<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 21, 1998
REGISTRATION NO. _______
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- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
-------------------
POWERCERV CORPORATION
(Exact name of registrant as specified in its charter)
FLORIDA 59-3350778
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
400 NORTH ASHLEY DRIVE, SUITE 2700, TAMPA, FLORIDA 33602
(Address of Principal Executive Office) (Zip Code)
POWERCERV CORPORATION
1995 STOCK OPTION PLAN
(Full title of the plan)
-----------------------
MARC J. FRATELLO
CHIEF EXECUTIVE OFFICER
POWERCERV CORPORATION
400 NORTH ASHLEY DRIVE
SUITE 2700
TAMPA, FLORIDA 33602
(Name and address of agent for service)
(813) 226-2600
(Telephone number, including area code, of agent for service)
Copies of all communications to:
MICHAEL L. JAMIESON, ESQ.
HOLLAND & KNIGHT LLP
400 NORTH ASHLEY DRIVE
SUITE 2300
TAMPA, FLORIDA 33602
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. [X]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF AMOUNT MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER UNIT* OFFERING PRICE* FEE
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<S> <C> <C> <C> <C>
Common stock, par value
$0.001 per share 2,425,000 $5.0625 $12,276,562.50 $3,622.00
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</TABLE>
*Estimated solely for the purpose of calculating the registration fee. The fee
is calculated upon the basis of the average between the high and low sales
prices for shares of common stock of the registrant as reported on the Nasdaq
Stock Market on April 15, 1998.
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<PAGE> 2
INTRODUCTION
On April 24, 1996, PowerCerv Corporation, a Florida corporation (the
"Registrant"), filed Registration Statement No. 333-3960 on Form S-8 (the "Prior
Registration Statement"), which registered 1,250,000 shares of the Common Stock,
par value $0.001 per share, of the Registrant (the "Common Stock") for issuance
under the PowerCerv Corporation 1995 Stock Option Plan (the "Plan"). The
contents of the Prior Registration Statement are incorporated by reference
herein. By this Registration Statement, the Registrant increases the number of
shares of the Common Stock registered for issuance under the Plan from 1,250,000
to 3,675,000 and files an amended Plan as an exhibit to the Registration
Statement.
1
<PAGE> 3
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Registrant,
PowerCerv Corporation, a Florida corporation, are incorporated by reference in
this Registration Statement.
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1997.
(b) (i) The Registrant's Current Report on Form 8-K, dated
February 25, 1998.
(ii) The description of the Common Stock contained in the
Registrant's Registration Statement on Form S-1,
Registration No. 333-00250.
(c) All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant is a Florida corporation. The Florida Business
Corporation Act, as amended (the "Florida Act"), provides that, in general, a
business corporation may indemnify any person who is or was a party to any
proceeding (other than an action by, or in the right of, the corporation) by
reason of the fact that he is or was a director or officer of the corporation,
against liability incurred in connection with such proceeding, including any
appeal thereof, provided certain standards are met, including that such officer
or director acted in good faith and in a manner he reasonably believed to be in,
or not opposed to, the best interests of the corporation, and provided, further
that, with respect to any criminal action or proceeding, the officer or director
had no reasonable cause to believe his conduct was unlawful. In the case of
proceedings by or in the right of the corporation, the Florida Act provides
that, in general, a corporation may indemnify any person who was or is a party
to any such proceeding by reason of the fact that he is or was a director or
officer of the corporation against expenses and amounts paid in settlement
actually and reasonably incurred in connection with the defense or settlement of
such proceeding, including any appeal thereof, provided that such person acted
in good faith and in a manner he reasonably believed to be in, or not opposed
to, the best interests of the corporation, except that no indemnification shall
be made in respect of any claim as to which such person is adjudged liable
unless a court of competent jurisdiction determines upon application that such
person is fairly and reasonably entitled to indemnity. To the extent that any
officers or directors are successful on the merits or otherwise in the defense
of any of the proceedings described above, the Florida Act provides that the
corporation is required to indemnify such officers or directors against expenses
actually and reasonably incurred in connection therewith. However,
2
<PAGE> 4
the Florida Act further provides that, in general, indemnification or
advancement of expenses shall not be made to or on behalf of any officer or
director if a judgment or other final adjudication establishes that his actions,
or omissions to act, were material to the cause of action so adjudicated and
constitute: (i) a violation of the criminal law, unless the director or officer
had reasonable cause to believe his conduct was lawful or had no reasonable
cause to believe it was unlawful; (ii) a transaction from which the director or
officer derived an improper personal benefit; (iii) in the case of a director, a
circumstance under which the director has voted for or assented to a
distribution made in violation of the Florida Act or the corporation's articles
of incorporation; or (iv) willful misconduct or a conscious disregard for the
best interests of the corporation in a proceeding by or in the right of the
corporation to procure a judgment in its favor or in a proceeding by or in the
right of a shareholder. Article VIII of the Registrant's Bylaws provides that
the Registrant shall indemnify any director, officer, employee or agent or any
former director, officer, employee or agent.
