<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 12, 1999
REGISTRATION NO. ____________
================================================================================
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)
<TABLE>
<CAPTION>
<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)
</TABLE>
STOCK OPTION AGREEMENTS
(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:
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
Securities Act of 1933, check the following box.
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------
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
- --------------------------------- ----------------------- ------------------ ------------------ ------------------
<S> <C> <C> <C> <C> <C>
Common stock, par value $0.001 1,815,000 $2.53 $4,591,950 $1,277.00
per share
- ------------------------------------------------------------------------------------------------------------------
</TABLE>
(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.
================================================================================
<PAGE> 2
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 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
II-1
<PAGE> 3
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.
II-2
<PAGE> 4
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 Stock Option Agreement (grant to Michael
J. Simmons) dated February 19, 1998.**
4.6 PowerCerv Corporation Stock Option Agreement (grant to Michael
J. Simmons) dated February 19, 1998.**
4.7 PowerCerv Corporation Stock Option Agreement (grant to Ira
Herman) dated April 7, 1998.
4.8 PowerCerv Corporation Stock Option Agreement (grant to Geoff
Joynt) dated April 7, 1998.
4.9 PowerCerv Corporation Stock Option Agreement (grant to John
Montague) dated April 7, 1998.
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).
- -----------------------
* 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 Form 10-Q for the quarter ended June
30, 1998 filed with the Commission on August 14, 1998 and incorporated
by reference.
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.
II-3
<PAGE> 5
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.
II-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 November 9, 1999.
POWERCERV CORPORATION
By: /s/ Marc J. Fratello
------------------------------------
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.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- -----
<S> <C> <C>
/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
- ------------------------------------
Roy E. Crippen, III
/s/ O.G. Greene Director November 9, 1999
- ------------------------------------
O.G. Greene
/s/ Stuart C. Johnson Director November 9, 1999
- ------------------------------------
Stuart C. Johnson
Director November , 1999
- ------------------------------------
David A. Straz, Jr.
</TABLE>
II-5
<PAGE> 7
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 Stock Option Agreement (grant to Michael
J. Simmons) dated February 19, 1998.**
4.6 PowerCerv Corporation Stock Option Agreement (grant to Michael
J. Simmons) dated February 19, 1998.**
4.7 PowerCerv Corporation Stock Option Agreement (grant to Ira
Herman) dated April 7, 1998.
4.8 PowerCerv Corporation Stock Option Agreement (grant to Geoff
Joynt) dated April 7, 1998.
4.9 PowerCerv Corporation Stock Option Agreement (grant to John
Montague) dated April 7, 1998.
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).
- -----------------------
* 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 Form 10-Q for the quarter ended June
30, 1998 filed with the Commission on August 14, 1998 and incorporated
by reference.
<PAGE> 1
Exhibit 4.7
POWERCERV CORPORATION
STOCK OPTION AGREEMENT
This Stock Option Agreement (the "Agreement"), effective as of April 7,
1998, is made by and between PowerCerv Corporation, a Florida corporation (the
"Company"), and Ira Herman (the "Recipient").
In consideration of the mutual covenants herein contained and other
good and valuable consideration, receipt of which is hereby acknowledged, the
parties agree as follows:
1. GRANT OF OPTION. The Company grants to the Recipient an option to
purchase 215,000 shares of the Company's common stock in accordance with the
terms and conditions of this Agreement (the "Option").
2. OPTION PRICE. The purchase price of the shares of stock covered by
the Option shall be $2.75 per share.
3. ADJUSTMENTS IN OPTION. In the event that the outstanding shares of
stock subject to the Option are changed into or exchanged for a different number
or kind of shares of the Company or other securities of the Company by reason of
merger, consolidation, recapitalization, reclassification, stock split, stock
dividend or combination of shares, the shares subject to the Option and the
price per share shall be equitably adjusted to reflect such changes. Such
adjustment in the Option shall be made without change in the total price
applicable to the unexercised portion of the Option (except for any change in
the aggregate price resulting from rounding-off of share quantities or prices)
and with any necessary corresponding adjustment in the Option price per share.
