-----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, PZC2ObmvTGQH4BRsWV6cRgw8zvfWOl8P2uf+BQnkhX5Jbu6mWxC0HnPB1eXUgL0X syDjkToSZcWLSNWNHrlBxw== 0000950144-99-012910.txt : 19991115 0000950144-99-012910.hdr.sgml : 19991115 ACCESSION NUMBER: 0000950144-99-012910 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 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: 333-90827 FILM NUMBER: 99749369 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 PLAN (Full title of the plan) ------------------- MARC J. FRATELLO CHIEF EXECUTIVE OFFICER POWERCERV CORPORATION 400 NORTH ASHLEY DRIVE SUITE 2700 TAMPA, FLORIDA 33602 (Name and address of agent for service) (813) 226-2600 (Telephone number, including area code, of agent for service) Copies of all communications to: CHESTER E. BACHELLER, ESQ. HOLLAND & KNIGHT LLP 400 NORTH ASHLEY DRIVE SUITE 2300 TAMPA, FLORIDA 33602 If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securtities Act of 1933, check the following box.
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 - --------------------------------- ----------------------- ------------------ ------------------ ------------------ Additional Common stock, par 1,000,000 $2.53 $2,530,000 $704.00 value $0.001 per share reserved under 1995 Stock Option Plan - ------------------------------------------------------------------------------------------------------------------
(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 II-1 3 reasonably entitled to indemnity. To the extent that any officers or directors are successful on the merits or otherwise in the defense of any of the proceedings described above, the Florida Act provides that the corporation is required to indemnify such officers or directors against expenses actually and reasonably incurred in connection therewith. However, the Florida Act further provides that, in general, indemnification or advancement of expenses shall not be made to or on behalf of any officer or director if a judgment or other final adjudication establishes that his actions, or omissions to act, were material to the cause of action so adjudicated and constitute: (i) a violation of the criminal law, unless the director or officer had reasonable cause to believe his conduct was lawful or had no reasonable cause to believe it was unlawful; (ii) a transaction from which the director or officer derived an improper personal benefit; (iii) in the case of a director, a circumstance under which the director has voted for or assented to a distribution made in violation of the Florida Act or the corporation's articles of incorporation; or (iv) willful misconduct or a conscious disregard for the best interests of the corporation in a proceeding by or in the right of the corporation to procure a judgment in its favor or in a proceeding by or in the right of a shareholder. Article VIII of the Registrant's Bylaws provides that the Registrant shall indemnify any director, officer, employee or agent or any former director, officer, employee or agent. The Registrant has purchased insurance with respect to, among other things, any liabilities that may arise under the statutory provisions referred to above. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. 4.1 Articles of Incorporation of the Registrant.* 4.2 Articles of Amendment to Articles of Incorporation of the Registrant.* 4.3 Bylaws of the Registrant.* 4.4 Form of Stock Certificate for the Common Stock of the Registrant.* 4.5 PowerCerv Corporation 1995 Stock Option Plan, as amended.** 5.1 Opinion of Holland & Knight LLP re legality of the Common Stock. 15.1 Letter re unaudited interim financial information. 23.1 Consent of Holland & Knight LLP (included in Exhibit 5.1). 23.2 Consent of Ernst & Young LLP. 24.1 Powers of Attorney (included on signature page). - ----------------------- * Filed as an exhibit to PowerCerv's Registration Statement No. 333-00250, as amended, filed on Form S-1 with the Commission on January 11, 1996 and incorporated by reference. ** Filed as an exhibit to PowerCerv's Registration Statement, filed on Form S-8 with the Commission on April 21, 1998 and incorporated by reference. II-2 4 ITEM 9. UNDERTAKINGS. (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions (see Item 6) or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-3 5 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 Director November , 1999 - ------------------------------------ Stuart C. Johnson /s/ David A. Straz, JR. Director November 9, 1999 - ------------------------------------ David A. Straz, Jr.
II-4 6 INDEX OF EXHIBITS 4.1 Articles of Incorporation of the Registrant.* 4.2 Articles of Amendment to Articles of Incorporation of the Registrant.* 4.3 Bylaws of the Registrant.* 4.4 Form of Stock Certificate for the Common Stock of the Registrant.* 4.5 PowerCerv Corporation 1995 Stock Option Plan, as amended.** 5.1 Opinion of Holland & Knight LLP re legality of the Common Stock. 15.1 Letter re unaudited interim financial information. 23.1 Consent of Holland & Knight LLP (included in Exhibit 5.1). 23.2 Consent of Ernst & Young LLP. 24.1 Powers of Attorney (included on signature page). - ----------------------- * Filed as an exhibit to PowerCerv's Registration Statement No. 333-00250, as amended, filed on Form S-1 with the Commission on January 11, 1996 and incorporated by reference. ** Filed as an exhibit to PowerCerv's Registration Statement, filed on Form S-8 with the Commission on April 21, 1998 and incorporated by reference. EX-5.1 2 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 1,000,000 shares (the "Shares") of the authorized common stock, par value $.001 per share, of the Company being offered to certain employees of the Company pursuant to the Company's 1995 Stock Option Plan (the "Plan"). In connection with the foregoing registration, we have acted as counsel for the Company and have examined originals, or copies certified to our satisfaction, of such corporate records of the Company, certificates of public officials, and representatives of the Company, and other documents as we deemed necessary to deliver the opinion expressed below. Based upon the foregoing, and having regard for legal considerations that we deem relevant, it is our opinion that the Shares will be, when and if issued in accordance with the exercise of options granted under the Plan, duly authorized, validly issued, and fully paid and non-assessable. We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. Very truly yours, HOLLAND & KNIGHT LLP EX-15.1 3 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 1,000,000 shares of its common stock of our reports dated April 16, 1999 and July 16, 1999 relating to the unaudited condensed consolidated interim financial statements of PowerCerv Corporation that are included in its Forms 10-Q for the quarters ended March 31, 1999 and July 30, 1999. Pursuant to Rule 436(c) of the Securities Act of 1933 our reports are not a part of the registration statement prepared or certified by accountants within the meaning of Section 7 or 11 of the Securities Act of 1933. /s/ Ernst & Young LLP Tampa, Florida November 9, 1999 EX-23.2 4 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 1,000,000 shares of its common stock of our report dated January 22, 1999, except with respect to Note 16, as to which the date is March 31, 1999, with respect to the consolidated financial statements and schedule of PowerCerve Corporation and subsidiary included in its Annual Report (Form 10-K) for the year ended December 31, 1998, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Tampa, Florida November 9, 1999 -----END PRIVACY-ENHANCED MESSAGE-----