<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
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)
February 6, 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 30 Pages
PAGE
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CUSIP No.: 237887104 13D Page 2 of 30 Pages
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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
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CUSIP No.: 237887104 13D Page 3 of 30 Pages
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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
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CUSIP No.: 237887104 13D Page 4 of 30 Pages
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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
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CUSIP No.: 237887104 13D Page 5 of 30 Pages
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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
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CUSIP No.: 237887104 13D Page 6 of 30 Pages
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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
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CUSIP No.: 237887104 13D Page 7 of 30 Pages
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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
subsidiary 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 30 Pages
PAGE
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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.
Page 9 of 30 Pages
PAGE
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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.
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.
Page 10 of 30 Pages
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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.
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
As previously reported on Schedule 13D Amendment No. 1 filed
with the Securities and Exchange Commission (the "SEC") on Jan-
uary 13, 1998, as subsequently amended by Schedule 13D/A Amendment
No. 1 filed with the SEC on February 11, 1998, Cummer/Moyers
Holdings, Inc., Cummer/Moyers Capital Partners, Inc., Cummer/Moyers
Capital Advisors, Inc., Jeffrey A. Cummer and Dwayne A. Moyers
(collectively, the "Cummer/Moyers Group") on January 3, 1998,
formed The Committee to Enhance Data Systems & Software Inc.
Shareholder Value (the "Committee") in response to the
Cummer/Moyers Group's concerns over the poor financial performance
of the Issuer's operations and the poor performance of the Issuer's
stock. On January 8, 1998, the Committee filed a preliminary
consent solicitation statement and related form of consent (the
"Consent Solicitation") with the SEC seeking, among other actions,
the removal of the existing board of directors of the Issuer and
the replacement thereof by the Committee's own nominees.
On January 15, 1998, the Issuer commenced an action in the
United Stated District Court for the District of New Jersey seeking
to enjoin the Consent Solicitation initiated by the Committee (the
"Litigation"). On February 4, 1998 the Committee advised the SEC
of its intention to not proceed with the Consent Solicitation. On
February 6, 1998, the Cummer/Moyers Group and the Issuer entered
into a settlement agreement (the "Settlement Agreement") with
respect to the Litigation, pursuant to which the Issuer agreed,
among other matters, to:
(i) dismiss the Litigation without prejudice;
(ii) seek one or more qualified persons to serve as
independent outside directors on the board of directors of the
Issuer; and
(iii) create a compensation committee, consisting of
three directors, the majority of which to be outside directors.
Page 11 of 30 Pages
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In consideration of the Issuer's obligations under the
Settlement Agreement, each member of the Cummer/Moyers Group agreed
to:
(i) terminate the Consent Solicitation; and
(ii) vote for, and recommend to others to vote for, the
election of each of the 1998 nominees of the Issuer at the 1998
Annual Meeting of Shareholders of the Issuer.
Additionally, each member of the Cummer/Moyers Group agreed, among
other matters, to certain standstill restrictions for a period of
five years, including an agreement to not acquire any additional
shares of stock of the Issuer and to not engage in any other proxy
contests or consent solicitations. The Committee was terminated on
February 9, 1998. A copy of the Settlement Agreement is attached
hereto as Exhibit B and by reference made a part hereof.
The Reporting Persons are holding the Common Stock of the
Issuer for investment purposes only. In the future, the Reporting
Persons may decide to sell part or all of their inventory of Common
Stock of the Issuer.
None of the Reporting Persons have any present plans or
intentions which would result in or relate to any of the transac-
tions described in subparagraphs (a) through (j) of Item 4 of
Schedule 13D.
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
beneficially 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:
Page 12 of 30 Pages
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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.
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 refer-
ence 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:
9,200 shares acquired by Advisors on the open market at prices
ranging from $4.375 to $4.50 per on December 31, 1997:
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
3,000 shares acquired by Capital Partners on the open market at
$4.50 per share on December 31, 1997.