Any such adjustment made by the Company shall be final and binding upon the
Recipient, the Company and all other interested persons.
4. MANNER OF EXERCISE. The Option, or any portion thereof, may be
exercised only in accordance with the terms of this Agreement and solely by
delivery to the Secretary of the Company of all of the following items prior to
the time when the Option or such portion becomes unexercisable under the terms
of this Agreement:
(a) Notice in writing signed by the Recipient or the other
person then entitled to exercise the Option or portion thereof, stating
that the Option or portion thereof is thereby exercised, such notice
complying with all applicable rules (if any) established by the
Company;
(b) Full payment (in cash or by cashiers' or certified check)
for the shares with respect to which the Option or portion thereof is
exercised;
(c) Full payment (in cash or by cashiers' or certified check)
upon demand of 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 exercise of the Option or portion
thereof;
(d) Unless a registration statement is filed with the
Securities and Exchange Commission and is effective with respect to the
shares underlying the Option, a bona fide written representation and
agreement, in a form satisfactory to the Company, signed by the
Recipient or other person then entitled to exercise the Option or
portion thereof, stating that the shares of stock are being acquired
for his own account, for investment and without any present intention
of distributing or reselling said shares or any of them except as may
be permitted under the Securities Act of 1933, as amended (the "Act"),
and then
<PAGE> 2
applicable rules and regulations thereunder, and that the Recipient or
other person then entitled to exercise such Option or portion will
indemnify the Company against and hold it free and harmless from any
loss, damage, expense or liability resulting to the Company if any
sale or distribution of the shares by such person is contrary to the
representation and agreement referred to above. The Company may, in
its absolute discretion, take whatever additional actions it deems
appropriate to ensure the observance and performance of such
representations and agreement and to effect compliance with all
federal and state securities laws or regulations. Without limiting the
generality of the foregoing, the Company may require an opinion of
counsel acceptable to it to the effect that any subsequent transfer of
shares acquired on an Option exercise does not violate the Act and may
issue stop-transfer orders covering such shares.
(e) In the event the Option or any portion thereof shall be
exercised by any person or persons other than the Recipient,
appropriate proof, satisfactory to the Company, of the right of such
person or persons to exercise the Option.
5. CONDITIONS TO ISSUANCE OF STOCK CERTIFICATES. The shares of stock
deliverable upon the exercise of the Option, or any portion thereof, may be
either previously authorized but unissued shares or issued shares which have
been reacquired by the Company. Such shares shall be fully paid and
nonassessable.
6. RIGHTS OF SHAREHOLDERS. The Recipient shall not be, nor have any of
the rights or privileges of, a shareholder of the Company in respect of any
shares purchasable upon the exercise of any part of the Option unless and until
certificates representing such shares shall have been issued by the Company to
the Recipient.
7. VESTING AND EXERCISABILITY. The Recipient's interest in the Option
shall vest according to the schedule described in this Section 7 and shall be
exercisable as to not more than the vested portion of the shares subject to the
Option at any point in time. To the extent the 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 Section 8 of
the Agreement. The Option shall become vested according to the following
schedules:
<TABLE>
<CAPTION>
Date Shares With Respect To
---- Which Option Is Vested
----------------------
<S> <C>
Recipient's Employment 25,000
Commencement Date
May 31, 1998 28,864
June 30, 1998 32,728
July 31, 1998 36,592
August 31, 1998 40,456
September 30, 1998 44,320
October 31, 1998 48,184
November 30, 1998 52,048
December 31, 1998 55,912
January 31, 1999 59,776
February 28, 1999 63,640
March 31, 1999 67,504
April 30, 1999 71,368
May 31, 1999 75,232
June 30, 1999 79,096
July 31, 1999 82,960
August 31, 1999 86,824
September 30, 1999 90,688
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
Date Shares With Respect To
---- Which Option Is Vested
----------------------
<S> <C>
October 31, 1999 94,552
November 30, 1999 98,416
December 31, 1999 102,280
January 31, 2000 106,144
February 29, 2000 110,008
March 31, 2000 113,872
April 30, 2000 117,736
May 31, 2000 121,600
