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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 Xxxx Xxxxxxxx, (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;
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(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
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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:
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(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
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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:
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Title:
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RECIPIENT
Xxxx Xxxxxxxx
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