<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
Data Systems & Software Inc.
----------------------------
(Name of Issuer)
Common Stock, $0.01 par value
-------------------------------
(Title of Class of Securities)
237887104
--------------
(CUSIP Number)
Mr. Yacov Kaufman
200 Route 17, Mahwah, New Jersey 07430
---------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
January 3, 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. [ ]
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 25 Pages
PAGE
<PAGE>
CUSIP No.: 237887104 13D Page 2 of 25 Pages
- -----------------------------------------------------------------------------
1. Name of reporting person: Cummer/Moyers Holdings, Inc.
IRS Identification No. of above person: 75-2354593
2. Check the appropriate box if a member (a) [X]
of a group (b) [ ]
3. SEC use only ________________________
4. Source of funds: WC
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: 0
8. Shared voting power: 210,000 shares
9. Sole dispositive power: 0
10. Shared dispositive power: 402,000 shares
11. Aggregate amount beneficially owned by each reporting person:
402,000 shares
12. Check box if the aggregate amount in Row (11) excludes certain
shares: [ ]
13. Percent of class represented by amount in Row (11): 5.46%
14. Type of reporting person: CO
PAGE
<PAGE>
CUSIP No.: 237887104 13D Page 3 of 25 Pages
- -----------------------------------------------------------------------------
1. Name of reporting person: Cummer/Moyers Capital Advisors, Inc.
IRS Identification No. of above person: 75-2681494
2. Check the appropriate box if a member (a) [X]
of a group (b) [ ]
3. SEC use only ________________________
4. Source of funds: WC
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: 0
8. Shared voting power: 0
9. Sole dispositive power: 0
10. Shared dispositive power: 192,000 shares
11. Aggregate amount beneficially owned by each reporting person:
192,000 shares
12. Check box if the aggregate amount in Row (11) excludes certain
shares: [X]
13. Percent of class represented by amount in Row (11): 2.61%
14. Type of reporting person: IA
PAGE
<PAGE>
CUSIP No.: 237887104 13D Page 4 of 25 Pages
- -----------------------------------------------------------------------------
1. Name of reporting person: Cummer/Moyers Capital Partners, Inc.
IRS Identification No. of above person: 75-2551678
2. Check the appropriate box if a member (a) [X]
of a group (b) [ ]
3. SEC use only ________________________
4. Source of funds: WC
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: 0
8. Shared voting power: 210,000 shares
9. Sole dispositive power: 0
10. Shared dispositive power: 210,000 shares
11. Aggregate amount beneficially owned by each reporting person:
210,000 shares
12. Check box if the aggregate amount in Row (11) excludes certain
shares: [X]
13. Percent of class represented by amount in Row (11): 2.85%
14. Type of reporting person: CO
PAGE
<PAGE>
CUSIP No.: 237887104 13D Page 5 of 25 Pages
- -----------------------------------------------------------------------------
1. Name of reporting person: Jeffrey A. Cummer
IRS Identification No. of above person:
2. Check the appropriate box if a member (a) [X]
of a group (b) [ ]
3. SEC use only ________________________
4. Source of funds: PF
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: 1,800 shares
8. Shared voting power: 220,000 shares
9. Sole dispositive power: 1,800 shares
10. Shared dispositive power: 412,000 shares
11. Aggregate amount beneficially owned by each reporting person:
413,800 shares
12. Check box if the aggregate amount in Row (11) excludes certain
shares: [X]
13. Percent of class represented by amount in Row (11): 5.62%
14. Type of reporting person: IN
PAGE
<PAGE>
CUSIP No.: 237887104 13D Page 6 of 25 Pages
- -----------------------------------------------------------------------------
1. Name of reporting person: Dwayne A. Moyers
IRS Identification No. of above person:
2. Check the appropriate box if a member (a) [X]
of a group (b) [ ]
3. SEC use only ________________________
4. Source of funds: PF
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: 11,600 shares
8. Shared voting power: 220,000 shares
9. Sole dispositive power: 11,600 shares
10. Shared dispositive power: 412,000 shares
11. Aggregate amount beneficially owned by each reporting person:
423,600 shares
12. Check box if the aggregate amount in Row (11) excludes certain
shares: [X]
13. Percent of class represented by amount in Row (11): 5.75%
14. Type of reporting person: IN
PAGE
<PAGE>
CUSIP No.: 237887104 13D Page 7 of 25 Pages
- -----------------------------------------------------------------------------
1. Name of reporting person: Cummer/Moyers Holdings, Inc. Profit
Sharing Plan
IRS Identification No. of above person: 75-2625318
2. Check the appropriate box if a member (a) [X]
of a group (b) [ ]
3. SEC use only ________________________
4. Source of funds: PF
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: 10,000 shares
8. Shared voting power: 0
9. Sole dispositive power: 10,000 shares
10. Shared dispositive power: 0
11. Aggregate amount beneficially owned by each reporting person:
10,000 shares
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%
14. Type of reporting person: EP
PAGE
<PAGE>
DATA SYSTEMS & SOFTWARE INC.
SCHEDULE 13D
ITEM 1. Security and Issuer
The class of securities to which this statement relates is
the common stock, par value $0.01 per share (the "Common Stock"),
of Data Systems & Software Inc., a Delaware corporation (the
"Issuer"), which has its principal executive offices located at 200
Route 17, Mahwah, New Jersey 07430.
