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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 Xxx Xxxxxx (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
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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
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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
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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
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$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.
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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:
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Xxxx X. Xxxxxxxx, Chairman and
Chief Executive Officer
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Xxx Xxxxxx
