EXHIBIT 10(d)
ESCROW AGREEMENT
This Escrow Agreement ("Agreement"), dated as of November 30, 1994, among
Sterling Software, Inc., a Delaware corporation ("Sterling"), KnowledgeWare,
Inc., a Georgia corporation ("KnowledgeWare"), The First National Bank of Boston
(the "Agent") and Xxxxxx Xxxxxxxxx as representative (the "Representative"),
W I T N E S S E T H:
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WHEREAS, Sterling, SSI Corporation, a Georgia corporation and wholly owned
subsidiary of Sterling ("Newco"), and KnowledgeWare are parties to that certain
Amended and Restated Agreement and Plan of Merger dated as of August 31, 1994 to
be effective as of July 31, 1994 (as amended, the "Merger Agreement") pursuant
to which Newco will merge with and into KnowledgeWare; and
WHEREAS, pursuant to the Merger Agreement, Sterling is entitled to
indemnification under certain circumstances as set forth in the Merger
Agreement; and
WHEREAS, the purpose of this Agreement is to provide for the deposit of
484,771 shares of common stock, par value $0.10 per share, of Sterling
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("Buyer Common Stock") pursuant to the Merger Agreement to satisfy the rights of
Sterling to be indemnified under Section 7.18 of the Merger Agreement and to
provide for the distribution, if applicable, of any shares of Buyer Common Stock
to persons who as of the Effective Time (as defined in the Merger Agreement)
were holders of record ("Record Holders") of issued and outstanding Shares (as
defined in the Merger Agreement);
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, all capitalized terms not
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defined herein shall have the meanings attributed to such terms in the Merger
Agreement. The parties acknowledge and agree that the term "Damages" also
includes amounts paid in settlement of any Action (including, without
limitation, fees and disbursements of counsel and investigation expenses
incurred in connection therewith).
2. Appointment of Agent and Representative.
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(a) Sterling and KnowledgeWare hereby appoint the Agent as escrow agent
for the purposes set forth herein and the Agent hereby accepts such appointment
on the terms herein provided.
(b) The Representative is hereby appointed as agent and representative of
the Record Holders for the purposes set forth herein and the Representative
accepts such appointment on the terms herein provided.
3. Escrowed Shares.
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(a) For the purposes herein set forth, Sterling has caused to be deposited
with the Agent - 484,185 shares of Buyer Common Stock (the "Escrowed
-------------
Shares"). The Escrowed Shares shall be registered in the name of the Agent or
its nominee. If during the term of this Agreement there is declared a stock
dividend or stock split, all securities thereby issuable with respect to the
Escrowed Shares shall be deposited hereunder and shall be deemed "Escrowed
Shares" for the purposes of this Agreement. If during the term of this
Agreement there is paid any dividends (within the meaning of Section 301(c)(1)
of the Code) in cash or other property in respect of the Escrowed Shares, such
dividends shall be paid by the Agent to the Record Holders, pro rata, except
that any such dividends paid in respect of Escrowed Shares as to which a claim
exists pursuant to a Sterling Notice shall constitute and be deemed part of such
Escrowed Shares for purposes of this Agreement. If during the term of this
Agreement there is any other distribution which does not constitute a dividend
(within the meaning of Section 301(c)(1) of the Code) in cash or other property
in respect of the Escrowed Shares, such distribution shall be retained by the
Agent and shall constitute part of the "Escrowed Shares" for purposes of this
Agreement. The Escrowed Shares shall be held and disbursed by the Agent in
accordance with the terms of this Agreement.
(b) The Escrowed Shares held by the Agent pursuant to this Agreement shall
be deemed issued and outstanding. With respect to any matter on which
stockholders of Sterling have a right to vote, the Agent, on behalf of the
Record Holders, shall have the right to vote, or not vote, all Escrowed Shares
(or any portion thereof) in such manner as it deems appropriate as agent for the
Record Holders; provided that, at Sterling's expense, the Agent shall promptly
forward, or cause to be forwarded, copies of any proxies, proxy statements and
other soliciting materials to the Record Holders, and shall vote the applicable
portion of the Escrowed Shares in accordance with any written instructions
timely received by the Agent from any Record Holder.
