Exhibit 4.3
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT (the "Agreement"), dated as of July 3, 2001 between
Financial Performance Corporation, a New York corporation (the "Company"),
having an address at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and Xxxxx Benz,
having an address at 000 Xxxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 (the
"Grantee").
Reference is made to the Consulting Agreement between the Company and the
Grantee, dated as of the date hereof, pursuant to which the Grantee has agreed
to provide certain management, strategic planning and marketing services to the
Company. In consideration thereof, the Company hereby grants to the Grantee, a
nonqualified stock option (the "Option") to purchase from time to time all or a
portion of an aggregate of 300,000 shares of the Company's common stock, $.01
par value per share (the "Shares"), subject to and upon the terms set forth
herein. 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 300,000
Shares.
3. Exercise Price. The exercise price shall be $2.03 per share, which
amount equals the closing sale price of the Company's common stock as quoted on
the NASDAQ SmallCap Market System as of the close of business on July 3, 2001.
4. Term of Option. The Option shall expire three 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; provided,
however, that if the Option is partially exercised, it shall be done so in
denominations of 50,000 Shares or more.
5. Exercise of Options. The Option may be exercised by written notice to
the Company at its principal office. Such notice shall state the election to
exercise the Option and the number of shares in respect of which it shall be
exercised, and shall be signed by the person (including, for purposes of this
Agreement, any entity) exercising the Option. In the event that the Option shall
be exercised pursuant to paragraph 6 hereof by any person other than the
Grantee, such notice shall be accompanied by appropriate proof of the right of
such person to exercise the Option, as may be reasonably required by the Company
and its counsel. The notice of exercise shall be accompanied by payment of the
full purchase price of the Shares being purchased in cash. The certificate or
certificates for the shares as to which the Option shall have been so exercised
shall be registered in
the name of the Grantee or his permitted assigns in accordance with paragraph 6
below and shall be delivered, as provided above, to or upon the written order of
the Grantee or such permitted assigns as soon as practicable (except as
otherwise provided below in this paragraph 5) after the due and proper exercise
of the Option. The holder of the Option shall not have any rights of a
stockholder with respect to the shares covered by the Option unless and until
the certificate or certificates for such shares shall have been issued and
delivered. It is expressly understood that, notwithstanding anything contained
in this Agreement to the contrary, (1) the time for the delivery of the
certificate or certificates of Common Stock may be postponed by the Company for
such period as may be required by the Company to comply with any listing
requirements of any national securities exchange or to comply with any
applicable State or Federal law, and (2) the Company shall not be obligated to
sell, issue or deliver any shares as to which the option or any part thereof
shall have been exercised unless such shares are at that time effectively
registered or exempt from registration under the Securities Act of 1933, as
amended. All shares that shall be purchased upon the exercise of the Option as
provided herein shall be fully paid and non-assessable. 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.
6. Nontransferability. The Option shall not be assignable or transferable
other than by will or the laws of descent and distribution. Any attempted
assignment, transfer, pledge, hypothecation or other disposition of the Option
contrary to the provisions hereof shall be null and void and without effect.
7. Adjustments. In the event of any merger, reorganization, consolidation,
sale of substantially all assets, recapitalization, reclassification, Common
Stock dividend, Common Stock split, spin-off, split-up, split-off, distribution
of assets or other change in corporate structure affecting the Common Stock
after the date hereof, an appropriate substitution or adjustment shall be made
in the number of shares subject to the Option and to the exercise price;
provided, however, that such adjustment shall not increase the aggregate value
of the Option, no fractional shares shall be issued, and the aggregate exercise
price shall be appropriately reduced on account of any fractional shares.
Without limiting the foregoing, 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. 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.
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9. 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.
10. No Obligation to Exercise Option. The granting of the Option shall
impose no obligation upon the Grantee to exercise the Option.
11. 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.
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IN WITNESS WHEREOF, the Company and the Grantee have duly executed
this Stock Option Agreement as of the date first above written.
FINANCIAL PERFORMANCE CORPORATION
By: /s/
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Name:
Title:
/s/
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