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EXHIBIT 10.3
POWERCERV CORPORATION
STOCK OPTION AGREEMENT
This Stock Option Agreement (the "Agreement"), effective as of
February 19, 1998, is made by and between PowerCerv Corporation, a Florida
corporation (the "Company"), and Xxxxxxx X. Xxxxxxx (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 938,000 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 $1.6565 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
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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 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 schedule:
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Shares With Respect To Which
Date Option Becomes Vested
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Recipient's Employment Commencement Date 200,000
March 31, 1998 210,000
April 30, 1998 220,000
May 31, 1998 230,000
June 30, 1998 240,000
July 31, 1998 250,000
August 31, 1998 260,000
September 30, 1998 308,000
October 31, 1998 318,000
November 30, 1998 328,000
December 31, 1998 338,000
January 31, 1999 346,333
February 28, 1999 354,666
March 31, 1999 362,999
April 30, 1999 371,332
May 31, 1999 379,665
June 30, 1999 387,998
July 31, 1999 396,331
August 31, 1999 404,664
September 30, 1999 412,997
October 31, 1999 421,330
November 30, 1999 429,663
December 31, 1999 438,000
January 31, 2000 446,333
February 29, 2000 454,666
March 31, 2000 462,999
April 30, 2000 471,332
May 31, 2000 479,665
June 30, 2000 487,998
July 31, 2000 496,331
August 31, 2000 504,664
September 30, 2000 512,997
October 31, 2000 521,330
November 30, 2000 529,663
December 31, 2000 538,000
The remaining portion of the Option, covering the remaining 400,000 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
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the NASDAQ as follows:
Shares With Respect To Which
Level of Performance Option Becomes Vested
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$5.00/share or higher close price for 100,000
20 consecutive trading days
$9.00/share or higher close price for 150,000
20 consecutive trading days
$14.00/share or higher close price for 150,000
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 February 19,
1998, between the Company and the Recipient (the "Employment Agreement"). The
provisions of Section 10 of the Employment Agreement are incorporated herein by
reference.
8. DURATION OF OPTION. The Option shall expire on the earliest
of (i) February 19, 2008, (ii) the first anniversary of the date of the
Recipient's death, 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:
(a) That this Section 9 shall not prevent transfers by
will or by the applicable laws of descent and distribution. In the
event of the Recipient's death, the Option shall be exercisable by the
executor or administrator of the Recipient's estate or by the person or
persons to whom the Recipient's rights under the Option shall pass by
the Recipient's will or the applicable laws of descent and
distribution; and
(b) That the Recipient may transfer the Option in its
entirety to an employee of the Company or its subsidiary within 30 days
following the date the Recipient receives from the Compensation
Committee of the Company's Board of Directors a written consent to such
transfer.
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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: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx, Chairman
and Chief Executive Officer
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
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