Page 13 of 30 Pages
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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.
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)
Exhibit B Settlement Agreement
Page 14 of 30 Pages
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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
Commission 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
Commission on February 11, 1998)
Page 15 of 30 Pages
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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 11, 1998 /s/ Jeffrey A. Cummer
---------------------
Jeffrey A. Cummer, President
Dated: February 11, 1998 /s/ Dwayne A. Moyers
--------------------
Dwayne A. Moyers, Vice President,
Secretary and Treasurer
CUMMER/MOYERS CAPITAL ADVISORS, INC.
Dated: February 11, 1998 /s/ Jeffrey A. Cummer
---------------------
Jeffrey A. Cummer, President
Dated: February 11, 1998 /s/ Dwayne A. Moyers
--------------------
Dwayne A. Moyers, Vice President,
Secretary and Treasurer
CUMMER/MOYERS CAPITAL PARTNERS, INC.
Dated: February 11, 1998 /s/ Jeffrey A. Cummer
---------------------
Jeffrey A. Cummer, President
Dated: February 11, 1998 /s/ Dwayne A. Moyers
--------------------
Dwayne A. Moyers, Vice President,
Secretary and Treasurer
Dated: February 11, 1998 /s/ Jeffrey A. Cummer
---------------------
Jeffrey A. Cummer
Dated: February 11, 1998 /s/ Dwayne A. Moyers
--------------------
Dwayne A. Moyers
CUMMER/MOYERS HOLDINGS, INC. PROFIT
SHARING PLAN
Dated: February 11, 1998 /s/ Jeffrey A. Cummer
---------------------
Jeffrey A. Cummer, Trustee
Dated: February 11, 1998 /s/ Dwayne A. Moyers
--------------------
Dwayne A. Moyers, Trustee
Page 16 of 30 Pages
PAGE
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EXHIBIT INDEX
Exhibit Document
- ------- --------
B Settlement Agreement
Page 17 of 30 Pages
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<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.
Page 18 of 30 Pages
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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.
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 19 of 30 Pages
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EXHIBIT B
SETTLEMENT AGREEMENT
SETTLEMENT AGREEMENT, dated this 6th day of February, 1998
("Agreement"), by and among Jeffrey A. Cummer, Dwayne A. Moyers,
Cummer/Moyers Capital Advisors, Inc., Cummer/Moyers Capital
Partners, Inc., Cummer/Moyers Holdings, Inc. Profit Sharing Plan,
Cummer/Moyers Holdings, Inc., Cummer/Moyers Securities, Inc., IRA
for Dwayne A. Moyers and The Committee to Enhance Data Systems &
Software Inc. Stockholder Value (the foregoing individuals and
entities being collectively referred to herein as the
"Cummer/Moyers Group"); and Data Systems & Software Inc., a
Delaware corporation (the "Company").
WHEREAS, the Cummer/Moyers Group has publicly stated that it
intends to seek consents from stockholders of the Company for the
purposes of attempting to remove the incumbent Board of Directors
(the "Board"), electing nominees of their choosing and amending
certain of the Company's By-laws (the "Consent Solicitation"), and
has taken certain actions in furtherance thereof;
WHEREAS, the Company commenced an action entitled Data Systems
& Software Inc. v. Moyers, et al. against the members of the
Cummer/Moyers Group in the United States District Court for the
District of New Jersey (the "Pending Litigation"); and
WHEREAS, the Company and the members of the Cummer/Moyers
Group have determined that the interests of the Company and its
stockholders, and the interests of the members of the Cummer/Moyers
Group, would best be served by (i) avoiding the substantial expense
and disruption that could be expected to result from the Consent
Solicitation and the Pending Litigation, (ii) terminating the
Pending Litigation against the members of the Cummer/Moyers Group
as provided herein, and (iii) the receipt of other agreements,
covenants, rights and benefits as provided herein.