ITEM 2. Identity and Background
This statement is being filed by the following beneficial
owners of 425,400 (see Item 5) shares of Common Stock (approximate-
ly 5.77%) of the total number of shares of Common Stock outstanding
as of October 31, 1997 (collectively referred to as the "Reporting
Persons"):
Cummer/Moyers Holdings, Inc. ("Holdings") is a holding
company incorporated on November 30, 1990 under the laws
of the state of Texas and is principally engaged,
through its wholly-owned subsidiary, Cummer/Moyers
Securities, Inc., in the securities business. Holdings,
through its other subsidiaries, also provides investment
advisory and other financial services to its clients.
The address of its principal business is 3417 Hulen
Street, Fort Worth, Texas 76107.
Cummer/Moyers Capital Partners, Inc. ("Capital
Partners") is a Texas corporation which serves as the
corporate general partner of Investors Strategic
Partners I, Ltd., a Texas limited partnership which
operates as an investment limited partnership, investing
primarily in equity securities (the "Partnership"). As
the corporate general partner of the Partnership,
Capital Partners provides management services to the
Partnership and in this capacity is responsible for
investment decisions, portfolio management, and trading
activities. Capital Partners is a wholly-owned subsid-
iary of Holdings. The address of its principal business
is 3417 Hulen Street, Fort Worth, Texas 76107.
Cummer/Moyers Capital Advisors, Inc. ("Advisors") is a
Texas corporation which is engaged in the business of
providing investment advisory services. Advisors is an
investment advisor registered with the Securities and
Exchange Commission and is also a wholly-owned
subsidiary of Capital Partners. The address of its
principal business is 3417 Hulen Street, Fort Worth,
Texas 76107.
Page 8 of 25 Pages
PAGE
<PAGE>
Jeffrey A. Cummer ("Mr. Cummer"), whose business address
is 3417 Hulen Street, Fort Worth, Texas 76107, serves as
the President and a Director of Holdings and its subsid-
iaries Cummer/Moyers Securities, Inc. ("Securities"),
Capital Partners and Advisors. Mr. Cummer is also a
general partner of Capital Partners. Mr. Cummer is a
United States citizen.
Dwayne A. Moyers ("Mr. Moyers"), whose business address
is 3417 Hulen Street, Fort Worth, Texas 76107, serves as
the Vice President, Secretary, Treasurer and a Director
of Holdings and its subsidiaries Securities, Capital
Partners and Advisors. Mr. Moyers is also a general
partner of Capital Partners. Mr. Moyers is a United
States citizen.
The Cummer/Moyers Holdings Inc. Profit Sharing Plan (the
"Plan") is the profit sharing plan established for the
benefit of the employees of Holdings and its subsidiar-
ies. Mr. Cummer and Mr. Moyers serve as trustees of the
Plan.
During the past five years, the Reporting Persons (Holdings,
Capital Partners, Advisors, Mr. Cummer, Mr. Moyers and the Plan)
have not 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 of competent
jurisdiction and as a result of such proceeding were or are subject
to a judgment, decree or final order enjoining future violations
of, or prohibiting or mandating activity subject to, federal or
state securities laws or finding any violations with respect to
such laws.
The affiliate of the Reporting Persons is as follows:
Securities is a Texas corporation which is engaged in
the securities brokerage business, and is a wholly-owned
subsidiary of Holdings. Securities is registered as a
broker/dealer with the Securities and Exchange
Commission and the National Association of Securities
Dealers, Inc. Mr. Cummer and Mr. Moyers are the
officers and directors of Securities. The address of
its principal business is 3417 Hulen Street, Fort Worth,
Texas 76107.
During the past five years, Securities has not 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 of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating
activity subject to, federal or state securities laws or finding
any violations with respect to such laws.
Attached hereto as Schedule 1 and incorporated by reference
herein is a table setting forth each of the Reporting Persons, together
with their respective addresses and beneficial ownership of the Common Stock.
Page 9 of 25 Pages
PAGE
<PAGE>
Pursuant to Rule 13d-4 of the Securities Exchange Act of 1934,
each Reporting Person hereby expressly declares that the filing of
this statement is not an admission that such Reporting Person is
the beneficial owner of any shares of Common Stock other than those
listed on Schedule 1 as being beneficially owned by such Reporting
Person. The Reporting Persons disclaim beneficial ownership of
85,470 shares of Common Stock of the Issuer held in non-discretion-
ary client accounts at Securities.
ITEM 3. Source and Amount of Funds or Other Consideration
Prior to July 1997, Mr. Cummer served as a registered princi-
pal and branch manager of Investment Management and Research, Inc.
("IMR") and Mr. Moyers served as a registered representative of
IMR. IMR is a wholly-owned subsidiary of Raymond James Financial,
Inc., a Florida based holding company which offers a wide range of
financial services to individual, corporate, governmental and
institutional clients through its various subsidiaries. In these
capacities Mr. Cummer and Mr. Moyers acquired approximately 176,750
shares of Common Stock on behalf of discretionary client accounts
held by IMR. The source of funds used by Mr. Cummer and Mr. Moyers
to acquire the 176,750 shares of Common Stock are funds contributed
into the discretionary accounts by the account holders. Following
the formation of Advisors and Securities by Holdings and the
termination of Mr. Cummer's and Mr. Moyers' relationship with IMR
in July 1997, these account holders transferred their discretionary
client accounts to Securities and established an investment
advisory relationship with Advisors. Advisors also purchased
additional shares of Common Stock on behalf of various discretion-
ary client accounts established at Securities. The 192,000 shares
were acquired since December 1995 at prices ranging from $4.375 to
$8.50 per share.
