1
Exhibit 12
AGREEMENT made as of the 11th day of January 2001, by and between
Financial Performance Corporation ("FPCX") and each of the individuals set forth
below (collectively, the "Shareholders").
RECITALS
A. FPCX presently contemplates entering into a certain Stock Purchase
Agreement to acquire all of the outstanding Capital Stock of Xxxxxx Brothers,
Inc. ("Xxxxxx Brothers"); and
B. A part of the consideration for such purchase of the shares of
Xxxxxx Brothers, as aforesaid, consists of Subordinated Convertible Term
Promissory Notes ("Promissory Notes") convertible into shares of common stock of
FPCX. The provisions for conversion of such Promissory Notes to common stock
require shareholder approval by the shareholders of FPCX; and
C. FPCX will issue shares of its Class A Convertible Preferred Stock
("Preferred Stock") prior to the acquisition of the shares of Xxxxxx Brothers to
persons unrelated to the shareholders of Xxxxxx Brothers. The provisions of the
Preferred Stock for conversion of such shares of common stock require
shareholder approval by the shareholders of FPCX; and
D. Each of the individuals below (except the Sellers) is a shareholder
of FPCX and holds the number of shares of common stock set forth opposite his
name. Upon consummation of the transactions contemplated by the Stock Purchase
Agreement, the Sellers will become shareholders of FPCX, holding the number of
shares of common stock set forth opposite their names. The aggregate
shareholdings of the undersigned Shareholders constitute in excess of 50% of the
presently issued and outstanding common stock of FPCX; and
E. Each of the individuals below (with the exception of the Sellers)
acknowledge it to be in their individual best interests for the Stock Purchase
Agreement and the transactions contemplated thereby to be undertaken. As a
condition to signing the Stock Purchase Agreement, and as an inducement for the
Sellers to sign the Stock Purchase Agreement, each of the individuals below
(with the exception of the Sellers) agree to sign this Agreement.
F. FPCX shall call a meeting of its shareholders to be held on or
before December 31, 2001 for the purpose of adopting resolutions authorizing the
issuance of common stock upon conversion of the Promissory Notes and Preferred
Stock into common stock and to
2
adopt such other resolutions that may be required to give effect to the
aforesaid (the "Resolutions"):
AGREEMENT
The parties hereto agree as follows:
1. FPCX will prepare and submit to its shareholders, as soon as
practicable following the Closing of the Stock Purchase Agreement, a proxy
statement, prepared in accordance with the rules and regulations of the
Securities and Exchange Commission, including, among other matters, a proposal
seeking shareholder approval of the conversion rights contained in the
Promissory Notes into common stock and the conversion rights of the Preferred
Stock into Common Stock (the "Proxy Statement"). The Board of Directors of FPCX
will recommend that the shareholders of FPCX vote in favor of the proposal. FPCX
will use its best efforts to obtain such shareholder approval. FPCX shall call a
meeting of its Shareholders to be held on or before December 31, 2001 for the
purposes set forth above in the Recitals.
2. Each of the undersigned Shareholders confirms and agrees to ratify
and to vote in favor of the adoption of the Resolutions more particularly
described in the Recitals above at a Shareholders Meeting of FPCX to be held on
or prior to December 31, 2001 and to take such other action to give effect to
the aforesaid Revolutions and to the Agreements set forth herein as may be
necessary, including but not limited to the appointment of Xxxxxxx X. Xxxxxxxxx,
Xxxxxx X. Xxxxxxxxx and Xxxxxxx X. Xxxxxx or either one of them as proxies to
take such action for the Shareholders at such meeting, all in accordance with
the Proxy Statement.
3. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original instrument and all of which together shall
constitute a single document. Signatures transmitted by electronic facsimile
shall be deemed to be original signatures.
4. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York, without regard to conflict of laws
principles.
5. This Agreement shall be binding on the undersigned Shareholders,
their heirs, successors and assigns.
6. Since the Sellers will be irreparably damaged if the provisions of
this Agreement above are not specifically enforced, the Sellers shall be
entitled to an injunction or any other appropriate decree of specific
performance (without the necessity of posting any bond or other security in
connection therewith) restraining any violation or nonfulfillment of the
covenants
3
above. Such remedies shall not be exclusive and shall be in addition to any
other remedy, at law or in equity, which the Sellers may have for any breach or
threatened breach of the provisions hereof.
IN WITNESS WHEREOF, we have hereunto signed our hands and seals as
of the day and year first above written.
Financial Performance Corporation
By: /s/
-----------------------------------
Duly Authorized
NAME NO. OF SHARES SIGNATURES
Xxxxxx Xxxxx 4,506,422 /s/
----------------------------
Xxxxxxx X. Xxxxxxxxx 681,000 /s/
----------------------------
Xxxxxx Xxxx 623,000 /s/
----------------------------
Xxxxxxx Xxxxxx III 500,000 /s/
----------------------------
Xxxxxxxx X. XxXxxxxx 500,000 /s/
----------------------------
Xxxxx X. Xxxxxx 756,250 /s/
----------------------------
Xxxxxx X. Xxxxxx 756,250 /s/
----------------------------
