<PAGE> 1
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM 10-Q
x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
- ----- OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1997
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
- ---- OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
------------ -------------
----------------
Commission File Number 0-27574
POWERCERV CORPORATION
(Exact name of registrant as specified in its charter)
FLORIDA 59-3350778
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
400 NORTH ASHLEY DRIVE, SUITE 2700, TAMPA, FLORIDA 33602
(Address of principal executive offices, including zip code)
(813) 226-2600
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. YES X NO
--- ---
As of May 8, 1997, there were 13,845,267 shares of the registrant's
common stock, $.001 par value, outstanding.
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<PAGE> 2
POWERCERV CORPORATION
FORM 10-Q
Contents
<TABLE>
<CAPTION>
PAGE
<S> <C>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Condensed Consolidated Balance Sheets as of March 31, 1997 (unaudited)
and December 31, 1996 ........................................................................ 2
Condensed Consolidated Statements of Operations for the Three Months Ended
March 31, 1997 and 1996 (unaudited) .......................................................... 3
Condensed Consolidated Statements of Cash Flows for the
Three Months Ended March 31, 1997 and 1996 (unaudited) ....................................... 4
Notes to Condensed Consolidated Financial Statements (unaudited) ............................... 5
Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations ...... 6
Accountants' Report ................................................................................ 16
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K ........................................................... 17
Signatures ......................................................................................... 18
</TABLE>
INTERGY and ADAPTlications are registered trademarks of the registrant and the
PowerCerv logo, PowerTOOL, PADLock, FLOWBuilder, AppSync and PFCtool are
trademarks of the registrant. All other trademarks and company names mentioned
are the property of their respective owners.
1
<PAGE> 3
PART I FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
POWERCERV CORPORATION
CONDENSED CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS)
<TABLE>
<CAPTION>
MARCH 31, DECEMBER 31,
1997 1996
-------- --------
(UNAUDITED)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 12,623 $ 14,637
Accounts receivable, net of allowance of $556 and 11,884 11,475
$550, respectively
Refundable income taxes 130 119
Inventories 220 261
Other current assets 371 286
-------- --------
Total current assets 25,228 26,778
Property and equipment, net 3,081 3,111
Intangible assets, net 3,013 3,243
Investment in third party 1,500 1,500
Deposits and other 63 61
Deferred tax asset 2,544 1,658
-------- --------
Total assets $ 35,429 $ 36,351
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 1,525 $ 1,071
Accrued expenses 1,570 1,755
Deferred revenue 2,539 2,333
-------- --------
Total current liabilities 5,634 5,159
Common stock with redemption rights 200 200
Shareholders' equity 29,595 30,992
-------- --------
Total liabilities and shareholders' equity $ 35,429 $ 36,351
======== ========
</TABLE>
See notes to condensed consolidated financial statements.
2
<PAGE> 4
POWERCERV CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS (UNAUDITED)
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED MARCH 31,
------------------------------
1997 1996
-------- --------
<S> <C> <C>
Revenue:
License fees $ 1,659 $ 3,054
Technology resales 477 710
Service fees 6,620 6,033
-------- --------
Total revenue 8,756 9,797
-------- --------
Costs and expenses:
Cost of licenses 312 230
Cost of technology resales 352 460
Cost of services 5,080 3,522
General and administrative 1,547 1,030
Sales and marketing 2,537 2,410
Research and development 1,442 1,355
In-process research and development -- 100
-------- --------
Total costs and expenses 11,270 9,107
-------- --------
Operating income (loss) (2,514) 690
Interest income (expense), net 184 (96)
-------- --------
Income (loss) before income taxes (2,330) 594
Income tax expense (benefit) (886) 225
-------- --------
Net income (loss) $ (1,444) $ 369
======== ========
Earnings (loss) per share $ (0.10) $ 0.03
======== ========
Shares used in computing net
Income (loss) per share 13,842 11,703
======== ========
</TABLE>
See notes to condensed consolidated financial statements.
3
<PAGE> 5
POWERCERV CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED MARCH 31,
------------------------------
1997 1996
-------- --------
<S> <C> <C>
Cash flows from operating activities:
Net income (loss) $ (1,444) $ 369
Adjustments to reconcile net income (loss) to net cash
Provided by (used in) operations:
Depreciation and amortization 525 352
Deferred income taxes (886) (100)
Deferred revenue 206 51
Changes in assets and liabilities (net of effect of
acquisition during 1996) (209) (522)
-------- --------
Net cash provided by (used in) operating activities (1,808) 150
-------- --------
Cash flows from investing activities:
Purchases of property and equipment, net (253) (278)
Acquisition of net assets, net of cash received -- (21)
-------- --------
Net cash used in investing activities (253) (299)
-------- --------
Cash flows from financing activities:
Net proceeds from issuance of common stock 47 36,850
Net repayments on lines of credit -- (3,618)
Repayments of notes payable -- (11,541)
Redemption of preferred stock -- (5,500)
-------- --------
Net cash provided by financing activities 47 16,191
-------- --------
Net increase (decrease) in cash and cash equivalents (2,014) 16,042
Cash and cash equivalents, beginning of period 14,637 1
-------- --------
Cash and cash equivalents, end of period $ 12,623 $ 16,043
======== ========
</TABLE>
See notes to condensed consolidated financial statements.
4
<PAGE> 6
POWERCERV CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
A. BASIS OF PRESENTATION
The condensed consolidated balance sheet of PowerCerv Corporation and its
subsidiary (collectively, the "Company") as of March 31, 1997 and the condensed
consolidated statements of operations and cash flows for the three months ended
March 31, 1997 and 1996 have been prepared by the Company without audit.
Although not audited, in the opinion of management, all adjustments (which
include only normal recurring adjustments) necessary to fairly present these
financial statements have been made. The condensed consolidated balance sheet
at December 31, 1996 has been derived from the Company's audited consolidated
financial statements at that date.
Certain information and footnote disclosure normally included in financial
statements prepared in accordance with generally accepted accounting principles
have been condensed or omitted pursuant to the Securities and Exchange
Commission rules and regulations. These condensed consolidated financial
statements should be read in conjunction with the audited consolidated
financial statements and notes thereto for the year ended December 31, 1996
included in the Company's 1996 Annual Report on Form 10-K filed with the
Securities and Exchange Commission on March 31, 1997.
The results of operations for the three months ended March 31, 1997 are not
necessarily indicative of results that may be expected for any other interim
period or for the full fiscal year.
B. EARNINGS (LOSS) PER SHARE
Earnings (loss) per share is computed using the weighted average number of
shares of common stock outstanding and dilutive common equivalent shares.
During the three months ended March 31, 1997, all common stock equivalents were
anti-dilutive due to the net losses sustained by the Company during the period.
Pursuant to the rules of the Securities and Exchange Commission, common and
common equivalent shares issued during the twelve month period prior to the
Company's initial public offering on March 1, 1996 have been assumed to be
outstanding for all periods presented.
In February 1997, the Financial Accounting Standards Board (FASB) issued
FASB Statement of Financial Accounting Standard No. 128 (Earnings Per Share).
The matter is discussed in "Recently Issued Accounting Pronouncements"
elsewhere in this Report on Form 10-Q.
C. ACCRUED EXPENSES
Accrued expenses consist of the following:
<TABLE>
<CAPTION>
(DOLLARS IN THOUSANDS)
MARCH 31, DECEMBER 31,
1997 1996
-------- ------------
<S> <C> <C>
Compensation $ 928 $ 1,268
Sales tax 152 182
Other 490 305
-------- --------
$ 1,570 $ 1,755
======== ========
</TABLE>
5
<PAGE> 7
POWERCERV CORPORATION
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(DOLLARS IN THOUSANDS)
OVERVIEW
PowerCerv Corporation's mission is to build and deliver open, adaptable
client/server solutions that provide mid-tier organizations a sustainable
competitive advantage. PowerCerv Corporation and its wholly-owned subsidiary,
PowerCerv Technologies Corporation (collectively, the "Company" or "PowerCerv")
products and services assist its customers in successfully designing,
developing, deploying and maintaining adaptable solutions for their specific
needs, whether those needs are best met by buying pre-written applications,
building custom applications from scratch or combining elements of both
approaches. The Company not only provides software development tools to
customers designing their own applications, but also provides application
products that can be adapted to the customer's specific requirements. In
addition, the Company provides consulting and education services to assist
customers in designing and deploying an optimal solution for their business
problems, and third party technology resale products to complement the Company
products and services offerings. PowerCerv's software development tools and
application products are based on the technology foundation of widely-used
products provided by vendors such as Microsoft Corporation, Powersoft
Corporation, Sybase, Inc., and Oracle Corporation, and utilize an open
architecture enabling their implementation with multiple databases, multiple
operating systems, and integration to other industry standard applications.
The discussion in this report contains forward-looking statements that
involve risks and uncertainties. The Company's future actual results may differ
materially from the results discussed herein and including those in the
forward-looking statements. Factors that could cause or contribute to such
differences include but are not limited to those discussed in this report, and
the risks discussed under "Management's Discussion and Analysis of Financial
Condition and Results of Operations - Forward-Looking Statements and Associated
Considerations" in the Company's 1996 Annual Report on Form 10-K filed with the
Securities and Exchange Commission on March 31, 1997. These risks include but
are not limited to the Company's ability to manage change, fluctuation in the
Company's quarterly activities and results of operations, the Company's
dependence on new products, the overall condition of the client/server market
and the Company's technology foundations, the availability of qualified
consulting personnel, the risks inherent in the Company's development of its
new products, and competition. Due to these factors, among others, it is
possible that the Company's results of operations may be below the expectations
of public market analysts and investors. In such event, the price of the
Company's common stock would likely be adversely affected.
The Company's revenues consist primarily of software license fees, resales
of software products developed by other independent software vendors
("technology resales") and fees for services, including consulting, education
and maintenance. For the quarter ended March 31, 1997, service fees remain the
Company's largest single revenue source, although the Company's strategy is to
seek to increase revenue generated by licensing its products as a percentage of
total revenue.
The Company recognizes revenue in accordance with the American Institute of
Certified Public Accountants Statement of Position 91-1, Software Revenue
Recognition. Software license fees are
6
<PAGE> 8
POWERCERV CORPORATION
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(DOLLARS IN THOUSANDS)
recognized upon shipment to the customer if collection is probable and the
remaining Company obligations are insignificant. The Company provides for
potential product returns and allowances at the time of shipment. Historically,
product returns and allowances have been immaterial. Technology resales are
recognized at the time of product shipments. Consulting and education services
fees are recognized as those services are performed. Revenue for maintenance
services is recognized ratably over the term of the support period.
Unrecognized amounts are recorded as deferred revenue.
In general, revenues are difficult to forecast because the market for
client/server software is evolving rapidly and the Company's sales cycle, from
the customer's initial evaluation through purchase of licenses and the related
support services, varies substantially from customer to customer and from
product to product. License fee revenue from quarter to quarter is difficult to
forecast as no significant order backlog exists at the end of any quarter
because the Company's products typically are shipped upon receipt of customers'
orders. The Company in the past has realized a substantial portion of its
revenue in the last month of a quarter, with this revenue concentrated in the
last weeks or days of a quarter.
The Company's strategy is to seek to expand its offering of higher margin
application product licenses and increase license sales as a percentage of
total revenue. To assist in achieving this strategy, the Company continues to
focus on increasing the number and the caliber of the professionals in its
direct sales force and has adjusted the compensation and incentive plans for
individuals in this part of the organization. In addition, during the second
half of 1996 and continued in the three month period ended March 31, 1997, the
Company expanded its Business Development Group for generating indirect sales
channels of the Company's products in the United States. Given the fact that
the typical application sales cycle is at least four to six months long, it
will be in mid to late 1997 before the Company will see the effect of the
increased sales force on its sales. Implementation of the Company's strategy to
expand the license sales has in the past, and may in the future, cause the
Company's quarterly results to fluctuate. In addition, the Company has built
and intends to continue to build an expense infrastructure that assumes this
strategy will succeed. Therefore, the failure of the Company to timely achieve
this strategy could have a material adverse effect on the Company's business,
financial condition and results of operations.
The Company's strategy for increasing its product sales also includes
supplementing the marketing of its application products, development tools and
services by its direct sales force and telesales group with indirect marketing
channels. These indirect channels include value-added resellers ("VARs"),
original equipment manufacturers ("OEMs"), strategic alliance partners
assisting in generating product sales and providing consulting services to end
users ("teaming partners") and distributors. Selling through indirect channels
may limit the Company's contacts with its customers. As a result, the Company's
ability to accurately forecast sales, evaluate customer satisfaction and
recognize emerging customer requirements may be hindered. The Company's
strategy of marketing its products directly to end-users and indirectly through
VARs, OEMs, teaming partners and distributors may result in distribution
channel conflicts. The Company's direct sales efforts may compete with those of
its indirect channels and, to the extent different resellers target the same
customers, resellers may also come into conflict with each other. Although the
7
<PAGE> 9
POWERCERV CORPORATION
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(DOLLARS IN THOUSANDS)
Company has attempted to manage its distribution channels to avoid potential
conflicts, there can be no assurance that channel conflicts will not materially
adversely affect its relationships with existing VARs, OEMs, teaming partners,
or distributors or adversely affect its ability to attract new VARs, OEMs,
teaming partners and distributors.
In addition, the Company's strategy is to provide its customers with a
breadth of quality client/server and internet enablement services, including
architecture consulting, design, development, training and deployment services.
The Company has a Technical Deployment Group (formerly referred to as the
client/server migration group) seeking to accelerate the Company's service
revenue growth in the United States by focusing on medium- to large-scale
client/server and/or internet service projects. This group is also focused on
the sale of the Company's development tools and third party development tools
to be licensed in connection with these service revenue projects. The market
for these types of services is intensely competitive and the Company believes
its ability to compete successfully depends upon a number of factors both
within and beyond its control, including the quality of services, ability to
recruit, hire, train and retain technical consultant personnel, and industry
and general economic trends. Although services remain the largest single
revenue source for the Company, there can be no assurance that this strategy
will succeed and that service revenues will increase.
The Company's quarterly revenue and results of operations have fluctuated
significantly in the past and will likely fluctuate in the future. Causes of
such fluctuations have included and may include, among others, the demand for
the Company's products and services; the size and timing of orders; the number,
timing and significance of new product and/or product release announcements by
the Company and its competitors; the ability of the Company to develop,
introduce, market, sell and ship existing, new and enhanced versions of the
Company's products on a timely basis; reassignments of consultants from
providing billable services to non-billable roles; the timing of hiring
personnel; the level of product and price competition; changes in operating
expenses; changes in average selling prices and mix between the Company's
products, technology resale products and services; changes in the Company's
sales incentive strategy; the mix of direct and indirect sales (including
international sales); seasonal decline in product sales; changes in customers'
budget constraints and general economic factors. Any one or more of these or
other factors could have a material adverse effect on the Company's business,
financial condition and results of operations. The potential occurrence of any
one or more of these factors makes the prediction of revenue and results of
operations on a quarterly basis difficult.
Since the market for software development tools, application products and
services in the client/server industry is intensely competitive and rapidly
changing, the Company's future success will depend upon its ability to enhance
its current products and to develop and introduce new products and enhancements
that keep pace with technological developments, respond to evolving customer
requirements, compete effectively with other client/server product and services
vendors and achieve market acceptance. Any failure by the Company to anticipate
or respond adequately to technological developments and customer requirements,
or any significant delays in product development or introduction, could result
in a loss of competitiveness or revenue and earnings. In the recent past, the
8
<PAGE> 10
POWERCERV CORPORATION
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(DOLLARS IN THOUSANDS)
Company has experienced delays in the introduction of certain of its products,
which has had an adverse impact on the Company's revenue and earnings.
Subsequent to March 31, 1997, the Company entered into separate Employment,
Noncompetition, Development and Confidentiality Agreements with the Company's
CEO, Harold Ross, the Company's President and Chief Operating Officer, Marc
Fratello, and the Company's Executive Vice President and Chief Technology
Officer, Roy Crippen. These agreements and the Company's employment agreement
with its Senior Vice President, Treasurer, Chief Counsel and Secretary, Stephen
Wagman, are more fully discussed under "Executive Compensation - Employment
Agreements" in the Company's Proxy Statement as filed with the Securities and
Exchange Commission on April 30, 1997.
A substantial portion of the Company's operating expenses is related to
personnel, facilities and marketing programs. The level of spending for such
expenses cannot be adjusted quickly and is therefore fixed in the short term.
The Company's expense levels for personnel, facilities and marketing programs
are based, in significant part, on the Company's expectations of future
revenue. If actual revenue levels on a quarterly basis are below management's
expectations, results of operations are likely to be adversely affected by a
similar amount because a relatively small amount of the Company's operating
expenses varies with its revenues in the short term.
RESULTS OF OPERATIONS
The following table sets forth, for the periods indicated, certain
financial data regarding the Company's revenues derived from license fees,
technology resales and service fees:
<TABLE>
<CAPTION>
REVENUES THREE MONTHS ENDED MARCH 31,
----------------------------
1997 CHANGE 1996
- -------------------------------- ------------------------------------------
<S> <C> <C> <C>
License fees $ 1,659 (46%) $3,054
Percentage of total revenues 19% 31%
- -------------------------------- ------------------------------------------
Technology resales 477 (33%) 710
Percentage of total revenues 5% 7%
- -------------------------------- ------------------------------------------
Service fees 6,620 10% 6,033
Percentage of total revenues 76% 62%
- -------------------------------- ------------------------------------------
</TABLE>
License fees. The Company's license fees are derived from licensing the
Company's application products and development tools. The Company establishes
its licensing fees using a tiered pricing approach based on the number of
concurrent servers and users. Source code licenses are available at an
additional cost. License revenues decreased for the three months ended March
31, 1997 compared to the
9
<PAGE> 11
POWERCERV CORPORATION
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(DOLLARS IN THOUSANDS)
same period in 1996 due to a lower number of application transactions and lower
tools sales. Application product license revenue was lower due to the lengthy
nature of the application sales cycle and given the late September 1996 release
of the Company's ADAPTlication Series of products. Also, during the first
quarter of 1997, the Company focused on further restructuring of its direct
sales force, promoting a former regional vice president to oversee the direct
sales organization in the United States, hiring two additional regional vice
presidents, and replacing a large percentage of its field sales representatives
with sales representatives who have more application sales experience. Sales of
the Company's development tools decreased $625 in the first quarter of 1997
compared to the same period in 1996 due to increased competition in the
software development tools market and the second quarter 1996 release of
Powersoft Corporation's PowerBuilder version 5.0 software which negatively
impacted revenues associated with one of the Company's software development
tools. Although the Company recently released the new version of its class
library development tool, the Company believes this negative impact is expected
to continue on its tools sales.
Technology resales. Technology resales are derived from licensing
complementary client/server and internet development tools developed by other
independent software vendors. Technology resales and related services are more
susceptible to change based on the price for such products and services than
the Company's application license fees and related services. Technology resales
revenue decreased for the three months ended March 31, 1997 compared to the
same period in 1996 due to the Company's increased focus on sales of its own
application products and development tools and increased market competition for
technology resale products. The Company believes 1997 technology resales
revenue will be less than such revenue in the corresponding periods in 1996.
Service fees. The Company's service fees consist of revenue from
consulting, education and maintenance services. Consulting services are
primarily provided on a time and materials basis; education services are
generally priced on a per student basis; and annual maintenance fees are based
on a percentage of the related license fees. Service fees revenue grew for the
three months ended March 31, 1997 compared to the same period in 1996 because
of the increase in the number of consulting personnel, increase in the realized
consulting hourly rates and the additional maintenance revenue provided by the
Company's product licensing activities.
COSTS AND EXPENSES
The following table sets forth, for the periods indicated, certain
financial data regarding the Company's costs associated with its license fees,
technology resales and services:
10
<PAGE> 12
POWERCERV CORPORATION
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
COST OF REVENUES: THREE MONTHS ENDED MARCH 31,
----------------------------
1997 CHANGE 1996
- -------------------------------- ------------------------------------------
<S> <C> <C> <C>
Cost of licenses $ 312 36% 230
Gross profit percentage 81% 92%
- -------------------------------- ------------------------------------------
Cost of technology resales 352 (23%) 460
Gross profit percentage 26% 35%
- -------------------------------- ------------------------------------------
Cost of services 5,080 44% 3,522
Gross profit percentage 23% 42%
- -------------------------------- ------------------------------------------
</TABLE>
Cost of licenses. The cost of licenses consists primarily of production
costs, royalties associated with a module of one of the Company's application
products, and the amortization of intangible assets. Cost of licenses increased
during the three months ended March 31, 1997 compared to the corresponding
period in 1996 due to increased royalties and production expenses incurred
related to the new release of the Company's products.
Cost of technology resales. Cost of technology resales consists primarily
of costs associated with resales of complementary client/server and internet
development tools developed by independent software vendors. The decrease in
the first fiscal quarter 1997 cost of technology resales compared to the same
period in the prior year was due to the decrease in technology resales revenue.
The first fiscal quarter in 1997 gross profit margin on technology resales
decreased from the comparable period in the prior year due to increased sales
volume of lower margin technology resales.
Cost of services. Costs of services consists primarily of compensation and
travel costs associated with providing consulting, product support, technical
services and education. The decrease in the gross profit margin of service fees
for the first fiscal quarter 1997 compared to the same period in 1996 resulted
from higher costs associated with recruiting and training a more experienced,
and thus more expensive consulting staff, higher than expected consultant
turnover, lower utilization of the application consultants due to lower
application license sales, and increased salaries and travel expenses. The
Company anticipates that the gross profit margin for 1997 quarterly services
fees will continue to be less than such margin for the corresponding periods in
1996. The cost of services in absolute dollars have increased for the first
fiscal quarter of 1997 compared to the same period in 1996 as a result of
increased service fees and increased service costs as described above.
The following table sets forth, for the periods indicated, certain
financial data regarding the Company's operating expenses:
11
<PAGE> 13
POWERCERV CORPORATION
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
OPERATING EXPENSES: THREE MONTHS ENDED MARCH 31,
----------------------------
1997 CHANGE 1996
- --------------------------------------- --------------------------------------
<S> <C> <C> <C>
General and administrative $1,547 50% $1,030
Percentage of total revenues 18% 11%
- --------------------------------------- --------------------------------------
Sales and marketing 2,537 5% 2,410
Percentage of total revenues 29% 25%
- --------------------------------------- --------------------------------------
Research and development 1,442 6% 1,355
Percentage of total revenues 16% 14%
- --------------------------------------- --------------------------------------
</TABLE>
General and administrative ("G&A"). G&A expenses include compensation,
communications, accounting, human resources, legal and related facilities
expenses. The increase in the G&A expenses for the first fiscal quarter 1997 as
compared to the same period in the prior year was due to expansion of the
Company's administrative staff to support its operations and increased
accounting and legal expenses associated with being a public company and
certain other matters. These increased costs as well as lower revenues for the
first fiscal quarter 1997 compared to 1996 caused G&A expenses as a percent of
revenue to increase for the three months ended March 31, 1997 compared to the
corresponding period in 1996.
Sales and marketing. Sales and marketing expenses primarily consists of
compensation paid to sales and marketing personnel, costs of marketing, direct
mail and telemarketing activities, costs of public relations, trade shows and
conferences, and related communications costs. The increase in sales and
marketing expenses for first fiscal quarter 1997 compared to the same period in
1996 was attributable to the Company's investment in its direct and indirect
sales force (including the establishment of the Company's Business Development
Group and Technology Deployment Group), its opening of an international office
in Amsterdam, and increased marketing expenses for the Company's products and
services, and expected sales force turnover. During March 1997, the Company
hired two regional sales vice presidents who, together with management, are
rebuilding the Company's direct sales force personnel. During the second
quarter of fiscal 1997, the Company will continue to focus upon its
distribution channel by increasing its direct and indirect sales force. The
Company will also continue to invest in implementing its marketing and product
strategies. The Company expects its sales and marketing expenses may continue
to increase both in dollar amounts and percentage of total revenues in the
future due to these increased investments.
Research and development ("R&D"). R&D costs consist primarily of
compensation and related facilities and equipment costs associated with
developing, maintaining and enhancing the Company's application products and
development tools. R&D costs increased during the first fiscal quarter 1997
compared to the same period in 1996 primarily due to additional R&D personnel
necessary to expand and
12
<PAGE> 14
POWERCERV CORPORATION
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(DOLLARS IN THOUSANDS)
enhance the Company's application products and development tools. During the
first quarter, the Company hired an experienced industry executive to manage
the R&D organization. Since inception, the Company has not capitalized any
internal R&D costs. The Company plans to continue to make significant
investments in R&D.
In-process R&D. Effective January 1, 1996, the Company completed the
strategic acquisition of substantially all of the net assets of Visual Systems
Development Group of Michigan, Inc. The acquisition resulted in the issuance of
110,000 shares of the Company's common stock and was accounted for as a
purchase transaction. The allocation of the purchase price of $935 included an
allocation of $100 to in-process R&D, which is reflected as a one-time charge
in the Company's first fiscal quarter 1996 operating results.
Income taxes. The Company's effective tax rate for the three-month periods
ended March 31, 1997 and 1996 was 38%.
LIQUIDITY AND CAPITAL RESOURCES
The following table sets forth, for the periods indicated, certain
financial data regarding the Company's working capital balances, cash and cash
equivalents, cash provided by or used in operating activities, cash used in
investing activities, and cash provided by financing activities:
<TABLE>
<CAPTION>
THREE MONTHS ENDED MARCH 31
---------------------------
1997 CHANGE 1996
-----------------------------------
<S> <C> <C> <C>
Working capital $ 19,594 (10%) $21,776
Cash and cash equivalents 12,623 (21%) 16,043
Cash provided by (used) in operating activities (1,808) * 150
Cash used in investing activities 253 (15%) 299
Cash provided by financing activities 47 * 16,191
</TABLE>
(*) not meaningful
Working capital and cash and cash equivalents decreased as of March 31,
1997 compared to March 31, 1996 due mainly to increased operating costs
including expenditures associated with the September 30, 1996 release of the
ADAPTlication Series of products and increased infrastructure costs including
its investment in its direct and indirect sales and marketing organizations.
The cash used in operating activities increased during the three months ended
March 31, 1997 compared to the same period in 1996 primarily due to increased
investments in R&D, costs associated with being a public company and increased
infrastructure costs.
13
<PAGE> 15
POWERCERV CORPORATION
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(DOLLARS IN THOUSANDS)
The Company's cash provided by financing activities was lower for the three
months ended March 31, 1997 compared to 1996 due to the fact that on March 1,
1996, the Company completed its initial public offering of its common stock.
At March 31, 1997, the Company's primary source of liquidity consisted of
its cash and cash equivalents balance of $12,623, and its short-term accounts
receivable balance of $11,884. In addition, on October 31, 1996, the Company
obtained an unsecured $5,000 line of credit with a commercial bank for working
capital and other purposes. The interest rate on the line of credit is equal to
LIBOR plus 150 or 200 basis points, based on the Company's tangible net worth.
The line of credit requires the Company to maintain certain financial ratios.
As of March 31, 1997, no balance was outstanding under the line of credit.
The Company believes that funds generated from its operations and existing
cash and cash equivalents, together with the availability of the line of
credit, will be sufficient to finance the Company's operations for at least the
next twelve months.
RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS
In February 1997, the Financial Accounting Standards Board (FASB) issued
Statement of Financial Accounting Standards No. 128, Earnings Per Share
(Statement 128). Statement 128 supersedes APB Opinion No. 15, Earnings Per
Share (APB 15) and specifies the computation, presentation, and disclosure
requirements for earnings per share ("EPS") for entities with publicly-held
common stock.
Statement 128 is effective for financial statements for both interim and
annual periods ending after December 15, 1997. EARLIER APPLICATION IS NOT
PERMITTED. After adoption, ALL prior-period EPS data presented shall be
restated to confirm with Statement 128.
14
<PAGE> 16
POWERCERV CORPORATION
REVIEW BY INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
The Company's independent certified public accountants have made a limited
review of the Condensed Consolidated Financial Statements (included in Part
I/Item 1 herein) in accordance with standards established by the American
Institute of Certified Public Accountants. The Accountants' Report is presented
on page 16 of this report.
15
<PAGE> 17
ACCOUNTANTS' REPORT
The Board of Directors
PowerCerv Corporation
We have reviewed the condensed consolidated balance sheet of PowerCerv
Corporation and subsidiary as of March 31, 1997, and the related condensed
consolidated statements of operations and cash flows for the three months ended
March 31, 1997 and 1996, as included in Part I/Item 1 of this quarterly report
on Form 10-Q. These condensed consolidated financial statements are the
responsibility of the Company's management.