June 30, 2000 125,464
July 31, 2000 129,328
August 31, 2000 133,192
September 30, 2000 137,056
October 31, 2000 140,920
November 30, 2000 144,784
December 31, 2000 148,648
January 31, 2001 152,512
February 28, 2001 156,376
March 31, 2001 160,240
April 30, 2001 164,104
May 31, 2001 167,968
June 30, 2001 171,832
July 31, 2001 175,696
August 31, 2001 179,560
September 30, 2001 183,424
October 31, 2001 187,288
November 30, 2001 191,152
December 31, 2001 195,000
</TABLE>
The remaining portion of the Option, covering the remaining 20,000 shares, shall
become vested on December 31, 2001; provided, however, that this portion of the
Option may become vested prior to December 31, 2001, based upon the performance
of the Company's common stock as traded on the Nasdaq as follows:
<TABLE>
<CAPTION>
Level of Performance Shares With Respect To Which Option Becomes Vested
- -------------------- --------------------------------------------------
<S> <C>
$9.00/share or higher close price for 10,000
20 consecutive trading days
$14.00/share or higher close price for 10,000
20 consecutive trading days
</TABLE>
The Company's Board of Directors, in its sole and absolute discretion, may
accelerate the vesting of the Option at any time. In addition, the Company's
Board of Directors may accelerate the vesting of the Option in accordance with
Section 10 of the Executive Employment Agreement, effective as of April 7, 1998,
between the Company and the Recipient (the "Employment Agreement"). The
provisions of Section 10 of the Employment Agreement are incorporated herein by
reference.
<PAGE> 4
8. DURATION OF OPTION. The Option shall expire on the earliest of (i)
April 7, 2008, (ii) the first anniversary of the date of the Recipient's death
or disability, or (iii) 150 days after the date of the Recipient's separation of
employment from the Company. As of the date of the Recipient's separation of
employment from the Company, except as otherwise provided in Section 10(c) of
the Employment Agreement, no further vesting of the Option shall occur.
9. TRANSFER OF OPTION. Except as otherwise provided in this Section 9,
neither the Option nor any interest or right therein or part thereof shall be
subject to disposition by transfer, alienation, anticipation, pledge,
encumbrance, assignment or any other means whether such disposition is voluntary
or involuntary or by operation of law, by judgment, levy, attachment,
garnishment or any other legal or equitable proceedings (including bankruptcy)
and any attempted disposition thereof shall be null and void and of no effect;
provided, however, that this Section 9 shall not prevent transfers by will or by
the applicable laws of descent and distribution.
10. NOTICES. Any notice to be given under the terms of this Agreement
to the Company shall be addressed to the Company in care of its Secretary and
any notice to be given to the Recipient shall be addressed to him at the address
given beneath his signature below. By a notice given pursuant to this Section
10, either party may hereafter designate a different address for notices to be
given to him. Any notice which is required to be given to the Recipient shall,
if the Recipient is then deceased, be given to the Recipient's personal
representative if such representative has previously informed the Company of his
status and address by written notice under this Section 10. Any notice shall
have been deemed duly given when enclosed in a properly sealed envelope
addressed as aforesaid, deposited (with postage prepaid) in a United States
postal receptacle.
11. TITLES. Titles are provided herein for convenience only and are not
to serve as a basis for interpretation or construction of this Agreement.
12. MODIFICATIONS. Any modifications or amendment of any provision of
this Agreement must be in writing and bear the signature of the duly authorized
representatives of both parties.
13. APPLICABLE LAW. The validity of this Agreement and the rights,
obligations and relations of the parties hereunder shall be construed and
determined under and in accordance with the laws of the State of Florida therein
as applied to contracts to be performed in Florida between Florida residents.
14. ENTIRE AGREEMENT. This Agreement and the Employment Agreement
referred to herein represents the entire understanding and agreement between the
parties with respect to the subject matter hereof, and merges all prior
discussions between them and supersedes and replaces any and every other
agreement or understanding which may have existed between the parties to the
extent that any such agreements or understanding relates to any stock options
issued or to be issued to the Recipient.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties as of the date first written above.
