctual payment of all amounts payable by
LBF under this Option Transaction as such
payments become due and payable.
5
<PAGE>
Account Details:
LBF's payment instructions: Chemical Bank, New York
ABA Number: 021000128
Favour: Lehman Brothers Finance S.A.
Account Number: 066-196566
LBF's delivery instructions: Citibank, N.A.
New York, USA
Account Bear Stearns Securities
Corporation
ABA Number 021000089
For the account of Lehman Brothers
Counterparty's payment instructions: Chemical Bank, New York
ABA Number: 021000128
Account Name: Lehman Brothers Inc.
Account Number: 140-094-221
Further Credit Name: Maverick
Entrepreneurs Fund, Ltd.
Further Credit Number: 837-20012
Please confirm that the foregoing currently sets forth the terms of our
agreement by executing the copy of this Confirmation enclosed for that purpose
and returning it to us or by sending to us a letter substantially similar to
this letter, which letter sets forth the material terms of the Option
Transaction to which this Confirmation relates and indicates your agreement to
those terms.
Yours sincerely,
LEHMAN BROTHERS FINANCE S.A.
By: /s/ J. Staricco
-----------------
Name: Jim Staricco
Title: General Manager
By: /s/ M. Corsat
-------------------
Name: Marcelle Corsat
Title: Fonde de Pouvair
Confirmed as of the date
first above written
MAVERICK ENTREPRENEUR FUND, LTD.
By: /s/ Sam Wyly
----------------
Name:
Title:
Execution time will be furnished upon Counterparty's written request.
6
<PAGE>
EXHIBIT 9
---------
LEHMAN BROTHERS
FINANCE
August 30, 1995
Revised Option Transaction
Maverick Entrepreneurs Fund, Ltd.
8800 North Central Expressway
Suite 1300
Dallas, Texas 75206
- --------------------------------------------------------------------------------
Master Number: MAVE0494
LBF Reference Number: N95020071B
Gentlemen:
The purpose of this letter agreement (this "Confirmation") is to confirm
the revised terms and conditions of the Transaction entered into between us on
the Trade Date specified below (the "Option Transaction"). This letter agreement
constitutes a "Confirmation" as referred to in the ISDA Master Agreement
specified below.
The definitions and provisions contained in the 1991 ISDA Definitions (as
published by the International Swaps and Derivatives Association, Inc. (formerly
known as the International Swap Dealers Association, Inc. ("ISDA")) are
incorporated into this Confirmation. In the event of any inconsistency between
those definitions and provisions and this Confirmation, this Confirmation will
govern.
1. This Confirmation supplements, forms part of, and is subject to, the
ISDA Master Agreement, including the Pledge Agreement (the "Agreement"), to be
negotiated between Lehman Brothers Finance S.A. ("LBF") and Maverick
Entrepreneurs Fund, Ltd. ("Counterparty"). All provisions contained in the
Agreement govern this Confirmation except as expressly modified below. In
addition, this Confirmation shall itself evidence a complete and binding
agreement between you and us as to the terms and conditions of the Option
Transaction to which this Confirmation relates.
2. The terms of the Option Transaction to which this Confirmation relates
are as follows:
General Terms:
Agent: Lehman Brothers Inc. is confirming as agent
for both Buyer and Seller
Trade Date: February 23, 1995
Option Style: American Option
Option Type: Put Option
Seller: LBF
Buyer: Counterparty
Underlying Shares: Common Shares of Sterling Software, Inc.
Underlying Currency: USD
Quotation Exchange: The New York Stock Exchange
Number of Options: 300,000
Share Entitlement per Option: 1 Underlying Share
<PAGE>
Strike Price: USD 40.4910
-----------
Premium: USD 975,000
-----------
Premium Payment Date: September 1, 1995
-----------------
Related Option Transaction: The European Call Option Transaction
entered into between Buyer and Seller on
the Trade Date (LBF Reference No.:
N95020071A).
Exchange Business Day: A day that is (or, but for the occurrence
of a Market Disruption Event, would have
been) a trading day on the relevant Market
Disruption Exchange(s) other than a day on
which trading on any Market Disruption
Exchange(s) is scheduled to close prior to
its regular weekday closing time.
Calculation Agent: Lehman Brothers Inc., whose determinations
and calculations shall be binding in the
absence of manifest error.
Exercise:
Exercise Period: Any Exchange Business Day from, and
including, the Trade Date to, and
including, the tenth Exchange Business Day
immediately prior to the Expiration Date.
