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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
AMENDMENT NO. 1
Financial Performance Corporation
---------------------------------
(Name of Issuer)
Common Stock, $.01 par value
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(Title of Class of Securities)
317630 30 9
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(CUSIP Number)
Gary S. Friedman, Esq.
Kaufman Friedman Plotnicki & Grun, LLP
300 East 42nd Street
New York, New York 10017
(212) 687-1700
--------------
(Name, Address and Telephone Number of
Person Authorized to Receive Notices
and Communications)
November 17, 1999
-----------------
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box: [ ]
Check the following box if a fee is being paid with the statement: [ ]
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Section 240.13d-7(b) for
other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
Page 1 of 125 pages
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AMENDMENT NO. 1
TO
SCHEDULE 13D
CUSIP No. 317630 30 9
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1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Robert S. Trump SS# ###-##-####
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2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
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3) SEC USE ONLY
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4) SOURCE OF FUNDS PF
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5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
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6) CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
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7) SOLE VOTING POWER
NUMBER OF
SHARES ---------------------------------------------------------------
BENEFICIALLY 8) SHARED VOTING POWER
OWNED BY 4,506,422 (See Item 6)
EACH ---------------------------------------------------------------
REPORTING 9) SOLE DISPOSITIVE POWER
PERSON 51,000 (See Item 6)
WITH ---------------------------------------------------------------
10) SHARED DISPOSITIVE POWER
4,455,422 (See Item 6)
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11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,506,422
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12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
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13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
47.1%
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14) TYPE OF REPORTING PERSON
IN
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The Statement on Schedule 13D dated March 3, 1994 (the "Schedule 13D") with
respect to the beneficial ownership by Robert S. Trump of shares of common stock
of Financial Performance Corporation, is hereby amended as set forth below.
1. Item 1, Security and Issuer, is hereby amended and restated in its
entirety to read as follows:
This Statement on Schedule 13D (the "Statement") relates to the
Common Stock, $.01 par value, (the "Common Stock") of Financial Performance
Corporation, a New York corporation (the "Company"). The principal executive
offices of the Company are located at 335 Madison Avenue, New York, New York
10017.
2. Item 3, Source and Amount of Funds or Other Consideration, is hereby
amended and restated in its entirety to read as follows:
As of November 17, 1999, Mr. Trump beneficially owned 4,506,422
shares of Common Stock. Of the shares of Common Stock owned by Mr. Trump,
4,455,422 shares were acquired from the Company in various private placements
and debt conversions for an aggregate consideration of $2,967,088. In addition,
Mr. Trump previously purchased 51,000 shares of Common Stock in the open market.
Mr. Trump purchased the shares of Common Stock which he
beneficially owns using personal funds, which may, at any given time, include
margin loans made by brokerage firms in the ordinary course of business.
3. Item 4, Purpose of Transaction, is hereby amended by the deletion of the
final paragraph thereof and the addition of the following provisions:
(a) On November 17, 1999, Mr. Trump sold to Jeffrey Silverman
500,000 shares of Common Stock and conveyed the Silverman Trump Stock Options
(as hereinafter defined) to Mr. Silverman pursuant to the terms of the Stock
Purchase and Sale Agreement dated as of November 17, 1999 by and among the
Company, Mr. Trump and Mr. Silverman (the "Silverman Purchase Agreement"), for
an aggregate purchase price of $250,000. A copy of the Silverman Purchase
Agreement is attached hereto as Exhibit L and is hereby incorporated herein by
reference.
Pursuant to the terms of the Option Agreement dated November 17,
1999, by and between Jeffrey S. Silverman and Robert S. Trump (the "Silverman
First Option Agreement") and the Silverman Purchase Agreement, Mr. Trump granted
to Mr. Silverman an option, exercisable at any time within two years of the
Closing Date (as defined therein), to purchase an aggregate of 500,000 shares of
Common Stock at an exercise price of $.8125 per share (the "Silverman First
Stock Option").
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Pursuant to the terms of the Option Agreement dated November 17,
1999, by and between Jeffrey S. Silverman and Robert S. Trump (the "Silverman
Second Option Agreement") and the Silverman Purchase Agreement, Mr. Trump
granted to Mr. Silverman an option, exercisable at any time within three years
of the Closing Date (as defined therein), to purchase an aggregate of 500,000
shares of Common Stock at an exercise price of $1.3125 per share (the "Silverman
Second Stock Option").
Pursuant to the terms of the Option Agreement dated November 17,
1999, by and between Jeffrey S. Silverman and Robert S. Trump, (the "Silverman
Third Option Agreement") and the Silverman Purchase Agreement, Mr. Trump granted
to Mr. Silverman an option, exercisable at any time within three years of the
Closing Date (as defined therein), to purchase an aggregate of 250,000 shares of
Common Stock at an exercise price of $5.00 per share (the "Silverman Third Stock
Option") (the Silverman First Stock Option, the Silverman Second Stock Option
and the Silverman Third Stock Option are hereinafter collectively referred to as
the "Silverman Trump Stock Options"). The Silverman Trump Stock Options are
attached hereto as Exhibit N, and are incorporated herein by reference in their
entirety.
On November 17, 1999, Mr. Trump sold to Ronald Nash 500,000 shares
of the Common Stock and conveyed the Nash Trump Stock Options (as hereinafter
defined) to Mr. Nash pursuant to the terms of the Stock Purchase and Sale
Agreement dated as of November 17, 1999 by and among the Company, Mr. Trump and
Mr. Nash (the "Nash Purchase Agreement"), for an aggregate purchase price of
$250,000. A copy of the Nash Purchase Agreement is annexed hereto as Exhibit M
and is hereby incorporated herein by reference.
Pursuant to the terms of the Option Agreement dated November 17,
1999, by and between Ronald Nash and Robert S. Trump (the "Nash First Option
Agreement") and the Nash Purchase Agreement, Mr. Trump granted to Mr. Nash an
option, exercisable at any time within two years of the Closing Date (as defined
therein), to purchase an aggregate of 500,000 shares of Common Stock at an
exercise price of $.8125 per share (the "Nash First Stock Option").
Pursuant to the terms of the Option Agreement dated November 17,
1999, by and between Ronald Nash and Robert S. Trump (the "Nash Second Option
Agreement") and the Nash Purchase Agreement, Mr.Trump granted to Mr. Nash an
option, exercisable at any time within three years of the Closing Date (as
defined therein), to purchase an aggregate of 500,000 shares of Common Stock at
an exercise price of $1.3125 per share (the "Nash Second Stock Option").
Pursuant to the terms of the Option Agreement dated November 17,
1999, by and between Ronald Nash and Robert S. Trump (the "Nash Third Option
Agreement") and the Nash Purchase Agreement, Mr. Trump granted to Mr. Nash an
option, exercisable at any time within three years of the Closing Date (as
defined therein), to purchase an aggregate of 250,000 shares of Common Stock at
an exercise price of $5.00 per share (the "Nash Third Stock Option"). The Nash
First Stock Option, the Nash Second Stock Option and the Nash Third Stock Option
are hereinafter collectively referred to herein as the "Nash Trump Stock
Options." The Nash Trump Stock Options are attached hereto as Exhibit O, and are
incorporated herein by reference in their entirety.
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Mr. Trump may acquire additional shares of Common Stock or other
securities of the Company or sell or otherwise dispose of any or all of the
shares of Common Stock or other securities of the Company beneficially owned by
Mr. Trump. Mr. Trump may take any other action with respect to the Company or
any of its debt or equity securities in any manner permitted by law.
(b) Mr. Trump currently has no plans or proposals which relate to
or would result in any extraordinary corporate transactions involving the
Company or any of its subsidiaries.
(c) None.
(d) In connection with the consummation of the transactions
contemplated by the Silverman Purchase Agreement and the Nash Purchase
Agreement, Messrs. Silverman and Nash were elected to the Board of Directors of
the Company. Pursuant to the terms of the Stockholders Agreement dated November
17, 1999 by and among Mr. Trump, Mr. Silverman, Mr. Nash and the Company (the
"Stockholders Agreement"), the number of directors on the Board of Directors was
set at five, and Mr. Trump has agreed, among other things, to vote all shares of
Common Stock beneficially owned by him for the nominee of Mr. Silverman for
election as a director of the Company (the "Silverman Director") and for the
nominee of Mr. Nash for election as a director of the Company (the "Nash
Director") so long as Mr. Silverman or Mr. Nash, as the case may be, holds at
least 500,000 shares of Common Stock. The Stockholders Agreement is attached
hereto as Exhibit P and is incorporated herein by reference in its entirety.
(e) None.
(f) None.
(g) None.
(h) None.
(i) None.
(j) None.
4. Item 5, Interest in Securities of the Issuer, is hereby amended in its
entirety to read as follows:
(a) As of November 17, 1999, Mr. Trump beneficially owned
4,506,422 shares of Common Stock, representing approximately 47.1% of the
outstanding shares of Common Stock*.
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* All percentages in Item 5 are based upon a calculation of the total number of
shares of Common Stock outstanding as follows: the 9,471,534 shares of Common
Stock reported by the Company to be issued and outstanding as of November 11,
1999 in its Quarterly Report on Form 10-QSB for the quarter ended November 12,
1999, plus 100,000 shares of Common Stock
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(b) As of the date hereof, by reason of the contemplated
relationships among Mr. Trump and Messrs. Silverman and Nash, Mr. Trump may be
deemed, under certain circumstances, to share voting power over all of the
shares of Common Stock owned by Mr. Trump and, under certain circumstances, to
share dispositive power over all but 51,000 of the shares of Common Stock owned
by Mr. Trump. See Item 6 for information relating to the Stockholders Agreement.
(c) Except as set forth in this Amendment No. 1 to Schedule
13D, Mr. Trump has not engaged in any transactions in the Common Stock within
the 60 days preceding the filing of this Amendment No. 1 to Schedule 13D.
(d) Not applicable.
(e) Not applicable.
5. Item 6, Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer, is amended and restated in its entirety to
read as follows:
Pursuant to the terms of the Stockholders Agreement, Mr. Trump
has, among other things, (i) agreed to vote all shares of Common Stock
beneficially owned by him for the Silverman Director and the Nash Director (as
such terms are defined therein) so long as Mr. Silverman or Mr. Nash, as the
case may be, beneficially owns at least 500,000 shares of Common Stock; (ii)
agreed to not vote his shares in favor of any of the actions referred to in
Section 1.2 of the Stockholders Agreement without the affirmative written
consent of each of Messrs. Silverman and Nash; (iii) agreed that he will not,
directly or indirectly, transfer certain shares of capital stock of the Company
(or any interest therein), any stock certificates representing the same or any
voting trust certificate issues with respect to said capital stock, or any
option, right or warrant to acquire shares of Common Stock, (collectively
defined in the Stockholders Agreement as the "Remaining Shares"), to any person
except pursuant to the Silverman Option Agreements or the Nash Option Agreements
or as permitted under the Stockholders Agreement; and (iv) granted to each of
Messrs. Silverman and Nash a right of first offer with respect to the Remaining
Shares. See Exhibit P hereto, which is incorporated herein by reference in its
entirety. Pursuant to a Registration Rights Agreement dated as of November 17,
1999 by and among Mr. Trump, Messrs. Silverman and Nash, William F. Finley and
the Company (the "Registration Rights Agreement"), Mr. Trump, as well as Messrs.
Silverman, Nash and Finley, were granted certain registration rights by the
Company with regard to the securities of the Company owned by such persons. A
copy of the Registration Rights Agreement is annexed hereto as Exhibit Q and is
incorporated herein by reference in its entirety.
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granted to Mr. William F. Finley pursuant to the Amended and Restated Employment
Agreement between Mr. Finley and Financial Performance Corporation, for a total
of 9,571,534 shares.
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6. Item 7, Material to be Filed as Exhibits, is hereby amended by the
addition of the following Exhibits:
Exhibit L- Silverman Purchase Agreement
Exhibit M- Nash Purchase Agreement
Exhibit N- Silverman Stock Options
Exhibit O- Nash Stock Options
Exhibit P- Stockholders Agreement
Exhibit Q- Registration Rights Agreement
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SIGNATURE
After reasonable inquiry and to the best knowledge and belief of
the undersigned, the undersigned certifies that the information set forth in
this Statement is true, complete and correct.
Dated: November 29, 1999
/s/ Robert S. Trump
-------------------
Name: Robert S. Trump
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EXHIBIT L
Silverman Purchase Agreement
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STOCK PURCHASE AND SALE AGREEMENT
AMONG
FINANCIAL PERFORMANCE CORPORATION,
ROBERT S. TRUMP
AND
JEFFREY S. SILVERMAN
Dated as of November 17, 1999
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STOCK PURCHASE AND SALE AGREEMENT
STOCK PURCHASE AND SALE AGREEMENT, dated as of November 17, 1999
(this "Agreement"), among Jeffrey S. Silverman (the "Purchaser"), Robert S.
Trump ("Trump") and Financial Performance Corporation, a New York corporation
(the "Company").
WITNESSETH:
The Purchaser desires to acquire from Trump, and Trump desires to issue
and sell to the Purchaser, for the consideration hereinafter provided, 500,000
shares (the "Shares") of the common stock, $.01 par value per share (the "Common
Stock"), of Financial Performance Corporation. As used in this Agreement, the
term the Company shall include Financial Performance Corporation and the
subsidiaries of Financial Performance Corporation.
Certain terms used in this Agreement are defined in Section 7.2 of this
Agreement.
NOW, THEREFORE, in consideration of the promises and mutual covenants and
agreements hereinafter contained, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Sale and Purchase of Shares.
1.1 Sale and Purchase of Shares. Subject to the terms and
conditions of this Agreement and on the basis of the representations,
warranties, covenants and agreements herein contained, contemporaneously with
the execution hereof, Trump is, selling, assigning and conveying the Shares to
the Purchaser, and the Purchaser is purchasing, acquiring and accepting from
Trump, the Shares.
1.2 Grant of Stock Option. Contemporaneously with the purchase
and sale of the Shares hereunder, Trump is granting to the Purchaser a two-year
option (the "First Stock Option"), the form of which is attached hereto as
Exhibit A, to purchase up to 500,000 additional shares of Common Stock currently
owned by Trump, beneficially and as of record.
1.3 Grant of Stock Option. Contemporaneously with the purchase
and sale of the Shares hereunder, Trump is granting to the Purchaser a
three-year option (the "Second Stock Option"), the form of which is attached
hereto as Exhibit B, to purchase up to 500,000 additional shares of Common Stock
currently owned by Trump, beneficially and as of record.
1.4 Grant of Stock Option. Contemporaneously with the purchase
and sale of the Shares hereunder, Trump is granting to the Purchaser a
three-year option (the "Third Stock Option"), the form of which is attached
hereto as Exhibit C, to purchase up to 250,000 additional shares of Common Stock
currently owned by Trump, beneficially and as of record (the First Stock Option,
the Second Stock Option and the Third Stock Option are hereinafter referred to
as the "Stock Options").
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2. Consideration. In full consideration for the Shares and the Stock
Options, the Purchaser is contemporaneously herewith paying to Trump the
purchase price of $250,000, which shall be payable by bank check or by wire
transfer to an account designated by Trump.
3. Representations and Warranties of Trump. Trump hereby represents
and warrants to the Purchaser as follows:
3.1 Authorization of Agreement. Trump has all requisite
capacity, power and authority to execute and deliver this Agreement, the Stock
Option Agreements, the Stockholders' Agreement dated as of the date hereof (the
"Stockholders Agreement") and each other agreement, document, instrument or
certificate contemplated by this Agreement or to be executed by Trump in
connection with the consummation of the transactions contemplated by this
Agreement (this Agreement, the Stock Option Agreements, the Stockholders
Agreement and the other agreements, documents, instruments or certificates
delivered in connection with this Agreement are hereinafter referred to as the
"Transaction Documents"), and to perform fully his obligations hereunder and
thereunder. This Agreement and each of the other Transaction Documents has been
duly and validly executed and delivered by Trump. This Agreement and each of the
other Transaction Documents constitutes the legal, valid and binding obligations
of Trump, enforceable against Trump in accordance with this Agreement and each
of the other Transaction Document's respective terms, subject, as to
enforceability, to applicable bankruptcy, insolvency, reorganization, moratorium
and similar laws affecting creditors' rights and remedies generally and to
general principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).
3.2 No Conflicts; Consents of Third Parties. The execution and
delivery by Trump of this Agreement and the other Transaction Documents, the
consummation of the transactions contemplated hereby or thereby, and the
compliance by Trump with any of the provisions hereof or thereof does not (i)
conflict with, violate, result in the breach or termination of, or constitute a
default or give rise to any "takeback" right or right of termination or
acceleration or right to increase the obligations or otherwise modify the terms
thereof under any Contract, Permit or Order to which Trump is a party or by
which Trump or his properties or assets are bound; (ii) constitute a violation
of any Law applicable to Trump; or (iii) except to the extent and as
specifically created by the Transaction Documents result in the creation of any
Lien upon the properties or assets of Trump. No consent, waiver, approval,
Order, Permit or authorization of, or declaration or filing with, or
notification to, any Person or Governmental Body is required on the part of
Trump in connection with the execution and delivery of this Agreement or the
other Transaction Documents, or the compliance by Trump, with any of the
provisions hereof or thereof, except as expressly and specifically set forth in
the Transaction Documents and except as set forth on Schedule 3.2 to this
Agreement.
3.3 Capitalization. (a) Except as set forth on Schedule 3.3 to
this Agreement, there is no existing option, warrant, call, right, commitment or
other agreement of any character which is currently in effect to which Trump is
a party providing for the issuance, sale or transfer of any shares of capital
stock or other equity securities of the Company or other securities convertible
into, exchangeable for or evidencing the right to subscribe for or purchase
shares of capital stock or other equity securities of the Company, other than
this Agreement, the Stockholders' Agreement, the Stock Option Agreements and the
Registration Rights Agreement
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referred to in Section 6.2 below. Trump is not a party to or bound by any voting
trust or other voting agreement with respect to any shares of capital stock or
other contracts or arrangements restricting or relating to such capital stock
or, except as set forth on Schedule 3.3, to any currently effective agreement
relating to the issuance, sale, redemption, transfer or other disposition of
capital stock of the Company, other than this Agreement, the Stockholders'
Agreement, the Stock Option Agreements and the Registration Rights Agreement
referred to in Section 6.2 below.
(b) Trump is the sole beneficial and record owner of the Shares
and the Option Shares, free and clear of all Liens, other than Liens that arise
by operation of federal or state securities laws, and free and clear of all
statutory preemptive rights and all non-statutory preemptive rights except as
set forth in Schedule 3.3.
3.4 Disclaimer. Trump does not make any representations or
warranties to the Purchaser other than those expressly set forth herein.
4. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Purchaser as follows:
(a) This Agreement has been duly and validly authorized,
executed and delivered by the Company. This Agreement constitutes the legal,
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, subject, as to enforceability, to applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally and to general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or in
equity).
(b) No Conflicts; Consents of Third Parties. The execution and
delivery by Trump of this Agreement and the other Transaction Documents, the
consummation of the transactions contemplated hereby or thereby, and the
compliance by Trump with any of the provisions hereof or thereof does not (i)
conflict with, or result in the breach of, any provision of the certificate of
incorporation or by-laws of the Company; (ii) conflict with, violate, result in
the breach or termination of, or constitute a default or give rise to any
"takeback" right or right of termination or acceleration or right to increase
the obligations or otherwise modify the terms thereof under any Contract, Permit
or Order to which the Company is a party or by which the Company or the
properties or assets of the Company are bound; (iii) constitute a violation of
any Law applicable to the Company; or (iv) result in the creation of any Lien
upon the properties or assets of the Company. No consent, waiver, approval,
Order, Permit or authorization of, or declaration or filing with, or
notification to, any Person or Governmental Body is required on the part of the
Company in connection with the execution and delivery of this Agreement or the
other Transaction Documents, or the compliance by the Company, with any of the
provisions hereof or thereof, except as set forth on Schedule 4.1 to this
Agreement or those required by the Registration Rights Agreement including any
and all Securities and Exchange Commission (the "SEC") and Blue Sky filings.
(c) The Company has filed all forms, reports and documents
required to be filed by it under Sections 12, 13, 14 and 15 of the Securities
Exchange Act of 1934, as amended, with the Securities and Exchange Commission
(the "SEC") since December 31, 1997 (collectively, the "Company SEC Reports").
The Company SEC Reports (i) were prepared in all material respects in accordance
with the
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requirements of the Securities Act of 1933 or the Securities Exchange Act of
1934, as the case may be, and (ii) did not at the time they were filed (or if
amended or superseded by a filing prior to the date of this Agreement, then on
the date of such filing) contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading. None of the Company's subsidiaries is required to
file any forms, reports or other documents with the SEC.
(d) Each of the consolidated financial statements (including,
in each case, any related notes thereto) contained in the Company SEC Reports
has been prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods involved (except as may be
indicated in the notes thereto or in the Company SEC Reports), and each fairly
presents in all material respects the consolidated financial position of the
Company and its subsidiaries as at the respective dates thereof and the
consolidated results of its operations and cash flows for the periods indicated,
except that the unaudited interim financial statements were or are subject to
normal and recurring year-end adjustments which were not or are not expected to
be material in amount.
4.2 Capitalization.
(a) The Shares and the Option Shares are validly issued, fully
paid and non-assessable.
(b) As of the date hereof, the Shares purchased by the
Purchaser constitute 5.223823% of the issued and outstanding capital stock of
Financial Performance Corporation.
4.3 Contracts. There are no agreements between or among the
Company, Michaelson Kelbick Partners Inc. ("MKP"), or any of the managing
directors of MKP other than (a) those agreements that have been previously
disclosed in writing to the Purchaser, (b) agreements involving a monetary
amount less than $50,000 in the aggregate, (c) agreements which would not be
material to, or have a material adverse effect on, the Company, and (d) those
agreements listed on Schedule 4.3.
4.4 No Agreements. The Company is not a party to, and has no
obligations under, any agreement (whether written or oral) or by operation of
law to issue any shares of capital stock or other equity securities of the
Company or other securities convertible into, exchangeable for or evidencing the
right to subscribe for or purchase shares of capital stock or other equity
securities of the Company, to any person or entity, except as set forth in this
Agreement or the other Transaction Documents, or as set forth in Schedule 4.4 to
this Agreement.
4.5 Disclaimer. The Company does not make any representations
or warranties to the Purchaser other than those expressly set forth herein.
5. Representations and Warranties of the Purchaser. The Purchaser
hereby represents and warrants to Trump and the Company as follows:
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<PAGE> 7
5.1 Authorization of Agreement. The Purchaser has all requisite
capacity, power and authority to execute and deliver this Agreement, the Stock
Option Agreements, the Stockholders Agreement and each other agreement,
document, instrument or certificate contemplated by this Agreement or to be
executed by the Purchaser in connection with the consummation of the
transactions contemplated by this Agreement, and to perform fully his
obligations hereunder and thereunder. This Agreement and each of the other
Transaction Documents has been duly and validly executed and delivered by the
Purchaser. This Agreement and each of the other Transaction Documents
constitutes the legal, valid and binding obligations of the Purchaser,
enforceable against the Purchaser in accordance with this Agreement and each of
the other Transaction Document's respective terms, subject, as to
enforceability, to applicable bankruptcy, insolvency, reorganization, moratorium
and similar laws affecting creditors' rights and remedies generally and to
general principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).
5.2 No Conflicts; Consents of Third Parties. The execution and
delivery by the Purchaser of this Agreement and the other Transaction Documents,
the consummation of the transactions contemplated hereby or thereby, and the
compliance by the Purchaser with any of the provisions hereof or thereof does
not (i) conflict with, violate, result in the breach or termination of, or
constitute a default or give rise to any "takeback" right or right of
termination or acceleration or right to increase the obligations or otherwise
modify the terms thereof under any Contract, Permit or Order to which the
Purchaser is a party or by which the Purchaser or his properties or assets are
bound, or (ii) constitute a violation of any Law applicable to the Purchaser. No
consent, waiver, approval, Order, Permit or authorization of, or declaration or
filing with, or notification to, any Person or Governmental Body is required on
the part of the Purchaser in connection with the execution and delivery of this
Agreement or the other Transaction Documents, or the compliance by the
Purchaser, with any of the provisions hereof or thereof, except as set forth on
Schedule 5.2 to this Agreement.
5.3 Investment Purpose. The Purchaser is acquiring the Shares
for his own account and not with a view towards resale in violation of the
Securities Act of 1933, as amended (the "Securities Act"); provided, however,
that by making the representations herein, the Purchaser does not agree to hold
any of the Shares for any minimum or other specific term and reserves the right
to dispose of the Shares at any time in accordance with applicable law.
5.4 Information. The Purchaser and his advisors, if any, have
been furnished with all materials relating to the business, finances and
operations of the Company and materials relating to the offer and sale of the
Shares which have been requested by the Purchaser. The Purchaser and his
advisors, if any, have been afforded the opportunity to review materials and to
ask questions of the Company and have reviewed materials and asked questions of
the Company to the extent the Purchaser and his advisors, if any, deem
appropriate. Neither such inquiries nor any other due diligence investigations
conducted by the Purchaser or his advisors, if any, or his representatives shall
modify, amend or affect the Purchaser's right to rely on the representations and
warranties contained in Section 3, as to Trump, and Section 4, as to the
Company, respectively. The Purchaser understands that his investment in the
Shares involves a high degree of risk. The Purchaser has sought such accounting,
legal and tax advice as he has considered necessary to make an informed
investment decision with respect to his acquisition of the Shares.