We conducted our review in accordance with standards established by the
American Institute of Certified Public Accountants. A review of interim
financial information consists principally of applying analytical procedures to
financial data and making inquiries of persons responsible for financial and
accounting matters. It is substantially less in scope than an audit conducted
in accordance with generally accepted auditing standards, the objective of
which is the expression of an opinion regarding the financial statements taken
as a whole. Accordingly, we do not express such an opinion.
Based on our review, we are not aware of any material modifications that should
be made to the accompanying condensed consolidated financial statements for
them to be in conformity with generally accepted accounting principles.
We have previously audited, in accordance with generally accepted auditing
standards, the consolidated balance sheet of PowerCerv Corporation and
subsidiary as of December 31, 1996, and the related consolidated statements of
operations, shareholders' equity, and cash flows, for the year then ended (not
presented herein); and in our report dated January 30, 1997, we expressed an
unqualified opinion on those consolidated financial statements. In our opinion,
the information set forth in the condensed consolidated balance sheet as of
December 31, 1996, as included in Part I/Item 1 of this quarterly report on
Form 10-Q, is fairly stated, in all material respects, in relation to the
consolidated balance sheet from which it has been derived.
/s/ KPMG Peat Marwick LLP
KPMG PEAT MARWICK LLP
Tampa, Florida
April 17, 1997
16
<PAGE> 18
PART II. OTHER INFORMATION
POWERCERV CORPORATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
10.1 Employment, Noncompetition, Development and Confidentiality
Agreement, dated April 10, 1997, between PowerCerv Corporation
and Harold R. Ross.
10.2 Employment, Noncompetition, Development and Confidentiality
Agreement, dated April 10, 1997, between PowerCerv Corporation
and Marc J. Fratello.
10.3 Employment, Noncompetition, Development and Confidentiality
Agreement, dated April 10, 1997, between PowerCerv Corporation
and Roy E Crippen, III.
15.1 Accountants' Letter regarding Unaudited Interim Financial
Information.
27.1 Financial Data Schedule.
(b) Reports on Form 8-K
None.
17
<PAGE> 19
POWERCERV CORPORATION
FORM 10-Q
(for the quarterly period ended March 31, 1997)
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Dated: May 15, 1997
POWERCERV CORPORATION
/s/ Harold R. Ross
------------------------------------
Harold R. Ross,
Chief Executive Officer
/s/ Karen Jaderborg
------------------------------------
Karen Jaderborg,
Chief Accounting Officer
18
<PAGE> 1
EXHIBIT 10.1
EMPLOYMENT, NONCOMPETITION, DEVELOPMENT AND CONFIDENTIALITY AGREEMENT
This employment, noncompetition, development and confidentiality
agreement (the "Agreement") is entered effective as of April 10, 1997 and
between POWERCERV CORPORATION, a Florida corporation (the "Company"), and
HAROLD R. ROSS ("Employee").
RECITALS
A. Company's business activities include software products of benefit
to a significant market, both nationwide and in an expanding international
arena. Among Company's business activities is the development and marketing of
client/server accounting software intended to be used by businesses in a
variety of situations. Due to the nature of Company's business and the market
for its business, it is very vulnerable to competition assisted by parties that
are or may have been employed by Company. In addition, in the course of its
business, Company develops, acquires and uses valuable confidential
information, trade secrets and other items. Due to the nature of Company's
business and the market for its business, its efforts and success are
significantly impacted by competition and innovation. Consequently, disclosure
of confidential information, trade secrets and other items of Company could
materially adversely affect it.
B. Employee is a long-time key executive of Company, but is currently
not subject to an employment agreement requiring him to continue to work for
Company. Employee executed a noncompetition, nondisclosure and development
agreement in favor of Company dated as of May 12, 1995 (the "Existing
Agreement"). Company considers the continued employment of Employee pursuant to
an employment agreement to be in the best interest of Company in order to
assist in, and provide continuity for, the management of Company and its
future.
C. The parties hereto desire to enter into an agreement setting forth
the terms and conditions of an employment relationship of between Employee and
Company and to replace and supersede Existing Agreement, all pursuant to the
terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the employment by Company of
Employee and other good and valuable consideration, the receipt and sufficiency
of which is acknowledged by Employee, Company and Employee agree:
1. Definitions.
a. An "Affiliate" of a Person means any entity that directly
or indirectly through one or more intermediaries controls, is controlled by, or
is under common control with such Person.
b. "Board" means the board of directors of Company.
c. A "Change of Control" means each time one of the following
events first occurs: (i) any Person and such Person's Affiliates and associates
(other than Marc Fratello, Roy E. Crippen, III, Harold Ross, their estates,
their wives, their parents, their lineal descendants, any Affiliates of such
party or any trust created for the benefit of one or more of such parties
during their lifetimes or any combination of the foregoing (such parties
collectively, the "Management Investors") becomes a "beneficial owner" (as
defined in Rule 13d-3 or any successor rule or regulation promulgated under the
Securities Exchange Act of 1934, as amended) of thirty three percent (33%) or
more of the total voting power of the Company's common stock and the Management
Investors are not the "beneficial owners" of at least thirty three percent or
more of the total voting of the Company's common stock; (ii) the effective date
of any reorganization, merger, or consolidation, in each case, with respect to
which the Management Investors do not, immediately thereafter, "beneficially
own" at least thirty-three percent of the combined voting power entitled to
vote generally in the election of directors of the reorganized, merged or
consolidated company's (or any successor entity's)
<PAGE> 2
then outstanding securities at any Person, Persons, Affiliates and Associates;
or (iii) a liquidation or dissolution of Company or the sale of all or at least
eighty percent of Company's assets.
d. "Compete" means engaging in or actively preparing to
engage in the same or any similar business as Company or any of its Affiliates
in any manner whatsoever, including, as a proprietor, partner, investor,
shareholder, director, officer, employee, consultant, independent contractor or
otherwise.
e. "Confidential Business Information" means all software,
source code, object code, manuals, flow charts, algorithms, documents, lists,
files, records, data, documentation of or relating to computer programs and
other information, items and materials developed, used or acquired by Company
or an Affiliate (including all information developed and acquired by Employee
while in the employment of Company), as it may exist from time to time,
including: (i) all information, items and other matters that now constitute or
may in the future constitute "trade secrets" under Florida Statutes 688.002(4)
or 812.081 as in effect on the date hereof or as defined under any other
current or future applicable law; (ii) all technology, internal manuals,
training materials, technical specifications, product information, contracts,
correspondence and other and similar items of Company or its Affiliates; (iii)
all "Copyrights" and "Inventions" (as such terms are defined herein) of Company
or its Affiliates; (iv) all electronic data processing, word processing, and/or
computer programs, runs and other electronic programs, products and records
generated by Company or its Affiliates; (v) all information acquired by Company
or its Affiliates relating to existing and reasonably anticipated business
transactions and arrangements; (vi) all market analyses and/or demographic
information or studies on the current and/or potential markets of interest to
Company or its Affiliates; (vii) all documents describing procedures or methods
employed by Company or its Affiliates in soliciting, procuring and handling
business, including shipping and billing procedures; (viii) all personnel files
of Company or its Affiliates; (ix) all general correspondence concerning
Company or its Affiliates; (x) all documents concerning or referring to the
financial aspects of Company or its Affiliates; (xi) all business agreements
and understandings between or among Company or its Affiliates and any other
Person; (xii) all documents provided to Company or its Affiliates in confidence
by third parties; (xiii) all legal documents and correspondence concerning
Company or its Affiliates; (xiv) all opinions, decisions, rulings and audits of
governmental agencies relating to Company or its Affiliates; (xv) all customer
and client lists of Company or its Affiliates; (xvi) all files concerning
customers and clients of Company or its Affiliates and the contents of such
files; (xvii) all office production and experimental records and other data
records of Company or its Affiliates; and (xviii) all other information
reasonably deemed to be "Confidential" by Company from time to time.
f. "Conflicting Product" means any product, computer program,
process or service of any Person other than Company or its Affiliates, now or
in the future in existence or under development, that significantly resembles
or that Competes with Company's or its Affiliates' products or products that
Company or its Affiliates has plans to develop and/or market while Employee is
employed by Company.
g. "Conflicting Organization" means any Person engaged in or
considering being engaged in the research of or development, production,
marketing or selling of a Conflicting Product or that Competes in any manner
with Company or its Affiliates during Employee's employment by Company or its
Affiliates or within a one (1) year period thereafter.
h. "Copyright" shall mean herein any and all worldwide vested
or inchoate rights in and to any and all original works of authorship which
relate to or describe any computational methods, documentation, apparatus,
software, algorithms or computer programs, whether they are in machine-readable
form, in English or any programming language. The meaning of such term shall
not be limited to items that have fulfilled the requirement of any notice
requirements under applicable law, but shall include all items in their
published or unpublished form under the Copyright Statutes of the United
States, The Universal Copyright Convention, The Berne Convention and/or any
other convention or treaty to which the United States is a party.
i. "Customer" means any and all Persons to whom Company or
any of its Affiliates has sold or shall sell or otherwise distribute any
product or service, whether or not for compensation, whether prior to the
2
<PAGE> 3
employment of Employee, during Employee's employment or for a period of one (1)
year after the termination of Employee's employment with Company or its
Affiliates.
j. "Good Reason" shall mean a material breach by Company of
this Agreement, which breach is not remedied within thirty (30) days after
Employee's delivery of written notice thereof to an executive officer of
Company.
k. "Invention" shall mean herein any designs, computer
programs (as defined in 17 U.S.C. 101), or configurations of any kind,
discovered, conceived, developed, written or produced, or any modifications or
any improvements to same, and shall not be limited to any definition of
"invention" contained in any United States patent law or other applicable law.
l. "Just Cause" shall include the following: (1) a conviction
of or a plea of guilty or nolo contendere by Employee to a felony or
misdemeanor involving fraud, embezzlement, theft, or dishonesty or other
criminal conduct against Company, (2) habitual neglect of Employee's duties or
failure by Employee to perform or observe any substantial lawful obligation of
such employment that is not remedied within thirty (30) days after written
notice thereof from Company, or (3) any material breach by Employee of this
Agreement.
m. "Person" means an individual, partnership, corporation,
association, joint stock company, a trust, joint venture, an unincorporated
organization, or a governmental entity (or any department, agency or political
subdivision thereof).
2. Employment, termination.
a. Company hereby agrees to the continued employment of
Employee in the capacity of Chief Executive Officer, and Employee hereby
accepts such continued employment, all on the terms and conditions hereafter
set forth.
b. Employee's employment by Company may be terminated as set
forth below, but this Agreement and all of its terms and conditions, other than
the requirements for Employee to perform duties under Section 3 hereof and
Company to pay Employee a salary and any other benefits under Section 4 hereof,
shall remain in full force and effect after said employment is terminated:
(i) By Employee's death.
3
<PAGE> 4
(ii) By Company if Employee is "Totally Disabled." For
the purposes of this Agreement, Employee will be Totally Disabled if he (1) has
been declared legally incompetent by a final court decree (the date of such
decree being deemed to be the date on which the disability occurred), (2)
receives disability insurance benefits from any disability income insurance
policy maintained by Company for a period of six (6) consecutive months, or (3)
has been found to be disabled pursuant to a Disability Determination. A
Disability Determination means a finding that Employee, because of a medically
determinable disease, injury, or other mental or physical disability, is unable
to perform substantially all of his regular duties to Company and that such
disability is determined or reasonably expected to last at least three (3)
months. The Disability Determination shall be based on the written opinion of
the physician regularly attending Employee whose disability is in question. If
Company disagrees with the opinion of this physician (the "First Physician"),
it may engage at its own expense another physician (the "Second Physician") to
examine Employee. If the First and Second Physicians agree in writing that
Employee is or is not disabled, their written opinion shall, except as
otherwise set forth in this subsection, be conclusive on the issue of
disability. If the First and Second Physicians disagree on the disability of
Employee, they shall choose a third consulting physician (whose expense shall
be borne by Company), and the written opinion of a majority of these three
physicians shall, except as otherwise provided in this subsection, be
conclusive as to Employee's disability. The date of any written opinion
conclusively finding Employee to be disabled is the date of which the
disability will be deemed to have occurred. If there is a conclusive finding
that Employee is not Totally Disabled, Company shall have the right to request
additional Disability Determinations provided it agrees to pay all the expenses
of the Disability Determinations and does not request an additional Disability
Determination more frequently than once every three (3) months. In conjunction
with a Disability Determination, Employee hereby consents to any required
medical examination, and agrees to furnish any medical information requested by
any examining physician and to waive any applicable physician-patient privilege
that may arise because of such examination. All physicians except the First
Physician must be board-certified in the specialty most closely related to the
nature of the disability alleged to exist.
(iii) By mutual agreement of Employee and Company.
(iv) By Company for Just Cause.
(v) By Employee for Good Reason.
(vi) By Employee upon the occurrence of any Change of
Control.
(vii) By Company upon two months advance written notice
to Employee.
(viii) By Employee or Company at the end of twelve (12)
months from the general effective date hereof.
(ix) If this Agreement continues beyond the initial
twelve (12) month term hereof pursuant to the last sentence of this
subparagraph, by Employee upon a one (1) month advance written notice to
Company.
The effective date of any such termination shall be referred to herein as the
"Termination Date." Notwithstanding the foregoing, if this Agreement is not
terminated as provided herein on or before the expiration of such twelve month
initial term, this Agreement will be automatically renewed for successive one
year periods on the same terms and conditions set forth herein unless, at least
60 days prior to the expiration of the initial term or any subsequent one-year
renewal term, either party has given written notice to the other of its
intention not to renew this Agreement beyond the end of such term.
c. In the event of termination of this Agreement other than
for death, Employee hereby agrees to resign from all positions held in Company,
including, without limitations, any position as a director, officer, agent,
trustee or consultant of Company or any Affiliate of Company. If Employee's
employment is terminated (i) pursuant to
4
<PAGE> 5
subsections (b)(iii) or (b)(viii) above; (ii) by Company pursuant to it
exercising its discretion under subsections (b)(ii) or (b)(vii) above; or (iii)
by Employee pursuant to subsections (b)(v), (vi) or (ix) above, Employee shall
be entitled to the following in lieu of any right Employee may otherwise have
for compensation, benefits and similar items: (i) $300,000, payable in
twenty-four (24) separate $12,500 payments made on or about the 15th and last
day of each month until paid in full, commencing two (2) weeks after the
Termination Date, (ii) continued participation in Company's health insurance
plan at the Company's expense for twelve (12) months from the Termination Date,
and (iii) receipt of that portion of any bonus payable to Employee pursuant to
Section 4 below that Employee has earned, but not been paid, as of such
Termination Date, as provided in Section 4(b) below. Company's obligations
under the preceding sentence are contingent upon Employee's continued
fulfillment of his obligations hereunder that survive his termination of
employment. If this Agreement is terminated for any other reason, Employee
shall cease to have any right to any additional compensation or benefits
hereunder, other than Employee's registration rights and indemnification rights
provided in Sections 5 and 6 hereof.
3. Duties. Employee shall perform all functions and duties consistent
with his position as Chief Executive Officer in a professional manner as
reasonably required by the Board. Employee agrees to comply with all reasonable
policies and procedures of Company generally applicable to substantially all of
its executives and the terms and conditions of this Agreement. Employee shall
be principally based at Company's corporate offices in Tampa, Florida and shall
travel as reasonably required in connection with the performance of his duties
hereunder. Employee shall not be required to primarily work out of any facility
not located in the general Tampa, Florida area. During the term of this
Agreement, except as approved by the Board from time to time, Employee shall
devote substantially all of his working time and efforts to the business and
affairs of Company. Employee shall, upon request of Company, perform services
for any parent or subsidiary of Company without any compensation other than
that provided for herein.
4. Compensation and benefits. As his entire compensation for all
services rendered to Company during the term of this Agreement, Employee shall
receive the compensation provided for in this Section, subject to withholding
and other applicable employment taxes:
a. Base Salary. Company will pay Employee an annual base
salary (the "Base Salary") of $180,000.00. The Base Salary
shall be retroactive to be effective as of January 1,
1997, notwithstanding the general effective date of this
Agreement, and a payment shall be paid to Employee
promptly after the execution of this Agreement to reflect
such retroactive effectiveness. The rate of the Base
Salary shall be subject to review on an annual basis,
commencing January 1, 1998, and Employee will be eligible
for salary increases at the discretion of the Board.
Employee's Base Salary (including any approved increase in
the amount thereof) shall not be subject to reduction
without Employee's consent. The Base Salary shall be paid
in 24 separate, equal payments or otherwise as is
consistent with the normal salary payment cycle and
procedure of Company generally applicable to its
employees. If the term of this Agreement is renewed
pursuant to section 2 hereof and the Base Salary is
increased for any such renewal term, Employee and Company
shall memorialize such change by a written instrument
executed by each such party.
b. Target Annual Bonus. Employee will be eligible to
potentially earn an annual bonus of at least $120,000.00
(the "Target Annual Bonus"). The Target Annual Bonus will
be paid in one (1) lump sum, subject to Company and/or
Employee, as applicable, achieving certain criteria as
hereinafter set forth. References below to target revenues
and target operating income relate to Company's
projections approved by the Board no less frequently than
annually in advance of the period for which the targets
are being determined. The amount of the potential Target
Annual Bonus will be subject to review on an annual basis,
commencing January 1, 1998. Actual revenues and actual
operating income shall be computed on a basis consistent
with a method by which target revenues and target
operating
5
<PAGE> 6
income for the related year were computed. Eligibility for
payments of the Target Annual Bonus to Employee shall be
for each calendar year during the term of this Agreement
beginning with the calendar year commencing January 1,
1997 (notwithstanding that such date predates the general
effective date of this Agreement) and shall be computed as
follows:
(i) $42,000 will be earned upon Company achieving
target revenues for each calendar year;
(ii) $42,000 will be earned upon Company achieving
target operating income for each calendar year; and
(iii) up to $36,000 will be earned upon approval of the
Board after its review of Employee's presentation
of strategic business accomplishments of the
Company for each calendar year.
If a target referenced in subclause (i) or (ii) above is
not met in a particular calendar year, Employee shall not
receive for such calendar year the part of the Target
Annual Bonus tied to such target. However, notwithstanding
anything to the contrary in this subsection 4(b), if in
any calendar year Company exceeds the target revenues or
target operating income for such year, Employee shall be
paid an additional bonus computed as follows: for each 1%
that actual revenues for the calendar year exceed the
target revenues for such calendar year, and for each 1%
that the actual operating income for such calendar year
exceeds the targeted operating income for such year,
Employee shall be paid an additional $630.00. For example,
if Company's target revenues for a calendar year were
$40,000,000 and actual revenues for such year computed as
provided for herein were $50,000,000, then, as actual
revenues would have exceeded projected revenues by 25%,
Employee would be entitled to an additional Target Annual
Bonus related to target revenues in the amount of
$15,750.00 (i.e., 25 x $630.00). The presentation by
Employee of Company's strategic business accomplishments
for a calendar year shall be promptly evaluated by the
Board and the potential related bonus shall be determined
by the Board in its reasonable discretion. Employee shall
be eligible to earn all or a portion of such potential
bonus as so determined by the Board. All amounts payable
pursuant to this subsection 4(b) shall be paid to Employee
promptly after the amount payable is determined.
If the Termination Date occurs prior to the end of a first
calendar quarter during the term of this Agreement,
Employee shall not be entitled to any Target Annual Bonus
for such year. If such a Termination Date occurs after the
end of a first calendar quarter during the term of this
Agreement, Employee shall be entitled to a portion of the
Target Annual Bonus, determined as follows:
(y) Actual revenues and actual operating income for the
calendar quarters for such year that have already
ended prior to the Termination Date shall be
computed and compared to the Company's targets for
such periods referenced above in this subparagraph.
If such actual revenues equal the Company's
targets, Employee shall be entitled to the Target
Annual Bonus on the basis of $10,500.00 for each
such calendar quarter that has been completed for
such year. If such actual operating income equals
the Company's targets, Employee shall be entitled
to the Target Annual Bonus on the basis of
$10,500.00 for each such calendar quarter that has
been completed for such year. Similarly, Employee
shall be entitled to a pro rata portion of the
potential additional bonus referenced above in this
6
<PAGE> 7
paragraph to the extent actual revenues or
operating income exceed target revenues and target
operating income for such quarters; provided,
however, that Employee shall only be entitled to
$157.50 for each one percent that such actual items
exceed target items for each such completed
quarter.
(z) Employee shall be entitled to the bonus referenced
in subclause (iii) above to the extent approved by
the Board after its review of a presentation by
Employee of the strategic business accomplishments
of the Company for such year through the
Termination date.
If Employee was otherwise entitled to receive an Annual
Bonus for the calendar year prior to the calendar year in
which the Termination Date occurs, and such earned Annual
Bonus has not been paid to Employee by the Termination
Date, each earned Annual Bonus shall promptly be paid to
Employee in the ordinary course of business.
c. Automobile allowance. Company will pay Employee
each month a $1,000.00 monthly allowance for an automobile
owned or leased by Employee for use in connection with
the performance of Employee's duties under his Agreement.
Employee shall not have to account to Company how such
allowance is spent. Payment of such allowance for a month
shall be made in installments on the dates in such month
on which the installments of Employee's Base Salary are
made. Employee shall be responsible for all maintenance,
insurance, gasoline and other similar costs associated
with any automobile owned or leased by Employee that is
used in connection with his performance of his duties
under this Agreement.
d. Working facilities. Company shall provide Employee
in the general Tampa, Florida area, or as another
facility of Company chosen from time to time by Employee,
with office space, equipment, facilities, staffing and
services which are suitable to the position of Chief
Executive Officer and adequate for the performance of
Employee's duties hereunder.
e. Expenses. Company shall reimburse Employee for all
reasonable travel and other business expenses incurred
by him in furtherance of Company's business in accordance
with Company's standard written policies and procedures.
f. Vacation and holidays. Employee shall be entitled
to such vacation with pay and holidays with pay during
each fiscal year of Company as shall be approved by
Company. The amount of vacation and holidays provided to
Employee shall be no less than the amount given the senior
executive employees of Company.
g. Health, welfare and insurance plans. Subject to
eligibility requirements, Employee will be entitled
to participate in any plans, insurance policies or
contracts generally maintained by Company relating to
insurance, retirement, health, disability and other
related benefits. Employee's rights with respect to any
such benefits shall be subject to the provisions of the
relevant plans, policies or contracts providing such
benefits. Nothing contained herein shall be deemed to
impose any obligation on Company to adopt or maintain any
such plan, policy or contract. As of the date of this
Agreement, Company does not provide certain types or
levels of health, welfare and insurance plans or benefit
coverage to its executive employees, and, there is no
present intention by Company to change its existing
benefit policies. However, if Company changes its policies
relative to benefits, the health, welfare and insurance
plan and benefit coverage made available to Employee will
be no less than provided for the senior executive
employees of Company.
7
<PAGE> 8
5. Registration Rights. Employee shall have the rights and obligations
set forth in addendum A hereto with respect to the registration of shares of
common stock of Company for sale and the other matters addressed therein.
6. Indemnification. Employee shall be, and hereby is, indemnified by
Company, to the fullest extent permitted by applicable law, for all costs,
claims, expenses (including reasonable attorney's fees and other litigation
costs), damages and losses incurred by Employee by reason of being employed, or
serving in any capacity, as an employee or officer of Company or any Affiliate
thereof.
7. Covenants against competition. Employee acknowledges that the
services Employee is to render are of a special and unusual character with
unique value to Company, the loss of which cannot be adequately compensated by
damages in action or in law. In view of the unique value to Company of the
services of Employee, because of the confidentiality of the information to be
obtained by or disclosed to Employee during Employee's employment by Company
and for other various reasons, as a material inducement to Company to enter
into this Agreement and to employ and pay Employee the compensation set forth
herein, Employee covenants and agrees that during Employee's employment and for
a period of one (1) year after Employee ceases to be employed by Company or its
Affiliates for any reason, other than the termination of this Agreement by
Employee for Good Reason, Employee shall not: (i) Compete with Company or any
Affiliate; (ii) solicit Company's Customers or the Customers of an Affiliate of
Company; (iii) directly or indirectly solicit for employment any employees of
Company or its Affiliates; and (iv) directly or indirectly work for or assist
any Conflicting Organization or any party or organization developing or
marketing any Conflicting Product; provided, however, if Employee's employment
is terminated by Employee pursuant to subsections 2(v), 2(vi) or 2(vii) herein,
the foregoing restrictions shall not prohibit Employee from supplying employee
services to or otherwise dealing with or having an arrangement with a third
party if Employee does not use any Confidential Information in connection
therewith.
8. Certain representations, agreements, etc. Employee represents and
warrants to Company that he is not a party to any other agreement (or subject
to any fiduciary obligation) which will materially interfere with Employee's
full compliance with this Agreement and that he has not entered into any
agreement or understanding, either written or oral, in conflict with the
provisions of this Agreement. Employee acknowledges and agrees that Company is
entering into this Agreement based upon its understanding that Employee will be
fully capable, without restriction, of performing his obligations under this
Agreement for Company, and that Company is relying upon the representations set
forth herein in connection with its entering into this Agreement with Employee.
Employee acknowledges and agrees that the Confidential Business Information is
confidential and a valuable, special and unique asset of Company's business
that gives Company advantage over its actual and potential, current and future
competitors, and Employee further admits, represents and agrees that: (a)
Company has implemented reasonable practices and measures to preserve and to
protect the confidentiality of all Confidential Business Information; (b)
notwithstanding the measures taken to protect the confidentiality of all
Confidential Business Information, due to the tasks Employee shall perform, the
pervasiveness of Confidential Business Information within Company and other
factors, Employee has or shall have access to, become exposed to and learn
Confidential Business Information; (c) Employee has been instructed about, and
knows and understands the value and importance to Company of, Confidential
Business Information; (d) Employee owes Company and its Affiliates a fiduciary
duty to preserve and protect all Confidential Business Information from all
unauthorized disclosure or unauthorized use; (e) Confidential Business
Information constitutes "trade secrets" under Sections 688.002(4) and 812.081,
Florida Statutes; (f) unauthorized disclosure or unauthorized use of such
Confidential Business Information would irreparably injure Company or its
Affiliates; (g) Sections 812.081 and 815.04, Florida Statutes, specifically
prohibits, or makes a criminal offense, unauthorized use or disclosure of
Confidential Business Information by Employee and/or by any person acting in
concert with Employee; (h) Employee shall not disclose to Company or its
Affiliates or induce Company to use any Inventions, Copyrights or confidential
information or trade secrets belonging to any third party; and (i) Employee has
no continuing obligation with respect to any confidentiality of or assignment
of any Inventions, Copyrights, confidential information or trade secrets
belonging to any previous employer or other Person.
8
<PAGE> 9
9. Proprietary interest; prohibited acts. Employee understands and
agrees that all Confidential Business Information is and shall remain, at all
times, the sole property of Company and its Affiliates; that Employee obtains
no proprietary interest in any Confidential Business Information developed or
acquired in the course of Employee's employment with Company or its Affiliates;
and that it shall be no defense to an action brought to enforce this Agreement
that Employee developed or acquired, in whole or in part, the Confidential
Business Information disclosed or used without authorization. Employee
understands and agrees that all Confidential Business Information is to be
preserved and protected, is not to be disclosed or made available, directly or
indirectly, to any third Persons, whether by private communication or by public
address or publication, without prior written authorization of an executive
officer of Company, and is not to be used, directly or indirectly, for any
purpose unrelated to the business objectives of Company or its Affiliates
without prior written authorization of another executive officer of Company.
10. Assignment of interest and assistance. Employee does hereby assign,
and agrees in the future to assign, to Company, without any separate
remuneration or compensation other than the salary received or compensation
paid to Employee from time to time in the course of Employee's employment by
Company or its Affiliates, all of Employee's right, title and interest in and
to all Confidential Business Information conceived of or made by Employee,
together with all United States and foreign patent, copyright and other legal
protection in and with respect to any and all such Confidential Business
Information, whether copyrightable, patentable or otherwise protectable or not.