POWERCERV CORPORATION
By:
-------------------------------------
Marc J. Fratello, Chairman and
Chief Executive Officer
-------------------------------------
Ira Herman
<PAGE> 1
EXHIBIT 4.8
POWERCERV CORPORATION
NONSTATUTORY STOCK OPTION AGREEMENT
This Nonstatutory Stock Option Agreement (the "Agreement"), effective
as of April 7, 1998, is made by and between POWERCERV CORPORATION, a Florida
corporation (the "Company"), and Geoff Joynt, (the "Recipient").
WHEREAS, the Company wishes to grant an option to purchase shares of
the Company's common stock to the Recipient pursuant to the terms of the
PowerCerv Corporation 1995 Stock Option Plan (the "Plan").
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties agree as follows:
1. GRANT OF OPTION. In consideration of service to the Company and for
other good and valuable consideration, the Company grants to the Recipient an
option to purchase 22,736 shares of the Company's common stock in accordance
with the terms and conditions of the Plan.
2. OPTION PRICE. The purchase price of the shares of stock covered by
the option shall be $ 2.75 per share, which is the fair market value.
3. ADJUSTMENTS IN OPTION. In the event that the outstanding shares of
stock subject to the option are changed into or exchanged for a different number
or kind of shares of the Company or other securities of the Company by reason of
merger, consolidation, recapitalization, reclassification, stock split, stock
dividend or combination of shares, the shares subject to the option and the
price per share shall be equitably adjusted to reflect such changes. Such
adjustment in the option shall be made without change in the total price
applicable to the unexercised portion of the option (except for any change in
the aggregate price resulting from rounding-off of share quantities or prices)
and with any necessary corresponding adjustment in the option price per share.
Any such adjustment made by the Company's Stock Option Committee shall be final
and binding upon the Recipient, the Company and all other interested persons.
4. PERSON ELIGIBLE TO EXERCISE OPTION. During the lifetime of the
Recipient, only the Recipient may exercise the option or any portion thereof.
After the death of the Recipient, any exercisable portion of the option may,
prior to the time when the option becomes unexercisable under the terms of the
Plan, be exercised by the Recipient's personal representative or by any other
person empowered to do so under the Recipient's will, trust or under then
applicable laws of descent and distribution.
5. MANNER OF EXERCISE. The option, or any portion thereof, may be
exercised only in accordance with the terms of the Plan and solely by delivery
to the Secretary of the Company of all of the following items prior to the time
when the option or such portion becomes unexercisable under the terms of the
Plan:
(a) Notice in writing signed by the Recipient or the other
person then entitled to exercise the option or portion thereof, stating that the
option or portion thereof is thereby exercised, such notice complying with all
applicable rules (if any) established by the Stock Option Committee;
(b) Full payment (in cash or by cashiers' or certified check)
for the shares with respect to which such option or portion thereof is
exercised;
<PAGE> 2
(c) A bona fide written representation and agreement, in a
form satisfactory to the Stock Option Committee, signed by the Recipient or
other person then entitled to exercise such option or portion thereof, stating
that the shares of stock are being acquired for his own account, for investment
and without any present intention of distributing or reselling said shares or
any of them except as may be permitted under the Securities Act of 1933, as
amended (the "Act"), and then applicable rules and regulations thereunder, and
that the Recipient or other person then entitled to exercise such option or
portion will indemnify the Company against and hold it free and harmless from
any loss, damage, expense or liability resulting to the Company if any sale or
distribution of the shares by such person is contrary to the representation and
agreement referred to above. The Stock Option Committee may, in its absolute
discretion, take whatever additional actions it deems appropriate to ensure the
observance and performance of such representations and agreement and to effect
compliance with all federal and state securities laws or regulations. Without
limiting the generality of the foregoing, the Stock Option Committee may require
an opinion of counsel acceptable to it to the effect that any subsequent
transfer of shares acquired on an option exercise does not violate the Act and
may issue stop-transfer orders covering such shares. The written representations
and agreement referred to in the first sentence of this subparagraph (c),
however, shall not be required if the shares to be issued pursuant to such
exercise have been registered under the Act, and such registration is then
effective in respect of such shares; and
(d) In the event the option or any portion thereof shall be
exercised pursuant to paragraph 4 of the Agreement by any person or persons
other than the Recipient, appropriate proof, satisfactory to the Stock Option
Committee, of the right of such person or persons to exercise the option.
