SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Financial Performance Corporation
(Name of Issuer)
Common Stock, $.01 par value
(Title of Class of Securities)
317630 30 9
(CUSIP Number)
Howard A. Sobel, Esq.
Kramer Levin Naftalis & Frankel LLP
919 Third Avenue
New York, New York 10022
(212) 715-9326
(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 ss.ss. 240.13d-1(e), 240.13d-1(f), or 240.13d-1(g), check
the following box: |_|
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss. 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.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
SCHEDULE 13D
CUSIP No. 317630 30 9
- --------------------------------------------------------------------------------
1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Jeffrey S. Silverman SS# ###-##-####
- --------------------------------------------------------------------------------
2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |X|
- --------------------------------------------------------------------------------
3) SEC USE ONLY
- --------------------------------------------------------------------------------
4) SOURCE OF FUNDS PF
- --------------------------------------------------------------------------------
5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
- --------------------------------------------------------------------------------
6) CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
- --------------------------------------------------------------------------------
7) SOLE VOTING POWER
NUMBER OF 2,850,000* (See Item 5)
SHARES -----------------------------------------------------
BENEFICIALLY 8) SHARED VOTING POWER
OWNED BY See Item 5
EACH -----------------------------------------------------
REPORTING 9) SOLE DISPOSITIVE POWER
PERSON 2,850,000* (See Item 5)
WITH -----------------------------------------------------
10) SHARED DISPOSITIVE POWER
See Item 5
- --------------------------------------------------------------------------------
11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,850,000*
- --------------------------------------------------------------------------------
12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
- --------------------------------------------------------------------------------
13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
26.96%
- --------------------------------------------------------------------------------
14) TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
- --------
* Includes 2,250,000 shares of Common Stock issuable upon exercise of the
Silverman Stock Options (as hereinafter defined) held by the Reporting Person.
See Item 5. The percentage listed on Row 13 assumes the full exercise of the
Silverman Stock Options held by the Reporting Person.
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SCHEDULE 13D
CUSIP No. 317630 30 9
- --------------------------------------------------------------------------------
1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Ronald Nash SS# ###-##-####
- --------------------------------------------------------------------------------
2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |X|
- --------------------------------------------------------------------------------
3) SEC USE ONLY
- --------------------------------------------------------------------------------
4) SOURCE OF FUNDS PF
- --------------------------------------------------------------------------------
5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
- --------------------------------------------------------------------------------
6) CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
- --------------------------------------------------------------------------------
7) SOLE VOTING POWER
NUMBER OF 2,840,000* (See Item 5)
SHARES -----------------------------------------------------
BENEFICIALLY 8) SHARED VOTING POWER
OWNED BY See Item 5
EACH -----------------------------------------------------
REPORTING 9) SOLE DISPOSITIVE POWER
PERSON 2,840,000* (See Item 5)
WITH -----------------------------------------------------
10) SHARED DISPOSITIVE POWER
See Item 5
- --------------------------------------------------------------------------------
11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,840,000*
- --------------------------------------------------------------------------------
12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
- --------------------------------------------------------------------------------
13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
26.86%
- --------------------------------------------------------------------------------
14) TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
- ----------
* Includes 2,250,000 shares of Common Stock issuable upon exercise of the Nash
Stock Options (as hereinafter defined) held by the Reporting Person. See Item 5.
The percentage listed on Row 13 assumes the full exercise of the Nash Stock
Options held by the Reporting Person.
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<PAGE>
The filing of this Statement does not constitute an admission that
the Reporting Persons constitute a "group" for purposes of the Securities
Exchange Act of 1934, as amended ("Exchange Act"), or the rules promulgated
thereunder or for any other purpose whatsoever. Each of the Reporting Persons
has made, and will continue to make, his own investment decisions. Although the
Reporting Persons expect to consult with each other from time to time concerning
matters relating to their respective investments in the Company and the business
of the Company, the investment decisions of one Reporting Person may or may not
coincide with the investment decisions made by the other Reporting Person. See
Item 4. Each of the Reporting Persons expressly disclaims the existence of a
group within the meaning of Rule 13d-5(b)(i) of the Exchange Act and expressly
disclaims beneficial ownership of the Common Stock beneficially owned by the
other Reporting Person.