(c) The Record Holders' interest in this Agreement and the Escrowed Shares
(prior to the disbursement thereof) may not be transferred except by operation
of law.
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4. Application of Escrow Deposit. The Escrowed Shares shall be held in
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escrow under the terms of this Agreement and released by the Agent upon the
following terms:
(a) Upon joint written notice and instruction from Sterling and the
Representative that the Escrowed Shares, or any portion thereof, should be
disbursed, the Agent shall make such disbursement in accordance with the
directions set forth in such joint written notice and instruction.
(b) If at any time, or from time to time, before the second
anniversary of the Effective Time, Sterling delivers to the Agent written
notice (a "Sterling Notice") asserting that Sterling is entitled to
indemnification as set forth in Section 7.18 of the Merger Agreement, which
Sterling Notice shall state the basis and amount of such claim, then the
Agent shall disburse, on the twentieth business day following receipt of
the Sterling Notice, all or such portion of the Escrowed Shares to Sterling
as specified in the Sterling Notice; provided that if the Agent receives
written notice from the Representative prior to such twentieth business day
that a dispute exists with respect to the claims made in the Sterling
Notice (a "Dispute Notice"), which Dispute Notice shall state the basis of
such dispute, the Agent shall continue to hold the Escrowed Shares (but
shall disburse to Sterling any portion of such Escrowed Shares as to which
no dispute exists) until directed otherwise pursuant to paragraph (a) above
or (c) below.
(c) If the Agent timely receives a Dispute Notice, the Agent shall
retain the Escrowed Shares subject of the Sterling Notice until the first
to occur of the following:
(i) receipt by the Agent of joint written instructions from
Sterling and the Representative, in which case the Agent shall
disburse the Escrowed Shares (or applicable portions thereof) as set
forth in such joint written instructions; or
(ii) receipt by the Agent of a written notice from either
Sterling or the Representative (a "Litigation Certificate") to the
effect that such person(s) has received a final non-appealable
judgment or order from a court of competent jurisdiction (and
attaching a copy of such judgment or order) resolving the dispute as
to the disbursement of the subject Escrowed Shares setting forth in
reasonable detail the substance of such judgment and instructions as
to the resulting disbursement of the Escrowed Shares (or applicable
portions thereof), in which case the Agent shall make such
disbursement (or portions thereof) on the twentieth business day
following receipt of the Litigation Certificate; provided that if
Sterling or the Representative delivers to the Agent a certificate
prior to such twentieth business day disputing the contents of the
Litigation Certificate (the "Countervailing Certificate"), then the
Agent, on the twentieth business day following receipt of the
Countervailing Certificate, shall interplead the subject Escrowed
Shares into, or file a declaratory judgment action with, a court of
competent jurisdiction to determine the rights of the parties to the
Escrowed
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Shares, unless prior to such twentieth business day the Agent receives
a joint written instruction pursuant to paragraph (c)(i) above.
(d) If, on the second anniversary of the Effective Time, there are
Escrowed Shares remaining undisbursed and not the subject of a Sterling
Notice or a Contingent Claim Notice (defined below), the Agent shall
disburse such Escrowed Shares to the Record Holders pro rata in accordance
with their relative record ownership of Shares issued and outstanding as of
the Effective Time.
(e) If, within 30 days prior to the second anniversary of the
Effective Time, Sterling, in its reasonable good faith judgment, believes
that there exist one or more Actions with respect to which Sterling would
be entitled to indemnification for Damages incurred subsequent to the
second anniversary of the Effective Time (each a "Contingent Claim" and
collectively, "Contingent Claims"), Sterling may give the Agent written
notice (a "Contingent Claim Notice") of such Contingent Claims, which
Contingent Claim Notice shall state the basis of the Contingent Claims and
Sterling's reasonable good faith estimate of the maximum amount of Damages
for which it would be entitled to indemnification with respect thereto. In
the event a Contingent Claim Notice is delivered, a number of Escrowed
Shares equal to the aggregate amount of such estimated Damages divided by
the most recently reported closing sales price of Buyer Common Stock on the
date of the Contingent Claim Notice shall remain subject to this Agreement,
and this Agreement shall remain in effect; provided that, with respect to
any Contingent Claim which has not been resolved on or prior to the fourth
anniversary of the Effective Time, any Escrowed Shares attributable to such
Contingent Claim and not disbursed shall be disbursed to the Record Holders
pro rata in accordance with their relative record ownership of Shares
issued and outstanding as of the Effective Time unless, as of the fourth
anniversary of the Effective Time, such Contingent Claim is then subject to
litigation or binding arbitration proceedings, in which case such Escrowed
Shares shall remain subject to this Agreement, and this Agreement shall
remain in effect, until the final, nonappealable resolution of such
proceedings.
