-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NpnanbsBlh073VIpQXYdQUW0rzKUUHu55Fms/8MrhbqwqVDsMhJg8IVglLE7b4+A gazBXM3eiZrsCTxwSQnr+Q== 0000950144-99-012907.txt : 19991115 0000950144-99-012907.hdr.sgml : 19991115 ACCESSION NUMBER: 0000950144-99-012907 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 19991112 EFFECTIVENESS DATE: 19991112 FILER: COMPANY DATA: COMPANY CONFORMED NAME: POWERCERV CORP CENTRAL INDEX KEY: 0001005758 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER INTEGRATED SYSTEMS DESIGN [7373] IRS NUMBER: 593350778 STATE OF INCORPORATION: FL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-90825 FILM NUMBER: 99749347 BUSINESS ADDRESS: STREET 1: 400 NORTH ASHLEY DR STREET 2: STE 2700 CITY: TAMPA STATE: FL ZIP: 33602 BUSINESS PHONE: 8132262600 MAIL ADDRESS: STREET 1: 400 N ASHLEY DR STREET 2: STE 2700 CITY: TAMPA STATE: FL ZIP: 33602 S-8 1 POWERCERV CORPORATION 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)
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)
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.
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 - --------------------------------- ----------------------- ------------------ ------------------ ------------------ Common stock, par value $0.001 1,815,000 $2.53 $4,591,950 $1,277.00 per share - ------------------------------------------------------------------------------------------------------------------
(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. ================================================================================ 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 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 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 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 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.
SIGNATURES TITLE DATE ---------- ----- ----- /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.
II-5 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. EX-4.7 2 STOCK OPTION AGREEMENT WITH IRA HERMAN 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 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:
Date Shares With Respect To ---- Which Option Is Vested ---------------------- 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
3
Date Shares With Respect To ---- Which Option Is Vested ---------------------- 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
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:
Level of Performance Shares With Respect To Which Option Becomes Vested - -------------------- -------------------------------------------------- $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
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. 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 EX-4.8 3 STOCK OPTION AGREEMENT WITH GEOFF JOYNT 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; 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 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 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 EX-4.9 4 STOCK OPTION AGREEMENT WITH JOHN MONTAGUE 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; 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 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 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 EX-5.1 5 OPINION OF HOLLAND & KNIGHT LLP 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 EX-15.1 6 LETTER RE UNAUDITED INTERIM FINANCIAL INFORMATION 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 EX-23.2 7 CONSENT OF ERNST & YOUNG LLP 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 -----END PRIVACY-ENHANCED MESSAGE-----