<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D/A
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 28)
STERLING SOFTWARE, INC.
(Name of Issuer)
COMMON STOCK, PAR VALUE $0.10 PER SHARE
(Title of Class of Securities)
859547-10-1
(CUSIP Number)
ROBERT L. ESTEP
JONES, DAY, REAVIS & POGUE
2300 TRAMMELL CROW CENTER
2001 ROSS AVENUE
DALLAS, TEXAS 75201
(214) 220-3939
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
JANUARY 21, 1998
(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 / /.
(Continued on following pages)
(Page 1 of 18 Pages)
<PAGE>
CUSIP NO. 859547-10-113D/A Page 2 of 18 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*
BK, OO, WC
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 499,195
-----------------------------------------------------------------
OWNED BY
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH 0
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
2,299,195
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
2,299,195
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW
(11) EXCLUDES CERTAIN SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.7%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
* SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
Page 3 of 18 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*
BK, OO, WC
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 700,877
-----------------------------------------------------------------
OWNED BY
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH 0
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
1,600,877
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
1,600,877
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN
ROW (11)
4.0%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILING OUT!
<PAGE>
Page 4 of 18 Pages
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Maverick Entrepreneurs Fund, Ltd.
75-231945
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
BK, OO, WC
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Texas
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
-----------------------------------------------------------------
BENEFICIALLY 0
OWNED BY
-----------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH 0
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
0
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW
(11) EXCLUDES CERTAIN SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN
ROW (11)
0%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP NO. 859547-10-1 13D/A Page 5 of 18 Pages
This Schedule 13D/A Amendment No. 28 hereby amends and restates in its
entirety the Schedule 13D filed jointly by Sam Wyly, Charles J. Wyly, Jr. and
Maverick Entrepreneurs Fund, Ltd. ("Maverick Entrepreneurs" and collectively
with Sam Wyly and Charles J. Wyly, Jr., the "Reporting Persons") with respect to
the securities of Sterling Software, Inc., a Delaware corporation (the
"Company"). This statement terminates Meverick Entrepreneurs' membership in the
Reporting Persons' group. See Item 5.
Item 1. SECURITY AND ISSUER.
This statement relates to the ownership of common stock, par value
$.10 per share ("Common Stock"), of Sterling Software, Inc., a Delaware
corporation. The address of the principal executive office of the Company is
300 Crescent Court, Suite 1200, Dallas, Texas 75201.
Item 2. IDENTITY AND BACKGROUND.
This statement is being filed by Mr. Sam Wyly, Mr. Charles J. Wyly,
Jr. and Maverick Entrepreneurs. Maverick Entrepreneurs is a limited partnership
of which Sam Wyly and Charles J. Wyly, Jr. are the sole general partners.
The principal business and office address of each of the Reporting
Persons is 300 Crescent Court, Suite 1000, Dallas, Texas 75201. Sam Wyly is
principally employed as Chairman of the Board of Directors of each of the
Company and Michaels Stores, Inc. Charles J. Wyly, Jr. is principally employed
as Vice Chairman of the Board of Directors of each of the Company and Michaels
Stores, Inc.
No Reporting Person has, during the last five years, been convicted in
a criminal proceeding (excluding traffic violations or similar misdemeanors) or
been a party to a civil proceeding of a judicial or administrative body
resulting in subjection to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws.
Sam Wyly and Charles J. Wyly, Jr. is each a citizen of the United
States. Maverick Entrepreneurs is a Texas limited partnership.
Item 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The source of funds to hold a portion of the shares of Common Stock
beneficially owned by the Reporting Persons is borrowings under revolving lines
of credit maintained by (i) the trusts described in Item 5 for which Sam Wyly is
trustee (the "Sam Wyly Trusts"), (ii) Tallulah, Ltd., (iii) the trusts described
in Item 5 for which Charles J. Wyly, Jr. is trustee (the "Charles Wyly Trusts"),
(iv) Brush Creek, Ltd., and (v) Maverick Entrepreneurs, with each of NationsBank
of Texas, N.A. ("NationsBank") and Citibank, N.A. ("Citibank"). See Item 6
below.
The options described in Item 5 as held by Sam Wyly and Charles J.
Wyly, Jr. were granted under stock option plans of the Company.
Item 4. PURPOSE OF TRANSACTION.
The shares of Common Stock acquired by the Reporting Persons were
acquired for investment. Depending on market conditions and other factors that
they deem material to an investment decision, any of the Reporting Persons may
purchase additional shares of Common Stock or may dispose of all or a portion of
the shares of Common Stock they now beneficially own or may hereafter acquire.