The Registrant has purchased insurance with respect to, among other
things, any liabilities that may arise under the statutory provisions referred
to above.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<S> <C>
4.1 Articles of Incorporation of the Registrant.*
4.2 Articles of Amendment to Articles of Incorporation of the
Registrant.*
4.3 Bylaws of the Registrant.*
4.4 Form of Stock Certificate for the Common Stock of the
Registrant.*
4.5 PowerCerv Corporation 1995 Stock Option Plan, as amended.
5.1 Opinion of Holland & Knight LLP re legality of the Common
Stock.
23.1 Consent of Holland & Knight LLP (included in Exhibit 5.1)
23.2 Consent of KPMG Peat Marwick LLP.
24.1 Powers of Attorney (included on signature page).
</TABLE>
- -----------------------
* Filed with the Registrant's Registration Statement on Form S-1,
Registration Statement No. 333-00250.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
3
<PAGE> 5
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions (see Item 6) or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
4
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Tampa, State of Florida, on April 20, 1998.
POWERCERV CORPORATION
By: /s/ Marc J. Fratello
--------------------------------------------
Marc J. Fratello, Chief Executive Officer
KNOWN TO ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Stephen M. Wagman his
attorney-in-fact, with the power of substitution, for him in any and all
capacities, to sign any and all amendments to this Registration Statement, and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact, or his substitute or substitutes, may
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
<S> <C> <C>
/s/ Marc J. Fratello
- --------------------------------------- Chairman, Chief Executive Officer and April 20, 1998
Marc J. Fratello Director (principal executive officer)
/s/ Roy E. Crippen, III
- --------------------------------------- Vice Chairman, Chief Technology April 20, 1998
Roy E. Crippen, III Officer and Director
/s/ Michael J. Simmons
- --------------------------------------- President, Chief Operating Officer and April 20, 1998
Michael J. Simmons Director
/s/ Stephen M. Wagman
- --------------------------------------- Chief Financial Officer (principal April 20, 1998
Stephen M. Wagman financial officer)
/s/ Karen L. Surplus
- --------------------------------------- Chief Accounting Officer (principal April 20, 1998
Karen L. Surplus accounting officer)
/s/ O.G. Greene
- --------------------------------------- Director April 20, 1998
O.G. Greene
/s/ Stuart Johnson
- --------------------------------------- Director April 20, 1998
Stuart Johnson
/s/ Harold R. Ross
- --------------------------------------- Director April 20, 1998
Harold R. Ross
</TABLE>
5
<PAGE> 7
INDEX OF EXHIBITS
<TABLE>
<S> <C>
4.1 Articles of Incorporation of the Registrant.*
4.2 Articles of Amendment to Articles of Incorporation of the
Registrant.*
4.3 Bylaws of the Registrant.*
4.4 Form of Stock Certificate for the Common Stock of the
Registrant.*
4.5 PowerCerv Corporation 1995 Stock Option Plan, as amended.
5.1 Opinion of Holland & Knight LLP re legality of the Common
Stock.
23.1 Consent of Holland & Knight LLP (included in Exhibit 5.1)
23.2 Consent of KPMG Peat Marwick LLP.
24.1 Powers of Attorney (included on signature page).
</TABLE>
- -----------------------
* Filed with the Registrant's Registration Statement on Form S-1,
Registration Statement No. 333-00250.
