SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934 (Amendment No. )
Filed by the Registrant [X]
Filed by a party other than the Registrant [ ]
Check the appropriate box:
[ ] Preliminary Proxy Statement [ ] Confidential, for Use of the
[X] Definitive Proxy Statement Commission Only (as permitted
[ ] Definitive Additional Materials by Rule 14a-6(e)(2))
[ ] Soliciting Material Pursuant to Section 240.14a-12
MERCATOR SOFTWARE, INC.
(Name of Registrant as Specified In Its Charter)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(1)
and 0-11.
1) Title of each class of securities to which transaction applies:
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2) Aggregate number of securities to which transaction applies:
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3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined):
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4) Proposed maximum aggregate value of transaction:
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5) Total fee paid:
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[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
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2) Form, Schedule or Registration Statement No.:
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3) Filing Party:
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4) Date Filed:
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AS FILED WITH THE COMMISSION ON MAY 2, 2003
MERCATOR SOFTWARE, INC.
45 DANBURY ROAD
WILTON, CONNECTICUT 06897
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NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD MAY 30, 2003
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To Our Stockholders:
NOTICE IS HEREBY GIVEN that the Annual Meeting of Stockholders of Mercator
Software, Inc. ("Mercator" or the "Company") will be held at the office complex
located at 20 Westport Road, South Building, Wilton, Connecticut, on Friday, May
30, 2003, at 9:00 a.m. Eastern Time.
At the meeting, you will be asked to consider and vote upon the following
matters:
1. The election of seven directors of the Company, each to serve until
Mercator's next Annual Meeting of Stockholders and until his or her
successor has been elected and qualified. THE BOARD UNANIMOUSLY
RECOMMENDS A VOTE "FOR" THE ELECTION OF ITS NOMINEES ON THE ENCLOSED
PROXY CARD.
2. A proposal to ratify the selection of KPMG LLP as the Company's
independent accountants for the fiscal year ending December 31, 2003.
THE BOARD UNANIMOUSLY RECOMMENDS A VOTE "FOR" THIS PROPOSAL.
3. To transact such other business as may properly come before the
meeting or any adjournment or postponement thereof.
The foregoing items of business are more fully described in the Proxy
Statement accompanying this Notice. Only stockholders of record at the close of
business on April 7, 2003 are entitled to notice of and to vote at the Meeting
or any adjournment or postponement thereof. You may examine a list of the
stockholders of record as of the close of business on April 7, 2003 for any
purpose germane to the meeting during the ten-day period preceding the date of
the meeting at Mercator's offices, located at 45 Danbury Road, Wilton,
Connecticut 06897.
If you hold your shares through a broker or other nominee, proof of
ownership will be accepted by the Company only if you bring either a copy of the
voting instruction card provided by your broker or nominee, or a copy of a
brokerage statement showing your share ownership in the Company as of April 7,
2003.
IF YOU HAVE ANY QUESTIONS, OR NEED ASSISTANCE VOTING, PLEASE CONTACT THE
FIRM ASSISTING US IN THE SOLICITATION OF PROXIES, D.F. KING & CO., INC. TOLL
FREE AT (800) 859-8509 (IN THE UNITED STATES) OR (212) 269-5550 (COLLECT, FOR
INTERNATIONAL CALLS).
By Order of the Board of Directors
David L. Goret
SECRETARY
Wilton, Connecticut
May 2, 2003
MERCATOR SOFTWARE, INC.
45 DANBURY ROAD
WILTON, CONNECTICUT 06897
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PROXY STATEMENT
FOR THE ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD ON MAY 30, 2003
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The accompanying proxy is solicited on behalf of the Board of Directors
(the "Board") of Mercator Software, Inc., a Delaware corporation (the "Company"
or "Mercator"), for use at the Annual Meeting of Stockholders of the Company to
be held at the office complex located at 20 Westport Road, South Building,
Wilton, Connecticut, on Friday, May 30, 2003, at 9:00 a.m. Eastern Time and any
adjournments or postponements thereof (the "2003 Annual Meeting"). This Proxy
Statement and the accompanying form of proxy are being mailed to stockholders on
or about May 5, 2003. The Company's Annual Report on Form 10-K for the year
ended December 31, 2002, which is not part of the proxy soliciting materials, is
enclosed. Only holders of record of the Company's common stock at the close of
business on the record date for the Meeting, which is April 7, 2003, will be
entitled to vote at the Meeting. A majority of the shares of common stock
outstanding on the record date will constitute a quorum for the transaction of
business at the Meeting. At the close of business on the record date, the
Company had 35,168,315 shares of common stock outstanding and entitled to vote.
As you may know, on March 14, 2003 a group called Strategic Software
Holdings, LLC/Broken Arrow I, L.P. ("SSH/Broken Arrow") commenced a proxy
contest by nominating a slate of directors to replace the current members of the
Board.
Thereafter, representatives of the Company and representatives of
SSH/Broken Arrow commenced discussions about the possibility of avoiding a proxy
contest at the 2003 Annual Meeting. Such discussions continued through April 17,
2003. On April 17, 2003, the Company and SSH/Broken Arrow entered into a
settlement agreement, pursuant to which, among other things, SSH/Broken Arrow
agreed to support (and the members of the SSH/Broken Arrow group agreed to vote
all of their shares of common stock in favor of) the Company's slate of seven
nominees standing for election as directors at the 2003 Annual Meeting. Under
the settlement agreement, SSH/Broken Arrow agreed to certain "standstill"
restrictions until January 15, 2004. These restrictions prevent the members of
the SSH/Broken Arrow group from, among other things:
o attempting to gain control of the Board;
o making any "hostile" proposals to acquire the Company; and
o selling common stock (other than sales on the open market that do not
exceed 1% of the outstanding common stock during any 30-day period, any sale
through broker-dealers directly to principals who will not own more than 5% of
our stock after giving effect thereto and certain other specified transactions).
The settlement agreement also provides that Rodney Bienvenu will be engaged
as a special advisor to the Board regarding the Company's strategic affairs, and
that he will make a presentation to the Board regarding the Company's strategic
affairs at the meeting of the Board to be held following the 2003 Annual Meeting
and at such other meetings of the Board prior to the termination of the
"standstill" period as the Company and Mr. Bienvenu may from time to time
thereafter mutually agree. The Company will reimburse Mr. Bienvenu for the
reasonable expenses incurred by him in traveling to such meetings plus $1,500
for each such meeting attended by him. In connection with Mr. Bienvenu's
engagement as a strategic advisor to the Board, he agreed to enter into a
non-disclosure agreement with the Company.
Pursuant to the settlement agreement, the Company has agreed to reimburse
the SSH/Broken Arrow group for actual expenses in the amount of $300,000.
Given the substantial costs Mercator and its stockholders would incur as a
result of continuing the proxy contest through the 2003 Annual Meeting date, and
taking into consideration the adverse impact of this matter we have seen on our
customers and partners to date, we strongly believe that this settlement is in
the best interest of all of our stockholders, as well as our customers, partners
and employees. The settlement limits the amount of money and other resources
that would otherwise be spent in waging the contest to its conclusion and it
eliminates a significant distraction to employees, customers and partners alike.
Because of the settlement, the Company can now focus exclusively on the
execution of our strategic plan to deliver value to all Mercator stakeholders.
QUESTIONS AND ANSWERS ABOUT THE 2003 ANNUAL MEETING
HOW DO I VOTE IN PERSON?
If you owned shares of the Company's common stock on the record date, April
7, 2003, you may attend the 2003 Annual Meeting and vote in person. If you are
not the record holder of your shares, please refer to the discussion following
the question "What if I am not the record holder of my shares?" If you hold your
shares in the name of a bank or broker, you will not be able to vote in person
at the 2003 Annual Meeting, unless you have previously specially requested and
obtained a "legal proxy" from your bank or broker and present it at the Annual
Meeting.
HOW DO I VOTE BY PROXY?
To vote by proxy, you should complete, sign and date the enclosed proxy
card and return it promptly in the enclosed postage-paid envelope. To be able to
vote your shares in accordance with your instructions at the 2003 Annual
Meeting, we must receive your proxy as soon as possible but in any event prior
to the Annual Meeting.
WHAT IF I AM NOT THE RECORD HOLDER OF MY SHARES?
If your shares are held in the name of a brokerage firm, bank nominee or
other institution ("Custodian"), only it can give a proxy with respect to your
shares. You may have received either a blank, executed proxy card from your
Custodian (which you can complete and send directly to the Company) or an
instruction card (which you can complete and return to the Custodian to direct
its voting of your shares). If your Custodian has not sent you either a blank,
executed proxy card or an instruction card, you may contact the Custodian
directly to provide it with instructions. If you need assistance, please contact
our solicitor, D.F. King & Co., Inc., toll-free at (800) 859-8509 (in the United
States) or (212) 269-5550 (collect, for international calls).
If your shares are held in the name of a Custodian, and you want to vote in
person at the 2003 Annual Meeting, you may request a document called a "legal
proxy" from the Custodian and bring it to the 2003 Annual Meeting. If you need
assistance, please contact our solicitor, D.F. King & Co., Inc., toll-free at
(800) 859-8509 (in the United States) or (212) 269-5550 (collect, for
international calls).
WHAT IF I WANT TO REVOKE MY PROXY?
If you give a proxy, you may revoke it at any time before it is voted on
your behalf. You may do so in three ways:
- By delivering a later-dated proxy to either our proxy solicitor, D.F.
King & Co., Inc., or our secretary; or
- By delivering a written notice of revocation to either our proxy
solicitor or our secretary; or
- By voting in person at the 2003 Annual Meeting.
IF I PLAN TO ATTEND THE 2003 ANNUAL MEETING, SHOULD I STILL SUBMIT A PROXY?
Whether you plan to attend the 2003 Annual Meeting or not, we urge you to
submit a proxy card. Returning the enclosed proxy card will not affect your
right to attend the 2003 Annual Meeting and vote.
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WHO CAN VOTE?
You are eligible to vote or to execute a proxy only if you owned shares of
the Company's common stock on the record date for the 2003 Annual Meeting, April
7, 2003. Even if you sell your shares after the record date, you will retain the
right to execute a proxy in connection with the 2003 Annual Meeting. It is
important that you grant a proxy regarding shares you held on the record date,
or vote those shares in person, even if you no longer own those shares. At the
close of business on April 7, 2003, 35,168,315 shares of the Company's common
stock were entitled to vote.
HOW MANY VOTES DO I HAVE?
With respect to each matter to be considered at the 2003 Annual Meeting,
each stockholder will have one vote for each share of the Company's common stock
held by it on the record date. The Company has no outstanding voting securities
other than its common stock.