Item 1. Security and Issuer.
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.
Item 2 . Identity and Background.
(a) - (c) This statement is being filed by Jeffrey S. Silverman and
Ronald Nash (collectively, the "Reporting Persons").
Mr. Silverman is a private investor. His office address is 777 Third
Avenue, New York, New York 10022.
Mr. Nash is a private investor. His office address is c/o Financial
Performance Corporation, 335 Madison Avenue, New York, New York 10017.
(d) - (e) During the last five years, neither of the Reporting
Persons has been convicted in a criminal proceeding (excluding traffic
violations and similar misdemeanors) or has been a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction and as a result
of such proceeding was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, Federal or state securities laws or finding any violation with respect to
such laws.
(f) Each of the Reporting Persons is a citizen of the United States.
Item 3. Source and Amount of Funds or Other Consideration.
As of November 17, 1999, the Reporting Persons, taken together,
beneficially owned an aggregate of 5,690,000 shares of Common Stock (including
4,500,000 shares issuable in the future upon exercise of the Silverman Stock
Options and the Nash Stock Options described in Item 4 below). The aggregate
purchase price for the 1,190,000 shares of Common Stock owned by the Reporting
Persons as of November 17, 1999 was $563,500.
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<PAGE>
Of the shares of Common Stock owned by Mr. Silverman, 500,000 shares
were acquired from Robert S. Trump in a privately negotiated transaction
pursuant to the terms of the Stock Purchase and Sale Agreement, dated as of
November 17, 1999, between the Company, Robert S. Trump and Jeffrey S. Silverman
(the "Silverman Purchase Agreement"). A copy of the Silverman Purchase Agreement
is attached hereto as Exhibit 2, and is hereby incorporated herein by reference
in its entirety. The transactions contemplated by the Silverman Purchase
Agreement were consummated on November 17, 1999.
In addition, Mr. Silverman purchased 100,000 shares of Common Stock
in the open market at the price of $.32 per share, for aggregate consideration
of $32,000.
Mr. Silverman 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.
Of the shares of Common Stock presently owned by Mr. Nash, 500,000
shares were acquired from Robert S. Trump in a privately negotiated transaction
pursuant to the terms of the Stock Purchase and Sale Agreement, dated as of
November 17, 1999, between the Company, Robert S. Trump and Ronald Nash (the
"Nash Purchase Agreement"). A copy of the Nash Purchase Agreement is attached
hereto as Exhibit 3, and is hereby incorporated herein by reference in its
entirety. The transactions contemplated by the Nash Purchase Agreement were
consummated on November 17, 1999.
In addition, Mr. Nash purchased 90,000 shares of Common Stock in the
open market at the price of $.35 per share, for aggregate consideration of
$31,500.
Mr. Nash 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.
Item 4. Purpose of Transaction.
Each of the Reporting Persons acquired beneficial ownership of the
shares of Common Stock to which this Statement relates for investment purposes
and to obtain a significant equity interest in the Company. Mr. Silverman and
Mr. Nash expect to be actively involved in efforts to expand the Company's
business and may, from time to time, suggest to the Company mergers,
acquisitions or other business transactions involving the Company and other
entities. Mr. Silverman and Mr. Nash expect to focus their efforts on
identifying potential opportunities for the Company primarily in the financial
services industry. There can be no assurance that the Company will be able to
expand its business or that any such suggestion made by Mr. Silverman or Mr.
Nash could be consummated by the Company or if consummated, would be successful
for the Company.
(a) Mr. Silverman purchased 500,000 shares of Common Stock of the
Company and acquired the Silverman Trump Stock Options (as hereinafter defined)
from Mr. Trump pursuant to the terms of the Silverman Purchase Agreement for an
aggregate purchase price of $250,000.
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<PAGE>
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").
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 referred to as the "Silverman Trump
Stock Options").