<PAGE> 1
EXHIBIT 4.5
POWERCERV CORPORATION
1995 STOCK OPTION PLAN
AS AMENDED AND RESTATED APRIL 20, 1998
1. PURPOSE. The purpose of this Stock Option Plan (the "Plan") is
two-fold. First, the Plan will further the interest of PowerCerv Corporation, a
Florida corporation (the "Company"), any subsidiaries it may have and its
shareholders by providing incentives in the form of stock option grants to key
employees who contribute materially to the success and profitability of the
Company. The grants shall recognize and reward outstanding individual
performances and contributions and shall give such persons a proprietary
interest in the Company, thus enhancing their personal interest in the Company's
continued success and progress. This program shall also assist the Company and
any subsidiaries it may have in attracting and retaining key persons. Second,
the Plan will provide the Company flexibility and the means to reward directors
and other non-employees who render valuable contributions to the Company. The
Plan is an amended plan, in restated form, the original plan being established
effective as of June 15, 1995.
2. DEFINITIONS. The following definitions shall apply to this Plan:
(a) "AGREEMENT" means a written agreement entered into between
the Company and a Recipient that embodies the terms and restrictions of the
Option granted to the Recipient.
(b) "BOARD" means the board of directors of the Company.
(c) "CODE" means the Internal Revenue Code of 1986, as
amended.
(d) "COMMITTEE" means the Stock Option Committee of
disinterested directors appointed by the Board in accordance with paragraph 3 of
the Plan.
(e) "COMMON STOCK" means the Common Stock, par value $.001 per
share, of the Company or such other class of shares or securities to which the
Plan may apply pursuant to paragraph 14 of the Plan.
(f) "COMPANY" means PowerCerv Corporation.
(g) "CONTINUING DIRECTOR" means, as of any date of
determination, any member of the Board who was nominated for election or elected
to the Board with the approval of a majority of the Continuing Directors who
were members of the Board at the time of such nomination or election.
(h) "DATE OF GRANT" means the date on which the Option is
granted.
<PAGE> 2
(i) "DISPOSE OF" means pledge, hypothecate, give, assign,
encumber, sell, grant an option with respect to, or otherwise transfer, to any
party whether or not such party is a shareholder of the Company.
(j) "EMPLOYEE" means any person employed on an hourly or
salaried basis by the Company or any parent or Subsidiary of the Company that
now exists or hereafter is organized or acquired by or acquires the Company.
(k) "FAIR MARKET VALUE" means the fair market value of the
Common Stock. If the Common Stock is not publicly traded on the date as of which
fair market value is being determined, the Board shall determine the fair market
value of the Shares using such factors as the Board considers relevant, such as
the price at which recent sales have been made, the book value of the Common
Stock, and the Company's current and projected earnings. If the Common Stock is
publicly traded on the date as of which fair market value is being determined,
the fair market value is the average of the high and low sale prices of the
Common Stock as reported by the National Association of Securities Dealer
Automated Quotations ("Nasdaq") on that date, if the Common Stock is listed on a
stock exchange, the average of the high and low sale prices of the Common Stock
on that date, as reported in The Wall Street Journal. If trading in the stock or
a price quotation does not occur on the date as of which fair market value is
being determined, the next preceding date on which the stock was traded or a
price was quoted shall determine the fair market value.
(l) "INCENTIVE STOCK OPTION" means a stock option granted
pursuant to either this Plan or any other plan of the Company that satisfies the
requirements of Section 422 of the Code and that entitles the Recipient to
purchase stock of the Company or in a corporation that at the time of grant of
the option was a parent or subsidiary of the Company or a predecessor
corporation of any such corporation.
(m) "OPTION" means a stock option granted pursuant to the
Plan.
(n) "OPTION SHAREHOLDER" shall mean a Recipient who has
exercised his or her Option.
(o) "OPTION SHARES" means Shares issued upon exercise of an
Option.
(p) "PERMITTED OWNERS" means as of the date of any
determination thereof any one or combination of the following (i) Roy E. Crippen
III, Marc J. Fratello, Harold R. Ross and any of their respective spouses,
estates, lineal descendants (including adoptive children), heirs, executors,
personal representatives, administrators and trusts for any of their benefit and
(ii) any other person, as defined in Section 13(d) of the Securities Exchange
Act of 1934, as amended (the "1934 Act") (each such person, a "Person"), the
majority of whose Voting Stock is directly or indirectly owned by any Person
described in clause (i) above.
(q) "PLAN" means this PowerCerv Corporation 1995 Stock Option
Plan.
<PAGE> 3
(r) "RECIPIENT" means a person who receives an Option.
(s) "SHARE" means a share of the Common Stock, as adjusted in
accordance with paragraph 14 of the Plan.