Except as set forth in this Item 4, none of the Reporting Persons has any
present plans or proposals that relate to or would result in any of the actions
specified in clauses (a) through (j) of Item 4 of Schedule 13D.
Item 5. INTEREST IN SECURITIES OF THE ISSUER.
<PAGE>
CUSIP NO. 859547-10-1 13D/A Page 6 of 18 Pages
(a)-(c) On January 21, 1998, Maverick Entrepreneurs, a Texas limited
partnership, sold 300,000 shares of Common Stock on the open market at a price
of $36.3125 per share, which amount constituted all of the shares of Common
Stock of the Company held by Maverick Entrepreneurs. Thus, Maverick
Entrepreneurs will no longer be a reporting person pursuant to Rule 13d-1 of the
Securities Exchange Act of 1934. Sam Wyly and Charles J. Wyly, Jr. are both
General Partners of, and shared beneficial ownership of the Common Stock that
was held by, Maverick Entrepreneurs.
Except as otherwise reflected in this Item 5, no transactions in
the Common Stock were effected by the Reporting Persons during the last 60
days or since the most recent filing on Schedule 13D, whichever is less.
Sam Wyly beneficially owns 2,299,195 shares, or approximately 5.7%, of
the Common Stock of the Company. Sam Wyly beneficially owns (i) 1,800,000 of
such shares by virtue of his ownership of options to purchase Common Stock, (ii)
138,612 of such shares in his capacity as the sole general partner of Tallulah,
Ltd., (iii) 2,230 of such shares held for his benefit pursuant to the Sterling
Software, Inc. Savings and Security Plan (the "Savings Plan"), and (iv) an
aggregate of 358,353 of such shares in his capacity as the sole trustee of the
Sam Wyly Trusts listed below:
NUMBER OF SHARES
NAME OF TRUST BENEFICIALLY OWNED
------------- ------------------
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 Elliot Trust 95,524
Sam Wyly possesses sole voting power with respect to 499,195 shares of
Common Stock and sole dispositive power with respect to 2,299,195 shares of
Common Stock.
Charles J. Wyly, Jr. beneficially owns 1,600,877 shares, or
approximately 4.0%, of the Common Stock of the Company. Charles J. Wyly, Jr.
beneficially owns (i) 900,000 of such shares by virtue of his ownership of
options to purchase Common Stock, (ii) 256,574 of such shares in his capacity as
the sole general partner of Brush Creek, Ltd., (iii) 2,604 of such shares held
for his benefit pursuant to the Savings Plan, and (iv) an aggregate of 441,699
of such shares as the sole trustee of the Charles Wyly Trusts listed below:
NUMBER OF SHARES
NAME OF TRUST BENEFICIALLY OWNED
------------- ------------------
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
Charles J. Wyly, Jr. possesses sole voting power with respect to
700,877 shares of Common Stock and sole dispositive power with respect to
1,600,877 shares of Common Stock.
The Reporting Persons as a group beneficially own an aggregate of
3,900,072 shares of Common Stock, or approximately 9.4%, of the Common Stock of
the Company. The Reporting Persons as a group possess sole voting power with
respect to 1,200,072 shares of Common Stock and sole dispositive power with
respect to 3,900,072 shares of Common Stock.
(d) No other person is known to have the right to receive or the
power to direct the receipt of dividends from, or the proceeds from the sale of,
the Common Stock deemed to be beneficially owned by the Reporting Persons.
(e) Not applicable.
<PAGE>
CUSIP NO. 859547-10-1 13D/A Page 7 of 18 Pages
Item 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
On February 23, 1995, Maverick Entrepreneurs entered into an
agreement, as amended on August 30, 1995, with Lehman providing for loans to
Maverick Entrepreneurs from time to time (the "Lehman Agreement"). In
connection with the Lehman Agreement, Maverick Entrepreneurs entered into
various security documents, as amended, (the "Security Documents") provided for
in the Lehman 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, if the market price of such shares of Common Stock on or before
February 23, 1998, is less than $40.491, then Lehman, 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 Lehman 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 of Common
Stock to secure its obligations under the Security Documents.
On January 20, 1998, Maverick Entrepreneurs entered into a letter
agreement (a"Letter Agreement") with Lehman whereby Maverick Entrepreneurs
agreed to sell all of its shares of Common Stock of the Company. The Letter
Agreement further provided for the application of the proceeds from the sale of
the stock to pay all amounts due pursuant to the Lehman Agreement and the cash
settlement amount provided for in the Security Documents and for the termination
of the Security Documents.