The source of funds used by Capital Partners to acquire
210,000 shares of Common Stock on behalf of the Partnership are the
capital contributions made by the limited partners to the Partner-
ship. Capital Partners purchased the 210,000 shares in numerous
separate transactions from December 29, 1995 to December 31, 1997
at prices ranging from $4.50 to $8.75 per share.
The source of funds used by Mr. Cummer to acquire 1,800 shares
of Common Stock was Mr. Cummer's personal funds. Mr. Cummer
purchased the 1,800 shares in a single transaction on November 25,
1997 at a price of $5.125 per share for a total amount of $9,225.
The source of funds used by Mr. Moyers to acquire 11,600
shares of Common Stock on behalf of the Dwayne A. Moyers IRA was
Mr. Moyers' personal funds. Mr. Moyers, as the custodian of his
IRA, purchased the 11,600 shares in eight separate transactions
from December 28, 1995 to July 7, 1997 at prices ranging from
$4.8661 to $7.50 per share for a total amount of approximately
$68,844.
Page 10 of 25 Pages
PAGE
<PAGE>
The source of funds used by the Plan to acquire 10,000 shares
of Common Stock was the contributions to the Plan made by the
employees of Holdings and its subsidiaries. The Plan purchased the
10,000 shares in eight separate transactions from March 15, 1996 to
June 13, 1997 at prices ranging from $5.00 to $6.625 per share for
a total amount of approximately $55,876.
ITEM 4. Purpose of Transaction
On January 3, 1998, certain of the Reporting Persons and their
affiliates formed The Committee to Enhance Data Systems & Software
Inc. Stockholder Value (the "Committee") in response to their
concerns over the poor financial performance of the Issuer's
operations and the poor performance of the Issuer's stock. The
members of the Committee are Cummer/Moyers Holdings, Inc.,
Cummer/Moyers Capital Partners, Inc., Cummer/Moyers Capital
Advisors, Inc., Dwayne A. Moyers, and Jeffrey A. Cummer. A copy of
the agreement setting forth the rights and obligations of each
member of the Committee is included as Exhibit B to this Schedule
13D.
In particular, the Committee is concerned over the following
matters:
(1) The Issuer had losses in excess of $5,600,000 for
the nine month period ended September 30, 1997, as reported in the
Issuer's Quarterly Report on Form 10-Q dated November 13 ,1997 for
the period ended September 30, 1997;
(2) The Issuer's most significant asset, a 24% interest
in Tower Semiconductor Ltd., declined in value by over $75,000,000
since September 1995; and
(3) The Issuer's stock price declined by over 58% since
September 1995 (from $11 5/8 to $4 7/8) while the market for
computer-related companies, as reflected by the NASDAQ Computer
Index, has rallied 71% during the same period.
Despite the poor performance of the Issuer, the current Board
of Directors of the Issuer, under the leadership of the Issuer's
Chairman and CEO, George Morgenstern, has raised Mr. Morgenstern's
annual base compensation from $300,000 per year to its current
level of $420,000 per year, awarded Mr. Morgenstern stock options,
restricted stock, and other compensation, having a value of over
$1.75 million, and extended other benefits to Mr. Morgenstern.
Additionally, during this same period the current Board of Direc-
tors has taken numerous steps to reduce the rights of stockholders
of the Issuer. Such steps include the adoption of (a) a "poison pill"
Rights Agreement dated March 19, 1996 (the "Rights Agreement") which is
triggered by the acquisition of 15% of the issued and outstanding
stock of the Issuer and (b) various amendments to the Issuer's By-
laws which eliminated the ability of the stockholders to call a
special meeting of the stockholders and significantly curtailed the
ability of the stockholders to nominate and install directors to
the Board of Directors of the Issuer.
Page 11 of 25 Pages
PAGE
<PAGE>
Additionally, the Committee believes that the various busi-
nesses which are a part of the Issuer lack a strategic fit and
synergy. As a result, the Committee believes that these businesses
do not complement each other and do not contribute any significant
benefit to the value of the Issuer and, ultimately, the value of the
Issuer's stock. The Committee believes that the marketplace would value
these businesses at a higher level if they were operated on a "stand-alone
basis" rather than as part of a conglomerate.
Based on the foregoing, the Committee has determined to
proceed with the solicitation of consents from the stockholders of
the Issuer for the express purpose of bringing about certain
fundamental corporate changes in the Issuer in order to increase
stockholder value. On January 7, 1998 the Committee filed with the
Securities and Exchange Commission a Preliminary Consent Solicita-
tion Statement and related form of Consent, seeking the approval of
numerous actions, including the removal of the existing Board of
Directors; the election of the following five (5) individuals
selected by the Committee to fill the vacated directorships, Dwayne
A. Moyers, Jeffrey A. Cummer, Kyle G. Kennedy, William Nelson II,
and Alan M. Steinmetz (collectively, the "Nominees"); the repeal of
certain recent amendments to the By-laws of the Issuer which
eliminate or curtain the rights of stockholders (discussed above);
and the termination of the Rights Agreement, or in the discretion
of the Board of Directors, the amendment of the Rights Agreement to
increase the triggering event from a 15% acquisition of the out-
standing stock of the Issuer to a 25% acquisition of the outstand-
ing stock of the Issuer.
