CUSIP NO. 00437W102 PAGE 1 OF 9 PAGES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 13D/A
(RULE 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(A) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13D-2(a)
(AMENDMENT NO. 1)*
Accrue Software, Inc.
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(Name of Issuer)
Common Stock, par value $0.001 per share
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(Title of Class of Securities)
00437W102
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(CUSIP Number)
Robert M. Smelick, c/o Sterling Payot Company, 65 Cloudview Road,
Sausalito, CA 94965, (415) 289-2590
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
February 4, 2003
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(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/A, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following
box.
Note: Schedules filed in paper format shall include a signed original and five
copies of the Schedule, including all exhibits. See Rule 13d-7(b) 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).
SCHEDULE 13D/A
CUSIP NO. 00437W102 PAGE 2 OF 9 PAGES
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1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
Robert M. Smelick
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)
(b) X
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC, PF
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES OF AMERICA
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7 SOLE VOTING POWER
7,859,484
NUMBER OF
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SHARES 8 SHARED VOTING POWER
BENEFICIALLY 0
OWNED BY
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EACH 9 SOLE DISPOSITIVE POWER
REPORTING 7,859,484
PERSON
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WITH 10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,859,484
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
21.4%
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14 TYPE OF REPORTING PERSON*
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D/A
CUSIP NO. 00437W102 PAGE 3 OF 9 PAGES
ITEM 1 - SECURITY AND ISSUER
Common Stock, par value $0.001 per share(1)
Accrue Software, Inc.
48634 Milmont Drive
Fremont, California 94538-7353
ITEM 2 - IDENTITY AND BACKGROUND
(a) Robert M. Smelick
(b) Sterling Payot Company
65 Cloudview Road
Sausalito, CA 94965
(c) Mr. Smelick is the managing director of Sterling Payot Management, Inc., the
general partner of Sterling Payot Capital, LP, an investment partnership
specializing in technology based start-up companies, and he is also a managing
principal and founding director of Sterling Payot Company, a private investment
banking firm, a member of Headland Management Co., LLC, and the managing member
of Red Fox Investment Partners LLC (the aforementioned businesses, collectively,
the "Smelick Companies"). Mr. Smelick is also Chairman of the Board of Directors
of the Issuer. The principal business address of each of the Smelick Companies
is 65 Cloudview Road, Sausalito, CA 94965. Mr. Smelick is the trustee of each of
the Alexandra McBryde Smelick Trust dated 6/90, the Christopher Paine Smelick
Trust dated 6/90 and the Gillian Sterling Smelick Trust dated 6/90 (the
aforementioned trusts, collectively, the "Smelick Trusts"). The sole beneficiary
of each of the Smelick Trusts is a child of Mr. Smelick. Mr. Smelick is the
spouse of Gail S. Smelick and the son of Mary H. Smelick. The Smelick Companies,
the Smelick Trusts, Gail S. Smelick and Mr. Smelick are sometimes collectively
referred to herein as the "Smelick Parties".
(d) Not applicable.
(e) Not applicable.
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(1) The additional shares of Common Stock to which this statement relates are
issuable upon the conversion of certain Secured Convertible Promissory Notes
dated February 4, 2003 (the "Notes"). The principal and, at the request of the
holder of the Note, the accrued but unpaid interest on the Notes is convertible
upon the consent of the holders of a majority of the outstanding principal
amount of the Notes into shares of Common Stock or, in the event that there is a
series of Preferred Stock of the Company issued or proposed to be issued, into
the most senior series of such Preferred Stock. At this time, no such series of
Preferred Stock exists. The number of shares into which the Notes may convert is
determined by dividing (i) the principal amount of the Note plus, if applicable,
the accrued but unpaid interest under the Note by (ii) $0.06 (as adjusted from
time-to-time as set forth in the Notes).
SCHEDULE 13D/A
CUSIP NO. 00437W102 PAGE 4 OF 9 PAGES
(f) Mr. Smelick is a citizen of the United States of America.
ITEM 3 - SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
On February 4, 2003, the Smelick Parties acquired two Secured Convertible
Promissory Notes in an aggregate principal amount of $395,923.29, which Notes
are convertible at $0.06 per share (as adjusted from time-to-time as set forth
in the Notes) into an aggregate of 6,598,721 shares of Common Stock or, in the
event that there is a Preferred Stock issued or proposed to be issued, into
Preferred Stock (as described in the Note). The first such Note, in the
principal amount of $60,349.72, was purchased by Mr. Smelick through a
cancellation of indebtedness owed by the Issuer to Mr. Smelick pursuant to a
$12,000 Secured Promissory Note sold to Mr. Smelick on October 11, 2002 and a
$48,000 Secured Promissory Note sold to Mr. Smelick on October 25, 2002
(collectively, the "Smelick Notes"). Mr. Smelick paid for the Smelick Notes with
his personal funds. The second Note, in the principal amount of $335,573.57, was
purchased by Sterling Payot Capital, LP through a combination of $15,000 of cash
and a cancellation of indebtedness in the amount of $320,573.57 owed by the
Issuer to Sterling Payot Capital, LP pursuant to a $320,100 Secured Promissory
Note sold to Sterling Payot Capital, LP on January 16, 2002 (the "SPC Note").