Each of (i) the Sam Wyly Trusts and Tallulah, Ltd., (ii) the Charles
Wyly Trusts and Brush Creek, Ltd., and (iii) Maverick Entrepreneurs maintains
separate revolving lines of credit with NationsBank (collectively, the
"NationsBank Credit Facilities"). The obligations of each borrower to repay
advances made under its NationsBank Credit Facilities are several, full-recourse
obligations that are secured by the Borrower's pledge of certain shares of
Common Stock beneficially owned by the Reporting Persons as well as other
securities. Each advance under a NationsBank Credit Facility bears interest at
NationsBank's prime rate or at a floating rate, as elected by the borrower. Sam
Wyly and Charles J. Wyly, Jr. have each guaranteed the obligations of Maverick
Entrepreneurs under its NationsBank Credit Facility. The NationsBank Credit
Facilities were amended and restated effective as of November 22, 1996 to
provide that all amounts outstanding under the NationsBank Credit Facilities
mature on November 22, 1998.
Each of (i) Tallulah, Ltd., (ii) Brush Creek, Ltd., (iii) the Sam Wyly
Trusts, and (iv) the Charles J. Wyly, Jr. Trusts also maintains a separate
revolving line of credit with Citibank (collectively, the "Citibank Credit
Facilities"). The obligations of each borrower to repay advances made under its
Citibank Credit Facility are full-recourse obligations that are secured by the
borrower's pledge of certain shares of Common Stock beneficially owned by the
Reporting Persons, as well as other securities and assets. Each advance under a
Citibank Credit Facility bears interest at a rate of Citibank's announced base
rate, plus 1.0%, or at a Eurodollar-based rate, minus 1.0%, as elected by the
borrower. Sam Wyly and Charles J. Wyly, Jr. have guaranteed the obligations of
Tallulah, Ltd. and Brush Creek, Ltd., respectively, under the applicable
Citibank Credit Facility, and certain of the beneficiaries of each of the Sam
Wyly Trusts, and the Charles J. Wyly Trusts, have guaranteed the obligations of
the respective trusts under the applicable Citibank Credit Facility. The
Citibank Credit Facilities were amended effective as of December 16, 1996 to
provide that all amounts outstanding under the Citibank Credit Facilities will
mature on January 31, 1998.
The foregoing descriptions of the agreements relating to the Lehman
Agreement, the Security Documents, the Letter Agreement, the NationsBank Credit
Facilities and the Citibank Credit Facilities are qualified in their entirety by
reference to such agreements, copies of which have been filed as exhibits to
this Schedule 13D and are incorporated herein by reference.
<PAGE>
CUSIP NO. 859547-10-1 13D/A Page 8 of 18 Pages
Item 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 1.* Agreement pursuant to Rule 13d-1(f)(1)(iii) of the
Securities Exchange Act of 1934.
Exhibit 2.1 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. (Previously filed as Exhibit 2 to Amendment
No. 21 to this Schedule 13D.)
Exhibit 2.2 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. (Previously filed as Exhibit 7 to
Amendment No. 24 to this Schedule 13D.)
Exhibit 3. Form of Guarantee of Lehman Brothers Holdings Inc.
(Previously filed as Exhibit 5 to Amendment No. 21
to this Schedule 13D.)
Exhibit 4. Form of Pledge Agreement, dated as of February
23,1995, between Maverick Entrepreneurs Fund, Ltd.
and Lehman Brothers Finance S.A. (Previously filed
as Exhibit 6 to Amendment No. 21 to this Schedule
13D.)
Exhibit 5.1 Revised Option Transaction dated August 30, 1995,
between Maverick Entrepreneurs Fund, Ltd., and
Lehman Brothers Finance S.A. (Previously filed as
Exhibit 8 to Amendment No. 24 to this Schedule 13D.)
Exhibit 5.2 Revised Option Transaction dated August 30, 1995,
between Maverick Entrepreneurs Fund, Ltd., and
Lehman Brothers Finance S.A. (Previously filed as
Exhibit 9 to Amendment No. 24 to this Schedule 13D.)
Exhibit 6. Form of Amended and Restated Loan Agreement, dated
November 22, 1996, among NationsBank and each of (i)
Sam Wyly Trusts and Tallulah, Ltd.; (ii) the Charles
Wyly Trusts and Brush Creek Limited; and (iii)
Maverick Entrepreneurs Fund, Ltd. (Previously filed
as Exhibit 6 to Amendment No. 27 to this schedule
13D.)