(f) Notwithstanding any other provision of this Agreement, no
fractional shares of Buyer Common Stock will be issued to the Record
Holders and any Record Holder who would otherwise be entitled to receive a
fractional share will be entitled to receive a cash payment in lieu
thereof, which payment shall represent such holder's proportionate interest
in the net proceeds from the sale by the Agent, within ten business days
following the date the disbursement of such fractional share would have
been made, on behalf of all such Record Holders of the aggregate fractional
shares of Buyer Common Stock that such persons would be entitled to receive
but for this paragraph (f).
(g) For the purposes of this Agreement, whenever in this Agreement it
is provided that the Agent may or shall disburse Escrowed Shares to
Sterling, the Agent shall, as Sterling may direct in writing, either (i)
deliver to Sterling a stock certificate representing the appropriate number
of Escrowed Shares or (ii) sell an appropriate
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number of Escrowed Shares and deliver the proceeds therefrom to Sterling.
In determining the number of shares to be so disbursed or sold in respect
of Damages, the number of Escrowed Shares to be disbursed or sold shall be
equal to the number of shares (rounded to the nearer whole share)
determined by dividing the amount of Damages with respect to which Sterling
is entitled to be indemnified by the most recently reported closing sale
price of the Buyer Common Stock preceding the date Sterling delivers to the
Agent the Sterling Notice.
(h) Notwithstanding paragraph (g) above, in the event that the Agent
is required to sell any of the Escrowed Shares pursuant to Section 4(g) or
Section 12(c) or otherwise, Sterling may notify the Agent that the Agent
shall suspend its efforts to sell any or all of such shares until receipt
of further notice from Sterling, without giving any reason therefor, and
the Agent shall suspend such efforts until receipt of such further notice.
5. Communications with Representative.
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(a) Within a reasonable time following receipt of notice of an Action
for which Sterling believes it is entitled to indemnification, Sterling shall
give the Representative written notice of such Action, which notice shall
describe the material allegations of such Action.
(b) Within a reasonable time following the end of each calendar
quarter while this Agreement is in effect, Sterling shall deliver to the
Representative a written summary of the status of each Action with respect to
which Sterling is seeking indemnification.
(c) At least ten (10) days prior to settling any Action with respect
to which Sterling is seeking indemnification (or such shorter period as is then
consented to by the Representative), Sterling shall give the Representative
written notice thereof, which notice shall describe the material terms of such
settlement.
(d) Within a reasonable time after receiving a request therefor from
the Representative, Sterling shall furnish the Representative such additional
information relating to Actions as he may reasonably request from time to time.
6. Liability of the Agent. The duties of the Agent hereunder shall be
----------------------
limited to the observance of the express provisions of this Agreement. The
Agent shall not be subject to, or be obliged to recognize, any other agreement
between the parties hereto or directions or instructions not specifically set
forth or provided for herein. The Agent shall not make any disposition of
Escrowed Shares which is not expressly authorized by this Agreement. The Agent
may rely upon and act upon any instrument received by it pursuant to the
provisions of this Agreement which it in good faith believes to be genuine and
in conformity with the requirements of this Agreement. Except as expressly
provided in this Agreement, the Agent shall have no duty to determine or inquire
into the happening or occurrence of any event. Anything in this Agreement to
the contrary notwithstanding, the Agent shall not be liable to any person for
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anything which it may do or refrain from doing in connection with this
Agreement, unless the Agent is guilty of gross negligence or willful misconduct.
7. Duties of the Agent.
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(a) The Agent shall hold or sell the Escrowed Shares, or portions
thereof, as set forth herein.
(b) The Agent shall have no authority or obligation to invest funds
except as herein provided.