Employee acknowledges that any works of authorship that are made by Employee
(solely or jointly with others) during the term of this Agreement that are
protectable by copyright are "works made for hire," as that term is defined in
17 U.S.C. 101. At Company's reasonable request, during or after Employee's
employment with Company or its Affiliates, Employee shall assist Company in
preparing all patent, copyright and other requested applications for
Confidential Business Information and execute said applications and all other
documents required to obtain patents, copyrights and/or other protections for
such Confidential Business Information and/or vest title thereto in Company, at
Company's expense, but for no additional consideration to Employee. During or
after Employee's employment with Company or its Affiliates, upon reasonable
request by Company, Employee agrees to execute and deliver all appropriate
patent, copyright and other applications or filings and documents necessary or
desirable for securing all United States and foreign copyright, patent and
other protections on all Confidential Business Information, and to do, execute
and deliver any and all acts and instruments that may be necessary or desirable
to vest all such Confidential Business Information in Company or its written
designee, and to enable Company or its such written designee to obtain all such
letters of patent and other protections. Company shall be responsible for all
third-party costs reasonably required to be incurred in connection with the
foregoing. Employee agrees to render to Company or its written designee all
such assistance as may be required in the prosecution of all such patent,
copyright and other applications and applications for the re-issue of any such
items and in the prosecution or defense of all interferences that may be
declared involving any of said items. Employee further agrees to not contest
the validity of any patent, copyright or other application, United States or
foreign, that is issued to, or requested to be issued to, Company or its
written designee, in which Employee made any contribution, or in which Employee
participated in any way, and not to assist any other party in any way in
contesting the validity of any such items.
11. Actions upon termination of employment. Upon Employee's termination
of employment with Company, for any reason, Employee shall return to Company
all originals and copies of all documents, data and information containing
Confidential Business Information and all other confidential proprietary work
in Employee's possession or control or generated within the scope of Employee's
employment, which shall include any and all devices, records, sketches, data,
notes, memoranda, reports, proposals, lists, software programs, equipment and
other items (in whatever medium recorded or retained). Employee shall not
deliver, reproduce or in any way allow any such items to be delivered to or
used by any third parties without prior written consent by a duly authorized
representative of Company. During or after the termination of employment,
Employee shall not publish, release or otherwise make available to any third
parties any information describing any Confidential Business Information
without the prior written approval by a duly authorized representative of
Company. Company can notify any new employer of Employee of Employee's rights
and obligations under this Agreement. Employee understands and agrees that
Employee's obligations under this Agreement (other than to continue to provide
employee services to Company), including the obligations to preserve and
protect and not to disclose (or make available to any Person) or use for
9
<PAGE> 10
purposes unrelated to the business objectives of Company or its Affiliates,
without prior written authorization of an executive officer of Company,
Confidential Business Information, continue indefinitely and do not, under any
circumstances or for any reason (specifically including wrongful discharge),
cease upon termination of employment; and that, in the event of termination of
Employee's employment for any reason (specifically including wrongful
discharge), such Confidential Business Information shall remain the sole
property of Company and its Affiliates and shall be left in its entirety in the
undisputed possession and control of Company and its Affiliates after such
termination.
12. Protected whether information of Company or Affiliate. Employee
recognizes, acknowledges and agrees that this Agreement is specifically and
expressly intended to protect, and does specifically and expressly protect, all
Confidential Business Information of Company, whether in the possession,
custody or control of Company or any Affiliate of Company.
13. Remedies. If an action should have to be brought by Company or its
Affiliates against Employee to enforce the provisions of this Agreement,
Employee recognizes, acknowledges and agrees that Company and its Affiliates
shall be entitled to all of the civil remedies provided by applicable Florida
Statutes. Nothing in this Agreement shall be construed as prohibiting Company
or its Affiliates from pursuing any other legal or equitable remedies available
to it for breach or threatened breach of the provisions of this Agreement. In
the event litigation arises in connection with this Agreement, the prevailing
party in such litigation shall be entitled to recover all reasonable attorneys'
fees, costs and expenses incurred in such litigation.
14. Arbitration; Consent to jurisdiction and venue. All controversies,
claims, disputes, and matters in question arising out of, or related to, this
Agreement or the breach of this Agreement, or the relations between the
signatories to this Agreement, shall be decided by arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration Association.
The parties agree that the arbitration shall take place exclusively in Tampa,
Florida, and shall be governed by the substantive law of the state of Florida.
Any award rendered by the arbitrator shall be final, and final judgment may be
entered upon the parties in accordance with applicable law in any court having
jurisdiction thereof, including a federal district court, pursuant to the
Federal Arbitration Act. The arbitrator may grant Company injunctive relief,
including mandatory injunctive relief, to protect the rights of Company, but
the arbitrator shall not be limited to such relief. This arbitration provision
shall not preclude Company from seeking temporary or preliminary injunctive
relief in a court of law to protect its rights, nor shall the filing of such an
action constitute any waiver by Company of its right to arbitrate. In
connection with the arbitration of any dispute between the signatories to this
Agreement, each signatory may utilize all methods of discovery authorized by
the Federal and Florida Rules of Civil Procedure. Employee hereby consents to
personal jurisdiction and venue, for any action brought by Company or its
Affiliates arising out of a breach or threatened breach of this Agreement, in
the United States District Court for the Middle District of Florida, Tampa
Division, or in the Circuit Court in and for Hillsborough County, Florida;
Employee agrees that any action arising under this Agreement or out of the
relationship established by this Agreement shall be brought only and
exclusively in the United States District Court for the Middle District of
Florida, Tampa Division, or in the Circuit Court in and for Hillsborough
County, Florida.
15. Acknowledgment. Employee hereby acknowledges that Employee has
been provided with a copy of this Agreement for review prior to signing it,
that Employee has been given the opportunity to have the Agreement reviewed by
Employee's own attorney prior to signing it, that Employee understands the
purposes and effects of the Agreement, and that Employee has been given a
signed copy of the Agreement for Employee's own records. Employee agrees that
the restrictions set forth in this Agreement, including, but not limited to,
the time period of restriction and areas of restriction, are fair and
reasonable and are reasonably required for the protection of the interest of
Company and its Affiliates.
10
<PAGE> 11
16. Miscellaneous.
a. Entire agreement. This Agreement constitutes the entire
agreement between Company and Employee pertaining to the subject matters
hereof, and it supersedes all negotiations, preliminary agreements, and all
prior and contemporaneous discussions and understandings of the signatories in
connection with the subject matters hereof, including, not limited to, the
Existing Agreement, which is hereby terminated and no longer binding and
enforceable against any party thereto. Except as otherwise provided, no
covenant, representation or condition not expressed in either this Agreement or
an amendment hereto made and executed in accordance with the provisions of
subsection (b) of this section shall be binding upon the signatories hereto or
shall affect or be effective to interpret, change, restrict or terminate the
provisions of this Agreement.
b. Amendments. No change, modification or termination of any
of the terms, provisions or conditions of this Agreement shall be effective
unless made in writing and signed or initialed by all signatories to this
Agreement.
c. Waiver of breach. The waiver by Company of a breach or
threatened breach of any provision of this Agreement by Employee shall not be
construed as a waiver of any subsequent breach of Employee.
d. Governing law. This Agreement shall be governed by and
construed in accordance with the domestic laws of the state of Florida without
giving effect to any choice or conflict of law provision or rule (whether of
the state of Florida or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the state of Florida.
e. Separability. If any section, subsection or provision of
this Agreement, or the application of such section, subsection or provision, is
held invalid, the remainder of the Agreement and the application of such
section, subsection or provision to Persons or circumstances other than those
with respect to which it is held invalid, shall not be affected thereby. If any
of the provisions of this Agreement relating to the time period and/or areas of
activity restricted and/or related aspects hereof shall be declared by a court
of competent jurisdiction to exceed the maximum restrictiveness such court
deems reasonable and enforceable, the time period and/or areas of activity
restricted and/or related aspects deemed reasonable and enforceable by the
court shall become and thereafter be the maximum restriction in such regard,
and the restriction shall remain enforceable in such jurisdiction to the
fullest extent deemed reasonable by such court. Such court's determination
shall not affect the validity and enforceability of this Agreement in any other
jurisdiction.
f. Headings and captions. The titles or captions of sections
and subsections contained in this Agreement are provided for convenience of
reference only, and they shall not be considered a part of this Agreement; such
titles or captions are not intended to define, limit, extend, explain or
describe the scope or extent of this Agreement or any of its terms, provisions,
representations, warranties, conditions, etc. in any manner or way whatsoever.
g. Gender and number. All pronouns and variations thereof
shall be deemed to refer to the masculine, feminine or neuter, to the singular
or plural, as the identity of the person or entity or persons or entities may
require.
h. Continuance of agreement. The rights, responsibilities and
duties of Company and Employee, and the covenants and agreements contained in
this Agreement, shall survive the execution of this Agreement, shall continue
to bind the parties to this Agreement, shall continue in full force and effect
until each and every obligation of the parties pursuant to this Agreement shall
have been performed, and shall be binding upon and inure to the benefit of the
successors and assigns of the parties. Notwithstanding the foregoing, Employee
shall not assign Employee's duties, rights or obligations under this Agreement
to any party without the prior written consent of Company. This Agreement shall
not confer any rights or remedies upon any Person other than Company and its
Affiliates, and their successors and assigns, and Employee.
11
<PAGE> 12
i. Construction. Company and Employee have participated
jointly in the negotiation and/or drafting of this Agreement. If an ambiguity
or question of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by Company and Employee, and no presumption or
burden of proof shall arise favoring or disfavoring either party by virtue of
the authorship of any of the provisions of this Agreement. The words "include"
and "included" shall mean include, without limitation, and including, without
limitation, respectively.
IN WITNESS WHEREOF, Company and Employee have executed and delivered
this Agreement to be effective as of the day and year provided above, except as
specifically provided in Section 4(a) hereof.
WITNESSES: COMPANY:
POWERCERV CORPORATION
/s/ Marc J. Fratello By: /s/ Stephen M. Wagman
- ------------------------------------ -------------------------------
Print Name: Marc J. Fratello Print Name: Stephen M. Wagman
------------------------ -------------------
Title: Chief Counsel
------------------------
/s/ Karen L. Jaderborg
- ------------------------------------
Print Name: Karen L. Jaderborg
------------------------
EMPLOYEE:
/s/ Marc J. Fratello /s/ Harold R. Ross
- ------------------------------------ -------------------------------
Print Name: Marc J. Fratello Harold R. Ross
------------------------
/s/ Karen L. Jaderborg
- ------------------------------------
Print Name: Karen L. Jaderborg
------------------------
12
<PAGE> 13
STATE OF FLORIDA)
COUNTY OF HILLSBOROUGH)
The foregoing instrument was acknowledged before me this 17th day of
April, 1997 by Stephen M. Wagman as Chief Counsel of POWERCERV CORPORATION, a
Florida corporation, on behalf of the corporation. Such person is personally
known to me or has presented N/A as identification.
/s/ Elena Crosby
-----------------------------------------
Notary Public
Print Name: Elena Crosby
-----------------------------
(SEAL)
My Commission Expires: March 31, 2000
Commission No.: CC543881
STATE OF FLORIDA)
COUNTY OF HILLSBOROUGH)
The foregoing instrument was acknowledged before me this 17th day of
April, 1997 by Harold R. Ross. Such person is personally known to me or has
presented N/A as identification.
/s/ Elena Crosby
--------------------------------------
Notary Public
Print Name: Elena Crosby
--------------------------
(SEAL)
My Commission Expires: March 31, 2000
Commission No.: CC543881
13
<PAGE> 14
ADDENDUM A TO EMPLOYMENT AGREEMENT
REGISTRATION RIGHTS
PROVISIONS
<PAGE> 15
ADDENDUM A TO EMPLOYMENT AGREEMENT
REGISTRATION RIGHTS
PROVISIONS
<PAGE> 16
ADDENDUM A
REGISTRATION RIGHTS PROVISIONS
SECTION 1. DEFINITIONS. As used in this Addendum A, the following
terms have the meanings specified below and include the plural as well as the
singular:
"ABS" means ABS Capital Partners, L.P.
"ABS Registrable Shares" means (i) all Common Stock issued directly or
indirectly in respect of any Convertible Shares issued to ABS or its successors
or assigns, (ii) all Common Stock issued with respect to any securities
referred to in clause (i) above by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger,
consolidation, reorganization or otherwise, and (iii) all other Common Stock
held from time to time by any holder of Common Stock described in clause (i) or
(ii) above.
"Affiliate" means, with respect to any specified Person, any other
Person directly or indirectly controlling, controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing; provided, that, for purposes of Section 5, any
"Person" or "group" (each as defined in Section 13(d)(3) or 14(d)(2) of the
Exchange Act) that is the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act) of more than 10% of the capital stock having ordinary voting
power in the election of directors of such Person (if a corporation) or more
than lot of the partnership or other ownership interests of such Person (if
other than a corporation) shall be deemed to control such Person.
"Board" means the board of directors of Company.
A "Class" of Registrable Shares means any of the Senior Registrable
Shares and the Parity Registrable Shares. Registrable Shares that are part of
any Class (the "Transferred Class") that are transferred to or otherwise become
held by any holder of Registrable Shares of any other Class (the "Other Class")
shall cease to be Registrable Shares of the Transferred Class and thereafter be
Registrable Shares of the Other Class (unless and until they are subsequently
transferred to or otherwise become held by any holder of Registrable Shares of
another Class or cease to be Registrable Shares).
"Common Stock" means Company's common stock, par value $.001 per
share, and all securities of any issuer issued, in exchange for, or as a
dividend or other distribution on, outstanding shares of the Common Stock.
"Company" means PowerCerv Corporation, a Florida corporation.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Executive" means Harold R. Ross, a current executive employee of
Company.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof and any court, panel, judge, board, bureau,
commission, agency or other entity, body or other Person exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
<PAGE> 17
"Holder" means any holder of Registrable Shares.
"Management Investors" means Harold Ross, Marc Fratello and Roy E.
Crippen, III.
"Management Registrable Shares" means all Common Stock held from time
to time by any Management Investor and their respective successors and assigns.
"NASD" means the National Association of Securities Dealers, Inc.
"Other Senior Registrable Shares" means (i) all Common Stock and all
Common Stock issuable with respect to any Rights designated from time to time
by Company as "Other Senior Registrable Shares," (ii) all Common Stock issued
upon conversion of any Common Stock referred to in clause (i) above, (iii) all
Common Stock issued with respect to any securities referred to in clause (i) or
(ii) above by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation, reorganization
or otherwise, and (iv) all other Common Stock held from time to time by any
holder of Common Stock described in clause (i), (ii) or (iii) above.
"Parity Holder" means each of the Management Investors (inclining
Executive) and any other party designated from time to time by Company as a
"Parity Holder" who shall have registration rights with respect to Parity
Registrable Shares having priority on Piggy Back Registration generally on
parity in all material respects pursuant to paragraph 2(e) hereof.
"Parity Registrable Shares" means all Common Stock held from time to
time by a Parity Holder that is designated from time to time by Company as
"Parity Registrable Shares;" provided, however, that the shares issuable to a
Management Investor shall be deemed to be Parity Registrable Shares only so as
long as such stock is held by each such respective party or any Affiliate or
family member of such party.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization, or a governmental entity (or any department, agency, or political
subdivision thereof).
"Registrable Shares" means the Senior Registrable Shares and the
Registrable Shares. As to any particular Registrable Shares, such securities
shall cease to be Registrable Shares (and shall cease to be Parity Registrable
Shares, ABS Registrable Shares, Summit Investors Registrable Shares, Summit
Ventures Registrable Shares, Management Registrable Shares, and the Other
Senior Registrable Shares, as the case may be) when they have been distributed
to the public pursuant to an offering registered under the Securities Act, sold
to the public through a broker, dealer or market maker in compliance with Rule
144 under the Securities Act (or any similar rule then in force) or repurchased
by Company. For purposes of this Addendum, a Person shall be deemed to be a
Holder of Registrable Shares, and the Registrable Shares shall be deemed to be
in existence, whenever such Person has the right to acquire directly or
indirectly such Registrable Shares upon conversion or exercise of other
securities, disregarding any restrictions or limitations upon such conversion
or exercise, whether or not such acquisition has actually been effected (it
being understood that Company shall not be required to include in any
registration hereunder any securities other than Common Stock ).
"Registration Expenses" means all expenses incident to Company's
performance of or compliance with this Addendum A, including, without
limitation, all SEC and stock exchange or NASD registration and filing fees and
expenses, fees and expenses of compliance with securities or blue sky laws
(including, without limitation, reasonable fees and disbursements of counsel
for the underwriters in connection with blue sky qualifications of the
Registrable Shares), printing expenses, messenger and delivery expenses, the
fees and expenses incurred in connection with the listing of the securities to
be registered on each securities exchange or national market system on which
similar
2
<PAGE> 18
securities issued by Company are then listed, fees and disbursements of counsel
for Company and all independent certified public accountants (including the
expenses of any annual audit, special audit, if necessary, and "cold comfort"
letters required by or incident to such performance and compliance), the fees
and disbursements of underwriters customarily paid by issuers or sellers of
securities, the fees and expenses of any special experts retained by Company in
connection with such registration, and fees and expenses of other persons
retained by Company; provided that Company shall not be responsible for any
underwriting discounts or commissions, fees and expenses of counsel to
Executive, or transfer taxes, if any, attributable to the sale of Executive's
Parity Registrable Shares.
"Rights" shall mean, with respect to any Person, any subscription,
option, warrant, right, convertible security or other agreement, instrument or
commitment of any character obligating (contingently or absolutely) such Person
to issue or sell any capital stock or other securities.
"SEC" means the Securities and Exchange Commission or any successor
thereof.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Selling Holder" means a Holder of the Registrable Shares intended
consistent with the terms hereof to covered by a registration statement.
"Senior Registrable Shares" means the ABS Registrable Shares, the
Summit Investors Registrable Shares, the Summit Ventures Registrable Shares and
the Other Senior Registrable Shares.
"Summit Investors" means Summit Investors II, L.P.
"Summit Investors Registrable Shares" means (i) all Common Stock
issued directly or indirectly in respect of any Convertible Shares issued to
Summit Investors or its successors or assigns, (ii) all Common Stock issued
with respect to any securities referred to in clause (i) above by way of a
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation, reorganization or otherwise, and (iii)
all other Common Stock held from time to time by any holder of Common Stock or
any described in clause (i) or (ii) above.
"Summit Ventures" means Summit Ventures III, L.P.
"Summit Ventures Registrable Shares" means (i) all Common Stock issued
directly or indirectly in respect of any Convertible Shares issued to Summit
Ventures or its successors or assigns, (ii) all Common Stock issued with
respect to any securities referred to in clause (i) above by way of a stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation, reorganization or otherwise, and (iii)
all other Common Stock held from time to time by any holder of Common Stock
described in clause (i) or (ii) above.
3
<PAGE> 19
SECTION 2. PIGGYBACK REGISTRATION RIGHTS.
(a) Right to Company Piggyback. If Executive owns Parity
Registrable Shares then representing in excess of two percent (2%) of the
outstanding shares of Common Stock of Company and Company proposes to file a
registration statement under the Securities Act with respect to its Common
Stock (a "Registration Statement"), other than a registration statement on Form
S-8, Form S-4 or any successor forms, and pursuant to which Common Stock is
proposed to be sold (a "Proposed Registration"), and the registration form to
be used may be used for the registration of Registrable Shares (a "Piggyback
Registration"), then Company shall give written notice to Executive no less
than twenty (20) days before the initial filing date with the SEC. Such notice
shall: (i) subject to the provisions of this Section 2, offer Executive the
opportunity to include in such filing such number of Executive's Parity
Registrable Shares as Executive may request; and (ii) specify the kind and
number of securities proposed to be registered and the proposed distribution
arrangements.
(b) Requests to Piggyback. If Executive holds Parity Registrable
Shares and desires to have any such Parity Registrable Shares registered under
this Section 2, it shall advise Company in writing (a "Piggyback Registration
Request") within ten (10) days after the date Company sends the notice pursuant
to subsection 2(a) hereof (the "Piggyback Notice"). Such notice shall set forth
the amount of Executive's Parity Registrable Shares that Executive desires to
have registered. Executive shall be permitted to withdraw all or any part of
its Registrable Shares from a Piggyback Registration at any time prior to the
effective date of the related registration statement upon giving five (5) days
prior written notice of such withdrawal to Company.
(c) Distribution Methods. Subject to subsection 2(d) below, if
Executive delivers a Piggyback Registration Request in accordance with
subsection 2(b) hereof, it may select any method or methods of distribution of
the Executive's Parity Registrable Shares that it has requested to be included
in the Piggyback Registration.
(d) Change in Distribution Method. If the Proposed Registration
is for (or includes) an underwritten public offering of securities and
Executive has selected any other method of distribution for any of Executive's
Parity Registrable Shares that it has requested be included in the Piggyback
Registration and if the managing underwriter of such offering (the "Managing
Underwriter") advises Company in writing that, in its opinion, the distribution
of such Executive's Parity Registrable Shares by such method shall materially
adversely affect the success of such offering of securities, then Executive
shall not be entitled to include in such Piggyback Registration such number of
such Registrable Shares that the Managing Underwriter determines shall
materially adversely affect the success of such offering (the
"Non-Participating Shares"), unless Executive elects, by written notice to
Company within five (5) days after receipt of such written advice, to include,
subject to subsection 2(e) hereof, in such underwritten public offering either
all the Executive's Parity Registrable Shares requested to be registered by it
or the Non-Participating Shares. If the Proposed Registration is not (and does
not include) an underwritten public offering and such Proposed Registration
includes securities to be sold for the account of Company or the Holder of any
Senior Registrable Shares, and if Executive has selected any method of
distribution of any of the Executive's Parity Registrable Shares that is
materially different from the method selected by Company or the Holder of any
Senior Registrable Shares for the distribution of such securities to be sold
for its account, and if the Board shall reasonably determine (and shall notify
Executive in writing of such determination) that the distribution of such
Parity Registrable Shares by such method shall materially adversely affect the
success of such sale of all such securities, then Executive may select, by
written notice to Company within five (5) days, any other method of
distribution that in the reasonable judgment of the Board shall not have such
effect.
(e) Priority on Piggyback Registrations. If the Proposed
Registration is for (or includes) an underwritten offering, Company shall
permit Executive to include all of his Parity Registrable Shares in such
offering on the same terms and conditions as any similar securities included
therein. If, in the case of a Proposed Registration that is for (or
4
<PAGE> 20
that includes) an underwritten offering, the Managing Underwriter advises
Executive in writing that in its opinion, or, in the case of a Proposed
Registration that is not for (and does not include) an underwritten offering of
securities to be distributed for the account of Company or the Holder of any
Senior Registrable Shares, the Board shall reasonably determine (and notify
Executive in writing of such determination) that the amount or kind of
securities proposed to be included in such offering (including, but not limited
to, Registrable Shares to be included in accordance with subsections 2(c) and
2(d) above) shall materially adversely affect the success of the offering of
all securities proposed to be distributed for the account of Company or the
Holder of any Senior Registrable Shares, then Company shall include in such
offering the amount of securities, if any, that, in the opinion of the Managing
Underwriter or the reasonable judgment of the Board (as the case may be) can be
sold as follows:
(1) first, the securities Company propose(s) to sell for
its own account and any Senior Registrable Shares allocated amongst such
parties as Company determines;
(2) second, the Parity Registrable Shares requested to be
included in such offering by Executive or Parity Holders who have delivered
Piggyback Registration Requests; and
(3) third, the securities held by Persons other than the
Holders of Senior Registrable Shares and Parity Holders requested to be
included in such offering.
To the extent that Company has been advised or has determined (as the case may
be) that the number of the Executive's Parity Registrable Shares and other
securities requested to be included in such offering exceeds the number that
can be sold in such offering without having a materially adverse effect on the
success of such offering, Company shall include in such registration, prior to
the inclusion of any securities that are not Registrable Shares, the number of
Registrable Shares requested to be included that, in the opinion of the
Managing Underwriter or the reasonable judgement of the Board (as the case may
be), can be sold in such offering without having such a materially adverse
effect (the "Available Shares"), allocated first among Company and Holders of
Senior Registrable Shares (as Company may determine), second among the Holders
of Parity Registrable Shares who have delivered Piggy Back Registration
Requests pro rata amongst such Holders on the basis of the number of securities
requested to be included in such offering by such Holders. If after giving
effect to clause (1) and (2) above, there are additional Available Shares, then
such Available Shares shall be allocated pro rata among the Persons requesting
securities to be registered in such offering pursuant to clause (3) above on
the basis of the number of securities requested to be included in such offering
by such Persons (or as otherwise determined by Company).
(f) Selection of Underwriters. If any Piggyback Registration is
for an underwritten offering, Company shall engage, on terms and conditions
customary for such purposes, an investment banking firm to serve as Managing
Underwriter for such offering.
(g) Abandonment. Company shall have the right, upon prompt
written notice to Executive delivering a Piggyback Registration Request, to
abandon a Piggyback Registration.
SECTION 3. EXPENSES. Company shall pay all Registration Expenses in
connection with each registration pursuant to Section 2 hereof, whether or not
such registration becomes effective under the Securities Act; provided,
however, that Executive shall pay all underwriting discounts and commissions
and transfer taxes, if any, relating to the sale of Executive's Parity
Registrable Shares pursuant to any such registration; provided, further, that
Executive shall pay its pro rata share of the incremental registration filing
fees attributable to the inclusion of his Parity Registrable Shares in any such
registration pursuant to Section 2 hereof and shall pay all fees and
disbursements of its counsel incurred in connection therewith.
5
<PAGE> 21
SECTION 4. REGISTRATION PROCEDURES.
(a) With respect to any Piggyback Registration, Company, subject
to subsections 2(e) above, respectively, shall use reasonable efforts to effect
the registration of all Executive's Parity Registrable Shares that Executive
has requested to be included therein in accordance, subject to subsections
2(d), with the intended method(s) of distribution thereof reasonably promptly,
and in connection with any such request, Company shall do the following:
(1) prepare and file with the SEC a registration
statement on any form for which Company then qualifies and that is available
for the registration of the Registrable Shares requested to be registered in
accordance with the intended method(s) of distribution thereof, include
(subject to subsections 2(d) and 2(e) above) in the registration on such form
all Registrable Shares requested to be included, and use reasonable efforts to
cause such registration statement to become effective;
(2) prepare and file with the SEC such amendments and
post-effective amendments and supplements to the registration statement or any
prospectus as may be necessary to keep the registration statement effective for
a period that shall terminate on the earlier of forty-five (45) days after the
registration statement is officially declared effective by the SEC or when all
Executive's Parity Registrable Shares covered by such registration statement
have been disposed of; and comply with all applicable rules and regulations of
the SEC and with the provisions of the Securities Act applicable to Company
with respect to the disposition of all Executive's Parity Registrable Shares
covered by such registration statement during such period in accordance with
the intended methods of disposition by Executive set forth in such registration
statement (as it may be amended) or any supplement to any such prospectus;
(3) notify Executive, at any time when a prospectus
relating to Executive's Parity Registrable Shares covered by the registration
statement is required to be delivered under the Securities Act, of the
occurrence of any event as a result of which the preliminary prospectus or
prospectus included in such registration statement or any prospectus supplement
contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein in light of the circumstances
under which they were made, not misleading, and Company shall, as promptly as
reasonably practicable thereafter, prepare and file with the SEC and furnish to
Executive a supplement or amendment to such preliminary prospectus, prospectus
or prospectus supplement so that, as thereafter delivered to the prospective
purchasers of Executive' Parity Registrable Shares being distributed by
Executive, such preliminary prospectus, prospectus or prospectus supplement
shall not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
(4) if requested by Executive, Company shall cooperate
and shall promptly incorporate in a prospectus supplement or post-effective
amendment to the registration statement at Executive's cost and expense such
information concerning Executive and its intended method of distribution as it
reasonably requests to be included therein (and which is not inappropriate, in
the reasonable judgment of Company, after consultation with its outside legal
counsel), including, without limitation, with respect to any change in the
intended method of distribution, the amount or kind of Parity Registrable
Shares being offered by Executive, the offering price for such Parity
Registrable Shares or any other terms of the offering or distribution of the
Registrable Shares and make all required filings of such prospectus supplement
or post-effective amendment as soon as possible after being notified of the
matters to be incorporated in such prospectus supplement or post-effective
amendment;
(5) on or prior to the date on which the registration
statement is declared effective, use
6
<PAGE> 22
reasonable efforts to register or qualify, and cooperate with Executive and its
counsel, in connection with the registration or qualification of the
Executive's Parity Registrable Shares covered by the registration statement
for offer and sale under the securities or "blue sky" laws of each state and
other U.S. jurisdiction as Executive reasonably (in light of the intended plan
of distribution) requests in writing, use reasonable efforts to keep each such
registration or qualification effective, including through new filings,
amendments or renewals, during the period the registration statement is
required to be kept effective and do other acts or things reasonably necessary
or advisable to permit the disposition in all such jurisdictions of the
Executive's Parity Registrable Shares; however, Company shall not be required
to (i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to so qualify, (ii) take any action that would subject it
to general service of process in any jurisdiction where it would not otherwise
be subject to such general service of process or (iii) subject itself to
general taxation in any jurisdiction where it would not otherwise be subject;
(6) cooperate with Executive, its legal counsel and any
other interested party (including any interested broker-dealer) in making any
filings or submissions required to be made, and the furnishing of appropriate
information in connection therewith, with the NASD;
(7) use reasonable efforts to cause all Executive's
Parity Registrable Shares included in such registration statement to be listed,
by the date of the first sale of Registrable Shares pursuant to such
registration statement, on each securities exchange or interdealer quotation
system on which similar securities issued by Company then are listed or
proposed to be listed, if any;
(8) take other steps reasonably necessary to effect the
registration and qualification of the Executive's Parity Registrable Shares
included in such Piggyback Registration and to facilitate the disposition
thereof in accordance with the respective plans of distribution of Executive
permitted hereunder.