HOW WILL MY SHARES BE VOTED?
If you give a proxy on the accompanying proxy card, your shares will be
voted as you direct. If you submit a proxy to us without instructions, our
representatives will vote your shares in favor of our nominees. Submitting a
proxy card will entitle our representatives to vote your shares in accordance
with their discretion on matters not described in this proxy statement that may
arise at the 2003 Annual Meeting.
Unless a proxy specifies otherwise, it will be presumed to relate to all
shares held of record on the record date by the person who submitted it.
WHAT IS A QUORUM AND WHY IS IT NECESSARY?
Conducting business at the 2003 Annual Meeting requires a quorum. For a
quorum to exist, stockholders representing a majority of the votes eligible to
be cast must be present in person or represented by proxy. Under the Delaware
General Corporation Law, the Company's certificate of incorporation and By-laws,
abstentions and broker non-votes are treated as present for purposes of
determining whether a quorum exists.
WHAT VOTE IS REQUIRED TO APPROVE EACH PROPOSAL AND HOW WILL VOTES BE COUNTED?
If a quorum is present, directors will be elected by a plurality of the
votes cast. This means that the seven nominees receiving the highest number of
votes will be elected as directors.
Broker-dealers will have discretionary authority for beneficial owners in
the election of directors. Accordingly, broker non-votes will be counted for
purposes of determining whether a quorum is present and will have the effect of
a vote for the election of each of the nominees. Stockholders do not have the
right to cumulate their votes.
Each proposal other than the election of directors will be adopted if a
majority of the shares represented at the 2003 Annual Meeting and entitled to
vote on the proposal are voted in its favor. Accordingly, abstentions on each
such proposal will have the same effect as a vote against the proposal. Broker
non-votes will not have any effect on any such proposal.
HOW CAN I RECEIVE MORE INFORMATION?
If you have any questions about giving your proxy or about our
solicitation, or if you require assistance, please call D.F. King & Co., Inc.,
toll-free at (800) 859-8509 (in the United States) or (212) 269-5550 (collect,
for international calls).
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information with respect to the
beneficial ownership of Mercator common stock as of April 7, 2003 by: (i) each
stockholder known by the Company to be the beneficial owner of more than 5% of
the Company's common stock; (ii) each director and nominee; (iii) each of the
named executive officers of the Company listed in the table under the caption
"Executive Compensation"; (iv) all directors and executive officers as a group;
and (v) SSH/Broken Arrow. Except as otherwise indicated in the footnotes to the
table, the beneficial owners have sole voting and investment power (subject to
community property laws where applicable) as to all of the shares beneficially
owned by them.
AMOUNT AND NATURE OF PERCENT OF OUTSTANDING
NAME AND ADDRESS OF BENEFICIAL OWNER (1) BENEFICIAL OWNERSHIP COMMON STOCK (2)
---------------------------------------- -------------------- ----------------
Ernest E. Keet ...................................... 1,666,867 (3) 4.7%
Roy C. King ......................................... 989,589 (4) 2.7%
Constance F. Galley ................................. 963,304 (5) 2.7%
James P. Schadt ..................................... 598,457 (6) 1.7%
Kenneth J. Hall ..................................... 408,486 (7) 1.2%
David S. Linthicum .................................. 339,979 (8) *
Mark W. Register .................................... 234,706 (9) *
Jill M. Donohoe ..................................... 201,557 (10) *
Dennis G. Sisco ..................................... 110,000 (11) *
Mark C. Stevens ..................................... 60,000 (12) *
Michael E. Lehman ................................... 37,500 (13) *
Robert J. Farrell ................................... -- --
Michael E. Wheeler .................................. -- --
All executive officers and directors as a group
(17 persons) ...................................... 5,952,837 (14) 15.3%
Strategic Software Holdings, LLC .................... 1,672,500 (15) 4.7%
Rodney Bienvenu
James Dennedy
Charter Oak Partners, L.P ........................... 906,900 (15) 2.6%
Scott A. Fine
Peter J. Richards
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* Less than 1%
(1) Except as otherwise noted, the address of record is c/o Mercator Software,
Inc., 45 Danbury Road, Wilton, CT 06897.
(2) Based upon a total of (i) 35,168,315 shares of common stock outstanding as
of April 7, 2003, and (ii) shares of common stock issuable pursuant to
options held by the respective person or group which may be exercised
within 60 days of April 7, 2003. Shares of common stock subject to options
that are exercisable within 60 days of April 7, 2003 are deemed to be
outstanding and beneficially owned by the person holding such options for
the purpose of computing the percentage ownership of such person but are
not treated as outstanding for the purpose of computing the percentage
ownership of any other person.
(3) Consists of 98,000 shares of common stock subject to options currently
exercisable or exercisable within 60 days of April 7, 2003 held by Ernest
E. Keet, 250,000 shares of common stock held of record by Vanguard Atlantic
Ltd. ("Vanguard"), 284,884 shares of common stock held of record by the
Ernest E. & Nancy R. Keet Foundation, 413,761 shares of common stock held
of record by the Ernest E. Keet Grantor Retained Annuity Trust, 499,136
shares of common stock held of record by the Ernest E. & Nancy R. Keet
Family Trust, and 121,086 shares of common stock held of record by Mr.
Keet. Mr. Keet exercises voting and investment power with respect to the
shares held by the Ernest E. & Nancy R. Keet Foundation, the Ernest E. Keet
Grantor Retained Annuity Trust, and the Ernest E. & Nancy R. Keet Family
Trust. Mr. Keet is the President of Vanguard and
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exercises voting and investment power with respect to its shares of the
Company's common stock and may be deemed to beneficially own the shares
owned by such entity. Mr. Keet disclaims beneficial ownership of the shares
held by Vanguard, the Ernest E. & Nancy R. Keet Foundation, the Ernest E. &
Nancy R. Keet Family Trust, and by the Ernest E. Keet Grantor Retained
Annuity Trust, except to the extent of his pecuniary interest therein. The
address of Mr. Keet is c/o Vanguard, P.O. Box 1360, Saranac Lake, NY 12983.
(4) Consists of 901,562 shares of common stock subject to options currently
exercisable or exercisable within 60 days of April 7, 2003 and 88,027
shares of common stock held of record by Mr. King.
(5) Includes 432,500 shares of common stock subject to options currently
exercisable or exercisable within 60 days of April 7, 2003, and 523,804
shares of common stock held of record by Ms. Galley. Also includes 7,000
shares of common stock owned by Ms. Galley's husband, Richard Galley, with
respect to which Ms. Galley disclaims beneficial ownership.
(6) Includes 543,500 shares of common stock subject to options currently
exercisable or exercisable within 60 days of April 7, 2003 and 47,957
shares of common stock held of record by Mr. Schadt. Also includes 7,000
shares of common stock held by Mr. Schadt's wife, Barbara Schadt, with
respect to which Mr. Schadt disclaims beneficial ownership.
(7) Consists of 382,353 shares of common stock subject to options currently
exercisable or exercisable within 60 days of April 7, 2003 and 26,133
shares of common stock held of record by Mr. Hall.
(8) Consists of 332,693 shares of common stock subject to options currently
exercisable or exercisable within 60 days of April 7, 2003 and 7,286 shares
of common stock held of record by Mr. Linthicum.
(9) Consists of 223,669 shares of common stock subject to options currently
exercisable or exercisable within 60 days of April 7, 2003 and 11,037
shares of common stock held of record by Mr. Register.
(10) Consists of 201,557 shares of common stock subject to options currently
exercisable or exercisable within 60 days of April 7, 2003.
(11) Consists of 95,000 shares of common stock subject to options currently
exercisable or exercisable within 60 days of April 7, 2003 and 15,000
shares of common stock held of record by Mr. Sisco.
(12) Consists of 59,500 shares of common stock subject to options currently
exercisable or exercisable within 60 days of April 7, 2003 and 500 shares
of common stock held of record by The Stevens-Murphy Living Trust, of which
Mr. Stevens and his wife are Trustees.
(13) Consists of 17,500 shares of common stock subject to options currently
exercisable or exercisable within 60 days of April 7, 2003, and 20,000
shares of common stock held of record by Mr. Lehman.
(14) Includes an aggregate of 3,613,708 shares of common stock subject to
options currently exercisable or exercisable within 60 days of April 7,
2003.
(15) Pursuant to Schedule 13D, Amendment No. 4, filed with the Securities and
Exchange Commission on April 4, 2003, Strategic Software Holdings, LLC
("SSH"), on behalf of Broken Arrow I, L.P. ("Broken Arrow"), owns 1,672,500
shares of common stock. Bienvenu Management, LLC ("Bienvenu Management")
does not directly own any shares of common stock, but as the manager of
SSH/Broken Arrow, it may be deemed to be a beneficial owner of 1,672,500
shares of common stock. Messrs. Bienvenu and Dennedy, as the sole members
of Bienvenu Management, direct the operations of Bienvenu Management.
Neither Mr. Bienvenu nor Mr. Dennedy directly owns any shares of common
stock, but they have the sole voting and dispositive powers with respect to
the shares of common stock beneficially owned by SSH. By reason of the
provisions of Rule 13d-3 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), each may be deemed to beneficially own the shares
deemed beneficially owned by Bienvenu Management. Empire Capital Partners,
L.P. ("Empire Capital") does not directly own any shares of common stock
but because it has a majority ownership interest in Broken Arrow, Empire
Capital may be deemed to be a beneficial owner of 1,672,500 shares of
common stock. Empire GP, L.L.C. ("Empire GP"), as the general partner of
Empire Capital, may be deemed to be the beneficial owner of 1,672,500
shares of common stock. Empire GP, as an affiliate of Empire Capital
Management, L.L.C. ("Empire Capital Management"), may be deemed to be the
beneficial owner of an additional 906,900 shares of common stock. Messrs.
Fine and Richards, as the sole members of Empire GP, direct the operations
of Empire GP. Neither Mr. Fine nor Mr. Richards directly owns any shares of
common stock, but they have the sole voting
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and dispositive powers with respect to the shares of common stock
beneficially owned by Charter Oak (as defined below). By reason of the
provisions of Rule 13d-3 of the Exchange Act, each may be deemed to
beneficially own the shares deemed beneficially owned by Empire Capital and
Empire GP. Charter Oak Partners, L.P. ("Charter Oak") beneficially owns
906,900 shares of common stock. Pursuant to its discretionary investment
management agreement with Charter Oak, Empire Capital Management has the
power to vote or direct the vote and the power to dispose or direct the
disposition of 906,900 shares of common stock. Empire Capital Management,
as an affiliate of Empire GP, may be deemed to be the beneficial owner of
an additional 1,672,500 shares of common stock. Messrs. Fine and Richards,
as the managing members of Empire Capital Management, each may be deemed to
beneficially own the shares deemed beneficially owned by Empire Capital
Management. The address of Broken Arrow, SSH, Bienvenu Management, Mr.