In the event the Committee is successful in its efforts to
replace the existing Board of Directors of the Issuer, the Commit-
tee believes the new Board will retain the services of independent
auditors and financial advisors to evaluate the various businesses
of the Issuer with a view toward restructuring the Issuer in a
manner aimed at improving stockholder value. It is expected that
such restructuring may include the sale, divestiture, spin-off,
merger, repositioning or other reorganization of one or more of the
Issuer's businesses or assets. However, as of January 13, 1998
the Committee has no specific plans with regard to such a restructuring
of the Issuer.
In the future, the Reporting Persons, either as members of the
Committee or otherwise, may decide to purchase additional shares of
Common Stock of the Issuer or sell part or all of their inventory
of Common Stock of the Issuer.
Except as set forth above, none of the Reporting Persons have
any present plans or intentions which would result in or relate to
any of the transactions described in subparagraphs (a) through (j)
of Item 4 of Schedule 13D.
Page 12 of 25 Pages
PAGE
<PAGE>
Holdings has agreed to indemnify each Nominee for any losses
which may be incurred by such Nominee as a result of serving in
such capacity. A copy of the form of agreement entered into with
each of the nominees is included as Exhibit E to this Schedule 13D.
THE DISCLOSURES SET FORTH IN THIS SCHEDULE 13D ARE NOT
INTENDED AS, AND THEREFORE SHOULD NOT BE DEEMED, A SOLICITATION OF
CONSENTS IN FAVOR OF THE COMMITTEE'S PROPOSALS PURSUANT TO THE
COMMITTEE'S PRELIMINARY CONSENT SOLICITATION STATEMENT ON FILE WITH
THE SECURITIES AND EXCHANGE COMMISSION.
ITEM 5. Interest in Securities of the Issuer
The Reporting Persons beneficially own 425,400 shares of the
class of securities identified in Item 1 which is 5.77% of such
class of securities. The information contained in Schedule 1
hereto regarding the aggregate number and percentage of the class
of securities identified in Item 1 beneficially owned by each
Reporting Person is incorporated herein by reference.
The Issuer reported on its Quarterly Report on Form 10-Q for
the quarter ended September 30, 1997 that it had 7,369,178 shares
of Common Stock outstanding as of October 31, 1997. None of the
Reporting Persons nor their affiliates have any options or warrants
to purchase shares of Common Stock of the Issuer.
The information contained in Schedule 1 hereto regarding the
power to vote or dispose of securities identified in Item 1 bene-
ficially owned by the Reporting Persons is incorporated herein by
reference. All shares of Common Stock owned by a Reporting Person
who is an individual is subject to such Reporting Person's sole
power to vote and dispose of such shares of Common Stock. All
voting and disposition decisions concerning shares of Common Stock
owned by a Reporting Person that is a corporation will be made by
the majority vote of the Board of Directors of such Reporting
Person, except as provided below:
Advisors has dispositive power, but not voting power,
over 192,000 shares of Common Stock. These shares are
held in various discretionary accounts and voting
control over these shares has been retained by the
discretionary account holders who have contracted with
Advisors for investment advisory services. However, as
the investment advisor with respect to the 192,000
shares held in such discretionary accounts, Advisors
will be able to advise the account holders with respect
to the voting of such shares. Advisors, however, has no
existing arrangements or understanding, whether oral or
written, with the account holders with respect to the
voting of such shares and in particular with respect to
the consent solicitation. Copies of the form of
contracts for advisory services entered into by Advisors
and the discretionary account holders are attached as
Exhibits C-1, C-2 and C-3.
Page 13 of 25 Pages
PAGE
<PAGE>
The management and control of the Partnership is vested
exclusively in Capital Partners, Mr. Cummer and Mr.
Moyers as the general partners of the Partnership. In
such capacities Capital Partners, Mr. Cummer and Mr.
Moyers have voting and dispositive power over all
securities acquired by the Partnership. A copy of the
Investors Strategic Partners, I Ltd. Limited Partnership
Agreement is attached hereto as Exhibit D and by reference
made a part hereof.
All voting and disposition decisions concerning shares of
Common Stock owned by the Plan will be made by the trustees of the
Plan, Mr. Cummer and Mr. Moyers.
None of the Reporting Persons effected any transactions in
shares of Common Stock of the Issuer within the sixty (60) days
prior to the date of the event requiring the filing of this
statement, except for:
9,900 shares acquired by Advisors on the open market at prices
ranging from $4.375 to $5.75 per share from November 7, 1997 to
December 31, 1997:
11-07-97 bought 700 shares at $5.75
12-31-97 bought 2,700 shares at $4.50
12-31-97 bought 4,600 shares at $4.50
12-31-97 bought 400 shares at $4.375
12-31-97 bought 1,500 shares at $4.50
30,000 shares acquired by Capital Partners on the open market at
prices ranging from $4.50 to $5.3125 per share from November 12,
1997 to December 31, 1997:
11-12-97 bought 7,000 shares at $5.3125
11-12-97 bought 10,000 shares at $4.7375
11-27-97 bought 3,000 shares at $4.875
12-02-97 bought 7,000 shares at $4.875
12-31-97 bought 3,000 shares at $4.50
25,000 shares sold by Capital Partners on the open market at $5.375
per share in two transactions on November 6, 1997:
11-06-97 sold 10,000 shares at $5.375
11-06-97 sold 15,000 shares at $5.375
1,800 shares acquired by Mr. Cummer on the open market at $5.125
per share on November 25, 1997.