(b) Each Selling Holder, upon receipt of any notice from Company
of the occurrence of any event of the kind described in clause 3 of subsection
4(a) above, shall forthwith discontinue disposition of the Executive's Parity
Registrable Shares pursuant to the registration statement covering such
Executive's Parity Registrable Shares until Executive's receipt of the copies
of the supplemented or amended preliminary prospectus or prospectus
contemplated by such subsection and, if so directed by Company, Executive shall
deliver to Company (at the expense of Company) all copies, other than permanent
file copies then in Executive's possession, of the most recent preliminary
prospectus or prospectus covering such Executive's Parity Registrable Shares at
the time of receipt of such notice. Executive, upon receipt of any notice from
Company of the issuance of any stop order or blue sky order shall forthwith, in
the case of any stop order, discontinue disposition of Executive's Parity
Registrable Shares pursuant to the registration statement covering such
Executive's Parity Registrable Shares or, in the case of any blue sky order,
discontinue disposition of the Executive's Parity Registrable Shares in the
applicable jurisdiction, until advised in writing of the lifting or withdrawal
of such order. In the event Company shall give any notice pursuant to this
subsection 4(b), Company shall extend the period during which such registration
statement shall be maintained effective (including the period referred to in
subsection 4(a)(2) above) by the number of days during the period from and
including the date of the giving of such notice to and including (i) in the
case of a notice pursuant to the first sentence of this subsection, the date
when Executive shall have received the copies of the supplemented or amended
preliminary prospectus or prospectus contemplated by clause (4) of subsection
4(a) above or (ii) in the case of a notice pursuant to the second sentence of
this subsection, the lifting or withdrawal of such stop order or blue sky
order, as the case may be.
(c) Not less than eight (8) days before the expected filing date
of each registration statement pursuant to this Addendum A, Company shall
notify Executive of the information reasonably required from Executive (the
"Requested Information") if Executive has timely delivered a Piggyback
Registration Request to Company. If Company has not received, on or prior to
the fifth (5th) day before the expected filing date, the Requested Information
from Executive, Company may file the registration statement without including
Executive's Parity Registrable Shares of
7
<PAGE> 23
Executive. The failure to include in any registration statement Executive's
Parity Registrable Shares of Executive (with regard to that registration
statement) shall not in and of itself result in any liability on the part of
Company to Executive. In addition, Executive shall take all such other acts,
deliver such other information and execute and deliver such documents and
instruments in connection with the matters referenced herein (including, but
not limited to, a custody agreement, power of attorney, lock-up letter and
underwriting agreement), as the Company may request.
SECTION 5. INDEMNIFICATION.
(a) Indemnification by Company. Company shall indemnify and hold
harmless Executive, each Affiliate of Executive and their respective directors,
officers, stockholders and partners and each other Person, if any, who controls
Executive within the meaning of the Securities Act, against any and all losses,
claims, damages or liabilities, joint or several, and expenses (including the
costs of investigation and the fees and disbursements of counsel) to which any
of them may become subject under the Securities Act, the Exchange Act or other
federal or state law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) or expenses arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in any registration
statement as originally filed or in any amendment thereof, or in any
preliminary, final or summary prospectus, or in any amendment thereof or
supplement thereto, or (ii) any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (iii) any violation by Company of any federal or
state law, rule or regulation or common law applicable to Company and relating
to action required of or inaction by Company in connection with any such
registration, and Company shall reimburse any such indemnified party for any
legal or any other expenses reasonably incurred by it in connection with
investigating or, subject to subsection 5(c) below, defending any such loss,
claim, damage, liability, action or proceeding; however, Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or expense (x) arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in the
registration statement or in any amendment thereof or in any preliminary, final
or summary prospectus or in any amendment thereof or supplement thereto in
reliance upon and in conformity with written information furnished to Company
by or on behalf of Executive specifically for use in the registration statement
or prospectus (or an amendment thereof or supplement thereto) or (y) results
from the fact that Executive sold Parity Registrable Shares to a Person to whom
there was not sent or given, at or prior to the written confirmation of such
sale, a copy of the final prospectus or of the final prospectus as then amended
or supplemented, whichever is most recent, if Company had previously furnished
copies hereof to Executive and such final prospectus, as then amended or
supplemented, corrected such misstatement or omission.
(b) Indemnification by Holders. Executive shall indemnify and
hold harmless (in the same manner and to the same extent as set forth in
subsection 5(a), including, without limitation, clause (y) of the proviso set
forth therein) Company and its directors, officers and controlling persons and
each underwriter, dealer manager or similar securities industry professional
participating in the distribution of Executive's Parity Registrable Shares and
such securities industry professional's respective directors, officers,
partners and controlling persons, with respect to any statement or alleged
statement in or omission or alleged omission from such registration statement,
any preliminary, final or summary prospectus contained therein, or any
amendment or supplement, if such statement or alleged statement or omission or
alleged omission (i) was made in reliance upon and in conformity with written
information furnished to Company by or on behalf of Executive specifically for
use in such registration statement or prospectus (or amendment thereof or
supplement thereto) or (ii) (solely in the case of an offering in which no
underwriter, selling broker, dealer manager or similar industry professional
participates) results from the fact that Executive sold Parity Registrable
Shares to a Person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the final prospectus or of the
final prospectus as then amended or supplemented, whichever is most recent, if
Company had previously furnished copies thereof to such Holder and such final
prospectus, as then amended or supplemented, corrected such misstatements or
omission.
8
<PAGE> 24
(c) Notice of Claims, etc. Promptly after receipt by an
indemnified party under subsection 5(a) or (b) of notice of any claim or the
commencement of any action or proceeding subject to indemnification thereunder,
the indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under either of such subsections, promptly
notify the indemnifying party in writing of the claim or the commencement of
the action or proceeding; provided that the failure to so notify the
indemnifying party shall not relieve the indemnifying party from any liability
which it may have to an indemnified party under subsection 5(a) or (b) or
otherwise, except to the extent the indemnifying party shall have been
materially prejudiced by such failure to give notice. If any such claim,
action or proceeding shall be brought against an indemnified party, and it
shall timely notify the indemnifying party, the indemnifying party shall be
entitled to participate in, and, to the extent that it wishes, jointly with any
other similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim, action or proceeding, the indemnifying party shall not
be liable to the indemnified party under, subsection 5(a) or (b) for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of investigation; however,
such indemnified party shall have the right to employ separate counsel in any
such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be the expense of such indemnified party unless
(1) the indemnifying party has agreed to pay such fees and expenses, (2) the
indemnifying party shall have failed to assume the defense of such claim,
action or proceeding or has failed to employ counsel reasonably satisfactory to
such indemnified party in any such claim, action or proceeding or (3) the named
parties to any such action or proceeding (including any impleaded parties)
include both such indemnified party and the indemnifying party, and such
indemnified party shall have been advised by counsel that there may be one or
more legal defenses available to such indemnified party which are inconsistent
or in conflict with those available to the indemnifying party (in which case,
if such indemnified party notifies the indemnifying party in writing that it
elects to employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such
action or proceeding on behalf of such indemnified party), it being understood,
however, that the indemnifying party shall not, in connection with any one such
action or proceeding or separate but substantially similar or related actions
or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys at any time for such indemnified party
and any other indemnified parties similarly situated, which firm shall be
designated in writing by such indemnified parties. The indemnifying party
shall not be liable for any settlement of any such action or proceeding
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent, or if there be a final
judgment for the plaintiff in any such action or proceeding, the indemnifying
party agrees to indemnify and hold harmless such indemnified parties from and
against any loss or liability by reason of such settlement or judgment.
(d) Contribution. If the indemnification provided for in
subsection 5(a) or (b) is unavailable or insufficient to hold harmless an
indemnified party, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of the losses, claims,
damages or, liabilities (or actions or proceedings in respect thereof) or
expenses referred to in subsection 5(a) or (b), (i) in such proportion as is
appropriate to reflect the relative benefits received by Company on the one
hand and Executive on other hand from the sale of the Executive's Parity
Registrable Shares, or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of Company on the one hand and Executive on the other hand
in connection with statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
or expenses, as well as any other relevant equitable considerations. The
relative benefits received by Company on the one hand and Executive on the
other hand shall be deemed to be in the same proportion as the total net
proceeds from the issuance and sale of such Registrable Shares (before
deducting expenses) received by Company bear to the total compensation or
profit (before deducting expenses) received or realized by Executive from the
resale of such Registrable Shares. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of
9
<PAGE> 25
a material fact or the omission or alleged omission to state a material fact
relates to information supplied by Company or Executive and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. Company and Executive agree that it
would not be just and equitable if contributions pursuant to this subsection
5(d) were to be determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in the first sentence of this subsection 5(d). The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) or expenses referred to in the first
sentence of this subsection 5(d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any claim, action or proceeding (which shall be
limited as provided in subsection 5(c) above if the indemnifying party has
assumed the defense of any such action in accordance with the provisions
thereof) which is the subject of this subsection 5(d). No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
against such party in respect of which a claim for contribution may be made
against' an indemnifying party under this subsection 5(d), such indemnified
party shall notify the indemnifying party in writing of the commencement
thereof if the notice specified in subsection 5(c) above has not been given
with respect to such action or proceeding; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party under this subsection 5(d) or otherwise, except to the
extent the indemnifying party shall have been materially prejudiced by such
failure to give notice.
SECTION 6. MISCELLANEOUS.
(a) Amendments and Waivers.
(1) Company's Consent. No waiver, amendment,
modification or supplement of any provision of this Addendum A, including this
subsection 6(a), that adversely affects Company shall be effective against
Company unless it is approved in writing by Company.
(2) Executive's Consent. No waiver, amendment,
modification or supplement of any provision of this Addendum A, including this
subsection 6(a), that adversely affects Executive shall be effective against
Executive unless it is approved in writing by Executive.
(b) Termination. The provisions of this Addendum A shall
terminate with respect to a Parity Registrable Share owned by Executive, other
than the provisions of Section 5 hereof, which shall survive any such
termination, when Executive ceases to own such Parity Registrable Share.
[END OF ADDENDUM]
10
<PAGE> 1
EXHIBIT 10.2
EMPLOYMENT, NONCOMPETITION, DEVELOPMENT AND CONFIDENTIALITY AGREEMENT
This employment, noncompetition, development and confidentiality
agreement (the "Agreement") is entered effective as of April 10, 1997 and
between POWERCERV CORPORATION, a Florida corporation (the "Company"), and MARC
J. FRATELLO ("Employee").
RECITALS
A. Company's business activities include software products of benefit
to a significant market, both nationwide and in an expanding international
arena. Among Company's business activities is the development and marketing of
client/server accounting software intended to be used by businesses in a
variety of situations. Due to the nature of Company's business and the market
for its business, it is very vulnerable to competition assisted by parties that
are or may have been employed by Company. In addition, in the course of its
business, Company develops, acquires and uses valuable confidential
information, trade secrets and other items. Due to the nature of Company's
business and the market for its business, its efforts and success are
significantly impacted by competition and innovation. Consequently, disclosure
of confidential information, trade secrets and other items of Company could
materially adversely affect it.
B. Employee is a long-time key executive of Company, but is currently
not subject to an employment agreement requiring him to continue to work for
Company. Employee executed a noncompetition, nondisclosure and development
agreement in favor of Company dated as of May 12, 1995 (the "Existing
Agreement"). Company considers the continued employment of Employee pursuant to
an employment agreement to be in the best interest of Company in order to
assist in, and provide continuity for, the management of Company and its
future.
C. The parties hereto desire to enter into an agreement setting forth
the terms and conditions of an employment relationship of between Employee and
Company and to replace and supersede Existing Agreement, all pursuant to the
terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the employment by Company of
Employee and other good and valuable consideration, the receipt and sufficiency
of which is acknowledged by Employee, Company and Employee agree:
1. Definitions.
a. An "Affiliate" of a Person means any entity that directly
or indirectly through one or more intermediaries controls, is controlled by, or
is under common control with such Person.
b. "Board" means the board of directors of Company.
c. A "Change of Control" means each time one of the following
events first occurs: (i) any Person and such Person's Affiliates and associates
(other than Marc Fratello, Roy E. Crippen, III, Harold Ross, their estates,
their wives, their parents, their lineal descendants, any Affiliates of such
party or any trust created for the benefit of one or more of such parties
during their lifetimes or any combination of the foregoing (such parties
collectively, the "Management Investors") becomes a "beneficial owner" (as
defined in Rule 13d-3 or any successor rule or regulation promulgated under the
Securities Exchange Act of 1934, as amended) of thirty three percent (33%) or
more of the total voting power of the Company's common stock and the Management
Investors are not the "beneficial owners" of at least thirty three percent or
more of the total voting of the Company's common stock; (ii) the effective date
of any reorganization, merger, or consolidation, in each case, with respect to
which the Management Investors do not, immediately thereafter, "beneficially
own" at least thirty-three percent of the combined voting power entitled to
vote generally in the election of directors of the reorganized, merged or
consolidated company's (or any successor entity's)
<PAGE> 2
then outstanding securities at any Person, Persons, Affiliates and Associates;
or (iii) a liquidation or dissolution of Company or the sale of all or at least
eighty percent of Company's assets.
d. "Compete" means engaging in or actively preparing to
engage in the same or any similar business as Company or any of its Affiliates
in any manner whatsoever, including, as a proprietor, partner, investor,
shareholder, director, officer, employee, consultant, independent contractor or
otherwise.
e. "Confidential Business Information" means all software,
source code, object code, manuals, flow charts, algorithms, documents, lists,
files, records, data, documentation of or relating to computer programs and
other information, items and materials developed, used or acquired by Company
or an Affiliate (including all information developed and acquired by Employee
while in the employment of Company), as it may exist from time to time,
including: (i) all information, items and other matters that now constitute or
may in the future constitute "trade secrets" under Florida Statutes 688.002(4)
or 812.081 as in effect on the date hereof or as defined under any other
current or future applicable law; (ii) all technology, internal manuals,
training materials, technical specifications, product information, contracts,
correspondence and other and similar items of Company or its Affiliates; (iii)
all "Copyrights" and "Inventions" (as such terms are defined herein) of Company
or its Affiliates; (iv) all electronic data processing, word processing, and/or
computer programs, runs and other electronic programs, products and records
generated by Company or its Affiliates; (v) all information acquired by Company
or its Affiliates relating to existing and reasonably anticipated business
transactions and arrangements; (vi) all market analyses and/or demographic
information or studies on the current and/or potential markets of interest to
Company or its Affiliates; (vii) all documents describing procedures or methods
employed by Company or its Affiliates in soliciting, procuring and handling
business, including shipping and billing procedures; (viii) all personnel files
of Company or its Affiliates; (ix) all general correspondence concerning
Company or its Affiliates; (x) all documents concerning or referring to the
financial aspects of Company or its Affiliates; (xi) all business agreements
and understandings between or among Company or its Affiliates and any other
Person; (xii) all documents provided to Company or its Affiliates in confidence
by third parties; (xiii) all legal documents and correspondence concerning
Company or its Affiliates; (xiv) all opinions, decisions, rulings and audits of
governmental agencies relating to Company or its Affiliates; (xv) all customer
and client lists of Company or its Affiliates; (xvi) all files concerning
customers and clients of Company or its Affiliates and the contents of such
files; (xvii) all office production and experimental records and other data
records of Company or its Affiliates; and (xviii) all other information
reasonably deemed to be "Confidential" by Company from time to time.
f. "Conflicting Product" means any product, computer program,
process or service of any Person other than Company or its Affiliates, now or
in the future in existence or under development, that significantly resembles
or that Competes with Company's or its Affiliates' products or products that
Company or its Affiliates has plans to develop and/or market while Employee is
employed by Company.
g. "Conflicting Organization" means any Person engaged in or
considering being engaged in the research of or development, production,
marketing or selling of a Conflicting Product or that Competes in any manner
with Company or its Affiliates during Employee's employment by Company or its
Affiliates or within a one (1) year period thereafter.
h. "Copyright" shall mean herein any and all worldwide vested
or inchoate rights in and to any and all original works of authorship which
relate to or describe any computational methods, documentation, apparatus,
software, algorithms or computer programs, whether they are in machine-readable
form, in English or any programming language. The meaning of such term shall
not be limited to items that have fulfilled the requirement of any notice
requirements under applicable law, but shall include all items in their
published or unpublished form under the Copyright Statutes of the United
States, The Universal Copyright Convention, The Berne Convention and/or any
other convention or treaty to which the United States is a party.
i. "Customer" means any and all Persons to whom Company or
any of its Affiliates has sold or shall sell or otherwise distribute any
product or service, whether or not for compensation, whether prior to the
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employment of Employee, during Employee's employment or for a period of one (1)
year after the termination of Employee's employment with Company or its
Affiliates.
j. "Good Reason" shall mean a material breach by Company of
this Agreement, which breach is not remedied within thirty (30) days after
Employee's delivery of written notice thereof to an executive officer of
Company.
k. "Invention" shall mean herein any designs, computer
programs (as defined in 17 U.S.C. 101), or configurations of any kind,
discovered, conceived, developed, written or produced, or any modifications
or any improvements to same, and shall not be limited to any definition
of "invention" contained in any United States patent law or other applicable
law.
l. "Just Cause" shall include the following: (1) a conviction
of or a plea of guilty or nolo contendere by Employee to a felony or
misdemeanor involving fraud, embezzlement, theft, or dishonesty or other
criminal conduct against Company, (2) habitual neglect of Employee's duties or
failure by Employee to perform or observe any substantial lawful obligation of
such employment that is not remedied within thirty (30) days after written
notice thereof from Company, or (3) any material breach by Employee of this
Agreement.
m. "Person" means an individual, partnership, corporation,
association, joint stock company, a trust, joint venture, an unincorporated
organization, or a governmental entity (or any department, agency or political
subdivision thereof).
2. Employment, termination.
a. Company hereby agrees to the continued employment of
Employee in the capacity of President and Chief Operating Officer, and Employee
hereby accepts such continued employment, all on the terms and conditions
hereafter set forth.
b. Employee's employment by Company may be terminated as set
forth below, but this Agreement and all of its terms and conditions, other than
the requirements for Employee to perform duties under Section 3 hereof and
Company to pay Employee a salary and any other benefits under Section 4 hereof,
shall remain in full force and effect after said employment is terminated:
(i) By Employee's death.
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(ii) By Company if Employee is "Totally
Disabled." For the purposes of this Agreement, Employee will be Totally
Disabled if he (1) has been declared legally incompetent by a final court
decree (the date of such decree being deemed to be the date on which the
disability occurred), (2) receives disability insurance benefits from any
disability income insurance policy maintained by Company for a period of six
(6) consecutive months, or (3) has been found to be disabled pursuant to a
Disability Determination. A Disability Determination means a finding that
Employee, because of a medically determinable disease, injury, or other mental
or physical disability, is unable to perform substantially all of his regular
duties to Company and that such disability is determined or reasonably expected
to last at least three (3) months. The Disability Determination shall be based
on the written opinion of the physician regularly attending Employee whose
disability is in question. If Company disagrees with the opinion of this
physician (the "First Physician"), it may engage at its own expense another
physician (the "Second Physician") to examine Employee. If the First and Second
Physicians agree in writing that Employee is or is not disabled, their written
opinion shall, except as otherwise set forth in this subsection, be conclusive
on the issue of disability. If the First and Second Physicians disagree on the
disability of Employee, they shall choose a third consulting physician (whose
expense shall be borne by Company), and the written opinion of a majority of
these three physicians shall, except as otherwise provided in this subsection,
be conclusive as to Employee's disability. The date of any written opinion
conclusively finding Employee to be disabled is the date of which the
disability will be deemed to have occurred. If there is a conclusive finding
that Employee is not Totally Disabled, Company shall have the right to request
additional Disability Determinations provided it agrees to pay all the expenses
of the Disability Determinations and does not request an additional Disability
Determination more frequently than once every three (3) months. In conjunction
with a Disability Determination, Employee hereby consents to any required
medical examination, and agrees to furnish any medical information requested by
any examining physician and to waive any applicable physician-patient privilege
that may arise because of such examination. All physicians except the First
Physician must be board-certified in the specialty most closely related to the
nature of the disability alleged to exist.
(iii) By mutual agreement of Employee and Company.
(iv) By Company for Just Cause.
(v) By Employee for Good Reason.
(vi) By Employee upon the occurrence of any
Change of Control.
(vii) By Company upon two months advance written
notice to Employee.
(viii) By Employee or Company at the end of
twelve (12) months from the general effective date hereof.
(ix) If this Agreement continues beyond the
initial twelve (12) month term hereof pursuant to the last sentence of this
subparagraph, by Employee upon a one (1) month advance written notice to
Company.
The effective date of any such termination shall be referred to herein as the
"Termination Date." Notwithstanding the foregoing, if this Agreement is not
terminated as provided herein on or before the expiration of such twelve month
initial term, this Agreement will be automatically renewed for successive one
year periods on the same terms and conditions set forth herein unless, at least
60 days prior to the expiration of the initial term or any subsequent one-year
renewal term, either party has given written notice to the other of its
intention not to renew this Agreement beyond the end of such term.
c. In the event of termination of this Agreement other than
for death, Employee hereby agrees to resign from all positions held in Company,
including, without limitations, any position as a director, officer, agent,
trustee or consultant of Company or any Affiliate of Company. If Employee's
employment is terminated (i) pursuant to
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<PAGE> 5
subsections (b)(iii) or (b)(viii) above; (ii) by Company pursuant to it
exercising its discretion under subsections (b)(ii) or (b)(vii) above; or
(iii) by Employee pursuant to subsections (b)(v), (vi) or (ix) above, Employee
shall be entitled to the following in lieu of any right Employee may otherwise
have for compensation, benefits and similar items: (i) $300,000, payable in
twenty-four (24) separate $12,500 payments made on or about the 15th and last
day of each month until paid in full, commencing two (2) weeks after the
Termination Date, (ii) continued participation in Company's health insurance
plan at the Company's expense for twelve (12) months from the Termination Date,
and (iii) receipt of that portion of any bonus payable to Employee pursuant to
Section 4 below that Employee has earned, but not been paid, as of such
Termination Date, as provided in Section 4(b) below. Company's obligations
under the preceding sentence are contingent upon Employee's continued
fulfillment of his obligations hereunder that survive his termination of
employment. If this Agreement is terminated for any other reason, Employee
shall cease to have any right to any additional compensation or benefits
hereunder, other than Employee's registration rights and indemnification rights
provided in Sections 5 and 6 hereof.
3. Duties. Employee shall perform all functions and duties consistent
with his position as President and Chief Operating Officer in a professional
manner as reasonably required by the Board. Employee agrees to comply with all
reasonable policies and procedures of Company generally applicable to
substantially all of its executives and the terms and conditions of this
Agreement. Employee shall be principally based at Company's corporate offices
in Tampa, Florida and shall travel as reasonably required in connection with
the performance of his duties hereunder. Employee shall not be required to
primarily work out of any facility not located in the general Tampa, Florida
area. During the term of this Agreement, except as approved by the Board from
time to time, Employee shall devote substantially all of his working time and
efforts to the business and affairs of Company. Employee shall, upon request of
Company, perform services for any parent or subsidiary of Company without any
compensation other than that provided for herein.
4. Compensation and benefits.As his entire compensation for all
services rendered to Company during the term of this Agreement, Employee shall
receive the compensation provided for in this Section, subject to withholding
and other applicable employment taxes:
a. Base Salary. Company will pay Employee an annual base
salary (the "Base Salary") of $180,000.00. The Base
Salary shall be retroactive to be effective as of January
1, 1997, notwithstanding the general effective date of
this Agreement, and a payment shall be paid to Employee
promptly after the execution of this Agreement to
reflect such retroactive effectiveness. The rate of the
Base Salary shall be subject to review on an annual
basis, commencing January 1, 1998, and Employee will be
eligible for salary increases at the discretion of
the Board. Employee's Base Salary (including any
approved increase in the amount thereof) shall not be
subject to reduction without Employee's consent. The
Base Salary shall be paid in 24 separate, equal payments
or otherwise as is consistent with the normal salary
payment cycle and procedure of Company generally
applicable to its employees. If the term of this
Agreement is renewed pursuant to section 2 hereof and the
Base Salary is increased for any such renewal term,
Employee and Company shall memorialize such change by a
written instrument executed by each such party.
b. Target Annual Bonus. Employee will be eligible to
potentially earn an annual bonus of at least
$120,000.00 (the "Target Annual Bonus"). The Target
Annual Bonus will be paid in one (1) lump sum, subject to
Company and/or Employee, as applicable, achieving
certain criteria as hereinafter set forth. References
below to target revenues and target operating income
relate to Company's projections approved by the Board no
less frequently than annually in advance of the period
for which the targets are being determined. The amount of
the potential Target Annual Bonus will be subject to
review on an annual basis, commencing January 1, 1998.
Actual revenues and actual operating income shall be
computed on a basis consistent with a method by which
target revenues and target operating
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<PAGE> 6
income for the related year were computed. Eligibility
for payments of the Target Annual Bonus to Employee shall
be for each calendar year during the term of this
Agreement beginning with the calendar year commencing
January 1, 1997 (notwithstanding that such date predates
the general effective date of this Agreement) and shall be
computed as follows:
(i) $42,000 will be earned upon Company achieving
target revenues for each calendar year;
(ii) $42,000 will be earned upon Company achieving
target operating income for each calendar year;
and
(iii) up to $36,000 will be earned upon approval
of the Board after its review of Employee's
presentation of strategic business
accomplishments of the Company for each
calendar year.
If a target referenced in subclause (i) or (ii) above is
not met in a particular calendar year, Employee shall not
receive for such calendar year the part of the Target
Annual Bonus tied to such target. However, notwithstanding
anything to the contrary in this subsection 4(b), if in any
calendar year Company exceeds the target revenues or target
operating income for such year, Employee shall be paid an
additional bonus computed as follows: for each 1% that
actual revenues for the calendar year exceed the target
revenues for such calendar year, and for each 1% that the
actual operating income for such calendar year exceeds the
targeted operating income for such year, Employee shall be
paid an additional $630.00. For example, if Company's
target revenues for a calendar year were $40,000,000 and
actual revenues for such year computed as provided for
herein were $50,000,000, then, as actual revenues would
have exceeded projected revenues by 25%, Employee would be
entitled to an additional Target Annual Bonus related to
target revenues in the amount of $15,750.00 (i.e., 25 x
$630.00). The presentation by Employee of Company's
strategic business accomplishments for a calendar year
shall be promptly evaluated by the Board and the potential
related bonus shall be determined by the Board in its
reasonable discretion. Employee shall be eligible to earn
all or a portion of such potential bonus as so determined
by the Board. All amounts payable pursuant to this
subsection 4(b) shall be paid to Employee promptly after
the amount payable is determined.
If the Termination Date occurs prior to the end of a
first calendar quarter during the term of this Agreement,
Employee shall not be entitled to any Target Annual Bonus
for such year. If such a Termination Date occurs after the
end of a first calendar quarter during the term of this
Agreement, Employee shall be entitled to a portion of the
Target Annual Bonus, determined as follows:
(y) Actual revenues and actual operating income for
the calendar quarters for such year that have
already ended prior to the Termination Date shall
be computed and compared to the Company's targets
for such periods referenced above in this
subparagraph. If such actual revenues equal the
Company's targets, Employee shall be entitled to
the Target Annual Bonus on the basis of $10,500.00
for each such calendar quarter that has been
completed for such year. If such actual operating
income equals the Company's targets, Employee
shall be entitled to the Target Annual Bonus on
the basis of $10,500.00 for each such calendar
quarter that has been completed for such year.
Similarly, Employee shall be entitled to a pro
rata portion of the potential additional bonus
referenced above in this
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<PAGE> 7
paragraph to the extent actual revenues or
operating income exceed target revenues and
target operating income for such quarters;
provided, however, that Employee shall only be
entitled to $157.50 for each one percent that
such actual items exceed target items for each
such completed quarter.
(z) Employee shall be entitled to the bonus
referenced in subclause (iii) above to the
extent approved by the Board after its
review of a presentation by Employee of the
strategic business accomplishments of the
Company for such year through the
Termination date.