Bienvenu and Mr. Dennedy is 1465 East Post Road, 2nd Floor, Westport, CT
06880. The address of Empire Capital, Empire GP, Empire Capital Management,
Mr. Fine and Mr. Richards is 1 Gorham Island, Westport, CT 06880. The
address of Charter Oak is 10 Wright Street, Building B, 4th Floor,
Westport, CT 06880.
PROPOSAL NO. 1 -- ELECTION OF DIRECTORS
The Board currently consists of seven directors, all of whom are nominated
for election at the 2003 Annual Meeting. Each director will be elected to serve
until the next annual meeting of stockholders and until his or her successor is
duly elected and qualified or until such director's earlier resignation, death
or removal.
Shares represented by the accompanying proxy will be voted "for" the
election of the seven nominees recommended by the Board unless the proxy is
marked in such a manner as to withhold authority so to vote. In the event that
any nominee for any reason is unable to or will not serve, the proxies may be
voted for such substitute nominee as the proxy holders may determine. The
Company is not aware of any nominee who will be unable to or will not serve as a
director.
Directors will be elected by a plurality of the votes present in person or
represented by proxy at the 2003 Annual Meeting and entitled to vote in the
election of directors. The seven nominees for election of directors who receive
the greatest number of votes cast for the election of directors at the 2003
Annual Meeting will become directors at the conclusion of the tabulation of
votes.
THE BOARD RECOMMENDS A VOTE FOR THE ELECTION OF EACH OF THE
FOLLOWING NOMINATED DIRECTORS.
NOMINEES
The names of the nominees, each of whom is currently a director of the
Company, and certain information about them, are set
forth below:
NAME OF DIRECTOR AGE PRINCIPAL OCCUPATION DIRECTOR SINCE
---------------- --- -------------------- --------------
Constance F. Galley ................. 61 Retired Chief Executive Officer & President, 1985
Mercator Software, Inc. and Consultant
Ernest E. Keet (1) .................. 62 President, Vanguard Atlantic Ltd. 1985
Roy C. King ......................... 49 Chairman of the Board of Directors, Chief 2001
Executive Officer & President
Michael E. Lehman (1) ............... 52 Financial Consultant 2002
James P. Schadt (2) ................. 64 Vice Chairman of the Board of Directors 1998
Dennis G. Sisco (1)(2)(3) ........... 56 Partner, Behrman Capital 1990
Mark C. Stevens (2)(3) .............. 43 Consultant 2000
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(1) Member of the Audit Committee
(2) Member of the Compensation Committee
(3) Member of the Stock Option Committee
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Constance F. Galley has served as a Director of Mercator since April 1985.
From April 1985 until her retirement in November 2000, Ms. Galley was Chief
Executive Officer and President of the Company. Since November 2000, Ms. Galley
has been an independent consultant. Ms. Galley has over 30 years' experience in
the software industry, including technical and management positions at IBM and
Dun & Bradstreet. Ms. Galley received a BA from Duke University.
Ernest E. Keet has served as a Director of Mercator since April 1985. Mr.
Keet has been the President and a Director of Vanguard Atlantic Ltd., a venture
capital firm, since September 1984. Mr. Keet is a Director of Axolotl Corp.
(formerly AccentHealth) and serves on the boards of Engenia Software Inc.,
Cinemetrix Inc., ALARA Inc., the Trudeau Institute, and the Charles Babbage
Foundation. Mr. Keet received a BME from Cornell University and an MS from New
York University.
Roy C. King was elected Chief Executive Officer, President and a Director
of Mercator in January 2001 and Chairman of the Board in March 2001. Prior to
joining Mercator, Mr. King was President and CEO of Immedient Corporation, an
e-business solutions company, from May 2000 through November 2000. He previously
spent seven years at IBM, a multinational computer hardware, software and
services company. While at IBM, Mr. King served as Executive -- Business
Innovation Services-Industrial Sector from February 2000 to May 2000; he served
as General Manager, Consulting and Integration -- Europe, Middle East, Africa
from July 1997 through February 2000; he served as Vice President, Worldwide
Manufacturing Industries Consulting from January 1996 through July 1997; and he
served as Vice President, Manufacturing Industries Consulting -- North America
from July 1993 through January 1996. Mr. King received a BS from Iowa State
University and an MBA from Harvard University.
Michael E. Lehman has served as a Director of Mercator since April 2002.
Mr. Lehman has been an independent financial consultant since July 2002. From
July 2000 to July 2002, Mr. Lehman was Executive Vice President, Corporate
Resources and Chief Financial Officer of Sun Microsystems, Inc. and he served as
Vice President, Corporate Resources and Chief Financial Officer of Sun
Microsystems, Inc. from January 1998 to July 2000. Mr. Lehman serves on the
Boards of Sun Microsystems, Inc., Net IQ, MGIC, and Echelon, Inc. Mr. Lehman
received a BBA from University of Wisconsin.
James P. Schadt served as interim Chief Executive Officer of the Company
from November 2000 until January 2001. Mr. Schadt has served as a Director of
Mercator since August 1998 and was Chairman of the Board from August 2000 until
March 2001. He has been Vice Chairman since March 2001. Mr. Schadt served as the
Chairman of Dailey Capital Management, L.P. from December 1998 until January
2002. From July 1994 until his retirement in August 1997, Mr. Schadt was the
Chief Executive Officer of Readers Digest Association, Inc. Mr. Schadt received
a BA from Northwestern University.
Dennis G. Sisco has served as a Director of Mercator since January 1990.
Since January 1998, he has been a partner of Behrman Capital, a private equity
investment firm with more than $1.1 billion in assets under management.
Previously Mr. Sisco served as Executive Vice President of Dun & Bradstreet and
one of its successor entities, Cognizant Corporation. He also serves as a
Director of Gartner Inc. and several private companies. Mr. Sisco received a BA
from McDaniel College and is a member of the McDaniel College Board of Trustees.
Mark C. Stevens has served as a Director of Mercator since October 2000.
Mr. Stevens has been an independent consultant since August 2001. From January
1999 to August 2001, Mr. Stevens was Executive Vice President, Business
Development of At Home Corporation, where he was responsible for leading the
company's business and corporate development activities. At Home Corporation
filed for bankruptcy protection under Chapter 11 of the Federal bankruptcy laws
in November 2001. From June 1990 to January 1999, Mr. Stevens was a partner with
the law firm of Fenwick & West. Mr. Stevens received a BS from Santa Clara
University and a JD from Northwestern University.
7
BOARD OF DIRECTORS MEETINGS AND COMMITTEES
BOARD OF DIRECTORS
The Board of Directors has standing Audit, Compensation and Stock Option
Committees. The Board of Directors does not have a nominating committee or a
committee performing similar functions, but has in the past performed such
functions itself.
During 2002, the Board met nine times. Diane Baker, who resigned as a
director on February 13, 2002, attended no meetings during 2002.
AUDIT COMMITTEE
The Audit Committee is comprised of Messrs. Lehman (Chairman), Keet and
Sisco, all of whom are independent (as independence is defined in Rule
4200(a)(14) of the Nasdaq Marketplace Rules). The Audit Committee met 10 times
during 2002. The Audit Committee meets with the Company's independent
accountants to review the adequacy of the Company's internal control systems and
financial reporting procedures; reviews the general scope of the Company's
annual audit and the fees charged by the independent accountants; reviews and
monitors the performance of non-audit services by the Company's independent
accountants; reviews the fairness of any proposed transaction between the
Company and any officer, director or other affiliate of the Company (other than
transactions subject to the review of the Compensation Committee), and after
such review, makes recommendations to the full Board; and performs such further
functions as may be required by the Nasdaq National Market, on which the
Company's common stock is listed.
Ms. Baker, Chairperson of the Audit Committee in 2001, resigned from the
Board and the Audit Committee in February 2002. Accordingly, in view of the
Company's need for an immediate replacement for Ms. Baker and its inability to
locate a new Audit Committee member on short notice, and under such limited and
exceptional circumstances, the Board appointed Mr. Schadt as interim Chairman of
the Audit Committee for the period from February 2002 until April 2002 based on
his knowledge and experience in financial matters. Mr. Schadt is not
"independent" as that term is defined in Rule 4200(a)(14) of the Nasdaq
Marketplace Rules because he was employed by the Company as Chairman of the
Board and interim Chief Executive Officer within the past three years. In April
2002, the Board elected Michael E. Lehman as a Director and as Chairman of the
Audit Committee to replace Mr. Schadt.
COMPENSATION COMMITTEE
Messrs. Schadt (Chairman), Sisco and Stevens comprise the Compensation
Committee. During 2002, the Compensation Committee met eight times. The
Compensation Committee recommends compensation for officers and key employees of
the Company.
STOCK OPTION COMMITTEE
Messrs. Stevens (Chairman) and Sisco comprise the Stock Option Committee.
Messrs. Stevens and Sisco are non-employee directors within the meaning of
Section 16 of the Securities Exchange Act of 1934, as amended ("Exchange Act"),
and Messrs. Stevens and Sisco are "outside directors" within the meaning of
Section 162(m) of the Internal Revenue Code of 1986, as amended (the "Code").
Neither of the members of the Stock Option Committee has any interlocking
relationships as defined by the Securities and Exchange Commission ("SEC").
During 2002, the Stock Option Committee met four times. The Stock Option
Committee is authorized to administer the Company's equity compensation plans
(other than the 1997 Directors Stock Option Plan) including granting stock
options and awarding restricted stock and stock bonuses pursuant to such plans.
The President/Chief Executive Officer has been delegated authority to grant
limited stock options to persons who are not subject to Section 16 of the
Exchange Act.
8
AUDIT COMMITTEE REPORT
The Audit Committee is presently comprised of Messrs. Lehman, Keet and
Sisco, all of whom have been determined to be independent as defined by the
Nasdaq Marketplace Rules. None of the members of the Audit Committee have a
relationship with the Company or its subsidiaries, which would interfere with
that Audit Committee member's exercise of independent judgment in carrying out
the responsibility of a director. In 2001, the Audit Committee adopted a written
charter which has been approved by the Board of Directors and was set forth as
an exhibit to the Company's proxy statement for the 2001 Annual Meeting of
Stockholders. That charter is currently in effect. The Audit Committee has
fulfilled its responsibilities and duties as set forth in the written charter.
The Audit Committee has reviewed and discussed the Company's audited
financial statements with management, which has primary responsibility for the
financial statements. KPMG LLP ("KPMG"), the Company's independent accountants
for 2002, is responsible for expressing an opinion on the conformity of the
Company's audited financial statements with accounting principles generally
accepted in the United States of America.