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<PAGE> 8
The Purchaser acknowledges that he has sufficient experience in financial and
business matters to be capable of evaluating the merits and risks of the
prospective investment in the Shares.
5.5 Disclaimer. The Purchaser does not make any representations
or warranties to Trump other than those expressly set forth herein.
6. Additional Agreements and Covenants of Trump.
6.1 Transfer of Shares. Trump hereby agrees that he will not,
directly or indirectly, Transfer any shares of capital stock of the Company (or
any interest therein), any stock certificates representing the same or any
voting trust certificate issued with respect to said capital stock, or any
option, right or warrant to acquire shares of Common Stock, now or hereafter at
any time owned by him (collectively, the "Remaining Shares"), to any Person (a
"Transferee"), except pursuant to the Stock Option Agreements or as permitted
under the Stockholders Agreement; provided, however, that Trump may Transfer any
of the Remaining Shares to (x) any member of his immediate family, (y) a trust
established for the benefit of any immediate member of his family or (z) any
entity wholly-owned by Trump and established solely for the purpose of holding
title to such shares and performing Trump's obligations under this Agreement, in
each case as long as any Transferee in clause (x), (y) or (z) assumes and agrees
in writing to be bound by all of the terms of this Agreement; provided, further,
that Trump may Transfer any of the Remaining Shares by pledge or hypothecation
if the Transferee assumes and agrees in writing to be bound by all of the terms
of this Agreement. Notwithstanding the provisos to the prior sentence or
anything to the contrary contained herein, Trump may not Transfer any of the
Option Shares which are subject to a Stock Option Agreement until such Stock
Option Agreement has terminated or expired. For purposes of this Agreement,
"Transfer" shall mean with respect to any capital stock, (i) any sale,
assignment or transfer of such capital stock or any right or interest therein,
(ii) any pledge or hypothecation of such capital stock or any interest therein,
(iii) any grant, sale or other transfer of securities convertible into or
exchangeable or exercisable for or other options, warrants or rights to acquire
such capital stock or any interest therein and (iv) any other direct or indirect
transfer of such capital stock or any interest therein, including by operation
of law (it being understood that any transferee by operation of law shall be
required to comply with the provisions of this Section 6.1).
6.2 Trump hereby transfers, sets over and assigns to Silverman
all of Trump's right, title and interest, in and to, the Registration Rights
Agreement dated the date hereof among Financial Performance Corporation, Trump,
William Finley, the Purchaser and Jeffrey S. Silverman with respect to the
Shares and the Option Shares.
7. Miscellaneous.
7.1 Survival of Representations and Warranties. The
representations and warranties contained in this Agreement shall survive the
Closing for the benefit of the parties hereto; provided, however, that the
representations and warranties of the Company other than Section 4.2(a) shall
expire one year from the date hereof; provided, further, however, that the
representations and warranties of the Purchaser to the Company shall expire one
year from the date hereof.
7.2 Certain Definitions.
-7-
<PAGE> 9
"Affiliate" shall have the meaning specified by Rule 12b-2 under
the Securities Exchange Act of 1934, as amended.
"Contract" means any contract, agreement, indenture, note, bond,
loan, instrument, lease, conditional sale contract, mortgage, license,
franchise, insurance policy. commitment or other arrangement or agreement,
whether written or oral.
"Governmental Body" means any governmental or regulatory body, or
political subdivision thereof, whether federal, state, local or foreign, or any
agency, instrumentality or authority thereof, or any court or arbitrator (public
or private).
"Law" means any federal, state, local or foreign law (including
common law), statute, code, ordinance, rule, regulation or other requirement or
guideline.
"Lien" means any lien, pledge, hypothecation, levy, mortgage, deed
of trust, security interest, claim, lease, charge, option, right of first
refusal, easement, or other real estate declaration, covenant, condition,
restriction or servitude, transfer restriction under any shareholder or similar
agreement, encumbrance or any other restriction or limitation whatsoever.
"Option Shares" means the shares of Common Stock issuable upon the
exercise of the Stock Options pursuant to the terms of the Stock Option
Agreements.
"Order" means any order, consent, consent order, injunction,
judgment, decree, consent decree, ruling, writ, assessment or arbitration award.
"Permit" means any approval, authorization, registration, consent,
license, permit or certificate by any Governmental Body.
"Person" means any individual, corporation, partnership, firm,
joint venture, association, joint-stock company, trust, unincorporated
organization, Governmental Body or other entity.
"Stock Option Agreements" means the agreements attached as
Exhibits A, B and C hereto, regarding the First Stock Option, Second Stock
Option and the Third Option.
7.3 Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York without
giving effect to the principles of conflict of laws thereunder.
7.4 Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed given when delivered
personally, upon delivery to a nationally recognized overnight courier service,
or when mailed by certified mail, return receipt requested, to the parties at
the following addresses (or to such other address as a party may have specified
by notice given to the other party pursuant to this provision):
If to Trump, to:
Robert S. Trump
c/o Trump Management, Inc.
-8-
<PAGE> 10
2611 W. 2nd Street
Brooklyn, New York 11223
Telephone: (718) 743-4400
Fax: (718) 891-3609
With a copy to:
Gary Friedman
Kaufman, Friedman, Plotnicki & Grun, LLP
300 E. 42nd Street
New York, New York 10017
Telephone: (212) 973-3320
Fax: (212) 687-3179
If to the Purchaser, to:
Jeffrey S. Silverman
LTS Capital Partners
777 Third Avenue
New York, New York 10017
Telephone: (212) 446-0229
Fax: (212) 421-2933
With a copy to:
Kramer Levin Naftalis & Frankel LLP
919 Third Avenue
New York, NY 10022
Attention: Howard A. Sobel
Telephone: (212) 715-9326
Fax: (212) 715-8000
If to the Company, to:
Financial Performance Corporation
335 Madison Avenue, 8th Floor
New York, New York 10017
Attention: President
Telephone: (212) 557-0401
Fax: (212) 557-0490
With a copy to:
Baer Marks & Upham LLP
805 Third Avenue
New York, New York ____
Attention: Jonathan J. Russo
-9-
<PAGE> 11
Telephone: (212) 702-5714
Fax: (212) 702-5941
All notices are effective upon receipt or upon refusal if properly delivered.
7.5 Severability. If any term, provision, covenant or condition
of this Agreement or part thereof, or the application thereof to any Person,
place or circumstance shall be held to be invalid, unenforceable or void by a
court of competent jurisdiction, the remainder of this Agreement and such term,
provision, covenant or condition shall remain in full force and effect, and any
such invalid, unenforceable or void term, provision, covenant or condition shall
be deemed, without further action on the part of the parties hereto, modified,
amended and limited, and the court shall have the power to modify, amend, and
limit such term, provision, covenant or condition, to the extent necessary to
render the same and the remainder of this Agreement valid, enforceable and
lawful.
7.6 Binding Effect, Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective permitted
successors and assigns. Nothing in this Agreement shall create or be deemed to
create any third party beneficiary rights or any other rights of any kind in any
Person or entity not a party to this Agreement except as provided below. No
assignment of this Agreement or of any rights or obligations hereunder may be
made by Trump (by operation of law or otherwise) without the prior written
consent of the Purchaser, except as provided herein, and any attempted
assignment without such required consent shall be void. The Purchaser may assign
this Agreement and any or all rights and obligations hereunder, in whole or in
part, to any Affiliate of the Purchaser or any purchaser of not less than
500,000 shares of Common Stock owned by the Purchaser, whether direct or
indirect, by purchase, merger, consolidation, operation of law or otherwise (any
such Affiliate or purchaser, a "Successor"). The Purchaser will require any such
Successor to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Purchaser would be required to perform it
if no such purchase, or succession had taken place. Upon any such permitted
purchase or succession the references in this Agreement to the Purchaser shall
also apply to any Successor unless the context otherwise requires.
7.7 Public Announcement. The parties shall cooperate with
respect to any public announcement relating to the transactions contemplated
hereby or by the other Transaction Documents; and none of the parties will issue
any public statement announcing such transaction without the prior consent of
the others (which shall not be unreasonably withheld, delayed or conditioned),
except as such party in good faith (based upon advice of counsel) believes is
required by law and following notice to the other parties. If within three (3)
Business Days after such notice to the other parties has been given, neither
other party responds, their consents shall be deemed given.
-10-
<PAGE> 12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the date first written above.
/s/ ROBERT S. TRUMP
-----------------------------------
ROBERT S. TRUMP
/s/ JEFFREY S. SILVERMAN
-----------------------------------
JEFFREY S. SILVERMAN
FINANCIAL PERFORMANCE CORPORATION
By: /s/ WILLIAM F. FINLEY
--------------------------------
Name: WILLIAM F. FINLEY
Title: CEO
<PAGE> 13
SCHEDULE 3.2
to
Stock Purchase and Sale Agreement
1. Filings under Section 13 of the Securities Exchange Act of 1934,
as amended.
2. Filings under Section 16 of the Securities Exchange Act of 1934,
as amended.
3. Prospectus delivery requirements pursuant to the Securities Act of 1933,
as amended.
-12-
<PAGE> 14
SCHEDULE 3.3
to
Stock Purchase and Sale Agreement
None
-13-
<PAGE> 15
SCHEDULE 4.3
to
Stock Purchase and Sale Agreement
1. Restated and Amended Managing Directors Agreement dated November 16, 1999
between MKP and Susan Michaelson.
2. Restated and Amended Managing Directors Agreement dated November 16, 1999
between MKP and Hillary Kelbick.
3. First Amendment to Restated and Amended Shareholders Agreement by and
among MKP, Financial Performance Corporation, Susan Michaelson and
Hillary Kelbick dated November 16, 1999.
-14-
<PAGE> 16
SCHEDULE 4.4
to
Stock Purchase and Sale Agreement
SCHEDULE OF WARRANT HOLDERS
FINANCIAL PERFORMANCE CORPORATION
DATE: November 12, 1999
<TABLE>
<S> <C>
1. Warrants dated September 15, 1995 (exercisable at $0.50/share until 9-15-2010)
------------------------------------------------------------------------------
Holder No. of Warrants
------ ---------------
William F. Finley 200,000
2. Warrants dated September 15, 1996 (exercisable at $1.00/share until 9-15-2006)
------------------------------------------------------------------------------
Holder No. of Warrants
------ ---------------
William F. Finley 200,000
Susan Michaelson 200,000
Hillary Kelbick 200,000
Richard Levy 50,000
Duncan G. Burke 50,000
Phillip L. Hage 25,000
3. Warrants dated September 16, 1996 (exercisable at $1.00/share until 9-15-2006)
------------------------------------------------------------------------------
Holder No. of Warrants
------ ---------------
Nora Byrne 5,000
Siobhan Glennon 5,000
Debra Kruper 5,000
Pamela Reich 5,000
4. Warrants dated December 1, 1996 (exercisable at $0.50/share until 11-30-1999)
-----------------------------------------------------------------------------
Holder No. of Warrants
------ ---------------
Van Kasper & Company 150,000
</TABLE>
-14-
<PAGE> 17
<TABLE>
<S> <C>
5. Warrants dated December 29, 1997 (exercisable at $0.50/share until 11-30-1999)*
-------------------------------------------------------------------------------
Holder No. of Warrants
------ ---------------
Richard Levy 50,000
Duncan G. Burke 50,000
6. Warrants dated October 21, 1998 (exercisable at $0.50/share until 10-31-2001)*
------------------------------------------------------------------------------
Holder No. of Warrants
------ ---------------
Richard Levy 100,000
Duncan G. Burke 100,000
Ottavio Serena 200,000
Gary S. Friedman 50,000
Charlotte Tuck 50,000
</TABLE>
* Warrant expiration date extended until November 30, 2004.
-15-
<PAGE> 18
SCHEDULE 5.2
to
Stock Purchase and Sale Agreement
1. Filings under Section 13 of the Securities Exchange Act of 1934,
as amended.
2. Filings under Section 16 of the Securities Exchange Act of 1934,
as amended.
-16-
<PAGE> 1
EXHIBIT M
Nash Purchase Agreement
<PAGE> 2
STOCK PURCHASE AND SALE AGREEMENT
AMONG
FINANCIAL PERFORMANCE CORPORATION,
ROBERT S. TRUMP
AND
RONALD NASH
Dated as of November 17, 1999
<PAGE> 3
STOCK PURCHASE AND SALE AGREEMENT
STOCK PURCHASE AND SALE AGREEMENT, dated as of November 17, 1999
(this "Agreement"), among Ronald Nash (the "Purchaser"), Robert S. Trump
("Trump") and Financial Performance Corporation, a New York corporation (the
"Company").
WITNESSETH:
The Purchaser desires to acquire from Trump, and Trump desires to issue
and sell to the Purchaser, for the consideration hereinafter provided, 500,000
shares (the "Shares") of the common stock, $.01 par value per share (the "Common
Stock"), of Financial Performance Corporation. As used in this Agreement, the
term the Company shall include Financial Performance Corporation and the
subsidiaries of Financial Performance Corporation.
Certain terms used in this Agreement are defined in Section 7.2 of this
Agreement.
NOW, THEREFORE, in consideration of the promises and mutual covenants and
agreements hereinafter contained, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Sale and Purchase of Shares.
1.1 Sale and Purchase of Shares. Subject to the terms and
conditions of this Agreement and on the basis of the representations,
warranties, covenants and agreements herein contained, contemporaneously with
the execution hereof, Trump is, selling, assigning and conveying the Shares to
the Purchaser, and the Purchaser is purchasing, acquiring and accepting from
Trump, the Shares.
1.2 Grant of Stock Option. Contemporaneously with the purchase
and sale of the Shares hereunder, Trump is granting to the Purchaser a two-year
option (the "First Stock Option"), the form of which is attached hereto as
Exhibit A, to purchase up to 500,000 additional shares of Common Stock currently
owned by Trump, beneficially and as of record.
1.3 Grant of Stock Option. Contemporaneously with the purchase
and sale of the Shares hereunder, Trump is granting to the Purchaser a
three-year option (the "Second Stock Option"), the form of which is attached
hereto as Exhibit B, to purchase up to 500,000 additional shares of Common Stock
currently owned by Trump, beneficially and as of record.
1.4 Grant of Stock Option. Contemporaneously with the purchase
and sale of the Shares hereunder, Trump is granting to the Purchaser a
three-year option (the "Third Stock Option"), the form of which is attached
hereto as Exhibit C, to purchase up to 250,000 additional shares of Common Stock
currently owned by Trump, beneficially and as of record (the First Stock Option,
the Second Stock Option and the Third Stock Option are hereinafter referred to
as the "Stock Options").
-2-
<PAGE> 4
2. Consideration. In full consideration for the Shares and the Stock
Options, the Purchaser is contemporaneously herewith paying to Trump the
purchase price of $250,000, which shall be payable by bank check or by wire
transfer to an account designated by Trump.
3. Representations and Warranties of Trump. Trump hereby represents
and warrants to the Purchaser as follows:
3.1 Authorization of Agreement. Trump has all requisite
capacity, power and authority to execute and deliver this Agreement, the Stock
Option Agreements, the Stockholders' Agreement dated as of the date hereof (the
"Stockholders Agreement") and each other agreement, document, instrument or
certificate contemplated by this Agreement or to be executed by Trump in
connection with the consummation of the transactions contemplated by this
Agreement (this Agreement, the Stock Option Agreements, the Stockholders
Agreement and the other agreements, documents, instruments or certificates
delivered in connection with this Agreement are hereinafter referred to as the
"Transaction Documents"), and to perform fully his obligations hereunder and
thereunder. This Agreement and each of the other Transaction Documents has been
duly and validly executed and delivered by Trump. This Agreement and each of the
other Transaction Documents constitutes the legal, valid and binding obligations
of Trump, enforceable against Trump in accordance with this Agreement and each
of the other Transaction Document's respective terms, subject, as to
enforceability, to applicable bankruptcy, insolvency, reorganization, moratorium
and similar laws affecting creditors' rights and remedies generally and to
general principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).
3.2 No Conflicts; Consents of Third Parties. The execution and
delivery by Trump of this Agreement and the other Transaction Documents, the
consummation of the transactions contemplated hereby or thereby, and the
compliance by Trump with any of the provisions hereof or thereof does not (i)
conflict with, violate, result in the breach or termination of, or constitute a
default or give rise to any "takeback" right or right of termination or
acceleration or right to increase the obligations or otherwise modify the terms
thereof under any Contract, Permit or Order to which Trump is a party or by
which Trump or his properties or assets are bound; (ii) constitute a violation
of any Law applicable to Trump; or (iii) except to the extent and as
specifically created by the Transaction Documents result in the creation of any
Lien upon the properties or assets of Trump. No consent, waiver, approval,
Order, Permit or authorization of, or declaration or filing with, or
notification to, any Person or Governmental Body is required on the part of
Trump in connection with the execution and delivery of this Agreement or the
other Transaction Documents, or the compliance by Trump, with any of the
provisions hereof or thereof, except as expressly and specifically set forth in
the Transaction Documents and except as set forth on Schedule 3.2 to this
Agreement.
3.3 Capitalization. (a) Except as set forth on Schedule 3.3 to
this Agreement, there is no existing option, warrant, call, right, commitment or
other agreement of any character which is currently in effect to which Trump is
a party providing for the issuance, sale or transfer of any shares of capital
stock or other equity securities of the Company or other securities convertible
into, exchangeable for or evidencing the right to subscribe for or purchase
shares of capital stock or other equity securities of the Company, other than
this Agreement, the Stockholders' Agreement, the Stock Option Agreements and the
Registration Rights Agreement
-3-
<PAGE> 5
referred to in Section 6.2 below. Trump is not a party to or bound by any voting
trust or other voting agreement with respect to any shares of capital stock or
other contracts or arrangements restricting or relating to such capital stock
or, except as set forth on Schedule 3.3, to any currently effective agreement
relating to the issuance, sale, redemption, transfer or other disposition of
capital stock of the Company, other than this Agreement, the Stockholders'
Agreement, the Stock Option Agreements and the Registration Rights Agreement
referred to in Section 6.2 below.
(b) Trump is the sole beneficial and record owner of the Shares
and the Option Shares, free and clear of all Liens, other than Liens that arise
by operation of federal or state securities laws, and free and clear of all
statutory preemptive rights and all non-statutory preemptive rights except as
set forth in Schedule 3.3.
3.4 Disclaimer. Trump does not make any representations or
warranties to the Purchaser other than those expressly set forth herein.
4. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Purchaser as follows:
(a) This Agreement has been duly and validly authorized,
executed and delivered by the Company. This Agreement constitutes the legal,
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, subject, as to enforceability, to applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally and to general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or in
equity).
(b) No Conflicts; Consents of Third Parties. The execution and
delivery by Trump of this Agreement and the other Transaction Documents, the
consummation of the transactions contemplated hereby or thereby, and the
compliance by Trump with any of the provisions hereof or thereof does not (i)
conflict with, or result in the breach of, any provision of the certificate of
incorporation or by-laws of the Company; (ii) conflict with, violate, result in
the breach or termination of, or constitute a default or give rise to any
"takeback" right or right of termination or acceleration or right to increase
the obligations or otherwise modify the terms thereof under any Contract, Permit
or Order to which the Company is a party or by which the Company or the
properties or assets of the Company are bound; (iii) constitute a violation of
any Law applicable to the Company; or (iv) result in the creation of any Lien
upon the properties or assets of the Company. No consent, waiver, approval,
Order, Permit or authorization of, or declaration or filing with, or
notification to, any Person or Governmental Body is required on the part of the
Company in connection with the execution and delivery of this Agreement or the
other Transaction Documents, or the compliance by the Company, with any of the
provisions hereof or thereof, except as set forth on Schedule 4.1 to this
Agreement or those required by the Registration Rights Agreement including any
and all Securities and Exchange Commission (the "SEC") and Blue Sky filings.
(c) The Company has filed all forms, reports and documents
required to be filed by it under Sections 12, 13, 14 and 15 of the Securities
Exchange Act of 1934, as amended, with the Securities and Exchange Commission
(the "SEC") since December 31, 1997 (collectively, the "Company SEC Reports").
The Company SEC Reports (i) were prepared in all
-4-
<PAGE> 6
material respects in accordance with the requirements of the Securities Act of
1933 or the Securities Exchange Act of 1934, as the case may be, and (ii) did
not at the time they were filed (or if amended or superseded by a filing prior
to the date of this Agreement, then on the date of such filing) contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. None of
the Company's subsidiaries is required to file any forms, reports or other
documents with the SEC.
(d) Each of the consolidated financial statements (including,
in each case, any related notes thereto) contained in the Company SEC Reports
has been prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods involved (except as may be
indicated in the notes thereto or in the Company SEC Reports), and each fairly
presents in all material respects the consolidated financial position of the
Company and its subsidiaries as at the respective dates thereof and the
consolidated results of its operations and cash flows for the periods indicated,
except that the unaudited interim financial statements were or are subject to
normal and recurring year-end adjustments which were not or are not expected to
be material in amount.
4.2 Capitalization.
(a) The Shares and the Option Shares are validly issued, fully
paid and non-assessable.
(b) As of the date hereof, the Shares purchased by the
Purchaser constitute 5.223823% of the issued and outstanding capital stock of
Financial Performance Corporation.
4.3 Contracts. There are no agreements between or among the
Company, Michaelson Kelbick Partners Inc. ("MKP"), or any of the managing
directors of MKP other than (a) those agreements that have been previously
disclosed in writing to the Purchaser, (b) agreements involving a monetary
amount less than $50,000 in the aggregate, (c) agreements which would not be
material to, or have a material adverse effect on, the Company, and (d) those
agreements listed on Schedule 4.3.
4.4 No Agreements. The Company is not a party to, and has no
obligations under, any agreement (whether written or oral) or by operation of
law to issue any shares of capital stock or other equity securities of the
Company or other securities convertible into, exchangeable for or evidencing the
right to subscribe for or purchase shares of capital stock or other equity
securities of the Company, to any person or entity, except as set forth in this
Agreement or the other Transaction Documents, or as set forth in Schedule 4.4 to
this Agreement.
4.5 Disclaimer. The Company does not make any representations
or warranties to the Purchaser other than those expressly set forth herein.
5. Representations and Warranties of the Purchaser. The Purchaser
hereby represents and warrants to Trump and the Company as follows:
-5-
<PAGE> 7
5.1 Authorization of Agreement. The Purchaser has all requisite
capacity, power and authority to execute and deliver this Agreement, the Stock
Option Agreements, the Stockholders Agreement and each other agreement,
document, instrument or certificate contemplated by this Agreement or to be
executed by the Purchaser in connection with the consummation of the
transactions contemplated by this Agreement, and to perform fully his
obligations hereunder and thereunder. This Agreement and each of the other
Transaction Documents has been duly and validly executed and delivered by the
Purchaser. This Agreement and each of the other Transaction Documents
constitutes the legal, valid and binding obligations of the Purchaser,
enforceable against the Purchaser in accordance with this Agreement and each of
the other Transaction Document's respective terms, subject, as to
enforceability, to applicable bankruptcy, insolvency, reorganization, moratorium
and similar laws affecting creditors' rights and remedies generally and to
general principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).
5.2 No Conflicts; Consents of Third Parties. The execution and
delivery by the Purchaser of this Agreement and the other Transaction Documents,
the consummation of the transactions contemplated hereby or thereby, and the
compliance by the Purchaser with any of the provisions hereof or thereof does
not (i) conflict with, violate, result in the breach or termination of, or
constitute a default or give rise to any "takeback" right or right of
termination or acceleration or right to increase the obligations or otherwise
modify the terms thereof under any Contract, Permit or Order to which the
Purchaser is a party or by which the Purchaser or his properties or assets are
bound, or (ii) constitute a violation of any Law applicable to the Purchaser. No
consent, waiver, approval, Order, Permit or authorization of, or declaration or
filing with, or notification to, any Person or Governmental Body is required on
the part of the Purchaser in connection with the execution and delivery of this
Agreement or the other Transaction Documents, or the compliance by the
Purchaser, with any of the provisions hereof or thereof, except as set forth on
Schedule 5.2 to this Agreement.
5.3 Investment Purpose. The Purchaser is acquiring the Shares
for his own account and not with a view towards resale in violation of the
Securities Act of 1933, as amended (the "Securities Act"); provided, however,
that by making the representations herein, the Purchaser does not agree to hold
any of the Shares for any minimum or other specific term and reserves the right
to dispose of the Shares at any time in accordance with applicable law.