The amounts paid by Sterling Payot Capital, LP for its Note and the SPC Note
were from its working capital.
In addition, Mr. Smelick holds stock options to purchase 100,000 shares of
Common Stock, which are currently exercisable or exercisable within 60 days of
February 4, 2003.
ITEM 4 - PURPOSE OF TRANSACTION
Mr. Smelick acquired and continues to hold the shares of Common Stock
reported herein for investment purposes. Mr. Smelick intends to review
continuously his equity position in the Issuer and that of the entities in which
he has or shares voting and dispositive control. Depending upon future
evaluations of the business prospects of the Issuer and upon other developments,
including, but not limited to, general economic and business conditions and
money market and stock market conditions, Mr. Smelick may determine to increase
or decrease his equity interest in the Issuer or the equity interest in the
Issuer of the entities which he controls or shares control by acquiring
additional shares of Common Stock or by disposing of all or a portion of such
holdings, subject to any applicable legal and contractual restrictions on his
ability to do so. Except as disclosed in this Item 4, Mr. Smelick has no current
plans or proposals that relate to or would result in any of the following,
although Mr. Smelick may consider certain of such types of transactions and
reserves the right to develop such plans or proposals in the future:
(a) The acquisition by any person of additional securities of the Issuer,
or the disposition of securities of the Issuer;
(b) An extraordinary corporate transaction, such as a merger,
reorganization, or liquidation, involving the Issuer or any of its
subsidiaries;
SCHEDULE 13D/A
CUSIP NO. 00437W102 PAGE 5 OF 9 PAGES
(c) A sale or transfer of a material amount of assets of the Issuer or any
of its subsidiaries;
(d) Any change in the present board of directors or management of the
Issuer, including any plans or proposals to change the number or terms of
directors or to fill any existing vacancies on the board;
(e) Any material change in the present capital or dividend policy of the
Issuer;
(f) Any other material change in the Issuer's business or corporate
structure;
(g) Changes in the Issuer's charter, bylaws, or instruments corresponding
thereto or other actions that may impede the acquisition of control of the
Issuer by any person;
(h) Causing a class of securities of the Issuer to be delisted from a
national securities exchange or to cease to be authorized to be quoted in
an inter-dealer quotation system of a registered national securities
association;
(i) A class of equity securities of the Issuer becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Securities
Exchange Act of 1934; or
(j) Any action similar to any of those set forth in (a) through (i) above.
ITEM 5 - INTEREST IN SECURITIES OF THE ISSUER
(a) (i) Amount beneficially owned: 7,859,484
(ii) Percent of class: 21.4%
Mr. Smelick expressly declares that his filing of this Schedule 13D/A
shall not be construed as an admission that he is, for the purposes of Section
13(d) or 13(g) of the Act, the beneficial owner of any securities covered by
this Schedule 13D/A except for 100,000 shares subject to options exercisable in
60 days which Mr. Smelick owns directly, an additional 409,969 shares which Mr.
Smelick owns directly, 118,666 shares owned by Gail S. Smelick, 1,980 shares
owned by Mary H. Smelick, an aggregate of 464,331 shares held by the Smelick
Trusts and 1,005,828 shares issuable upon the conversion of the Note purchased
individually by Mr. Smelick.
(b) Number of shares as to which the person has:
(i) Sole power to vote or to direct the vote: 7,859,484
(ii) Shared power to vote or to direct the vote: 0
(iii) Sole power to dispose or to direct the disposition of: 7,859,484
SCHEDULE 13D/A
CUSIP NO. 00437W102 PAGE 6 OF 9 PAGES
(iv) Shared power to dispose or to direct the disposition of: 0
(c) Other than the transaction described in item 3, which occurred in offices
located in Menlo Park, California, the person named in item 2 has conducted no
other transactions involving Common Stock of the issuer during the last 60 days.
(d) Not applicable. During the fiscal year ended March 30, 2002, the Issuer did
not pay dividends and has declared its intention to retain future earnings to
finance the growth and development of its business and, accordingly, it does not
anticipate paying cash dividends on its Common Stock in the foreseeable future.