The Audit Committee has discussed with KPMG the matters that are required
to be discussed by Statement on Auditing Standards No. 61 (Communication with
Audit Committees), as modified or supplemented. The Audit Committee has received
from KPMG the written disclosures and the letter required by Independence
Standards Board Standard No. 1 (Independence Discussions with Audit Committees),
as modified or supplemented, and the Audit Committee discussed and affirmed the
independence of KPMG from management and the Company. The Audit Committee has
received the reports of the Chief Executive Officer and the Chief Financial
Officer relating to their evaluation of the Company's internal controls. The
Audit Committee also considered whether KPMG's provision of non-audit services
(including those services included under the caption "All Other Fees") is
compatible with maintaining KPMG's independence.
Based on the review and discussions referred to above, and additional
matters deemed relevant and appropriate by the Audit Committee, the Audit
Committee recommended to the Board of Directors that the audited financial
statements be included in the Company's Annual Report on Form 10-K for 2002 and
that KPMG be appointed independent accountants for the Company for 2003.
This report is provided by the following directors who constitute the Audit
Committee:
Michael E. Lehman, Chairman
Ernest E. Keet
Dennis G. Sisco
INDEPENDENT ACCOUNTANTS FEES
In addition to retaining KPMG to audit the Company's consolidated financial
statements for 2002, the Company retained KPMG to provide various non-audit
services in 2002, and expects to continue to do so in the future. The aggregate
fees billed for professional services by KPMG in 2002 for these various services
were:
Audit Fees: $613,000 for professional services rendered for the audit of
the Company's consolidated financial statements for 2002 and the quarterly
reviews of the financial statements included in the Company's Quarterly Reports
on Form 10-Q for 2002.
Financial Information Systems Design and Implementation Fees: $0.
All Other Fees: $388,000 for tax services including tax return preparation
and tax planning, and $125,000 primarily for the audit of the Company's 401(k)
benefit plan and other accounting advice and assistance.
Although the Company expects to continue to retain KPMG for audit and other
services, the Company's managers are responsible for establishing and
maintaining the Company's system of internal accounting controls.
9
COMPENSATION COMMITTEE REPORT
The Compensation Committee of the Board (the "Compensation Committee")
oversees Mercator's executive compensation program. The Compensation Committee
has three members: James P. Schadt, Chairman, Dennis G. Sisco and Mark C.
Stevens. Messrs. Sisco and Stevens are non-employee directors within the meaning
of Section 16 of the Exchange Act, and are "outside directors" within the
meaning of Section 162(m) of the Code. None of the members of the Compensation
Committee has any interlocking relationships as defined by the SEC.
GENERAL COMPENSATION PHILOSOPHY
The primary function of the Compensation Committee is to assist the Board
of Directors in fulfilling its responsibilities of establishing the general
compensation policy of the Company by (i) reviewing base salary levels and
target bonuses for the Chief Executive Officer ("CEO") and other executive
officers and key employees of the Company, and (ii) overseeing the Company's
incentive and equity plans together with the Company's Stock Option Committee.
The Compensation Committee typically reviews base salary levels and target
bonuses for the CEO and other executive officers and key employees of the
Company at or about the beginning of each year, based on input from, and
information compiled by, management. In addition to their base salaries, the
Company's executive officers, including the CEO, and key employees, are each
eligible to receive a cash bonus pursuant to a management incentive plan and are
entitled to participate in the 1997 Equity Incentive Plan.
The Company's compensation policy for executive officers and key employees
is to relate compensation directly to corporate performance and stockholder
value. The Compensation Committee establishes the Company's compensation
policies applicable to the executive officers and key employees, including the
CEO, and evaluates the performance of such persons. The Compensation Committee
has adopted the following guidelines for compensation decisions:
o provide a competitive total compensation package that enables the
Company to attract and retain key executive talent;
o align all pay programs with the Company's annual and long-term
business strategies and objectives; and
o provide variable compensation opportunities that are directly linked
to the performance of the Company and that link executive reward to
stockholder return.
The Company's compensation policy relates a portion of each individual's
total compensation to Company-wide and individual objectives based on corporate
performance goals set forth at the beginning of the year.
The base salaries and incentive compensation of the executive officers are
determined by the Compensation Committee, and stock option grants to executive
officers are determined by the Stock Option Committee, in part by reviewing data
on prevailing compensation practices at companies with whom the Company competes
for executive talent, and by evaluating such information in connection with the
Company's corporate goals. In certain extraordinary circumstances, the
Compensation Committee may review and make recommendations with respect to stock
options. In order to determine base salary, target bonuses and total target cash
compensation, the Compensation Committee, in consultation with management, also
reviews general market conditions, compensation history of the candidate, and
compares the compensation of the Company's executive officers and key employees
with the compensation packages of similarly situated executives and employees at
comparable companies.
2002 EXECUTIVE COMPENSATION
BASE SALARY
In order to evaluate Mercator's competitive position in the industry, the
Compensation Committee reviewed and analyzed the compensation packages,
including base salary levels offered by other software companies that we believe
to be in our peer group, including companies such as SeeBeyond Technology
Corporation, Tibco Software Inc., Vitria
10
Technology, Inc., and Webmethods, Inc. In reviewing the compensation packages
offered by these other companies, the Compensation Committee examined a variety
of factors, including their relative size, performance and operational goals.
With respect to our corporate executive officers, other than the CEO, the
Compensation Committee also has considered other factors, such as each
executive's scope of responsibility, performance, prior experience and salary
history, as well as the compensation packages of other executives at Mercator.
The Compensation Committee initially targeted above the mid-market level of the
industry competitive base salary range and made adjustments (or not) based on
these other factors to arrive at base salary for the year. No specific fixed
weighting or formula was applied to these factors in determining base salary.
Rather, the Compensation Committee exercised its judgment in evaluating these
factors and in determining the appropriate base salary.
Our executives' base salaries are generally at or above those of executives
at companies in our peer group. Most of our current management was hired by the
Board early in 2001 to effect a turn-around of the Company. The executives hired
were, in certain instances, paid above the 50th percentile of our peer group in
order to compensate them for increased risk and uncertainty in taking on the
challenges facing Mercator. Additionally, many executives at companies in our
peer group had been at their companies for a relatively long period of time and,
accordingly, their total compensation packages had a significant portion of
non-cash (i.e., stock or option-based) compensation. In lieu of significant
beneficial ownership for our new management, the Compensation Committee
determined in certain instances to provide total compensation packages with
relatively higher levels of cash compensation (both salary and bonus
opportunity) to reward a successful turn-around. Additionally, at the time these
executives were hired, the perceived value of equity-based compensation had
declined due to prevailing market conditions.
INCENTIVE AWARDS
In 2002, unless covered by an employment agreement, senior level managers
of the Company, including executive officers, were eligible to receive an annual
performance-based bonus based upon (i) the financial goals of the Company, as
determined by the Compensation Committee, and (ii) the employee's achievement of
other objectives as determined by the Compensation Committee. As discussed
above, the Compensation Committee also reviewed the bonus packages offered by
the other members of our peer group, targeting above the mid-market level of the
industry competitive bonus range if all operational and strategic targets are
achieved, and then examined other factors to determine the aggregate bonus
opportunity offered to our executives. The Compensation Committee has the
discretion to determine: the individuals who are to receive performance-based
bonuses; the amount of the bonus; the weighting between the Company's financial
goals and other corporate objectives when determining an individual's
performance-based bonus; and whether to revise performance-based bonus amounts
and targets during the year if market conditions warrant.
In 2002, each executive was eligible to receive a performance-based bonus
of up to 100% of their base salary if the Company achieved pre-determined
operational targets (e.g., revenue and EBITDA) and strategic targets (e.g.,
license revenues from partners and market capitalization). A portion of the
bonus was then earned for each target that was achieved. As discussed above,
each executive also had individual objectives. The original performance-based
bonus pool at 100% achievement of objectives would have paid $2.3 million to the
Company's executives. Based on the Company's performance relative to the revised
targets in 2002, the Company instead paid $1.1 million in bonuses.
LONG-TERM INCENTIVE AWARDS
The Compensation Committee believes that equity-based compensation in the
form of stock options links the interests of management and the Company's
stockholders by focusing employees and management on increasing stockholder
value. Stock options generally have value only if the price of the Company's
stock increases above the fair market value on the grant date and the option
grantee remains in the Company's employ for the period required for the shares
to vest.
CHIEF EXECUTIVE OFFICER COMPENSATION
The Compensation Committee, together with the Board of Directors, will also
subjectively evaluate the level of performance of the CEO to determine current
and future appropriate base pay levels. For the CEO, the Compensation Committee
has in prior years targeted above the mid-market level of the base salary range
determined by its aforementioned competitive analysis, and has given significant
emphasis to annual bonus and longer-term
11
incentives for Mr. King's total compensation package. For fiscal year 2002, Mr.
King's base salary was $400,000. Total compensation paid in 2002 was $410,192 in
salary and $200,000 in bonus, with additional compensation in the form of
long-term incentive awards as described above. The additional $10,192 in salary
was due to a payroll change from bi-weekly to semi-monthly resulting in an
additional payroll for all employees for the period from December 21, 2002 to
December 31, 2002.
Mr. King's arrangements were determined in a manner consistent with the
factors described above for all executive officers and with available market
data as to competitive compensation terms. In January 2002, Mr. King's base
salary was increased from $375,000 to $400,000 in recognition of, among other
things, a significant increase in the Company's market capitalization during his
tenure through that date. His bonus compensation was determined based on his
achievement of certain operating targets (revenue and EBITDA) and certain
strategic targets (license revenue, revenue influenced by partners and market
capitalization). Mr. King has not received a base salary increase in 2003.
Mr. King did not participate in any compensation deliberations of the
Board, the Compensation Committee or the Stock Option Committee with respect to
any of his compensation. The Committee considered this compensation package
appropriate in view of Mr. King's effectiveness in management and cost-cutting
measures of the Company in an unusually challenging global economic environment.
INTERNAL REVENUE CODE SECTION 162(M) LIMITATION
In general, under Section 162(m) of the Code, the Company cannot deduct,
for federal income tax purposes, compensation in excess of $1,000,000 paid to
certain executive officers. This deduction limitation does not apply, however,
to compensation that constitutes "qualified performance-based compensation"
within the meaning of Section 162(m) of the Code and the regulations promulgated
thereunder. The Company has considered the limitations on deductions imposed by
Section 162(m) of the Code and it is the Company's present intention, for so
long as it is consistent with its overall compensation objective, to structure
executive compensation to minimize application of the deduction limitations of
Section 162(m) of the Code.