5.4 Information. The Purchaser and his advisors, if any, have
been furnished with all materials relating to the business, finances and
operations of the Company and materials relating to the offer and sale of the
Shares which have been requested by the Purchaser. The Purchaser and his
advisors, if any, have been afforded the opportunity to review materials and to
ask questions of the Company and have reviewed materials and asked questions of
the Company to the extent the Purchaser and his advisors, if any, deem
appropriate. Neither such inquiries nor any other due diligence investigations
conducted by the Purchaser or his advisors, if any, or his representatives shall
modify, amend or affect the Purchaser's right to rely on the representations and
warranties contained in Section 3, as to Trump, and Section 4, as to the
Company, respectively. The Purchaser understands that his investment in the
Shares involves a high degree of risk. The Purchaser has sought such accounting,
legal and tax advice as he has considered necessary to make an informed
investment decision with respect to his acquisition of the Shares.
-6-
<PAGE> 8
The Purchaser acknowledges that he has sufficient experience in financial and
business matters to be capable of evaluating the merits and risks of the
prospective investment in the Shares.
5.5 Disclaimer. The Purchaser does not make any representations
or warranties to Trump other than those expressly set forth herein.
6. Additional Agreements and Covenants of Trump.
6.1 Transfer of Shares. Trump hereby agrees that he will not,
directly or indirectly, Transfer any shares of capital stock of the Company (or
any interest therein), any stock certificates representing the same or any
voting trust certificate issued with respect to said capital stock, or any
option, right or warrant to acquire shares of Common Stock, now or hereafter at
any time owned by him (collectively, the "Remaining Shares"), to any Person (a
"Transferee"), except pursuant to the Stock Option Agreements or as permitted
under the Stockholders Agreement; provided, however, that Trump may Transfer any
of the Remaining Shares to (x) any member of his immediate family, (y) a trust
established for the benefit of any immediate member of his family or (z) any
entity wholly-owned by Trump and established solely for the purpose of holding
title to such shares and performing Trump's obligations under this Agreement, in
each case as long as any Transferee in clause (x), (y) or (z) assumes and agrees
in writing to be bound by all of the terms of this Agreement; provided, further,
that Trump may Transfer any of the Remaining Shares by pledge or hypothecation
if the Transferee assumes and agrees in writing to be bound by all of the terms
of this Agreement. Notwithstanding the provisos to the prior sentence or
anything to the contrary contained herein, Trump may not Transfer any of the
Option Shares which are subject to a Stock Option Agreement until such Stock
Option Agreement has terminated or expired. For purposes of this Agreement,
"Transfer" shall mean with respect to any capital stock, (i) any sale,
assignment or transfer of such capital stock or any right or interest therein,
(ii) any pledge or hypothecation of such capital stock or any interest therein,
(iii) any grant, sale or other transfer of securities convertible into or
exchangeable or exercisable for or other options, warrants or rights to acquire
such capital stock or any interest therein and (iv) any other direct or indirect
transfer of such capital stock or any interest therein, including by operation
of law (it being understood that any transferee by operation of law shall be
required to comply with the provisions of this Section 6.1).
6.2 Trump hereby transfers, sets over and assigns to Silverman
all of Trump's right, title and interest, in and to, the Registration Rights
Agreement dated the date hereof among Financial Performance Corporation, Trump,
William Finley, the Purchaser and Ronald Nash with respect to the Shares and the
Option Shares.
7. Miscellaneous.
7.1 Survival of Representations and Warranties. The
representations and warranties contained in this Agreement shall survive the
Closing for the benefit of the parties hereto; provided, however, that the
representations and warranties of the Company other than Section 4.2(a) shall
expire one year from the date hereof; provided, further, however, that the
representations and warranties of the Purchaser to the Company shall expire one
year from the date hereof.
7.2 Certain Definitions.
-7-
<PAGE> 9
"Affiliate" shall have the meaning specified by Rule 12b-2 under
the Securities Exchange Act of 1934, as amended.
"Contract" means any contract, agreement, indenture, note, bond,
loan, instrument, lease, conditional sale contract, mortgage, license,
franchise, insurance policy. commitment or other arrangement or agreement,
whether written or oral.
"Governmental Body" means any governmental or regulatory body, or
political subdivision thereof, whether federal, state, local or foreign, or any
agency, instrumentality or authority thereof, or any court or arbitrator (public
or private).
"Law" means any federal, state, local or foreign law (including
common law), statute, code, ordinance, rule, regulation or other requirement or
guideline.
"Lien" means any lien, pledge, hypothecation, levy, mortgage, deed
of trust, security interest, claim, lease, charge, option, right of first
refusal, easement, or other real estate declaration, covenant, condition,
restriction or servitude, transfer restriction under any shareholder or similar
agreement, encumbrance or any other restriction or limitation whatsoever.
"Option Shares" means the shares of Common Stock issuable upon the
exercise of the Stock Options pursuant to the terms of the Stock Option
Agreements.
"Order" means any order, consent, consent order, injunction,
judgment, decree, consent decree, ruling, writ, assessment or arbitration award.
"Permit" means any approval, authorization, registration, consent,
license, permit or certificate by any Governmental Body.
"Person" means any individual, corporation, partnership, firm,
joint venture, association, joint-stock company, trust, unincorporated
organization, Governmental Body or other entity.
"Stock Option Agreements" means the agreements attached as
Exhibits A, B and C hereto, regarding the First Stock Option, Second Stock
Option and the Third Option.
7.3 Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York without
giving effect to the principles of conflict of laws thereunder.
7.4 Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed given when delivered
personally, upon delivery to a nationally recognized overnight courier service,
or when mailed by certified mail, return receipt requested, to the parties at
the following addresses (or to such other address as a party may have specified
by notice given to the other party pursuant to this provision):
If to Trump, to:
Robert S. Trump
c/o Trump Management, Inc.
-8-
<PAGE> 10
2611 W. 2nd Street
Brooklyn, New York 11223
Telephone: (718) 743-4400
Fax: (718) 891-3609
With a copy to:
Gary Friedman
Kaufman, Friedman, Plotnicki & Grun, LLP
300 E. 42nd Street
New York, New York 10017
Telephone: (212) 973-3320
Fax: (212) 687-3179
If to the Purchaser, to:
Ronald Nash
LTS Capital Partners
777 Third Avenue
New York, New York 10017
Telephone: (212) 446-0229
Fax: (212) 421-2933
With a copy to:
Kramer Levin Naftalis & Frankel LLP
919 Third Avenue
New York, NY 10022
Attention: Howard A. Sobel
Telephone: (212) 715-9326
Fax: (212) 715-8000
If to the Company, to:
Financial Performance Corporation
335 Madison Avenue, 8th Floor
New York, New York 10017
Attention: President
Telephone: (212) 557-0401
Fax: (212) 557-0490
With a copy to:
Baer Marks & Upham LLP
805 Third Avenue
New York, New York ____
Attention: Jonathan J. Russo
-9-
<PAGE> 11
Telephone: (212) 702-5714
Fax: (212) 702-5941
All notices are effective upon receipt or upon refusal if properly delivered.
7.5 Severability. If any term, provision, covenant or condition
of this Agreement or part thereof, or the application thereof to any Person,
place or circumstance shall be held to be invalid, unenforceable or void by a
court of competent jurisdiction, the remainder of this Agreement and such term,
provision, covenant or condition shall remain in full force and effect, and any
such invalid, unenforceable or void term, provision, covenant or condition shall
be deemed, without further action on the part of the parties hereto, modified,
amended and limited, and the court shall have the power to modify, amend, and
limit such term, provision, covenant or condition, to the extent necessary to
render the same and the remainder of this Agreement valid, enforceable and
lawful.
7.6 Binding Effect, Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective permitted
successors and assigns. Nothing in this Agreement shall create or be deemed to
create any third party beneficiary rights or any other rights of any kind in any
Person or entity not a party to this Agreement except as provided below. No
assignment of this Agreement or of any rights or obligations hereunder may be
made by Trump (by operation of law or otherwise) without the prior written
consent of the Purchaser, except as provided herein, and any attempted
assignment without such required consent shall be void. The Purchaser may assign
this Agreement and any or all rights and obligations hereunder, in whole or in
part, to any Affiliate of the Purchaser or any purchaser of not less than
500,000 shares of Common Stock owned by the Purchaser, whether direct or
indirect, by purchase, merger, consolidation, operation of law or otherwise (any
such Affiliate or purchaser, a "Successor"). The Purchaser will require any such
Successor to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Purchaser would be required to perform it
if no such purchase, or succession had taken place. Upon any such permitted
purchase or succession the references in this Agreement to the Purchaser shall
also apply to any Successor unless the context otherwise requires.
7.7 Public Announcement. The parties shall cooperate with
respect to any public announcement relating to the transactions contemplated
hereby or by the other Transaction Documents; and none of the parties will issue
any public statement announcing such transaction without the prior consent of
the others (which shall not be unreasonably withheld, delayed or conditioned),
except as such party in good faith (based upon advice of counsel) believes is
required by law and following notice to the other parties. If within three (3)
Business Days after such notice to the other parties has been given, neither
other party responds, their consents shall be deemed given.
-10-
<PAGE> 12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the date first written above.
/s/ ROBERT S. TRUMP
-----------------------------------
ROBERT S. TRUMP
/s/ RONALD NASH
------------------------------------
RONALD NASH
FINANCIAL PERFORMANCE CORPORATION
By: /s/ WILLIAM F. FINLEY
---------------------------------
Name:
Title:
<PAGE> 13
SCHEDULE 3.2
to
Stock Purchase and Sale Agreement
1. Filings under Section 13 of the Securities Exchange Act of 1934,
as amended.
2. Filings under Section 16 of the Securities Exchange Act of 1934,
as amended.
3. Prospectus delivery requirements pursuant to the Securities Act of 1933,
as amended.
-12-
<PAGE> 14
SCHEDULE 3.3
to
Stock Purchase and Sale Agreement
None
-13-
<PAGE> 15
SCHEDULE 4.3
to
Stock Purchase and Sale Agreement
1. Restated and Amended Managing Directors Agreement dated November 16, 1999
between MKP and Susan Michaelson.
2. Restated and Amended Managing Directors Agreement dated November 16, 1999
between MKP and Hillary Kelbick.
3. First Amendment to Restated and Amended Shareholders Agreement by and
among MKP, Financial Performance Corporation, Susan Michaelson and
Hillary Kelbick dated November 16, 1999.
-14-
<PAGE> 16
SCHEDULE 4.4
to
Stock Purchase and Sale Agreement
SCHEDULE OF WARRANT HOLDERS
FINANCIAL PERFORMANCE CORPORATION
DATE: November 12, 1999
<TABLE>
<S> <C>
1. Warrants dated September 15, 1995 (exercisable at $0.50/share until 9-15-2010)
------------------------------------------------------------------------------
Holder No. of Warrants
------ ---------------
William F. Finley 200,000
2. Warrants dated September 15, 1996 (exercisable at $1.00/share until 9-15-2006)
------------------------------------------------------------------------------
Holder No. of Warrants
------ ---------------
William F. Finley 200,000
Susan Michaelson 200,000
Hillary Kelbick 200,000
Richard Levy 50,000
Duncan G. Burke 50,000
Phillip L. Hage 25,000
3. Warrants dated September 16, 1996 (exercisable at $1.00/share until 9-15-2006)
------------------------------------------------------------------------------
Holder No. of Warrants
------ ---------------
Nora Byrne 5,000
Siobhan Glennon 5,000
Debra Kruper 5,000
Pamela Reich 5,000
4. Warrants dated December 1, 1996 (exercisable at $0.50/share until 11-30-1999)
-----------------------------------------------------------------------------
Holder No. of Warrants
------ ---------------
Van Kasper & Company 150,000
</TABLE>
-14-
<PAGE> 17
<TABLE>
<S> <C>
5. Warrants dated December 29, 1997 (exercisable at $0.50/share until 11-30-1999)*
-------------------------------------------------------------------------------
Holder No. of Warrants
------ ---------------
Richard Levy 50,000
Duncan G. Burke 50,000
6. Warrants dated October 21, 1998 (exercisable at $0.50/share until 10-31-2001)*
------------------------------------------------------------------------------
Holder No. of Warrants
------ ---------------
Richard Levy 100,000
Duncan G. Burke 100,000
Ottavio Serena 200,000
Gary S. Friedman 50,000
Charlotte Tuck 50,000
</TABLE>
* Warrant expiration date extended until November 30, 2004.
-15-
<PAGE> 18
SCHEDULE 5.2
to
Stock Purchase and Sale Agreement
1. Filings under Section 13 of the Securities Exchange Act of 1934,
as amended.
2. Filings under Section 16 of the Securities Exchange Act of 1934,
as amended.
-16-
<PAGE> 1
EXHIBIT N
Silverman Option Agreements
<PAGE> 2
OPTION AGREEMENT
OPTION AGREEMENT, dated November 17, 1999 (this "Agreement"), by and
between Jeffrey S. Silverman (the "Optionholder") and Robert S. Trump (the
"Shareholder").
WITNESSETH
The Optionholder and the Shareholder are each party to a Stock
Purchase Agreement, dated as of the date hereof (the "Purchase Agreement";
capitalized terms used but not defined herein have the meanings set forth in the
Purchase Agreement), providing for, among other things, the Optionholder's
acquisition of 500,000 shares of Common Stock, par value $.01 per share (the
"Common Stock"), of Financial Performance Corporation, a New York corporation
(the "Company").
As a condition and inducement to the Optionholder's willingness to
enter into the Purchase Agreement, the Optionholder has requested that the
Shareholder agree, and the Shareholder has agreed, to grant the Optionholder the
Option (as defined below).
NOW, THEREFORE, in consideration of the promises and mutual
covenants and agreements hereinafter contained, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. Grant of Option.
(a) Subject to and upon the terms and conditions set forth in
this Agreement, the Shareholder hereby grants an irrevocable option (the
"Option") to the Optionholder to purchase up to 500,000 shares (the "Shares") of
Common Stock of the Company owned, beneficially and of record, by the
Shareholder, at a purchase price of $.8125 per Share.
(b) The Option may be partially exercised from time to time in
denominations of 50,000 shares or more in any one instance. The Option may not
be exercised in part more than six times in a calendar year.
(c) The Option shall expire and cease to be exercisable two
years after the date of this Agreement (November 17, 2001) (the "Termination
Date").
2. Method of Exercise. (a) The Option or any part thereof
may be exercised by the giving of a written notice to the Shareholder (each an
"Exercise Notice") executed by or on behalf of the Optionholder, to the
Shareholder at the address set forth in Section 5.4 of the Purchase Agreement,
which Exercise Notice shall state the election to exercise the Option, the
number of whole Shares with respect to which the Option is being exercised and
the place (in New York City) and date for the closing of the purchase; provided
that such date shall be not earlier than three business days nor later than
fifteen business days from the date such notice is given, and provided, further,
that if such purchase cannot be consummated during such fifteen business day
period due to any law or regulation, the date for the closing of such
<PAGE> 3
purchase shall be within five business days following the cessation of such
restriction on consummation.
3. Payment and Delivery of Shares. At any closing hereunder,
(a) the Optionholder shall pay the aggregate purchase price for the Shares to be
purchased, which shall be payable by bank check or by wire transfer to an
account designated by Trump, and (b) the Shareholder shall deliver to the
Optionholder (i) a certificate or certificates representing the Shares so
purchased registered in the name of the Optionholder or his designee or (ii) a
certificate or certificates representing the Shares so purchased duly endorsed
in blank for transfer or accompanied by appropriate stock powers duly executed
in blank. If any of the Shares shall be held by Trump in a brokerage account,
Trump may deliver to the brokerage firm in which such Shares are held, written
notice to transfer record and beneficial ownership of the Shares purchased by
the Optionholder to the brokerage account of the Optionholder. The Optionholder
shall designate his brokerage account together with the Exercise Notice. The
Optionholder shall reasonably cooperate with Trump and shall take reasonable
actions requested by Trump to effectuate such transfer of ownership. However it
shall be solely Trump's obligation to effectuate such transfer of ownership.
4. Representations and Warranties of the Shareholder.
(a) The representations and warranties of the Shareholder
contained in Section 3 of the Purchase Agreement are hereby incorporated by
reference herein in full with the same force and effect as though expressly made
as part of this Agreement.
(b) Prior to the Termination Date, the Shareholder will not
take, and will not permit anyone else to take, any action which might have the
effect of preventing or disabling the Shareholder from delivering the Shares
(free and clear of any liens, claims, security interests, or encumbrances
whatsoever) to the Optionholder upon exercise of the Option or from otherwise
performing its obligations under this Agreement.
4A. Representations and Warranties of the Optionholder. The
representations and warranties of the Optionholder contained in Section 5 of the
Purchase Agreement are hereby incorporated by reference herein in full with the
same force and effect as though expressly made as part of this Agreement.
5. Adjustments. (a) In case the Company shall at any time
after the date of this Agreement (i) declare a dividend or make a distribution
on the Common Stock in shares of its capital stock, (ii) subdivide the
outstanding Common Stock; (iii) combine the outstanding Common Stock into a
smaller number of shares or (iv) issue any shares of its capital stock by
reclassification of the Common Stock (including any such reclassification in
connection with a consolidation or merger in which the Company is the continuing
corporation), or take any action similar to (i) through (iv), then the number
and kind of shares of capital stock purchasable upon exercise of the Option
immediately after the happening of such event shall be adjusted so that, after
giving effect to such adjustment, the Optionholder shall be entitled to receive
the number and kind of shares of capital stock upon exercise that such holder
would have owned or been entitled to receive had such Option been exercised
immediately prior to the happening of the events described above (or in the case
of clause (i) above, immediately prior to the record date
-2-
<PAGE> 4
therefor). An adjustment made pursuant to this Section 5(a) shall become
effective immediately after the effective date, retroactive to the record date
therefor in the case of clause (i) above, and shall become effective immediately
after the effective date in the case of clauses (ii), (iii) or (iv) above.
(b) In case of any consolidation or merger of the Company with
or into another corporation (other than a merger with a subsidiary in which the
Company is the continuing corporation and which does not result in any
reclassification, capital reorganization or other change of the outstanding
Shares issuable upon exercise of the Option) or in case of the sale, transfer or
other disposition of all or substantially all of the assets of the Company, then
the Optionholder shall be entitled to receive upon exercise of the Option such
number of shares of capital stock or other securities or property upon, or as a
result of, such transaction that the Optionholder would have been entitled to
receive had the Option been exercised immediately prior to such transaction.
6. Specific Performance. The Shareholder acknowledges and
agrees that the breach or threatened breach of this Agreement would cause
irreparable damage to the Optionholder and that the Optionholder will not have
an adequate remedy at law. Accordingly, the Shareholder expressly acknowledges
that the Optionholder shall be entitled to specific performance, injunctive
relief or any other equitable remedy against the Shareholder, in the event of
any breach or threatened breach of any provision of this Agreement by the
Shareholder. The rights and remedies of the parties hereto are cumulative and
shall not be exclusive, and each such party shall be entitled to pursue all
legal and equitable rights and remedies and to secure performance of the
obligations and duties of the other under this Agreement, and the enforcement of
one or more of such rights and remedies by a party shall in no way preclude such
party from pursuing, at the same time or subsequently, any and all other rights
and remedies available to it.
7. Further Assurances. The Shareholder and the Optionholder
each agree to execute and deliver such other reasonable documents or agreements
as may be necessary or desirable for the implementation of this Agreement and
the consummation of the transactions contemplated hereby.
8. Submission to Jurisdiction; Waiver of Jury Trial; and
Consent to Service of Process.
(a) The parties hereto hereby irrevocably submit to the
exclusive jurisdiction of any federal or state court located within the State of
New York over any dispute arising out of or relating to this Agreement or any of
the transactions contemplated hereby or by the other Transaction Documents and
each party hereby irrevocably agrees that all claims in respect of such dispute
or any suit, action or proceeding related thereto may be heard and determined in
such courts. The parties hereby irrevocably waive, to the fullest extent
permitted by applicable law, any objection which they may now or hereafter have
to the laying of venue of any such dispute brought in such court or any defense
of inconvenient forum for the maintenance of such dispute. Each of the parties
hereto agrees that a judgment in any such dispute may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
-3-
<PAGE> 5
(b) THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE THE RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT AND ANY OF THE OTHER TRANSACTION DOCUMENTS, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES' ACCEPTANCE OF
THIS AGREEMENT.
9. Entire Agreement; Amendments and Waivers. This Agreement,
together with the other Transaction Documents, represents the entire
understanding and agreement between the parties hereto with respect to the
subject matter hereof and can be amended, supplemented or changed, and any
provision hereof can be waived, only by written instrument making specific
reference to this Agreement signed by the parties hereto. No action taken
pursuant to this Agreement, including without limitation, any investigation by
or on behalf of any party, shall be deemed to constitute a waiver by the party
taking such action of compliance with any representation, warranty, covenant or
agreement contained herein. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a further or
continuing waiver of such breach or as a waiver of any other or subsequent
breach. No failure on the part of any party to exercise, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of such right, power or remedy
by such party preclude any other or further exercise thereof or the exercise of
any other right, power or remedy. All remedies hereunder are cumulative and are
not exclusive of any other remedies provided by law.
10. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York without
giving effect to the principles of conflict of laws thereunder.
11. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed given when delivered in the
manner and at the addresses set forth in Section 5.4 of the Purchase Agreement.
12. Severability. If any term, provision, covenant or condition
of this Agreement or part thereof, or the application thereof to any Person,
place or circumstance shall be held to be invalid, unenforceable or void by a
court of competent jurisdiction, the remainder of this Agreement and such term,
provision, covenant or condition shall remain in full force and effect, and any
such invalid, unenforceable or void term, provision, covenant or condition shall
be deemed, without further action on the part of the parties hereto, modified,
amended and limited, and the court shall have the power to modify, amend, and
limit such term, provision, covenant or condition, to the extent necessary to
render the same and the remainder of this Agreement valid, enforceable and
lawful.
13. Binding Effect, Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective permitted
successors and assigns. Nothing in this Agreement shall create or be deemed to
create any third party beneficiary rights or any other rights of any kind in any
Person or entity not a party to this Agreement except as provided
-4-
<PAGE> 6
below. No assignment of this Agreement or of any rights or obligations hereunder
may be made by the Shareholder (by operation of law or otherwise) without the
prior written consent of the Optionholder and any attempted assignment without
such required consent shall be void. The Optionholder may assign this Agreement
and any or all rights and obligations hereunder, in whole or in part, to any
Affiliate of the Optionholder or any purchaser of the Option, whether direct or
indirect, by purchase, merger, consolidation, operation of law or otherwise (any
such Affiliate or purchaser, a "Successor"). Upon any such permitted purchase or
succession the references in this Agreement to the Optionholder shall also apply
to any Successor unless the context otherwise requires.
-5-
<PAGE> 7
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the date first written above.
/s/ ROBERT S. TRUMP
----------------------------
Robert S. Trump
/s/ JEFFREY S. SILVERMAN
----------------------------
Jeffrey S. Silverman
<PAGE> 8
OPTION AGREEMENT
OPTION AGREEMENT, dated November 17, 1999 (this "Agreement"), by and
between Jeffrey S. Silverman (the "Optionholder") and Robert S. Trump (the
"Shareholder").
WITNESSETH
The Optionholder and the Shareholder are each party to a Stock
Purchase Agreement, dated as of the date hereof (the "Purchase Agreement";
capitalized terms used but not defined herein have the meanings set forth in the
Purchase Agreement), providing for, among other things, the Optionholder's
acquisition of 500,000 shares of Common Stock, par value $.01 per share (the
"Common Stock"), of Financial Performance Corporation, a New York corporation
(the "Company").
As a condition and inducement to the Optionholder's willingness to
enter into the Purchase Agreement, the Optionholder has requested that the
Shareholder agree, and the Shareholder has agreed, to grant the Optionholder the
Option (as defined below).
NOW, THEREFORE, in consideration of the promises and mutual
covenants and agreements hereinafter contained, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. Grant of Option.
(a) Subject to and upon the terms and conditions set forth in
this Agreement, the Shareholder hereby grants an irrevocable option (the
"Option") to the Optionholder to purchase up to 500,000 shares (the "Shares") of
Common Stock of the Company owned, beneficially and of record, by the
Shareholder, at a purchase price of $1.3125 per Share.
(b) The Option may be partially exercised from time to time in
denominations of 50,000 shares or more in any one instance. The Option may not
be exercised in part more than six times in a calendar year.
(c) The Option shall expire and cease to be exercisable three
years after the date of this Agreement (November 17, 2002) (the "Termination
Date").
2. Method of Exercise. (a) The Option or any part thereof
may be exercised by the giving of a written notice to the Shareholder (each an
"Exercise Notice") executed by or on behalf of the Optionholder, to the
Shareholder at the address set forth in Section 5.4 of the Purchase Agreement,
which Exercise Notice shall state the election to exercise the Option, the
number of whole Shares with respect to which the Option is being exercised and
the place (in New York City) and date for the closing of the purchase; provided
that such date shall be not earlier than three business days nor later than
fifteen business days from the date such notice is given, and provided, further,
that if such purchase cannot be consummated during such fifteen business day
period due to any law or regulation, the date for the closing of such
<PAGE> 9
purchase shall be within five business days following the cessation of such
restriction on consummation.