6. CONDITIONS TO ISSUANCE OF STOCK CERTIFICATES. The shares of stock
deliverable upon the exercise of the option, or any portion thereof, may be
either previously authorized but unissued shares or issued shares which have
been reacquired by the Company. Such shares shall be fully paid and
nonassessable.
7. RIGHTS OF SHAREHOLDERS. The Recipient shall not be, nor have any of
the rights or privileges of, a shareholder of the Company in respect of any
shares purchasable upon the exercise of any part of the option unless and until
certificates representing such shares shall have been issued by the Company to
the Recipient.
8. VESTING AND EXERCISABILITY. A Recipient's interest in the option
shall vest according to the schedule described in this paragraph 8 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 paragraph 9
of the Agreement. The option granted shall become vested according to the
following schedule:
Date Percent Vested
---- --------------
December 31, 1998 33%
December 31, 1999 66%
December 31, 2000 100%
The Stock Option Committee, in its sole and absolute discretion, may accelerate
the vesting of the option at any time.
9. DURATION OF OPTION. Except as specified below, the option granted
hereunder shall expire on April 7, 2008. Notwithstanding the foregoing, the
option may expire prior to April 7, 2008, in the following circumstances:
2
<PAGE> 3
(a) In the case of the Recipient's death, the option shall
expire on the one-year anniversary of the Recipient's death.
(b) If the Recipient's employment or affiliation with the
Company terminates by reason of normal retirement under the Company's normal
retirement policies, the option will expire 90 days after the last day of his
employment or affiliation with the Company.
(c) If the Recipient's employment or affiliation with the
Company terminates as a result of his total and permanent disability, the option
will expire on the one-year anniversary of the Recipient's last day of
employment or affiliation with the Company.
(d) If the Recipient ceases employment or affiliation with the
Company for any reason other than death, disability or retirement (as described
in the preceding paragraph), the option shall lapse immediately following the
last day that the Recipient is employed by or affiliated with the Company.
(e) Notwithstanding any provisions set forth above in this
paragraph 9, if the Recipient shall (i) commit any act of malfeasance or
wrongdoing affecting the Company or its affiliates, (ii) breach any covenant not
to compete or employment agreement with the Company or any affiliate, 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 the
Company.
10. TRIGGER EVENT. Contingent upon the occurrence of a Trigger Event,
the Board of Directors of the Company may terminate the option effective upon
the date of the Trigger Event or may accelerate the expiration of the option to
a date not earlier than the fifteenth day after the Trigger Event. If the Board
of Directors terminates the option, the Company shall make, within sixty days of
the Trigger Event, a cash payment to the Recipient equal to the difference
between the exercise price of the option and the fair market value of the shares
that would have been subject to the terminated option on the date of the Trigger
Event.
11. ADMINISTRATION. The Stock Option Committee shall have the power to
interpret this Agreement and to adopt such rules for the administration,
interpretation and application of the Agreement as are consistent herewith and
to interpret or revoke any such rules. All actions taken and all interpretations
and determinations made by the Stock Option Committee in good faith shall be
final and binding upon the Recipient, the Company and all other interested
persons. No member of the Stock Option Committee shall be personally liable for
any action, determination or interpretation made in good faith with respect to
this Agreement or any similar agreement to which the Company is a party.
12. OPTIONS NOT TRANSFERABLE. Neither the option nor any interest or
right therein or part thereof shall be subject to disposition by transfer,
alienation, anticipation, pledge, encumbrance, assignment or any other means
whether such disposition is voluntary or involuntary or by operation of law, by
judgment, levy, attachment, garnishment or any other legal or equitable
proceedings (including bankruptcy) and any attempted disposition thereof shall
be null and void and of no effect; provided, however, that this paragraph 12
shall not prevent transfers by will or by the applicable laws of descent and
distribution.