Exhibit 7. Form of Pledge Agreement, dated November 22, 1994,
between NationsBank and each of (i) Tallulah, Ltd.;
(ii) the Sam Wyly Trusts; (iii) Brush Creek, Ltd.;
(iv) the Charles Wyly Trusts; and (v) Maverick
Entrepreneurs Fund, Ltd. (Previously filed as
Exhibit 3 to Amendment No. 26 to this Schedule 13D.)
Exhibit 8. Form of Collateral Maintenance Agreement, dated
November 22, 1994, between NationsBank and each of
(i) Tallulah, Ltd.; (ii) the Sam Wyly Trusts;
(iii) Brush Creek, Ltd.; (iv) the Charles Wyly
Trusts; and (v) Maverick Entrepreneurs Fund, Ltd.
(Previously filed as Exhibit 4 to Amendment No. 26
to this Schedule 13D.)
Exhibit 9. Guaranty, executed as of November 22, 1994, by
Tallulah, Ltd., the Sam Wyly Trusts, Brush Creek,
Ltd., the Charles Wyly Trusts, and Evan Wyly, in
favor of NationsBank. (Previously filed as Exhibit
5 to Amendment No. 26 to this Schedule 13D.)
Exhibit 10.1 Form of Credit Agreement, dated as of December 16,
1994, as amended, between Citibank and each of
(i) Tallulah, Ltd.; (ii) the Sam Wyly Trusts;
(iii) Brush Creek, Ltd.; and (iv) the Charles Wyly
Trusts. (Previously filed as Exhibit 6 to Amendment
No. 26 to this Schedule 13D.)
Exhibit 10.2 Form of Second Amendment to Credit Agreement, dated
as of December 16, 1996, between Citibank and each
of (i) Tallulah, Ltd.; (ii) the Sam Wyly Trusts;
(iii) Brush Creek, Ltd; and (iv) the Charles Wyly
Trusts. (Previously filed as Exhibit 10.2 to
Amendment No. 27 to this Schedule 13D.)
- --------------------
* Filed herewith.
<PAGE>
CUSIP NO. 859547-10-1 13D/A Page 9 of 18 Pages
Exhibit 11.1 Form of Pledge Agreement, dated as of December 16,
1994, as amended, between Citibank and each of
(i) Tallulah, Ltd.; (ii) the Sam Wyly Trusts;
(iii) Brush Creek, Ltd.; and (iv) the Charles Wyly
Trusts. (Previously filed as Exhibit 7 to Amendment
No. 26 to this Schedule 13D.)
Exhibit 11.2 Form of Third Amendment to Pledge Agreement, dated
as of December 16, 1996, between Citibank and each
of (i) Tallulah, Ltd.; (ii) the Sam Wyly Trusts;
(iii) Brush Creek, Ltd.; and (iv) the Charles Wyly
Trusts. (Previously filed as Exhibit 11.2 to
Amendment to No. 27 to this Schedule 13D.)
Exhibit 12. Form of Guaranty Agreement, dated as of December 16,
1994, in favor of Citibank by (i) the general
partner of Tallulah, Ltd.; (ii) the general partner
of Brush Creek, Ltd.; and (iii) certain of the
beneficiaries of each of the Sam Wyly Trusts and the
Charles Wyly Trusts. (Previously filed as Exhibit 8
to Amendment No. 26 to this Schedule 13D.)
Exhibit 13. Form of Amended and Restated Promissory Note, dated
as of December 16, 1996, between Citibank and each
of (i) Tallulah, Ltd.; (ii) the Sam Wyly Trusts;
(iii) Brush Creek, Ltd.; and (iv) the Charles Wyly
Trusts. (Previously filed as Exhibit 13 to Amendment
No. 27 to this Schedule 13D.)
Exhibit 14.* Form of Letter Agreement, dated January 20, 1998,
between Maverick Entrepreneurs Fund, Ltd. and Lehman
Brothers Finance S.A.
- -------------------------------
* Filed herewith.
<PAGE>
CUSIP NO. 859547-10-1 13D/A Page 10 of 18
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: January 30, 1998 /s/ SAM WYLY
-----------------------------------
Sam Wyly
/s/ CHARLES J. WYLY, JR.
-----------------------------------
Charles J. Wyly, Jr.
MAVERICK ENTREPRENEURS FUND, LTD.
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/A Page 11 of 18 Pages
EXHIBIT INDEX
Exhibit No.