3. Payment and Delivery of Shares. At any closing hereunder,
(a) the Optionholder shall pay the aggregate purchase price for the Shares to be
purchased, which shall be payable by bank check or by wire transfer to an
account designated by Trump, and (b) the Shareholder shall deliver to the
Optionholder (i) a certificate or certificates representing the Shares so
purchased registered in the name of the Optionholder or his designee or (ii) a
certificate or certificates representing the Shares so purchased duly endorsed
in blank for transfer or accompanied by appropriate stock powers duly executed
in blank. If any of the Shares shall be held by Trump in a brokerage account,
Trump may deliver to the brokerage firm in which such Shares are held, written
notice to transfer record and beneficial ownership of the Shares purchased by
the Optionholder to the brokerage account of the Optionholder. The Optionholder
shall designate his brokerage account together with the Exercise Notice. The
Optionholder shall reasonably cooperate with Trump and shall take reasonable
actions requested by Trump to effectuate such transfer of ownership. However it
shall be solely Trump's obligation to effectuate such transfer of ownership.
4. Representations and Warranties of the Shareholder.
(a) The representations and warranties of the Shareholder
contained in Section 3 of the Purchase Agreement are hereby incorporated by
reference herein in full with the same force and effect as though expressly made
as part of this Agreement.
(b) Prior to the Termination Date, the Shareholder will not
take, and will not permit anyone else to take, any action which might have the
effect of preventing or disabling the Shareholder from delivering the Shares
(free and clear of any liens, claims, security interests, or encumbrances
whatsoever) to the Optionholder upon exercise of the Option or from otherwise
performing its obligations under this Agreement.
4A. Representations and Warranties of the Optionholder. The
representations and warranties of the Optionholder contained in Section 5 of the
Purchase Agreement are hereby incorporated by reference herein in full with the
same force and effect as though expressly made as part of this Agreement.
5. Adjustments. (a) In case the Company shall at any time
after the date of this Agreement (i) declare a dividend or make a distribution
on the Common Stock in shares of its capital stock, (ii) subdivide the
outstanding Common Stock; (iii) combine the outstanding Common Stock into a
smaller number of shares or (iv) issue any shares of its capital stock by
reclassification of the Common Stock (including any such reclassification in
connection with a consolidation or merger in which the Company is the continuing
corporation), or take any action similar to (i) through (iv), then the number
and kind of shares of capital stock purchasable upon exercise of the Option
immediately after the happening of such event shall be adjusted so that, after
giving effect to such adjustment, the Optionholder shall be entitled to receive
the number and kind of shares of capital stock upon exercise that such holder
would have owned or been entitled to receive had such Option been exercised
immediately prior to the happening of the events described above (or in the case
of clause (i) above, immediately prior to the record date
-2-
<PAGE> 10
therefor). An adjustment made pursuant to this Section 5(a) shall become
effective immediately after the effective date, retroactive to the record date
therefor in the case of clause (i) above, and shall become effective immediately
after the effective date in the case of clauses (ii), (iii) or (iv) above.
(b) In case of any consolidation or merger of the Company with
or into another corporation (other than a merger with a subsidiary in which the
Company is the continuing corporation and which does not result in any
reclassification, capital reorganization or other change of the outstanding
Shares issuable upon exercise of the Option) or in case of the sale, transfer or
other disposition of all or substantially all of the assets of the Company, then
the Optionholder shall be entitled to receive upon exercise of the Option such
number of shares of capital stock or other securities or property upon, or as a
result of, such transaction that the Optionholder would have been entitled to
receive had the Option been exercised immediately prior to such transaction.
6. Specific Performance. The Shareholder acknowledges and
agrees that the breach or threatened breach of this Agreement would cause
irreparable damage to the Optionholder and that the Optionholder will not have
an adequate remedy at law. Accordingly, the Shareholder expressly acknowledges
that the Optionholder shall be entitled to specific performance, injunctive
relief or any other equitable remedy against the Shareholder, in the event of
any breach or threatened breach of any provision of this Agreement by the
Shareholder. The rights and remedies of the parties hereto are cumulative and
shall not be exclusive, and each such party shall be entitled to pursue all
legal and equitable rights and remedies and to secure performance of the
obligations and duties of the other under this Agreement, and the enforcement of
one or more of such rights and remedies by a party shall in no way preclude such
party from pursuing, at the same time or subsequently, any and all other rights
and remedies available to it.
7. Further Assurances. The Shareholder and the Optionholder
each agree to execute and deliver such other reasonable documents or agreements
as may be necessary or desirable for the implementation of this Agreement and
the consummation of the transactions contemplated hereby.
8. Submission to Jurisdiction; Waiver of Jury Trial; and
Consent to Service of Process.
(a) The parties hereto hereby irrevocably submit to the
exclusive jurisdiction of any federal or state court located within the State of
New York over any dispute arising out of or relating to this Agreement or any of
the transactions contemplated hereby or by the other Transaction Documents and
each party hereby irrevocably agrees that all claims in respect of such dispute
or any suit, action or proceeding related thereto may be heard and determined in
such courts. The parties hereby irrevocably waive, to the fullest extent
permitted by applicable law, any objection which they may now or hereafter have
to the laying of venue of any such dispute brought in such court or any defense
of inconvenient forum for the maintenance of such dispute. Each of the parties
hereto agrees that a judgment in any such dispute may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
-3-
<PAGE> 11
(b) THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE THE RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT AND ANY OF THE OTHER TRANSACTION DOCUMENTS, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES' ACCEPTANCE OF
THIS AGREEMENT.
9. Entire Agreement; Amendments and Waivers. This Agreement,
together with the other Transaction Documents, represents the entire
understanding and agreement between the parties hereto with respect to the
subject matter hereof and can be amended, supplemented or changed, and any
provision hereof can be waived, only by written instrument making specific
reference to this Agreement signed by the parties hereto. No action taken
pursuant to this Agreement, including without limitation, any investigation by
or on behalf of any party, shall be deemed to constitute a waiver by the party
taking such action of compliance with any representation, warranty, covenant or
agreement contained herein. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a further or
continuing waiver of such breach or as a waiver of any other or subsequent
breach. No failure on the part of any party to exercise, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of such right, power or remedy
by such party preclude any other or further exercise thereof or the exercise of
any other right, power or remedy. All remedies hereunder are cumulative and are
not exclusive of any other remedies provided by law.
10. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York without
giving effect to the principles of conflict of laws thereunder.
11. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed given when delivered in the
manner and at the addresses set forth in Section 5.4 of the Purchase Agreement.
12. Severability. If any term, provision, covenant or condition
of this Agreement or part thereof, or the application thereof to any Person,
place or circumstance shall be held to be invalid, unenforceable or void by a
court of competent jurisdiction, the remainder of this Agreement and such term,
provision, covenant or condition shall remain in full force and effect, and any
such invalid, unenforceable or void term, provision, covenant or condition shall
be deemed, without further action on the part of the parties hereto, modified,
amended and limited, and the court shall have the power to modify, amend, and
limit such term, provision, covenant or condition, to the extent necessary to
render the same and the remainder of this Agreement valid, enforceable and
lawful.
13. Binding Effect, Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective permitted
successors and assigns. Nothing in this Agreement shall create or be deemed to
create any third party beneficiary rights or any other rights of any kind in any
Person or entity not a party to this Agreement except as provided
-4-
<PAGE> 12
below. No assignment of this Agreement or of any rights or obligations hereunder
may be made by the Shareholder (by operation of law or otherwise) without the
prior written consent of the Optionholder and any attempted assignment without
such required consent shall be void. The Optionholder may assign this Agreement
and any or all rights and obligations hereunder, in whole or in part, to any
Affiliate of the Optionholder or any purchaser of the Option, whether direct or
indirect, by purchase, merger, consolidation, operation of law or otherwise (any
such Affiliate or purchaser, a "Successor"). Upon any such permitted purchase or
succession the references in this Agreement to the Optionholder shall also apply
to any Successor unless the context otherwise requires.
-5-
<PAGE> 13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the date first written above.
/s/ ROBERT S. TRUMP
----------------------------
Robert S. Trump
/s/ JEFFREY S. SILVERMAN
----------------------------
Jeffrey S. Silverman
<PAGE> 14
OPTION AGREEMENT
OPTION AGREEMENT, dated November 17, 1999 (this "Agreement"), by and
between Jeffrey S. Silverman (the "Optionholder") and Robert S. Trump (the
"Shareholder").
WITNESSETH
The Optionholder and the Shareholder are each party to a Stock
Purchase Agreement, dated as of the date hereof (the "Purchase Agreement";
capitalized terms used but not defined herein have the meanings set forth in the
Purchase Agreement), providing for, among other things, the Optionholder's
acquisition of 250,000 shares of Common Stock, par value $.01 per share (the
"Common Stock"), of Financial Performance Corporation, a New York corporation
(the "Company").
As a condition and inducement to the Optionholder's willingness to
enter into the Purchase Agreement, the Optionholder has requested that the
Shareholder agree, and the Shareholder has agreed, to grant the Optionholder the
Option (as defined below).
NOW, THEREFORE, in consideration of the promises and mutual
covenants and agreements hereinafter contained, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. Grant of Option.
(a) Subject to and upon the terms and conditions set forth in
this Agreement, the Shareholder hereby grants an irrevocable option (the
"Option") to the Optionholder to purchase up to 250,000 shares (the "Shares") of
Common Stock of the Company owned, beneficially and of record, by the
Shareholder, at a purchase price of $5.00 per Share.
(b) The Option may be partially exercised from time to time in
denominations of 50,000 shares or more in any one instance. The Option may not
be exercised in part more than six times in a calendar year.
(c) The Option shall expire and cease to be exercisable three
years after the date of this Agreement (November 17, 2002) (the "Termination
Date").
2. Method of Exercise. (a) The Option or any part thereof
may be exercised by the giving of a written notice to the Shareholder (each an
"Exercise Notice") executed by or on behalf of the Optionholder, to the
Shareholder at the address set forth in Section 5.4 of the Purchase Agreement,
which Exercise Notice shall state the election to exercise the Option, the
number of whole Shares with respect to which the Option is being exercised and
the place (in New York City) and date for the closing of the purchase; provided
that such date shall be not earlier than three business days nor later than
fifteen business days from the date such notice is given, and provided, further,
that if such purchase cannot be consummated during such fifteen business day
period due to any law or regulation, the date for the closing of such
<PAGE> 15
purchase shall be within five business days following the cessation of such
restriction on consummation.
3. Payment and Delivery of Shares. At any closing hereunder,
(a) the Optionholder shall pay the aggregate purchase price for the Shares to be
purchased, which shall be payable by bank check or by wire transfer to an
account designated by Trump, and (b) the Shareholder shall deliver to the
Optionholder (i) a certificate or certificates representing the Shares so
purchased registered in the name of the Optionholder or his designee or (ii) a
certificate or certificates representing the Shares so purchased duly endorsed
in blank for transfer or accompanied by appropriate stock powers duly executed
in blank. If any of the Shares shall be held by Trump in a brokerage account,
Trump may deliver to the brokerage firm in which such Shares are held, written
notice to transfer record and beneficial ownership of the Shares purchased by
the Optionholder to the brokerage account of the Optionholder. The Optionholder
shall designate his brokerage account together with the Exercise Notice. The
Optionholder shall reasonably cooperate with Trump and shall take reasonable
actions requested by Trump to effectuate such transfer of ownership. However it
shall be solely Trump's obligation to effectuate such transfer of ownership.
4. Representations and Warranties of the Shareholder.
(a) The representations and warranties of the Shareholder
contained in Section 3 of the Purchase Agreement are hereby incorporated by
reference herein in full with the same force and effect as though expressly made
as part of this Agreement.
(b) Prior to the Termination Date, the Shareholder will not
take, and will not permit anyone else to take, any action which might have the
effect of preventing or disabling the Shareholder from delivering the Shares
(free and clear of any liens, claims, security interests, or encumbrances
whatsoever) to the Optionholder upon exercise of the Option or from otherwise
performing its obligations under this Agreement.
4A. Representations and Warranties of the Optionholder. The
representations and warranties of the Optionholder contained in Section 5 of the
Purchase Agreement are hereby incorporated by reference herein in full with the
same force and effect as though expressly made as part of this Agreement.
5. Adjustments. (a) In case the Company shall at any time
after the date of this Agreement (i) declare a dividend or make a distribution
on the Common Stock in shares of its capital stock, (ii) subdivide the
outstanding Common Stock; (iii) combine the outstanding Common Stock into a
smaller number of shares or (iv) issue any shares of its capital stock by
reclassification of the Common Stock (including any such reclassification in
connection with a consolidation or merger in which the Company is the continuing
corporation), or take any action similar to (i) through (iv), then the number
and kind of shares of capital stock purchasable upon exercise of the Option
immediately after the happening of such event shall be adjusted so that, after
giving effect to such adjustment, the Optionholder shall be entitled to receive
the number and kind of shares of capital stock upon exercise that such holder
would have owned or been entitled to receive had such Option been exercised
immediately prior to the happening of the events described above (or in the case
of clause (i) above, immediately prior to the record date
-2-
<PAGE> 16
therefor). An adjustment made pursuant to this Section 5(a) shall become
effective immediately after the effective date, retroactive to the record date
therefor in the case of clause (i) above, and shall become effective immediately
after the effective date in the case of clauses (ii), (iii) or (iv) above.
(b) In case of any consolidation or merger of the Company with
or into another corporation (other than a merger with a subsidiary in which the
Company is the continuing corporation and which does not result in any
reclassification, capital reorganization or other change of the outstanding
Shares issuable upon exercise of the Option) or in case of the sale, transfer or
other disposition of all or substantially all of the assets of the Company, then
the Optionholder shall be entitled to receive upon exercise of the Option such
number of shares of capital stock or other securities or property upon, or as a
result of, such transaction that the Optionholder would have been entitled to
receive had the Option been exercised immediately prior to such transaction.
6. Specific Performance. The Shareholder acknowledges and
agrees that the breach or threatened breach of this Agreement would cause
irreparable damage to the Optionholder and that the Optionholder will not have
an adequate remedy at law. Accordingly, the Shareholder expressly acknowledges
that the Optionholder shall be entitled to specific performance, injunctive
relief or any other equitable remedy against the Shareholder, in the event of
any breach or threatened breach of any provision of this Agreement by the
Shareholder. The rights and remedies of the parties hereto are cumulative and
shall not be exclusive, and each such party shall be entitled to pursue all
legal and equitable rights and remedies and to secure performance of the
obligations and duties of the other under this Agreement, and the enforcement of
one or more of such rights and remedies by a party shall in no way preclude such
party from pursuing, at the same time or subsequently, any and all other rights
and remedies available to it.
7. Further Assurances. The Shareholder and the Optionholder
each agree to execute and deliver such other reasonable documents or agreements
as may be necessary or desirable for the implementation of this Agreement and
the consummation of the transactions contemplated hereby.
8. Submission to Jurisdiction; Waiver of Jury Trial; and
Consent to Service of Process.
(a) The parties hereto hereby irrevocably submit to the
exclusive jurisdiction of any federal or state court located within the State of
New York over any dispute arising out of or relating to this Agreement or any of
the transactions contemplated hereby or by the other Transaction Documents and
each party hereby irrevocably agrees that all claims in respect of such dispute
or any suit, action or proceeding related thereto may be heard and determined in
such courts. The parties hereby irrevocably waive, to the fullest extent
permitted by applicable law, any objection which they may now or hereafter have
to the laying of venue of any such dispute brought in such court or any defense
of inconvenient forum for the maintenance of such dispute. Each of the parties
hereto agrees that a judgment in any such dispute may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
-3-
<PAGE> 17
(b) THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE THE RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT AND ANY OF THE OTHER TRANSACTION DOCUMENTS, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES' ACCEPTANCE OF
THIS AGREEMENT.
9. Entire Agreement; Amendments and Waivers. This Agreement,
together with the other Transaction Documents, represents the entire
understanding and agreement between the parties hereto with respect to the
subject matter hereof and can be amended, supplemented or changed, and any
provision hereof can be waived, only by written instrument making specific
reference to this Agreement signed by the parties hereto. No action taken
pursuant to this Agreement, including without limitation, any investigation by
or on behalf of any party, shall be deemed to constitute a waiver by the party
taking such action of compliance with any representation, warranty, covenant or
agreement contained herein. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a further or
continuing waiver of such breach or as a waiver of any other or subsequent
breach. No failure on the part of any party to exercise, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of such right, power or remedy
by such party preclude any other or further exercise thereof or the exercise of
any other right, power or remedy. All remedies hereunder are cumulative and are
not exclusive of any other remedies provided by law.
10. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York without
giving effect to the principles of conflict of laws thereunder.
11. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed given when delivered in the
manner and at the addresses set forth in Section 5.4 of the Purchase Agreement.
12. Severability. If any term, provision, covenant or condition
of this Agreement or part thereof, or the application thereof to any Person,
place or circumstance shall be held to be invalid, unenforceable or void by a
court of competent jurisdiction, the remainder of this Agreement and such term,
provision, covenant or condition shall remain in full force and effect, and any
such invalid, unenforceable or void term, provision, covenant or condition shall
be deemed, without further action on the part of the parties hereto, modified,
amended and limited, and the court shall have the power to modify, amend, and
limit such term, provision, covenant or condition, to the extent necessary to
render the same and the remainder of this Agreement valid, enforceable and
lawful.
13. Binding Effect, Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective permitted
successors and assigns. Nothing in this Agreement shall create or be deemed to
create any third party beneficiary rights or any other rights of any kind in any
Person or entity not a party to this Agreement except as provided
-4-
<PAGE> 18
below. No assignment of this Agreement or of any rights or obligations hereunder
may be made by the Shareholder (by operation of law or otherwise) without the
prior written consent of the Optionholder and any attempted assignment without
such required consent shall be void. The Optionholder may assign this Agreement
and any or all rights and obligations hereunder, in whole or in part, to any
Affiliate of the Optionholder or any purchaser of the Option, whether direct or
indirect, by purchase, merger, consolidation, operation of law or otherwise (any
such Affiliate or purchaser, a "Successor"). Upon any such permitted purchase or
succession the references in this Agreement to the Optionholder shall also apply
to any Successor unless the context otherwise requires.
-5-
<PAGE> 19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the date first written above.
/s/ ROBERT S. TRUMP
----------------------------
Robert S. Trump
/s/ JEFFREY S. SILVERMAN
----------------------------
Jeffrey S. Silverman
<PAGE> 1
EXHIBIT O
Nash Option Agreements
<PAGE> 2
OPTION AGREEMENT
OPTION AGREEMENT, dated November 17, 1999 (this "Agreement"), by and
between Ronald Nash (the "Optionholder") and Robert S. Trump (the
"Shareholder").
WITNESSETH
The Optionholder and the Shareholder are each party to a Stock
Purchase Agreement, dated as of the date hereof (the "Purchase Agreement";
capitalized terms used but not defined herein have the meanings set forth in the
Purchase Agreement), providing for, among other things, the Optionholder's
acquisition of 500,000 shares of Common Stock, par value $.01 per share (the
"Common Stock"), of Financial Performance Corporation, a New York corporation
(the "Company").
As a condition and inducement to the Optionholder's willingness to
enter into the Purchase Agreement, the Optionholder has requested that the
Shareholder agree, and the Shareholder has agreed, to grant the Optionholder the
Option (as defined below).
NOW, THEREFORE, in consideration of the promises and mutual
covenants and agreements hereinafter contained, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. Grant of Option.
(a) Subject to and upon the terms and conditions set forth in
this Agreement, the Shareholder hereby grants an irrevocable option (the
"Option") to the Optionholder to purchase up to 500,000 shares (the "Shares") of
Common Stock of the Company owned, beneficially and of record, by the
Shareholder, at a purchase price of $.8125 per Share.
(b) The Option may be partially exercised from time to time in
denominations of 50,000 shares or more in any one instance. The Option may not
be exercised in part more than six times in a calendar year.
(c) The Option shall expire and cease to be exercisable two
years after the date of this Agreement (November 17, 2001) (the "Termination
Date").
2. Method of Exercise. (a) The Option or any part thereof
may be exercised by the giving of a written notice to the Shareholder (each an
"Exercise Notice") executed by or on behalf of the Optionholder, to the
Shareholder at the address set forth in Section 5.4 of the Purchase Agreement,
which Exercise Notice shall state the election to exercise the Option, the
number of whole Shares with respect to which the Option is being exercised and
the place (in New York City) and date for the closing of the purchase; provided
that such date shall be not earlier than three business days nor later than
fifteen business days from the date such notice is given, and provided, further,
that if such purchase cannot be consummated during such fifteen business day
period due to any law or regulation, the date for the closing of such
<PAGE> 3
purchase shall be within five business days following the cessation of such
restriction on consummation.
3. Payment and Delivery of Shares. At any closing hereunder,
(a) the Optionholder shall pay the aggregate purchase price for the Shares to be
purchased, which shall be payable by bank check or by wire transfer to an
account designated by Trump, and (b) the Shareholder shall deliver to the
Optionholder (i) a certificate or certificates representing the Shares so
purchased registered in the name of the Optionholder or his designee or (ii) a
certificate or certificates representing the Shares so purchased duly endorsed
in blank for transfer or accompanied by appropriate stock powers duly executed
in blank. If any of the Shares shall be held by Trump in a brokerage account,
Trump may deliver to the brokerage firm in which such Shares are held, written
notice to transfer record and beneficial ownership of the Shares purchased by
the Optionholder to the brokerage account of the Optionholder. The Optionholder
shall designate his brokerage account together with the Exercise Notice. The
Optionholder shall reasonably cooperate with Trump and shall take reasonable
actions requested by Trump to effectuate such transfer of ownership. However it
shall be solely Trump's obligation to effectuate such transfer of ownership.
4. Representations and Warranties of the Shareholder.
(a) The representations and warranties of the Shareholder
contained in Section 3 of the Purchase Agreement are hereby incorporated by
reference herein in full with the same force and effect as though expressly made
as part of this Agreement.
(b) Prior to the Termination Date, the Shareholder will not
take, and will not permit anyone else to take, any action which might have the
effect of preventing or disabling the Shareholder from delivering the Shares
(free and clear of any liens, claims, security interests, or encumbrances
whatsoever) to the Optionholder upon exercise of the Option or from otherwise
performing its obligations under this Agreement.
4A. Representations and Warranties of the Optionholder. The
representations and warranties of the Optionholder contained in Section 5 of the
Purchase Agreement are hereby incorporated by reference herein in full with the
same force and effect as though expressly made as part of this Agreement.
5. Adjustments. (a) In case the Company shall at any time
after the date of this Agreement (i) declare a dividend or make a distribution
on the Common Stock in shares of its capital stock, (ii) subdivide the
outstanding Common Stock; (iii) combine the outstanding Common Stock into a
smaller number of shares or (iv) issue any shares of its capital stock by
reclassification of the Common Stock (including any such reclassification in
connection with a consolidation or merger in which the Company is the continuing
corporation), or take any action similar to (i) through (iv), then the number
and kind of shares of capital stock purchasable upon exercise of the Option
immediately after the happening of such event shall be adjusted so that, after
giving effect to such adjustment, the Optionholder shall be entitled to receive
the number and kind of shares of capital stock upon exercise that such holder
would have owned or been entitled to receive had such Option been exercised
immediately prior to the happening of the events described above (or in the case
of clause (i) above, immediately prior to the record date
-2-
<PAGE> 4
therefor). An adjustment made pursuant to this Section 5(a) shall become
effective immediately after the effective date, retroactive to the record date
therefor in the case of clause (i) above, and shall become effective immediately
after the effective date in the case of clauses (ii), (iii) or (iv) above.
(b) In case of any consolidation or merger of the Company with
or into another corporation (other than a merger with a subsidiary in which the
Company is the continuing corporation and which does not result in any
reclassification, capital reorganization or other change of the outstanding
Shares issuable upon exercise of the Option) or in case of the sale, transfer or
other disposition of all or substantially all of the assets of the Company, then
the Optionholder shall be entitled to receive upon exercise of the Option such
number of shares of capital stock or other securities or property upon, or as a
result of, such transaction that the Optionholder would have been entitled to
receive had the Option been exercised immediately prior to such transaction.
6. Specific Performance. The Shareholder acknowledges and
agrees that the breach or threatened breach of this Agreement would cause
irreparable damage to the Optionholder and that the Optionholder will not have
an adequate remedy at law. Accordingly, the Shareholder expressly acknowledges
that the Optionholder shall be entitled to specific performance, injunctive
relief or any other equitable remedy against the Shareholder, in the event of
any breach or threatened breach of any provision of this Agreement by the
Shareholder. The rights and remedies of the parties hereto are cumulative and
shall not be exclusive, and each such party shall be entitled to pursue all
legal and equitable rights and remedies and to secure performance of the
obligations and duties of the other under this Agreement, and the enforcement of
one or more of such rights and remedies by a party shall in no way preclude such
party from pursuing, at the same time or subsequently, any and all other rights
and remedies available to it.
7. Further Assurances. The Shareholder and the Optionholder
each agree to execute and deliver such other reasonable documents or agreements
as may be necessary or desirable for the implementation of this Agreement and
the consummation of the transactions contemplated hereby.
8. Submission to Jurisdiction; Waiver of Jury Trial; and
Consent to Service of Process.