Expiration Date: February 23, 1998
Exercise Date: The Exchange Business Day during the
Exercise Period on which that Option is or
is deemed to be exercised.
Notice of Exercise and
Written Confirmation: Applicable. If the notice of exercise is
delivered after 1:00 p.m. (local time in
New York) on an Exchange Business Day, then
that notice will be deemed delivered on the
next following Exchange Business Day, if
any, in the Exercise Period.
Automatic Exercise: If, on the Expiration Date, the Option is
in-the-money, then the Option shall be
deemed automatically exercised unless the
Buyer notifies the Seller to the contrary.
Multiple Exercise: Inapplicable
Seller's telephone or Vruk Bulajic
facsimile member and Tel #: 212-526-0905
contact details for Fax #: 212-528-7337
purposes of giving notice: cc: Jim Staricco
Tel #: 4122-789-0789
Fax #: 4122-789-1929
2
<PAGE>
Valuation:
Valuation Date: Each Exchange Business Day during the
Valuation Period on which a Market
Disruption Event has not occurred.
Valuation Period: The Exchange Business Days from, and
including, the Exercise Date to, and
including the ninth Exchange Business Day
immediately following the Exercise Date;
provided, however, that if the Option
Transaction is exercised pursuant to the
Automatic Exercise provision set forth
above, then the Valuation Period will be
the ten (10) Exchange Business Days
immediately prior to, and including, the
Expiration Date.
Final Price: The arithmetic average of the closing
prices of the Underlying Shares on each
Valuation Date. If a Market Disruption
Event occurs on one or more of the
Exchange Business Days during the
Valuation Period, then the Final Price
will equal the average of the closing
prices of the Underlying Shares on the
Exchange Business Days during the
Valuation Period on which a Market
Disruption Event has not occurred or, if
there is only one such Exchange Business
Day, the closing price of the Underlying
Shares on such day. If a Market
Disruption Event occurs on all Exchange
Business Days during the Valuation
Period, then the Calculation Agent will
determine the Final Price of the
Underlying Shares on the last Exchange
Business Day of the Valuation Period,
regardless of whether a Market Disruption
Event has occurred on such day.
Market Disruption Event: The occurrence or existence during the
Market Disruption Period that ends at the
close of the Market Disruption
Exchange(s) on the Valuation Date of any
of the following events, in the
determination of the Calculation Agent:
The suspension of or material limitation
imposed on trading in (1) the Underlying
Shares or (2) any options contracts on
the Underlying Shares.
Market Disruption Period: One-half hour
Market Disruption Exchange(s): The Quotation Exchange
3
<PAGE>
Settlement:
Method of Settlement: Cash Settlement
Settlement Currency: The Underlying Currency
Cash Settlement Amount: An amount, as calculated by the
Calculation Agent, equal to the Number of
Options multiplied by the Strike Price
----------
Differential multiplied by the Share
----------
Entitlement per Option.
Strike Price Differential: An amount equal to the greater of (i) the
excess of the Strike Price over the Final
Price, and (ii) zero.
Cash Settlement Payment Date: Five (5) Exchange Business Days after the
final Valuation Date.
Dividends: If, at any time during the period from
and including the Trade Date to but
excluding the Cash Settlement Payment
Date, an ex-dividend date occurs with
respect to the Underlying Shares, then
the Strike Price shall be reduced by the
corresponding amount.
4
<PAGE>
Other Provisions:
Counterparty Representation: Counterparty represents that (i) it is not
entering into the Option Transaction on behalf
of or for the accounts of any other person or
entity, and will not transfer or assign its
obligations under the Option Transaction or
any portion of such obligations to any other
person or entity except in compliance with
applicable laws and the terms of the Option
Transaction; (ii) it is authorized to enter
into the Option Transaction and such action
does not violate any laws of its jurisdiction
of organization or residence or the terms of
any agreement to which it is a party; and
(iii) it has reached its own conclusions about
the Option Transaction, and any legal,
regulatory, tax, accounting or economic
consequences arising from the Option
Transaction, and has concluded that the Option
Transaction is suitable in light of its own
investment objectives, financial capabilities
and expertise.