- -----------
Exhibit 1. ** Agreement pursuant to Rule 13d-1(f)(1)(iii) of the Securities
Exchange Act of 1934.
Exhibit 2.1 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. (Previously filed as
Exhibit 2 to Amendment No. 21 to this Schedule 13D.)
Exhibit 2.2 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. (Previously filed as
Exhibit 7 to Amendment No. 24 to this Schedule 13D.)
Exhibit 3. Form of Guarantee of Lehman Brothers Holdings Inc. (Previously
filed as Exhibit 5 to Amendment No. 21 to this Schedule 13D.)
Exhibit 4. Form of Pledge Agreement, dated as of February 23, 1995, between
Maverick Entrepreneurs Fund, Ltd. and Lehman Brothers Finance
S.A. (Previously filed as Exhibit 6 to Amendment No. 21 to this
Schedule 13D.)
Exhibit 5.1 Revised Option Transaction dated August 30, 1995, between
Maverick Entrepreneurs Fund, Ltd., and Lehman Brothers Finance
S.A. (Previously filed as Exhibit 8 to Amendment No. 24 to this
Schedule 13D.)
Exhibit 5.2 Revised Option Transaction dated August 30, 1995, between
Maverick Entrepreneurs Fund, Ltd., and Lehman Brothers Finance
S.A. (Previously filed as Exhibit 9 to Amendment No. 24 to this
Schedule 13D.)
Exhibit 6. Form of Amended and Restated Loan Agreement, dated November 22,
1996, among NationsBank and each of (i) Sam Wyly Trusts and
Tallulah, Ltd.; (ii) the Charles Wyly Trusts and Brush Creek
Limited; and (iii) Maverick Entrepreneurs Fund, Ltd. (Previously
filed as Exhibit 6 to Amendment No. 27 to this schedule 13D.)
Exhibit 7. Form of Pledge Agreement, dated November 22, 1994, between
NationsBank and each of (i) Tallulah, Ltd.; (ii) the Sam Wyly
Trusts; (iii) Brush Creek, Ltd.; (iv) the Charles Wyly Trusts;
and (v) Maverick Entrepreneurs Fund, Ltd. (Previously filed as
Exhibit 3 to Amendment No. 26 to this Schedule 13D.)
Exhibit 8. Form of Collateral Maintenance Agreement, dated November 22,
1994, between NationsBank and each of (i) Tallulah, Ltd.;
(ii) the Sam Wyly Trusts; (iii) Brush Creek, Ltd.; (iv) the
Charles Wyly Trusts; and (v) Maverick Entrepreneurs Fund, Ltd.
(Previously filed as Exhibit 4 to Amendment No. 26 to this
Schedule 13D.)
Exhibit 9. Guaranty, executed as of November 22, 1994, by Tallulah, Ltd.,
the Sam Wyly Trusts, Brush Creek, Ltd., the Charles Wyly Trusts,
and Evan Wyly, in favor of NationsBank. (Previously filed as
Exhibit 5 to Amendment No. 26 to this Schedule 13D.)
Exhibit 10.1 Form of Credit Agreement, dated as of December 16, 1994, as
amended, between Citibank and each of (i) Tallulah, Ltd.;
(ii) the Sam Wyly Trusts; (iii) Brush Creek, Ltd.; and (iv) the
Charles Wyly Trusts. (Previously filed as Exhibit 6 to Amendment
No. 26 to this Schedule 13D.)
Exhibit 10.2 Form of Second Amendment to Credit Agreement, dated as of
December 16, 1996, between Citibank and each of (i) Tallulah,
Ltd.; (ii) the Sam Wyly Trusts; (iii) Brush Creek, Ltd; and (iv)
the Charles Wyly Trusts. (Previously filed as Exhibit 10.2 to
Amendment No. 27 to this Schedule 13D.)
- -----------------------------
** Filed herewith.
<PAGE>
CUSIP NO. 859547-10-1 13D/A Page 12 of 18 Pages
11.1 Form of Pledge Agreement, dated as of December 16, 1994, as
amended, between Citibank and each of (i) Tallulah, Ltd.;
(ii) the Sam Wyly Trusts; (iii) Brush Creek, Ltd.; and (iv) the
Charles Wyly Trusts. (Previously filed as Exhibit 7 to Amendment
No. 26 to this Schedule 13D.)
11.2 Form of Third Amendment to Pledge Agreement, dated as of
December 16, 1996, between Citibank and each of (i) Tallulah,
Ltd.; (ii) the Sam Wyly Trusts; (iii) Brush Creek, Ltd.; and (iv)
the Charles Wyly Trusts.(Previously filed as Exhibit 11.2 to
Amendment to No. 27 to this Schedule 13D.)