(a) The parties hereto hereby irrevocably submit to the
exclusive jurisdiction of any federal or state court located within the State of
New York over any dispute arising out of or relating to this Agreement or any of
the transactions contemplated hereby or by the other Transaction Documents and
each party hereby irrevocably agrees that all claims in respect of such dispute
or any suit, action or proceeding related thereto may be heard and determined in
such courts. The parties hereby irrevocably waive, to the fullest extent
permitted by applicable law, any objection which they may now or hereafter have
to the laying of venue of any such dispute brought in such court or any defense
of inconvenient forum for the maintenance of such dispute. Each of the parties
hereto agrees that a judgment in any such dispute may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
-3-
<PAGE> 5
(b) THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE THE RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT AND ANY OF THE OTHER TRANSACTION DOCUMENTS, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES' ACCEPTANCE OF
THIS AGREEMENT.
9. Entire Agreement; Amendments and Waivers. This Agreement,
together with the other Transaction Documents, represents the entire
understanding and agreement between the parties hereto with respect to the
subject matter hereof and can be amended, supplemented or changed, and any
provision hereof can be waived, only by written instrument making specific
reference to this Agreement signed by the parties hereto. No action taken
pursuant to this Agreement, including without limitation, any investigation by
or on behalf of any party, shall be deemed to constitute a waiver by the party
taking such action of compliance with any representation, warranty, covenant or
agreement contained herein. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a further or
continuing waiver of such breach or as a waiver of any other or subsequent
breach. No failure on the part of any party to exercise, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of such right, power or remedy
by such party preclude any other or further exercise thereof or the exercise of
any other right, power or remedy. All remedies hereunder are cumulative and are
not exclusive of any other remedies provided by law.
10. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York without
giving effect to the principles of conflict of laws thereunder.
11. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed given when delivered in the
manner and at the addresses set forth in Section 5.4 of the Purchase Agreement.
12. Severability. If any term, provision, covenant or condition
of this Agreement or part thereof, or the application thereof to any Person,
place or circumstance shall be held to be invalid, unenforceable or void by a
court of competent jurisdiction, the remainder of this Agreement and such term,
provision, covenant or condition shall remain in full force and effect, and any
such invalid, unenforceable or void term, provision, covenant or condition shall
be deemed, without further action on the part of the parties hereto, modified,
amended and limited, and the court shall have the power to modify, amend, and
limit such term, provision, covenant or condition, to the extent necessary to
render the same and the remainder of this Agreement valid, enforceable and
lawful.
13. Binding Effect, Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective permitted
successors and assigns. Nothing in this Agreement shall create or be deemed to
create any third party beneficiary rights or any other rights of any kind in any
Person or entity not a party to this Agreement except as provided
-4-
<PAGE> 6
below. No assignment of this Agreement or of any rights or obligations hereunder
may be made by the Shareholder (by operation of law or otherwise) without the
prior written consent of the Optionholder and any attempted assignment without
such required consent shall be void. The Optionholder may assign this Agreement
and any or all rights and obligations hereunder, in whole or in part, to any
Affiliate of the Optionholder or any purchaser of the Option, whether direct or
indirect, by purchase, merger, consolidation, operation of law or otherwise (any
such Affiliate or purchaser, a "Successor"). Upon any such permitted purchase or
succession the references in this Agreement to the Optionholder shall also apply
to any Successor unless the context otherwise requires.
-5-
<PAGE> 7
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the date first written above.
/s/ ROBERT S. TRUMP
----------------------------
Robert S. Trump
/s/ RONALD NASH
----------------------------
Ronald Nash
<PAGE> 8
OPTION AGREEMENT
OPTION AGREEMENT, dated November 17, 1999 (this "Agreement"), by and
between Ronald Nash (the "Optionholder") and Robert S. Trump (the
"Shareholder").
WITNESSETH
The Optionholder and the Shareholder are each party to a Stock
Purchase Agreement, dated as of the date hereof (the "Purchase Agreement";
capitalized terms used but not defined herein have the meanings set forth in the
Purchase Agreement), providing for, among other things, the Optionholder's
acquisition of 500,000 shares of Common Stock, par value $.01 per share (the
"Common Stock"), of Financial Performance Corporation, a New York corporation
(the "Company").
As a condition and inducement to the Optionholder's willingness to
enter into the Purchase Agreement, the Optionholder has requested that the
Shareholder agree, and the Shareholder has agreed, to grant the Optionholder the
Option (as defined below).
NOW, THEREFORE, in consideration of the promises and mutual
covenants and agreements hereinafter contained, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. Grant of Option.
(a) Subject to and upon the terms and conditions set forth in
this Agreement, the Shareholder hereby grants an irrevocable option (the
"Option") to the Optionholder to purchase up to 500,000 shares (the "Shares") of
Common Stock of the Company owned, beneficially and of record, by the
Shareholder, at a purchase price of $1.3125 per Share.
(b) The Option may be partially exercised from time to time in
denominations of 50,000 shares or more in any one instance. The Option may not
be exercised in part more than six times in a calendar year.
(c) The Option shall expire and cease to be exercisable three
years after the date of this Agreement (November 17, 2002) (the "Termination
Date").
2. Method of Exercise. (a) The Option or any part thereof
may be exercised by the giving of a written notice to the Shareholder (each an
"Exercise Notice") executed by or on behalf of the Optionholder, to the
Shareholder at the address set forth in Section 5.4 of the Purchase Agreement,
which Exercise Notice shall state the election to exercise the Option, the
number of whole Shares with respect to which the Option is being exercised and
the place (in New York City) and date for the closing of the purchase; provided
that such date shall be not earlier than three business days nor later than
fifteen business days from the date such notice is given, and provided, further,
that if such purchase cannot be consummated during such fifteen business day
period due to any law or regulation, the date for the closing of such
<PAGE> 9
purchase shall be within five business days following the cessation of such
restriction on consummation.
3. Payment and Delivery of Shares. At any closing hereunder,
(a) the Optionholder shall pay the aggregate purchase price for the Shares to be
purchased, which shall be payable by bank check or by wire transfer to an
account designated by Trump, and (b) the Shareholder shall deliver to the
Optionholder (i) a certificate or certificates representing the Shares so
purchased registered in the name of the Optionholder or his designee or (ii) a
certificate or certificates representing the Shares so purchased duly endorsed
in blank for transfer or accompanied by appropriate stock powers duly executed
in blank. If any of the Shares shall be held by Trump in a brokerage account,
Trump may deliver to the brokerage firm in which such Shares are held, written
notice to transfer record and beneficial ownership of the Shares purchased by
the Optionholder to the brokerage account of the Optionholder. The Optionholder
shall designate his brokerage account together with the Exercise Notice. The
Optionholder shall reasonably cooperate with Trump and shall take reasonable
actions requested by Trump to effectuate such transfer of ownership. However it
shall be solely Trump's obligation to effectuate such transfer of ownership.
4. Representations and Warranties of the Shareholder.
(a) The representations and warranties of the Shareholder
contained in Section 3 of the Purchase Agreement are hereby incorporated by
reference herein in full with the same force and effect as though expressly made
as part of this Agreement.
(b) Prior to the Termination Date, the Shareholder will not
take, and will not permit anyone else to take, any action which might have the
effect of preventing or disabling the Shareholder from delivering the Shares
(free and clear of any liens, claims, security interests, or encumbrances
whatsoever) to the Optionholder upon exercise of the Option or from otherwise
performing its obligations under this Agreement.
4A. Representations and Warranties of the Optionholder. The
representations and warranties of the Optionholder contained in Section 5 of the
Purchase Agreement are hereby incorporated by reference herein in full with the
same force and effect as though expressly made as part of this Agreement.
5. Adjustments. (a) In case the Company shall at any time
after the date of this Agreement (i) declare a dividend or make a distribution
on the Common Stock in shares of its capital stock, (ii) subdivide the
outstanding Common Stock; (iii) combine the outstanding Common Stock into a
smaller number of shares or (iv) issue any shares of its capital stock by
reclassification of the Common Stock (including any such reclassification in
connection with a consolidation or merger in which the Company is the continuing
corporation), or take any action similar to (i) through (iv), then the number
and kind of shares of capital stock purchasable upon exercise of the Option
immediately after the happening of such event shall be adjusted so that, after
giving effect to such adjustment, the Optionholder shall be entitled to receive
the number and kind of shares of capital stock upon exercise that such holder
would have owned or been entitled to receive had such Option been exercised
immediately prior to the happening of the events described above (or in the case
of clause (i) above, immediately prior to the record date
-2-
<PAGE> 10
therefor). An adjustment made pursuant to this Section 5(a) shall become
effective immediately after the effective date, retroactive to the record date
therefor in the case of clause (i) above, and shall become effective immediately
after the effective date in the case of clauses (ii), (iii) or (iv) above.
(b) In case of any consolidation or merger of the Company with
or into another corporation (other than a merger with a subsidiary in which the
Company is the continuing corporation and which does not result in any
reclassification, capital reorganization or other change of the outstanding
Shares issuable upon exercise of the Option) or in case of the sale, transfer or
other disposition of all or substantially all of the assets of the Company, then
the Optionholder shall be entitled to receive upon exercise of the Option such
number of shares of capital stock or other securities or property upon, or as a
result of, such transaction that the Optionholder would have been entitled to
receive had the Option been exercised immediately prior to such transaction.
6. Specific Performance. The Shareholder acknowledges and
agrees that the breach or threatened breach of this Agreement would cause
irreparable damage to the Optionholder and that the Optionholder will not have
an adequate remedy at law. Accordingly, the Shareholder expressly acknowledges
that the Optionholder shall be entitled to specific performance, injunctive
relief or any other equitable remedy against the Shareholder, in the event of
any breach or threatened breach of any provision of this Agreement by the
Shareholder. The rights and remedies of the parties hereto are cumulative and
shall not be exclusive, and each such party shall be entitled to pursue all
legal and equitable rights and remedies and to secure performance of the
obligations and duties of the other under this Agreement, and the enforcement of
one or more of such rights and remedies by a party shall in no way preclude such
party from pursuing, at the same time or subsequently, any and all other rights
and remedies available to it.
7. Further Assurances. The Shareholder and the Optionholder
each agree to execute and deliver such other reasonable documents or agreements
as may be necessary or desirable for the implementation of this Agreement and
the consummation of the transactions contemplated hereby.
8. Submission to Jurisdiction; Waiver of Jury Trial; and
Consent to Service of Process.
(a) The parties hereto hereby irrevocably submit to the
exclusive jurisdiction of any federal or state court located within the State of
New York over any dispute arising out of or relating to this Agreement or any of
the transactions contemplated hereby or by the other Transaction Documents and
each party hereby irrevocably agrees that all claims in respect of such dispute
or any suit, action or proceeding related thereto may be heard and determined in
such courts. The parties hereby irrevocably waive, to the fullest extent
permitted by applicable law, any objection which they may now or hereafter have
to the laying of venue of any such dispute brought in such court or any defense
of inconvenient forum for the maintenance of such dispute. Each of the parties
hereto agrees that a judgment in any such dispute may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
-3-
<PAGE> 11
(b) THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE THE RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT AND ANY OF THE OTHER TRANSACTION DOCUMENTS, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES' ACCEPTANCE OF
THIS AGREEMENT.
9. Entire Agreement; Amendments and Waivers. This Agreement,
together with the other Transaction Documents, represents the entire
understanding and agreement between the parties hereto with respect to the
subject matter hereof and can be amended, supplemented or changed, and any
provision hereof can be waived, only by written instrument making specific
reference to this Agreement signed by the parties hereto. No action taken
pursuant to this Agreement, including without limitation, any investigation by
or on behalf of any party, shall be deemed to constitute a waiver by the party
taking such action of compliance with any representation, warranty, covenant or
agreement contained herein. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a further or
continuing waiver of such breach or as a waiver of any other or subsequent
breach. No failure on the part of any party to exercise, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of such right, power or remedy
by such party preclude any other or further exercise thereof or the exercise of
any other right, power or remedy. All remedies hereunder are cumulative and are
not exclusive of any other remedies provided by law.
10. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York without
giving effect to the principles of conflict of laws thereunder.
11. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed given when delivered in the
manner and at the addresses set forth in Section 5.4 of the Purchase Agreement.
12. Severability. If any term, provision, covenant or condition
of this Agreement or part thereof, or the application thereof to any Person,
place or circumstance shall be held to be invalid, unenforceable or void by a
court of competent jurisdiction, the remainder of this Agreement and such term,
provision, covenant or condition shall remain in full force and effect, and any
such invalid, unenforceable or void term, provision, covenant or condition shall
be deemed, without further action on the part of the parties hereto, modified,
amended and limited, and the court shall have the power to modify, amend, and
limit such term, provision, covenant or condition, to the extent necessary to
render the same and the remainder of this Agreement valid, enforceable and
lawful.
13. Binding Effect, Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective permitted
successors and assigns. Nothing in this Agreement shall create or be deemed to
create any third party beneficiary rights or any other rights of any kind in any
Person or entity not a party to this Agreement except as provided
-4-
<PAGE> 12
below. No assignment of this Agreement or of any rights or obligations hereunder
may be made by the Shareholder (by operation of law or otherwise) without the
prior written consent of the Optionholder and any attempted assignment without
such required consent shall be void. The Optionholder may assign this Agreement
and any or all rights and obligations hereunder, in whole or in part, to any
Affiliate of the Optionholder or any purchaser of the Option, whether direct or
indirect, by purchase, merger, consolidation, operation of law or otherwise (any
such Affiliate or purchaser, a "Successor"). Upon any such permitted purchase or
succession the references in this Agreement to the Optionholder shall also apply
to any Successor unless the context otherwise requires.
-5-
<PAGE> 13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the date first written above.
/s/ ROBERT S. TRUMP
----------------------------
Robert S. Trump
/s/ RONALD NASH
----------------------------
Ronald Nash
<PAGE> 14
OPTION AGREEMENT
OPTION AGREEMENT, dated November 17, 1999 (this "Agreement"), by and
between Ronald Nash (the "Optionholder") and Robert S. Trump (the
"Shareholder").
WITNESSETH
The Optionholder and the Shareholder are each party to a Stock
Purchase Agreement, dated as of the date hereof (the "Purchase Agreement";
capitalized terms used but not defined herein have the meanings set forth in the
Purchase Agreement), providing for, among other things, the Optionholder's
acquisition of 250,000 shares of Common Stock, par value $.01 per share (the
"Common Stock"), of Financial Performance Corporation, a New York corporation
(the "Company").
As a condition and inducement to the Optionholder's willingness to
enter into the Purchase Agreement, the Optionholder has requested that the
Shareholder agree, and the Shareholder has agreed, to grant the Optionholder the
Option (as defined below).
NOW, THEREFORE, in consideration of the promises and mutual
covenants and agreements hereinafter contained, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. Grant of Option.
(a) Subject to and upon the terms and conditions set forth in
this Agreement, the Shareholder hereby grants an irrevocable option (the
"Option") to the Optionholder to purchase up to 250,000 shares (the "Shares") of
Common Stock of the Company owned, beneficially and of record, by the
Shareholder, at a purchase price of $5.00 per Share.
(b) The Option may be partially exercised from time to time in
denominations of 50,000 shares or more in any one instance. The Option may not
be exercised in part more than six times in a calendar year.
(c) The Option shall expire and cease to be exercisable three
years after the date of this Agreement (November 17, 2002) (the "Termination
Date").
2. Method of Exercise. (a) The Option or any part thereof
may be exercised by the giving of a written notice to the Shareholder (each an
"Exercise Notice") executed by or on behalf of the Optionholder, to the
Shareholder at the address set forth in Section 5.4 of the Purchase Agreement,
which Exercise Notice shall state the election to exercise the Option, the
number of whole Shares with respect to which the Option is being exercised and
the place (in New York City) and date for the closing of the purchase; provided
that such date shall be not earlier than three business days nor later than
fifteen business days from the date such notice is given, and provided, further,
that if such purchase cannot be consummated during such fifteen business day
period due to any law or regulation, the date for the closing of such
<PAGE> 15
purchase shall be within five business days following the cessation of such
restriction on consummation.
3. Payment and Delivery of Shares. At any closing hereunder,
(a) the Optionholder shall pay the aggregate purchase price for the Shares to be
purchased, which shall be payable by bank check or by wire transfer to an
account designated by Trump, and (b) the Shareholder shall deliver to the
Optionholder (i) a certificate or certificates representing the Shares so
purchased registered in the name of the Optionholder or his designee or (ii) a
certificate or certificates representing the Shares so purchased duly endorsed
in blank for transfer or accompanied by appropriate stock powers duly executed
in blank. If any of the Shares shall be held by Trump in a brokerage account,
Trump may deliver to the brokerage firm in which such Shares are held, written
notice to transfer record and beneficial ownership of the Shares purchased by
the Optionholder to the brokerage account of the Optionholder. The Optionholder
shall designate his brokerage account together with the Exercise Notice. The
Optionholder shall reasonably cooperate with Trump and shall take reasonable
actions requested by Trump to effectuate such transfer of ownership. However it
shall be solely Trump's obligation to effectuate such transfer of ownership.
4. Representations and Warranties of the Shareholder.
(a) The representations and warranties of the Shareholder
contained in Section 3 of the Purchase Agreement are hereby incorporated by
reference herein in full with the same force and effect as though expressly made
as part of this Agreement.
(b) Prior to the Termination Date, the Shareholder will not
take, and will not permit anyone else to take, any action which might have the
effect of preventing or disabling the Shareholder from delivering the Shares
(free and clear of any liens, claims, security interests, or encumbrances
whatsoever) to the Optionholder upon exercise of the Option or from otherwise
performing its obligations under this Agreement.
4A. Representations and Warranties of the Optionholder. The
representations and warranties of the Optionholder contained in Section 5 of the
Purchase Agreement are hereby incorporated by reference herein in full with the
same force and effect as though expressly made as part of this Agreement.
5. Adjustments. (a) In case the Company shall at any time
after the date of this Agreement (i) declare a dividend or make a distribution
on the Common Stock in shares of its capital stock, (ii) subdivide the
outstanding Common Stock; (iii) combine the outstanding Common Stock into a
smaller number of shares or (iv) issue any shares of its capital stock by
reclassification of the Common Stock (including any such reclassification in
connection with a consolidation or merger in which the Company is the continuing
corporation), or take any action similar to (i) through (iv), then the number
and kind of shares of capital stock purchasable upon exercise of the Option
immediately after the happening of such event shall be adjusted so that, after
giving effect to such adjustment, the Optionholder shall be entitled to receive
the number and kind of shares of capital stock upon exercise that such holder
would have owned or been entitled to receive had such Option been exercised
immediately prior to the happening of the events described above (or in the case
of clause (i) above, immediately prior to the record date
-2-
<PAGE> 16
therefor). An adjustment made pursuant to this Section 5(a) shall become
effective immediately after the effective date, retroactive to the record date
therefor in the case of clause (i) above, and shall become effective immediately
after the effective date in the case of clauses (ii), (iii) or (iv) above.
(b) In case of any consolidation or merger of the Company with
or into another corporation (other than a merger with a subsidiary in which the
Company is the continuing corporation and which does not result in any
reclassification, capital reorganization or other change of the outstanding
Shares issuable upon exercise of the Option) or in case of the sale, transfer or
other disposition of all or substantially all of the assets of the Company, then
the Optionholder shall be entitled to receive upon exercise of the Option such
number of shares of capital stock or other securities or property upon, or as a
result of, such transaction that the Optionholder would have been entitled to
receive had the Option been exercised immediately prior to such transaction.
6. Specific Performance. The Shareholder acknowledges and
agrees that the breach or threatened breach of this Agreement would cause
irreparable damage to the Optionholder and that the Optionholder will not have
an adequate remedy at law. Accordingly, the Shareholder expressly acknowledges
that the Optionholder shall be entitled to specific performance, injunctive
relief or any other equitable remedy against the Shareholder, in the event of
any breach or threatened breach of any provision of this Agreement by the
Shareholder. The rights and remedies of the parties hereto are cumulative and
shall not be exclusive, and each such party shall be entitled to pursue all
legal and equitable rights and remedies and to secure performance of the
obligations and duties of the other under this Agreement, and the enforcement of
one or more of such rights and remedies by a party shall in no way preclude such
party from pursuing, at the same time or subsequently, any and all other rights
and remedies available to it.
7. Further Assurances. The Shareholder and the Optionholder
each agree to execute and deliver such other reasonable documents or agreements
as may be necessary or desirable for the implementation of this Agreement and
the consummation of the transactions contemplated hereby.
8. Submission to Jurisdiction; Waiver of Jury Trial; and
Consent to Service of Process.
(a) The parties hereto hereby irrevocably submit to the
exclusive jurisdiction of any federal or state court located within the State of
New York over any dispute arising out of or relating to this Agreement or any of
the transactions contemplated hereby or by the other Transaction Documents and
each party hereby irrevocably agrees that all claims in respect of such dispute
or any suit, action or proceeding related thereto may be heard and determined in
such courts. The parties hereby irrevocably waive, to the fullest extent
permitted by applicable law, any objection which they may now or hereafter have
to the laying of venue of any such dispute brought in such court or any defense
of inconvenient forum for the maintenance of such dispute. Each of the parties
hereto agrees that a judgment in any such dispute may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
-3-
<PAGE> 17
(b) THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE THE RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT AND ANY OF THE OTHER TRANSACTION DOCUMENTS, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES' ACCEPTANCE OF
THIS AGREEMENT.
9. Entire Agreement; Amendments and Waivers. This Agreement,
together with the other Transaction Documents, represents the entire
understanding and agreement between the parties hereto with respect to the
subject matter hereof and can be amended, supplemented or changed, and any
provision hereof can be waived, only by written instrument making specific
reference to this Agreement signed by the parties hereto. No action taken
pursuant to this Agreement, including without limitation, any investigation by
or on behalf of any party, shall be deemed to constitute a waiver by the party
taking such action of compliance with any representation, warranty, covenant or
agreement contained herein. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a further or
continuing waiver of such breach or as a waiver of any other or subsequent
breach. No failure on the part of any party to exercise, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of such right, power or remedy
by such party preclude any other or further exercise thereof or the exercise of
any other right, power or remedy. All remedies hereunder are cumulative and are
not exclusive of any other remedies provided by law.
10. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York without
giving effect to the principles of conflict of laws thereunder.
11. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed given when delivered in the
manner and at the addresses set forth in Section 5.4 of the Purchase Agreement.
12. Severability. If any term, provision, covenant or condition
of this Agreement or part thereof, or the application thereof to any Person,
place or circumstance shall be held to be invalid, unenforceable or void by a
court of competent jurisdiction, the remainder of this Agreement and such term,
provision, covenant or condition shall remain in full force and effect, and any
such invalid, unenforceable or void term, provision, covenant or condition shall
be deemed, without further action on the part of the parties hereto, modified,
amended and limited, and the court shall have the power to modify, amend, and
limit such term, provision, covenant or condition, to the extent necessary to
render the same and the remainder of this Agreement valid, enforceable and
lawful.
13. Binding Effect, Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective permitted
successors and assigns. Nothing in this Agreement shall create or be deemed to
create any third party beneficiary rights or any other rights of any kind in any
Person or entity not a party to this Agreement except as provided
-4-
<PAGE> 18
below. No assignment of this Agreement or of any rights or obligations hereunder
may be made by the Shareholder (by operation of law or otherwise) without the
prior written consent of the Optionholder and any attempted assignment without
such required consent shall be void. The Optionholder may assign this Agreement
and any or all rights and obligations hereunder, in whole or in part, to any
Affiliate of the Optionholder or any purchaser of the Option, whether direct or
indirect, by purchase, merger, consolidation, operation of law or otherwise (any
such Affiliate or purchaser, a "Successor"). Upon any such permitted purchase or
succession the references in this Agreement to the Optionholder shall also apply
to any Successor unless the context otherwise requires.
-5-
<PAGE> 19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the date first written above.
/s/ ROBERT S. TRUMP
----------------------------
Robert S. Trump
/s/ RONALD NASH
----------------------------
Ronald Nash
<PAGE> 1
EXHIBIT P
Stockholders Agreement among Robert S. Trump, Jeffrey S. Silverman,
Ronald Nash and Financial Performance Corporation.
<PAGE> 2
STOCKHOLDERS AGREEMENT
DATED AS OF NOVEMBER 17, 1999
among
ROBERT S. TRUMP,
JEFFREY S. SILVERMAN,
RONALD NASH
and
FINANCIAL PERFORMANCE
CORPORATION
<PAGE> 3
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (the "AGREEMENT") is entered into as of
November 17, 1999 by and among Robert S. Trump ("TRUMP"), Jeffrey S. Silverman
("SILVERMAN"), Ronald Nash ("NASH") and Financial Performance Corporation, a New
York corporation (the "COMPANY"). Each of the parties to this Agreement (other
than the Company) and any other individual, corporation, partnership, trust,
unincorporated organization or other entity (a "PERSON") who shall become a
party to or agree to be bound by the terms of this Agreement after the date
hereof is sometimes hereinafter referred to as a "STOCKHOLDER".