Pursuant to the terms of the Option Agreement, dated November 17,
1999 by and between Jeffrey S. Silverman and the Company, the Company granted to
Mr. Silverman an option, exercisable at any time within five years of the
Closing Date (as defined therein), to purchase an aggregate of 1,000,000 shares
of Common Stock at an exercise price of $.43 per share (the "Silverman Company
Option"). The Silverman Trump Stock Options and the Silverman Company Stock
Option are referred to as the Silverman Stock Options. The Silverman Stock
Options are attached hereto as Exhibits 4 and 5, and are incorporated herein by
reference in their entirety.
Mr. Nash purchased 500,000 shares of the Common Stock of the Company
and acquired the Nash Trump Stock Options (as hereinafter defined) from Mr.
Trump pursuant to the terms of the Nash Purchase Agreement for an aggregate
purchase price of $250,000.
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, Robert S. 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
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<PAGE>
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 referred to herein as the "Nash Trump Stock Options."
Pursuant to the terms of the Option Agreement dated November 17
1999, by and between Ronald Nash and the Company, the Company granted to Mr.
Nash an option, exercisable at any time within five years of the Closing Date
(as defined therein), to purchase an aggregate of 1,000,000 shares of Common
Stock at an exercise price of $.43 per share (the "Nash Company Option"). The
Nash Trump Stock Options and the Nash Company Option are referred to as the Nash
Stock Options. The Nash Stock Options are attached hereto as Exhibits 6 and 7,
and are incorporated herein by reference in their entirety.
Each of the Reporting Persons 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 such Reporting Person. Action or inaction on the part of
one Reporting Person may be different from action or inaction on the part of the
other Reporting Person. Each of the Reporting Persons 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) Neither of the Reporting Persons currently has any plans or
proposals which relate to or would result in any extraordinary corporate
transactions involving the Company or any of its subsidiaries, although, as
noted above, from time to time in the future either of the Reporting Persons may
suggest to the Company mergers, acquisitions or other business transactions
involving the Company and other entities.
(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 more
than 500,000 shares of Common Stock. The Stockholders Agreement is attached
hereto as Exhibit 8 and is incorporated herein by reference in its entirety.
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<PAGE>
(e) None.
(f) None.
(g) None.
(h) None.
(i) None.
(j) None.
Item 5. Interest in Securities of the Issuer.
(a) As of November 17, 1999, the Reporting Persons, taken together,
beneficially owned an aggregate of 5,690,000 shares of Common Stock (including
4,500,000 shares issuable in the future upon exercise of the Silverman Stock
Options and the Nash Stock Options (collectively the "Stock Options"),
representing approximately 49.17% of the outstanding shares of Common Stock
(assuming full exercise of all of the Stock Options held by each of the
Reporting Persons). This percentage is based on 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-Q for the quarter ended November 12,
1999, plus 100,000 shares of Common Stock granted to Mr. William F. Finley
pursuant to the Amended and Restated Employment Agreement between Mr. Finley and
Financial Performance Corporation, plus the 2,000,000 shares of Common Stock
underlying the aggregate options granted to the Reporting Person pursuant to the
Company Option Agreements between each of the Reporting Persons and Financial
Performance Corporation, for a total of 11,571,534 shares, and assumes the full
exercise of all of the Stock Options held by the Reporting Persons.
Mr. Silverman beneficially owns 2,850,000 shares of Common Stock, or
approximately 26.96%, of the outstanding shares of Common Stock (assuming full
exercise of all of the Silverman Stock options). This percentage is based on 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-Q for the quarter ended November 12, 1999, plus 100,000 shares of Common
Stock granted to Mr. William F. Finley pursuant to the Amended and Restated
Employment Agreement between Mr. Finley and Financial Performance Corporation,
plus the 1,000,000 shares of Common Stock underlying the options granted to
Jeffrey S. Silverman pursuant to the Company Option Agreement between Jeffrey S.
Silverman and Financial Performance Corporation, for a total of 10,571,534
shares, and assumes the full exercise of all of the Stock Options held by the
Reporting Persons.
Mr. Nash beneficially owns 2,840,000 shares of Common Stock, or
approximately 26.86%, of the outstanding shares of Common Stock (assuming full
exercise of
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<PAGE>
the Nash Stock Options). This percentage is based on 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-Q for the quarter ended November 12,
1999, plus 100,000 shares of Common Stock granted to Mr. William F. Finley
pursuant to the Amended and Restated Employment Agreement between Mr. Finley and
Financial Performance Corporation, plus the 1,000,000 shares of Common Stock
underlying the options granted to Ronald Nash pursuant to the Company Option
Agreement between Ronald Nash and Financial Performance Corporation, for a total
of 10,571,534 shares, and assumes the full exercise of all of the Stock Options
held by the Reporting Persons.