12. Form of Guaranty Agreement, dated as of December 16, 1994, in
favor of Citibank by (i) the general partner of Tallulah, Ltd.;
(ii) the general partner of Brush Creek, Ltd.; and (iii) certain
of the beneficiaries of each of the Sam Wyly Trusts and the
Charles Wyly Trusts. (Previously filed as Exhibit 8 to Amendment
No. 26 to this Schedule 13D.)
13. Form of Amended and Restated Promissory Note, dated as of
December 16, 1996, between Citibank and each of (i) Tallulah,
Ltd.; (ii) the Sam Wyly Trusts; (iii) Brush Creek, Ltd.; and (iv)
the Charles Wyly Trusts. (Previously filed as Exhibit 13 to
Amendment No. 27 to this Schedule 13D.)
14.** Form of Letter Agreement, dated January 20, 1998, between
Maverick Entrepreneurs Fund, Ltd. and Lehman Brothers
Finance S.A.
<PAGE>
CUSIP NO. 859547-10-1 13D/A Page 13 of 18 Pages
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: January 30, 1998 /s/ SAM WYLY
----------------------------------------
Sam Wyly
/s/ CHARLES J. WYLY, JR.
----------------------------------------
Charles J. Wyly, Jr.
MAVERICK ENTREPRENEURS FUND, LTD.
By:/s/ SAM WYLY
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Sam Wyly, General Partner
By:/s/ CHARLES J. WYLY, JR.
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Charles J. Wyly, Jr., General Partner
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EXHIBIT 14
[LETTERHEAD]
January 20, 1998
Maverick Entrepreneurs Fund, Ltd.
8080 North Central Expressway, Suite 1300
Dallas, Texas 75206
Dear Sir or Madam:
Reference is made to those certain European Call Option Transactions and
those certain American Put Option Transactions each expiring on or about
February 23, 1998 (collectively, the "Transactions"), between Lehman Brothers
Finance S.A. ("LBF") and Maverick Entrepreneurs Fund, Ltd. (the
"Counterparty"), relating to shares of the common stock of Sterling Commerce
Inc. ("SCI Common Stock") and shares of common stock of Sterling Software Inc.
("SSI Common Stock").
Reference is also made to (a) that certain Loan Agreement dated as of
February 23, 1995 (the "Loan Agreement"), between LBF, as lender, and the
Counterparty, as borrower, (b) that certain Amendment Agreement (Amendment No.
1) dated as of August 30, 1995, between LBF and the Counterparty and (c) that
certain Promissory Note made by Counterparty to LBF in the principal amount of
USD12,147,300 (the "Note").
The parties hereto hereby acknowledge that, as of the date hereof, (i) the
aggregate amount outstanding, including the unpaid principal, interest thereon
and all fees and charges, on the Note and under the Loan Agreement, is
USD12,147,300 (the "Loan Obligations") and (ii) there are 477,780 Calls/Puts on
shares of SCI Common Stock and 300,000 Calls/Puts on shares of SSI Common Stock
remaining under the Transactions. The Counterparty acknowledges that, as of the
date hereof, an aggregate of 477,780 shares of SCI Common Stock and 300,000
shares of SSI Common Stock (collectively, the "Shares") have been delivered and
pledged by the Counterparty to LBF as collateral under the Transactions for the
Loan Obligations and the obligations of the Counterparty under the Transactions,
all pursuant to and in accordance with the Pledge Agreement dated as of February
23, 1995 (the "Pledge Agreement"), entered into between LBF and the Counterparty
in connection with that certain 1992 ISDA Master Agreement dated as of February
23, 1995 (the "Master Agreement"), LBF and the Counterparty.