RECITALS
Concurrently with the execution of this Agreement, Silverman and Trump
will consummate the transactions contemplated by that certain Stock Purchase and
Sale Agreement dated as of November 17, 1999 among the Company, Silverman and
Trump (the "SILVERMAN PURCHASE AGREEMENT").
Concurrently with the execution of this Agreement, Nash and Trump are
consummating the transactions contemplated by that certain Stock Purchase and
Sale Agreement dated as of November 16, 1999 among the Company, Nash and Trump
(the "NASH PURCHASE AGREEMENT" and, together with the Silverman Purchase
Agreement, the "PURCHASE AGREEMENTS").
Following the consummation of the transactions contemplated by the
Purchase Agreements, Silverman will own 500,000 shares of Common Stock, par
value $.01 per share, of the Company (the "COMMON STOCK"), Nash will own 500,000
shares of Common Stock, and Trump will own 4,555,422 shares of Common Stock.
The Stockholders desire, for their mutual benefit and protection, to
enter into this Agreement to set forth their respective rights and obligations
with respect to shares of Common Stock beneficially owned by each of the
Stockholders (whether acquired on the date hereof or hereafter, including all
shares of Common Stock issuable upon the exercise of the Stock Options, warrants
to purchase Common Stock or otherwise.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Silverman Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1. Corporate Issues
1.1 Election of Directors.
Simultaneous with the execution and delivery of this Agreement, the Board
of Directors of the Company (the "BOARD OF DIRECTORS") is taking such action as
is necessary to (a) set the number of members of the Board of Directors at five;
(b) appoint Nash to the Board of Directors of the Company until the next annual
meeting of stockholders or until his successor is duly
<PAGE> 4
elected and qualified; and (c) appoint Silverman to the Board of Directors of
the Company until the next annual meeting of stockholders or until his successor
is duly elected and qualified.
The Stockholders agree that so long as Silverman holds more than 500,000
shares of Common Stock, Silverman shall have the right to designate himself or
another individual as a nominee for election as a director of the Company (the
"SILVERMAN DIRECTOR"). The Stockholders agree that so long as Nash holds more
than 500,000 shares of Common Stock, Nash shall have the right to designate
himself or another individual as a nominee for election as a director of the
Company (the "NASH DIRECTOR"). Trump hereby agrees to vote all shares of Common
Stock beneficially owned by him for the Silverman Director and the Nash
Director.
1.2 Fundamental Corporate Actions.
So long as Silverman shall beneficially own at least 500,000 shares of
Common Stock, Trump agrees not to vote his shares in favor of any of the actions
referred to in clauses (i) through (v) of this Section 1.2 without the
affirmative written consent of Silverman.
So long as Nash shall beneficially own at least 500,000 shares of Common
Stock, Trump agrees not to vote his shares in favor of any of the actions
referred to in clauses (i) through (v) of this Section 1.2 without the
affirmative written consent of Nash.
(i) the making, alteration, amendment or repeal of the
Certificate of Incorporation or any part thereof, or the making, alteration,
amendment or repeal of the By-laws or any part thereof, of the Company or any of
its subsidiaries;
(ii) the sale of all or substantially all of the assets of the
Company or any of its subsidiaries in any one transaction or series of related
transactions;
(iii) the merger, consolidation or other business combination of
the Company or any of its subsidiaries with or into any other person or entity
or a statutory share exchange between the Company or any of its subsidiaries and
any other person or entity;
(iv) the liquidation, dissolution or winding up of the Company
or any of its subsidiaries; or
(v) except as otherwise contemplated in this Section 1.2, the
entering into of any contract, agreement or commitment to do, the authorization,
approval, ratification or confirmation of, or the delegation of the power to act
on behalf of the Company or the Board of Directors in respect of, any of the
foregoing.
ARTICLE 2. Restrictions on Transfer
2.1 General Restrictions on Transfer.
Trump hereby agrees that he will not, directly or indirectly, Transfer
any shares of capital stock of the Company (or any interest therein), any stock
certificates representing the same or any voting trust certificate issued with
respect to said capital stock, or any option, right or warrant to acquire shares
of Common Stock, now or hereafter at any time owned by him
-2-
<PAGE> 5
(collectively, the "Remaining Shares"), to any Person (a "Transferee"), except
pursuant to the Stock Option Agreements or as permitted under the Stockholders
Agreement; provided, however, that Trump may Transfer any of the Remaining
Shares to (x) any immediate member of his family, (y) a trust established for
the benefit of any immediate member of his family or (z) any entity established
solely for the purpose of holding title to such shares and performing Trump's
obligations under this Agreement, in each case as long as any Transferee in
clause (x), (y) or (z) assumes and agrees in writing to be bound by all of the
terms of this Agreement; provided, further, that Trump may Transfer any of the
Remaining Shares by pledge or hypothecation if the Transferee assumes and agrees
in writing to be bound by all of the terms of this Agreement. Notwithstanding
the provisos to the prior sentence or anything to the contrary contained herein,
Trump may not Transfer any of the Option Shares which are subject to a Stock
Option Agreement until such Stock Option Agreement has terminated or expired.
For purposes of this Agreement, "Transfer" shall mean with respect to any
capital stock, (i) any sale, assignment or transfer of such capital stock or any
right or interest therein, (ii) any pledge or hypothecation of such capital
stock or any interest therein, (iii) any grant, sale or other transfer of
securities convertible into or exchangeable or exercisable for or other options,
warrants or rights to acquire such capital stock or any interest therein and
(iv) any other direct or indirect transfer of such capital stock or any interest
therein, including by operation of law (it being understood that any transferee
by operation of law shall be required to comply with the provision of Section
2.1).
Notwithstanding anything to the contrary contained in this Agreement,
there shall be no restrictions hereunder on Trump's right to Transfer, and the
Remaining Shares shall not be deemed to include, (i) 51,000 shares of Common
Stock previously acquired by Trump in open market purchases or (ii) any shares
of Common Stock or any option, right or warrant to acquire shares of Common
Stock, which shall hereafter be acquired by Trump.
2.2 Right of First Offer.
(a) Prior to any Transfer of the Remaining Shares, Trump must first
give written notice of his intent to make such Transfer (a "TRANSFER NOTICE") to
Nash and Silverman setting forth the number of shares of Common Stock (the
"FIRST OFFER SHARES") that Trump desires to transfer and the cash price that
Trump proposes to be paid for such First Offer Shares and the other terms and
conditions of such proposed Transfer.
(b) Trump shall afford Silverman and Nash (each individually a "FIRST
OFFER STOCKHOLDER", and collectively the "FIRST OFFER STOCKHOLDERS") the right,
but not the obligation, to purchase all or part of the First Offer Shares on a
pro rata basis (the "FIRST OFFER OPTION") on the same terms and conditions as
set forth in the Transfer Notice. Notwithstanding anything to the contrary
contained herein, the First Offer Stockholders will not elect to purchase a
portion of the First Offer Shares in an amount less than 10,000 shares if the
number of First Offer Shares is at least 10,000 shares in respect of a
particular Transfer Notice and (ii) if the number of First Offer Shares is at
least 10,000 in respect of a particular Transfer Notice and the First Offer
Stockholders shall elect to purchase part of the First Offer Shares, then each
First Offer Stockholder shall purchase such First Offer Shares in multiples of
1,000 shares.
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<PAGE> 6
The number of shares of Common Stock that each First Offer Stockholder
will be entitled to purchase pursuant to such First Offer Option will be
determined by multiplying (i) the number of shares Trump plans to sell as stated
in the Transfer Notice by (ii) a fraction, the numerator of which shall equal
the number of shares beneficially owned by such First Offer Stockholder as of
the close of business on the day immediately prior to the date the Transfer
Notice is delivered (the "TRANSFER NOTICE DATE") and the denominator of which
shall equal the aggregate number of shares of Common Stock that are beneficially
owned by the First Offer Stockholders as of the close of business on the day
immediately prior to the Transfer Notice Date.
Each First Offer Stockholder shall exercise the First Offer Option by
delivering to Trump irrevocable written notice via facsimile transmission if
reasonably practicable of the First Offer Stockholder's commitment to purchase
all or part of his pro rata share of the First Offer Shares within two business
days after receipt of the Transfer Notice (the "FIRST OFFER OPTION PERIOD").
Failure by either First Offer Stockholder to give such notice within such
two-business-day period shall be deemed an election by such First Offer
Stockholder not to purchase any of the First Offer Shares.
(c) If neither First Offer Stockholder elects to purchase any First
Offer Shares, Trump may Transfer the First Offer Shares in accordance with
Section 2.2(e) below. If one First Offer Stockholder fails to purchase any or
all of his pro rata share of the First Offer Shares and the other First Offer
Stockholder elects to purchase all of his pro rata share of the First Offer
Shares, Trump shall give notice of such failure to such other First Offer
Stockholder. Such notice shall state the number of First Offer Shares remaining
that may be acquired by such First Offer Stockholder, which notice shall be made
by telephone and confirmed in writing within two days. Such First Offer
Stockholder shall have two business days from the date such notice was confirmed
in writing (which confirmation may be by facsimile transmission) to purchase the
remaining First Offer Shares.
(d) Delivery of written notice by a First Offer Stockholder accepting
the First Offer Option pursuant to clauses (b) and (c) above shall constitute a
contract between such First Offer Stockholder, on the one hand, and Trump, on
the other hand, for the purchase and sale of the number of First Offer Shares
specified by such First Offer Stockholder on the terms and conditions set forth
in the Transfer Notice. The purchase of any shares pursuant to the exercise of
the First Offer Option shall be completed not later than 8 business days
following delivery of the Transfer Notice with respect to the First Offer
Shares, subject to receipt of any required material third-party or governmental
approvals, compliance with applicable laws and the absence of any injunction or
similar legal order preventing such transaction.
(e) In the event that the First Offer Stockholders do not elect to
acquire all of the First Option Shares, Trump shall have the right for a period
of 45 days after the termination of the First Offer Option Period to Transfer
the First Offer Shares not so acquired at a price and on terms and conditions no
less favorable to Trump than those set forth in the Transfer Notice or in any
written counter-proposal delivered by a First Offer Stockholder to Trump in
respect of a particular Transfer Notice.
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<PAGE> 7
(f) Subject to the other provisions of this Agreement, this Section
2.2 shall not apply to any Transfer of the Remaining Shares pursuant to the
terms of a merger or statutory share exchange between the Company and a third
party or a liquidation of the Company.
2.3 Payment and Delivery of Shares. At any closing hereunder, (a) the
First Offer Stockholder shall pay the aggregate purchase price for the First
Offer Shares to be purchased, which shall be payable by bank check or by wire
transfer to an account designated by Trump and (b) Trump shall deliver to the
First Offer Stockholder (i) a certificate or certificates representing the First
Offer Shares so purchased registered in the name of the First Offer Stockholder
or his designee or (ii) a certificate or certificates representing the First
Offer Shares so purchased duly endorsed in blank for transfer or accompanied by
appropriate stock powers duly executed in blank. If any of the First Offer
Shares shall be held by Trump in a brokerage account, Trump may deliver to the
brokerage firm in which such First Offer Shares are held written notice to
transfer record and beneficial ownership of the First Offer Shares purchased by
the First Offer Stockholder to the brokerage account of the First Offer
Stockholder. The First Offer Stockholder shall designate his brokerage account
together with the written notice accepting the First Offer Option. The First
Offer Stockholder shall reasonably cooperate with Trump and shall take
reasonable actions requested by Trump to effectuate such transfer of ownership.
However, it shall be solely Trump's obligation to effectuate such transfer of
ownership.
ARTICLE 3. Representations and Warranties
3.1 Representations and Warranties of the Stockholders.
Each of the Stockholders represents and warrants to each other and to the
Company as follows:
3.1.1 Binding Obligation. This Agreement constitutes his binding
obligation, enforceable against him in accordance with its terms, except insofar
as enforceability may be limited by bankruptcy, insolvency, moratorium or other
laws which may affect creditors' rights and remedies generally and by principles
of equity (regardless of whether enforceability is considered in a proceeding in
equity or at law); and
3.1.2 No Conflict. The execution, delivery and performance of
this Agreement by him and the consummation by him of the transactions
contemplated hereby will not, with or without the giving of notice or the lapse
of time, or both, (i) violate any provision of law, statute, rule or regulation
to which he is subject, (ii) violate any order, judgment or decree applicable to
him, or (iii) conflict with, or result in a breach or default under, any term or
condition of its certificate of incorporation, bylaws or equivalent governing
document or any material agreement or other material instrument to which he is a
party or by which he or his property is bound.
3.2 Representations and Warranties of the Company. The Company hereby
represents and warrants to each of the Stockholders as follows:
(a) This Agreement has been duly and validly authorized, executed and
delivered by the Company. This Agreement constitutes the legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, subject, as to
-5-
<PAGE> 8
enforceability, to applicable bankruptcy, insolvency, reorganization, moratorium
and similar laws affecting creditors' rights and remedies generally and to
general principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).
(b) The execution and delivery by the Company of this Agreement, the
consummation of the transactions contemplated hereby, and the compliance by the
Company with any of the provisions hereof does and will not (i) conflict with,
violate, result in the breach or termination of, or constitute a default or give
rise to any right of termination or acceleration or right to increase the
obligations or otherwise modify the terms thereof under any contract, permit or
order to which the Company is a party or by which the Company or its properties
or assets are bound; (ii) constitute a violation of any law applicable to the
Company; or (iii) result in the creation of any lien upon the properties or
assets of the Company. No consent, waiver, approval, order, permit or
authorization of, or declaration or filing with, or notification to, any person
or governmental body is required on the part of the Company in connection with
the execution and delivery of this Agreement, or the compliance by the Company,
with any of the provisions hereof, except as set forth in Schedule 4.1 to the
Purchase Agreement.
3.3 Disclaimer. None of the parties to this Agreement makes any
representations or warranties to any of the other parties other than those
expressly set forth herein.
ARTICLE 4. General
4.1 Recapitalization, Exchanges, etc. Affecting the Common Stock. The
provisions of this Agreement shall apply to the full extent set forth herein
with respect to (a) shares of Common Stock and any option, right or warrant to
acquire shares of Common Stock, and (b) any and all shares of capital stock of
the Company or any successor or assign of the Company (whether by merger,
consolidation, sale of assets or otherwise) which may be issued in respect of,
in exchange for, or in substitution for the shares of Common Stock, by
combination, recapitalization, reclassification, merger, consolidation or
otherwise. In the event of any change in the capitalization of the Company, as a
result of any stock split, stock dividend or stock combination, the provisions
of this Agreement shall be appropriately adjusted.
4.2 Injunctive Relief. It is hereby agreed and acknowledged that it
will be impossible to measure in money the damages that would be suffered if the
parties fail to comply with any of the obligations herein imposed on them and
that, in the event of any such failure, an aggrieved party will be irreparably
damaged and will not have an adequate remedy of law. Any such party shall,
therefore, be entitled to injunctive relief, including specific performance, to
enforce such obligations, without the posting of any bond and if any action
should be brought in equity to enforce any of the provisions of this Agreement,
none of the parties hereto shall raise the defense that there is an adequate
remedy at law.
4.3 Notices. All notices and other communications under this Agreement
shall be in writing and shall be deemed given when delivered personally, upon
delivery to a nationally recognized overnight courier service or when mailed by
certified mail, return receipt requested, to a Stockholder or the Company at the
address set forth in the Purchase Agreements (or to such other address as a
party may have specified by notice given to the other parties pursuant to this
provision). All notices are effective upon receipt or upon refusal if properly
delivered.
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<PAGE> 9
4.4 Legend. In addition to any other legend which may be required by
applicable law, each share certificate representing shares of Common Stock
beneficially owned by Trump, which are subject to this Agreement shall have
endorsed, to the extent appropriate, upon its face the following words:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER AS SET FORTH IN THE STOCKHOLDERS
AGREEMENT, DATED AS OF NOVEMBER 17, 1999 (THE "STOCKHOLDERS
AGREEMENT"), A COPY OF WHICH MAY BE OBTAINED FROM THE SECRETARY OF
FINANCIAL PERFORMANCE CORPORATION AT ITS PRINCIPAL EXECUTIVE
OFFICES. SUCH SECURITIES MAY NOT BE TRANSFERRED IN ANY WAY EXCEPT
IN ACCORDANCE WITH THE PROVISIONS OF THE STOCKHOLDERS AGREEMENT.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO
OTHER RIGHTS AND OBLIGATIONS AS SET FORTH IN THE STOCKHOLDERS
AGREEMENT.
This legend shall be removed when the shares of Common Stock represented
by such certificate shall no longer be subject to the terms and conditions of
this Agreement.
4.5 Entire Agreement; Amendments and Waivers. This Agreement, together
with the other Transaction Documents, represents the entire understanding and
agreement among the parties hereto with respect to the subject matter hereof and
can be amended, supplemented or changed, and any provision hereof can be waived,
only by written instrument making specific reference to this Agreement signed by
the parties hereto. No action taken pursuant to this Agreement, including
without limitation, any investigation by or on behalf of any party, shall be
deemed to constitute a waiver by the party taking such action of compliance with
any representation, warranty, covenant or agreement contained herein. The waiver
by any party hereto of a breach of any provision of this Agreement shall not
operate or be construed as a further or continuing waiver of such breach or as a
waiver of any other or subsequent breach. No failure on the part of any party to
exercise, and no delay in exercising, any right, power or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of such
right, power or remedy by such party preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. All remedies
hereunder are cumulative and are not exclusive of any other remedies provided by
law.
4.6 Additional Documents. The Stockholders agree to execute any and
all further reasonable documents and writings within their respective powers and
to perform such other reasonable actions which may be or become necessary or
expedient to effectuate and carry out this Agreement.
4.7 Binding Effect, Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective permitted
successors and assigns. Nothing in this Agreement shall create or be deemed to
create any third party beneficiary rights or any other rights of any kind in any
person or entity not a party to this Agreement except as provided below.
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<PAGE> 10
No assignment of this Agreement or of any rights or obligations hereunder may be
made by Trump (by operation of law or otherwise) without the prior written
consent of Silverman and Nash, except as provided herein, and any attempted
assignment without such required consent shall be void. Silverman and Nash may
assign this Agreement and any or all rights and obligations hereunder, in whole
or in part, to any of their respective Affiliates, (any such Affiliate, a
"Successor"). Notwithstanding the foregoing, Silverman and Nash may assign their
respective rights under Section 2.2 of this Agreement in whole but not in part
to any of their respective Affiliates. Silverman or Nash will require any such
Successor to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that Silverman or Nash, as the case may be, would
be required to perform it if no such purchase, or succession had taken place.
Upon any such permitted purchase or succession the references in this Agreement
to the Purchaser shall also apply to any Successor unless the context otherwise
requires.
4.8 Severability. If any term, provision, covenant or condition of
this Agreement or part thereof, or the application thereof to any Person, place
or circumstance shall be held to be invalid, unenforceable or void by a court of
competent jurisdiction, the remainder of this Agreement and such term,
provision, covenant or condition shall remain in full force and effect, and any
such invalid, unenforceable or void term, provision, covenant or condition shall
be deemed, without further action on the part of the parties hereto, modified,
amended and limited, and the court shall have the power to modify, amend, and
limit such term, provision, covenant or condition, to the extent necessary to
render the same and the remainder of this Agreement valid, enforceable and
lawful.
4.9 Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York without giving
effect to the principles of conflict of laws thereunder.
4.10 Attorneys' Fees. Should any litigation or arbitration be commenced
(including any proceedings in a bankruptcy court) between the parties hereto or
their representatives concerning any provision of this Agreement or the rights
and duties of any person or entity hereunder, the party or parties prevailing in
such proceeding shall be entitled, in addition to such other relief as may be
granted, to the reasonable attorneys' fees and court costs incurred by reason of
such litigation or arbitration.
4.11 Headings. The headings in this Agreement are inserted only as a
matter of convenience, and in no way define, limit, or extend or interpret the
scope of this Agreement or of any particular Section.
4.12 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4.13 Submission to Jurisdiction; Waiver of Jury Trial; and Consent to
Service of Process.
(a) The parties hereto hereby irrevocably submit to the
exclusive jurisdiction of any federal or state court located within the State of
New York over any dispute arising out of
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<PAGE> 11
or relating to this Agreement or any of the transactions contemplated hereby or
by the other Transaction Documents and each party hereby irrevocably agrees that
all claims in respect of such dispute or any suit, action or proceeding related
thereto may be heard and determined in such courts. The parties hereby
irrevocably waive, to the fullest extent permitted by applicable law, any
objection which they may now or hereafter have to the laying of venue of any
such dispute brought in such court or any defense of inconvenient forum for the
maintenance of such dispute. Each of the parties hereto agrees that a judgment
in any such dispute may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
(b) THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE THE RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT AND ANY OF THE OTHER TRANSACTION DOCUMENTS, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES' ACCEPTANCE OF
THIS AGREEMENT.
4.14 Binding Effect. This Agreement and all of its provisions, rights
and obligations shall be binding upon and shall inure to the benefit of the
parties hereto and their respective permitted successors, heirs and legal
representatives and to permitted Transferees of shares owned by the
Stockholders. Any Transfer of shares, in addition to any other requirements
herein, shall be subject to receipt by the Stockholders and the Company of an
executed agreement by such Transferee agreeing to become bound by the terms of
this Agreement.
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<PAGE> 12
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first set forth above.
FINANCIAL PERFORMANCE CORPORATION
By: /s/ WILLIAM F. FINLEY
--------------------------------
Name: WILLIAM F. FINLEY
Title: CEO
/s/ ROBERT S. TRUMP
-------------------------------------
ROBERT S. TRUMP
/s/ JEFFREY S. SILVERMAN
-------------------------------------
JEFFREY S. SILVERMAN
/s/ RONALD NASH
-------------------------------------
RONALD NASH
<PAGE> 1
EXHIBIT Q
Registration Rights Agreement among Robert S. Trump, Jeffrey S. Silverman,
Ronald Nash, William F. Finley and Financial Performance Corporation.
<PAGE> 2
REGISTRATION RIGHTS AGREEMENT
DATED AS OF
NOVEMBER 17, 1999
AMONG
FINANCIAL PERFORMANCE CORPORATION
AND
WILLIAM F. FINLEY,
ROBERT S. TRUMP,
JEFFREY SILVERMAN
AND
RONALD NASH
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE I DEFINITIONS AND USAGE...............................................1
Section 1.1 Definitions......................................................1
Section 1.2 Usage............................................................4
ARTICLE II DEMAND AND SHELF REGISTRATION STATEMENTS............................5
Section 2.1 Demand Registration Statements...................................5
Section 2.2 Shelf Registration Statements....................................6
Section 2.3 Limitation on Demand Registration................................6
Section 2.4 Manner of Sale...................................................7
Section 2.5 Withdrawal.......................................................7
ARTICLE III PIGGYBACK REGISTRATION STATEMENTS...................................7
Section 3.1 Piggyback Registration Statements................................7
Section 3.2 Priority in Registrations........................................8
ARTICLE IV REGISTRATION PROCEDURES AND EXPENSES................................9
Section 4.1 Registration Procedures..........................................9
Section 4.2 Holders' Obligations............................................12
Section 4.3 Registration Expenses...........................................14
ARTICLE V INDEMNIFICATION AND CONTRIBUTION...................................14
Section 5.1 Indemnification by the Company..................................14
Section 5.2 Indemnification by the Selling Holders..........................15
Section 5.3 Notice of Claims, etc...........................................15
Section 5.4 Contribution....................................................16
Section 5.5 Survival........................................................17
ARTICLE VI RULE 144 AND RULE 144A.............................................17
Section 6.1 Reports, etc....................................................17
Section 6.2 Rule 144 Information............................................17
Section 6.3 Rule 144A Information...........................................17
ARTICLE VII MISCELLANEOUS......................................................17
Section 7.1 Amendment, Modification and Waivers; Further Assurances.........17
Section 7.2 Assignment......................................................18
Section 7.3 Invalid Provisions..............................................18
</TABLE>
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<PAGE> 4
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
<S> <C>
Section 7.4 Nominees for Beneficial Owners..................................18
Section 7.5 Governing Law...................................................19
Section 7.6 Notices.........................................................19
Section 7.7 Entire Agreement; Integration...................................21
Section 7.8 Injunctive Relief...............................................21
Section 7.9 Section Headings................................................21
Section 7.10 Counterparts....................................................21
Section 7.11 Filing..........................................................21
Section 7.12 Termination.....................................................22
Section 7.13 Attorneys' Fees.................................................22
Section 7.14 No Third Party Beneficiaries....................................22
Section 7.15 Requisite Holders...............................................22
</TABLE>
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<PAGE> 5
REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement dated as of November 17, 1999 by and among
Financial Performance Corporation, a New York corporation (the "Company"),
William F. Finley ("Finley"), Robert S. Trump ("Trump"), Jeffrey Silverman
("Silverman") and Ronald Nash ("Nash").