(t) "SUBSIDIARY" means any corporation fifty percent or more
of the voting securities of which are owned directly or indirectly by the
Company at any time during the existence of this Plan.
(u) "QUALIFIED PUBLIC OFFERING" means the closing of an
underwritten public offering by the Company pursuant to a registration statement
filed and declared effective under the Securities Act of 1933, as amended,
covering the offer and sale of Common Stock for the account of the Company in
which (i) the gross proceeds to the Company before deducting underwriting
commissions, discounts and offering expenses, equals or exceeds $20,000,000 and
(ii) the product obtained by multiplying the public offering price per share of
Common Stock by the total number of shares to be outstanding immediately
following the public offering equals or exceeds $60,000,000.
(v) "TRIGGER EVENT" means the occurrence of any of the
following:
(i) Any sale, lease, transfer, conveyance or other
disposition (other than by way of merger or consolidation) in one or a series of
related transactions, of all or substantially all of the assets of the Company
and its Subsidiaries taken as a whole to any Person or group, as defined in
Sections 13(d)(3) and 14(d)(2) of the 1934 Act (a "Group"), other than the
Permitted Owners;
(ii) The adoption of a plan for the liquidation or
dissolution of this Company;
(iii) The Company consolidates with, or merges with or
into, another Person or Group, in a transaction or series of related
transactions in which the Voting Stock of the Company is converted into or
exchanged for cash, securities or other property, other than any transaction
where (A) the outstanding Voting Stock of the Company is converted into or
exchanged for Voting Stock of the surviving or transferee corporation and (B)
the beneficial owners, as defined in Rules 13d-3 and 13d-5 under the 1934 Act
(the "Beneficial Owners"), of the outstanding Voting Stock of the Company
immediately prior to such transaction own beneficially, directly or indirectly
through one or more Subsidiaries, not less than a majority of the total
outstanding Voting Stock of the surviving or transferee corporation immediately
after such transaction;
(iv) The consummation of any transaction or series of any
related transactions (including, without limitation, by way of merger or
consolidation) the result of which is that any Person or Group, other than
Permitted Owners, becomes the Beneficial Owner of more than 50 percent of the
voting power of the Voting Stock of the Company; or
<PAGE> 4
(v) During any consecutive two-year period, the first day on
which a majority of the members of the Board who were members of the Board at
the beginning of such period are not Continuing Directors.
(W) "VOTING STOCK" means any class or classes of corporate stock or
partnership interest pursuant to which the holders thereof have the general
voting power under ordinary circumstances to elect at least a majority of the
Board, managers or trustees of any Person (irrespective of whether or not, at
the time, stock of any other class or classes shall have, or might have, voting
power by reason of the happening of any contingency).
3. ADMINISTRATION. This Plan shall be administered by a Committee
appointed by the Board from among its members; provided, however, that with
respect to options granted to persons subject to Section 16 of the 1934 Act, the
Committee shall be the entire Board. A majority of the full Committee
constitutes a quorum for purposes of administering the Plan, and all
determinations of the Committee shall be made by a majority of the members
present at a meeting at which a quorum is present or by the unanimous, written
consent of the Committee.
4. SHARES SUBJECT TO PLAN. Subject to the provisions of paragraph 14 of
the Plan, the maximum aggregate number of Shares that may be subject to Options
under the Plan shall be 3,675,000. If an Option should expire or become
unexercisable for any reason without having been exercised, the unpurchased
Shares that were subject to the Option shall, unless the Plan has then
terminated, be available for other Options under the Plan.
5. RECIPIENTS.
(A) ELIGIBLE PERSONS. Any person that the Committee in its sole and
absolute discretion designates is eligible to receive an Option under this Plan.
Only Employees of the Company shall be eligible to receive grants of Incentive
Stock Options. The Committee's award of an Option to a Recipient in any year
does not require the Committee to award an Option to that Recipient in any other
year. Furthermore, the Committee may award different Options to different
Recipients and has full discretion to choose whether to grant Options to any
eligible person. The Committee may consider such factors as it deems pertinent
in selecting Recipients and in determining the amount of their Options,
including, without limitation, (i) the financial condition of the Company or its
Subsidiaries; (ii) expected profits for the current or future years; (iii) the
contributions of a prospective Recipient to the profitability and success of the
Company or its Subsidiaries; and (iv) the adequacy of the prospective
Recipient's other compensation. Recipients may include persons to whom stock,
stock options, stock appreciation rights, or other benefits previously were
granted under this or another plan of the Company or any Subsidiary, whether or
not the previously granted benefits have been fully exercised or vested.