300 shares sold by Mr. Moyers on the open market at $4.6875 per
share on November 14, 1997.
Page 14 of 25 Pages
PAGE
<PAGE>
The Reporting Persons know of no other person who has a right
to receive or the power to direct receipt of dividends or proceeds
from the sale of the securities of the Issuer that are the subject
of this Schedule 13D.
The Reporting Persons have not ceased to be subject to the
reporting requirements of Schedule 13D during the period of this
statement.
ITEM 6. Contracts, Arrangements, Understandings or Relationships
with Respect to Securities of the Issuer
Except as set forth below, there are no contracts, arrange-
ments, understandings or relationships among the Reporting Persons
or between any of the Reporting Persons and any other person with
respect to any securities of the Issuer.
Advisors has entered into agreements with Securities and its
customers regarding the provision of discretionary investment
advisory services on behalf of such customers. Pursuant to such
agreements Advisors has the sole investment authority with regard
to assets in such customer accounts, while voting control has been
retained by the holders of such accounts. See Exhibits C-1, C-2
and C-3.
Capital Partners serves as the corporate general partner of
the Partnership, and Mr. Cummer and Mr. Moyers serve as the
individual general partners of the Partnership. In these capaci-
ties, Capital Partners, Mr. Cummer and Mr. Moyers have the sole and
exclusive right to buy and sell securities on behalf of the
Partnership and to vote same. Capital Partners', Mr. Cummer's and
Mr. Moyers' authority is set forth in the Limited Partnership
Agreement. See Exhibit D.
Holdings has agreed to indemnify each Nominee for any losses
which may be incurred by such Nominee as a result of serving in
such capacity. A copy of the form of agreement entered into with
each of the nominees is included as Exhibit E to this Schedule 13D.
The Committee has also verbally agreed to pay Mr. Alan
Steinmetz, one of the Nominees, a "success fee" upon successful
completion of the consent solicitation only if the Committee is
reimbursed for this fee by the Issuer.
ITEM 7. Material to be Filed as Exhibits
Except as set forth below, there are no exhibits required to
be filed as part of this Schedule 13D.
Exhibit A Joint Acquisition Statement (incorporated
herein by reference to Exhibit A to the
Reporting Persons' Schedule 13D/A (Amendment
No. 1) filed with the Securities and
Exchange Commission on February 11, 1998)
Page 15 of 25 Pages
PAGE
<PAGE>
Exhibit B Committee Organization Letter (incorporated
herein by reference to Exhibit B to the
Reporting Persons' Schedule 13D (Amendment
No. 1) filed with the Securities and
Exchange Commission on January 13, 1998)
Exhibit C-1 Cummer/Moyers Capital Advisors
Cummer/Moyers Securities
Platinum Account (incorporated herein by
reference to Exhibit B-1 to the Reporting
Persons' Schedule 13D/A (Amendment No. 1)
filed with the Securities and Exchange Com-
mission on February 11, 1998)
Exhibit C-2 Cummer/Moyers Capital Advisors, Inc.
Cummer/Moyers Securities
Managed Account Service Agreement (incorporat-
ed herein by reference to Exhibit B-2 to the
Reporting Persons' Schedule 13D/A (Amendment
No. 1) filed with the Securities and Exchange
Commission on February 11, 1998)
Exhibit C-3 Cummer/Moyers Capital Advisors
Cummer/Moyers Securities
Managed Investment Program Agreement (incorpo-
rated herein by reference to Exhibit B-3 to
the Reporting Persons' Schedule 13D/A (Amend-
ment No. 1) filed with the Securities and
Exchange Commission on February 11, 1998)
Exhibit D Investors Strategic Partners I, Ltd. Limited
Partnership Agreement (incorporated herein by
reference to Exhibit C to the Reporting
Persons' Schedule 13D/A (Amendment No. 1)
filed with the Securities and Exchange Com-
mission on February 11, 1998)
Exhibit E Form of Indemnification Agreement
Page 16 of 25 Pages
PAGE
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement
is true, complete and correct.
CUMMER/MOYERS HOLDINGS, INC.
Dated: February 10, 1998 /s/ Jeffrey A. Cummer
---------------------
Jeffrey A. Cummer, President
Dated: February 10, 1998 /s/ Dwayne A. Moyers
--------------------
Dwayne A. Moyers, Vice President,
Secretary and Treasurer
CUMMER/MOYERS CAPITAL ADVISORS, INC.
Dated: February 10, 1998 /s/ Jeffrey A. Cummer
---------------------
Jeffrey A. Cummer, President
Dated: February 10, 1998 /s/ Dwayne A. Moyers
--------------------
Dwayne A. Moyers, Vice President,
Secretary and Treasurer
CUMMER/MOYERS CAPITAL PARTNERS, INC.