Counterparty's execution and delivery of this letter agreement shall
constitute an irrevocable order by the Counterparty for Lehman Brothers Inc.,
an affiliate of LBF ("LBI"), to sell (the "Sell Order") all of the Shares in
"brokers transactions" as defined in Rule 144 promulgated under the
Securities Act of 1933, as amended ("Rule 144"). The Sell Order shall last
for up to 5 Exchange Business Days (as such term is defined under the
Transactions) commencing on January 20, 1998 (the "Selling Period"). The
Counterparty acknowledges and understands that, pursuant to the Sell Order,
LBI may sell any number of Shares (in any combination of shares of SSI Common
Stock and SCI Common Stock) on any day during the Selling Period, with no
restriction as to the minimum or maximum number of Shares sold on any such
day. The Counterparty shall pay to LBI, as consideration
<PAGE>
for the sale of the Shares, out of the proceeds of such sale, USD0.10 for each
Share sold (the "Commission"). Additionally, the Counterparty shall pay to LBF,
in connection with and as a result of the early termination of this Transaction,
out of the proceeds of the sale, the additional amount of USD0.15 for each Share
sold (the "Early Termination Payment"). The Counterparty acknowledges that LBI
or its affiliates may purchase Shares from the Counterparty or otherwise during
the Selling Period. The Counterparty further acknowledges and agrees that the
proceeds of the sale of the Shares, less the Commission and the Early
Termination Payment (the "Net Sale Proceeds") which the Counterparty agrees
shall be paid out of such proceeds, shall constitute, and shall be substituted
for the Shares as, collateral posted and pledged by the Counterparty to LBF
under the Transactions and the Pledge Agreement. The Counterparty hereby
reaffirms all agreements set forth in the Pledge Agreement with respect to the
Sale Proceeds.
The Counterparty represents and warrants to LBF and to LBI, with respect to
the Sell Order and the sale of the Shares, that the representations set forth in
the 144 Letter (as hereinafter defined) are true, accurate and complete. The
Counterparty hereby reaffirms the representations and warranties made by the
Counterparty to LBF in the Master Agreement, the Pledge Agreement, the Loan
Agreement and the Transactions, including those representations made with
respect to the Counterparty's authority to enter into such agreements and with
respect to the enforceability of such agreements against the Counterparty, with
full force and effect and as if such representations and warranties were made on
the date hereof.
This letter agreement shall confirm our agreement fully to terminate the
Transactions, effective as of the last day of the Selling Period, upon the
following terms and conditions:
1. The representations and warranties set forth in the previous paragraph
shall be true and accurate as of the date hereof.
2. Contemporaneously with the execution and delivery of this agreement by
the Counterparty, the Counterparty shall have (a) transmitted three
copies of a duly executed Notice of Proposed Sale of Securities
Pursuant to Rule 144 on Securities and Exchange Commission ("SEC")
Form 144 for filing with the SEC at its principal office in
Washington, D.C. and (b) executed and delivered to LBI (to its
satisfaction) a Seller's Representation Letter in the form attached
hereto as EXHIBIT A (the "144 Letter"). The Counterparty shall
cooperate with LBI to ensure that sales of Shares pursuant to the Sell
Order shall be in compliance with Rule 144.
3. LBF and the Counterparty agree that the "Final Price" (as such term
is defined in the Transactions) with respect to each Transaction
shall be equal to (a) with respect to the Transactions relating to
shares of SCI Common Stock, the average execution price for all
shares of SCI Common Stock, and (b) with respect to the
Transactions relating to shares of SSI Common Stock, the average
execution price for all shares of SSI Common Stock, all sold during
the Selling Period pursuant to the Sell Order.
4. The Counterparty agrees that the Net Sale Proceeds shall be applied
(a) to pay the aggregate "Cash Settlement Amount" (as such term is
defined in the Transactions) of all Transactions payable by the
Counterparty to LBF pursuant to the Transactions (the "Aggregate
Option Payment") and (b) to repay the Loan Obligations owing and
payable by Counterparty to LBF. If, after application of the
foregoing amounts to the Aggregate Option Payment and to the Loan
Obligations, either of the Aggregate Option Payment or
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the Loan Obligations shall not have been paid in full (the remaining unpaid
amount, the "Balance"), then the Counterparty shall pay the Balance to LBF,
in USD in immediately available funds no later than the last day of the
Selling Period, to LBF's account at Citibank, N.A., New York, SWIFT Code:
CITIUS33, FED ABA Number: 021000089. Account Name: Lehman Brothers
Holdings Inc., In Favor of: Lehman Brothers Finance S.A., Account Number:
40729568.
5. The Counterparty agrees not to engage, and to cause its affiliates not to
engage, in any sale of shares of SCI Common Stock or of shares of SSI
Common Stock during the period commencing on and including the date hereof
and including the third Exchange Business Day after the last Exchange
Business Day of the Selling Period.
6. The Counterparty agrees, in connection herewith and in connection with the
Sell Order and the sale of Shares, to make such other filings, with the SEC
and otherwise, and to take all further actions that may be necessary to
comply with relevant federal and state securities laws and regulations.
Upon the satisfaction or completion, as the case may be, of the foregoing terms
and conditions, all rights and obligations of LBF and the Counterparty in
respect of the Transactions shall terminate.