(B) NO RIGHT OF EMPLOYMENT. A Recipient's right, if any, to continue
to serve the Company and its Subsidiaries as an officer, Employee, or otherwise
shall not be enlarged or otherwise affected by his designation as a Recipient
under this Plan, and such
<PAGE> 5
designation shall not in any way restrict the right of the Company or any
Subsidiary, as the case may be, to terminate at any time the employment or
affiliation of any Recipient.
6. OPTION REQUIREMENTS. Each Option granted to a Recipient under the
Plan shall contain such provisions as the Committee at the Date of Grant shall
deem appropriate. Each Option granted to a Recipient shall satisfy the following
requirements:
(A) WRITTEN AGREEMENT. Each Option granted to a Recipient shall be
evidenced by an Agreement. The terms of the Agreement need not be identical for
different Recipients. The Agreement shall include a description of the substance
of each of the requirements in this paragraph 6 with respect to that particular
Option and shall state whether the Option is an Incentive Stock Option.
(B) NUMBER OF SHARES. Each Agreement shall specify the number of
Shares that may be purchased by exercise of the Option.
(C) EXERCISE PRICE. Except as provided in subparagraph 6(i) of the
Plan, the exercise price of each Share subject to an Incentive Stock Option
shall equal the Fair Market Value of the Share on the Option's Date of Grant.
The exercise price of each Share subject to an Option that is not an Incentive
Stock Option shall equal the exercise price designated by the Committee on the
Option's Date of Grant.
(D) DURATION OF OPTION. Except as provided in subparagraph 6(i) of
the Plan, each Option granted to a Recipient shall expire on the tenth
anniversary of its Date of Grant or, at such earlier date as is set by the
Committee in establishing the terms of the Option at grant. If the Recipient's
employment or affiliation with the Company terminates before the expiration date
of an Option, the Options owned by the Recipient shall expire on the earlier of
the date stated in this subparagraph or the date stated in following
subparagraphs of this paragraph. Furthermore, expiration of an Option may be
accelerated under subparagraph 6(g) of the Plan.
(E) VESTING OF OPTION AND EXERCISABILITY. Unless otherwise provided
for by the Committee in establishing the terms of the Option Agreement at grant,
a Recipient's interest in the Option shall vest according to the schedule
described in this subparagraph 6(e) and shall be exercisable as to not more than
the vested percentage of the Shares subject to the Option at any point in time.
To the extent an Option is either unexercisable or unexercised, the unexercised
portion shall accumulate until the Option both becomes exercisable and is
exercised, subject to the provisions of subsection 6(d) of the Plan. Each Option
granted under the Plan shall become vested according to the following schedule
based on the anniversary of the Date of Grant:
<PAGE> 6
<TABLE>
<CAPTION>
Anniversary of Date of Grant Percent Vested
- ---------------------------- --------------
<S> <C>
Prior to 1st anniversary 0%
1st 25%
2nd 50%
3rd 75%
4th 100%
</TABLE>
The Committee, in its sole and absolute discretion, may accelerate the vesting
of any Option at any time.
(F) DEATH OR TERMINATION OF SERVICE OR AFFILIATION. In the case of
the death of the Recipient, all Options held by the Recipient shall expire on
the one year anniversary of the Recipient's death, or if earlier, the date
specified in subparagraph 6(d). If the Recipient ceases employment or
affiliation with the Company for any reason other than death, all Options held
by the Recipient shall lapse immediately following the last day that the
Recipient is employed by or affiliated with the Company. However, the Committee
may, in its sole and absolute discretion, either at grant of the Option or at
the time the Recipient terminates employment or affiliation with the Company,
delay the expiration date of the Option to a date after termination of
employment or affiliation with the Company. The maximum delay that may be
allowed, however, shall be 90 days for an Incentive Stock Option and four years
for a Nonqualified Stock Option. Unless otherwise provided for by the Committee
in its sole and absolute discretion, during any such delay of the expiration
date, the Option may be exercised only for the number of Shares for which it
could have been exercised on such termination date pursuant to subparagraph
6(e), subject to any adjustment under paragraph 14 of the Plan. Notwithstanding
any provisions set forth herein or in the Plan, if the Recipient shall (i)
commit any act of malfeasance or wrongdoing affecting the Company or any parent
or Subsidiary, (ii) breach any covenant not to compete or employment agreement
with the Company or any parent or Subsidiary, or (iii) engage in conduct that
would warrant the Recipient's discharge for cause, any unexercised part of the
Option shall lapse immediately upon the earlier of the occurrence of such event
or the last day the Recipient is employed by or affiliated with the Company.