13. SHARES TO BE RESERVED. The Company shall at all times during the
term of the option reserve and keep available such number of shares of stock as
will be sufficient to satisfy the requirements of this Agreement.
14. NOTICES. Any notice to be given under the terms of this Agreement
to the Company shall be addressed to the Company in care of its Secretary and
any notice to be given to the Recipient shall be addressed to him at the address
given beneath his signature below. By a notice given pursuant to this paragraph
14, either
3
<PAGE> 4
party may hereafter designate a different address for notices to be given to
him. Any notice which is required to be given to the Recipient shall, if the
Recipient is then deceased, be given to the Recipient's personal representative
if such representative has previously informed the Company of his status and
address by written notice under this paragraph 14. Any notice shall have been
deemed duly given when enclosed in a properly sealed envelope addressed as
aforesaid, deposited (with postage prepaid) in a United States postal
receptacle.
15. TITLES. Titles are provided herein for convenience only and are not
to serve as a basis for interpretation or construction of this Agreement.
16. NOTIFICATION OF DISPOSITION. The Recipient shall give prompt notice
to the Company of any disposition or other transfer of any shares of stock
acquired under this Agreement if such disposition or transfer is made within two
(2) years from the date of the exercise of an option with respect to such
shares. Such notice shall specify the date of such disposition or other transfer
and the amount realized, in cash, other property, assumption of indebtedness or
other consideration, by the Recipient in such disposition or other transfer.
17. INCORPORATION OF PLAN BY REFERENCE. The option is granted in
accordance with the terms and conditions of the Plan, the terms of which are
incorporated herein by reference, and the Agreement shall in all respects be
interpreted in accordance with the Plan. Any term used in the Agreement that is
not otherwise defined in the Agreement shall have the meaning assigned to it by
the Plan.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties as of the date first written above.
POWERCERV CORPORATION
By:
-------------------------------
Title:
----------------------------
RECIPIENT
Geoff Joynt
4
<PAGE> 1
Exhibit 4.9
POWERCERV CORPORATION
NONSTATUTORY STOCK OPTION AGREEMENT
This Nonstatutory Stock Option Agreement (the "Agreement"), effective
as of April 7, 1998, is made by and between POWERCERV CORPORATION, a Florida
corporation (the "Company"), and John Montague, (the "Recipient").
WHEREAS, the Company wishes to grant an option to purchase shares of
the Company's common stock to the Recipient pursuant to the terms of the
PowerCerv Corporation 1995 Stock Option Plan (the "Plan").
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties agree as follows:
1. GRANT OF OPTION. In consideration of service to the Company and for
other good and valuable consideration, the Company grants to the Recipient an
option to purchase 22,736 shares of the Company's common stock in accordance
with the terms and conditions of the Plan.
2. OPTION PRICE. The purchase price of the shares of stock covered by
the option shall be $ 2.75 per share, which is the fair market value.
3. ADJUSTMENTS IN OPTION. In the event that the outstanding shares of
stock subject to the option are changed into or exchanged for a different number
or kind of shares of the Company or other securities of the Company by reason of
merger, consolidation, recapitalization, reclassification, stock split, stock
dividend or combination of shares, the shares subject to the option and the
price per share shall be equitably adjusted to reflect such changes. Such
adjustment in the option shall be made without change in the total price
applicable to the unexercised portion of the option (except for any change in
the aggregate price resulting from rounding-off of share quantities or prices)
and with any necessary corresponding adjustment in the option price per share.
Any such adjustment made by the Company's Stock Option Committee shall be final
and binding upon the Recipient, the Company and all other interested persons.
4. PERSON ELIGIBLE TO EXERCISE OPTION. During the lifetime of the
Recipient, only the Recipient may exercise the option or any portion thereof.
After the death of the Recipient, any exercisable portion of the option may,
prior to the time when the option becomes unexercisable under the terms of the
Plan, be exercised by the Recipient's personal representative or by any other
person empowered to do so under the Recipient's will, trust or under then
applicable laws of descent and distribution.