This report is provided by the following directors who constitute the
Compensation Committee:
James P. Schadt, Chairman
Dennis G. Sisco
Mark C. Stevens
EXECUTIVE COMPENSATION
The following table sets forth compensation paid or awarded for services
rendered in all capacities to Mercator and its subsidiaries during 2000, 2001
and 2002 to: (i) Mercator's Chief Executive Officer during 2002, (ii) the
Company's four other most highly compensated executive officers who were serving
as executive officers during 2002, and (iii) two former executive officers of
the Company (collectively, (i), (ii) and (iii) are referred to as the "Named
Executive Officers"). This information includes base salaries and bonus awards,
the dollar values of shares subject to stock options granted and certain other
compensation, if any, whether paid or deferred. The Company does not grant stock
appreciation rights and has no long-term compensation benefits other than stock
options.
12
SUMMARY COMPENSATION TABLE
LONG-TERM
COMPENSATION
AWARDS
ANNUAL COMPENSATION ------------
----------------------------------- SECURITIES
OTHER ANNUAL UNDERLYING ALL OTHER
NAME AND PRINCIPAL POSITION YEAR (1) SALARY BONUS COMPENSATION OPTIONS COMPENSATION (2)
--------------------------- -------- -------- --------- ------------ ------------ ----------------
Roy C. King ......................... 2002 $410,192 $259,845 $ -- 300,000 $30,510
Chairman of the Board of 2001 351,923 200,000 -- 1,000,000 15,163
Directors, Chief Executive 2000 -- -- -- -- --
Officer and President
Kenneth J. Hall ..................... 2002 $307,500 $162,442 $ -- 300,000 $14,585
Executive Vice President, 2001 126,923 162,500 -- 400,000 411
Chief Financial Officer and 2000 -- -- -- -- --
Treasurer
Mark W. Register .................... 2002 $235,617 $106,972 $304,116 (3) 300,000 $22,004
Executive Vice President and 2001 181,270 57,203 -- 30,000 --
President, Worldwide Field 2000 108,887 86,112 -- 75,000 --
Operations
David S. Linthicum .................. 2002 $281,827 $112,238 $ -- 300,000 $15,613
Executive Vice President, 2001 178,077 100,000 -- 350,000 685
Research and Development 2000 -- -- -- -- --
And Chief Technology
Officer
Jill M. Donohoe ..................... 2002 $231,058 $112,500 $ -- 200,000 $ 6,233
Senior Vice President, 2001 43,269 147,500 -- 250,000 117
Global Alliances and 2000 -- -- -- -- --
Corporate Development
Michael E. Wheeler .................. 2002 $244,269 $ -- $ -- 50,000 $31,544
Senior Vice President, 2001 52,885 300,000 -- 300,000 222
Manufacturing, Retail and 2000 -- -- -- -- --
Distribution Industry
Solution Unit (4)
Robert J. Farrell ................... 2002 $222,820 $ -- $ -- 50,000 $ 3,233
Senior Vice President, and 2001 103,846 150,000 -- 300,000 360
President, Americas (4) 2000 -- -- -- -- --
-------------------
(1) Mr. King became Chief Executive Officer and President of the Company on
January 16, 2001; Mr. Hall became Senior Vice President, Chief Financial
Officer and Treasurer on July 9, 2001; Mr. Linthicum became Senior Vice
President, Research and Development, and Chief Technology Officer on March
14, 2001; Ms. Donohoe became Senior Vice President, Global Alliances &
Corporate Development on October 15, 2001; Mr. Wheeler became Senior Vice
President, Product Intensive Enterprises on October 8, 2001; and Mr.
Farrell became Senior Vice President and President, Americas on July 9,
2001. The amounts shown in the table for 2001 with respect to these
officers are payments from such dates.
(2) Includes: (a) Company matching 401(k) contributions for: (i) Mr. King of
$5,683 and $5,481 for 2002 and 2001, respectively; (ii) Mr. Hall of $4,550
for 2002; (iii) Mr. Linthicum of $3,469 for 2002; (iv) Ms. Donohoe of
$1,692 for 2002; and (v) Mr. Wheeler of $5,420 for 2002; (b) insurance and
disability premiums and medical expense reimbursement for: (i) Mr. King of
$24,827 and $9,682 for 2002 and 2001, respectively; (ii) Mr. Hall of
$10,035 and $411 for 2002 and 2001, respectively; (iii) Mr. Linthicum of
$12,144 and $685 for 2002 and 2001, respectively; (iv) Ms. Donohoe of
$4,541 and $117 for 2002 and 2001, respectively; (v)
13
Mr. Register of $1,750 for 2002; (vi) Mr. Wheeler of $5,740 and $222 for
2002 and 2001, respectively; and (vii) Mr. Farrell of $3,233 and $360 for
2002 and 2001, respectively; (c) payments for Mr. Register under the
Australian Superannuation Plan of $20,197 (this payment is required to be
made for all Australian employees under applicable Australian law) and $57
for salary continuance insurance premium, both for 2002; and (d) severance
for Mr. Wheeler of $20,384.
(3) Includes relocation and related expenses for overseas assignments of
$105,407, relocation and related expenses for U.S. assignment of $41,486,
income tax payments of $144,521, social security payments and a car
allowance.
(4) Mr. Wheeler served until November 8, 2002 and Mr. Farrell served until
August 21, 2002.
STOCK OPTION COMMITTEE REPORT
In 2002, stock options were granted in accordance with the Company's 1997
Equity Incentive Plan to certain executive officers and key employees as
incentives for them to become employees or to aid in their retention and to
align their interests with those of the stockholders. Stock options typically
have been granted to executive officers when the executive first joins the
Company, in connection with a significant change in responsibilities and, in
certain cases, to achieve equity within a peer group. The Stock Option Committee
may grant stock options to retain executive officers and key employees in order
to strive to increase the value of the Company's common stock. The number of
shares subject to each stock option granted is within the discretion of the
Stock Option Committee and is based on anticipated future contribution and
ability to impact the Company's results, past performance or consistency within
the grantee's peer group. In 2002, the Stock Option Committee considered these
factors, as well as the number of unvested option shares held by the grantee as
of the date of grant. The stock options generally become exercisable over a
four-year period and are granted at a price that is equal to the fair market
value of the Company's common stock on the date of grant.
In January 2002, the Stock Option Committee granted Mr. King, the Company's
Chairman of the Board of Directors, Chief Executive Officer and President,
300,000 options. The Stock Option Committee's determination to grant such stock
options was based on Company performance in 2001 (and that such performance was
the result of his contributions) and the significant increase in market
valuation realized by the Company and to provide a significant incentive for him
to enhance long-term stockholder value. Additionally, the Board considered stock
ownership of chief executive officers at other companies in Mercator's peer
group.
The Company also granted other executives stock options in January 2002
based on Company performance in 2001. In December 2002, in light of the
significant industry-wide decrease in the market valuation of technology
companies (which, in many cases, resulted in a corresponding decline in value of
stock options previously granted) the decision was made to provide additional
options for purposes of motivation and retention, to a broad list of employees,
whose present and potential contributions were considered to be important to the
success of the Company during the current challenging business period. These
grants, made in December 2002, are intended to cover grants through and
including December 31, 2004 (effectively covering two years of grants). This was
deemed necessary and appropriate in light of the Company's recently-undertaken
workforce reduction and the other factors mentioned above. The Board approved
the proposed option grants stipulating no further grants would be made to
existing employees for 2003 or 2004 unless specifically approved by the Stock
Option Committee in connection with a promotion or other extraordinary
circumstances.
This report is provided by the following directors who constitute the Stock
Option Committee:
Mark C. Stevens, Chairman
Dennis G. Sisco
14
OPTION GRANTS IN 2002
The following table sets forth information regarding option grants during
2002 pursuant to the Company's 1997 Equity Incentive Plan (the "1997 Plan") to
each of the Named Executive Officers. The table sets forth the hypothetical
gains or "option spreads" that would exist for the options at the end of their
respective ten-year terms. These gains are based on assumed rates of annual
compound stock price appreciation of 5% and 10% from the date the option was
granted to the end of the option term, as required by applicable SEC rules. They
do not represent the Company's estimate or projection of future common stock
price or value.
POTENTIAL REALIZABLE
VALUE AT ASSUMED
PERCENTAGE ANNUAL RATES OF
NUMBER OF OF TOTAL STOCK PRICE
SECURITIES OPTIONS APPRECIATION FOR
UNDERLYING GRANTED TO EXERCISE OPTION TERM (2)
OPTIONS EMPLOYEES PRICE PER EXPIRATION ----------------------------
NAME GRANTED (1) IN 2002 SHARE DATE 5% 10%
---- ----------- --------- --------- ---------- ------------- -------------
Roy C. King ..................... 300,000(3) 4.6% $ 8.89 1/2/12 $ 1,677,262 $ 4,250,511
David S. Linthicum .............. 100,000(4) 1.5% $ 8.89 1/2/12 $ 559,087 $ 1,416,837
200,000(4) 3.1% 1.169 11/27/12 147,036 372,617
Kenneth J. Hall ................. 120,000(4) 1.8% $ 8.89 1/2/12 $ 670,905 $ 1,700,204
180,000(4) 2.7% 0.94 12/18/12 106,409 269,661
Jill M. Donohoe ................. 50,000(4) 0.8% $ 8.89 1/2/12 $ 279,544 $ 708,418
150,000(4) 2.3% 0.94 12/18/12 88,674 224,718
Mark W. Register ................ 95,000(4) 1.4% $ 8.89 1/2/12 $ 531,133 $ 1,345,995
100,000(4) 1.5% 1.39 7/30/12 87,416 221,530
105,000(4) 1.6% 0.94 12/18/12 62,072 157,302
Michael E. Wheeler .............. 50,000(4) 0.8% $ 8.89 1/2/12 $ 279,544 $ 708,418
Robert J. Farrell ............... 50,000(4) 0.8% $ 8.89 1/2/12 $ 279,544 $ 708,418
--------------------
(1) The options shown in the table were granted at fair market value, are
incentive stock options (to the extent permitted under the Code) and will
expire ten years from the date of grant, subject to earlier termination
upon termination of the optionee's employment.
(2) Potential realizable values are calculated based on the fair market value
of the Company's common stock at the date of grant minus the exercise
price.
(3) These options vest 50% on each of 1/2/2005 and 1/2/2006.
(4) These options vest 25% on the date of grant and the remaining 75% quarterly
thereafter for four years.
15
AGGREGATE OPTION EXERCISES IN 2002 AND YEAR-END OPTION VALUES
There were no option exercises by the Named Executive Officers during 2002.