(G) TRIGGER EVENT. Contingent upon the occurrence of a Trigger
Event, the Board may terminate all Options outstanding under the Plan effective
upon the date of the Trigger Event or may accelerate the expiration of the
Options to a date not earlier than the fifteenth day after the date of the
Trigger Event. Furthermore, the Board may accelerate the vesting of any Option
in the event of a Trigger Event. If the Board terminates the Options, it shall
make, within sixty days after the date of the Trigger Event, a cash payment to
the Recipient equal to the difference between the Exercise Price and the Fair
Market Value of the Shares that would have been subject to the terminated Option
on the date of the Trigger Event.
(H) CONDITIONS REQUIRED FOR EXERCISE. Options granted to Recipients
under the Plan shall be exercisable only to the extent they are vested according
to subparagraph 6(e) of the Plan. In addition, no Option granted under this Plan
may be exercised unless and until
<PAGE> 7
a Qualified Public Offering occurs. Furthermore, each Option granted under the
Plan is exercisable only if the issuance of Shares pursuant to the exercise
would be in compliance with applicable securities laws, as contemplated by
paragraph 12 of the Plan.
(I) TEN PERCENT SHAREHOLDERS. An Incentive Stock Option granted to
an individual who, on the Date of Grant, owns stock possessing more than ten
percent of the total combined voting power of all classes of stock of either the
Company or any parent or Subsidiary, shall be granted at an exercise price of
110 percent of Fair Market Value on the Date of Grant and shall be exercisable
only during the five-year period immediately following the Date of Grant. In
calculating stock ownership of any person, the attribution rules of Code Section
424(d) shall apply. Furthermore, in calculating stock ownership, any stock that
the individual may purchase under outstanding options shall not be considered.
(J) MAXIMUM OPTION GRANTS. The aggregate Fair Market Value
determined on the Date of Grant, of stock in the Company with respect to which
any Incentive Stock Options under the Plan and all other plans of the Company or
its Subsidiaries (within the meaning of Section 422(b) of the Code) may become
exercisable by any individual for the first time in any calendar year shall not
exceed $100,000.
7. METHOD OF EXERCISE. An Option granted under this Plan shall be
deemed exercised when the person entitled to exercise the Option (a) delivers
written notice to the President of the Company (or his delegate, in his absence)
of the decision to exercise, (b) concurrently tenders to the Company full
payment for the Shares to be purchased pursuant to the exercise, and (c)
complies with such other reasonable requirements as the Committee establishes
pursuant to paragraph 12 of the Plan. Payment for Shares with respect to which
an Option is exercised may be made in cash, or by certified check or wholly or
partially in the form of Common Stock having a Fair Market Value on the date of
exercise equal to the exercise price. No person shall have the rights of a
shareholder with respect to Shares subject to an Option granted under this Plan
until a certificate or certificates for the Shares have been delivered to him.
An Option granted under this Plan may not be exercised in increments of less
than one hundred Shares, or, if less, one hundred percent of the full number of
Shares as to which it can be exercised. A partial exercise of an Option shall
not affect the holder's right to exercise the Option from time to time in
accordance with this Plan as to the remaining Shares subject to the Option.
8. COMPANY'S RIGHT OF FIRST REFUSAL REGARDING OPTION SHARES. An Option
Shareholder who desires to Dispose Of any Option Shares shall first offer the
Option Shares to the Company. The Option Shareholder shall provide notice signed
by the Option Shareholder to the Company indicating the Option Shareholder's
desire to Dispose Of Option Shares. The notice shall also specify the number of
Option Shares. The Company shall have the irrevocable and exclusive first
option, but not the obligation, to purchase all or a portion of the Option
Shares, provided the Company provides notice of its election to purchase the
Option Shares within sixty days after the Company receives the Option
Shareholder's notice. The purchase price to be paid by the Company for the
Option Shares being offered by the Option Shareholder
<PAGE> 8
shall be the Fair Market Value of the Option Shares on the date of the Option
Shareholder's notice, and payment shall be made in full in cash at closing. In
the event of a Qualified Public Offering, the provisions of this paragraph 8
shall cease to be effective.