RECITALS
WHEREAS, Finley is President, Chief Executive Officer, Principal
Financial Officer and a shareholder of the Company;
WHEREAS, the Company and Finley desire to set forth in this agreement the
registration rights which the Company will grant to Finley,
WHEREAS, Trump is a principal shareholder of the Company;
WHEREAS, Trump has entered into several registration rights agreements
with the Company and desires to set forth in one agreement, to supercede any and
all such prior registration rights agreements, all of the registration rights
granted to him by the Company; and
WHEREAS, as of the date hereof, Silverman and Nash have each become
directors of the Company and principal shareholders of the Company through their
purchase from Trump of an aggregate of 1,000,000 shares of common stock and
options to purchase an additional 2,500,000 shares of common stock of the
Company and the grant to them by the Company of options to purchase an aggregate
of 2,000,000 shares of common stock of the Company,
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS AND USAGE
Section 1.1 Definitions. As used in this Agreement:
Affiliate. "Affiliate" shall mean (a) when used with reference to any
partnership, any Person that, directly or indirectly through one or more
intermediaries, owns or controls 10% or more of either the capital or profit
interests of such partnership or is a general partner of such partnership or is
a Person in which such partnership has a 10% or greater direct or indirect
equity interest, and (b) when used with reference to any corporation, any Person
that, directly or indirectly, owns or controls 10% or more of the outstanding
voting securities of such corporation or is a Person in which such corporation
has a 10% or greater direct or indirect equity interest. In addition, the term
"Affiliate," when used with reference to any Person, also means any other Person
that, directly or indirectly through one or more intermediaries, controls or is
controlled by
<PAGE> 6
or is under common control with such Person. As used in the preceding sentence,
(i) the term "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of the
entity referred to, whether through ownership of voting securities, by contract,
or otherwise, and (ii) the terms "controlling" and "controls" shall have
meanings correlative to the foregoing.
Agreement. "Agreement" shall mean this Registration Rights Agreement, as
the same may be amended from time to time.
Commission. "Commission" shall mean the United States Securities and
Exchange Commission, or any successor governmental agency or authority thereto.
Common Stock. "Common Stock" shall mean (a) the common stock, par value
$0.01 per share, of the Company, and (b) shares of capital stock of the Company
issued by the Company in respect of or in exchange for shares of such common
stock in connection with any stock dividend or distribution, stock split-up,
recapitalization, recombination or exchange by the Company generally of shares
of such common stock.
Demand Registration Request. "Demand Registration Request" shall have the
meaning set forth in Section 2.1(a).
Demand Registration Statement. "Demand Registration Statement" shall have
the meaning set forth in Section 2.1(a).
Demanding Holders. "Demanding Holders" shall have the meaning set forth
in Section 2.1(a).
Exchange Act. "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
Holder or Holders. "Holders" shall mean each of Finley, Trump, Silverman
and Nash and any Person or Persons to whom the rights granted under this
Agreement are transferred by Finley, Trump, Silverman or Nash and the Permitted
Transferees (thereof of any such Transferee as defined in Section 7.2 hereof)
pursuant to Section 7.2 hereof.
Person. "Person" shall mean any individual, corporation, partnership,
joint venture, association, joint-stock company, limited liability company,
trust, unincorporated organization or government or other agency or political
subdivision thereof.
Piggyback Registration Statement. "Piggyback Registration Statement"
shall have the meaning set forth in Section 3.1.
Register, Registered and Registration. "Register", "registered", and
"registration" shall refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the Securities
Act, and the declaration or ordering by the Commission of effectiveness of such
registration statement or document.
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<PAGE> 7
Registrable Securities. "Registrable Securities" shall mean (a) the
shares of Common Stock beneficially owned (as determined under Rule 13d-3 under
the Exchange Act) by the Holders on the date hereof; (b) any shares of Common
Stock or other securities issued to the Holders as (or issuable upon the
conversion or exercise of any warrant, right or other security which is issued
as) a dividend or other distribution with respect to, or in exchange by the
Company generally for, or in replacement by the Company generally of, such
shares of Common Stock; and (c) any securities issued in exchange for shares of
Common Stock beneficially owned by a Holder on the date hereof in any merger,
recapitalization or reorganization of the Company. As to any particular
Registrable Securities, once issued, such securities will cease to be
Registrable Securities (a) when a registration statement with respect to the
resale of such securities has become effective under the Securities Act and such
securities shall have been disposed of in accordance with the plan of
distribution set forth in such registration statement; (b) when such securities
have been transferred pursuant to Rule 144 to a third party who is not an
Affiliate of the Company, and new certificates evidencing such securities
without legends restricting further transfer have been delivered by the Company,
and the Holders have received an opinion of Company counsel that, in the opinion
of such counsel, subsequent public distribution of such securities requires
neither registration under the Securities Act or qualification (or any similar
filing) under any state securities or blue sky law then in effect nor the use of
an applicable exemption from such registration qualification; or (c) in the
event such Holder is not an Affiliate of the Company, when all of a Holder's
otherwise Registrable Securities may be immediately sold without registration
under the Securities Act pursuant to Rule 144 without any restrictions under
Rule 144(k).
Registration Expenses. "Registration Expenses" shall mean all expenses
incident to the Company's performance of, or compliance with, this Agreement,
including, without limitation, (a) all registration, filing, securities exchange
listing, rating agency and National Association of Securities Dealers, Inc.
fees, (b) all registration, filing, qualification and other fees and expenses of
complying with securities or blue sky laws of all jurisdictions in which the
securities are to be registered and the reasonable legal fees and expenses
incurred in connection with the blue sky qualifications of the Registrable
Securities and the determination of their eligibility for investment under the
laws of all such jurisdictions, (c) all word processing, duplicating, printing,
messenger and delivery expenses incurred by the Company, (d) the fees and
disbursements of counsel for the Company and of its independent public
accountants, including, without limitation, the expenses of any special audits
or "cold comfort" letters required by or incident to such performance and
compliance, (e) the reasonable fees and disbursements incurred for one counsel
or firm of counsel selected by the Requisite Holders of the Registrable
Securities, (f) premiums and other costs of policies of insurance against
liabilities arising out of the public offering of the Registrable Securities
being registered to the extent the Company elects to obtain such insurance, (g)
any fees and disbursements of underwriters customarily paid by issuers or
sellers of securities (but excluding underwriting discounts, concessions,
allowances and commissions and transfer taxes, if any, relating to the
Registrable Securities being registered), and (h) fees and expenses of other
Persons retained or employed by the Company.
Requisite Holders. "Requisite Holders" shall mean any Selling Holder or
Selling Holders of a majority in interest of the Registrable Securities
requested to be included in a registration or other relevant action, as the case
may be.
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Rule 144. "Rule 144" shall mean Rule 144 promulgated by the Commission
under the Securities Act, and any successor provision thereto.
Rule 144A. "Rule 144A" shall mean Rule 144A promulgated by the Commission
under the Securities Act, and any successor provision thereto.
Securities Act. "Securities Act" shall mean the Securities Act of 1933,
as amended, and the rules and regulations promulgated thereunder.
Selling Holders. "Selling Holders" shall mean, with respect to a
specified registration pursuant to this Agreement, Holders whose Registrable
Securities are included in such registration.
Shelf Registration Statement. "Shelf Registration Statement" shall have
the meaning set forth in Section 2.2(a).
Transfer. "Transfer" shall mean and include the act of selling, giving,
transferring, creating a trust (voting or otherwise), assigning or otherwise
disposing of (other than pledging, hypothecating or otherwise transferring as
collateral security for an underlying obligation) (and correlative words shall
have correlative meanings); provided, however, that any transfer or other
disposition upon foreclosure or other exercise of remedies of a secured creditor
after an event of default under or with respect to a pledge, hypothecation or
other transfer as collateral security shall constitute a "Transfer."
Underwriters' Representative. "Underwriters' Representative" shall mean
the managing underwriter, or, in the case of a co-managed underwriting, the lead
manager, within the meaning of Rule 12b-2 under the Exchange Act.
Violation. "Violation" shall have the meaning set forth in Section 5.1.
Section 1.2 Usage. (a) References to a Person are also references to
its assigns and successors in interest (by any means whatever, including merger,
consolidation or sale of all or substantially all of the assets of such Person
or otherwise, as the case may be).
(b) References to Registrable Securities "owned" by a Holder
shall include Registrable Securities beneficially owned by such Person but which
are held of record in the name of a nominee, trustee, custodian, or other agent,
but shall exclude shares of Common Stock held by a Holder in a fiduciary
capacity for customers of such Person.
(c) References to a document are to it as amended, waived and
otherwise modified from time to time and references to a statute or other
governmental rule are to it as amended and otherwise modified from time to time
(and references to any provision thereof shall include references to any
successor provision).
(d) References to Sections, Articles or Schedules are to
sections or articles hereof or schedules hereto, unless the context otherwise
requires.
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(e) The definitions set forth herein are equally applicable
both to the singular and plural forms and the feminine, masculine and neuter
forms of the terms defined.
(f) The term "including" and correlative terms shall be deemed
to be followed by "without limitation" whether or not followed by such words or
words of like import.
(g) The "date of" any notice or request given pursuant to this
Agreement shall be determined in accordance with Section 7.6.
ARTICLE II
DEMAND AND SHELF REGISTRATION STATEMENTS
Section 2.1 Demand Registration Statements. (a) At any time during the
period commencing on the date hereof and ending on the fifth anniversary hereof,
a Holder (the "Demanding Holder") may at his option make a written request (a
"Demand Registration Request") to the Company requesting that the Company file
with the Commission a registration statement on an appropriate form under the
Securities Act (a "Demand Registration Statement") to register all or such
number of such Demanding Holder's Registrable Securities as the Demanding Holder
shall request in writing; provided, however, that no request may be made
pursuant to this Section 2.1 unless the Demanding Holder requests that at least
250,000 shares of Registrable Securities be included in the Demand Registration
Statement. Upon receipt of a Demand Registration Request, the Company shall
promptly give written notice of such proposed registration to all other Holders
known to the Company. Such Holders shall have the right, by giving written
notice to the Company within fifteen (15) days after the Company provides its
notice, to elect to have included in such registration such number of their
Registrable Securities as such Holders may request in such notice. Each Holder
may, at any time up to five (5) business days before the filing date of the
applicable Registration Statement relating to the Demand Registration, request
that his Registrable Securities not be included therein by providing a written
notice to that effect to the Company. The Company shall not be obligated to file
the Demand Registration Statement if, after giving effect to any such
withdrawal(s) from one or more Holders, the Demand Registration Statement does
not include at least 250,000 shares of Common Stock constituting Registrable
Securities.
After an effective Demand Registration Request is made, the Company
shall, as soon as reasonably practicable but in any event within 60 days of the
date of such Demand Registration Request (unless the Company's financial
statements would otherwise be "stale" under Rule 3-12 of Regulation S-X), file
with the Commission the Demand Registration Statement. Any Demand Registration
Statement shall provide for an underwritten offering (whether on a "firm," "best
efforts" or "all reasonable efforts" basis or otherwise) or an offering on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act. Any
Demand Registration Request made pursuant to this Section 2.1 shall be addressed
to the attention of the President of the Company and shall specify the number of
Registrable Securities to be registered, the intended methods of disposition
thereof and that the request is for a Demand Registration Statement pursuant to
this Section 2.1. The Company shall use its reasonable best efforts to keep any
Demand Registration
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Statement continuously effective for a period of one year following the
effective date thereof, or such shorter period ending on the earlier of (i) when
all Registrable Securities covered by such Registration Statement have been sold
or (ii) if none of the Holders of Registrable Securities included in such
Registration Statement are Affiliates of the Company, the first date when all
Registrable Securities covered by the Registration Statement may be immediately
sold without registration under the Securities Act pursuant to the exemptions
provided by Rule 144 under the Securities Act and without restriction under Rule
144(k), subject to the provisions of Article IV hereof.
(b) The Company shall be entitled to postpone for up to 90 days
the filing of any Demand Registration Statement otherwise required to be
prepared and filed pursuant to this Section 2.1 if (i) the Board of Directors of
the Company determines, in its good faith reasonable judgment, that such
registration and the Transfer of Registrable Securities contemplated thereby
would materially interfere with, or require the premature disclosure of, any
financing, securities purchase, acquisition or reorganization or other material
transaction involving the Company or any of its subsidiaries or would otherwise
require the premature disclosure of any other material nonpublic information as
to which the Company has a bona fide business purpose for maintaining its
confidentiality, and (ii) the Company promptly gives the Demanding Holders
notice of such determination (which notice need not disclose the fact, event or
information); provided, however, that the Company shall not have, within the 12
months prior to the date of the postponement, postponed pursuant to this Section
2.1(b) the filing of any other Demand Registration Statement covering such
Holder's Registrable Securities that was subsequently abandoned because the
Demand Registration Request relating thereto was withdrawn.
Section 2.2 Shelf Registration Statements. As soon as practicable but
no later than 120 days after the date hereof, the Company shall file with the
Commission a registration statement on Form SB-2, S-1 or Form S-3 (if use of
such form is then available) or such other appropriate form in accordance with
the Securities Act for an offering or offerings by the Holders of the
Registrable Securities on a delayed or continuous basis pursuant to Rule 415
under the Securities Act (each, a "Shelf Registration Statement"). The Company
shall use its reasonable best efforts to have such Shelf Registration Statement
declared effective within 180 days following the filing of the registration
statement. Subject to compliance with the provisions of Section 4.2, each Holder
shall be entitled to have all or a portion of such Holder's Registrable
Securities included in the applicable Shelf Registration Statement. The Company
shall use its reasonable best efforts to keep such Shelf Registration Statement
continuously effective for a period of 270 days following the effective date
thereof, or such shorter period ending on the earlier of (i) when all
Registrable Securities covered by such Registration Statement have been sold or
(ii) if none of the Holders of Registrable Securities included in such
Registration Statement are Affiliates of the Company, the first date when all
Registrable Securities covered by the Registration Statement may be immediately
sold without registration under the Securities Act pursuant to the exemptions
provided by Rule 144 under the Securities Act and without restriction under Rule
144(k), subject to the provisions of Article IV hereof.
Section 2.3 Limitation on Demand Registration. The Company shall be
obligated to effect no more than three (3) Demand Registration Statements for
each Holder of the Registrable
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Securities. For purposes of the preceding sentence, a Demand Registration
Statement shall not be deemed to have been effected as to a Holder's Registrable
Securities (a) unless a registration statement with respect thereto has become
effective, (b) if after such registration statement has become effective, such
registration or the related offer, sale or distribution of such Holder's
Registrable Securities thereunder is interfered with by any stop order,
injunction or other order or requirement of the Commission or other governmental
agency or court for any reason not attributable to such Selling Holder and such
interference is not thereafter eliminated, or (c) if the conditions to closing
specified in any underwriting agreement containing usual and customary terms
entered into in connection with such registration are not satisfied or waived,
other than by reason of a failure on the part of such Selling Holder. The
Company's obligation to effect a given Demand Registration pursuant to Section
2.1 shall be deemed to have been satisfied upon the earlier of (i) the date as
of which all of the Registrable Securities included therein shall have been
sold, and (ii) the date as of which such Demand Registration Statement shall
have been continuously effective for a period of one year or such shorter period
as provided in Article IV.
Section 2.4 Manner of Sale. The Demanding Holder shall, in connection
with a Demand Registration Statement, be entitled, in his sole and absolute
discretion, to select the manner in which his Registrable Securities are sold,
including, but not limited to, the selection of underwriters or brokers through
whom such securities will be sold and the purchasers for such securities,
subject solely in the case of underwriters, to the Company's prior approval of
such underwriters or brokers, which approval shall not be unreasonably withheld
or delayed. In connection therewith, the Company shall take such actions as are
reasonably requested by such underwriters or brokers in order to facilitate the
registration and disposition of the Registrable Securities in accordance with
this Agreement, including, but not limited to, cooperating in the performance of
any reasonable due diligence investigation by a Holder or a Holder's
representative or any underwriter, including making available for inspection and
discussion, respectively, necessary corporate documents and records and company
personnel, subject to the receipt, where reasonably requested, of an executed
confidentiality agreement in a form reasonably satisfactory to the Company.
Section 2.5 Withdrawal. Any Holder participating in a registration
pursuant to this Agreement shall be permitted to withdraw all or part of its
Registrable Securities from such registration at any time (but not later than
two business days) prior to the effective date of the registration statement
covering such securities; provided that, in the event of a withdrawal from a
registration effected pursuant to Section 2.1 hereof, such registration shall be
deemed to have been effected for purposes of the first sentence of Section 2.3
hereof (subject to any otherwise applicable provisions in Section 2.3 hereof).
ARTICLE III
PIGGYBACK REGISTRATION STATEMENTS
Section 3.1 Piggyback Registration Statements. (a) If at any time the
Company proposes to register equity securities or securities convertible or
exchangeable into equity securities under the Securities Act in connection with
a public offering solely for cash (other than
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by a registration on Form S-4 or S-8 or any successor or similar forms or filed
in connection with an exchange offer or any offering of securities solely to the
Company's existing stockholders or otherwise pursuant to a dividend reinvestment
plan or a dividend reinvestment and stock purchase plan, and other than pursuant
to Article II), the Company shall promptly give each Holder of Registrable
Securities written notice of such proposed registration (a "Piggyback
Registration Statement"). Upon the written request of a Holder receiving such
notice given within 20 days following the date of such notice (which request
shall state the number of Registrable Securities to be registered and the
intended method of distribution of such Registrable Securities), the Company
shall cause to be included in such registration statement and use its reasonable
best efforts to have registered under the Securities Act all the Registrable
Securities that each such Holder shall have requested to be registered;
provided, however, that the Company shall have the right to postpone or withdraw
any registration (in its entirety) effected pursuant to this Section 3.1 without
obligation or liability to any Holder, subject to Section 3.1(b) hereof.
(b) If at any time after giving written notice of its intention
to register any of its securities pursuant to Section 3.1(a), and prior to the
effective date of the Piggyback Registration Statement filed in connection with
such Registration, the Company shall determine for any reason not to register or
to delay the Registration of such securities, the Company shall give written
notice of such determination to each Holder of Registrable Securities
contemplated to be included in such registration. If the Company shall elect not
to register such securities, the Company shall be relieved of its obligation to
register any Registrable Securities in connection therewith (but not from its
obligation, if any, to pay the Registration Expenses in connection therewith),
provided however, that in no event may the Company include in a Piggyback
Registration Statement the Registrable Securities of one requesting Holder and
exclude therefrom the Registrable Securities of the other requesting Holder,
unless the excluded Holder is not in compliance with the terms hereof. In the
event of an election by the Company not to register such securities, such
non-registration shall not count as an exercised piggyback registration right
pursuant to this Section 3.1 hereof.
(c) Until the fifth anniversary of the date hereof, each Holder
shall be entitled to have its Registrable Securities included in an unlimited
number of Piggyback Registration Statements pursuant to this Section 3.1.
Section 3.2 Priority in Registrations. (a) If the Company's offering
pursuant to which a Piggyback Registration Statement is proposed to be filed is
underwritten, the Holders shall sell the Registrable Securities to be sold
pursuant to such offering to or through the underwriter or underwriters of the
securities being registered for the account of the Company upon terms generally
comparable to the terms applicable to the Company and substantially identical to
those for the account of the other Holders, and if the lead underwriter
reasonably determines in writing to be provided to the Holders that the number
of securities included in the registration statement exceeds the number (the
"Saleable Number") that can be sold in an orderly fashion within a price range
reasonably acceptable to the Company, then the number of securities that the
Company and the Holders will be permitted to include in such Registration
Statement will be allocated as follows: (i) first, all the securities to be sold
by the Company for its own account pursuant to
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Section 3.1(a), and (ii) second, the difference between the Saleable Number and
the number, if any, to be included pursuant to clause (i) hereof, such amount to
be allocated among the Holders pro rata on the basis of the relative number of
Registrable Securities held by each of them.
(b) If as a result of the proration provisions of this Section
3.2, any Holder of Registrable Securities is not entitled to include all such
Registrable Securities in such registration (a "Cutback"), such Holder may, on
written notice to the Company given at least two business days prior to the
effective date of the applicable registration statement, elect to withdraw his,
her or its request to include any Registrable Securities in such registration (a
"Withdrawal Election"); provided, however, that a Withdrawal Election shall be
irrevocable and any Holder of Registrable Securities who has made a Withdrawal
Election shall no longer have any right to include any Registrable Securities in
the registration as to which such Withdrawal Election was made. The number of
securities required to satisfy any underwriters' overallotment option shall be
allocated pro rata among the Company and all Holders on the basis of the
relative number of securities otherwise to be included by each of them in the
registration.
ARTICLE IV
REGISTRATION PROCEDURES AND EXPENSES
Section 4.1 Registration Procedures. Whenever required under Article II
or Article III to effect the registration of any Registrable Securities, the
Company shall, as expeditiously as practicable (but subject to the periods set
forth in Sections 2.1(a) and 2.2):
(a) Prepare and file with the Commission a registration
statement with respect to such Registrable Securities and use the Company's
reasonable best efforts to cause such registration statement to become
effective, in each instance giving due regard to the need to prepare current
financial statements, conduct due diligence and complete other actions that are
reasonably necessary to effect a registered public offering.
(b) Use the Company's reasonable best efforts to keep the
relevant Demand Registration Statement continuously effective for one year, or
Shelf Registration Statement continuously effective for 270 days, from the
effective date thereof or such shorter period ending on the earlier of (i) when
all Registrable Securities covered by such Registration Statement have been
sold, or (ii) if none of the Holders of Registrable Securities included in such
Registration Statement are Affiliates of the Company, the first date when all
Registrable Securities covered by the Registration Statement may be immediately
sold without registration under the Securities Act pursuant to the exemptions
provided by Rule 144 under the Securities Act, without restriction under Rule
144(k). As soon as reasonably practicable after the occurrence of any fact or
event that makes untrue any statement of a material fact made in the Shelf
Registration Statement or that requires the making of any additions to or
changes in the Shelf Registration Statement in order to make the statements
therein, in light of the circumstances in which they were made, not misleading,
the Company shall prepare and file a supplement or amendment to the Shelf
Registration Statement or related prospectus, or a document incorporated therein
by reference, so that such Shelf Registration Statement and related prospectus
shall not contain any
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such untrue statement of a material fact or any such omission of a material
fact; provided, however, that if the Board of Directors of the Company
determines, in its good faith reasonable judgment, that the Transfer of
Registrable Securities pursuant to the Shelf Registration Statement would
materially interfere with, or require the premature disclosure of, any
financing, acquisition or reorganization involving the Company or any of its
subsidiaries or otherwise would require premature disclosure of any other
material nonpublic information as to which the Company has a bona fide business
purpose for maintaining its confidentiality, then for so long as such
circumstances or such business purpose continues to exist (provided that, the
number of days of any such suspension may not exceed an aggregate of 120 days in
any 360-day period), the Company shall not be required to prepare or file any
such supplement, amendment or document.
(i) Each Holder agrees, by acquisition of a Registrable
Security, that, upon receipt of any notice from the Company of the existence of
any fact or event of the kind described in Section 2.1(b) or 4.1(b) (which
notice need not disclose the fact, event or information), such Holder will
forthwith discontinue the disposition of any Registrable Securities pursuant to
the Demand Registration Statement or Shelf Registration Statement, as the case
may be, until such Holder's receipt of the copies of a supplemented or amended
prospectus as contemplated by Section 4.1(b), or until it is advised in writing
by the Company that the use of the prospectus related to such Demand
Registration Statement or Shelf Registration Statement may be resumed, and has
received copies of any additional or supplemental filings that are incorporated
by reference in such prospectus. If so directed by the Company, each Holder will
deliver to the Company all copies, other than permanent file copies then in such
Holder's possession, of the prospectus covering such Registrable Securities that
was current at the time of receipt of such notice. Any such notice or writing of
the Company, or prospectus supplement or amendment, shall be delivered
simultaneously to all Holders of Registrable Securities included in such
registration statement.
(ii) Notwithstanding the foregoing, if, in the case of a
Demand Registration Statement, the filing of a registration statement is
postponed as permitted by Section 2.1(b), or, in the case of a Shelf
Registration Statement, the preparation and filing of a supplement, amendment or
incorporated document is postponed as permitted by Section 4.1(b), or in the
case of a Piggyback Registration Statement, the filing of a registration
statement is postponed as permitted by Section 3.1(b), the five-year period for
filing a Demand Registration Statement or a Piggyback Registration Statement or
the 270-day period of effectiveness of the Shelf Registration Statement, as the
case may be, shall be extended by the aggregate number of days of such
postponement.
(c) Prepare and file with the Commission such amendments,
supplements or incorporated documents to such registration statement and the
prospectus used in connection with such registration statement as may be
necessary to comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such registration statement. If the
registration statement is for an underwritten offering, the Company shall amend
the registration statement or supplement the prospectus whenever required by the
terms of the underwriting agreement entered into pursuant to Section 4.1(f). In
the event that any Registrable Securities included in a registration statement
subject to, or required by, this Agreement remain
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unsold at the end of the period during which the Company is obligated to use its
reasonable best efforts to maintain the effectiveness of such registration
statement, the Company may file a post-effective amendment to the registration
statement for the purpose of removing such securities from registered status.