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements and representations set forth herein, intending
to be legally bound hereby, the parties hereby agree as follows:
1. Settlement of Pending Litigation; Board Composition;
Related Matters.
(a) As promptly as practicable after the execution of
this Agreement, the Company shall take all steps necessary to
dismiss the Pending Litigation without prejudice and without costs
or expenses. The Company agrees that (i) it will not, prior to the
Termination Date (as such term is defined in paragraph 2(a)
hereof), reinstitute against any members of the Cummer/Moyers Group
or against any of the persons nominated by the Cummer/Moyers Group
to stand for election to the Board in the Consent Solicitation, any
of the claims made in the Pending Lawsuit and (ii) following the
Termination Date the Pending Lawsuit will be dismissed with
prejudice.
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(b) The IRA for Dwayne A. Moyers, a member of the
Cummer/Moyers Group, hereby revokes the Written Consent of Stock-
holder to Action Without a Meeting dated January 7, 1998 submitted
to the Company by CEDE & Co. on its behalf, and the Cummer/Moyers
Group hereby terminates the Consent Solicitation.
(c) The Company and the members of the Cummer/Moyers
Group hereby agree that the Company may nominate such persons as it
deems appropriate to stand for election to the Board at the
Company's 1998 Annual Meeting (the "1998 Annual Meeting"). The
Company has informed the Cummer/Moyers Group that it has been
seeking, and will continue to seek, one or more persons who are not
currently serving on the Board, with appropriate qualifications, to
serve on the Board as independent outside directors, and that if
such person or persons are selected prior to the time the Company
selects its nominees to stand for election to the Board at the 1998
Annual Meeting, such person or persons will also be nominees. The
persons nominated by the Company to stand for election to the Board
in accordance with this paragraph 1(c) are referred to herein as
the "1998 Nominees." The 1998 Nominees shall serve on the Board
for a term expiring at the Company's 1999 Annual Meeting of Stock-
holders and until their respective successors shall have been duly
elected and qualified.
(d) The members of the Cummer/Moyers Group and their
Affiliates and Associates (as such terms are hereinafter defined),
and the Company shall support and recommend that the Company's
stockholders vote for the election of each of the 1998 Nominees at
the 1998 Annual Meeting, and the members of the Cummer/Moyers Group
shall vote, and shall cause their respective Affiliates and
Associates to vote, all shares of the Company's Common Stock (the
"Common Stock") which they are entitled to vote at the 1998 Annual
Meeting in favor of the election of each of the 1998 Nominees.
(e) At the first meeting of the Board following the
certification of the vote of the election of directors at the 1998
Annual Meeting, the Board shall create a Compensation Committee of
the Board, consisting of three directors, at least two of whom
shall be directors who are not employees of the Company.
2. Certain Covenants.
(a) The covenants and agreements contained in this
paragraph 2 shall terminate on the fifth anniversary of the date
hereof (the "Termination Date").