Dated: February 10, 1998 /s/ Jeffrey A. Cummer
---------------------
Jeffrey A. Cummer, President
Dated: February 10, 1998 /s/ Dwayne A. Moyers
--------------------
Dwayne A. Moyers, Vice President,
Secretary and Treasurer
Dated: February 10, 1998 /s/ Jeffrey A. Cummer
---------------------
Jeffrey A. Cummer
Dated: February 10, 1998 /s/ Dwayne A. Moyers
--------------------
Dwayne A. Moyers
CUMMER/MOYERS HOLDINGS, INC. PROFIT
SHARING PLAN
Dated: February 10, 1998 /s/ Jeffrey A. Cummer
---------------------
Jeffrey A. Cummer, Trustee
Dated: February 10, 1998 /s/ Dwayne A. Moyers
--------------------
Dwayne A. Moyers, Trustee
Page 17 of 25 Pages
PAGE
<PAGE>
EXHIBIT INDEX
Exhibit Document
- ------- --------
E Form of Indemnification Agreement
Page 18 of 25 Pages
PAGE
<PAGE>
Schedule 1
Reporting Persons and Beneficial Ownership
<TABLE>
<CAPTION>
Address of
Principal Principal Amount
Name of Business Office Business or Beneficially Percent
Reporting Person or Residence Occupation Owned of Class
- --------------------- -------------------- ---------- ------------ --------
<S> <C> <C> <C> <C>
Cummer/Moyers Holdings, 3417 Hulen Street
Inc. Fort Worth, TX 76107 (1) 402,000 (2) 5.46%
Cummer/Moyers Capital 3417 Hulen Street
Advisors, Inc. Fort Worth, TX 76107 (3) 192,000 (4) 2.61%
Cummer/Moyers Capital 3417 Hulen Street
Partners, Inc. Fort Worth, TX 76107 (5) 210,000 (6) 2.85%
Jeffrey A. Cummer 3417 Hulen Street
Fort Worth, TX 76107 (7) 413,800 (8) 5.62%
Dwayne A. Moyers 3417 Hulen Street
Fort Worth, TX 76107 (9) 423,600 (10) 5.75%
Cummer/Moyers Holdings, 3417 Hulen Street
Inc. Profit Sharing Plan Fort Worth, TX 76107 (11) 10,000 (12) 0.14%
</TABLE>
<TABLE>
<CAPTION>
Number of Shares as
to Which Such Person Has
-----------------------------------------------------------
Sole Power Shared Sole Power Shared Power
to Vote or Power to to Dispose to Dispose
Name of to Direct Vote or to or to Direct or to Direct
Reporting Person Vote Direct Vote Disposition Disposition
- ---------------------- ---------- ----------- ------------ ------------
<S> <C> <C> <C> <C>
Cummer/Moyers Holdings,
Inc. 0 210,000 0 402,000
Cummer/Moyers Capital
Advisors, Inc. 0 0 0 192,000
Cummer/Moyers Capital
Partners, Inc. 0 210,000 0 210,000
Jeffrey A. Cummer 1,800 220,000 1,800 412,000
Dwayne A. Moyers 11,600 220,000 11,600 412,000
Cummer/Moyers Holdings,
Inc. Profit Sharing Plan 10,000 0 10,000 0
</TABLE>
1 Cummer/Moyers Holdings, Inc. ("Holdings") is principally engaged,
through its wholly-owned subsidiary, Cummer/Moyers Securities, Inc.
("Securities"), in the securities business, and through its other
subsidiaries also provides investment advisory and other financial
services to its clients.
2 Includes 192,000 shares held in discretionary accounts of clients of
Securities, regarding which Cummer/Moyers Capital Advisors, Inc.
("Advisors") has shared dispositive powers; and 210,000 shares owned
by Investors Strategic Partners I, Ltd., a Texas limited partnership
(the "Partnership"), which operates as an investment limited
partnership, investing primarily in equity securities, over which
Cummer/Moyers Capital Partners, Inc. ("Partners"), Jeffrey A. Cummer
and Dwayne A. Moyers have shared voting and dispositive powers as the
general partners of the Partnership. As the sole shareholder of
Advisors and Partners, Holdings is deemed to have shared voting
and/or dispositive powers regarding the shares over which its
subsidiaries exercise such powers.
3 Cummer/Moyers Capital Advisors, Inc. is engaged in the business of
providing investment advisory services.
4 Represents 192,000 shares held in discretionary accounts of clients
of Securities, regarding which Advisors has shared dispositive
powers. Voting control over these shares has been retained by the
discretionary account holders who have contracted with Advisors for
investment advisory services.
5 Cummer/Moyers Capital Partners, Inc. serves as the corporate general
partner of the Partnership.
6 Represents 210,000 shares owned by the Partnership, over which
Partners, Mr. Cummer and Mr. Moyers have shared voting and dispositive
powers as the general partners of the Partnership.
Page 19 of 25 Pages
PAGE
<PAGE>
7 Jeffrey A. Cummer serves as the President and a Director of
Cummer/Moyers Holdings, Inc. and its subsidiaries Cummer/Moyers
Securities, Inc., Cummer/Moyers Capital Partners, Inc. and
Cummer/Moyers Capital Advisors, Inc.
8 Includes 1,800 shares owned of record over which Mr. Cummer has sole
voting and dispositive powers; 192,000 shares held in discretionary
accounts of clients of Securities regarding which Advisors has shared
dispositive powers and regarding which Mr. Cummer has shared
dispositive powers as a director and officer of Advisors; 210,000
shares owned by the Partnership regarding which Mr. Cummer has
shared voting and dispositive powers as a director and officer of
Partners, the corporate general partner of the Partnership, and as
an individual general partner of the Partnership; and 10,000 shares
held by the Cummer/Moyers Holdings, Inc. Profit Sharing Plan (the
"Plan") regarding which Mr. Cummer has shared voting and dispositive
powers as a trustee of the Plan.