The following table consists of the number of shares covered by both exercisable
and unexercisable stock options as of December 31, 2002 and indicates values of
"in-the-money" options that represent the positive spread between the respective
exercise prices of outstanding stock options and $0.97 per share, which was the
closing price of Mercator's common stock as reported on the Nasdaq National
Market on December 31, 2002, the last day of trading for 2002. These values may
not be realized.
NUMBER OF SECURITIES
UNDERLYING VALUE OF UNEXERCISED
UNEXERCISED OPTIONS IN-THE- MONEY OPTIONS
SHARES AT YEAR-END AT YEAR-END
ACQUIRED ON VALUE -------------------------- --------------------------
NAME EXERCISE REALIZED EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
---- ----------- -------- ----------- ------------- ----------- -------------
Roy C. King ................... -- -- 750,000 550,000 $ -- $ --
David S. Linthicum ............ -- -- 266,960 383,040 -- --
Kenneth J. Hall ............... -- -- 299,025 400,975 1,350 4,050
Jill M. Donohoe ............... -- -- 166,404 283,596 1,125 3,375
Mark W. Register .............. -- -- 145,389 259,611 788 2,363
Michael E. Wheeler ............ -- -- 150,777 -- -- --
Robert J. Farrell ............. -- -- 129,686 -- -- --
COMPENSATION AND OTHER INFORMATION
CONCERNING EXECUTIVE OFFICERS AND DIRECTORS
EXECUTIVE OFFICERS
NAME AGE POSITION IN THE COMPANY
---- --- -----------------------
Roy C. King ........................... 49 Chairman of the Board, Chief Executive Officer and President
Michael J. Collins .................... 39 Senior Vice President, Chief Marketing Officer
Jill M. Donohoe ....................... 33 Senior Vice President, Global Alliances and Corporate
Development
David L. Goret ........................ 39 Senior Vice President, General Counsel and Secretary
Kenneth J. Hall ....................... 45 Executive Vice President, Chief Financial Officer and Treasurer
Gerald E. Klein ....................... 54 Vice President, Americas, and Assistant Secretary
David S. Linthicum .................... 40 Executive Vice President, Research and Development, and Chief
Technology Officer
Mark W. Register ...................... 40 Executive Vice President and President, Worldwide Field
Operations
Ronald R. Smith ....................... 56 Senior Vice President and Chief Administrative Officer
Thracy P. Varvoglis ................... 54 Senior Vice President, Industry Solutions Group
Roy C. King was elected Chief Executive Officer, President and a Director
in January 2001 and Chairman of the Board in March 2001. Prior to joining
Mercator, Mr. King was President and CEO of Immedient Corporation, an e-business
solutions company, from May 2000 through November 2000. He previously spent
seven years at IBM, a multinational computer hardware, software and services
company. While at IBM, Mr. King served as Executive --Business Innovation
Services-Industrial Sector from February 2000 to May 2000; he served as General
Manager, Consulting and Integration -- Europe, Middle East, Africa from July
1997 through February 2000; he served as Vice President, Worldwide Manufacturing
Industries Consulting from January 1996 through July 1997; and he
16
served as Vice President, Manufacturing Industries Consulting -- North America
from July 1993 through January 1996. Mr. King received a BS from Iowa State
University and an MBA from Harvard University.
Michael J. Collins has been Senior Vice President and Chief Marketing
Officer since August 2002. From August 2001 to August 2002, Mr. Collins was
Senior Vice President and Chief Marketing Officer at Xchange, Inc., a provider
of customer relationship management solutions. From February 2000 to May 2001,
he was Senior Vice President and Chief Marketing Officer at Metiom, Inc., a web
site company providing group purchasing power to small business owners, and from
August 1997 to February 2000, he was Vice President, Worldwide Corporate
Marketing at Saga Software, Inc., a provider of enterprise systems software. Mr.
Collins received a BA from Rowan University.
Jill M. Donohoe has been Senior Vice President, Global Alliances and
Corporate Development since October 2001. From June 2000 to October 2001, Ms.
Donohoe was a Vice President at the investment banking firm, MAST Services, LLC,
a Monitor Group Company. From June 1999 to June 2000, she was Executive Vice
President, Business Development at Rxcentric, Inc., an eHealth start-up that
focused on eDetailing and online marketing/ education for pharmaceutical
companies. From September 1998 to June 1999, she was a Global Client Partner at
iXL Inc., an information technology services company. Prior to that, Ms. Donohoe
was the Senior Director of Business Development at Larry Miller Productions, a
marketing, communications and internet solutions company that was acquired by
iXL. Ms. Donohoe received a BA from Providence College.
David L. Goret became Senior Vice President, General Counsel and Secretary
in September 2002. Prior to joining Mercator, from April 2000 to August 2002, he
was Executive Vice President, Administration and General Counsel of Hawk
Holdings, a technology holding company. From January 1999 to April 2000, Mr.
Goret was Vice President, Internet & Multimedia Law at Qwest Internet Solutions,
a wholly-owned subsidiary of Qwest Communications, a telecommunications company,
and from February 1996 to December 1998, he was Vice President, General Counsel
at Icon CMT Corp., an Internet solutions provider, which was acquired by Qwest
in 1998. Mr. Goret received a BA from Duke University and a JD from University
of Michigan Law School.
Kenneth J. Hall became Senior Vice President, Chief Financial Officer and
Treasurer in July 2001. In December 2001, he was promoted to his current
position of Executive Vice President, Chief Financial Officer and Treasurer.
From April 2000 to June 2001, Mr. Hall worked as an independent consultant
advising companies on strategic and financial matters. From July 1999 to March
2000, Mr. Hall was Executive Vice President and Chief Financial Officer at
Onsite Access, Inc., an early stage broadband communications company. OnSite
Access filed for bankruptcy protection under Chapter 11 of the Federal
bankruptcy laws in May 2001. From March 1997 to December 1998, he was Senior
Vice President, Chief Financial Officer and Treasurer at Icon CMT Corp. until
its acquisition by Qwest Communications International Inc., and he served in the
same capacity at Qwest Internet Solutions, Inc., a successor-in-interest to Icon
CMT Corp. and wholly-owned subsidiary of Qwest Communications International,
Inc. until April 1999. Mr. Hall received a BS from Lehigh University and an MBA
from Golden Gate University.
Gerald E. Klein became General Counsel, Americas and Assistant Secretary in
September 2002. He was General Counsel, Americas and Secretary in August 2000
and became Vice President, Americas in May 2001. From November 1993 through May
2000, Mr. Klein was Purchasing and Credit Counsel at Union Carbide Corporation,
a multinational chemical company. Mr. Klein received a BA from Brooklyn College
and a JD from New York University.
David S. Linthicum became Senior Vice President, Software Development and
Chief Technology Officer in March 2001. In December 2001, he was promoted to his
current position of Executive Vice President, Research and Development and Chief
Technology Officer. From December 1997 to February 2001, Mr. Linthicum was Chief
Technology Officer of Saga Software, Inc., a provider of enterprise systems
software. Mr. Linthicum has a BS from George Mason University.
Mark W. Register became Vice President, Asia Pacific in June 2000. He was
promoted to President, Asia Pacific in January 2001, and was promoted to
Executive Vice President and President, Worldwide Field Operations in October
2001. He was Vice President, Application Services of Computer Sciences
Corporation (Australia), an
17
information technology services company, from January 2000 to June 2000. Prior
to Computer Sciences Corporation, he was at GE Capital, IT Solutions where he
served as General Manager, Systems Integration and Managed Services, from
January 1999 until December 1999, Integration and Quality Leader from August
1998 through December 1998, the General Manager of GE Capital IT Solutions'
Eastern Region from April 1997 through August 1998 and the General Manager for
Integrated Outsourcing from September 1996 through April 1997. Mr. Register
graduated from Curtin University of Technology in Perth Western Australia and
attended Auckland Institute of Technology (formerly Auckland Technical
Institute).
Ronald R. Smith served as an operations consultant for Mercator from
February 2001 through June 2001 before being appointed Mercator's Vice
President, Global Operations in June 2001. In January 2002, he was promoted to
Senior Vice President and Chief Administrative Officer. From March 2000 until
February 2001, Mr. Smith taught leadership development at Northwood University.
From January 1995 to March 2000, Mr. Smith was a Business Operations Manager at
IBM Corp. Mr. Smith received a BS from Youngstown State University.
Thracy P. Varvoglis has been Senior Vice President, Industry Solutions
Group since August 2002. He joined Mercator as Vice President, Financial
Solutions in March 2002. From March 2001 to March 2002, Mr. Varvoglis was a Vice
President at Compaq. From September 1992 to March 2001, he was a Vice President
for IBM's Global Services Division. Mr. Varvoglis received a BEE from Pratt
Institute and an MEE from Stevens Institute.
COMPENSATION AGREEMENTS
The Company has entered into agreements with the Named Executive Officers
as described below:
Mr. King's agreement provides for an annual base salary of $375,000 and an
option grant to purchase an aggregate of 1,000,000 shares of common stock,
250,000 shares of which were granted upon commencement of employment and 750,000
shares of which were issued on May 17, 2001. Mr. King currently receives an
annual base salary of $400,000. The term of the agreement is five years
commencing January 16, 2001. Mr. King shall be eligible to receive an annual
operational bonus equal to 100% of his base salary upon achievement of certain
profit and revenue targets. Mr. King is also eligible to receive an annual
strategic bonus equal to 100% of his base salary upon achievement of certain
strategic initiatives as set by the Compensation Committee at the beginning of
each year. As a condition to receive the strategic bonus, Mr. King must achieve
the minimum performance under the operational bonus. If Mr. King is terminated
without cause or if he leaves with good reason, he will be entitled to receive
unpaid salary through the termination date, severance compensation of 18 months
base salary, a bonus amount equal to his operational bonus pro rated through the
termination date, a bonus equal to 150% of his annual operational bonus payable
during the 18 month severance period and 18 months of eligible benefits. Upon
any such termination, stock options already vested shall remain vested and
exercisable for the remainder of their originally stated term up to the maximum
extension permitted by the 1997 Equity Incentive Plan, and any options to become
vested within 18 months of the termination date shall vest and remain vested and
exercisable for the remainder of their originally stated terms up to the maximum
extension permitted by such Plan. Mr. King receives term life insurance valued
at $3,050,000, with premiums paid by the Company. Upon a change of control and
the termination of Mr. King's employment by Mr. King within one year thereafter,
Mr. King will receive the same payments and benefits as if he were terminated
without cause, however, he will receive such payments and benefits for a three
year period. Also, upon a change of control, Mr. King is eligible to receive
certain additional benefits. See "Change of Control Plan," infra.