(b) Each member of the Cummer/Moyers Group jointly and
severally agrees that during the period commencing on the date
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hereof and ending on the Termination Date, without the prior
written consent of the Board specifically expressed in a resolution
adopted by a majority vote of the full membership of the Board,
they will not, and will cause each of their Affiliates and Associ-
ates not to, directly or indirectly:
(i) acquire, offer or propose to acquire, or
agree to acquire (except by way of stock dividends or
other distributions or offerings made available to
holders of Voting Securities (as such term is
hereinafter defined) generally, provided that any such
securities so received shall be subject to the
provisions hereof), directly or indirectly, whether by
purchase, tender or exchange offer, through the
acquisition of control of another Person (as hereinafter
defined), by joining a partnership, limited partnership,
syndicate or other "group" (within the meaning of
Section 13(d)(3) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) or otherwise, any
Voting Securities;
(ii) engage, or in any way participate, directly
or indirectly, in any "solicitation" (as such term is
used in the proxy rules of the Securities and Exchange
Commission (the "SEC")) of proxies or consents (whether
or not relating to the election or removal of
directors), seek to advise, encourage or influence any
Person with respect to the voting of any Voting
Securities, initiate, propose or otherwise "solicit" (as
such term is used in the proxy rules of the SEC)
stockholders of the Company for the approval of
stockholder proposals whether made pursuant to Rule 14a-
8 under the Exchange Act or otherwise, induce or attempt
to induce any other Person to initiate any such
stockholder proposal, or otherwise communicate with the
Company's stockholders or others pursuant to Rule 14a-
1(l)(2)(iv) under the Exchange Act;
(iii) seek, propose or make any public statements
with respect to, any merger, consolidation, business
combination, tender or exchange offer, sale or purchase
of assets, sale or purchase of securities, dissolution,
liquidation, restructuring, recapitalization or similar
transactions involving the Company or any of its Affili-
ates;
(iv) form, join or in any way participate in any
"group" (within the meaning of Section 13(d)(3) of the
Exchange Act) with respect to any Voting Securities,
other than the "group" identified in a Schedule 13D
filed with the SEC on December 18, 1997, as amended as
of the date hereof, by members of the Cummer/Moyers
Group;
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(v) deposit any Voting Securities in any voting
trust or subject any Voting Securities to any
arrangement or agreement with respect to the voting of
any Voting Securities, except as specifically set forth
in paragraph 1(d) hereof;
(vi) otherwise act, alone or in concert with
others, to control or seek to control or influence or
seek to influence the management, the Board or policies
of the Company;
(vii) seek, alone or in concert with others, (a)
to call a meeting of stockholders, (b) representation on
the Board, or (c) the removal of any member of the
Board;
(viii) make any publicly disclosed proposal or
enter into any discussion regarding any of the
foregoing, or make any proposal, statement or inquiry,
or disclose any intention, plan or arrangement (whether
written or oral) inconsistent with the foregoing, or
make or disclose any request to waive or terminate any
provision of this Agreement; or
(ix) take or cause or induce others to take any
action inconsistent with any of the foregoing.
3. Representations and Warranties of the Cummer/Moyers
Group.
The members of the Cummer/Moyers Group jointly and severally
represent and warrant as follows:
(a) Each member of the Cummer/Moyers Group has the
power and authority to execute, deliver and carry out the
provisions of this Agreement and to consummate the transactions
contemplated hereby.
(b) This Agreement has been duly and validly
authorized, executed, and delivered by each member of the
Cummer/Moyers Group, constitutes a valid and binding obligation of
each such member, and is enforceable in accordance with its terms.
(c) The members of the Cummer/Moyers Group, together
with their Affiliates and Associates, beneficially own, directly or
indirectly, an aggregate of 425,400 shares of Common Stock of the
Company as set forth by beneficial owner and amount on Schedule A
hereto and such shares of Common Stock constitute all of the Voting
Securities of the Company beneficially owned by the members of the
Cummer/Moyers Group and their Affiliates and Associates.
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4. Representations and Warranties of the Company. The
Company hereby represents and warrants as follows:
(a) The Company has the corporate power and authority
to execute, deliver and carry out the terms and provisions of this
Agreement and to consummate the transactions contemplated hereby.
(b) This Agreement has been duly and validly
authorized, executed and delivered by the Company and constitutes a
valid and binding agreement of the Company, enforceable in
accordance with its terms.
5. Specific Performance. Each of the members of the
Cummer/Moyers Group and the Company, acknowledges and agrees that
irreparable injury to the other parties hereto would occur in the
event any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached and
that such injury would not be compensable in damages. It is
accordingly agreed that each party hereto (the "Moving Party")
shall be entitled to specific enforcement of the terms hereof and
the other parties hereto will not take action, directly or indi-
rectly, in opposition to the Moving Party seeking such relief on
the grounds that any other remedy or relief is available at law or
in equity.