9 Dwayne A. Moyers serves as the Vice President, Secretary, Treasurer
and a Director of Cummer/Moyers Holdings, Inc. and its subsidiaries
Cummer/Moyers Securities, Inc., Cummer/Moyers Capital Partners, Inc.
and Cummer/Moyers Capital Advisors, Inc.
10 Includes 11,600 shares owned by the IRA for Dwayne A. Moyers
regarding which Mr. Moyers has sole voting and dispositive powers;
192,000 shares held in discretionary accounts of clients of
Securities regarding which Advisors has shared dispositive powers
and regarding which Mr. Moyers has shared dispositive powers as a
director and officer of Advisors; 210,000 shares owned by the
Partnership regarding which Mr. Moyers has shared voting and
dispositive powers as a director and officer of Partners, the
corporate general partner of the Partnership, and as an individual
general partner of the Partnership; and 10,000 shares held by the
Plan regarding which Mr. Moyers has shared voting and dispositive
powers as a trustee of the Plan.
11 The Cummer/Moyers Holdings Inc. Profit Sharing Plan is the profit
sharing plan established for the benefit of the employees of
Cummer/Moyers Holdings, Inc. and its subsidiaries.
12 Represents 10,000 shares owned by employees of Cummer/Moyers
Holdings, Inc. and its subsidiaries over which the Plan has sole
voting and dispositive powers.
Page 20 of 25 Pages
PAGE
<PAGE>
EXHIBIT E
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "Agreement") is entered
into by and among The Committee to Enhance Data Systems & Software
Inc. Stockholder Value (the "Committee"), Cummer/Moyers Holdings,
Inc., a Texas corporation ("Cummer/Moyers"), and _______________
("Indemnitee").
WHEREAS, the Committee is an independent stockholder committee
which was formed for the purpose of seeking relief from certain
past and contemplated actions by the current management and
directors of Data Systems & Software, Inc. ("DSSI") by organizing
and mobilizing the stockholders of DSSI to take certain stockholder
action appropriate and necessary to correct the effects of such
actions; and
WHEREAS, Cummer/Moyers is a member of the Committee; and
WHEREAS, in order to implement its goals, the Committee is
seeking through a Consent Solicitation Statement the approval of a
number of proposals from the stockholders of DSSI, including the
removal of the current Board of Directors of DSSI and the filling
of such ensuing vacancies with the Committee's five (5) nominees
for directorships; and
WHEREAS, Indemnitee has been nominated by the Committee to
serve as a director of DSSI and Indemnitee has agreed to the
inclusion of his name in the Committee's slate of directors; and
WHEREAS, if the Committee is successful in its efforts,
Indemnitee has further agreed to serve as a director of DSSI; and
WHEREAS, Indemnitee is reluctant to have his name included in
the Committee's slate of directors unless he is provided with
reasonable protection through indemnification against certain risks
undertaken in this regard; and
WHEREAS, Cummer/Moyers has determined that Cummer/Moyers
should contractually obligate itself to indemnify Indemnitee for
such risks to the extent provided in this Agreement;
NOW, THEREFORE, in consideration of the premises and the
covenants contained herein, the Committee, Cummer/Moyers and
Indemnitee do hereby covenant and agree as follows:
1. Services of Indemnitee. Indemnitee accepts the nomina-
tion by the Committee to serve as a director of DSSI and agrees to
the inclusion of his name in the Committee's slate of directors.
Indemnitee further agrees to not withdraw his nomination without
the prior written consent of the Committee.
PAGE
<PAGE>
2. Indemnification Provisions.
(a) Indemnification. Cummer/Moyers agrees to indemnify
Indemnitee and hold Indemnitee harmless to the extent permitted by
law from and against any Adverse Consequences Indemnitee may suffer
resulting from, arising out of, relating to, or caused by Indem-
nitee's nomination by the Committee as a director of DSSI and the
inclusion of his name in the Committee's slate of directors, except
for any Adverse Consequences resulting from, arising out of,
relating to, or caused by Indemnitee's actions not taken in good
faith or which constitute fraud, willful misconduct or gross
negligence, which Adverse Consequences are expressly excluded from
the foregoing indemnification obligations of Cummer/Moyers.
(b) Adverse Consequences. "Adverse Consequences" means
all actions, suits, proceedings, hearings, charges, complaints,
claims, demands, injunctions, judgments, orders, decrees, rulings,
damages, penalties, fines, costs, amounts paid in settlement,
liabilities, obligations, losses, expenses, and fees, including
court costs and attorneys' fees and expenses.
(c) Matters Involving Third Parties.
(i) If any third party shall notify Indemnitee
with respect to any matter (a "Third Party Claim") which may give
rise to a claim for indemnification against Cummer/Moyers under
this Section 2, then Indemnitee shall promptly notify Cummer/Moyers
thereof in writing; provided, however, that no delay on the part of
Indemnitee in notifying Cummer/Moyers shall relieve Cummer/Moyers
from any obligation hereunder unless (and then solely to the
extent) Cummer/Moyers thereby is materially prejudiced.
(ii) Cummer/Moyers will have the right to defend
Indemnitee against the Third Party Claim with counsel of its choice
satisfactory to Indemnitee so long as (A) Cummer/Moyers notifies
Indemnitee in writing within thirty (30) days after Indemnitee has
given notice of the Third Party Claim that Cummer/Moyers will
indemnify Indemnitee from and against the entirety of any Adverse
Consequences Indemnitee may suffer resulting from, arising out of,
relating to, or caused by the Third Party Claim, (B) Cummer/Moyers
provides Indemnitee with evidence acceptable to Indemnitee that
Cummer/Moyers will have the financial resources to defend against
the Third Party Claim and fulfill its indemnification obligations
hereunder, (C) the Third Party Claim involves only money damages
and does not seek an injunction or other equitable relief, and (D)
Cummer/Moyers conducts the defense of the Third Party Claim
actively and diligently and timely provides information to Indemni-
tee as to the status of the Third Party Claim.