(c) Promptly following receipt by the Agent of any certificate or
notice (i) from Sterling or the Representative pursuant to Section 4, the
Agent shall promptly provide a copy thereof to the other and (ii) from any
Record Holder pursuant to Section 13, the Agent shall promptly provide a
copy thereof to Sterling and the Representative.
8. Indemnification of the Agent.
----------------------------
(a) Sterling and KnowledgeWare (solely to the extent of the Escrowed
Shares) each shall severally indemnify and hold the Agent, its employees,
officers, agents, successors and assigns harmless from and against any and
all loss, cost, damages or expenses (including reasonable attorneys' fees)
it or they may sustain by reason of the Agent's service as escrow agent
hereunder, except such a loss, cost, damage or expense (including
reasonable attorneys' fees) incurred by reason of such acts or omissions
for which the Agent is liable or responsible under the provisions of
Section 6 hereof.
(b) The Agent is hereby given a prior lien on all rights, titles and
interests of Sterling and the Record Holders in the Escrowed Shares,
including any property or cash (or cash equivalent) arising therefrom, in
order to protect, indemnify and reimburse the Agent for the costs,
expenses, fees and liabilities to which it is entitled pursuant to Section
8(a) above.
9. Fees of the Agent. The Agent's compensation for services hereunder
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shall be in accordance with Exhibit A. In the event extraordinary services are
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required of the Agent beyond the services described herein, compensation shall
be an amount that is fair and equitable based upon the services and
responsibility involved. Sterling shall pay the fees and expenses of the Agent
for serving as escrow agent.
10. Resignation of the Agent. The Agent may resign as escrow agent by
------------------------
giving each of Sterling and the Representative not less than 30 days' written
notice of the effective date of such resignation. Sterling shall have the right
to designate a substitute escrow agent, provided it is reasonably acceptable to
the Representative. If on or prior to the effective date of such resignation,
the Agent has not received written instructions from Sterling of a substitute
escrow agent, it shall thereupon deposit the Escrowed Shares into the registry
of a court of competent
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jurisdiction. The parties hereto intend that a substitute escrow agent shall be
appointed to fulfill the duties of the Agent hereunder for the remaining term of
this Agreement in the event of the Agent's resignation.
11. Remedies of the Agent.
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(a) In the event of any dispute hereunder, or if conflicting demands
or notices are made upon the Agent, or in the event the Agent in good faith
is in doubt as to what action it should take hereunder, the Agent shall
have the right to (i) stop all further proceedings in, and performance of,
this Agreement and instructions received hereunder, and/or (ii) file a suit
in interpleader and obtain an order from a court of competent jurisdiction
requiring all persons involved to interplead and litigate in such court
their several claims and rights with respect to the Escrowed Shares.
(b) While any legal proceeding arising out of this Agreement is
pending, the Agent shall have the right to stop all further proceedings in,
and performance of, this Agreement and instructions received hereunder
until all differences shall have been resolved by agreement or a final
order.
(c) The Agent may from time to time consult with legal counsel of its
own choosing in the event of any disagreement, controversy, question or
doubt as to the construction of any of the provisions hereof or its duties
hereunder, and it shall incur no liability and shall be fully protected in
acting in good faith in accordance with the opinion and instructions of
such counsel. Any such fees and expenses of such legal counsel shall be
considered part of the fees and expenses of the Agent for the purposes of
Section 9 of this Agreement.
12. Responsibilities of the Representative.
--------------------------------------
(a) The Representative is an attorney who has been designated by the
Board of Directors of KnowledgeWare with the consent of Sterling in its
reasonable discretion. The duties of the Representative hereunder shall be
limited to the observance of the express provisions of this Agreement. The
Representative shall not be subject to, or be obliged to recognize, any
other agreement between the parties hereto or directions or instructions
not specifically set forth or provided for herein. Anything in this
Agreement to the contrary notwithstanding, the Representative shall not be
liable to any Record Holder or any other person for anything which it may
do or refrain from doing in connection with this Agreement, unless the
Representative is guilty of willful misconduct.