Mr. Hall's agreement provides for an annual base salary of $275,000 and an
option grant to purchase an aggregate of 400,000 shares of common stock. Mr.
Hall currently receives an annual base salary of $300,000. For 2001, Mr. Hall
was guaranteed to receive a bonus of no less than 100% of his base salary
prorated from July 1, 2001. $75,000 of the bonus was paid at his hire date with
the balance paid in December 2001. Mr. Hall is eligible for a target bonus of
100% of his base salary, with a payout range of 0% to 300% of his base salary
based upon meeting certain corporate performance and goals. If Mr. Hall is
terminated for any reason other than for cause, the agreement provides for
severance of twelve months' salary plus a bonus at 100% of his then base salary,
and twelve months of continued eligible benefits and other executive
perquisites. Mr. Hall is entitled to receive term life insurance valued at
$1,000,000 paid by the Company. Upon a change of control, Mr. Hall is eligible
to receive certain benefits. See "Change of Control Plan," infra.
18
Mr. Linthicum's agreement provides for an annual base salary of $200,000
and an option grant to purchase an aggregate of 250,000 shares of common stock.
Mr. Linthicum currently receives an annual base salary of $275,000. He is
eligible for a target bonus of 100% of his base salary with a payout range of 0%
to 300% of his base salary based upon meeting certain corporate performance and
goals. If Mr. Linthicum is terminated for any reason other than for cause, the
agreement provides for severance of twelve months' salary, medical insurance and
other executive perquisites. Mr. Linthicum is entitled to receive term life
insurance valued at $1,150,000 paid by the Company. Upon a change of control,
Mr. Linthicum is eligible to receive certain benefits. See "Change of Control
Plan," infra.
Ms. Donohoe's agreement provides for an annual base salary of $225,000 (her
current salary) and an option grant to purchase an aggregate of 250,000 shares
of common stock. Ms. Donohoe received a sign-on bonus of $100,000. Ms. Donohoe
is eligible for a target bonus of 100% of her base salary, with a payout range
of 0% to 300% of her base salary based upon meeting certain corporate and
business unit performance goals. If Ms. Donohoe is terminated for any reason
other than for cause, her agreement provides for severance of salary, executive
benefits for medical insurance and other executive perquisites for twelve
months. Ms. Donohoe is entitled to receive term life insurance valued at
$500,000 paid by the Company. Upon a change of control, Ms. Donohoe is eligible
to receive certain benefits. See "Change of Control Plan," infra.
Mr. Register's agreement provides for an annual base salary of $225,000.
Mr. Register currently receives an annual base salary of $250,000. He is
eligible for a target bonus of 100% of base salary with a payout range of 0% to
300% of his base salary based upon meeting operational and strategic results.
Mr. Register was on an assignment in Germany and as such received paid benefits
including housing, education for family members, relocation expenses and certain
tax equalization payments. Mr. Register is now on a two-year assignment in the
United States as of August 1, 2002. If Mr. Register is terminated for any reason
other than for cause before the completion of his U.S. assignment, his agreement
provides for severance equal to twelve month's base salary and certain
relocation benefits. Mr. Register is entitled to receive term life insurance
valued at approximately $500,000 paid by the Company. Upon a change of control,
Mr. Register is eligible to receive certain benefits. See "Change of Control
Plan," infra.
Mr. Wheeler's agreement provides for an annual base salary of $250,000 and
an option grant to purchase an aggregate of 300,000 shares of common stock. In
2001, Mr. Wheeler received a sign-on bonus of $100,000. Mr. Wheeler left the
Company on November 8, 2002 with an annual salary of $265,000. Mr. Wheeler is
receiving severance payments equal to his annual salary and continued medical,
dental and MERP benefits under COBRA for a period of twelve months from his
termination date.
Mr. Farrell's agreement provides for an annual base salary of $225,000 and
an option grant to purchase an aggregate of 200,000 shares of common stock. Mr.
Farrell left the Company on August 21, 2002. Mr. Farrell's vested option
expiration date was extended until February 28, 2003. Mr. Farrell received two
month's base salary at termination.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
Mr. Schadt, a member of the Company's Compensation Committee, was a former
officer of the Company, the interim Chairman and Chief Executive Officer of the
Company from November 2000 to May 2001. Mr. Schadt's son-in-law is the chief
executive officer of Harvard Pilgrim Health Care, with whom Mercator has entered
into a license agreement described under " -- Certain Relationships and Related
Transactions." Messrs. Sisco and Stevens, who are also members of the
Compensation Committee, have no interlocking relationships as defined by the
SEC.
DIRECTOR COMPENSATION
The Company reimburses its Directors for reasonable expenses associated
with their attendance at Board and committee meetings. Directors who are not
employees also receive cash compensation as follows: (a) an annual retainer of
$15,000, (b) $1,500 per Board meeting attended, and (c) $500 per committee
meeting attended. Directors
19
are eligible to participate in the Company's 1997 Directors Stock Option Plan
(the "Directors Plan") and the 1997 Equity Incentive Plan (the "1997 Plan"). In
December 2002, the Board of Directors revised the annual option grant
compensation to: (a) 50,000 options as an initial grant for new Directors, (b)
20,000 options each year for continuing directors, and (c) 3,000 option grants
for chairpersons of the Board committees. This revision had the effect of
increasing the annual grant by 10,000 options retroactive to the 2002 grants and
then the Board accelerated the 2003 grant to be issued in December 2002 thereby
giving each continuing director a total of 30,000 options in December 2002.
During 2002, the following stock options to purchase shares of the Company's
common stock were granted to non-employee directors under the Directors Plan and
the 1997 Plan: Constance Galley received an option grant under the Directors
Plan to purchase 10,000 shares at an exercise price of $1.50 per share and an
option grant under the 1997 Plan to purchase 30,000 shares at an exercise price
of $0.94 per share; Ernest Keet received an option grant under the Directors
Plan to purchase 10,000 shares at an exercise price of $1.50 and an option grant
under the 1997 Plan to purchase 30,000 shares at an exercise price of $0.94 per
share; Michael Lehman received three option grants under the Directors Plan to
purchase a total of 73,000 shares at an exercise price of $3.60 and $1.50,
respectively, and an option grant under the 1997 Plan to purchase 30,000 shares
at an exercise price of $0.94 per share; James Schadt received two option grants
under the Directors Plan to purchase a total of 13,000 shares at an exercise
price of $1.50 per share and an option grant under the 1997 Plan to purchase
30,000 shares at an exercise price of $0.94 per share; Dennis Sisco received an
option grant under the Directors Plan to purchase 10,000 shares at an exercise
price of $1.50 per share and an option grant under the 1997 Plan to purchase
30,000 shares at an exercise price of $0.94 per share; and Mark Stevens received
two option grants under the Directors Plan to purchase a total of 13,000 shares
at an exercise price of $1.50 per share and an option grant under the 1997 Plan
to purchase 30,000 shares at an exercise price of $0.94 per share.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
In December 2000, the Company entered into a license agreement with Harvard
Pilgrim Health Care ("Harvard Pilgrim"). The chief executive officer of Harvard
Pilgrim is Mr. Schadt's son-in-law. Under the license agreement, Harvard Pilgrim
purchased for $495,000 the right to use Mercator's electronic data interchange,
or EDI, software and certain health care transaction processing software.
Harvard Pilgrim also paid Mercator a maintenance fee of $84,150 in 2001 and
2002; and will pay a maintenance fee of $87,516 for 2003. The purchase price for
the license and the annual maintenance fees are comparable to the amounts
charged to Mercator's other customers for such products and services and
represents less than 1% of the Company's revenue.
CHANGE OF CONTROL PLAN
In December 2001, the Compensation Committee of the Board adopted a Change
of Control Protection Plan. Such plan provides that, subject to any greater
benefits that may be provided for in an employment or other agreement that such
employee may have with the Company, upon a change of control as defined below:
(a) the Chief Executive Officer, Chief Financial Officer and Chief
Technology Officer will receive (i) full acceleration of unvested options,
and (ii) in the event of constructive termination, as defined below, within
one year of the change in control, pro-ration of year-to-date annual bonus,
eighteen months severance (salary and target bonus) and continued benefits
for eighteen months;
(b) Senior Vice Presidents, and certain selected Vice Presidents, will
receive (i) 50% acceleration of unvested stock options, and (ii) if
constructively terminated within one year of the change of control, full
acceleration of unvested stock options, pro-ration of year to date annual
bonus, 12 months severance (salary and target bonus) and benefits; and
(c) all other employees will receive (i) one year acceleration of
unvested stock options, and (ii) if constructively terminated within six
months, full acceleration of unvested stock options.
"Change of Control" is defined in the plan as having occurred if:
(a) any "person," (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act), other than a trustee or other fiduciary holding shares
under an employee benefit plan of the Company, or a corporation
20
owned, directly or indirectly by the stockholders of the Company in
substantially the same proportions, becomes after the date hereof the
beneficial owner (as defined in Rule 13d-3 under Exchange Act), directly or
indirectly, of securities of Mercator representing fifty percent (50%) or
more of the combined voting power of the Company's then outstanding shares;
(b) the composition of the Board changes such that individuals who on
November 13, 2001 constituted the Board and any new director whose election
by the Board or nomination for election by the Company's stockholders was
approved by a vote of at least three-fourths (3/4) of the directors then
still in office who either were directors on the date hereof or whose
election or nomination for election was previously so approved, cease for
any reason to constitute a majority thereof;
(c) substantially all the assets of the Company are disposed of by the
Company pursuant to a merger, consolidation, partial or complete
liquidation, a sale of assets (including stock of a subsidiary) or
otherwise, but not including a reincorporation or similar transaction
resulting in a change only in the form of ownership of such assets, or
(d) the Company combines with another company and is the surviving
corporation, but, immediately after the combination, the stockholders of
the Company immediately prior to the combination hold, directly or
indirectly, fifty percent (50%) or less of the voting stock of the combined
company.
"Constructive Termination" is defined as the occurrence of any of the
following, without employee's written consent:
(a) a significant diminution of, or the assignment to the employee of
any duties inconsistent with the employee's title, status, duties or
responsibilities;
(b) a reduction in annual base salary, target bonus or fringe benefit
which by itself or in the aggregate is material to employee's compensation;
(c) the relocation of employee's office more than fifty miles from the
employee's current location; or
(d) the failure to obtain the written assumption of employee's
employment agreement by any successor to all or substantially all of the
Company's assets or business within thirty days after a merger,
consolidation, sale or a change of control.