If Employee was otherwise entitled to receive an Annual
Bonus for the calendar year prior to the calendar year in
which the Termination Date occurs, and such earned Annual
Bonus has not been paid to Employee by the Termination
Date, each earned Annual Bonus shall promptly be paid to
Employee in the ordinary course of business.
c. Automobile allowance. Company will pay Employee each
month a $1,000.00 monthly allowance for an automobile
owned or leased by Employee for use in connection with the
performance of Employee's duties under his Agreement.
Employee shall not have to account to Company how such
allowance is spent. Payment of such allowance for a month
shall be made in installments on the dates in such month
on which the installments of Employee's Base Salary are
made. Employee shall be responsible for all
maintenance, insurance, gasoline and other similar costs
associated with any automobile owned or leased by
Employee that is used in connection with his performance
of his duties under this Agreement.
d. Working facilities. Company shall provide Employee
in the general Tampa, Florida area, or as another
facility of Company chosen from time to time by Employee,
with office space, equipment, facilities, staffing and
services which are suitable to the position of President
and Chief Operating Officer and adequate for the
performance of Employee's duties hereunder.
e. Expenses. Company shall reimburse Employee for all
reasonable travel and other business expenses incurred by
him in furtherance of Company's business in accordance
with Company's standard written policies and procedures.
f. Vacation and holidays. Employee shall be entitled to such
vacation with pay and holidays with pay during each fiscal
year of Company as shall be approved by Company. The
amount of vacation and holidays provided to Employee shall
be no less than the amount given the senior executive
employees of Company.
g. Health, welfare and insurance plans. Subject to
eligibility requirements, Employee will be entitled to
participate in any plans, insurance policies or contracts
generally maintained by Company relating to insurance,
retirement, health, disability and other related
benefits. Employee's rights with respect to any such
benefits shall be subject to the provisions of the
relevant plans, policies or contracts providing such
benefits. Nothing contained herein shall be deemed to
impose any obligation on Company to adopt or maintain
any such plan, policy or contract. As of the date of
this Agreement, Company does not provide certain types
or levels of health, welfare and insurance plans or
benefit coverage to its executive employees, and, there
is no present intention by Company to change its
existing benefit policies. However, if Company changes
its policies relative to benefits, the health, welfare
and insurance plan and benefit coverage made available to
Employee will be no less than provided for the senior
executive employees of Company.
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5. Registration Rights. Employee shall have the rights and
obligations set forth in addendum A hereto with respect to the registration
of shares of common stock of Company for sale and the other matters addressed
therein.
6. Indemnification. Employee shall be, and hereby is, indemnified by
Company, to the fullest extent permitted by applicable law, for all costs,
claims, expenses (including reasonable attorney's fees and other litigation
costs), damages and losses incurred by Employee by reason of being employed, or
serving in any capacity, as an employee or officer of Company or any Affiliate
thereof.
7. Covenants against competition. Employee acknowledges that the
services Employee is to render are of a special and unusual character with
unique value to Company, the loss of which cannot be adequately compensated by
damages in action or in law. In view of the unique value to Company of the
services of Employee, because of the confidentiality of the information to be
obtained by or disclosed to Employee during Employee's employment by Company
and for other various reasons, as a material inducement to Company to enter
into this Agreement and to employ and pay Employee the compensation set forth
herein, Employee covenants and agrees that during Employee's employment and for
a period of one (1) year after Employee ceases to be employed by Company or its
Affiliates for any reason, other than the termination of this Agreement by
Employee for Good Reason, Employee shall not: (i) Compete with Company or any
Affiliate; (ii) solicit Company's Customers or the Customers of an Affiliate of
Company; (iii) directly or indirectly solicit for employment any employees of
Company or its Affiliates; and (iv) directly or indirectly work for or assist
any Conflicting Organization or any party or organization developing or
marketing any Conflicting Product; provided, however, if Employee's employment
is terminated by Employee pursuant to subsections 2(v), 2(vi) or 2(vii) herein,
the foregoing restrictions shall not prohibit Employee from supplying employee
services to or otherwise dealing with or having an arrangement with a third
party if Employee does not use any Confidential Information in connection
therewith.
8. Certain representations, agreements, etc. Employee represents and
warrants to Company that he is not a party to any other agreement (or subject
to any fiduciary obligation) which will materially interfere with Employee's
full compliance with this Agreement and that he has not entered into any
agreement or understanding, either written or oral, in conflict with the
provisions of this Agreement. Employee acknowledges and agrees that Company is
entering into this Agreement based upon its understanding that Employee will be
fully capable, without restriction, of performing his obligations under this
Agreement for Company, and that Company is relying upon the representations set
forth herein in connection with its entering into this Agreement with Employee.
Employee acknowledges and agrees that the Confidential Business Information is
confidential and a valuable, special and unique asset of Company's business
that gives Company advantage over its actual and potential, current and future
competitors, and Employee further admits, represents and agrees that: (a)
Company has implemented reasonable practices and measures to preserve and to
protect the confidentiality of all Confidential Business Information; (b)
notwithstanding the measures taken to protect the confidentiality of all
Confidential Business Information, due to the tasks Employee shall perform, the
pervasiveness of Confidential Business Information within Company and other
factors, Employee has or shall have access to, become exposed to and learn
Confidential Business Information; (c) Employee has been instructed about, and
knows and understands the value and importance to Company of, Confidential
Business Information; (d) Employee owes Company and its Affiliates a fiduciary
duty to preserve and protect all Confidential Business Information from all
unauthorized disclosure or unauthorized use; (e) Confidential Business
Information constitutes "trade secrets" under Sections 688.002(4) and 812.081,
Florida Statutes; (f) unauthorized disclosure or unauthorized use of such
Confidential Business Information would irreparably injure Company or its
Affiliates; (g) Sections 812.081 and 815.04, Florida Statutes, specifically
prohibits, or makes a criminal offense, unauthorized use or disclosure of
Confidential Business Information by Employee and/or by any person acting in
concert with Employee; (h) Employee shall not disclose to Company or its
Affiliates or induce Company to use any Inventions, Copyrights or confidential
information or trade secrets belonging to any third party; and (i) Employee has
no continuing obligation with respect to any confidentiality of or assignment
of any Inventions, Copyrights, confidential information or trade secrets
belonging to any previous employer or other Person.
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<PAGE> 9
9. Proprietary interest; prohibited acts. Employee understands and
agrees that all Confidential Business Information is and shall remain, at all
times, the sole property of Company and its Affiliates; that Employee obtains
no proprietary interest in any Confidential Business Information developed or
acquired in the course of Employee's employment with Company or its Affiliates;
and that it shall be no defense to an action brought to enforce this Agreement
that Employee developed or acquired, in whole or in part, the Confidential
Business Information disclosed or used without authorization. Employee
understands and agrees that all Confidential Business Information is to be
preserved and protected, is not to be disclosed or made available, directly or
indirectly, to any third Persons, whether by private communication or by public
address or publication, without prior written authorization of an executive
officer of Company, and is not to be used, directly or indirectly, for any
purpose unrelated to the business objectives of Company or its Affiliates
without prior written authorization of another executive officer of Company.
10. Assignment of interest and assistance. Employee does hereby
assign, and agrees in the future to assign, to Company, without any separate
remuneration or compensation other than the salary received or compensation
paid to Employee from time to time in the course of Employee's employment by
Company or its Affiliates, all of Employee's right, title and interest in and
to all Confidential Business Information conceived of or made by Employee,
together with all United States and foreign patent, copyright and other legal
protection in and with respect to any and all such Confidential Business
Information, whether copyrightable, patentable or otherwise protectable or not.
Employee acknowledges that any works of authorship that are made by Employee
(solely or jointly with others) during the term of this Agreement that are
protectable by copyright are "works made for hire," as that term is defined in
17 U.S.C. 101. At Company's reasonable request, during or after Employee's
employment with Company or its Affiliates, Employee shall assist Company in
preparing all patent, copyright and other requested applications for
Confidential Business Information and execute said applications and all other
documents required to obtain patents, copyrights and/or other protections for
such Confidential Business Information and/or vest title thereto in Company, at
Company's expense, but for no additional consideration to Employee. During or
after Employee's employment with Company or its Affiliates, upon reasonable
request by Company, Employee agrees to execute and deliver all appropriate
patent, copyright and other applications or filings and documents necessary or
desirable for securing all United States and foreign copyright, patent and
other protections on all Confidential Business Information, and to do, execute
and deliver any and all acts and instruments that may be necessary or desirable
to vest all such Confidential Business Information in Company or its written
designee, and to enable Company or its such written designee to obtain all such
letters of patent and other protections. Company shall be responsible for all
third-party costs reasonably required to be incurred in connection with the
foregoing. Employee agrees to render to Company or its written designee all
such assistance as may be required in the prosecution of all such patent,
copyright and other applications and applications for the re-issue of any such
items and in the prosecution or defense of all interferences that may be
declared involving any of said items. Employee further agrees to not contest
the validity of any patent, copyright or other application, United States or
foreign, that is issued to, or requested to be issued to, Company or its
written designee, in which Employee made any contribution, or in which Employee
participated in any way, and not to assist any other party in any way in
contesting the validity of any such items.
11. Actions upon termination of employment. Upon Employee's
termination of employment with Company, for any reason, Employee shall return
to Company all originals and copies of all documents, data and information
containing Confidential Business Information and all other confidential
proprietary work in Employee's possession or control or generated within the
scope of Employee's employment, which shall include any and all devices,
records, sketches, data, notes, memoranda, reports, proposals, lists, software
programs, equipment and other items (in whatever medium recorded or retained).
Employee shall not deliver, reproduce or in any way allow any such items to be
delivered to or used by any third parties without prior written consent by a
duly authorized representative of Company. During or after the termination of
employment, Employee shall not publish, release or otherwise make available to
any third parties any information describing any Confidential Business
Information without the prior written approval by a duly authorized
representative of Company. Company can notify any new employer of Employee of
Employee's rights and obligations under this Agreement. Employee understands
and agrees that Employee's obligations under this Agreement (other than to
continue to provide employee services to Company),
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<PAGE> 10
including the obligations to preserve and protect and not to disclose (or make
available to any Person) or use for purposes unrelated to the business
objectives of Company or its Affiliates, without prior written authorization of
an executive officer of Company, Confidential Business Information, continue
indefinitely and do not, under any circumstances or for any reason
(specifically including wrongful discharge), cease upon termination of
employment; and that, in the event of termination of Employee's employment for
any reason (specifically including wrongful discharge), such Confidential
Business Information shall remain the sole property of Company and its
Affiliates and shall be left in its entirety in the undisputed possession and
control of Company and its Affiliates after such termination.
12. Protected whether information of Company or Affiliate. Employee
recognizes, acknowledges and agrees that this Agreement is specifically and
expressly intended to protect, and does specifically and expressly protect, all
Confidential Business Information of Company, whether in the possession,
custody or control of Company or any Affiliate of Company.
13. Remedies. If an action should have to be brought by Company or its
Affiliates against Employee to enforce the provisions of this Agreement,
Employee recognizes, acknowledges and agrees that Company and its Affiliates
shall be entitled to all of the civil remedies provided by applicable Florida
Statutes. Nothing in this Agreement shall be construed as prohibiting Company
or its Affiliates from pursuing any other legal or equitable remedies available
to it for breach or threatened breach of the provisions of this Agreement. In
the event litigation arises in connection with this Agreement, the prevailing
party in such litigation shall be entitled to recover all reasonable attorneys'
fees, costs and expenses incurred in such litigation.
14. Arbitration; Consent to jurisdiction and venue. All controversies,
claims, disputes, and matters in question arising out of, or related to, this
Agreement or the breach of this Agreement, or the relations between the
signatories to this Agreement, shall be decided by arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration Association.
The parties agree that the arbitration shall take place exclusively in Tampa,
Florida, and shall be governed by the substantive law of the state of Florida.
Any award rendered by the arbitrator shall be final, and final judgment may be
entered upon the parties in accordance with applicable law in any court having
jurisdiction thereof, including a federal district court, pursuant to the
Federal Arbitration Act. The arbitrator may grant Company injunctive relief,
including mandatory injunctive relief, to protect the rights of Company, but
the arbitrator shall not be limited to such relief. This arbitration provision
shall not preclude Company from seeking temporary or preliminary injunctive
relief in a court of law to protect its rights, nor shall the filing of such an
action constitute any waiver by Company of its right to arbitrate. In
connection with the arbitration of any dispute between the signatories to this
Agreement, each signatory may utilize all methods of discovery authorized by
the Federal and Florida Rules of Civil Procedure. Employee hereby consents to
personal jurisdiction and venue, for any action brought by Company or its
Affiliates arising out of a breach or threatened breach of this Agreement, in
the United States District Court for the Middle District of Florida, Tampa
Division, or in the Circuit Court in and for Hillsborough County, Florida;
Employee agrees that any action arising under this Agreement or out of the
relationship established by this Agreement shall be brought only and
exclusively in the United States District Court for the Middle District of
Florida, Tampa Division, or in the Circuit Court in and for Hillsborough
County, Florida.
15. Acknowledgment. Employee hereby acknowledges that Employee has
been provided with a copy of this Agreement for review prior to signing it,
that Employee has been given the opportunity to have the Agreement reviewed by
Employee's own attorney prior to signing it, that Employee understands the
purposes and effects of the Agreement, and that Employee has been given a
signed copy of the Agreement for Employee's own records. Employee agrees that
the restrictions set forth in this Agreement, including, but not limited to,
the time period of restriction and areas of restriction, are fair and
reasonable and are reasonably required for the protection of the interest of
Company and its Affiliates.
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16. Miscellaneous.
a. Entire agreement. This Agreement constitutes the entire
agreement between Company and Employee pertaining to the subject matters
hereof, and it supersedes all negotiations, preliminary agreements, and all
prior and contemporaneous discussions and understandings of the signatories in
connection with the subject matters hereof, including, not limited to, the
Existing Agreement, which is hereby terminated and no longer binding and
enforceable against any party thereto. Except as otherwise provided, no
covenant, representation or condition not expressed in either this Agreement or
an amendment hereto made and executed in accordance with the provisions of
subsection (b) of this section shall be binding upon the signatories hereto or
shall affect or be effective to interpret, change, restrict or terminate the
provisions of this Agreement.
b. Amendments. No change, modification or termination of any
of the terms, provisions or conditions of this Agreement shall be effective
unless made in writing and signed or initialed by all signatories to this
Agreement.
c. Waiver of breach. The waiver by Company of a breach or
threatened breach of any provision of this Agreement by Employee shall not be
construed as a waiver of any subsequent breach of Employee.
d. Governing law. This Agreement shall be governed by and
construed in accordance with the domestic laws of the state of Florida without
giving effect to any choice or conflict of law provision or rule (whether of
the state of Florida or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the state of Florida.
e. Separability. If any section, subsection or provision of
this Agreement, or the application of such section, subsection or provision, is
held invalid, the remainder of the Agreement and the application of such
section, subsection or provision to Persons or circumstances other than those
with respect to which it is held invalid, shall not be affected thereby. If any
of the provisions of this Agreement relating to the time period and/or areas of
activity restricted and/or related aspects hereof shall be declared by a court
of competent jurisdiction to exceed the maximum restrictiveness such court
deems reasonable and enforceable, the time period and/or areas of activity
restricted and/or related aspects deemed reasonable and enforceable by the
court shall become and thereafter be the maximum restriction in such regard,
and the restriction shall remain enforceable in such jurisdiction to the
fullest extent deemed reasonable by such court. Such court's determination
shall not affect the validity and enforceability of this Agreement in any other
jurisdiction.
f. Headings and captions. The titles or captions of sections
and subsections contained in this Agreement are provided for convenience of
reference only, and they shall not be considered a part of this Agreement; such
titles or captions are not intended to define, limit, extend, explain or
describe the scope or extent of this Agreement or any of its terms, provisions,
representations, warranties, conditions, etc. in any manner or way whatsoever.
g. Gender and number. All pronouns and variations thereof
shall be deemed to refer to the masculine, feminine or neuter, to the singular
or plural, as the identity of the person or entity or persons or entities may
require.
h. Continuance of agreement. The rights, responsibilities and
duties of Company and Employee, and the covenants and agreements contained in
this Agreement, shall survive the execution of this Agreement, shall continue
to bind the parties to this Agreement, shall continue in full force and effect
until each and every obligation of the parties pursuant to this Agreement shall
have been performed, and shall be binding upon and inure to the benefit of the
successors and assigns of the parties. Notwithstanding the foregoing, Employee
shall not assign Employee's duties, rights or obligations under this Agreement
to any party without the prior written consent of Company. This Agreement shall
not confer any rights or remedies upon any Person other than Company and its
Affiliates, and their successors and assigns, and Employee.
11
<PAGE> 12
i. Construction. Company and Employee have participated
jointly in the negotiation and/or drafting of this Agreement. If an ambiguity
or question of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by Company and Employee, and no presumption or
burden of proof shall arise favoring or disfavoring either party by virtue of
the authorship of any of the provisions of this Agreement. The words "include"
and "included" shall mean include, without limitation, and including, without
limitation, respectively.
IN WITNESS WHEREOF, Company and Employee have executed and delivered
this Agreement to be effective as of the day and year provided above, except as
specifically provided in Section 4(a) hereof.
WITNESSES: COMPANY:
POWERCERV CORPORATION
/s/ Karen L. Jaderborg By: /s/ Stephen M. Wagman
- ------------------------------ --------------------------------
Print Name: Karen L. Jaderborg Print Name: Stephen M. Wagman
------------------ -----------------------
Title: Chief Counsel
----------------------------
/s/ Roy E. Crippen
- ------------------------------
Print Name: Roy E. Crippen
------------------
EMPLOYEE:
/s/ Karen L. Jaderborg /s/ Marc J. Fratello
- ------------------------------ -----------------------------------
Print Name: Karen L. Jaderborg Marc J. Fratello
------------------ -----------------------------------
/s/ Roy E. Crippen
- ------------------------------
Print Name: Roy E. Crippen
------------------
12
<PAGE> 13
STATE OF FLORIDA)
COUNTY OF HILLSBOROUGH)
The foregoing instrument was acknowledged before me this 17th day of
April, 1997 by Stephen M. Wagman as Chief Counsel of POWERCERV CORPORATION, a
Florida corporation, on behalf of the corporation. Such person is personally
known to me or has presented N/A as identification.
/s/ Elena Crosby
-------------------------------
Notary Public
Print Name: Elena Crosby
-------------------
(SEAL)
My Commission Expires: March 31, 2000
Commission No.: CC543881
STATE OF FLORIDA)
COUNTY OF HILLSBOROUGH)
The foregoing instrument was acknowledged before me this 17th day of
April, 1997 by Marc J. Fratello. Such person is personally known to me or has
presented N/A as identification.
/s/ Elena Crosby
-------------------------------
Notary Public
Print Name: Elena Crosby
-------------------
(SEAL)
My Commission Expires: March 31, 2000
Commission No.: CC543881
13
<PAGE> 14
ADDENDUM A TO EMPLOYMENT AGREEMENT
REGISTRATION RIGHTS
PROVISIONS
<PAGE> 15
ADDENDUM A
REGISTRATION RIGHTS PROVISIONS
SECTION 1. DEFINITIONS. As used in this Addendum A, the following
terms have the meanings specified below and include the plural as well as the
singular:
"ABS" means ABS Capital Partners, L.P.
"ABS Registrable Shares" means (i) all Common Stock issued directly or
indirectly in respect of any Convertible Shares issued to ABS or its successors
or assigns, (ii) all Common Stock issued with respect to any securities
referred to in clause (i) above by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger,
consolidation, reorganization or otherwise, and (iii) all other Common Stock
held from time to time by any holder of Common Stock described in clause (i) or
(ii) above.
"Affiliate" means, with respect to any specified Person, any other
Person directly or indirectly controlling, controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing; provided, that, for purposes of Section 5, any
"Person" or "group" (each as defined in Section 13(d)(3) or 14(d)(2) of the
Exchange Act) that is the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act) of more than 10% of the capital stock having ordinary voting
power in the election of directors of such Person (if a corporation) or more
than lot of the partnership or other ownership interests of such Person (if
other than a corporation) shall be deemed to control such Person.
"Board" means the board of directors of Company.
A "Class" of Registrable Shares means any of the Senior Registrable
Shares and the Parity Registrable Shares. Registrable Shares that are part of
any Class (the "Transferred Class") that are transferred to or otherwise become
held by any holder of Registrable Shares of any other Class (the "Other Class")
shall cease to be Registrable Shares of the Transferred Class and thereafter be
Registrable Shares of the Other Class (unless and until they are subsequently
transferred to or otherwise become held by any holder of Registrable Shares of
another Class or cease to be Registrable Shares).
"Common Stock" means Company's common stock, par value $.001 per
share, and all securities of any issuer issued, in exchange for, or as a
dividend or other distribution on, outstanding shares of the Common Stock.
"Company" means PowerCerv Corporation, a Florida corporation.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Executive" means Marc J. Fratello, a current executive employee of
Company.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof and any court, panel, judge, board, bureau,
commission, agency or other entity, body or other Person exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
<PAGE> 16
"Holder" means any holder of Registrable Shares.
"Management Investors" means Harold Ross, Marc Fratello and Roy E.
Crippen, III.
"Management Registrable Shares" means all Common Stock held from time
to time by any Management Investor and their respective successors and assigns.
"NASD" means the National Association of Securities Dealers, Inc.
"Other Senior Registrable Shares" means (i) all Common Stock and all
Common Stock issuable with respect to any Rights designated from time to time
by Company as "Other Senior Registrable Shares," (ii) all Common Stock issued
upon conversion of any Common Stock referred to in clause (i) above, (iii) all
Common Stock issued with respect to any securities referred to in clause (i) or
(ii) above by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation, reorganization
or otherwise, and (iv) all other Common Stock held from time to time by any
holder of Common Stock described in clause (i), (ii) or (iii) above.
"Parity Holder" means each of the Management Investors (inclining
Executive) and any other party designated from time to time by Company as a
"Parity Holder" who shall have registration rights with respect to Parity
Registrable Shares having priority on Piggy Back Registration generally on
parity in all material respects pursuant to paragraph 2(e) hereof.
"Parity Registrable Shares" means all Common Stock held from time to
time by a Parity Holder that is designated from time to time by Company as
"Parity Registrable Shares;" provided, however, that the shares issuable to a
Management Investor shall be deemed to be Parity Registrable Shares only so as
long as such stock is held by each such respective party or any Affiliate or
family member of such party.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization, or a governmental entity (or any department, agency, or political
subdivision thereof).
"Registrable Shares" means the Senior Registrable Shares and the
Registrable Shares. As to any particular Registrable Shares, such securities
shall cease to be Registrable Shares (and shall cease to be Parity Registrable
Shares, ABS Registrable Shares, Summit Investors Registrable Shares, Summit
Ventures Registrable Shares, Management Registrable Shares, and the Other
Senior Registrable Shares, as the case may be) when they have been distributed
to the public pursuant to an offering registered under the Securities Act, sold
to the public through a broker, dealer or market maker in compliance with Rule
144 under the Securities Act (or any similar rule then in force) or repurchased
by Company. For purposes of this Addendum, a Person shall be deemed to be a
Holder of Registrable Shares, and the Registrable Shares shall be deemed to be
in existence, whenever such Person has the right to acquire directly or
indirectly such Registrable Shares upon conversion or exercise of other
securities, disregarding any restrictions or limitations upon such conversion
or exercise, whether or not such acquisition has actually been effected (it
being understood that Company shall not be required to include in any
registration hereunder any securities other than Common Stock ).
"Registration Expenses" means all expenses incident to Company's
performance of or compliance with this Addendum A, including, without
limitation, all SEC and stock exchange or NASD registration and filing fees and
expenses, fees and expenses of compliance with securities or blue sky laws
(including, without limitation, reasonable fees and disbursements of counsel
for the underwriters in connection with blue sky qualifications of the
Registrable Shares), printing expenses, messenger and delivery expenses, the
fees and expenses incurred in connection with the listing of the securities to
be registered on each securities exchange or national market system on which
similar
2
<PAGE> 17
securities issued by Company are then listed, fees and disbursements of counsel
for Company and all independent certified public accountants (including the
expenses of any annual audit, special audit, if necessary, and "cold comfort"
letters required by or incident to such performance and compliance), the fees
and disbursements of underwriters customarily paid by issuers or sellers of
securities, the fees and expenses of any special experts retained by Company in
connection with such registration, and fees and expenses of other persons
retained by Company; provided that Company shall not be responsible for any
underwriting discounts or commissions, fees and expenses of counsel to
Executive, or transfer taxes, if any, attributable to the sale of Executive's
Parity Registrable Shares.
"Rights" shall mean, with respect to any Person, any subscription,
option, warrant, right, convertible security or other agreement, instrument or
commitment of any character obligating (contingently or absolutely) such Person
to issue or sell any capital stock or other securities.
"SEC" means the Securities and Exchange Commission or any successor
thereof.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Selling Holder" means a Holder of the Registrable Shares intended
consistent with the terms hereof to covered by a registration statement.
"Senior Registrable Shares" means the ABS Registrable Shares, the
Summit Investors Registrable Shares, the Summit Ventures Registrable Shares and
the Other Senior Registrable Shares.
"Summit Investors" means Summit Investors II, L.P.
"Summit Investors Registrable Shares" means (i) all Common Stock
issued directly or indirectly in respect of any Convertible Shares issued to
Summit Investors or its successors or assigns, (ii) all Common Stock issued
with respect to any securities referred to in clause (i) above by way of a
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation, reorganization or otherwise, and (iii)
all other Common Stock held from time to time by any holder of Common Stock or
any described in clause (i) or (ii) above.
"Summit Ventures" means Summit Ventures III, L.P.
"Summit Ventures Registrable Shares" means (i) all Common Stock issued
directly or indirectly in respect of any Convertible Shares issued to Summit
Ventures or its successors or assigns, (ii) all Common Stock issued with
respect to any securities referred to in clause (i) above by way of a stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation, reorganization or otherwise, and (iii)
all other Common Stock held from time to time by any holder of Common Stock
described in clause (i) or (ii) above.
3
<PAGE> 18
SECTION 2. PIGGYBACK REGISTRATION RIGHTS.
(a) Right to Company Piggyback. If Executive owns Parity
Registrable Shares then representing in excess of two percent (2%) of the
outstanding shares of Common Stock of Company and Company proposes to file a
registration statement under the Securities Act with respect to its Common
Stock (a "Registration Statement"), other than a registration statement on Form
S-8, Form S-4 or any successor forms, and pursuant to which Common Stock is
proposed to be sold (a "Proposed Registration"), and the registration form to
be used may be used for the registration of Registrable Shares (a "Piggyback
Registration"), then Company shall give written notice to Executive no less
than twenty (20) days before the initial filing date with the SEC. Such notice
shall: (i) subject to the provisions of this Section 2, offer Executive the
opportunity to include in such filing such number of Executive's Parity
Registrable Shares as Executive may request; and (ii) specify the kind and
number of securities proposed to be registered and the proposed distribution
arrangements.
(b) Requests to Piggyback. If Executive holds Parity Registrable
Shares and desires to have any such Parity Registrable Shares registered under
this Section 2, it shall advise Company in writing (a "Piggyback Registration
Request") within ten (10) days after the date Company sends the notice pursuant
to subsection 2(a) hereof (the "Piggyback Notice"). Such notice shall set forth
the amount of Executive's Parity Registrable Shares that Executive desires to
have registered. Executive shall be permitted to withdraw all or any part of
its Registrable Shares from a Piggyback Registration at any time prior to the
effective date of the related registration statement upon giving five (5) days
prior written notice of such withdrawal to Company.
(c) Distribution Methods. Subject to subsection 2(d) below, if
Executive delivers a Piggyback Registration Request in accordance with
subsection 2(b) hereof, it may select any method or methods of distribution of
the Executive's Parity Registrable Shares that it has requested to be included
in the Piggyback Registration.