(iii) So long as Cummer/Moyers is conducting the
defense of the Third Party Claim in accordance with Section
2(c)(ii), (A) Indemnitee may retain separate co-counsel at his sole
cost and expense and participate in the defense of the Third Party
Claim, (B) Indemnitee will not consent to the entry of any judgment
or enter into any settlement with respect to the Third Party Claim
without the prior written consent of Cummer/Moyers, and (C)
Cummer/Moyers will not consent to the entry of any judgment or
enter into any settlement with respect to the Third Party Claim
without the prior written consent of Indemnitee.
-2-
PAGE
<PAGE>
(iv) In the event any of the conditions in
Section 2(c)(ii) is or becomes unsatisfied, however, (A) Indemnitee
may defend against, and consent to the entry of any judgment or
enter into any settlement with respect to, the Third Party Claim in
any manner he may deem appropriate (and Indemnitee need not consult
with, or obtain any consent from, Cummer/Moyers in connection
therewith), (B) Cummer/Moyers will reimburse Indemnitee promptly
and periodically for the costs of defending against the Third Party
Claim (including attorneys' fees and expenses), and (C)
Cummer/Moyers will remain responsible for any Adverse Consequences
Indemnitee may suffer resulting from, arising out of, relating to,
or caused by the Third Party Claim to the fullest extent provided
in this Section 2.
3. Duration of Agreement. This Agreement shall apply to any
Third Party Claim asserted on or after the effective date of this
Agreement and shall continue until and terminate upon the later of:
(a) one (1) year after the effective date of this Agreement or (b)
the final termination of all pending or threatened proceedings of
the kind described herein with respect to Indemnitee; provided,
however, the indemnification obligations of Cummer/Moyers under
this Agreement shall immediately cease in the event Indemnitee
withdraws his nomination from the Committee's slate of directors
without the prior written consent of the Committee.
4. Severability. If any provision or provisions of this
Agreement shall be held to be invalid, illegal or unenforceable for
any reason whatsoever: (a) the validity, legality and enforceabili-
ty of the remaining provisions of this Agreement (including without
limitation, all portions of any sections of this Agreement contain-
ing any such provision held to be invalid, illegal or unenforce-
able, that are not themselves invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; and (b) to
the fullest extent possible, the provisions of this Agreement
(including, without limitation, all portions of any section of this
Agreement containing any such provision held to be invalid, illegal
or unenforceable, that are not themselves invalid, illegal or
unenforceable) shall be construed so as to give effect to the
intent manifested by the provision held invalid, illegal or
unenforceable.
5. Identical Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall for all purposes be
deemed to be an original but all of which together shall constitute
one and the same Agreement. Only one such counterpart signed by
the party against whom enforceability is sought needs to be
produced to evidence the existence of this Agreement.
-3-
PAGE
<PAGE>
6. Headings. The headings of the sections of this Agreement
are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction
thereof.
7. Modification and Waiver. No supplement, modification or
amendment of this Agreement shall be binding unless executed in
writing by all of the parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provisions hereof (whether or not similar) nor
shall such waiver constitute a continuing waiver.
8. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to
have been duly given if (i) delivered by hand and receipted for by
the party to whom said notice or other communication shall have
been directed, or (ii) mailed by certified mail with postage
prepaid, on the third business day after the date on which it is so
mailed:
(a) If to Indemnitee:
________________________________
________________________________
________________________________
(b) If to the Committee or to Cummer/Moyers:
Cummer/Moyers Holdings, Inc.
3417 Hulen Street
Fort Worth, Texas 76107
Attn: Dwayne A. Moyers
From time to time any party to this Agreement may designate another
address within the forty-eight (48) contiguous states of the United
States of America by giving the other parties to this Agreement at
least thirty (30) days' prior written notice of such change of
address in accordance with the provisions of this Section 8.
9. Governing Law. The parties agree that this Agreement
shall be governed by, and construed and enforced in accordance
with, the laws of the State of Texas.
10. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of Indemnitee, his heirs, legatees, executors,
administrators, legal representatives, successors and permitted
assigns, and upon Cummer/Moyers and the Committee, and their
respective successors and permitted assigns.
-4-
PAGE
<PAGE>
11. Assignment. This Agreement may not be assigned by a
party to this Agreement without the prior written consent of the
other parties to this Agreement.
12. Cummer/Moyers as Sole Indemnitor. Notwithstanding the
fact that the Committee is a party to this Agreement, neither the
Committee nor any member thereof, other than Cummer/Moyers, shall
have any indemnification obligations under this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on this _____ day of _______________, 1998.
COMMITTEE: THE COMMITTEE TO ENHANCE DATA SYSTEMS
& SOFTWARE INC. STOCKHOLDER VALUE
_____________________________________
Member
_____________________________________
Member
CUMMER/MOYERS: CUMMER/MOYERS HOLDINGS, INC.,
a Texas Corporation
By:______________________________
__________________, __________
INDEMNITEE: _________________________________
-5-
<PAGE>