21
COMPANY STOCK PRICE PERFORMANCE
The stock price performance graph below is required by the SEC and shall
not be deemed to be incorporated by reference by any general statement
incorporating by reference this Proxy Statement into any filing under the
Securities Act of 1933, as amended, or under the Securities Exchange Act of
1934, as amended, except to the extent that the Company specifically
incorporates this information by reference, and shall not otherwise be deemed
soliciting material or filed under such Acts.
The graph below compares the cumulative total stockholder return on the
common stock of the Company from July 3, 1997 to December 31, 2002 with the
cumulative total return on the Nasdaq Stock Market -- U.S. Index, the J.P.
Morgan H&Q Index ("H&Q Index") and the RDG Software Composite ("RDG Index") over
the same period (assuming the investment of $100 in the common stock of the
Company and in each of the other indices on July 3, 1997, and reinvestment of
all dividends, if any). The Company used the H&Q Index as its published line of
business index in preparing this performance graph until J.P. Morgan stopped
publishing the H&Q Index effective February 2002. The H&Q Index has been
replaced by the RDG Index, which is similar in components to the H&Q Index.
COMPARISON OF 66 MONTH CUMULATIVE TOTAL RETURN*
AMONG MERCATOR SOFTWARE, INC., THE NASDAQ STOCK MARKET (U.S.) INDEX,
THE JP MORGAN H & Q COMPUTER SOFTWARE INDEX
AND THE RDG SOFTWARE INDEX
7/3/97 12/97 12/98 12/99 12/00 12/01 12/02
------ ------ ------ ------- ------ ------ ------
MERCATOR SOFTWARE INC 100.00 105.56 531.94 1258.33 119.44 185.78 21.56
NASDAQ STOCK MARKET (U.S.) 100.00 109.46 154.33 286.22 172.31 136.70 94.49
JP MORGAN H & Q COMPUTER SOFTWARE 100.00 111.56 145.74 331.59 247.91 162.20
RDG SOFTWARE COMPOSITE 100.00 105.91 191.56 400.00 224.25 189.13 131.62
22
PROPOSAL NO. 2 -- RATIFICATION OF SELECTION OF INDEPENDENT ACCOUNTANTS
The Company has selected KPMG LLP ("KPMG") as its independent accountants
to perform the audit of the Company's financial statements for 2003, and the
stockholders are being asked to ratify such selection. KPMG was engaged as the
Company's independent accountants for the year ended December 31, 2002.
Representatives of KPMG will be present at the Meeting, will have the
opportunity to make a statement at the 2003 Annual Meeting if they desire to do
so, and will be available to respond to appropriate questions.
The affirmative vote of a majority of the shares of common stock present in
person or represented by proxy at the 2003 Annual Meeting and entitled to vote
on the proposal is required to approve the ratification of selection of
independent accountants.
THE BOARD RECOMMENDS A VOTE FOR THE RATIFICATION
OF THE SELECTION OF KPMG LLP.
STOCKHOLDER PROPOSALS FOR 2004
PROXY STATEMENT PROPOSALS
Under the rules of the SEC, proposals of stockholders intended for
inclusion in the proxy statement to be furnished by Mercator to stockholders
entitled to vote at its 2004 Annual Meeting must be received at the Company's
principal executive offices no later than January 3, 2004.
OTHER PROPOSALS
The Company's By-laws provide that any proposals that are not included in
the proxy statement, to be eligible for consideration at the 2004 Annual Meeting
of the Company, must be received at the Company's principal executive offices
not later than the close of business on March 31, 2004 nor earlier than the
close of business on March 1, 2004. The proposal must also comply with the other
procedural requirements set forth in the Company's By-laws, a copy of which may
be obtained from the Company. It is suggested that proponents submit their
proposals by Certified Mail-Return Receipt Requested.
SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16 of the Exchange Act requires the Company's directors and
officers, and persons who own more than 10% of a registered class of the
Company's equity securities, to file initial reports of ownership and reports of
changes in ownership with the SEC. Such persons are required by SEC regulations
to furnish the Company with copies of all forms under Section 16(a). Based
solely on its review of the copies of such forms furnished to the Company and
written representations from the officers and directors of the Company, to the
Company's knowledge, all such filings were made on a timely basis, except the
November 27, 2002 Form 4 for David S. Linthicum, which was due on December 2,
2002, was filed on December 6, 2002; and the December 18, 2002 Form 4's for
Constance F. Galley, Ernest E. Keet, James P. Schadt, Michael E. Lehman, Dennis
G. Sisco, Mark C. Stevens, Roy C. King, David L. Goret, Gerald E. Klein, Gregory
G. O'Brien, Kenneth J. Hall, Jill M. Donohoe, Michael J. Collins, Mark W.
Register, Ronald R. Smith and Thracy P. Varvoglis, which were due on December
20, 2002, were filed on December 23, 2002.
23
METHOD AND COST OF PROXY SOLICITATION
Proxies may be solicited without additional compensation by all directors,
officers and employees of the Company by e-mail, web page (or web site),
telephone, facsimile, telegram or in person.
The Company will bear all costs related to the solicitation of proxies
pursuant to this Proxy Statement, including the preparation, printing and
mailing of proxy materials. The Company has spent approximately $400,000 thus
far in connection with the solicitation of proxies (primarily in connection with
the recently settled proxy contest with the SSH/Broken Arrow group) and
estimates that it will spend a total of $350,000 beyond what it would normally
spend for the solicitation of proxies in connection with an annual meeting.
The Company has retained D.F. King & Co., Inc. to assist in soliciting
proxies. The Company anticipates the cost of engaging D.F. King & Co. to be
approximately $50,000 plus expenses.
The Company requests that banks, brokers and other custodians, nominees and
fiduciaries forward proxy materials to the beneficial owners of the Company's
common stock and obtain their voting instructions. The Company will reimburse
those firms for their expenses in accordance with SEC rules.
YOUR VOTE AT THIS YEAR'S ANNUAL MEETING IS ESPECIALLY IMPORTANT. PLEASE
SIGN AND DATE THE ENCLOSED PROXY CARD AND RETURN IT IN THE ENCLOSED POSTAGE-PAID
ENVELOPE PROMPTLY.
FORWARD LOOKING STATEMENTS
Statements made by the Company in this Proxy Statement that are not
strictly historical facts are "forward looking" statements that are based on
current expectations about the markets in which the Company does business and
assumptions made by management. Such statements should be considered as subject
to risks and uncertainties that exist in the Company's operations and business
environment and could render actual outcomes and results materially different
than predicted. For a description of some of the factors and uncertainties which
could cause actual results to differ, reference is made to the section entitled
"Risk Factors" in the Company's 2002 Annual Report on Form 10-K. All
forward-looking statements and reasons why results might differ included in this
proxy statement are made as of the date hereof based on information available to
the Company as of the date hereof. The Company assumes no obligation to update
any such forward-looking statement or reasons why results might differ.
OTHER BUSINESS
The Board does not presently intend to bring any other business before the
2003 Annual Meeting, and, so far as is known to the Board, no matters are to be
brought before the 2003 Annual Meeting except as specified in the notice of the
2003 Annual Meeting.
24
However, if any matters requiring a vote of the stockholders arise, it is
the intention of the persons named in the proxy enclosed herewith to vote such
proxy in accordance with their best judgment, including on any matters or
motions dealing with the conduct of the 2003 Annual Meeting.
Stockholders are urged to sign, date and return the enclosed proxy in the
enclosed return envelope. Prompt response is helpful, and your cooperation will
be appreciated.
Stockholders may obtain without charge a copy of the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 2002. Requests should
be directed to Mercator Software, Inc., 45 Danbury Road, Wilton, Connecticut
06897, Attn.: Stockholder Relations or:
D.F. King & Co., Inc.
48 Wall Street
New York, New York 10005
(212) 269-5550 (Collect)
or
(800) 859-8509 (Toll Free in the United States)
Dated: May 2, 2003
25
FORM OF PROXY CARD
------------------
MERCATOR SOFTWARE, INC.
PROXY FOR 2003 ANNUAL MEETING OF STOCKHOLDERS
The undersigned hereby appoints Roy C. King and David L. Goret, and each of
them, with full power of substitution, and hereby authorizes each of them to
represent and vote, as designated on the reverse hereof, all shares of Common
Stock of Mercator Software, Inc. (the "Company") held of record by the
undersigned on April 7, 2003, at the Annual Meeting of Stockholders to be held
on May 30, 2003, or any adjournment thereof, upon all such matters as may
properly come before the Meeting and hereby revokes all proxies previously given
with respect to the Meeting.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS. THIS PROXY, IF
PROPERLY EXECUTED, WILL BE VOTED AS DIRECTED; IN THE ABSENCE OF DIRECTION, THIS
PROXY WILL BE VOTED "FOR" ITEMS 1 AND 2.
(THE PROXY CONTINUES AND MUST BE SIGNED ON THE REVERSE SIDE.)
PLEASE DATE, SIGN AND MAIL YOUR PROXY CARD BACK AS SOON AS POSSIBLE!
[X] Please mark your votes as in this example.
------------------------------------------------------------------------------------------------------------------------------------
1. ELECTION OF DIRECTORS 2. RATIFICATION OF SELECTION OF KPMG LLP AS
THE COMPANY'S INDEPENDENT ACCOUNTANTS FOR
[ ] FOR all nominees listed [ ] WITHHOLD AUTHORITY THE FISCAL YEAR ENDING DECEMBER 31, 2003.
(except as marked to the contrary below) to vote for all nominees listed
NOMINEES: Constance F. Galley Ernest E. Keet Roy C. King Michael E. Lehman FOR AGAINST ABSTAIN
James P. Schadt Dennis G. Sisco Mark C. Stevens [ ] [ ] [ ]
(The Board of Directors recommends a
vote "FOR" approval.)
Instruction: To withhold authority to vote for any individual nominee, write
that nominee's name in the space provided. 3. IN THEIR DISCRETION UPON SUCH OTHER
BUSINESS AS MAY PROPERLY COME BEFORE THE
ANNUAL MEETING OR ANY POSTPONEMENT OR
-------------------------------------------------------------------------------- ADJOURNMENT THEREOF.
[ ] If you plan to attend the Annual
Meeting, place an X in this box.
SIGNATURE:__________________________________________
SIGNATURE:__________________________________________
TITLE:______________________________________________
DATE: ______________________________________________
NOTE: Please sign exactly as name or names appear on
stock certificate as indicated hereon. Joint owners
each should sign. When signing as an attorney,
executor, administrator or guardian, please give
full title as such.
Stockholders are urged to date, mark, sign and return this proxy promptly in the envelope provided, which requires no postage if
mailed within the United States. If you have any questions, or need assistance voting, please contact D.F. King & Co., Inc., which
is assisting us in the solicitation of proxies, toll-free at 1-800-859-8509.