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EXHIBIT 10.4
OPTION AGREEMENT
OPTION AGREEMENT, dated November 17, 1999 (this "Agreement"), by and
between Xxxxxxx X. Xxxxxxxxx (the "Optionholder") and Xxxxxx X. Xxxxx (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
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such fifteen business day period due to any law or regulation, the date for the
closing of such 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 Xxxxx, 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 Xxxxx in a brokerage account,
Xxxxx 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 Xxxxx and shall take reasonable
actions requested by Xxxxx 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
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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 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
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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.
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.
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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
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.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first written above.
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Xxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxxxxxx
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