1
EXHIBIT 10.2
STOCK PURCHASE AND SALE AGREEMENT
AMONG
FINANCIAL PERFORMANCE CORPORATION,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
AND
▇▇▇▇▇▇ ▇▇▇▇
Dated as of November 17, 1999
2
STOCK PURCHASE AND SALE AGREEMENT
STOCK PURCHASE AND SALE AGREEMENT, dated as of November 17,
1999 (this "Agreement"), among ▇▇▇▇▇▇ ▇▇▇▇ (the "Purchaser"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
("▇▇▇▇▇") and Financial Performance Corporation, a New York corporation (the
"Company").
WITNESSETH:
The Purchaser desires to acquire from ▇▇▇▇▇, and ▇▇▇▇▇ 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, ▇▇▇▇▇ is, selling, assigning and conveying the Shares to
the Purchaser, and the Purchaser is purchasing, acquiring and accepting from
▇▇▇▇▇, the Shares.
1.2 Grant of Stock Option. Contemporaneously with the purchase
and sale of the Shares hereunder, ▇▇▇▇▇ 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 ▇▇▇▇▇, beneficially and as of record.
1.3 Grant of Stock Option. Contemporaneously with the purchase
and sale of the Shares hereunder, ▇▇▇▇▇ 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 ▇▇▇▇▇, beneficially and as of record.
1.4 Grant of Stock Option. Contemporaneously with the purchase
and sale of the Shares hereunder, ▇▇▇▇▇ 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 ▇▇▇▇▇, beneficially and as of record (the First Stock Option,
the Second Stock Option and the Third Stock Option are hereinafter referred to
as the "Stock Options").
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2. Consideration. In full consideration for the Shares and the Stock
Options, the Purchaser is contemporaneously herewith paying to ▇▇▇▇▇ the
purchase price of $250,000, which shall be payable by bank check or by wire
transfer to an account designated by ▇▇▇▇▇.
3. Representations and Warranties of ▇▇▇▇▇. ▇▇▇▇▇ hereby represents and
warrants to the Purchaser as follows:
3.1 Authorization of Agreement. ▇▇▇▇▇ 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 ▇▇▇▇▇ 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 ▇▇▇▇▇. This Agreement and each of the
other Transaction Documents constitutes the legal, valid and binding obligations
of ▇▇▇▇▇, enforceable against ▇▇▇▇▇ 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 ▇▇▇▇▇ of this Agreement and the other Transaction Documents, the
consummation of the transactions contemplated hereby or thereby, and the
compliance by ▇▇▇▇▇ 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 ▇▇▇▇▇ is a party or by
which ▇▇▇▇▇ or his properties or assets are bound; (ii) constitute a violation
of any Law applicable to ▇▇▇▇▇; 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 ▇▇▇▇▇. 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
▇▇▇▇▇ in connection with the execution and delivery of this Agreement or the
other Transaction Documents, or the compliance by ▇▇▇▇▇, 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 ▇▇▇▇▇ is
a party providing for the issuance, sale or transfer of any shares of capital
stock or other equity securities of the Company or other securities convertible
into, exchangeable for or evidencing the right to subscribe for or purchase
shares of capital stock or other equity securities of the Company, other than
this Agreement, the Stockholders' Agreement, the Stock Option Agreements and the
Registration Rights Agreement
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referred to in Section 6.2 below. ▇▇▇▇▇ 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) ▇▇▇▇▇ 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. ▇▇▇▇▇ 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 ▇▇▇▇▇ of this Agreement and the other Transaction Documents, the
consummation of the transactions contemplated hereby or thereby, and the
compliance by ▇▇▇▇▇ 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
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(collectively, the "Company SEC Reports"). The Company SEC Reports (i) were
prepared in all 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, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇ and the Company as follows:
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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 ▇▇▇▇▇, 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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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 ▇▇▇▇▇ other than those expressly set forth
herein.
6. Additional Agreements and Covenants of ▇▇▇▇▇.
6.1 Transfer of Shares. ▇▇▇▇▇ 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 ▇▇▇▇▇ 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 ▇▇▇▇▇ 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 ▇▇▇▇▇ 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, ▇▇▇▇▇ 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 ▇▇▇▇▇ hereby transfers, sets over and assigns to ▇▇▇▇▇▇▇▇▇
all of Trump's right, title and interest, in and to, the Registration Rights
Agreement dated the date hereof among Financial Performance Corporation, ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, the Purchaser and ▇▇▇▇▇▇ ▇▇▇▇ 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.
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7.2 Certain Definitions.
"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):
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If to ▇▇▇▇▇, to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
c/o Trump Management, Inc.
▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇▇
Kaufman, Friedman, Plotnicki & Grun, LLP
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Purchaser, to:
▇▇▇▇▇▇ ▇▇▇▇
LTS Capital Partners
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company, to:
Financial Performance Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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With a copy to:
▇▇▇▇ Marks & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ____
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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 ▇▇▇▇▇ (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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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first written above.
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇
FINANCIAL PERFORMANCE CORPORATION
By:
-------------------------------
Name:
Title:
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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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SCHEDULE 3.3
to
Stock Purchase and Sale Agreement
None
- 13 -
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SCHEDULE 4.3
to
Stock Purchase and Sale Agreement
1. Restated and Amended Managing Directors Agreement dated November 16,
1999 between MKP and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇.
2. Restated and Amended Managing Directors Agreement dated November 16,
1999 between MKP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
3. First Amendment to Restated and Amended Shareholders Agreement by and
among MKP, Financial Performance Corporation, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ dated November 16, 1999.
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15
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
------ ---------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 200,000
2. Warrants dated September 15, 1996 (exercisable at $1.00/share until
9-15-2006)
Holder No. of Warrants
------ ---------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 200,000
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 200,000
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 200,000
▇▇▇▇▇▇▇ ▇▇▇▇ 50,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 50,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 25,000
3. Warrants dated September 16, 1996 (exercisable at $1.00/share until
9-15-2006)
Holder No. of Warrants
------ ---------------
▇▇▇▇ ▇▇▇▇▇ 5,000
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 5,000
▇▇▇▇▇ ▇▇▇▇▇▇ 5,000
▇▇▇▇▇▇ ▇▇▇▇▇ 5,000
4. Warrants dated December 1, 1996 (exercisable at $0.50/share until
11-30-1999)
Holder No. of Warrants
------ ---------------
▇▇▇ ▇▇▇▇▇▇ & Company 150,000
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16
5. Warrants dated December 29, 1997 (exercisable at $0.50/share until
11-30-1999)*
Holder No. of Warrants
------ ---------------
▇▇▇▇▇▇▇ ▇▇▇▇ 50,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 50,000
6. Warrants dated October 21, 1998 (exercisable at $0.50/share until
10-31-2001)*
Holder No. of Warrants
------ ---------------
▇▇▇▇▇▇▇ ▇▇▇▇ 100,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 100,000
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 200,000
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 50,000
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ 50,000
* Warrant expiration date extended until November 30, 2004.
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17
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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