9. COMPANY RIGHT TO REPURCHASE OPTION SHARES. The Company shall have
the right to repurchase any Option Shares purchased by a Recipient following
such Recipient's termination of service or affiliation with the Company for any
reason. The price for repurchasing the Option Shares shall be equal to the
exercise price specified in the Option with respect to such Option Shares.
Should the Company fail to exercise such repurchase right within sixty days
following the date of such Recipient's termination of service or affiliation,
the Company shall be deemed to have waived such right. In the event of a
Qualified Public Offering, the provisions of this paragraph 9 shall cease to be
effective.
10. LOAN FROM COMPANY TO EXERCISE OPTION. The Committee may, in its
sole and absolute discretion and subject to the requirements of applicable law,
recommend to the Company that it lend the Recipient the funds needed by the
Recipient to exercise an Option. The Recipient shall make application to the
Company for the loan, completing the forms and providing the information
required by the Company. The loan shall be secured by such collateral as the
Company may require, subject to its underwriting requirements and the
requirements of applicable law. The Recipient shall execute a promissory note
and any other documents deemed necessary by the Committee.
11. DESIGNATION OF BENEFICIARY. Each Recipient shall designate in the
Agreement he executes a beneficiary to receive Options awarded hereunder in the
event of both his death prior to full exercise of such Options and a delay of
the expiration date of such Options in accordance with subparagraph 6(f) of the
Plan; provided, that if no such beneficiary is designated or if the beneficiary
so designated does not survive the Recipient, the estate of such Recipient shall
be deemed to be his beneficiary. Recipients may, by written notice to the
Committee, change the beneficiary designated in any outstanding Agreements.
12. TAXES; COMPLIANCE WITH LAW; APPROVAL OF REGULATORY BODIES; LEGENDS.
The Company shall have the right to withhold from payments otherwise due and
owing to the Recipient (or his beneficiary) or to require the Recipient (or his
beneficiary) to remit to the Company in cash upon demand an amount sufficient to
satisfy any federal (including FICA and FUTA amounts), state, and/or local
withholding tax requirements at the time the Recipient (or his beneficiary)
recognizes income for federal, state, and/or local tax purposes as the result of
the receipt of Shares pursuant to the Plan as a condition to the issuance of
Shares upon Option exercise (whether to the Recipient or to his beneficiary).
Options are exercisable, and Shares can be delivered under this Plan,
only in compliance with all applicable federal and state laws and regulations
and the rules of all stock exchanges on which the Company's stock is listed at
any time. An Option is exercisable only if either (a) a registration statement
pertaining to the Shares to be issued upon exercise of the Option has been filed
with and declared effective by the Securities and Exchange Commission and
remains
<PAGE> 9
effective on the date of exercise, or (b) an exemption from the registration
requirements of applicable securities laws is available. This Plan does not
require the Company, however, to file such a registration statement or to assure
the availability of such exemptions. Any certificate issued to evidence Shares
issued under the Plan may bear such legends and statements, and shall be subject
to such transfer restrictions, as the Committee deems advisable to assure
compliance with federal and state laws and regulations and with the requirements
of this paragraph and to reflect the provisions of paragraphs 8 and 9 of the
Plan. No Option may be exercised, and Shares may not be issued under this Plan,
until the Company has obtained the consent or approval of every regulatory body,
federal or state, having jurisdiction over such matters as the Committee deems
advisable.
Each person who acquires the right to exercise an Option or to
ownership of Shares by bequest or inheritance may be required by the Committee
to furnish reasonable evidence of ownership of the Option as a condition to his
exercise of the Option. In addition, the Committee may require such consents and
releases of taxing authorities as the Committee deems advisable.
With respect to persons subject to Section 16 of the 1934 Act,
transactions under this Plan are intended to comply with all applicable
conditions of Rule 16b-3 under the 1934 Act, as such rule may be amended from
time to time, or its successor under the 1934 Act. To the extent any provision
of the Plan or action by the Plan administrators fails to so comply, it shall be
deemed null and void, to the extent permitted by law and deemed advisable by the
Plan administrators.
13. ASSIGNABILITY. An Option granted under this Plan is not
transferable except by will or the laws of descent and distribution. During the
lifetime of a Recipient, all rights of the Options are exercisable only by the
Recipient.