(e) Not applicable.
ITEM 6 - CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
Mr. Smelick and the Issuer are parties to a Notice of Stock Option Grant
(the "2001 Notice") and Stock Option Agreement dated as of September 28, 2001
(the "2001 Agreement", the 2001 Notice and the 2001 Agreement collectively, the
"2001 Option") pursuant to which the Issuer granted Mr. Smelick a nonstatutory
stock option to purchase 100,000 shares of Common Stock (the "2001 Option
Shares") at an exercise price of $0.22. The 2001 Option vests at a rate of
1/24th per month beginning on April 4, 2001, provided that an additional 25% of
the 2001 Option Shares shall vest if Mr. Smelick's employment or consulting
relationship is terminated without cause within three months of a change of
control of the Issuer, all as more fully described in the 2001 Option which is
attached hereto as Exhibits 1 and 2.
Mr. Smelick and the Issuer are parties to that certain Secured Convertible
Note Purchase Agreement (the "Agreement") dated as of February 4, 2003 pursuant
to which the Issuer sold to Mr. Smelick, Sterling Payot Capital, LP and other
parties certain Secured Convertible Promissory Notes (the "Note"). Under the
Agreement, Mr. Smelick and Sterling Payot Capital, LP purchased Notes in
principal amounts of $60,349.72 and $335,573.57, respectively, which are
convertible, at the option of a majority of the holders of all Notes sold under
to the Agreement, into an aggregate of 6,598,721 shares of Common Stock or, in
the event that there is a Preferred Stock issued or proposed to be issued, into
Preferred Stock of the Issuer, all as more fully described in the Agreement and
Notes which are attached hereto as Exhibits 3, 4 and 5.
SCHEDULE 13D/A
CUSIP NO. 00437W102 PAGE 7 OF 9 PAGES
ITEM 7 - MATERIAL TO BE FILED AS EXHIBITS
1. Notice of Stock Option Grant dated as of September 28, 2001 between Accrue
Software, Inc. and Robert M. Smelick.
2. Stock Option Agreement dated as of September 28, 2001 between Accrue
Software, Inc. and Robert M. Smelick.
3. Secured Convertible Note Purchase Agreement between Accrue Software, Inc.
and the purchasers listed on Exhibit A thereto dated as of February 4,
2003.
4. Secured Convertible Promissory Note issued by Accrue Software, Inc. to
Robert M. Smelick in the principal amount of $60,349.72 dated February 4,
2003.
5. Secured Convertible Promissory Note issued by Accrue Software, Inc. to
Sterling Payot Capital, LP in the principal amount of $335,573.57 dated
February 4, 2003.
SCHEDULE 13D/A
CUSIP NO. 00437W102 PAGE 8 OF 9 PAGES
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.
Date: February 4, 2003 /s/ Robert M. Smelick
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Robert M. Smelick
The original statement shall be signed by each person on whose behalf the
statement is filed or his authorized representative. If the statement is signed
on behalf of a person by his authorized representative (other than an executive
officer or general partner of this filing person), evidence of the
representative's authority to sign on behalf of such person shall be filed with
the statement, provided, however, that a power of attorney for this purpose
which is already on file with the Commission may be incorporated by reference.
The name and any title of each person who signs the statement shall be typed or
printed beneath his signature.
Attention: Intentional misstatements or omissions of fact constitute Federal
criminal violations (See 18 U.S.C. 1001)
SCHEDULE 13D/A
CUSIP NO. 00437W102 PAGE 9 OF 9 PAGES
EXHIBIT INDEX
Description
EXHIBIT INCORPORATED BY REFERENCE FILED
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NUMBER EXHIBIT DESCRIPTION FORM DATE NUMBER HEREWITH
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1 Notice of Stock Option Grant dated as of September 28, 2001 13D 11/8/01 3
between Accrue Software, Inc. and Robert M. Smelick
2 Stock Option Agreement dated as of September 28, 2001 13D 11/8/01 4
between Accrue Software, Inc. and Robert M. Smelick.
3 Secured Convertible Note Purchase Agreement between Accrue
Software, Inc. and the purchasers listed on Exhibit A
thereto dated as of February 4, 2003. X
4 Secured Convertible Promissory Note issued by Accrue
Software, Inc. to Robert M. Smelick in the principal amount
of $60,349.72 dated February 4, 2003. X
5 Secured Convertible Promissory Note issued by Accrue
Software, Inc. to Sterling Payot Capital, LP in the
principal amount of $335,573.57 dated February 4, 2003. X