(b) As of the date hereof, each of the Reporting Persons has sole
voting and dispositive power over the shares of Common Stock beneficially owned
by such Reporting Person. By reason of the contemplated relationships among the
Reporting Persons and Mr. Trump, each of the Reporting Persons may be deemed to
share voting power and, under certain circumstances, dispositive power over the
shares of Common Stock owned by Robert S. Trump. See Item 6 for information
relating to the Stockholders Agreement among the Reporting Persons and Mr.
Trump. Each of the Reporting Persons expressly disclaims the existence of a
group within the meaning of Rule 13d-5(b)(i) of the Exchange Act and expressly
disclaims beneficial ownership, by reason of the provisions of the Stockholders
Agreement, of the Common Stock owned by Robert S. Trump.
(c) All of the transactions in the Common Stock effected by the
Reporting Persons during the past 60 days are set forth in Schedule I attached
hereto.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
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 the
Reporting Persons so long as Mr. Silverman or Mr. Nash, as the case may be,
beneficially owns at least 500,000 shares of Common Stock; (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 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 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 the Reporting Persons a right of first offer with respect to his
Remaining Shares (as such term is defined therein). See Exhibit 8 hereto, which
is incorporated herein by reference in its entirety.
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<PAGE>
Item 7. Material to be Filed as Exhibits.
Exhibit 1 - Agreement of joint filing pursuant to Rule 13d(1)-f
promulgated under the Securities Exchange Act of 1934, as
amended.
Exhibit 2- Silverman Purchase Agreement
Exhibit 3- Nash Purchase Agreement
Exhibit 4- Silverman Trump Stock Options
Exhibit 5- Silverman Company Option
Exhibit 6- Nash Trump Stock Options
Exhibit 7- Nash Company Option
Exhibit 8- Stockholders Agreement
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<PAGE>
SIGNATURES
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certify that the information set forth in this
Statement is true, complete and correct.
Dated: November 24, 1999
/s/ Jeffrey S. Silverman
------------------------
Name: Jeffrey S. Silverman
/s/ Ronald Nash
---------------
Name: Ronald Nash
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<PAGE>
SCHEDULE I
TRANSACTIONS IN COMMON
STOCK OF FINANCIAL PERFORMANCE CORPORATION.
DURING THE PRECEDING 60 DAYS
Shares Purchased by Jeffrey S. Silverman
Number of
Shares
Date Purchased Total Cost
- ---- --------- ----------
9/22/99 65,000 $.32
9/22/99 35,000 $.32
Shares Purchased by Ronald Nash
Number of
Shares
Date Purchased Total Cost
- ---- --------- ----------
9/15/99 55,000 $.35
9/17/99 35,000 $.35
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EXHIBIT 1
Agreement of Joint Filing
Pursuant to 13d-1(f) promulgated under the Securities Exchange Act
of 1934, as amended, the undersigned persons hereby agree to file with the
Securities and Exchange Commission the Statement on Schedule 13D (the
"Statement") to which this Agreement is attached as an exhibit, and agree that
such Statement, as so filed, is filed on behalf of each of them.
IN WITNESS WHEREOF, the undersigned have executed this Agreement.
Dated: November 24, 1999
/s/ Jeffrey S. Silverman
--------------------------
Name: Jeffrey S. Silverman
/s/ Ronald Nash
--------------------------
Name: Ronald Nash
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<PAGE>
EXHIBIT 2
STOCK PURCHASE AND SALE AGREEMENT
AMONG
FINANCIAL PERFORMANCE CORPORATION,
ROBERT S. TRUMP
AND
JEFFREY S. SILVERMAN
Dated as of November 17, 1999
<PAGE>
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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<PAGE>
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>
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>
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>
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>
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.
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<PAGE>
"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.
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<PAGE>
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
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<PAGE>
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.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first written above.