14. ADJUSTMENT UPON CHANGE OF SHARES. If a reorganization, merger,
consolidation, reclassification, recapitalization, combination or exchange of
shares, stock split, stock dividend, rights offering, or other expansion or
contraction of the Common Stock of the Company occurs, the number and class of
Shares for which Options are authorized to be granted under this Plan, the
number and class of Shares then subject to Options previously granted to
Recipients under this Plan, and the price per Share payable upon exercise of
each Option outstanding under this Plan shall be equitably adjusted by the
Committee to reflect such changes. To the extent deemed equitable and
appropriate by the Board, subject to any required action by shareholders, in any
merger, consolidation, reorganization, liquidation or dissolution, any Option
granted under the Plan shall pertain to the securities and other property to
which a holder of the number of Shares of stock covered by the Option would have
been entitled to receive in connection with such event.
15. LIABILITY OF THE COMPANY. The Company, its parent and any
Subsidiary that is in existence or hereafter comes into existence shall not be
liable to any person for any tax consequences expected but not realized by a
Recipient or other person due to the exercise of an Option.
<PAGE> 10
16. AMENDMENT AND TERMINATION OF PLAN. The Board may alter, amend, or
terminate this Plan from time to time without approval of the shareholders of
the Company. The Board may, however, condition any amendment on the approval of
the shareholders of the Company if such approval is necessary or advisable with
respect to tax, securities or other applicable laws to which the Company, the
Plan, Recipients or eligible persons are subject. Any amendment, whether with or
without the approval of shareholders, that alters the terms or provisions of an
Option granted before the amendment (unless the alteration is expressly
permitted under this Plan) shall be effective only with the consent of the
Recipient to whom the Option was granted or the holder currently entitled to
exercise it.
17. EXPENSES OF PLAN. The Company shall bear the expenses of
administering the Plan.
18. DURATION OF PLAN. Options may be granted under this Plan only
during the ten years immediately following the effective date of this Plan.
19. APPLICABLE LAW. The validity, interpretation, and enforcement of
this Plan are governed in all respects by the laws of Florida and the United
States of America.
20. EFFECTIVE DATE. The effective date of this Plan, as amended, shall
be April 20, 1998.
Adopted by the Board of Directors
on April 20, 1998 (original Plan
adopted by the Board of Directors
on June 15, 1995; amendments adopted
by the Board of Directors on
January 10, 1996, and April 10, 1997).
Approved by the Shareholders on
June ___, 1998 (original Plan approved
by the Shareholders on June 15, 1995;
amendments approved by the Shareholders on
January 10, 1996, and June 3, 1997).
<PAGE> 1
EXHIBIT 5.1
April 21, 1998
PowerCerv Corporation
400 North Ashley Drive
Suite 2700
Tampa, Florida 33602
Re: Registration Statement on Form S-8
Gentlemen:
We refer to the Registration Statement (the "Registration Statement")
on Form S-8 filed today by PowerCerv Corporation (the "Company") with the
Securities and Exchange Commission, for the purpose of registering under the
Securities Act of 1933 an aggregate of 2,425,000 shares (the "Shares") of the
authorized common stock, par value $.001 per share, of the Company being offered
to certain employees of the Company pursuant to the Company's 1995 Stock Option
Plan (the "Plan").
In connection with the foregoing registration, we have acted as counsel
for the Company and have examined originals, or copies certified to our
satisfaction, of such corporate records of the Company, certificates of public
officials, and representatives of the Company, and other documents as we deemed
necessary to deliver the opinion expressed below.
Based upon the foregoing, and having regard for legal considerations
that we deem relevant, it is our opinion that the Shares will be, when and if
issued in accordance with the exercise of options granted under the Plan, duly
authorized, validly issued, and fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
HOLLAND & KNIGHT LLP
/s/ HOLLAND & KNIGHT
<PAGE> 1
EXHIBIT 23.2
CONSENT OF KPMG PEAT MARWICK LLP
The Board of Directors
PowerCerv Corporation
Our report dated January 26, 1998, except with respect to Notes 9(c) and 10(c)
which are as of February 25, 1998, refers to a change in the Company's
accounting for income taxes in 1995.
We consent to the use of our report incorporated by reference herein.
/s/ KPMG PEAT MARWICK LLP
April 20, 1998
Tampa, Florida
