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EXHIBIT 10.2
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 62,000 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 $1.6563 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. 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 this Agreement, 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 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;
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(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) 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 pursuant to Section 4 of the Agreement 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.
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. The Recipient's interest in the
option shall vest according to the schedule described in this Section 8 and
shall be exercisable as to not more than
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the vested portion 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 Section 9 of the Agreement. The option
granted shall become vested according to the following schedule:
Date Vested Percentage
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February 19, 1998 0%
March 31, 1998 10%
April 30, 1998 20%
May 31, 1998 30%
June 30, 1998 40%
July 31, 1998 50%
August 31, 1998 60%
September 30, 1998 70%
October 31, 1998 80%
November 30, 1998 90%
December 31, 1998 100%
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 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.
9. 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) the first anniversary of the date the Recipient
terminates employment with the Company. As of the date of 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.
10. OPTION 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 Section 10
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.
11. NOTICES. Any notice to be given under the terms of this
Agreement to the Company
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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 11, 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 11. 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.
12. TITLES. Titles are provided herein for convenience only and
are not to serve as a basis for interpretation or construction of this
Agreement.
13. 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.
14. 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.
15. 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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