6. Retraction of Certain Statements. The members of the
Cummer/Moyers Group hereby retract any statements contained in
their public filings or otherwise which in any way may be construed
as alleging improper or unlawful conduct on the part of any
officers, directors, employees or agents of the Company.
7. Expenses. Concurrently with the execution of this
Agreement, the Cummer/Moyers Group is reimbursing the Company for a
portion of the Company's out-of-pocket expenses incurred in
connection with the Consent Solicitation, the Pending Litigation
and the negotiation and execution of this Agreement, in the amount
of $20,000.
8. No Waiver. Any waiver by any party hereto of a breach
of any provision of this Agreement shall not operate as or be con-
strued to be a waiver of any other breach of such provision or of
any breach of any other provision of this Agreement. The failure
of any party hereto to insist upon strict adherence to any term of
this Agreement on one or more occasions shall not be considered a
waiver or deprive that party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement.
9. Certain Definitions. As used in this Agreement, (a) the
term "Person" shall mean any individual, partnership, corporation,
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group, syndicate, trust, government or agency thereof, or any other
association or entity; (b) the terms "Affiliates" and "Associates"
shall have the meanings set forth in Rule 12b-2 under the Exchange
Act and shall include persons who become Affiliates or Associates
of any Person subsequent to the date hereof; and (c) the term
"Voting Securities" shall mean the shares of Common Stock and any
other securities of the Company entitled to vote in the election of
directors, or securities convertible into, or exercisable or
exchangeable for, such Common Stock or other securities, whether or
not subject to the passage of time or other contingencies.
10. Successors and Assigns. All the terms and provisions of
this Agreement shall inure to the benefit of and shall be enforce-
able by the successor and assigns of the parties hereto.
11. Survival of Representations. All representations,
warranties and agreements made by the parties in this Agreement or
pursuant hereto shall survive the date hereof.
12. Entire Agreement; Amendments. This Agreement contains
the entire understanding of the parties hereto with respect to its
subject matter. There are no restrictions, agreements, promises,
representations, warranties, covenants or undertakings other than
those expressly set forth herein, except as may otherwise be agreed
to in writing among the parties. This Agreement may be amended
only by a written instrument duly executed by the parties hereto or
their respective successors or assigns.
13. Headings. The section headings contained in this
Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement.
14. Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be
given (and shall be deemed to have been duly given if so given) by
hand delivery, cable, telecopy or telex, or by mail (registered or
certified, postage prepaid, return receipt requested) to the
respective parties hereto as follows:
If to the Company: Data Systems & Software Inc.
200 Route 17
Mahwah, New Jersey 07430
Attention: George Morgenstern,
Chairman, President and
Chief Executive Officer
Telecopy: 201/529-8330
with copies to: Ehrenreich Eilenberg Krause
& Zivian LLP
300 East 42nd Street
New York, New York 10017
Attention: Sheldon Krause, Esq.
Telecopy: 212/986-2399
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<PAGE>
and
Skadden, Arps, Slate, Meagher
& Flom LLP
919 Third Avenue
New York, New York 10022
Attention: Daniel E. Stoller, Esq.
Telecopy: 212/735-2000
If to the
Cummer/Moyers Group: Cummer/Moyers Holdings, Inc.
3417 Hulen Street
Fort Worth, Texas 76107
Attention: Jeffrey A. Cummer
and Dwayne A. Moyers
Telecopy: 817/763-5559
with a copy to: Tracy & Holland, L.L.P.
306 West Seventh Street, Suite 500
Fort Worth, Texas 76102-4982
Attention: Margaret E. Holland, Esq.
Telecopy: 817/332-3140
or to such other address as the person to whom notice is given may
have previously furnished to the others in writing in the manner
set forth above.
15. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of
New Jersey without reference to the conflict of laws principles
thereof.
16. Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but each of which
together shall constitute one and the same Agreement.