(d) Change in Distribution Method. If the Proposed Registration
is for (or includes) an underwritten public offering of securities and
Executive has selected any other method of distribution for any of Executive's
Parity Registrable Shares that it has requested be included in the Piggyback
Registration and if the managing underwriter of such offering (the "Managing
Underwriter") advises Company in writing that, in its opinion, the distribution
of such Executive's Parity Registrable Shares by such method shall materially
adversely affect the success of such offering of securities, then Executive
shall not be entitled to include in such Piggyback Registration such number of
such Registrable Shares that the Managing Underwriter determines shall
materially adversely affect the success of such offering (the
"Non-Participating Shares"), unless Executive elects, by written notice to
Company within five (5) days after receipt of such written advice, to include,
subject to subsection 2(e) hereof, in such underwritten public offering either
all the Executive's Parity Registrable Shares requested to be registered by it
or the Non-Participating Shares. If the Proposed Registration is not (and does
not include) an underwritten public offering and such Proposed Registration
includes securities to be sold for the account of Company or the Holder of any
Senior Registrable Shares, and if Executive has selected any method of
distribution of any of the Executive's Parity Registrable Shares that is
materially different from the method selected by Company or the Holder of any
Senior Registrable Shares for the distribution of such securities to be sold
for its account, and if the Board shall reasonably determine (and shall notify
Executive in writing of such determination) that the distribution of such
Parity Registrable Shares by such method shall materially adversely affect the
success of such sale of all such securities, then Executive may select, by
written notice to Company within five (5) days, any other method of
distribution that in the reasonable judgment of the Board shall not have such
effect.
(e) Priority on Piggyback Registrations. If the Proposed
Registration is for (or includes) an underwritten offering, Company shall
permit Executive to include all of his Parity Registrable Shares in such
offering on the same terms and conditions as any similar securities included
therein. If, in the case of a Proposed Registration that is for (or
4
<PAGE> 19
that includes) an underwritten offering, the Managing Underwriter advises
Executive in writing that in its opinion, or, in the case of a Proposed
Registration that is not for (and does not include) an underwritten offering of
securities to be distributed for the account of Company or the Holder of any
Senior Registrable Shares, the Board shall reasonably determine (and notify
Executive in writing of such determination) that the amount or kind of
securities proposed to be included in such offering (including, but not limited
to, Registrable Shares to be included in accordance with subsections 2(c) and
2(d) above) shall materially adversely affect the success of the offering of
all securities proposed to be distributed for the account of Company or the
Holder of any Senior Registrable Shares, then Company shall include in such
offering the amount of securities, if any, that, in the opinion of the Managing
Underwriter or the reasonable judgment of the Board (as the case may be) can be
sold as follows:
(1) first, the securities Company propose(s) to sell for
its own account and any Senior Registrable Shares allocated amongst such
parties as Company determines;
(2) second, the Parity Registrable Shares requested to be
included in such offering by Executive or Parity Holders who have delivered
Piggyback Registration Requests; and
(3) third, the securities held by Persons other than the
Holders of Senior Registrable Shares and Parity Holders requested to be
included in such offering.
To the extent that Company has been advised or has determined (as the case may
be) that the number of the Executive's Parity Registrable Shares and other
securities requested to be included in such offering exceeds the number that
can be sold in such offering without having a materially adverse effect on the
success of such offering, Company shall include in such registration, prior to
the inclusion of any securities that are not Registrable Shares, the number of
Registrable Shares requested to be included that, in the opinion of the
Managing Underwriter or the reasonable judgement of the Board (as the case may
be), can be sold in such offering without having such a materially adverse
effect (the "Available Shares"), allocated first among Company and Holders of
Senior Registrable Shares (as Company may determine), second among the Holders
of Parity Registrable Shares who have delivered Piggy Back Registration
Requests pro rata amongst such Holders on the basis of the number of securities
requested to be included in such offering by such Holders. If after giving
effect to clause (1) and (2) above, there are additional Available Shares, then
such Available Shares shall be allocated pro rata among the Persons requesting
securities to be registered in such offering pursuant to clause (3) above on
the basis of the number of securities requested to be included in such offering
by such Persons (or as otherwise determined by Company).
(f) Selection of Underwriters. If any Piggyback Registration is
for an underwritten offering, Company shall engage, on terms and conditions
customary for such purposes, an investment banking firm to serve as Managing
Underwriter for such offering.
(g) Abandonment. Company shall have the right, upon prompt
written notice to Executive delivering a Piggyback Registration Request, to
abandon a Piggyback Registration.
SECTION 3. EXPENSES. Company shall pay all Registration Expenses in
connection with each registration pursuant to Section 2 hereof, whether or not
such registration becomes effective under the Securities Act; provided,
however, that Executive shall pay all underwriting discounts and commissions
and transfer taxes, if any, relating to the sale of Executive's Parity
Registrable Shares pursuant to any such registration; provided, further, that
Executive shall pay its pro rata share of the incremental registration filing
fees attributable to the inclusion of his Parity Registrable Shares in any such
registration pursuant to Section 2 hereof and shall pay all fees and
disbursements of its counsel incurred in connection therewith.
5
<PAGE> 20
SECTION 4. REGISTRATION PROCEDURES.
(a) With respect to any Piggyback Registration, Company, subject
to subsections 2(e) above, respectively, shall use reasonable efforts to effect
the registration of all Executive's Parity Registrable Shares that Executive
has requested to be included therein in accordance, subject to subsections
2(d), with the intended method(s) of distribution thereof reasonably promptly,
and in connection with any such request, Company shall do the following:
(1) prepare and file with the SEC a registration
statement on any form for which Company then qualifies and that is available
for the registration of the Registrable Shares requested to be registered in
accordance with the intended method(s) of distribution thereof, include
(subject to subsections 2(d) and 2(e) above) in the registration on such form
all Registrable Shares requested to be included, and use reasonable efforts to
cause such registration statement to become effective;
(2) prepare and file with the SEC such amendments and
post-effective amendments and supplements to the registration statement or any
prospectus as may be necessary to keep the registration statement effective for
a period that shall terminate on the earlier of forty-five (45) days after the
registration statement is officially declared effective by the SEC or when all
Executive's Parity Registrable Shares covered by such registration statement
have been disposed of; and comply with all applicable rules and regulations of
the SEC and with the provisions of the Securities Act applicable to Company
with respect to the disposition of all Executive's Parity Registrable Shares
covered by such registration statement during such period in accordance with
the intended methods of disposition by Executive set forth in such registration
statement (as it may be amended) or any supplement to any such prospectus;
(3) notify Executive, at any time when a prospectus
relating to Executive's Parity Registrable Shares covered by the registration
statement is required to be delivered under the Securities Act, of the
occurrence of any event as a result of which the preliminary prospectus or
prospectus included in such registration statement or any prospectus supplement
contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein in light of the circumstances
under which they were made, not misleading, and Company shall, as promptly as
reasonably practicable thereafter, prepare and file with the SEC and furnish to
Executive a supplement or amendment to such preliminary prospectus, prospectus
or prospectus supplement so that, as thereafter delivered to the prospective
purchasers of Executive' Parity Registrable Shares being distributed by
Executive, such preliminary prospectus, prospectus or prospectus supplement
shall not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
(4) if requested by Executive, Company shall cooperate
and shall promptly incorporate in a prospectus supplement or post-effective
amendment to the registration statement at Executive's cost and expense such
information concerning Executive and its intended method of distribution as it
reasonably requests to be included therein (and which is not inappropriate, in
the reasonable judgment of Company, after consultation with its outside legal
counsel), including, without limitation, with respect to any change in the
intended method of distribution, the amount or kind of Parity Registrable
Shares being offered by Executive, the offering price for such Parity
Registrable Shares or any other terms of the offering or distribution of the
Registrable Shares and make all required filings of such prospectus supplement
or post-effective amendment as soon as possible after being notified of the
matters to be incorporated in such prospectus supplement or post-effective
amendment;
6
<PAGE> 21
(5) on or prior to the date on which the registration
statement is declared effective, use reasonable efforts to register or qualify,
and cooperate with Executive and its counsel, in connection with the
registration or qualification of the Executive's Parity Registrable Shares
covered by the registration statement for offer and sale under the securities
or "blue sky" laws of each state and other U.S. jurisdiction as Executive
reasonably (in light of the intended plan of distribution) requests in writing,
use reasonable efforts to keep each such registration or qualification
effective, including through new filings, amendments or renewals, during the
period the registration statement is required to be kept effective and do other
acts or things reasonably necessary or advisable to permit the disposition in
all such jurisdictions of the Executive's Parity Registrable Shares; however,
Company shall not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to so qualify, (ii) take
any action that would subject it to general service of process in any
jurisdiction where it would not otherwise be subject to such general service of
process or (iii) subject itself to general taxation in any jurisdiction where
it would not otherwise be subject;
(6) cooperate with Executive, its legal counsel and any
other interested party (including any interested broker-dealer) in making any
filings or submissions required to be made, and the furnishing of appropriate
information in connection therewith, with the NASD;
(7) use reasonable efforts to cause all Executive's
Parity Registrable Shares included in such registration statement to be listed,
by the date of the first sale of Registrable Shares pursuant to such
registration statement, on each securities exchange or interdealer quotation
system on which similar securities issued by Company then are listed or
proposed to be listed, if any;
(8) take other steps reasonably necessary to effect the
registration and qualification of the Executive's Parity Registrable Shares
included in such Piggyback Registration and to facilitate the disposition
thereof in accordance with the respective plans of distribution of Executive
permitted hereunder.
(b) Each Selling Holder, upon receipt of any notice from Company
of the occurrence of any event of the kind described in clause 3 of subsection
4(a) above, shall forthwith discontinue disposition of the Executive's Parity
Registrable Shares pursuant to the registration statement covering such
Executive's Parity Registrable Shares until Executive's receipt of the copies
of the supplemented or amended preliminary prospectus or prospectus
contemplated by such subsection and, if so directed by Company, Executive shall
deliver to Company (at the expense of Company) all copies, other than permanent
file copies then in Executive's possession, of the most recent preliminary
prospectus or prospectus covering such Executive's Parity Registrable Shares at
the time of receipt of such notice. Executive, upon receipt of any notice from
Company of the issuance of any stop order or blue sky order shall forthwith, in
the case of any stop order, discontinue disposition of Executive's Parity
Registrable Shares pursuant to the registration statement covering such
Executive's Parity Registrable Shares or, in the case of any blue sky order,
discontinue disposition of the Executive's Parity Registrable Shares in the
applicable jurisdiction, until advised in writing of the lifting or withdrawal
of such order. In the event Company shall give any notice pursuant to this
subsection 4(b), Company shall extend the period during which such registration
statement shall be maintained effective (including the period referred to in
subsection 4(a)(2) above) by the number of days during the period from and
including the date of the giving of such notice to and including (i) in the
case of a notice pursuant to the first sentence of this subsection, the date
when Executive shall have received the copies of the supplemented or amended
preliminary prospectus or prospectus contemplated by clause (4) of subsection
4(a) above or (ii) in the case of a notice pursuant to the second sentence of
this subsection, the lifting or withdrawal of such stop order or blue sky
order, as the case may be.
(c) Not less than eight (8) days before the expected filing date
of each registration statement pursuant to this Addendum A, Company shall
notify Executive of the information reasonably required from Executive (the
"Requested Information") if Executive has timely delivered a Piggyback
Registration Request to Company. If Company has not received, on or prior to
the fifth (5th) day before the expected filing date, the Requested Information
from Executive, Company may file the registration statement without including
Executive's Parity Registrable Shares of
7
<PAGE> 22
Executive. The failure to include in any registration statement Executive's
Parity Registrable Shares of Executive (with regard to that registration
statement) shall not in and of itself result in any liability on the part of
Company to Executive. In addition, Executive shall take all such other acts,
deliver such other information and execute and deliver such documents and
instruments in connection with the matters referenced herein (including, but
not limited to, a custody agreement, power of attorney, lock-up letter and
underwriting agreement), as the Company may request.
SECTION 5. INDEMNIFICATION.
(a) Indemnification by Company. Company shall indemnify and hold
harmless Executive, each Affiliate of Executive and their respective directors,
officers, stockholders and partners and each other Person, if any, who controls
Executive within the meaning of the Securities Act, against any and all losses,
claims, damages or liabilities, joint or several, and expenses (including the
costs of investigation and the fees and disbursements of counsel) to which any
of them may become subject under the Securities Act, the Exchange Act or other
federal or state law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) or expenses arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in any registration
statement as originally filed or in any amendment thereof, or in any
preliminary, final or summary prospectus, or in any amendment thereof or
supplement thereto, or (ii) any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (iii) any violation by Company of any federal or
state law, rule or regulation or common law applicable to Company and relating
to action required of or inaction by Company in connection with any such
registration, and Company shall reimburse any such indemnified party for any
legal or any other expenses reasonably incurred by it in connection with
investigating or, subject to subsection 5(c) below, defending any such loss,
claim, damage, liability, action or proceeding; however, Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or expense (x) arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in the
registration statement or in any amendment thereof or in any preliminary, final
or summary prospectus or in any amendment thereof or supplement thereto in
reliance upon and in conformity with written information furnished to Company
by or on behalf of Executive specifically for use in the registration statement
or prospectus (or an amendment thereof or supplement thereto) or (y) results
from the fact that Executive sold Parity Registrable Shares to a Person to whom
there was not sent or given, at or prior to the written confirmation of such
sale, a copy of the final prospectus or of the final prospectus as then amended
or supplemented, whichever is most recent, if Company had previously furnished
copies hereof to Executive and such final prospectus, as then amended or
supplemented, corrected such misstatement or omission.
(b) Indemnification by Holders. Executive shall indemnify and
hold harmless (in the same manner and to the same extent as set forth in
subsection 5(a), including, without limitation, clause (y) of the proviso set
forth therein) Company and its directors, officers and controlling persons and
each underwriter, dealer manager or similar securities industry professional
participating in the distribution of Executive's Parity Registrable Shares and
such securities industry professional's respective directors, officers,
partners and controlling persons, with respect to any statement or alleged
statement in or omission or alleged omission from such registration statement,
any preliminary, final or summary prospectus contained therein, or any
amendment or supplement, if such statement or alleged statement or omission or
alleged omission (i) was made in reliance upon and in conformity with written
information furnished to Company by or on behalf of Executive specifically for
use in such registration statement or prospectus (or amendment thereof or
supplement thereto) or (ii) (solely in the case of an offering in which no
underwriter, selling broker, dealer manager or similar industry professional
participates) results from the fact that Executive sold Parity Registrable
Shares to a Person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the final prospectus or of the
final prospectus as then amended or supplemented, whichever is most recent, if
Company had previously furnished copies thereof to such Holder and such final
prospectus, as then amended or supplemented, corrected such misstatements or
omission.
8
<PAGE> 23
(c) Notice of Claims, etc. Promptly after receipt by an
indemnified party under subsection 5(a) or (b) of notice of any claim or the
commencement of any action or proceeding subject to indemnification thereunder,
the indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under either of such subsections, promptly
notify the indemnifying party in writing of the claim or the commencement of
the action or proceeding; provided that the failure to so notify the
indemnifying party shall not relieve the indemnifying party from any liability
which it may have to an indemnified party under subsection 5(a) or (b) or
otherwise, except to the extent the indemnifying party shall have been
materially prejudiced by such failure to give notice. If any such claim,
action or proceeding shall be brought against an indemnified party, and it
shall timely notify the indemnifying party, the indemnifying party shall be
entitled to participate in, and, to the extent that it wishes, jointly with any
other similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim, action or proceeding, the indemnifying party shall not
be liable to the indemnified party under, subsection 5(a) or (b) for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of investigation; however,
such indemnified party shall have the right to employ separate counsel in any
such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be the expense of such indemnified party unless
(1) the indemnifying party has agreed to pay such fees and expenses, (2) the
indemnifying party shall have failed to assume the defense of such claim,
action or proceeding or has failed to employ counsel reasonably satisfactory to
such indemnified party in any such claim, action or proceeding or (3) the named
parties to any such action or proceeding (including any impleaded parties)
include both such indemnified party and the indemnifying party, and such
indemnified party shall have been advised by counsel that there may be one or
more legal defenses available to such indemnified party which are inconsistent
or in conflict with those available to the indemnifying party (in which case,
if such indemnified party notifies the indemnifying party in writing that it
elects to employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such
action or proceeding on behalf of such indemnified party), it being understood,
however, that the indemnifying party shall not, in connection with any one such
action or proceeding or separate but substantially similar or related actions
or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys at any time for such indemnified party
and any other indemnified parties similarly situated, which firm shall be
designated in writing by such indemnified parties. The indemnifying party
shall not be liable for any settlement of any such action or proceeding
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent, or if there be a final
judgment for the plaintiff in any such action or proceeding, the indemnifying
party agrees to indemnify and hold harmless such indemnified parties from and
against any loss or liability by reason of such settlement or judgment.
(d) Contribution. If the indemnification provided for in
subsection 5(a) or (b) is unavailable or insufficient to hold harmless an
indemnified party, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of the losses, claims,
damages or, liabilities (or actions or proceedings in respect thereof) or
expenses referred to in subsection 5(a) or (b), (i) in such proportion as is
appropriate to reflect the relative benefits received by Company on the one
hand and Executive on other hand from the sale of the Executive's Parity
Registrable Shares, or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of Company on the one hand and Executive on the other hand
in connection with statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
or expenses, as well as any other relevant equitable considerations. The
relative benefits received by Company on the one hand and Executive on the
other hand shall be deemed to be in the same proportion as the total net
proceeds from the issuance and sale of such Registrable Shares (before
deducting expenses) received by Company bear to the total compensation or
profit (before deducting expenses) received or realized by Executive from the
resale of such Registrable Shares. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of
9
<PAGE> 24
a material fact or the omission or alleged omission to state a material fact
relates to information supplied by Company or Executive and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. Company and Executive agree that it
would not be just and equitable if contributions pursuant to this subsection
5(d) were to be determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in the first sentence of this subsection 5(d). The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) or expenses referred to in the first
sentence of this subsection 5(d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any claim, action or proceeding (which shall be
limited as provided in subsection 5(c) above if the indemnifying party has
assumed the defense of any such action in accordance with the provisions
thereof) which is the subject of this subsection 5(d). No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
against such party in respect of which a claim for contribution may be made
against' an indemnifying party under this subsection 5(d), such indemnified
party shall notify the indemnifying party in writing of the commencement
thereof if the notice specified in subsection 5(c) above has not been given
with respect to such action or proceeding; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party under this subsection 5(d) or otherwise, except to the
extent the indemnifying party shall have been materially prejudiced by such
failure to give notice.
SECTION 6. MISCELLANEOUS.
(a) Amendments and Waivers.
(1) Company's Consent. No waiver, amendment,
modification or supplement of any provision of this Addendum A, including this
subsection 6(a), that adversely affects Company shall be effective against
Company unless it is approved in writing by Company.
(2) Executive's Consent. No waiver, amendment,
modification or supplement of any provision of this Addendum A, including this
subsection 6(a), that adversely affects Executive shall be effective against
Executive unless it is approved in writing by Executive.
(b) Termination. The provisions of this Addendum A shall
terminate with respect to a Parity Registrable Share owned by Executive, other
than the provisions of Section 5 hereof, which shall survive any such
termination, when Executive ceases to own such Parity Registrable Share.
[END OF ADDENDUM]
10
<PAGE> 1
EXHIBIT 10.3
EMPLOYMENT, NONCOMPETITION, DEVELOPMENT AND CONFIDENTIALITY AGREEMENT
This employment, noncompetition, development and confidentiality
agreement (the "Agreement") is entered effective as of April 10, 1997 and
between POWERCERV CORPORATION, a Florida corporation (the "Company"), and ROY
E. CRIPPEN, III ("Employee").
RECITALS
A. Company's business activities include software products of
benefit to a significant market, both nationwide and in an expanding
international arena. Among Company's business activities is the development
and marketing of client/server accounting software intended to be used by
businesses in a variety of situations. Due to the nature of Company's business
and the market for its business, it is very vulnerable to competition assisted
by parties that are or may have been employed by Company. In addition, in the
course of its business, Company develops, acquires and uses valuable
confidential information, trade secrets and other items. Due to the nature of
Company's business and the market for its business, its efforts and success are
significantly impacted by competition and innovation. Consequently, disclosure
of confidential information, trade secrets and other items of Company could
materially adversely affect it.
B. Employee is a long-time key executive of Company, but is
currently not subject to an employment agreement requiring him to continue to
work for Company. Employee executed a noncompetition, nondisclosure and
development agreement in favor of Company dated as of May 12, 1995 (the
"Existing Agreement"). Company considers the continued employment of Employee
pursuant to an employment agreement to be in the best interest of Company in
order to assist in, and provide continuity for, the management of Company and
its future.
C. The parties hereto desire to enter into an agreement setting
forth the terms and conditions of an employment relationship of between
Employee and Company and to replace and supersede Existing Agreement, all
pursuant to the terms and subject to the conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the employment by Company of
Employee and other good and valuable consideration, the receipt and sufficiency
of which is acknowledged by Employee, Company and Employee agree:
1. Definitions.
a. An "Affiliate" of a Person means any entity that
directly or indirectly through one or more intermediaries controls, is
controlled by, or is under common control with such Person.
b. "Board" means the board of directors of Company.
c. A "Change of Control" means each time one of the
following events first occurs: (i) any Person and such Person's Affiliates and
associates (other than Marc Fratello, Roy E. Crippen, III, Harold Ross, their
estates, their wives, their parents, their lineal descendants, any Affiliates
of such party or any trust created for the benefit of one or more of such
parties during their lifetimes or any combination of the foregoing (such
parties collectively, the "Management Investors") becomes a "beneficial owner"
(as defined in Rule 13d-3 or any successor rule or regulation promulgated under
the Securities Exchange Act of 1934, as amended) of thirty three percent (33%)
or more of the total voting power of the Company's common stock and the
Management Investors are not the "beneficial owners" of at least thirty three
percent or more of the total voting of the Company's common stock; (ii) the
effective date of any reorganization, merger, or consolidation, in each case,
with respect to which the Management Investors do not, immediately thereafter,
"beneficially own" at least thirty-three percent of the combined voting power
entitled to vote generally in the election of directors of the reorganized,
merged or consolidated company's (or any successor entity's)
<PAGE> 2
then outstanding securities at any Person, Persons, Affiliates and Associates;
or (iii) a liquidation or dissolution of Company or the sale of all or at least
eighty percent of Company's assets.
d. "Compete" means engaging in or actively preparing to
engage in the same or any similar business as Company or any of its Affiliates
in any manner whatsoever, including, as a proprietor, partner, investor,
shareholder, director, officer, employee, consultant, independent contractor or
otherwise.
e. "Confidential Business Information" means all
software, source code, object code, manuals, flow charts, algorithms,
documents, lists, files, records, data, documentation of or relating to
computer programs and other information, items and materials developed, used or
acquired by Company or an Affiliate (including all information developed and
acquired by Employee while in the employment of Company), as it may exist from
time to time, including: (i) all information, items and other matters that now
constitute or may in the future constitute "trade secrets" under Florida
Statutes 688.002(4) or 812.081 as in effect on the date hereof or as defined
under any other current or future applicable law; (ii) all technology, internal
manuals, training materials, technical specifications, product information,
contracts, correspondence and other and similar items of Company or its
Affiliates; (iii) all "Copyrights" and "Inventions" (as such terms are defined
herein) of Company or its Affiliates; (iv) all electronic data processing, word
processing, and/or computer programs, runs and other electronic programs,
products and records generated by Company or its Affiliates; (v) all
information acquired by Company or its Affiliates relating to existing and
reasonably anticipated business transactions and arrangements; (vi) all market
analyses and/or demographic information or studies on the current and/or
potential markets of interest to Company or its Affiliates; (vii) all documents
describing procedures or methods employed by Company or its Affiliates in
soliciting, procuring and handling business, including shipping and billing
procedures; (viii) all personnel files of Company or its Affiliates; (ix) all
general correspondence concerning Company or its Affiliates; (x) all documents
concerning or referring to the financial aspects of Company or its Affiliates;
(xi) all business agreements and understandings between or among Company or its
Affiliates and any other Person; (xii) all documents provided to Company or its
Affiliates in confidence by third parties; (xiii) all legal documents and
correspondence concerning Company or its Affiliates; (xiv) all opinions,
decisions, rulings and audits of governmental agencies relating to Company or
its Affiliates; (xv) all customer and client lists of Company or its
Affiliates; (xvi) all files concerning customers and clients of Company or its
Affiliates and the contents of such files; (xvii) all office production and
experimental records and other data records of Company or its Affiliates; and
(xviii) all other information reasonably deemed to be "Confidential" by Company
from time to time.
f. "Conflicting Product" means any product, computer
program, process or service of any Person other than Company or its Affiliates,
now or in the future in existence or under development, that significantly
resembles or that Competes with Company's or its Affiliates' products or
products that Company or its Affiliates has plans to develop and/or market
while Employee is employed by Company.
g. "Conflicting Organization" means any Person engaged
in or considering being engaged in the research of or development, production,
marketing or selling of a Conflicting Product or that Competes in any manner
with Company or its Affiliates during Employee's employment by Company or its
Affiliates or within a one (1) year period thereafter.
h. "Copyright" shall mean herein any and all worldwide
vested or inchoate rights in and to any and all original works of authorship
which relate to or describe any computational methods, documentation,
apparatus, software, algorithms or computer programs, whether they are in
machine-readable form, in English or any programming language. The meaning of
such term shall not be limited to items that have fulfilled the requirement of
any notice requirements under applicable law, but shall include all items in
their published or unpublished form under the Copyright Statutes of the United
States, The Universal Copyright Convention, The Berne Convention and/or any
other convention or treaty to which the United States is a party.
i. "Customer" means any and all Persons to whom Company
or any of its Affiliates has sold or shall sell or otherwise distribute any
product or service, whether or not for compensation, whether prior to the
2
<PAGE> 3
employment of Employee, during Employee's employment or for a period of one (1)
year after the termination of Employee's employment with Company or its
Affiliates.
j. "Good Reason" shall mean a material breach by Company
of this Agreement, which breach is not remedied within thirty (30) days after
Employee's delivery of written notice thereof to an executive officer of
Company.
k. "Invention" shall mean herein any designs, computer
programs (as defined in 17 U.S.C. 101), or configurations of any kind,
discovered, conceived, developed, written or produced, or any modifications or
any improvements to same, and shall not be limited to any definition of
"invention" contained in any United States patent law or other applicable law.
l. "Just Cause" shall include the following: (1) a
conviction of or a plea of guilty or nolo contendere by Employee to a felony or
misdemeanor involving fraud, embezzlement, theft, or dishonesty or other
criminal conduct against Company, (2) habitual neglect of Employee's duties or
failure by Employee to perform or observe any substantial lawful obligation of
such employment that is not remedied within thirty (30) days after written
notice thereof from Company, or (3) any material breach by Employee of this
Agreement.
m. "Person" means an individual, partnership,
corporation, association, joint stock company, a trust, joint venture, an
unincorporated organization, or a governmental entity (or any department,
agency or political subdivision thereof).
2. Employment, termination.
a. Company hereby agrees to the continued employment of
Employee in the capacity of Executive Vice President and Chief Technology
Officer, and Employee hereby accepts such continued employment, all on the
terms and conditions hereafter set forth.
b. Employee's employment by Company may be terminated as
set forth below, but this Agreement and all of its terms and conditions, other
than the requirements for Employee to perform duties under Section 3 hereof and
Company to pay Employee a salary and any other benefits under Section 4 hereof,
shall remain in full force and effect after said employment is terminated:
(i) By Employee's death.
3
<PAGE> 4
(ii) By Company if Employee is "Totally Disabled."
For the purposes of this Agreement, Employee will be Totally Disabled if he (1)
has been declared legally incompetent by a final court decree (the date of such
decree being deemed to be the date on which the disability occurred), (2)
receives disability insurance benefits from any disability income insurance
policy maintained by Company for a period of six (6) consecutive months, or (3)
has been found to be disabled pursuant to a Disability Determination. A
Disability Determination means a finding that Employee, because of a medically
determinable disease, injury, or other mental or physical disability, is unable
to perform substantially all of his regular duties to Company and that such
disability is determined or reasonably expected to last at least three (3)
months. The Disability Determination shall be based on the written opinion of
the physician regularly attending Employee whose disability is in question. If
Company disagrees with the opinion of this physician (the "First Physician"),
it may engage at its own expense another physician (the "Second Physician") to
examine Employee. If the First and Second Physicians agree in writing that
Employee is or is not disabled, their written opinion shall, except as
otherwise set forth in this subsection, be conclusive on the issue of
disability. If the First and Second Physicians disagree on the disability of
Employee, they shall choose a third consulting physician (whose expense shall
be borne by Company), and the written opinion of a majority of these three
physicians shall, except as otherwise provided in this subsection, be
conclusive as to Employee's disability. The date of any written opinion
conclusively finding Employee to be disabled is the date of which the
disability will be deemed to have occurred. If there is a conclusive finding
that Employee is not Totally Disabled, Company shall have the right to request
additional Disability Determinations provided it agrees to pay all the expenses
of the Disability Determinations and does not request an additional Disability
Determination more frequently than once every three (3) months. In conjunction
with a Disability Determination, Employee hereby consents to any required
medical examination, and agrees to furnish any medical information requested by
any examining physician and to waive any applicable physician-patient privilege
that may arise because of such examination. All physicians except the First
Physician must be board-certified in the specialty most closely related to the
nature of the disability alleged to exist.