/s/
-----------------------------------
ROBERT S. TRUMP
/s/
-------------------------------
JEFFREY S. SILVERMAN
FINANCIAL PERFORMANCE CORPORATION
By: /s/
-------------------------------
Name:
Title:
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<PAGE>
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.
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<PAGE>
SCHEDULE 3.3
to
Stock Purchase and Sale Agreement
None
-13-
<PAGE>
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.
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<PAGE>
SCHEDULE 4.4
to
Stock Purchase and Sale Agreement
SCHEDULE OF WARRANT HOLDERS
FINANCIAL PERFORMANCE CORPORATION
DATE: November 12, 1999
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
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<PAGE>
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
* Warrant expiration date extended until November 30, 2004.
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<PAGE>
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.
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<PAGE>
EXHIBIT 3
STOCK PURCHASE AND SALE AGREEMENT
AMONG
FINANCIAL PERFORMANCE CORPORATION,
ROBERT S. TRUMP
AND
RONALD NASH
Dated as of November 17, 1999
<PAGE>
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").
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<PAGE>
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>
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>
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:
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<PAGE>
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>
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>
"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.
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<PAGE>
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
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<PAGE>
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.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first written above.
/s/
------------------------------------
ROBERT S. TRUMP
/s/
------------------------------------
RONALD NASH
FINANCIAL PERFORMANCE CORPORATION
By: /s/
---------------------------------
Name:
Title:
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<PAGE>
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.
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<PAGE>
SCHEDULE 3.3
to
Stock Purchase and Sale Agreement
None
-13-
<PAGE>
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.
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<PAGE>
SCHEDULE 4.4
to
Stock Purchase and Sale Agreement
SCHEDULE OF WARRANT HOLDERS
FINANCIAL PERFORMANCE CORPORATION
DATE: November 12, 1999
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
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<PAGE>
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
* Warrant expiration date extended until November 30, 2004.
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<PAGE>
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.
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<PAGE>
EXHIBIT 4
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>
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 therefor). An adjustment made pursuant to
this Section 5(a) shall become effective immediately after the effective date,
retroactive to the record date
-2-
<PAGE>
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>
(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>
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>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first written above.
/s/
----------------------------
Robert S. Trump
/s/
----------------------------
Jeffrey S. Silverman
-6-
<PAGE>
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>
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>
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>
(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>
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>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first written above.
/s/
----------------------------
Robert S. Trump
/s/
----------------------------
Jeffrey S. Silverman
-6-
<PAGE>
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>
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>
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>
(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>
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>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first written above.
/s/
----------------------------
Robert S. Trump
/s/
----------------------------
Jeffrey S. Silverman
-6-
<PAGE>
EXHIBIT 5
FINANCIAL PERFORMANCE CORPORATION
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT (the "Agreement"), dated as of November 17,
1999, between FINANCIAL PERFORMANCE CORPORATION, a New York corporation (the
"Company"), having an address at 335 Madison Avenue, 8th floor, New York, New
York 10017 and JEFFREY SILVERMAN, having an address at c/o LTS Capital Partners,
777 Third Avenue, New York, New York 10017 (the "Grantee").
The Company hereby grants to the Grantee an irrevocable nonqualified
stock option (the "Option") to purchase from time to time all or any part of an
aggregate of 1,000,000 shares of the Company's common stock, $.01 par value per
share (the "Shares"). This Option is a nonqualified Stock Option which is not
intended to be an "incentive stock option" within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended (the "Code").
To evidence the Option and to set forth its terms, the Company and
the Grantee agree as follows:
1. Confirmation of Grant. The Company hereby evidences and confirms
its grant of the Option to the Grantee on the date of this Agreement.
2. Number of Shares. This Option shall be for an aggregate of
1,000,000 Shares.
3. Exercise Price. The exercise price shall be $.43 per share, which
amount equals the closing sale price of the Company's common stock as quoted on
the OTC Bulletin Board as of the close of business on November 15, 1999.
4. Medium and Time of Payment. The exercise price of the Option
shall be paid in cash or by check payable to the order of the Company at the
time of exercise. In addition, the Company shall accept full or partial payment
in Shares previously owned by the Grantee having an aggregate fair market value
on the date of exercise equal to the portion of the exercise price being so
paid. The option may be partially exercised from time to time.