17. Cummer/Moyers Group Representative. Each member of the
Cummer/Moyers Group hereby irrevocably appoints Dwayne A. Moyers as
such member's attorney-in-fact and representative (the "Representa-
tive"), in such member's place and stead, to do any and all things
and to execute any and all documents and give and receive any and
all notices or instructions in connection with this Agreement and
the transactions contemplated hereby. The Company shall be
entitled to rely, as being binding on each member of the
Cummer/Moyers Group, upon any action taken by the Representative or
upon any document, notice, instruction or other writing given or
executed by the Representative.
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18. No Admission. Nothing contained herein shall constitute
an admission by any party hereto of liability or wrongdoing.
IN WITNESS WHEREOF, and intending to be legally bound hereby,
each of the undersigned parties has executed or caused this
Agreement to be executed on the date first above written.
DATA SYSTEMS & SOFTWARE INC.
By:/s/ George Morgenstern
----------------------
Name:
Title:
/s/ Jeffrey A. Cummer
---------------------
JEFFREY A. CUMMER
/s/ Dwayne A. Moyers
--------------------
DWAYNE A. MOYERS
CUMMER/MOYERS CAPITAL ADVISORS, INC.
By:/s/ Dwayne A. Moyers
--------------------
Name:
Title:
CUMMER/MOYERS CAPITAL PARTNERS, INC
By:/s/ Dwayne A. Moyers
--------------------
Name:
Title:
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CUMMER/MOYERS HOLDINGS, INC. PROFIT
SHARING PLAN
By:/s/ Dwayne A. Moyers
--------------------
Name:
Title:
CUMMER/MOYERS HOLDINGS, INC
By:/s/ Dwayne A. Moyers
--------------------
Name:
Title:
CUMMER/MOYERS SECURITIES, INC.
By:/s/ Dwayne A. Moyers
--------------------
Name:
Title:
IRA FOR DWAYNE A MOYERS
By:/s/ Dwayne A. Moyers
--------------------
Name:
Title:
THE COMMITTEE TO ENHANCE DATA
SYSTEMS & SOFTWARE INC.
STOCKHOLDER VALUE
By:/s/ Dwayne A. Moyers
--------------------
Name:
Title:
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SCHEDULE A
Summary of Beneficial Ownership of Shares of Common Stock
of Data Systems & Software Inc.
Amount
Beneficially Percent
Beneficial Owner Owned of Class(1)
---------------- ------------ -----------
Jeffrey A. Cummer 413,800(2) 5.62%
Dwayne A. Moyers 423,600(3) 5.75%
Cummer/Moyers Capital Advisors, Inc. 192,000(4) 2.61%
Cummer/Moyers Capital Partners, Inc. 210,00(5) 2.85%
Cummer/Moyers Holdings, Inc. Profit
Sharing Plan 10,000(6) 0.14%
Cummer/Moyers Holdings, Inc. 0 0
Cummer/Moyers Securities, Inc. 0 0
IRA for Dwayne A. Moyers 11,600(7) 0.16%
The Committee to Enhance Data Systems
& Software Inc. Stockholder Value 0 0
1 Based on 7,369,178 shares of common stock of Data Systems &
Software Inc. outstanding as of October 31, 1997.
2 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 Cummer/Moyers Securities,
Inc. ("Securities") regarding which Cummer/Moyers Capital
Advisors, Inc. ("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
Investors Strategic Partners I, Ltd. (the "Partnership") regard-
ing which Mr. Cummer has shared voting and dispositive powers as
a director and officer of Cummer/Moyers Capital Partners, Inc.
("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.
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3 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.
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 contract-
ed with Advisors for investment advisory services.
5 Represents 210,000 shares owned by the Partnership, over which
Partners, Cummer and Moyers have sole voting and dispositive
powers as the General Partners of the Partnership.
6 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.
7 Dwayne A. Moyers has sole voting and dispositive powers regard-
ing the shares owned by the IRA for Dwayne A. Moyers.
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