(iii) By mutual agreement of Employee and Company.
(iv) By Company for Just Cause.
(v) By Employee for Good Reason.
(vi) By Employee upon the occurrence of any Change
of Control.
(vii) By Company upon two months advance written
notice to Employee.
(viii) By Employee or Company at the end of twelve
(12) months from the general effective date hereof.
(ix) If this Agreement continues beyond the
initial twelve (12) month term hereof pursuant to the last sentence of this
subparagraph, by Employee upon a one (1) month advance written notice to
Company.
The effective date of any such termination shall be referred to herein as the
"Termination Date." Notwithstanding the foregoing, if this Agreement is not
terminated as provided herein on or before the expiration of such twelve month
initial term, this Agreement will be automatically renewed for successive one
year periods on the same terms and conditions set forth herein unless, at least
60 days prior to the expiration of the initial term or any subsequent one-year
renewal term, either party has given written notice to the other of its
intention not to renew this Agreement beyond the end of such term.
c. In the event of termination of this Agreement other
than for death, Employee hereby agrees to resign from all positions held in
Company, including, without limitations, any position as a director, officer,
agent, trustee or consultant of Company or any Affiliate of Company. If
Employee's employment is terminated (i) pursuant to
4
<PAGE> 5
subsections (b)(iii) or (b)(viii) above; (ii) by Company pursuant to it
exercising its discretion under subsections (b)(ii) or (b)(vii) above; or (iii)
by Employee pursuant to subsections (b)(v), (vi) or (ix) above, Employee shall
be entitled to the following in lieu of any right Employee may otherwise have
for compensation, benefits and similar items: (i) $300,000, payable in
twenty-four (24) separate $12,500 payments made on or about the 15th and last
day of each month until paid in full, commencing two (2) weeks after the
Termination Date, (ii) continued participation in Company's health insurance
plan at the Company's expense for twelve (12) months from the Termination Date,
and (iii) receipt of that portion of any bonus payable to Employee pursuant to
Section 4 below that Employee has earned, but not been paid, as of such
Termination Date, as provided in Section 4(b) below. Company's obligations
under the preceding sentence are contingent upon Employee's continued
fulfillment of his obligations hereunder that survive his termination of
employment. If this Agreement is terminated for any other reason, Employee
shall cease to have any right to any additional compensation or benefits
hereunder, other than Employee's registration rights and indemnification rights
provided in Sections 5 and 6 hereof.
3. Duties. Employee shall perform all functions and duties
consistent with his position as Executive Vice President and Chief Technology
Officer in a professional manner as reasonably required by the Board. Employee
agrees to comply with all reasonable policies and procedures of Company
generally applicable to substantially all of its executives and the terms and
conditions of this Agreement. Employee shall be principally based at
Company's corporate offices in Tampa, Florida and shall travel as reasonably
required in connection with the performance of his duties hereunder. Employee
shall not be required to primarily work out of any facility not located in the
general Tampa, Florida area. During the term of this Agreement, except as
approved by the Board from time to time, Employee shall devote substantially
all of his working time and efforts to the business and affairs of Company.
Employee shall, upon request of Company, perform services for any parent or
subsidiary of Company without any compensation other than that provided for
herein.
4. Compensation and benefits. As his entire compensation
for all services rendered to Company during the term of this Agreement,
Employee shall receive the compensation provided for in this Section, subject
to withholding and other applicable employment taxes:
a. Base Salary. Company will pay Employee an annual
base salary (the "Base Salary") of $180,000.00. The
Base Salary shall be retroactive to be effective as
of January 1, 1997, notwithstanding the general
effective date of this Agreement, and a payment shall
be paid to Employee promptly after the execution of
this Agreement to reflect such retroactive
effectiveness. The rate of the Base Salary shall be
subject to review on an annual basis, commencing
January 1, 1998, and Employee will be eligible for
salary increases at the discretion of the Board.
Employee's Base Salary (including any approved
increase in the amount thereof) shall not be subject
to reduction without Employee's consent. The Base
Salary shall be paid in 24 separate, equal payments
or otherwise as is consistent with the normal salary
payment cycle and procedure of Company generally
applicable to its employees. If the term of this
Agreement is renewed pursuant to section 2 hereof and
the Base Salary is increased for any such renewal
term, Employee and Company shall memorialize such
change by a written instrument executed by each such
party.
b. Target Annual Bonus. Employee will be eligible to
potentially earn an annual bonus of at least
$120,000.00 (the "Target Annual Bonus"). The Target
Annual Bonus will be paid in one (1) lump sum,
subject to Company and/or Employee, as applicable,
achieving certain criteria as hereinafter set forth.
References below to target revenues and target
operating income relate to Company's projections
approved by the Board no less frequently than
annually in advance of the period for which the
targets are being determined. The amount of the
potential Target Annual Bonus will be subject to
review on an annual basis, commencing January 1,
1998. Actual revenues and actual operating
5
<PAGE> 6
income shall be computed on a basis consistent with a
method by which target revenues and target operating
income for the related year were computed.
Eligibility for payments of the Target Annual Bonus
to Employee shall be for each calendar year during
the term of this Agreement beginning with the
calendar year commencing January 1, 1997
(notwithstanding that such date predates the general
effective date of this Agreement) and shall be
computed as follows:
(i) $42,000 will be earned upon Company achieving
target revenues for each calendar year;
(ii) $42,000 will be earned upon Company achieving
target operating income for each calendar
year; and
(iii) up to $36,000 will be earned upon approval of
the Board after its review of Employee's
presentation of strategic business
accomplishments of the Company for each
calendar year.
If a target referenced in subclause (i) or (ii) above
is not met in a particular calendar year, Employee
shall not receive for such calendar year the part of
the Target Annual Bonus tied to such target.
However, notwithstanding anything to the contrary in
this subsection 4(b), if in any calendar year Company
exceeds the target revenues or target operating
income for such year, Employee shall be paid an
additional bonus computed as follows: for each 1%
that actual revenues for the calendar year exceed the
target revenues for such calendar year, and for each
1% that the actual operating income for such calendar
year exceeds the targeted operating income for such
year, Employee shall be paid an additional $630.00.
For example, if Company's target revenues for a
calendar year were $40,000,000 and actual revenues
for such year computed as provided for herein were
$50,000,000, then, as actual revenues would have
exceeded projected revenues by 25%, Employee would be
entitled to an additional Target Annual Bonus related
to target revenues in the amount of $15,750.00 (i.e.,
25 x $630.00). The presentation by Employee of
Company's strategic business accomplishments for a
calendar year shall be promptly evaluated by the
Board and the potential related bonus shall be
determined by the Board in its reasonable discretion.
Employee shall be eligible to earn all or a portion
of such potential bonus as so determined by the
Board. All amounts payable pursuant to this
subsection 4(b) shall be paid to Employee promptly
after the amount payable is determined.
If the Termination Date occurs prior to the end of a
first calendar quarter during the term of this
Agreement, Employee shall not be entitled to any
Target Annual Bonus for such year. If such a
Termination Date occurs after the end of a first
calendar quarter during the term of this Agreement,
Employee shall be entitled to a portion of the Target
Annual Bonus, determined as follows:
(y) Actual revenues and actual operating income
for the calendar quarters for such year that
have already ended prior to the Termination
Date shall be computed and compared to the
Company's targets for such periods referenced
above in this subparagraph. If such actual
revenues equal the Company's targets,
Employee shall be entitled to the Target
Annual Bonus on the basis of $10,500.00 for
each such calendar quarter that has been
completed for such year. If such actual
operating income equals the Company's
targets, Employee shall be entitled to the
Target Annual Bonus on the basis of
$10,500.00 for each such calendar quarter
that has been completed for such year.
Similarly, Employee shall be entitled to a
pro rata portion of the potential additional
bonus referenced above in this
6
<PAGE> 7
paragraph to the extent actual revenues or
operating income exceed target revenues and
target operating income for such quarters;
provided, however, that Employee shall only
be entitled to $157.50 for each one percent
that such actual items exceed target items
for each such completed quarter.
(z) Employee shall be entitled to the bonus
referenced in subclause (iii) above to the
extent approved by the Board after its review
of a presentation by Employee of the
strategic business accomplishments of the
Company for such year through the Termination
date.
If Employee was otherwise entitled to receive an
Annual Bonus for the calendar year prior to the
calendar year in which the Termination Date occurs,
and such earned Annual Bonus has not been paid to
Employee by the Termination Date, each earned Annual
Bonus shall promptly be paid to Employee in the
ordinary course of business.
c. Automobile allowance. Company will pay Employee
each month a $1,000.00 monthly allowance for an
automobile owned or leased by Employee for use in
connection with the performance of Employee's duties
under his Agreement. Employee shall not have to
account to Company how such allowance is spent.
Payment of such allowance for a month shall be made
in installments on the dates in such month on which
the installments of Employee's Base Salary are made.
Employee shall be responsible for all maintenance,
insurance, gasoline and other similar costs
associated with any automobile owned or leased by
Employee that is used in connection with his
performance of his duties under this Agreement.
d. Working facilities. Company shall provide
Employee in the general Tampa, Florida area, or as
another facility of Company chosen from time to time
by Employee, with office space, equipment,
facilities, staffing and services which are suitable
to the position of Executive Vice President and Chief
Technology Officer and adequate for the performance
of Employee's duties hereunder.
e. Expenses. Company shall reimburse Employee for
all reasonable travel and other business expenses
incurred by him in furtherance of Company's business
in accordance with Company's standard written
policies and procedures.
f. Vacation and holidays. Employee shall be entitled
to such vacation with pay and holidays with pay
during each fiscal year of Company as shall be
approved by Company. The amount of vacation and
holidays provided to Employee shall be no less than
the amount given the senior executive employees of
Company.
g. Health, welfare and insurance plans. Subject to
eligibility requirements, Employee will be entitled
to participate in any plans, insurance policies or
contracts generally maintained by Company relating to
insurance, retirement, health, disability and other
related benefits. Employee's rights with respect to
any such benefits shall be subject to the provisions
of the relevant plans, policies or contracts
providing such benefits. Nothing contained herein
shall be deemed to impose any obligation on Company
to adopt or maintain any such plan, policy or
contract. As of the date of this Agreement, Company
does not provide certain types or levels of health,
welfare and insurance plans or benefit coverage to
its executive employees, and, there is no present
intention by Company to change its existing benefit
policies. However, if Company changes its policies
relative to benefits, the health, welfare and
insurance plan and benefit coverage made available to
Employee will be no less than provided for the senior
executive employees of Company.
7
<PAGE> 8
5. Registration Rights. Employee shall have the rights and
obligations set forth in addendum A hereto with respect to the registration of
shares of common stock of Company for sale and the other matters addressed
therein.
6. Indemnification. Employee shall be, and hereby is,
indemnified by Company, to the fullest extent permitted by applicable law, for
all costs, claims, expenses (including reasonable attorney's fees and other
litigation costs), damages and losses incurred by Employee by reason of being
employed, or serving in any capacity, as an employee or officer of Company or
any Affiliate thereof.
7. Covenants against competition. Employee acknowledges that the
services Employee is to render are of a special and unusual character with
unique value to Company, the loss of which cannot be adequately compensated by
damages in action or in law. In view of the unique value to Company of the
services of Employee, because of the confidentiality of the information to be
obtained by or disclosed to Employee during Employee's employment by Company
and for other various reasons, as a material inducement to Company to enter
into this Agreement and to employ and pay Employee the compensation set forth
herein, Employee covenants and agrees that during Employee's employment and for
a period of one (1) year after Employee ceases to be employed by Company or its
Affiliates for any reason, other than the termination of this Agreement by
Employee for Good Reason, Employee shall not: (i) Compete with Company or any
Affiliate; (ii) solicit Company's Customers or the Customers of an Affiliate of
Company; (iii) directly or indirectly solicit for employment any employees of
Company or its Affiliates; and (iv) directly or indirectly work for or assist
any Conflicting Organization or any party or organization developing or
marketing any Conflicting Product; provided, however, if Employee's employment
is terminated by Employee pursuant to subsections 2(v), 2(vi) or 2(vii) herein,
the foregoing restrictions shall not prohibit Employee from supplying employee
services to or otherwise dealing with or having an arrangement with a third
party if Employee does not use any Confidential Information in connection
therewith.
8. Certain representations, agreements, etc. Employee represents
and warrants to Company that he is not a party to any other agreement (or
subject to any fiduciary obligation) which will materially interfere with
Employee's full compliance with this Agreement and that he has not entered into
any agreement or understanding, either written or oral, in conflict with the
provisions of this Agreement. Employee acknowledges and agrees that Company is
entering into this Agreement based upon its understanding that Employee will be
fully capable, without restriction, of performing his obligations under this
Agreement for Company, and that Company is relying upon the representations set
forth herein in connection with its entering into this Agreement with Employee.
Employee acknowledges and agrees that the Confidential Business Information is
confidential and a valuable, special and unique asset of Company's business
that gives Company advantage over its actual and potential, current and future
competitors, and Employee further admits, represents and agrees that: (a)
Company has implemented reasonable practices and measures to preserve and to
protect the confidentiality of all Confidential Business Information; (b)
notwithstanding the measures taken to protect the confidentiality of all
Confidential Business Information, due to the tasks Employee shall perform, the
pervasiveness of Confidential Business Information within Company and other
factors, Employee has or shall have access to, become exposed to and learn
Confidential Business Information; (c) Employee has been instructed about, and
knows and understands the value and importance to Company of, Confidential
Business Information; (d) Employee owes Company and its Affiliates a fiduciary
duty to preserve and protect all Confidential Business Information from all
unauthorized disclosure or unauthorized use; (e) Confidential Business
Information constitutes "trade secrets" under Sections 688.002(4) and 812.081,
Florida Statutes; (f) unauthorized disclosure or unauthorized use of such
Confidential Business Information would irreparably injure Company or its
Affiliates; (g) Sections 812.081 and 815.04, Florida Statutes, specifically
prohibits, or makes a criminal offense, unauthorized use or disclosure of
Confidential Business Information by Employee and/or by any person acting in
concert with Employee; (h) Employee shall not disclose to Company or its
Affiliates or induce Company to use any Inventions, Copyrights or confidential
information or trade secrets belonging to any third party; and (i) Employee has
no continuing obligation with respect to any confidentiality of or assignment
of any Inventions, Copyrights, confidential information or trade secrets
belonging to any previous employer or other Person.
8
<PAGE> 9
9. Proprietary interest; prohibited acts. Employee understands
and agrees that all Confidential Business Information is and shall remain, at
all times, the sole property of Company and its Affiliates; that Employee
obtains no proprietary interest in any Confidential Business Information
developed or acquired in the course of Employee's employment with Company or
its Affiliates; and that it shall be no defense to an action brought to enforce
this Agreement that Employee developed or acquired, in whole or in part, the
Confidential Business Information disclosed or used without authorization.
Employee understands and agrees that all Confidential Business Information is
to be preserved and protected, is not to be disclosed or made available,
directly or indirectly, to any third Persons, whether by private communication
or by public address or publication, without prior written authorization of an
executive officer of Company, and is not to be used, directly or indirectly,
for any purpose unrelated to the business objectives of Company or its
Affiliates without prior written authorization of another executive officer of
Company.
10. Assignment of interest and assistance. Employee does hereby
assign, and agrees in the future to assign, to Company, without any separate
remuneration or compensation other than the salary received or compensation
paid to Employee from time to time in the course of Employee's employment by
Company or its Affiliates, all of Employee's right, title and interest in and
to all Confidential Business Information conceived of or made by Employee,
together with all United States and foreign patent, copyright and other legal
protection in and with respect to any and all such Confidential Business
Information, whether copyrightable, patentable or otherwise protectable or not.
Employee acknowledges that any works of authorship that are made by Employee
(solely or jointly with others) during the term of this Agreement that are
protectable by copyright are "works made for hire," as that term is defined in
17 U.S.C. 101. At Company's reasonable request, during or after Employee's
employment with Company or its Affiliates, Employee shall assist Company in
preparing all patent, copyright and other requested applications for
Confidential Business Information and execute said applications and all other
documents required to obtain patents, copyrights and/or other protections for
such Confidential Business Information and/or vest title thereto in Company, at
Company's expense, but for no additional consideration to Employee. During or
after Employee's employment with Company or its Affiliates, upon reasonable
request by Company, Employee agrees to execute and deliver all appropriate
patent, copyright and other applications or filings and documents necessary or
desirable for securing all United States and foreign copyright, patent and
other protections on all Confidential Business Information, and to do, execute
and deliver any and all acts and instruments that may be necessary or desirable
to vest all such Confidential Business Information in Company or its written
designee, and to enable Company or its such written designee to obtain all such
letters of patent and other protections. Company shall be responsible for all
third-party costs reasonably required to be incurred in connection with the
foregoing. Employee agrees to render to Company or its written designee all
such assistance as may be required in the prosecution of all such patent,
copyright and other applications and applications for the re-issue of any such
items and in the prosecution or defense of all interferences that may be
declared involving any of said items. Employee further agrees to not contest
the validity of any patent, copyright or other application, United States or
foreign, that is issued to, or requested to be issued to, Company or its
written designee, in which Employee made any contribution, or in which Employee
participated in any way, and not to assist any other party in any way in
contesting the validity of any such items.
11. Actions upon termination of employment. Upon Employee's
termination of employment with Company, for any reason, Employee shall return
to Company all originals and copies of all documents, data and information
containing Confidential Business Information and all other confidential
proprietary work in Employee's possession or control or generated within the
scope of Employee's employment, which shall include any and all devices,
records, sketches, data, notes, memoranda, reports, proposals, lists, software
programs, equipment and other items (in whatever medium recorded or retained).
Employee shall not deliver, reproduce or in any way allow any such items to be
delivered to or used by any third parties without prior written consent by a
duly authorized representative of Company. During or after the termination of
employment, Employee shall not publish, release or otherwise make available to
any third parties any information describing any Confidential Business
Information without the prior written approval by a duly authorized
representative of Company. Company can notify any new employer of Employee of
Employee's rights and obligations under this Agreement. Employee understands
and agrees that Employee's obligations under this Agreement (other than to
continue to provide employee services to Company),
9
<PAGE> 10
including the obligations to preserve and protect and not to disclose (or make
available to any Person) or use for purposes unrelated to the business
objectives of Company or its Affiliates, without prior written authorization of
an executive officer of Company, Confidential Business Information, continue
indefinitely and do not, under any circumstances or for any reason
(specifically including wrongful discharge), cease upon termination of
employment; and that, in the event of termination of Employee's employment for
any reason (specifically including wrongful discharge), such Confidential
Business Information shall remain the sole property of Company and its
Affiliates and shall be left in its entirety in the undisputed possession and
control of Company and its Affiliates after such termination.
12. Protected whether information of Company or Affiliate.
Employee recognizes, acknowledges and agrees that this Agreement is
specifically and expressly intended to protect, and does specifically and
expressly protect, all Confidential Business Information of Company, whether in
the possession, custody or control of Company or any Affiliate of Company.
13. Remedies. If an action should have to be brought by Company
or its Affiliates against Employee to enforce the provisions of this Agreement,
Employee recognizes, acknowledges and agrees that Company and its Affiliates
shall be entitled to all of the civil remedies provided by applicable Florida
Statutes. Nothing in this Agreement shall be construed as prohibiting Company
or its Affiliates from pursuing any other legal or equitable remedies available
to it for breach or threatened breach of the provisions of this Agreement. In
the event litigation arises in connection with this Agreement, the prevailing
party in such litigation shall be entitled to recover all reasonable attorneys'
fees, costs and expenses incurred in such litigation.
14. Arbitration; Consent to jurisdiction and venue. All
controversies, claims, disputes, and matters in question arising out of, or
related to, this Agreement or the breach of this Agreement, or the relations
between the signatories to this Agreement, shall be decided by arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association. The parties agree that the arbitration shall take place
exclusively in Tampa, Florida, and shall be governed by the substantive law of
the state of Florida. Any award rendered by the arbitrator shall be final, and
final judgment may be entered upon the parties in accordance with applicable
law in any court having jurisdiction thereof, including a federal district
court, pursuant to the Federal Arbitration Act. The arbitrator may grant
Company injunctive relief, including mandatory injunctive relief, to protect
the rights of Company, but the arbitrator shall not be limited to such relief.
This arbitration provision shall not preclude Company from seeking temporary or
preliminary injunctive relief in a court of law to protect its rights, nor
shall the filing of such an action constitute any waiver by Company of its
right to arbitrate. In connection with the arbitration of any dispute between
the signatories to this Agreement, each signatory may utilize all methods of
discovery authorized by the Federal and Florida Rules of Civil Procedure.
Employee hereby consents to personal jurisdiction and venue, for any action
brought by Company or its Affiliates arising out of a breach or threatened
breach of this Agreement, in the United States District Court for the Middle
District of Florida, Tampa Division, or in the Circuit Court in and for
Hillsborough County, Florida; Employee agrees that any action arising under
this Agreement or out of the relationship established by this Agreement shall
be brought only and exclusively in the United States District Court for the
Middle District of Florida, Tampa Division, or in the Circuit Court in and for
Hillsborough County, Florida.
15. Acknowledgment. Employee hereby acknowledges that Employee
has been provided with a copy of this Agreement for review prior to signing it,
that Employee has been given the opportunity to have the Agreement reviewed by
Employee's own attorney prior to signing it, that Employee understands the
purposes and effects of the Agreement, and that Employee has been given a
signed copy of the Agreement for Employee's own records. Employee agrees that
the restrictions set forth in this Agreement, including, but not limited to,
the time period of restriction and areas of restriction, are fair and
reasonable and are reasonably required for the protection of the interest of
Company and its Affiliates.
10
<PAGE> 11
16. Miscellaneous.
a. Entire agreement. This Agreement constitutes the
entire agreement between Company and Employee pertaining to the subject matters
hereof, and it supersedes all negotiations, preliminary agreements, and all
prior and contemporaneous discussions and understandings of the signatories in
connection with the subject matters hereof, including, not limited to, the
Existing Agreement, which is hereby terminated and no longer binding and
enforceable against any party thereto. Except as otherwise provided, no
covenant, representation or condition not expressed in either this Agreement or
an amendment hereto made and executed in accordance with the provisions of
subsection (b) of this section shall be binding upon the signatories hereto or
shall affect or be effective to interpret, change, restrict or terminate the
provisions of this Agreement.
b. Amendments. No change, modification or termination
of any of the terms, provisions or conditions of this Agreement shall be
effective unless made in writing and signed or initialed by all signatories to
this Agreement.
c. Waiver of breach. The waiver by Company of a breach
or threatened breach of any provision of this Agreement by Employee shall not
be construed as a waiver of any subsequent breach of Employee.
d. Governing law. This Agreement shall be governed by
and construed in accordance with the domestic laws of the state of Florida
without giving effect to any choice or conflict of law provision or rule
(whether of the state of Florida or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the state of
Florida.
e. Separability. If any section, subsection or
provision of this Agreement, or the application of such section, subsection or
provision, is held invalid, the remainder of the Agreement and the application
of such section, subsection or provision to Persons or circumstances other than
those with respect to which it is held invalid, shall not be affected thereby.
If any of the provisions of this Agreement relating to the time period and/or
areas of activity restricted and/or related aspects hereof shall be declared by
a court of competent jurisdiction to exceed the maximum restrictiveness such
court deems reasonable and enforceable, the time period and/or areas of
activity restricted and/or related aspects deemed reasonable and enforceable by
the court shall become and thereafter be the maximum restriction in such
regard, and the restriction shall remain enforceable in such jurisdiction to
the fullest extent deemed reasonable by such court. Such court's determination
shall not affect the validity and enforceability of this Agreement in any other
jurisdiction.
f. Headings and captions. The titles or captions of
sections and subsections contained in this Agreement are provided for
convenience of reference only, and they shall not be considered a part of this
Agreement; such titles or captions are not intended to define, limit, extend,
explain or describe the scope or extent of this Agreement or any of its terms,
provisions, representations, warranties, conditions, etc. in any manner or way
whatsoever.
g. Gender and number. All pronouns and variations
thereof shall be deemed to refer to the masculine, feminine or neuter, to the
singular or plural, as the identity of the person or entity or persons or
entities may require.
h. Continuance of agreement. The rights,
responsibilities and duties of Company and Employee, and the covenants and
agreements contained in this Agreement, shall survive the execution of this
Agreement, shall continue to bind the parties to this Agreement, shall continue
in full force and effect until each and every obligation of the parties
pursuant to this Agreement shall have been performed, and shall be binding upon
and inure to the benefit of the successors and assigns of the parties.
Notwithstanding the foregoing, Employee shall not assign Employee's duties,
rights or obligations under this Agreement to any party without the prior
written consent of Company. This Agreement shall not confer any rights or
remedies upon any Person other than Company and its Affiliates, and their
successors and assigns, and Employee.
11
<PAGE> 12
i. Construction. Company and Employee have participated
jointly in the negotiation and/or drafting of this Agreement. If an ambiguity
or question of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by Company and Employee, and no presumption or
burden of proof shall arise favoring or disfavoring either party by virtue of
the authorship of any of the provisions of this Agreement. The words "include"
and "included" shall mean include, without limitation, and including, without
limitation, respectively.
IN WITNESS WHEREOF, Company and Employee have executed and delivered
this Agreement to be effective as of the day and year provided above, except as
specifically provided in Section 4(a) hereof.
WITNESSES: COMPANY:
POWERCERV CORPORATION
/s/ Karen L. Jaderborg By: /s/ Stephen M. Wagman
- ----------------------------------- -----------------------------
Print Name: Karen L. Jaderborg Print Name: Stephen M. Wagman
------------------------ ---------------------
Title: Chief Counsel
--------------------------
/s/ Harold R. Ross
- -----------------------------------
Print Name: Harold R. Ross
------------------------
EMPLOYEE:
/s/ Karen L. Jaderborg /s/ Roy E. Crippen, III
- ----------------------------------- --------------------------------
Print Name: Karen L. Jaderborg Roy E. Crippen, III
------------------------
/s/ Harold R. Ross
- -----------------------------------
Print Name: Harold R. Ross
------------------------
12
<PAGE> 13
STATE OF FLORIDA)
COUNTY OF HILLSBOROUGH)
The foregoing instrument was acknowledged before me this 17th day of
April, 1997 by Stephen M. Wagman as Chief Counsel of POWERCERV CORPORATION, a
Florida corporation, on behalf of the corporation. Such person is personally
known to me or has presented N/A as identification.
/s/ Elena Crosby
----------------------------------
Notary Public
Print Name: Elena Crosby
-----------------------
(SEAL)
My Commission Expires: March 31, 2000
Commission No.: CC543881
STATE OF FLORIDA)
COUNTY OF HILLSBOROUGH)
The foregoing instrument was acknowledged before me this 17th day of
April, 1997 by Roy E. Crippen, III. Such person is personally known to me or
has presented N/A as identification.
/s/ Elena Crosby
----------------------------------
Notary Public
Print Name: Elena Crosby
-----------------------
(SEAL)
My Commission Expires: March 31, 2000
Commission No.: CC543881
13
<PAGE> 14
ADDENDUM A
REGISTRATION RIGHTS PROVISIONS
SECTION 1. DEFINITIONS. As used in this Addendum A, the following
terms have the meanings specified below and include the plural as well as the
singular:
"ABS" means ABS Capital Partners, L.P.
"ABS Registrable Shares" means (i) all Common Stock issued directly or
indirectly in respect of any Convertible Shares issued to ABS or its successors
or assigns, (ii) all Common Stock issued with respect to any securities
referred to in clause (i) above by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger,
consolidation, reorganization or otherwise, and (iii) all other Common Stock
held from time to time by any holder of Common Stock described in clause (i) or
(ii) above.
"Affiliate" means, with respect to any specified Person, any other
Person directly or indirectly controlling, controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing; provided, that, for purposes of Section 5, any
"Person" or "group" (each as defined in Section 13(d)(3) or 14(d)(2) of the
Exchange Act) that is the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act) of more than 10% of the capital stock having ordinary voting
power in the election of directors of such Person (if a corporation) or more
than lot of the partnership or other ownership interests of such Person (if
other than a corporation) shall be deemed to control such Person.
"Board" means the board of directors of Company.
A "Class" of Registrable Shares means any of the Senior Registrable
Shares and the Parity Registrable Shares. Registrable Shares that are part of
any Class (the "Transferred Class") that are transferred to or otherwise become
held by any holder of Registrable Shares of any other Class (the "Other Class")
shall cease to be Registrable Shares of the Transferred Class and thereafter be
Registrable Shares of the Other Class (unless and until they are subsequently
transferred to or otherwise become held by any holder of Registrable Shares of
another Class or cease to be Registrable Shares).