5. MANNER OF EXERCISE. The option, or any portion thereof, may be
exercised only in accordance with the terms of the Plan and solely by delivery
to the Secretary of the Company of all of the following items prior to the time
when the option or such portion becomes unexercisable under the terms of the
Plan:
(a) Notice in writing signed by the Recipient or the other
person then entitled to exercise the option or portion thereof, stating that the
option or portion thereof is thereby exercised, such notice complying with all
applicable rules (if any) established by the Stock Option Committee;
(b) Full payment (in cash or by cashiers' or certified check)
for the shares with respect to which such option or portion thereof is
exercised;
<PAGE> 2
(c) A bona fide written representation and agreement, in a
form satisfactory to the Stock Option Committee, signed by the Recipient or
other person then entitled to exercise such option or portion thereof, stating
that the shares of stock are being acquired for his own account, for investment
and without any present intention of distributing or reselling said shares or
any of them except as may be permitted under the Securities Act of 1933, as
amended (the "Act"), and then applicable rules and regulations thereunder, and
that the Recipient or other person then entitled to exercise such option or
portion will indemnify the Company against and hold it free and harmless from
any loss, damage, expense or liability resulting to the Company if any sale or
distribution of the shares by such person is contrary to the representation and
agreement referred to above. The Stock Option Committee may, in its absolute
discretion, take whatever additional actions it deems appropriate to ensure the
observance and performance of such representations and agreement and to effect
compliance with all federal and state securities laws or regulations. Without
limiting the generality of the foregoing, the Stock Option Committee may require
an opinion of counsel acceptable to it to the effect that any subsequent
transfer of shares acquired on an option exercise does not violate the Act and
may issue stop-transfer orders covering such shares. The written representations
and agreement referred to in the first sentence of this subparagraph (c),
however, shall not be required if the shares to be issued pursuant to such
exercise have been registered under the Act, and such registration is then
effective in respect of such shares; and
(d) In the event the option or any portion thereof shall be
exercised pursuant to paragraph 4 of the Agreement by any person or persons
other than the Recipient, appropriate proof, satisfactory to the Stock Option
Committee, of the right of such person or persons to exercise the option.
6. CONDITIONS TO ISSUANCE OF STOCK CERTIFICATES. The shares of stock
deliverable upon the exercise of the option, or any portion thereof, may be
either previously authorized but unissued shares or issued shares which have
been reacquired by the Company. Such shares shall be fully paid and
nonassessable.
7. RIGHTS OF SHAREHOLDERS. The Recipient shall not be, nor have any of
the rights or privileges of, a shareholder of the Company in respect of any
shares purchasable upon the exercise of any part of the option unless and until
certificates representing such shares shall have been issued by the Company to
the Recipient.
8. VESTING AND EXERCISABILITY. A Recipient's interest in the option
shall vest according to the schedule described in this paragraph 8 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 paragraph 9
of the Agreement. The option granted shall become vested according to the
following schedule:
DATE PERCENT VESTED
---- --------------
December 31, 1998 33%
December 31, 1999 66%
December 31, 2000 100%
The Stock Option Committee, in its sole and absolute discretion, may accelerate
the vesting of the option at any time.
9. DURATION OF OPTION. Except as specified below, the option granted
hereunder shall expire on April 7, 2008. Notwithstanding the foregoing, the
option may expire prior to April 7, 2008, in the following circumstances:
2
<PAGE> 3
(a) In the case of the Recipient's death, the option shall
expire on the one-year anniversary of the Recipient's death.
(b) If the Recipient's employment or affiliation with the
Company terminates by reason of normal retirement under the Company's normal
retirement policies, the option will expire 90 days after the last day of his
employment or affiliation with the Company.
(c) If the Recipient's employment or affiliation with the
Company terminates as a result of his total and permanent disability, the option
will expire on the one-year anniversary of the Recipient's last day of
employment or affiliation with the Company.
(d) If the Recipient ceases employment or affiliation with the
Company for any reason other than death, disability or retirement (as described
in the preceding paragraph), the option shall lapse immediately following the
last day that the Recipient is employed by or affiliated with the Company.
(e) Notwithstanding any provisions set forth above in this
paragraph 9, if the Recipient shall (i) commit any act of malfeasance or
wrongdoing affecting the Company or its affiliates, (ii) breach any covenant not
to compete or employment agreement with the Company or any affiliate, 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 the
Company.