(b) The Representative and its successors and assigns shall be
indemnified and held harmless, out of the Escrowed Shares, from and against
any and all loss, cost, damages or expenses (including reasonable
attorneys' fees) it or they may sustain by reason of the Representative's
services as representative hereunder, except such loss, cost, damage or
expense (including reasonable attorneys' fees) incurred by reason of such
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acts or omissions for which the Representative is responsible pursuant to
paragraph (a) above.
(c) The Representative's compensation for services hereunder shall be
at his normal hourly rate. The fees and reasonable expenses of the
Representative shall be paid out of the Escrowed Shares on a timely basis
upon presentation of invoices to the Agent, and shall be paid through the
sale by the Escrow Agent of a sufficient number of Escrowed Shares.
13. Resignation or Removal of the Representative. The Representative may
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resign as representative by giving Sterling, the Agent and each of the Record
Holders not less than 30 days' written notice of the effective date of such
resignation. Record Holders who as of the Effective Time owned of record at
least 51% of the issued and outstanding Shares may, by delivering written notice
to Sterling, the Agent and the Representative, remove the Representative with or
without cause. Prior to the effective date of such resignation or removal,
Record Holders who as of the Effective Time owned of record at least 51% of the
issued and outstanding Shares may deliver to Sterling and the Agent a written
designation of a substitute representative who shall be acceptable to Sterling
in its reasonable discretion. If no designation is made, the Representative
shall appoint a substitute representative, provided such substitute
representative is reasonably acceptable to Sterling.
14. Miscellaneous.
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(a) Any notice or communication hereunder to Sterling, the
Representative or the Agent must be in writing and given by overnight
courier, depositing the same in the United States mail, addressed to the
person to be notified, postage prepaid and registered or certified with
return receipt requested, or by delivering the same in person. Such notice
shall be deemed received on the date on which it is received if sent by
overnight courier or hand-delivered or on the third business day following
the date on which it is so mailed. For purposes of notice, the addresses
shall be:
If to Sterling: Sterling Software, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: General Counsel
with a copy to: Xxxxxxx & Xxxxxx, L.L.P.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Xx.
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If to the Representative: Xxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx Xxxxx
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
If to the Agent: The First National Bank of Boston
Blue Hills Office Park
000 Xxxxx Xxxxxx; Mail Stop 45-02-15
Xxxxxx, XX 00000
Attention: Corporate Trust Division
Any notice or communication hereunder to a Record Holder must be in writing
and given by depositing the same in the United States mail, addressed to
the Record Holder as reflected on the records of the transfer agent for the
Shares as of the Effective Time, which notice shall be deemed received on
the fifth business day following the date on which it is so mailed. Any
party or Record Holder may change its address for notice by written notice
given to the other parties in accordance with this Section. In cases where
Sterling and the Representative may give joint written notice or
instructions to the Agent, such notice may be given by separate instruments
of similar tenor.
(b) This Agreement may be amended, modified or supplemented only by an
instrument in writing executed by Sterling, the Representative and the
Agent; provided that this Agreement may not be amended in a manner that
would materially and adversely affect the rights or benefits of the Record
Holders without the written consent of Record Holders who as of the
Effective Time owned of record at least 51% of the issued and outstanding
Shares.
(c) This Agreement and the agreements contemplated hereby constitute
the entire agreement of the parties regarding the subject matter hereof,
and supersede all prior agreements and understandings, both written and
oral, among the parties, or any of them, with respect to the subject matter
hereof.
(d) This Agreement and the rights and obligations of the parties
hereto shall be governed by and construed and enforced in accordance with
the substantive laws (but not the rules governing conflicts of laws) of the
State of Texas.
(e) This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original, and all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have hereunto caused this Agreement
to be executed as of the day and year first above written.
STERLING:
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STERLING SOFTWARE, INC.
By: /s/ Xxxxxxxxx X. Xxxxx
---------------------------------------
Its: Executive Vice President,
--------------------------------------
Secretary and General Counsel
KNOWLEDGEWARE:
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KNOWLEDGEWARE, INC.
By:_______________________________________
Its:______________________________________
AGENT:
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THE FIRST NATIONAL BANK OF BOSTON
By:_______________________________________
Its:______________________________________
REPRESENTATIVE:
--------------
__________________________________________
Xxxxxx Xxxxxxxxx
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IN WITNESS WHEREOF, the parties hereto have hereunto caused this Agreement
to be executed as of the day and year first above written.