"Common Stock" means Company's common stock, par value $.001 per
share, and all securities of any issuer issued, in exchange for, or as a
dividend or other distribution on, outstanding shares of the Common Stock.
"Company" means PowerCerv Corporation, a Florida corporation.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Executive" means Roy E. Crippen, III, a current executive employee of
Company.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof and any court, panel, judge, board, bureau,
commission, agency or other entity, body or other Person exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
<PAGE> 15
"Holder" means any holder of Registrable Shares.
"Management Investors" means Harold Ross, Marc Fratello and Roy E.
Crippen, III.
"Management Registrable Shares" means all Common Stock held from time
to time by any Management Investor and their respective successors and assigns.
"NASD" means the National Association of Securities Dealers, Inc.
"Other Senior Registrable Shares" means (i) all Common Stock and all
Common Stock issuable with respect to any Rights designated from time to time
by Company as "Other Senior Registrable Shares," (ii) all Common Stock issued
upon conversion of any Common Stock referred to in clause (i) above, (iii) all
Common Stock issued with respect to any securities referred to in clause (i) or
(ii) above by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation, reorganization
or otherwise, and (iv) all other Common Stock held from time to time by any
holder of Common Stock described in clause (i), (ii) or (iii) above.
"Parity Holder" means each of the Management Investors (inclining
Executive) and any other party designated from time to time by Company as a
"Parity Holder" who shall have registration rights with respect to Parity
Registrable Shares having priority on Piggy Back Registration generally on
parity in all material respects pursuant to paragraph 2(e) hereof.
"Parity Registrable Shares" means all Common Stock held from time to
time by a Parity Holder that is designated from time to time by Company as
"Parity Registrable Shares;" provided, however, that the shares issuable to a
Management Investor shall be deemed to be Parity Registrable Shares only so as
long as such stock is held by each such respective party or any Affiliate or
family member of such party.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization, or a governmental entity (or any department, agency, or political
subdivision thereof).
"Registrable Shares" means the Senior Registrable Shares and the
Registrable Shares. As to any particular Registrable Shares, such securities
shall cease to be Registrable Shares (and shall cease to be Parity Registrable
Shares, ABS Registrable Shares, Summit Investors Registrable Shares, Summit
Ventures Registrable Shares, Management Registrable Shares, and the Other
Senior Registrable Shares, as the case may be) when they have been distributed
to the public pursuant to an offering registered under the Securities Act, sold
to the public through a broker, dealer or market maker in compliance with Rule
144 under the Securities Act (or any similar rule then in force) or repurchased
by Company. For purposes of this Addendum, a Person shall be deemed to be a
Holder of Registrable Shares, and the Registrable Shares shall be deemed to be
in existence, whenever such Person has the right to acquire directly or
indirectly such Registrable Shares upon conversion or exercise of other
securities, disregarding any restrictions or limitations upon such conversion
or exercise, whether or not such acquisition has actually been effected (it
being understood that Company shall not be required to include in any
registration hereunder any securities other than Common Stock ).
"Registration Expenses" means all expenses incident to Company's
performance of or compliance with this Addendum A, including, without
limitation, all SEC and stock exchange or NASD registration and filing fees and
expenses, fees and expenses of compliance with securities or blue sky laws
(including, without limitation, reasonable fees and disbursements of counsel
for the underwriters in connection with blue sky qualifications of the
Registrable Shares), printing expenses, messenger and delivery expenses, the
fees and expenses incurred in connection with the listing of the securities to
be registered on each securities exchange or national market system on which
similar
2
<PAGE> 16
securities issued by Company are then listed, fees and disbursements of counsel
for Company and all independent certified public accountants (including the
expenses of any annual audit, special audit, if necessary, and "cold comfort"
letters required by or incident to such performance and compliance), the fees
and disbursements of underwriters customarily paid by issuers or sellers of
securities, the fees and expenses of any special experts retained by Company in
connection with such registration, and fees and expenses of other persons
retained by Company; provided that Company shall not be responsible for any
underwriting discounts or commissions, fees and expenses of counsel to
Executive, or transfer taxes, if any, attributable to the sale of Executive's
Parity Registrable Shares.
"Rights" shall mean, with respect to any Person, any subscription,
option, warrant, right, convertible security or other agreement, instrument or
commitment of any character obligating (contingently or absolutely) such Person
to issue or sell any capital stock or other securities.
"SEC" means the Securities and Exchange Commission or any successor
thereof.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Selling Holder" means a Holder of the Registrable Shares intended
consistent with the terms hereof to covered by a registration statement.
"Senior Registrable Shares" means the ABS Registrable Shares, the
Summit Investors Registrable Shares, the Summit Ventures Registrable Shares and
the Other Senior Registrable Shares.
"Summit Investors" means Summit Investors II, L.P.
"Summit Investors Registrable Shares" means (i) all Common Stock
issued directly or indirectly in respect of any Convertible Shares issued to
Summit Investors or its successors or assigns, (ii) all Common Stock issued
with respect to any securities referred to in clause (i) above by way of a
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation, reorganization or otherwise, and (iii)
all other Common Stock held from time to time by any holder of Common Stock or
any described in clause (i) or (ii) above.
"Summit Ventures" means Summit Ventures III, L.P.
"Summit Ventures Registrable Shares" means (i) all Common Stock issued
directly or indirectly in respect of any Convertible Shares issued to Summit
Ventures or its successors or assigns, (ii) all Common Stock issued with
respect to any securities referred to in clause (i) above by way of a stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation, reorganization or otherwise, and (iii)
all other Common Stock held from time to time by any holder of Common Stock
described in clause (i) or (ii) above.
3
<PAGE> 17
SECTION 2. PIGGYBACK REGISTRATION RIGHTS.
(a) Right to Company Piggyback. If Executive owns Parity Registrable
Shares then representing in excess of two percent (2%) of the outstanding
shares of Common Stock of Company and Company proposes to file a registration
statement under the Securities Act with respect to its Common Stock (a
"Registration Statement"), other than a registration statement on Form S-8,
Form S-4 or any successor forms, and pursuant to which Common Stock is proposed
to be sold (a "Proposed Registration"), and the registration form to be used
may be used for the registration of Registrable Shares (a "Piggyback
Registration"), then Company shall give written notice to Executive no less
than twenty (20) days before the initial filing date with the SEC. Such notice
shall: (i) subject to the provisions of this Section 2, offer Executive the
opportunity to include in such filing such number of Executive's Parity
Registrable Shares as Executive may request; and (ii) specify the kind and
number of securities proposed to be registered and the proposed distribution
arrangements.
(b) Requests to Piggyback. If Executive holds Parity Registrable
Shares and desires to have any such Parity Registrable Shares registered under
this Section 2, it shall advise Company in writing (a "Piggyback Registration
Request") within ten (10) days after the date Company sends the notice pursuant
to subsection 2(a) hereof (the "Piggyback Notice"). Such notice shall set forth
the amount of Executive's Parity Registrable Shares that Executive desires to
have registered. Executive shall be permitted to withdraw all or any part of
its Registrable Shares from a Piggyback Registration at any time prior to the
effective date of the related registration statement upon giving five (5) days
prior written notice of such withdrawal to Company.
(c) Distribution Methods. Subject to subsection 2(d) below, if
Executive delivers a Piggyback Registration Request in accordance with
subsection 2(b) hereof, it may select any method or methods of distribution of
the Executive's Parity Registrable Shares that it has requested to be included
in the Piggyback Registration.
(d) Change in Distribution Method. If the Proposed Registration is for
(or includes) an underwritten public offering of securities and Executive has
selected any other method of distribution for any of Executive's Parity
Registrable Shares that it has requested be included in the Piggyback
Registration and if the managing underwriter of such offering (the "Managing
Underwriter") advises Company in writing that, in its opinion, the distribution
of such Executive's Parity Registrable Shares by such method shall materially
adversely affect the success of such offering of securities, then Executive
shall not be entitled to include in such Piggyback Registration such number of
such Registrable Shares that the Managing Underwriter determines shall
materially adversely affect the success of such offering (the
"Non-Participating Shares"), unless Executive elects, by written notice to
Company within five (5) days after receipt of such written advice, to include,
subject to subsection 2(e) hereof, in such underwritten public offering either
all the Executive's Parity Registrable Shares requested to be registered by it
or the Non-Participating Shares. If the Proposed Registration is not (and does
not include) an underwritten public offering and such Proposed Registration
includes securities to be sold for the account of Company or the Holder of any
Senior Registrable Shares, and if Executive has selected any method of
distribution of any of the Executive's Parity Registrable Shares that is
materially different from the method selected by Company or the Holder of any
Senior Registrable Shares for the distribution of such securities to be sold
for its account, and if the Board shall reasonably determine (and shall notify
Executive in writing of such determination) that the distribution of such
Parity Registrable Shares by such method shall materially adversely affect the
success of such sale of all such securities, then Executive may select, by
written notice to Company within five (5) days, any other method of
distribution that in the reasonable judgment of the Board shall not have such
effect.
(e) Priority on Piggyback Registrations. If the Proposed Registration
is for (or includes) an underwritten offering, Company shall permit Executive
to include all of his Parity Registrable Shares in such offering on the same
terms and conditions as any similar securities included therein. If, in the
case of a Proposed Registration that is for (or
4
<PAGE> 18
that includes) an underwritten offering, the Managing Underwriter advises
Executive in writing that in its opinion, or, in the case of a Proposed
Registration that is not for (and does not include) an underwritten offering of
securities to be distributed for the account of Company or the Holder of any
Senior Registrable Shares, the Board shall reasonably determine (and notify
Executive in writing of such determination) that the amount or kind of
securities proposed to be included in such offering (including, but not limited
to, Registrable Shares to be included in accordance with subsections 2(c) and
2(d) above) shall materially adversely affect the success of the offering of
all securities proposed to be distributed for the account of Company or the
Holder of any Senior Registrable Shares, then Company shall include in such
offering the amount of securities, if any, that, in the opinion of the Managing
Underwriter or the reasonable judgment of the Board (as the case may be) can be
sold as follows:
(1) first, the securities Company propose(s) to sell for its
own account and any Senior Registrable Shares allocated amongst such parties as
Company determines;
(2) second, the Parity Registrable Shares requested to be
included in such offering by Executive or Parity Holders who have delivered
Piggyback Registration Requests; and
(3) third, the securities held by Persons other than the
Holders of Senior Registrable Shares and Parity Holders requested to be
included in such offering.
To the extent that Company has been advised or has determined (as the case may
be) that the number of the Executive's Parity Registrable Shares and other
securities requested to be included in such offering exceeds the number that
can be sold in such offering without having a materially adverse effect on the
success of such offering, Company shall include in such registration, prior to
the inclusion of any securities that are not Registrable Shares, the number of
Registrable Shares requested to be included that, in the opinion of the
Managing Underwriter or the reasonable judgement of the Board (as the case may
be), can be sold in such offering without having such a materially adverse
effect (the "Available Shares"), allocated first among Company and Holders of
Senior Registrable Shares (as Company may determine), second among the Holders
of Parity Registrable Shares who have delivered Piggy Back Registration
Requests pro rata amongst such Holders on the basis of the number of securities
requested to be included in such offering by such Holders. If after giving
effect to clause (1) and (2) above, there are additional Available Shares, then
such Available Shares shall be allocated pro rata among the Persons requesting
securities to be registered in such offering pursuant to clause (3) above on
the basis of the number of securities requested to be included in such offering
by such Persons (or as otherwise determined by Company).
(f) Selection of Underwriters. If any Piggyback Registration is for an
underwritten offering, Company shall engage, on terms and conditions customary
for such purposes, an investment banking firm to serve as Managing Underwriter
for such offering.
(g) Abandonment. Company shall have the right, upon prompt written
notice to Executive delivering a Piggyback Registration Request, to abandon a
Piggyback Registration.
SECTION 3. EXPENSES. Company shall pay all Registration Expenses in
connection with each registration pursuant to Section 2 hereof, whether or not
such registration becomes effective under the Securities Act; provided,
however, that Executive shall pay all underwriting discounts and commissions
and transfer taxes, if any, relating to the sale of Executive's Parity
Registrable Shares pursuant to any such registration; provided, further, that
Executive shall pay its pro rata share of the incremental registration filing
fees attributable to the inclusion of his Parity Registrable Shares in any such
registration pursuant to Section 2 hereof and shall pay all fees and
disbursements of its counsel incurred in connection therewith.
5
<PAGE> 19
SECTION 4. REGISTRATION PROCEDURES.
(a) With respect to any Piggyback Registration, Company, subject to
subsections 2(e) above, respectively, shall use reasonable efforts to effect
the registration of all Executive's Parity Registrable Shares that Executive
has requested to be included therein in accordance, subject to subsections
2(d), with the intended method(s) of distribution thereof reasonably promptly,
and in connection with any such request, Company shall do the following:
(1) prepare and file with the SEC a registration statement on
any form for which Company then qualifies and that is available for the
registration of the Registrable Shares requested to be registered in accordance
with the intended method(s) of distribution thereof, include (subject to
subsections 2(d) and 2(e) above) in the registration on such form all
Registrable Shares requested to be included, and use reasonable efforts to
cause such registration statement to become effective;
(2) prepare and file with the SEC such amendments and
post-effective amendments and supplements to the registration statement or any
prospectus as may be necessary to keep the registration statement effective for
a period that shall terminate on the earlier of forty-five (45) days after the
registration statement is officially declared effective by the SEC or when all
Executive's Parity Registrable Shares covered by such registration statement
have been disposed of; and comply with all applicable rules and regulations of
the SEC and with the provisions of the Securities Act applicable to Company
with respect to the disposition of all Executive's Parity Registrable Shares
covered by such registration statement during such period in accordance with
the intended methods of disposition by Executive set forth in such registration
statement (as it may be amended) or any supplement to any such prospectus;
(3) notify Executive, at any time when a prospectus relating
to Executive's Parity Registrable Shares covered by the registration statement
is required to be delivered under the Securities Act, of the occurrence of any
event as a result of which the preliminary prospectus or prospectus included in
such registration statement or any prospectus supplement contains any untrue
statement of a material fact or omits to state a material fact necessary to
make the statements therein in light of the circumstances under which they were
made, not misleading, and Company shall, as promptly as reasonably practicable
thereafter, prepare and file with the SEC and furnish to Executive a supplement
or amendment to such preliminary prospectus, prospectus or prospectus
supplement so that, as thereafter delivered to the prospective purchasers of
Executive' Parity Registrable Shares being distributed by Executive, such
preliminary prospectus, prospectus or prospectus supplement shall not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
(4) if requested by Executive, Company shall cooperate and
shall promptly incorporate in a prospectus supplement or post-effective
amendment to the registration statement at Executive's cost and expense such
information concerning Executive and its intended method of distribution as it
reasonably requests to be included therein (and which is not inappropriate, in
the reasonable judgment of Company, after consultation with its outside legal
counsel), including, without limitation, with respect to any change in the
intended method of distribution, the amount or kind of Parity Registrable
Shares being offered by Executive, the offering price for such Parity
Registrable Shares or any other terms of the offering or distribution of the
Registrable Shares and make all required filings of such prospectus supplement
or post-effective amendment as soon as possible after being notified of the
matters to be incorporated in such prospectus supplement or post-effective
amendment;
(5) on or prior to the date on which the registration
statement is declared effective, use
6
<PAGE> 20
reasonable efforts to register or qualify, and cooperate with Executive and its
counsel, in connection with the registration or qualification of the
Executive's Parity Registrable Shares covered by the registration statement
for offer and sale under the securities or "blue sky" laws of each state and
other U.S. jurisdiction as Executive reasonably (in light of the intended plan
of distribution) requests in writing, use reasonable efforts to keep each such
registration or qualification effective, including through new filings,
amendments or renewals, during the period the registration statement is
required to be kept effective and do other acts or things reasonably necessary
or advisable to permit the disposition in all such jurisdictions of the
Executive's Parity Registrable Shares; however, Company shall not be required
to (i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to so qualify, (ii) take any action that would subject it
to general service of process in any jurisdiction where it would not otherwise
be subject to such general service of process or (iii) subject itself to
general taxation in any jurisdiction where it would not otherwise be subject;
(6) cooperate with Executive, its legal counsel and any other
interested party (including any interested broker-dealer) in making any filings
or submissions required to be made, and the furnishing of appropriate
information in connection therewith, with the NASD;
(7) use reasonable efforts to cause all Executive's Parity
Registrable Shares included in such registration statement to be listed, by the
date of the first sale of Registrable Shares pursuant to such registration
statement, on each securities exchange or interdealer quotation system on which
similar securities issued by Company then are listed or proposed to be listed,
if any;
(8) take other steps reasonably necessary to effect the
registration and qualification of the Executive's Parity Registrable Shares
included in such Piggyback Registration and to facilitate the disposition
thereof in accordance with the respective plans of distribution of Executive
permitted hereunder.
(b) Each Selling Holder, upon receipt of any notice from Company of
the occurrence of any event of the kind described in clause 3 of subsection
4(a) above, shall forthwith discontinue disposition of the Executive's Parity
Registrable Shares pursuant to the registration statement covering such
Executive's Parity Registrable Shares until Executive's receipt of the copies
of the supplemented or amended preliminary prospectus or prospectus
contemplated by such subsection and, if so directed by Company, Executive shall
deliver to Company (at the expense of Company) all copies, other than permanent
file copies then in Executive's possession, of the most recent preliminary
prospectus or prospectus covering such Executive's Parity Registrable Shares at
the time of receipt of such notice. Executive, upon receipt of any notice from
Company of the issuance of any stop order or blue sky order shall forthwith, in
the case of any stop order, discontinue disposition of Executive's Parity
Registrable Shares pursuant to the registration statement covering such
Executive's Parity Registrable Shares or, in the case of any blue sky order,
discontinue disposition of the Executive's Parity Registrable Shares in the
applicable jurisdiction, until advised in writing of the lifting or withdrawal
of such order. In the event Company shall give any notice pursuant to this
subsection 4(b), Company shall extend the period during which such registration
statement shall be maintained effective (including the period referred to in
subsection 4(a)(2) above) by the number of days during the period from and
including the date of the giving of such notice to and including (i) in the
case of a notice pursuant to the first sentence of this subsection, the date
when Executive shall have received the copies of the supplemented or amended
preliminary prospectus or prospectus contemplated by clause (4) of subsection
4(a) above or (ii) in the case of a notice pursuant to the second sentence of
this subsection, the lifting or withdrawal of such stop order or blue sky
order, as the case may be.
(c) Not less than eight (8) days before the expected filing date of
each registration statement pursuant to this Addendum A, Company shall notify
Executive of the information reasonably required from Executive (the "Requested
Information") if Executive has timely delivered a Piggyback Registration
Request to Company. If Company has not received, on or prior to the fifth (5th)
day before the expected filing date, the Requested Information from Executive,
Company may file the registration statement without including Executive's
Parity Registrable Shares of
7
<PAGE> 21
Executive. The failure to include in any registration statement Executive's
Parity Registrable Shares of Executive (with regard to that registration
statement) shall not in and of itself result in any liability on the part of
Company to Executive. In addition, Executive shall take all such other acts,
deliver such other information and execute and deliver such documents and
instruments in connection with the matters referenced herein (including, but
not limited to, a custody agreement, power of attorney, lock-up letter and
underwriting agreement), as the Company may request.
SECTION 5. INDEMNIFICATION.
(a) Indemnification by Company. Company shall indemnify and hold
harmless Executive, each Affiliate of Executive and their respective directors,
officers, stockholders and partners and each other Person, if any, who controls
Executive within the meaning of the Securities Act, against any and all losses,
claims, damages or liabilities, joint or several, and expenses (including the
costs of investigation and the fees and disbursements of counsel) to which any
of them may become subject under the Securities Act, the Exchange Act or other
federal or state law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) or expenses arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in any registration
statement as originally filed or in any amendment thereof, or in any
preliminary, final or summary prospectus, or in any amendment thereof or
supplement thereto, or (ii) any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (iii) any violation by Company of any federal or
state law, rule or regulation or common law applicable to Company and relating
to action required of or inaction by Company in connection with any such
registration, and Company shall reimburse any such indemnified party for any
legal or any other expenses reasonably incurred by it in connection with
investigating or, subject to subsection 5(c) below, defending any such loss,
claim, damage, liability, action or proceeding; however, Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or expense (x) arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in the
registration statement or in any amendment thereof or in any preliminary, final
or summary prospectus or in any amendment thereof or supplement thereto in
reliance upon and in conformity with written information furnished to Company
by or on behalf of Executive specifically for use in the registration statement
or prospectus (or an amendment thereof or supplement thereto) or (y) results
from the fact that Executive sold Parity Registrable Shares to a Person to whom
there was not sent or given, at or prior to the written confirmation of such
sale, a copy of the final prospectus or of the final prospectus as then amended
or supplemented, whichever is most recent, if Company had previously furnished
copies hereof to Executive and such final prospectus, as then amended or
supplemented, corrected such misstatement or omission.
(b) Indemnification by Holders. Executive shall indemnify and hold
harmless (in the same manner and to the same extent as set forth in subsection
5(a), including, without limitation, clause (y) of the proviso set forth
therein) Company and its directors, officers and controlling persons and each
underwriter, dealer manager or similar securities industry professional
participating in the distribution of Executive's Parity Registrable Shares and
such securities industry professional's respective directors, officers,
partners and controlling persons, with respect to any statement or alleged
statement in or omission or alleged omission from such registration statement,
any preliminary, final or summary prospectus contained therein, or any
amendment or supplement, if such statement or alleged statement or omission or
alleged omission (i) was made in reliance upon and in conformity with written
information furnished to Company by or on behalf of Executive specifically for
use in such registration statement or prospectus (or amendment thereof or
supplement thereto) or (ii) (solely in the case of an offering in which no
underwriter, selling broker, dealer manager or similar industry professional
participates) results from the fact that Executive sold Parity Registrable
Shares to a Person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the final prospectus or of the
final prospectus as then amended or supplemented, whichever is most recent, if
Company had previously furnished copies thereof to such Holder and such final
prospectus, as then amended or supplemented, corrected such misstatements or
omission.
8
<PAGE> 22
(c) Notice of Claims, etc. Promptly after receipt by an indemnified
party under subsection 5(a) or (b) of notice of any claim or the commencement
of any action or proceeding subject to indemnification thereunder, the
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under either of such subsections, promptly notify the
indemnifying party in writing of the claim or the commencement of the action or
proceeding; provided that the failure to so notify the indemnifying party shall
not relieve the indemnifying party from any liability which it may have to an
indemnified party under subsection 5(a) or (b) or otherwise, except to the
extent the indemnifying party shall have been materially prejudiced by such
failure to give notice. If any such claim, action or proceeding shall be
brought against an indemnified party, and it shall timely notify the
indemnifying party, the indemnifying party shall be entitled to participate in,
and, to the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying party
to the indemnified party of its election to assume the defense of such claim,
action or proceeding, the indemnifying party shall not be liable to the
indemnified party under, subsection 5(a) or (b) for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; however, such indemnified
party shall have the right to employ separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be the expense of such indemnified party unless (1) the indemnifying
party has agreed to pay such fees and expenses, (2) the indemnifying party
shall have failed to assume the defense of such claim, action or proceeding or
has failed to employ counsel reasonably satisfactory to such indemnified party
in any such claim, action or proceeding or (3) the named parties to any such
action or proceeding (including any impleaded parties) include both such
indemnified party and the indemnifying party, and such indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to such indemnified party which are inconsistent or in conflict with
those available to the indemnifying party (in which case, if such indemnified
party notifies the indemnifying party in writing that it elects to employ
separate counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such action or
proceeding on behalf of such indemnified party), it being understood, however,
that the indemnifying party shall not, in connection with any one such action
or proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys at any time for such indemnified party
and any other indemnified parties similarly situated, which firm shall be
designated in writing by such indemnified parties. The indemnifying party shall
not be liable for any settlement of any such action or proceeding effected
without its written consent (which consent shall not be unreasonably withheld),
but if settled with its written consent, or if there be a final judgment for
the plaintiff in any such action or proceeding, the indemnifying party agrees
to indemnify and hold harmless such indemnified parties from and against any
loss or liability by reason of such settlement or judgment.
(d) Contribution. If the indemnification provided for in subsection
5(a) or (b) is unavailable or insufficient to hold harmless an indemnified
party, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages
or, liabilities (or actions or proceedings in respect thereof) or expenses
referred to in subsection 5(a) or (b), (i) in such proportion as is appropriate
to reflect the relative benefits received by Company on the one hand and
Executive on other hand from the sale of the Executive's Parity Registrable
Shares, or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of Company on the one hand and Executive on the other hand in connection with
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) or expenses, as well
as any other relevant equitable considerations. The relative benefits received
by Company on the one hand and Executive on the other hand shall be deemed to
be in the same proportion as the total net proceeds from the issuance and sale
of such Registrable Shares (before deducting expenses) received by Company bear
to the total compensation or profit (before deducting expenses) received or
realized by Executive from the resale of such Registrable Shares. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of
9
<PAGE> 23
a material fact or the omission or alleged omission to state a material fact
relates to information supplied by Company or Executive and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. Company and Executive agree that it
would not be just and equitable if contributions pursuant to this subsection
5(d) were to be determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in the first sentence of this subsection 5(d). The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) or expenses referred to in the first
sentence of this subsection 5(d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any claim, action or proceeding (which shall be
limited as provided in subsection 5(c) above if the indemnifying party has
assumed the defense of any such action in accordance with the provisions
thereof) which is the subject of this subsection 5(d). No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
against such party in respect of which a claim for contribution may be made
against' an indemnifying party under this subsection 5(d), such indemnified
party shall notify the indemnifying party in writing of the commencement
thereof if the notice specified in subsection 5(c) above has not been given
with respect to such action or proceeding; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party under this subsection 5(d) or otherwise, except to the
extent the indemnifying party shall have been materially prejudiced by such
failure to give notice.
SECTION 6. MISCELLANEOUS.
(a) Amendments and Waivers.
(1) Company's Consent. No waiver, amendment, modification or
supplement of any provision of this Addendum A, including this subsection 6(a),
that adversely affects Company shall be effective against Company unless it is
approved in writing by Company.
(2) Executive's Consent. No waiver, amendment, modification
or supplement of any provision of this Addendum A, including this subsection
6(a), that adversely affects Executive shall be effective against Executive
unless it is approved in writing by Executive.
(b) Termination. The provisions of this Addendum A shall terminate
with respect to a Parity Registrable Share owned by Executive, other than the
provisions of Section 5 hereof, which shall survive any such termination, when
Executive ceases to own such Parity Registrable Share.
[END OF ADDENDUM]
10
<PAGE> 1
EXHIBIT 15.1
PowerCerv Corporation
400 North Ashley Drive, Suite 2700
Tampa, Florida 33602
Gentlemen:
Re: Registration Statement on Form S-8 (No. 333-3960)
With respect to the above referenced registration statement, we acknowledge our
awareness of the incorporation by reference therein of our report dated April
17, 1997 related to our review of interim financial information, which report
was included in the quarterly report on Form 10-Q of PowerCerv Corporation for
the three months ended March 31, 1997.
Pursuant to Rule 436(c) under the Securities Act of 1933, such report is not
considered part of a registration statement prepared or certified by an
accountant or a report prepared or certified by an accountant within the
meaning of Sections 7 and 11 of the Act.
/s/ KPMG Peat Marwick LLP
KPMG PEAT MARWICK LLP
Tampa, Florida
April 17, 1997
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM UNAUDITED
CONDENSED FINANCIAL STATEMENTS AS OF AND FOR THE THREE MONTHS ENDED MARCH 31,
1997 10-Q FILING.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> MAR-31-1997
<CASH> 12,623
<SECURITIES> 0
<RECEIVABLES> 12,440
<ALLOWANCES> (556)
<INVENTORY> 220
<CURRENT-ASSETS> 25,228
<PP&E> 4,374
<DEPRECIATION> (1,293)
<TOTAL-ASSETS> 35,429
<CURRENT-LIABILITIES> 5,634
<BONDS> 0
0
0
<COMMON> 14
<OTHER-SE> 29,581
<TOTAL-LIABILITY-AND-EQUITY> 35,429
<SALES> 0
<TOTAL-REVENUES> 8,756
<CGS> 0
<TOTAL-COSTS> 11,270
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (184)
<INCOME-PRETAX> (2,330)
<INCOME-TAX> (886)
<INCOME-CONTINUING> (1,444)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (1,444)
<EPS-PRIMARY> (0.10)
<EPS-DILUTED> (0.10)
</TABLE>