10. TRIGGER EVENT. Contingent upon the occurrence of a Trigger Event,
the Board of Directors of the Company may terminate the option effective upon
the date of the Trigger Event or may accelerate the expiration of the option to
a date not earlier than the fifteenth day after the Trigger Event. If the Board
of Directors terminates the option, the Company shall make, within sixty days of
the Trigger Event, a cash payment to the Recipient equal to the difference
between the exercise price of the option and the fair market value of the shares
that would have been subject to the terminated option on the date of the Trigger
Event.
11. ADMINISTRATION. The Stock Option Committee shall have the power to
interpret this Agreement and to adopt such rules for the administration,
interpretation and application of the Agreement as are consistent herewith and
to interpret or revoke any such rules. All actions taken and all interpretations
and determinations made by the Stock Option Committee in good faith shall be
final and binding upon the Recipient, the Company and all other interested
persons. No member of the Stock Option Committee shall be personally liable for
any action, determination or interpretation made in good faith with respect to
this Agreement or any similar agreement to which the Company is a party.
12. OPTIONS NOT TRANSFERABLE. Neither the option nor any interest or
right therein or part thereof shall be subject to disposition by transfer,
alienation, anticipation, pledge, encumbrance, assignment or any other means
whether such disposition is voluntary or involuntary or by operation of law, by
judgment, levy, attachment, garnishment or any other legal or equitable
proceedings (including bankruptcy) and any attempted disposition thereof shall
be null and void and of no effect; provided, however, that this paragraph 12
shall not prevent transfers by will or by the applicable laws of descent and
distribution.
13. SHARES TO BE RESERVED. The Company shall at all times during the
term of the option reserve and keep available such number of shares of stock as
will be sufficient to satisfy the requirements of this Agreement.
14. NOTICES. Any notice to be given under the terms of this Agreement
to the Company shall be addressed to the Company in care of its Secretary and
any notice to be given to the Recipient shall be addressed to him at the address
given beneath his signature below. By a notice given pursuant to this paragraph
14, either
3
<PAGE> 4
party may hereafter designate a different address for notices to be given to
him. Any notice which is required to be given to the Recipient shall, if the
Recipient is then deceased, be given to the Recipient's personal representative
if such representative has previously informed the Company of his status and
address by written notice under this paragraph 14. Any notice shall have been
deemed duly given when enclosed in a properly sealed envelope addressed as
aforesaid, deposited (with postage prepaid) in a United States postal
receptacle.
15. TITLES. Titles are provided herein for convenience only and are not
to serve as a basis for interpretation or construction of this Agreement.
16. NOTIFICATION OF DISPOSITION. The Recipient shall give prompt notice
to the Company of any disposition or other transfer of any shares of stock
acquired under this Agreement if such disposition or transfer is made within two
(2) years from the date of the exercise of an option with respect to such
shares. Such notice shall specify the date of such disposition or other transfer
and the amount realized, in cash, other property, assumption of indebtedness or
other consideration, by the Recipient in such disposition or other transfer.
17. INCORPORATION OF PLAN BY REFERENCE. The option is granted in
accordance with the terms and conditions of the Plan, the terms of which are
incorporated herein by reference, and the Agreement shall in all respects be
interpreted in accordance with the Plan. Any term used in the Agreement that is
not otherwise defined in the Agreement shall have the meaning assigned to it by
the Plan.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties as of the date first written above.
POWERCERV CORPORATION
By:
-------------------------------
Title:
----------------------------
RECIPIENT
John Montague
4
<PAGE> 1
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 1,815,000 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 Stock Option
Agreements with Michael J. Simmons dated February 19, 1998, Ira Herman dated
April 7, 1998, Geoff Joynt dated April 7, 1998 and John Montague dated April 7,
1998 (collectively the "Agreements").
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 Agreements,
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
<PAGE> 1
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 1,815,000 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 June 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
<PAGE> 1
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 1,815,000 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 PowerCerv 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
Tampa, Florida
November 9, 1999