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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 12, 1999
REGISTRATION NO. ____________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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POWERCERV CORPORATION
(Exact name of registrant as specified in its charter)
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<S> <C>
FLORIDA 59-3350778
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
400 NORTH ASHLEY DRIVE, SUITE 2700, TAMPA, FLORIDA 33602
(Address of Principal Executive Office) (Zip Code)
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STOCK OPTION PLAN
(Full title of the plan)
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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:
CHESTER E. BACHELLER, 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
Securtities Act of 1933, check the following box.
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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(1) PER UNIT(2) OFFERING PRICE(2) FEE
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Additional Common stock, par 1,000,000 $2.53 $2,530,000 $704.00
value $0.001 per share reserved
under 1995 Stock Option Plan
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(1) This Registration Statement also covers any additional shares that may
hereafter become purchasable as a result of the adjustment provisions in the
agreements pursuant to which such shares are issued.
(2) 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 November 9, 1999.
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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, 1998.
(b) (i) The Registrant's Current Report on Form 8-K, dated April 13,
1999.
(ii) The Registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1999.
(iii) The Registrant's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1999.
(iv) 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
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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, 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.
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.
15.1 Letter re unaudited interim financial information.
23.1 Consent of Holland & Knight LLP (included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP.
24.1 Powers of Attorney (included on signature page).
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* Filed as an exhibit to PowerCerv's Registration Statement No.
333-00250, as amended, filed on Form S-1 with the Commission on January
11, 1996 and incorporated by reference.
** Filed as an exhibit to PowerCerv's Registration Statement, filed on
Form S-8 with the Commission on April 21, 1998 and incorporated by
reference.
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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:
(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.
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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 November 9, 1999.
POWERCERV CORPORATION
By: /s/ Marc J. Fratello
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Marc J. Fratello, Chairman and Chief
Executive Officer
KNOWN TO ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Marc J. Fratello 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.
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Signatures Title Date
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/s/ Marc J. Fratello Chairman, Chief Executive Officer and November 9, 1999
- ------------------------------------ Director (principal executive officer)
Marc J. Fratello
/s/ Michael J. Simmons President, Chief Operating Officer and November 9, 1999
- ------------------------------------ Director
Michael J. Simmons
/s/ Lawrence J. Alves Chief Financial Officer and Treasurer November 9, 1999
- ------------------------------------ (principal financial officer)
Lawrence J. Alves
/s/ Roy E. Crippen, III Director November 9, 1999
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Roy E. Crippen, III
/s/ O.G. Greene Director November 9, 1999
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O.G. Greene
Director November , 1999
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Stuart C. Johnson
/s/ David A. Straz, JR. Director November 9, 1999
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David A. Straz, Jr.
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INDEX OF EXHIBITS
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.
15.1 Letter re unaudited interim financial information.
23.1 Consent of Holland & Knight LLP (included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP.
24.1 Powers of Attorney (included on signature page).
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* Filed as an exhibit to PowerCerv's Registration Statement No.
333-00250, as amended, filed on Form S-1 with the Commission on January
11, 1996 and incorporated by reference.
** Filed as an exhibit to PowerCerv's Registration Statement, filed on
Form S-8 with the Commission on April 21, 1998 and incorporated by
reference.
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EXHIBIT 5.1
November 12, 1999
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 1,000,000 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
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Exhibit 15.1
The Board of Directors
PowerCerv Corporation
We are aware of the incorporation by reference in the Registration Statement
(Form S-8 No. 333- ) of PowerCerv Corporation for the registration of
1,000,000 shares of its common stock of our reports dated April 16, 1999 and
July 16, 1999 relating to the unaudited condensed consolidated interim
financial statements of PowerCerv Corporation that are included in its Forms
10-Q for the quarters ended March 31, 1999 and July 30, 1999.
Pursuant to Rule 436(c) of the Securities Act of 1933 our reports are not a
part of the registration statement prepared or certified by accountants within
the meaning of Section 7 or 11 of the Securities Act of 1933.
/s/ Ernst & Young LLP
Tampa, Florida
November 9, 1999
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EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to incorporation by reference in the Registration Statement (Form S-8
No. 333- ) pertaining to the registration of 1,000,000 shares of its common
stock of our report dated January 22, 1999, except with respect to Note 16, as
to which the date is March 31, 1999, with respect to the consolidated financial
statements and schedule of PowerCerve Corporation and subsidiary included in its
Annual Report (Form 10-K) for the year ended December 31, 1998, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Tampa, Florida
November 9, 1999