(d) Furnish to each Selling Holder of Registrable Securities
copies of the registration statement, any pre-effective or post-effective
amendment thereto, the prospectus, including each preliminary prospectus and any
amendments or supplements thereto, in each case in conformity with the
requirements of the Securities Act.
(e) Use the Company's reasonable best efforts (i) to register
and qualify the securities covered by such registration statement under the
securities or Blue Sky laws of such states or jurisdictions as shall be
reasonably requested by the Underwriters' Representative (or if inapplicable,
the Requisite Holders), and (ii) to obtain the withdrawal of any order
suspending the effectiveness of a registration statement, or the lifting of any
suspension of the qualification (or exemption from qualification) of the offer
and transfer of any of the Registrable Securities in any jurisdiction, at the
earliest practicable moment; provided, however, that the Company shall not be
required in connection therewith or as a condition thereto to qualify to do
business, subject itself to taxation or to file a general consent to service of
process in any states or jurisdictions where it is not now so subject.
(f) In the event of a Demand Registration Statement, enter into
and perform the Company's obligations under an underwriting or agency agreement
(including indemnification and contribution obligations of underwriters or
agents), in usual and customary form, with the managing underwriter or
underwriters of or agents for such offering. The Company shall also cooperate
with the Requisite Holders and the Underwriters' Representative for such
offering in the marketing of the Registrable Securities, including making
reasonably available the Company's officers, accountants, counsel, premises, and
books and records for such purpose.
(g) Promptly notify each Selling Holder of any stop order
issued or threatened to be issued by the Commission in connection therewith (and
take all actions required to prevent the entry of such stop order or to remove
it if entered).
(h) Make generally available to the Company's security holders
an earnings statement satisfying the provisions of Section 11(a) of the
Securities Act no later than 90 days following the end of the 12-month period
beginning with the first month of the Company's first fiscal quarter commencing
after the effective date of each registration statement filed pursuant to this
Agreement.
(i) Make reasonably available for inspection by any Selling
Holder, any underwriter participating in such offering and the representatives
of such Selling Holder and Underwriter, all financial and other information as
shall be reasonably requested by them, and provide each Selling Holder, any
underwriter participating in such offering and the
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representatives of such Selling Holder and Underwriter the opportunity to
discuss the business affairs of the Company with its principal executives and
independent public accountants who have certified the audited financial
statements included in such registration statement, in each case to the extent
necessary to enable them to exercise their due diligence responsibility under
the Securities Act; provided, however, that information that the Company
determines, in good faith, to be confidential and which the Company advises such
Person in writing, is confidential, shall not be disclosed unless such Person
signs a confidentiality agreement reasonably satisfactory to the Company.
(j) In the event of a Demand Registration Statement, use the
Company's reasonable best efforts to obtain a "comfort letter" from its
independent public accountants and legal opinions of counsel to the Company
addressed to each of the Selling Holders and each underwriter or agent, in
customary form and covering such matters of the type customarily covered by such
letters and in a form that shall be reasonably satisfactory to the Selling
Holders and the Underwriters' Representative. The Company shall furnish to each
Selling Holder and each underwriter or agent a signed counterpart of any such
comfort letter or legal opinion. Delivery of any comfort letter shall be subject
to the recipient furnishing such written representations or acknowledgments as
are customarily provided by selling stockholders, underwriters or agents who
receive such comfort letters under SAS No. 72. Nothing in the immediately
preceding sentence shall be deemed to require a Selling Holder, underwriter or
agent to make representations and warranties if the Selling Holder, underwriter
or agent is willing to receive a letter in the form to be provided to selling
stockholders, underwriters or agents not making representations and warranties
under SAS No. 76.
(k) Provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such registration statement
from and after a date not later than the effective date of such registration
statement.
(l) Use all reasonable efforts to cause the Registrable
Securities, if the Common Stock is then listed on a national securities exchange
or included for quotation in a recognized trading market, to continue to be so
listed or included to ensure that the Registrable Securities are freely
tradeable thereon.
(m) Provide a CUSIP number for all Registrable Securities
covered by such registration statement not later than the effective date of such
registration statement.
Section 4.2 Holders' Obligations. (a) Each Selling Holder shall:
(i) furnish to the Company such information regarding
such Selling Holder and its affiliates, the number of Registrable Securities
owned and proposed to be sold by it, the intended method of disposition of such
securities and any other information as shall be required to effect the
registration of such Selling Holder's Registrable Securities, and cooperate with
the Company in preparing such registration statement and in complying with the
requirements of the Securities Act;
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(ii) agree to sell its Registrable Securities to the
underwriters at the same price and on substantially the same terms and
conditions as the Company or the other Persons on whose behalf the registration
statement was being filed have agreed to sell their securities, and execute the
underwriting agreement agreed to by the Company and customary custody
arrangements, lock-up letters, indemnities, questionnaires and other documents
reasonably required by the underwriters or agents; provided, however, that the
lock-up period for each Selling Holder shall be the same.
(b) In the event that a Demand Registration Statement or a
Piggyback Registration Statement becomes effective, if and to the extent
requested by the managing underwriter or lead agent for the offering relating
thereto, no Holder shall offer, sell or agree to sell or otherwise dispose of or
transfer any Registrable Securities or securities convertible into or
exchangeable or exercisable for any Registrable Securities (other than, in the
case of the Selling Holders under the Demand Registration Statement or Piggyback
Registration Statement, pursuant to such Demand Registration Statement or
Piggyback Registration Statement, as the case may be), or exercise any right to
register any such securities, during the period commencing ten days prior to the
anticipated effective date of such registration statement and ending 90 days
from the effective date of such registration statement. In order to enforce the
foregoing agreement, the Company shall be entitled to impose stop-transfer
instructions with respect to the Registrable Securities of each Holder until the
end of such period.
(c) Each Selling Holder of Registrable Securities agrees that,
upon receipt of any notice from the Company of (i) any request by the Commission
for amendments or supplements to a Registration Statement or related prospectus
covering any of such Selling Holder's Registrable Securities, (ii) the issuance
by the Commission of any stop order suspending the effectiveness of a
registration statement covering any of such Selling Holder's Registrable
Securities or the initiation of any proceedings for that purpose, (iii) the
receipt by the Company of any notification with respect to the suspension of the
qualification of any Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (iv) the happening
of any event that requires the making of any changes in the registration
statement covering any of such Selling Holder's Registrable Securities so that
it will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading or that any related prospectus will not contain any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading, and (v) the Company's good faith
reasonable determination that a post-effective amendment to a registration
statement covering any of such Selling Holder's Registrable Securities or a
supplement to any related prospectus is required under the Securities Act; such
Selling Holder will forthwith discontinue disposition of such Registrable
Securities until it is advised in writing by the Company that the use of the
applicable prospectus (as amended or supplemented, as the case may be) and
disposition of the Registrable Securities covered thereby pursuant thereto may
be resumed; provided, however, (x) that such Selling Holder shall not resume its
disposition of Registrable Securities pursuant to such registration statement or
related prospectus unless it has received notice from the Company that such
registration statement or amendment has become effective under the Securities
Act and
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has received a copy or copies of the related prospectus (as then amended or
supplemented, as the case may be) unless the Registrable Securities are then
listed on a national securities exchange and the Company has advised such
Selling Holder that the Company has delivered copies of the related prospectus,
as then amended or supplemented, in transactions effected upon such exchange,
subject to any subsequent receipt by such Selling Holder from the Company of
notice of any of the events contemplated by clauses (i) through (v) of this
paragraph, and (y) if so directed by the Company, such Selling Holder will
deliver to the Company all copies, other than permanent file copies then in such
Selling Holder's possession, of the prospectus covering such Registrable
Securities current at the time of receipt of such notice.
Section 4.3 Registration Expenses. Expenses in connection with
registrations pursuant to this Agreement shall be allocated and paid as follows:
(a) With respect to each Shelf Registration Statement and
Demand Registration Statement, the Company shall bear and pay all of the
Registration Expenses incurred in connection with the registration and offering
of Registrable Securities with respect to such Shelf Registration Statement or
Demand Registration Statement, as the case may be; provided, however, that the
Selling Holders shall pay (i) underwriting discounts and commissions relating to
the Registrable Securities sold by them pursuant to any such registration
statement and (ii) all fees and disbursements of any additional counsel not
required to be paid by the Company and any other advisors to the Selling
Holders.
(b) The Company shall bear and pay all Registration Expenses
incurred in connection with any Piggyback Registration Statements pursuant to
Article III, other than (i) underwriting discounts and commissions relating to
Registrable Securities, (ii) the portion of any filing fees allocable to the
Registrable Securities included in such registration by the Selling Holders, and
(iii) the fees and disbursements of any additional counsel not required to be
paid by the Company and other advisors to the Selling Holders (each of which
expenses in clauses (i) and (ii) shall be paid on a pro rata basis by the
Selling Holders of Registrable Securities included in such Piggyback
Registration Statement and which expenses in clause (iii) shall be paid on a pro
rata basis by the Selling Holders for which the expenses are incurred).
ARTICLE V
INDEMNIFICATION AND CONTRIBUTION
Section 5.1 Indemnification by the Company. If any Registrable
Securities are included in a registration statement under this Agreement, to the
extent permitted by applicable law, the Company shall indemnify and hold
harmless each Selling Holder, its directors, officers, shareholders, employees,
investment advisors, agents and Affiliates, either direct or indirect (and each
such Affiliate's directors, officers, shareholders, employees, investment
advisors and agents) and each other Person, if any, who controls such Selling
Holder (within the meaning of the Securities Act) against any and all losses,
claims, damages, liabilities and expenses, including attorneys' fees and
disbursements and expenses of investigation, incurred by such party pursuant to
any actual or threatened action, suit, proceeding or investigation, to which any
of the
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foregoing Persons may become subject under the Securities Act, the Exchange Act
or other federal or state laws, insofar as such losses, claims, damages,
liabilities and expenses arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in such registration
statement, including any preliminary prospectus or final prospectus contained
therein, or any amendments or supplements thereto, or the omission or alleged
omission to state therein a material fact required to be stated therein, or
necessary to make the statements therein not misleading (collectively, a
"Violation"); provided, however, that the indemnification required by this
Section 5.1 shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or expense if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably withheld), nor
shall the Company be liable in any such case for any such loss, claim, damage,
liability or expense to the extent that it arises out of or is based upon a
Violation which occurs in reliance upon and in conformity with written
information furnished to the Company by the indemnified party expressly for use
in connection with such registration.
Section 5.2 Indemnification by the Selling Holders. If any Registrable
Securities are included in a registration statement under this Agreement, to the
extent permitted by applicable law, each Selling Holder (severally and not
jointly) shall indemnify and hold harmless the Company, its directors, officers,
shareholders, employees, investment advisors, agents and Affiliates, either
direct or indirect (and each such Affiliate's directors, officers, shareholders,
employees, investment advisors and agents) and each other Person, if any, who
controls the Company within the meaning of the Securities Act, any other Selling
Holder and any controlling Person of any such other Selling Holder against any
and all losses, claims, damages, liabilities and expenses, including attorneys'
fees and disbursements and expenses of investigation, incurred by such party
pursuant to any actual or threatened action, suit, proceeding or investigation,
to which any of the foregoing Persons may otherwise become subject under the
Securities Act, the Exchange Act or other federal or state laws, insofar as such
losses, claims, damages, liabilities and expenses arise out of or are based upon
any Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by such Selling Holder expressly for use in connection with such
registration statement; provided, however, that (a) the indemnification required
by this Section 5.2 shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or expense if settlement is effected without the
consent of the relevant Selling Holder of Registrable Securities, which consent
shall not be unreasonably withheld, (b) in no event shall the amount of any
indemnity under this Section 5.2 and of the contribution obligation of a Selling
Holder under Section 5.4 exceed the net proceeds from the applicable offering
received by such Selling Holder, and (c) the obligation to provide
indemnification hereunder shall be several, and not joint and several, among the
indemnifying parties.
Section 5.3 Notice of Claims, etc. Promptly after receipt by an
indemnified party under this Article V of notice of the commencement of any
action, suit, proceeding, investigation or threat thereof made in writing for
which such indemnified party may make a claim under this Article V, such
indemnified party shall deliver to the indemnifying party a written notice of
the commencement thereof. The failure to deliver written notice to the
indemnifying party shall not relieve such indemnifying party of any liability to
the indemnified party under this Article V.
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Any fees and expenses incurred by the indemnified party (including any fees and
expenses incurred in connection with investigating or preparing to defend such
action or proceeding) shall be paid to the indemnified party, as incurred,
within thirty days of written notice thereof to the indemnifying party
(regardless of whether it is ultimately determined that an indemnified party is
not entitled to indemnification hereunder). Any such indemnified party shall
have the right to employ separate counsel in any such action, claim or
proceeding, and to participate in the defense thereof, but the fees and expenses
of such counsel shall be the expenses of such indemnified party unless (a) the
indemnifying party shall have failed to promptly assume the defense of such
action, claim or proceeding, or (b) the named parties to any such action, claim
or proceeding (including any impleaded parties) include both such indemnified
party and the indemnifying party, and such indemnified party shall have been
advised by its counsel that there may be one or more legal defenses available to
it which are different from or in addition to those available to the
indemnifying party and that the assertion of such defenses would create a
conflict of interest such that counsel employed by the indemnifying party could
not represent the indemnified party (in which case, if such indemnified party
notifies the indemnifying party in writing that it elects to employ separate
counsel at the expense of the indemnifying party, the indemnifying party shall
not have the right to assume the defense of such action, claim or proceeding on
behalf of such indemnified party; it being understood, however, that the
indemnifying party shall not, in connection with any one such action, claim or
proceeding or separate but substantially similar or related actions, claims or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys (together with appropriate local counsel) at any
time for all such indemnified parties, unless the indemnified party shall have
been advised by its counsel that a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
action, claim or proceeding such that the counsel could not represent the
indemnified party and any other of such indemnified parties, in which event the
indemnifying party shall be obligated to pay the fees and expenses of such
additional counsel or counsels). No indemnifying party shall be liable to an
indemnified party for any settlement of any action, proceeding or claim without
the written consent of the indemnifying party, which consent shall not be
unreasonably withheld.
Section 5.4 Contribution. If the indemnification required by this
Article V from the indemnifying party is unavailable to an indemnified party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to in this Article V:
(a) The indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and indemnified parties in connection with the actions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified parties shall be determined by reference to,
among other things, whether any Violation has been committed by, or relates to
information supplied by, such indemnifying party or indemnified parties, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such Violation. The amount paid or payable by a party as a
result of the losses,
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<PAGE> 21
claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in Section 5.1 and Section 5.2,
any legal or other fees or expenses reasonably incurred by such party in
connection with any investigation or proceeding.
(b) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 5.4 were determined by pro
rata allocation or by any other method of allocation, which does not take into
account, the equitable considerations referred to in Section 5.4(a). No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11 (f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
Section 5.5 Survival. The obligations of the Company and the Selling
Holders of Registrable Securities under this Article V shall survive the
completion of any offering of Registrable Securities pursuant to a registration
statement under this Agreement.
ARTICLE VI
RULE 144 AND RULE 144A
Section 6.1 Reports, etc. The Company will file the reports required to
be filed by it under the Securities Act and the Exchange Act and the rules and
regulations promulgated by the Commission thereunder and will take such further
action as any Holder may reasonably request, to the extent required from time to
time to enable the Holder to sell Registrable Securities without registration
under the Securities Act within the limitation of the exemptions provided by (a)
Rule 144, (b) Rule 144A, or (c) any similar rule or regulation hereafter adopted
by the Commission. Upon the request of any Holder, the Company will deliver to
that Holder a written statement as to whether it has complied with such
requirements, a copy of the most recent annual or quarterly report of the
Company, and such other reports or documents so filed as a Holder may reasonably
request in availing itself of any rule or regulation of the Commission allowing
a Holder to sell any such securities without registration.
Section 6.2 Rule 144 Information. If at any time the Company is not
required to file reports in compliance with either Section 13 or Section 15(d)
of the Exchange Act, the Company at its expense will, forthwith upon the request
of any Holder, make available adequate current public information with respect
to the Company within the meaning of paragraph (c)(2) of Rule 144.
Section 6.3 Rule 144A Information. If at any time the Company is not
required to file reports in compliance with either Section 13 or Section 15(d)
of the Exchange Act, the Company at its expense will, forthwith upon the request
of any Holder or prospective purchaser, provide to the Holder and any
prospective purchaser reasonably current information with respect to the Company
within the meaning of paragraph (d)(4) of Rule 144A.
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<PAGE> 22
ARTICLE VII
MISCELLANEOUS
Section 7.1 Amendment, Modification and Waivers; Further Assurances.
(a) This Agreement may be amended with the consent of the Company, and the
Company may amend this Agreement or take any action herein prohibited, or omit
to perform any act herein required to be performed by it, only if the Company
shall have obtained the written consent to such amendment, action or omission to
act of Holders owning all of the Registrable Securities then outstanding.
(b) No waiver of any terms or conditions of this Agreement
shall operate as a waiver of any other breach of such terms and conditions or
any other term or condition, nor shall any failure to enforce any provision
hereof operate as a waiver of such provision or of any other provision hereof.
No written waiver hereunder, unless it by its own terms explicitly provides to
the contrary, shall be construed to effect a continuing waiver of the provisions
being waived, and no such waiver in any instance shall constitute a waiver in
any other instance or for any other purpose or impair the right of the party
against whom such waiver is claimed in all other instances or for all other
purposes to require full compliance with such provision.
(c) Each of the parties hereto shall execute all such further
instruments and documents and take all such further action as any other party
hereto may reasonably require in order to effectuate the terms and purposes of
this Agreement.
Section 7.2 Assignment. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties and their respective
successors and permitted assigns of Registrable Securities. The rights and
obligations of a Holder under this Agreement may collectively be transferred or
assigned (in whole or in part) to one or more Persons who is a transferee of
Registrable Securities; provided, however, that any such transferee of
Registrable Securities agrees in writing, in form and substance satisfactory to
the Company, to be bound by all of the terms and provisions hereof and to join
this Agreement as a party hereto; and provided, further, that no such assignment
of rights and obligations shall be effective with respect to Registrable
Securities that, as a result of such transfer, have ceased to be Registrable
Securities by reason of the second sentence of the definition of Registrable
Securities set forth in Section 1.1 (such transferee, a "Permitted Transferee").
Section 7.3 Invalid Provisions. If any provision of this Agreement is
held to be illegal, invalid or unenforceable under any present or future law,
(a) such provision will be fully severable, (b) this Agreement will be construed
and enforced as if such illegal, invalid or unenforceable provision had never
comprised a part hereof, (c) the remaining provisions of this Agreement will
remain in full force and effect and will not be affected by the illegal, invalid
or unenforceable provision or by its severance herefrom, and (d) in lieu of such
illegal, invalid or unenforceable provision, there will be added automatically
as a part of this Agreement a legal, valid and enforceable provision as similar
in terms to such illegal, invalid or unenforceable provision as may be possible.
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Section 7.4 Nominees for Beneficial Owners. In the event that any
Registrable Securities are held by a nominee for the beneficial owner thereof,
the beneficial owner thereof may, at its election, be treated as the Holder of
such Registrable Securities for purposes of request or other action by any
Holder or Holders pursuant to this Agreement or any determination of any amount
of shares of Registrable Securities held by any Holder or Holders of Registrable
Securities contemplated by this Agreement. If the beneficial owner of any
Registrable Securities so elects, the Company may require assurances reasonably
satisfactory to it of such owner's beneficial ownership of such Registrable
Securities. For purposes of this Agreement, "beneficial ownership" and
"beneficial owner" refer to beneficial ownership as defined in Rule 13d-3
(without regard to the 60-day provision in paragraph (d)(1)(i) thereof) under
the Exchange Act.
Section 7.5 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
Section 7.6 Notices. All notices and requests given pursuant to this
Agreement shall be in writing and shall be made by hand-delivery, first-class
mail (registered or certified, return receipt requested), confirmed facsimile or
overnight air courier guaranteeing next business day:
(a) If to the Company, to:
Financial Performance Corporation
335 Madison Avenue
New York, New York 10017
Facsimile Number: (212) 557-0490
Attention: President and Chief Executive Officer
With a copy to:
Jonathan J. Russo, Esq.
Baer Marks & Upham LLP
805 Third Avenue
New York, New York 10022
Facsimile Number: (212) 702-5941
If to Finley, to:
William Finley
c/o Finacial Performance Corporation
335 Madison Avenue
New York, New York 10017
Facsimile Number: (212) 557-0490
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<PAGE> 24
With a copy to:
David Mollon, Esq.
Winston & Strawn
200 Park Avenue
New York, New York 10166-4193
Facsimile Number: 212-294-4700
If to Trump, to:
Robert S. Trump
C/o Trump Management, Inc.
2611 W. 2nd Street
Brooklyn, New York 11223
Facsimile Number: (718) 891-3609
With a copy to:
Gary S. Friedman, Esq.
Kaufman Friedman Plotnicki & Grun, LLP
300 East 42nd Street,
New York, New York 10017
Facsimile Number: (212) 687-3179
If to Silverman, to:
Jeffrey Silverman
LTS Capital Partners
777 Third Avenue
New York, New York 10017
Facsimile Number: (212) 446-0229
With a copy to:
Kramer Levin Naftalis & Frankel LLP
919 Third Avenue
New York, New York 10022
Attention: Howard Sobel, Esq.
Facsimile Number: 212 715-8000
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<PAGE> 25
If to Nash, to:
Ronald Nash
650 Fifth Avenue
New York, New York 10019
Facsimile Number: ______________
With a copy to:
Kramer Levin Naftalis & Frankel LLP
919 Third Avenue
New York, New York 10022
Attention: Howard Sobel, Esq.
Facsimile Number: 212 715-8000
(b) If to a Permitted Transferee, to the address for such
Permitted Transferee set forth on Schedule 7.6, as may be amended from time to
time.
Except as otherwise provided in this Agreement, the date of each such notice and
request shall be deemed to be, and the date on which each such notice and
request shall be deemed given shall be: (i) at the time delivered, if personally
delivered or mailed; (ii) when receipt is acknowledged, if sent by facsimile;
and (iii) the next business day after timely delivery to the courier, if sent by
overnight air courier guaranteeing next business day delivery.
Section 7.7 Entire Agreement; Integration. This Agreement supersedes
all prior agreements between or among any of the parties hereto with respect to
the registration of any securities of the Company, and any and all such
agreements are hereby deemed canceled and of no further force and effect and
this Agreement embodies the entire understanding among the parties relating to
such subject matter.
Section 7.8 Injunctive Relief. Each of the parties hereto acknowledges
that in the event of a breach by any of them of any material provision of this
Agreement, the aggrieved party may be without an adequate remedy at law. Each of
the parties therefore agrees that in the event of such a breach hereof the
aggrieved party may elect to institute and prosecute proceedings in any court of
competent jurisdiction to enforce specific performance or to enjoin the
continuing breach hereof. By seeking or obtaining any such relief, the aggrieved
party shall not be precluded from seeking or obtaining any other relief to which
it may be entitled.
Section 7.9 Section Headings. Section headings are for convenience of
reference only and shall not affect the meaning of any provision of this
Agreement,
Section 7.10 Counterparts. This Agreement maybe executed in any number
of counterparts, each of which shall be an original, and all of which shall
together constitute one and the same instrument. All signatures need not be on
the same counterpart.
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<PAGE> 26
Section 7.11 Filing. A copy of this Agreement and of all amendments
thereto shall be filed at the principal executive office of the Company with the
Secretary of the Company.
Section 7.12 Termination. This Agreement may be terminated at any time
by a written instrument signed by the Company and all of the Holders of
Registrable Securities. Unless sooner terminated in accordance with the
immediately preceding sentence, the parties' obligations under this Agreement
(other than Articles V and VI hereof) shall terminate in their entirety on the
tenth anniversary of the date hereof.
Section 7.13 Attorneys' Fees. In any action or proceeding brought to
enforce any provision of this Agreement, the successful party shall be entitled
to recover reasonable attorneys' fees (including any fees incurred in any
appeal) in addition to its costs and expenses and any other available remedy.
Section 7.14 No Third Party Beneficiaries. Nothing herein expressed or
implied is intended to confer upon any Person, other than the parties hereto or
their respective permitted assigns, successors, heirs and legal representatives,
or any indemnified party hereunder, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
Section 7.15 Requisite Holders. Each of the parties hereto agrees that
the Company may, in connection with the taking of any action permitted to be
taken hereunder with the consent or approval of the Requisite Holders of the
Registrable Securities, rely in good faith on a certificate from any such holder
or holders stating that it holds or is acting on behalf of a majority in
interest of the Registrable Securities.
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<PAGE> 27
IN WITNESS WHEREOF, this Registration Rights Agreement has been duly
executed by the parties hereto as of the date first written above.
Finance Performance Corporation
By: /s/ WILLIAM F. FINLEY
------------------------------------
Name:
Title:
/s/ WILLIAM F. FINLEY
---------------------------------------
William F. Finley
/s/ ROBERT S. TRUMP
---------------------------------------
Robert S. Trump
/s/ JEFFERY SILVERMAN
---------------------------------------
Jeffery Silverman
/s/ RONALD NASH
---------------------------------------
Ronald Nash
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