Payment in full for all Shares with respect to which the Option is
then being exercised shall be required before the issuance of any Shares
pursuant to the exercise of the Option. In connection with the delivery of any
certificates representing the Shares, the Company shall, at the request of the
Grantee, withhold a number of Shares having an aggregate fair market value on
the date of the exercise of the Option equal to the taxes then required by
applicable federal, state and local law to be so withheld and such shares shall
be irrevocably returned to treasury stock of the Company. If the Grantee does
not so request the Company to withhold Shares, the Grantee shall pay to the
Company any amount necessary to satisfy any applicable federal, state, or local
tax withholding obligations.
<PAGE>
5. Term and Exercise of the Option. The Option shall expire five
years from the date of this Agreement and may be exercised for all or any
portion of the Shares (in whole shares) at any time and from time to time during
such period.
This Option may be exercised only by written notice to the Company
indicating the number of whole Shares which are being purchased. Such notice
must be signed by the Grantee and be accompanied by full payment of the exercise
price.
6. Transferability. The Option may only be transferred to an
Affiliate of Grantee or by will or the laws of descent and distribution.
7. 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 Grantee 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 therefor). An adjustment made pursuant to
this Section 10(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 Grantee 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 Grantee would have been entitled to receive had
the Option been exercised immediately prior to such transaction.
8. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Grantee as follows:
8.1 This Agreement has been duly and validly authorized, executed
and delivered by the Company. This Agreement constitutes the legal, valid and
binding obligations 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).
2
<PAGE>
8.2 No Conflicts; Consents of Third Parties. 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 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 under any Contract, Permit or Order to which the Company is a
party or by which the Company or its assets or properties 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 or
thereof, except as set forth on Schedule 4.1 of the Stock Purchase and Sale
Agreement dated the date hereof by and among the Company, Silverman and Robert
S. Trump.
8.3 Reservation of Shares. The Company has reserved for issuance out
of the authorized capital stock of the Company a number of shares of the
Company's common stock equal to the number of shares of the Company's common
stock issuable upon the exercise of the Option.
9. No Limitation on Rights of the Company. The grant of this Option shall
not in any way affect the right or power of the Company to make adjustments,
reclassifications, or changes in its capital or business structure or to merge,
consolidate, dissolve, liquidate, sell, or transfer all or any part of its
business or assets.
10. Rights as a Shareholder. The Grantee shall have the rights of a
shareholder with respect to the Shares covered by the Option only upon becoming
the holder of record of those Shares.
11. Compliance with Applicable Law. Notwithstanding anything herein to the
contrary, the Company shall not be obligated to cause to be issued or delivered
any certificates for Shares pursuant to the exercise of the Option, unless and
until the Company is advised by its counsel that the issuance and delivery of
such certificates is in compliance with all applicable laws, regulations of
governmental authority, and the requirements of any exchange upon which Shares
are traded. Absent any agreement with the Company specifically providing for
such terms, the Company shall in no event be obligated to register any
securities pursuant to the Securities Act of 1933 (as now in effect or as
hereafter amended). The Company hereby agrees to cause the issuance and delivery
of such certificates to comply with any such law, regulation or requirement from
and after the date hereof.
12. No Obligation to Exercise Option. The granting of the Option shall
impose no obligation upon the Grantee to exercise the Option.
13. Agreement Not a Contract of Employment. This Agreement is not a
contract of employment, and the terms of the Grantee's Board membership or the
relationship of the Grantee with the Company or any Affiliate shall not be
affected in any way by this Agreement except as specifically provided herein.
The execution of this Agreement shall not be
3
<PAGE>
construed as conferring any legal rights upon the Grantee for a continuation as
a member of the Board or of any other relationship between the Grantee and the
Company or any Affiliate, nor shall it interfere with the right of shareholders
of the Company to remove the Grantee from the Board or the right of the Company
or any Affiliate to treat the Grantee without regard to the effect which that
treatment might have upon him as a Grantee.
14. Certain Definitions.
"Affiliate" shall have the meaning specified in 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.
"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,
Government Body or other entity.
15. Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally or sent by
certified, registered, or express mail, postage prepaid. Any such notice shall
be deemed given when so delivered personally or, if mailed, four days after the
date of deposit in the United States mails, to each party at its address set
forth above or to such other address as may be designated in a notice given in
accordance with this Section.
4
<PAGE>
16. Governing Law. Except to the extent preempted by Federal law, this
Agreement shall be construed and enforced in accordance with, and governed by,
the laws of the State of New York without regard to any rules regarding
conflicts of law.
5
<PAGE>
IN WITNESS WHEREOF, the Company and the Grantee have duly executed
this Stock Option Agreement as of the date first written above.
FINANCIAL PERFORMANCE CORPORATION
By: /s/
-------------------------------
Name:
Title:
/s/
------------------------------------
JEFFREY SILVERMAN
6
<PAGE>
EXHIBIT 6
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>
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>
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>
(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>
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>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first written above.
/s/
----------------------------
Robert S. Trump
/s/
----------------------------
Ronald Nash
-6-
<PAGE>
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>
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>
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>
(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>
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>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first written above.
/s/
----------------------------
Robert S. Trump
/s/
----------------------------
Ronald Nash
-6-
<PAGE>
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>
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>
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>
(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>
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>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first written above.
/s/
----------------------------
Robert S. Trump
/s/
----------------------------
Ronald Nash
-6-
<PAGE>
EXHIBIT 7
FINANCIAL PERFORMANCE CORPORATION
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT (the "Agreement"), dated as of November 17,
1999, between FINANCIAL PERFORMANCE CORPORATION, a New York corporation (the
"Company"), having an address at 335 Madison Avenue, 8th floor, New York, New
York 10017 and RONALD NASH, having an address at 650 Fifth Avenue, New York, NY
10019 (the "Grantee").
The Company hereby grants to the Grantee an irrevocable nonqualified
stock option (the "Option") to purchase from time to time all or any part of an
aggregate of 1,000,000 shares of the Company's common stock, $.01 par value per
share (the "Shares"). This Option is a nonqualified Stock Option which is not
intended to be an "incentive stock option" within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended (the "Code").
To evidence the Option and to set forth its terms, the Company and
the Grantee agree as follows:
1. Confirmation of Grant. The Company hereby evidences and confirms
its grant of the Option to the Grantee on the date of this Agreement.
2. Number of Shares. This Option shall be for an aggregate of
1,000,000 Shares.
3. Exercise Price. The exercise price shall be $.43 per share, which
amount equals the closing sale price of the Company's common stock as quoted on
the OTC Bulletin Board as of the close of business on November 15, 1999.
4. Medium and Time of Payment. The exercise price of the Option
shall be paid in cash or by check payable to the order of the Company at the
time of exercise. In addition, the Company shall accept full or partial payment
in Shares previously owned by the Grantee having an aggregate fair market value
on the date of exercise equal to the portion of the exercise price being so
paid. The option may be partially exercised from time to time.
Payment in full for all Shares with respect to which the Option is
then being exercised shall be required before the issuance of any Shares
pursuant to the exercise of the Option. In connection with the delivery of any
certificates representing the Shares, the Company shall, at the request of the
Grantee, withhold a number of Shares having an aggregate fair market value on
the date of the exercise of the Option equal to the taxes then required by
applicable federal, state and local law to be so withheld and such shares shall
be irrevocably returned to treasury stock of the Company. If the Grantee does
not so request the Company to withhold Shares, the Grantee shall pay to the
Company any amount necessary to satisfy any applicable federal, state, or local
tax withholding obligations.
<PAGE>
5. Term and Exercise of the Option. The Option shall expire five
years from the date of this Agreement and may be exercised for all or any
portion of the Shares (in whole shares) at any time and from time to time during
such period.
This Option may be exercised only by written notice to the Company
indicating the number of whole Shares which are being purchased. Such notice
must be signed by the Grantee and be accompanied by full payment of the exercise
price.
6. Transferability. The Option may only be transferred to an
Affiliate of Grantee or by will or the laws of descent and distribution.
7. 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 Grantee 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 therefor). An adjustment made pursuant to
this Section 10(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 Grantee 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 Grantee would have been entitled to receive had
the Option been exercised immediately prior to such transaction.
8. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Grantee as follows:
8.1 This Agreement has been duly and validly authorized, executed
and delivered by the Company. This Agreement constitutes the legal, valid and
binding obligations 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).
2
<PAGE>
8.2 No Conflicts; Consents of Third Parties. 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 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 under any Contract, Permit or Order to which the Company is a
party or by which the Company or its assets or properties 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 or
thereof, except as set forth on Schedule 4.1 of the Stock Purchase and Sale
Agreement dated the date hereof by and among the Company, Silverman and Robert
S. Trump.
8.3 Reservation of Shares. The Company has reserved for issuance out
of the authorized capital stock of the Company a number of shares of the
Company's common stock equal to the number of shares of the Company's common
stock issuable upon the exercise of the Option.
9. No Limitation on Rights of the Company. The grant of this Option shall
not in any way affect the right or power of the Company to make adjustments,
reclassifications, or changes in its capital or business structure or to merge,
consolidate, dissolve, liquidate, sell, or transfer all or any part of its
business or assets.
10. Rights as a Shareholder. The Grantee shall have the rights of a
shareholder with respect to the Shares covered by the Option only upon becoming
the holder of record of those Shares.
11. Compliance with Applicable Law. Notwithstanding anything herein to the
contrary, the Company shall not be obligated to cause to be issued or delivered
any certificates for Shares pursuant to the exercise of the Option, unless and
until the Company is advised by its counsel that the issuance and delivery of
such certificates is in compliance with all applicable laws, regulations of
governmental authority, and the requirements of any exchange upon which Shares
are traded. Absent any agreement with the Company specifically providing for
such terms, the Company shall in no event be obligated to register any
securities pursuant to the Securities Act of 1933 (as now in effect or as
hereafter amended). The Company hereby agrees to cause the issuance and delivery
of such certificates to comply with any such law, regulation or requirement from
and after the date hereof.
12. No Obligation to Exercise Option. The granting of the Option shall
impose no obligation upon the Grantee to exercise the Option.
13. Agreement Not a Contract of Employment. This Agreement is not a
contract of employment, and the terms of the Grantee's Board membership or the
relationship of the Grantee with the Company or any Affiliate shall not be
affected in any way by this Agreement except as specifically provided herein.
The execution of this Agreement shall not be
3
<PAGE>
construed as conferring any legal rights upon the Grantee for a continuation as
a member of the Board or of any other relationship between the Grantee and the
Company or any Affiliate, nor shall it interfere with the right of shareholders
of the Company to remove the Grantee from the Board or the right of the Company
or any Affiliate to treat the Grantee without regard to the effect which that
treatment might have upon him as a Grantee.
14. Certain Definitions.
"Affiliate" shall have the meaning specified in 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.
"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,
Government Body or other entity.
15. Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally or sent by
certified, registered, or express mail, postage prepaid. Any such notice shall
be deemed given when so delivered personally or, if mailed, four days after the
date of deposit in the United States mails, to each party at its address set
forth above or to such other address as may be designated in a notice given in
accordance with this Section.
4
<PAGE>
16. Governing Law. Except to the extent preempted by Federal law, this
Agreement shall be construed and enforced in accordance with, and governed by,
the laws of the State of New York without regard to any rules regarding
conflicts of law.
5
<PAGE>
IN WITNESS WHEREOF, the Company and the Grantee have duly executed
this Stock Option Agreement as of the date first written above.
FINANCIAL PERFORMANCE CORPORATION
By: /s/
-------------------------------
Name:
Title:
/s/
------------------------------------
RONALD NASH
6
<PAGE>
EXHIBIT 8
STOCKHOLDERS AGREEMENT
DATED AS OF NOVEMBER 17, 1999
among
ROBERT S. TRUMP,
JEFFREY S. SILVERMAN,
RONALD NASH
and
FINANCIAL PERFORMANCE
CORPORATION
<PAGE>
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>
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
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(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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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>
(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
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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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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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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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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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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/
----------------------------------
Name:
Title:
/s/
----------------------------
Robert S. Trump
/s/
----------------------------
Jeffrey S. Silverman
/s/
----------------------------
Ronald Nash
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