STERLING:
--------
STERLING SOFTWARE, INC.
By:_______________________________________
Its:______________________________________
KNOWLEDGEWARE:
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KNOWLEDGEWARE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------
Chairman of the Board and Chief
Executive Officer
Its:--------------------------------------
AGENT:
-----
THE FIRST NATIONAL BANK OF BOSTON
By:_______________________________________
Its:______________________________________
REPRESENTATIVE:
--------------
__________________________________________
Xxxxxx Xxxxxxxxx
10
IN WITNESS WHEREOF, the parties hereto have hereunto caused this Agreement
to be executed as of the day and year first above written.
STERLING:
--------
STERLING SOFTWARE, INC.
By:_______________________________________
Its: _____________________________________
KNOWLEDGEWARE:
-------------
KNOWLEDGEWARE, INC.
By:_______________________________________
Its:______________________________________
AGENT:
-----
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ Xxxxx Xxxxxxxx
---------------------------------------
Its: Authorized Officer
--------------------------------------
REPRESENTATIVE:
--------------
__________________________________________
Xxxxxx Xxxxxxxxx
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IN WITNESS WHEREOF, the parties hereto have hereunto caused this Agreement
to be executed as of the day and year first above written.
STERLING:
--------
STERLING SOFTWARE, INC.
By:_______________________________________
Its:______________________________________
KNOWLEDGEWARE:
-------------
KNOWLEDGEWARE, INC.
By:_______________________________________
Its:______________________________________
AGENT:
-----
THE FIRST NATIONAL BANK OF BOSTON
By:_______________________________________
Its:______________________________________
REPRESENTATIVE:
--------------
/s/ Xxxxxx Xxxxxxxxx
-----------------------------------------
Xxxxxx Xxxxxxxxx
10
Exhibit A
SCHEDULE OF FEES
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The fees of the Agent shall be as set forth in that certain letter
agreement between Sterling and the Agent attached hereto.
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BANK OF BOSTON LETTER HEAD APPEARS HERE
October 24, 1994
Xx. Xx Xxxxxx
Assistant General Counsel
Sterling Software, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxxxxx Xxxxx 0000
Xxxxxx, XX 00000
Dear Xx. Xxxxxx:
Thank you for providing Bank of Boston the opportunity to act as Escrow Agent
for Sterling Software, Inc. With over 300 escrows on our books, we are
experienced in handling these types of transactions and understand the need to
be responsive.
As I understand it, Bank of Boston would be required to hold stock in escrow for
a period of at least 2 years as a result of Sterling's acquisition of
KnowledgeWare Inc. The estimated closing date is mid November, 1994. The
agreement being used is provided by Sterling Software, Inc. Upon acceptance of
this agreement and stated fees please sign and return a copy to me at your
earliest convenience. The Administrator assigned to this escrow is Xx. Xxxxx
Xxxxx at (000)000-0000.
Based on this understanding, Bank of Boston's fees to act as Escrow Agent are:
Acceptance Fee $1,000
Annual Administration Fee $1,750
Wire Transfers $20.00 per wire
Legal Fees Included
Out-of-pocket expenses Billed as incurred
As a matter of policy, the first year annual administration fee are due and
payable at the closing of the transaction with out-of-pocket expenses billed
shortly thereafter. The fees set forth in the enclosed schedule are subject to
change should circumstances warrant. The Bank also reserves the right to review
fees annually and increase them at a rate not to exceed the consumer price
index. If the transaction fails to close for reasons beyond the Bank's control,
we would expect to be reimbursed for out-of-pocket expenses incurred. Legal
review will be performed by Xxxx Xxxxxx, Esq. the Securities Department Director
of Legal Affairs.
[LOGO OF BANK OF BOSTON APPEARS HERE]
Thank you again for this opportunity. I look forward to working with you on this
transaction and in the future. If you have any questions on this proposal or our
capabilities, please call me at (000)000-0000.
Sincerely,
/s/ Xxxx X'Xxxxxx Accepted:
Vice President Sterling Software, Inc.
Securities Department
By: /s/ Xxxxxx X. Xxxxxx
Title: Vice President
Date: 11-28-94
cc: X. Xxxxxx