This agreement itself shall be the binding agreement between LBF and
Counterparty relating to this termination. This agreement shall be governed by
and construed under the laws of the State of New York, without regard for the
principles of conflict of laws thereof.
Please evidence your agreement to the terms of this Termination Agreement
by executing this letter and returning it to us at facsimile number
011-411-287-8825, Attention: Documentation.
LEHMAN BROTHERS FINANCE S.A. LEHMAN BROTHERS INC.
By: By:
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Name: Name:
Title: Title:
By:
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Name:
Title:
Accepted and Agreed:
MAVERICK ENTREPRENEURS FUND, LTD.
By:
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Name:
Title:
Execution time will be furnished upon counterparty's written request.
3
<PAGE>
EXHIBIT A
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SELLER'S REPRESENTATION LETTER
4
<PAGE>
Seller's Representation
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Issuer's Name
Sterling Software, Inc.
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To: Lehman Brothers Inc. Currently to be Sold | Class (e.g. common
Attention: Executive Financial | preferred)
Services Department 300,000 Shares | Common
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Utilizing Rule 144, I propose to sell through you as brokers or to you a market
maker (as that term is defined in Section 3(a)(38) of the Securities Act of
1933) the securities described above. I have no present intention to sell
additional securities of this Issuer through any other means.
I have not made and do not propose to make any payment in connection with the
execution of the transaction, except the usual customary broker commissions
or dealer's charges to you; I have not solicited or arranged for the
solicitation of orders to buy in anticipation of or in connection with the
proposed sale; and (a) I am either an "affiliate of the Issuer" or (b) I am
proposing to sell "restricted securities" to or through you (as those terms
as defined in Paragraph (a) of Rule 144) which were acquired and fully paid
for more than two years ago.
I am not acting in concert with any other person in selling the stock and I have
not so agreed to act. I am not engaged in a plan with anyone else to dispose of
the securities.
The shares which I propose to sell through you as broker or to you as market
maker, together with all sales made by me and by any person whose sale must be
aggregated with mine as provided in Paragraphs (a) and (e) of Rule 144 during
the three months prior to the date of this sale, do not and will not exceed the
greater of either 1% of the outstanding shares of the above Issuer, or the
average weekly volume for the past four full calendar weeks prior to this
date on my sale to or through you. (The applicable volume is that reported on
all national securities exchanges and/or reported through the automated
quotation system and/or reported through the consolidated transaction reporting
system, whichever is applicable).
With respect to the three months prior to the date of this sale, I, together
with any person whose sales must be aggregated with mine:
CHECK ONE:
A. /X/ I have not sold any securities of the above Issuer.
or
B. / / I have sold (quantity) __________ shares of the (CLASS)___________
securities of the above Issuer
in addition, CHECK ONE:
C. / / I have completed Form 144 and have given it to you for concurrent
filing with the SEC, and primary Exchange, if required, or
D. /X/ I have filed Form 144 with the SEC, and primary Exchange, if
required, under Rule 144 and herewith attach a true copy of the form which I
have filed.
The undersigned does not know or have any reason to believe that the Issuer
is not current in its reports to the SEC as required by Rule
144(c)(1)(i.e. that the Issuer has filed the reports required to be
filed by Sections 13 or 15(d) of the Securities Exchange Act of 1934 for a
period of at least 90 days immediately preceding the date of the proposed
sale of stock and, in addition, has filed the most recent annual report
required to be filed thereunder.)
I am not aware of any facts or circumstances indicating that I am or may be
deemed an "underwriter" with respect to these securities or that the sale of
these securities are or will be part of a "distribution" of securities of the
Issuer as those terms are defined in the Securities Act of 1933.
This is to further confirm to you that all of the information contained herein
is true and correct.
This is to further confirm to you that all of the information contained in this
letter and in and in Form 144, if required, is true and correct. I also am to
notify you promptly of any changes in the facts set forth in this letter.
I hereby authorize you, if you deem it necessary, to contact my attorney
(NAME AND
TELEPHONE NUMBER)
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the Issuer, its transfer agent, and their agents and representatives concerning
this transaction. I hereby permit you, the issuer, the transfer agent and their
agents and representatives to rely on this letter.
Maverick Entrepreneurs Fund, Ltd.
Sam Wyly & Charles Wyly, Gen Ptr.
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Print Name of Seller Very truly yours,
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Date |Date
| 1-15-98 /s/ Sam Wyly Gen Ptr.
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Signature of Seller
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