Counterparty represents that (i) it has held
the Underlying Shares since at least April
30, 1993; (ii) it acquired the Underlying
Shares in open-market purchases; (iii) the
amount of Underlying Shares sold by it and by
all persons whose sales are required to be taken
into consideration pursuant to paragraph (e) of
Rule 144 under the Securities Act of 1933 during
the preceding three months is zero; and (iv)
it, and any person whose sales are required to
be taken into consideration pursuant to
paragraph (e) of Rule 144 under the Securities
Act of 1933, will not sell additional securities
of the same class through any other means during
(a) the period commencing on the Trade Date
through April 30, 1996, or (b) the three month
period immediately prior to the Expiration Date,
in each case, without the prior written consent
of LBF, which consent shall not be unreasonably
withheld. Notwithstanding the above,
Counterparty or any person whose securities are
required to be taken into consideration by it
pursuant to paragraph (c) of Rule 144 under
the Securities Act of 1933 may, at any other
time during the term of this Option Transaction,
sell additional securities of the same class
upon providing LBF with written notice two (2)
Exchange Business Days immediately prior to
the date of such sale.
Neither LBF nor any of its affiliates has
advised Counterparty with respect to any legal,
regulatory, tax, accounting or economic
consequences arising from this Option
Transaction, and neither LBF nor any of its
affiliates is acting as agent or advisor for
Counterparty in connection with this Option
Transaction.
5
<PAGE>
Settlement Provision: a) Seller's obligations to Buyer under
this Option Transaction, if any, shall not
accrue until Buyer's obligations under the
Pledge Agreement are fully satisfied.
b) All payments under this Option Transaction
will be made without any deduction or
withholding for or on account of any
withholding tax, stamp tax, or any other
tax, duties, fees or commissions required
by any applicable law.
c) Buyer shall have no right to unwind
or exercise this Option Transaction, in whole
or in part, prior to the repayment by Buyer
of all amounts due Seller under the Loan
Agreement between Buyer and Seller dated the
date hereof.
Adjustments: The Calculation Agent will make adjustments
to this Option Transaction in case of the
occurrence of certain events as follows:
(i) If a stock dividend or other stock
distribution is declared with respect to the
Underlying Shares, then (a) the Number of
Options shall be increased by the same number
of shares issued multiplied by the Share
----------
Entitlement per Option, and (b) the Strike
Price shall be proportionately reduced as
soon as such event becomes effective.
(ii) If a spin-off has occurred with respect
to the Underlying Shares, then (a) any
property distributed or apportioned with
respect to the Underlying Shares, to the
extent of such distribution or apportionment,
shall be included in any valuation of the
Underlying Shares, and (b) the Strike Price
shall not be adjusted.
Governing Law: New York
Transfer: Neither party may transfer any Option,
in whole or in part, without the prior written
consent of the non-transferring party, which
consent shall not be unreasonably withheld.
Notwithstanding the foregoing, LBF may assign
this Option Transaction to any affiliated
entity whose obligations in respect of such
assignment are guaranteed by the guarantor of
LBF's obligations; provided, however, that (i)
--------- --------
the transferring party will notify the other
party of any such assignment and (ii) such
assignment shall not be permitted hereunder
if, as a result of the assignment, a payment
hereunder becomes subject to any deduction or
withholding for or on account of any tax which
would not have arisen had such assignment not
be effected.
Guarantee: Lehman Brothers Holdings Inc. shall
unconditionally guarantee to Counterparty the
due and punctual payment of all amounts
payable by LBF under this Option Transaction as
such payments become due and payable.
6
<PAGE>
Account Details:
LBF's payment instructions: Chemical Bank, New York
ABA Number: 021000128
Favour: Lehman Brothers Finance S.A.
Account Number: 066-196566
LBF's delivery instructions: Citibank, N.A.
New York, USA
Account Bear Stearns Securities
Corporation
ABA Number 021000089
For the account of Lehman Brothers
Counterparty's payment
instructions: Chemical Bank, New York
ABA Number: 021000128
Account Name: Lehman Brothers Inc.
Account Number: 140-094-221
Further Credit Name: Maverick
Entrepreneurs Fund, Ltd.
Further Credit Number: 837-20012
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing the copy of this Confirmation enclosed for that purpose
and returning it to us or by sending to us a letter subsequently similar to this
letter, which letter sets forth the material terms of the Option Transaction to
which this Confirmation relates and indicates your agreement to those terms.
Yours sincerely,
LEHMAN BROTHERS FINANCE S.A.
By: /s/ J. Staricco
-------------------
Name: Jim Staricco
Title: General Manager
By: /s/ M. Corsat
-------------------
Name: Marcelle Corsat
Title: Fonde de Pouvoir
Confirmed as of the date
first above written:
MAVERICK ENTREPRENEURS FUND, LTD.
By: /s/ Sam Wyly
------------------
Name:
Title:
Execution times will be furnished upon Counterparty's written request.
7
