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STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT (the "Agreement"), dated as of April 26, 2000
between Financial Performance Corporation, a New York corporation (the
"Company"), having an address at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000 and Xxxxxx X. Xxxxxxxxx, residing at 00 Xxxxxxxxx Xxxx Xxxx, Xxxxxx,
Xxxxxxxxxxx 00000 ("Grantee").
In consideration of Grantee's employment by the Company in accordance
with a certain employment agreement, dated as of April 25, 2000, between the
Company and the Grantee, 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 $6.38 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 April 25, 2000.
4. Term and Vesting of Option. Subject to the terms of this
Agreement, the Option shall expire five years from the date hereof and shall
vest and be exercisable as follows: all or a portion of 150,000 Shares (in whole
shares) of the Option from April 27, 2001 to the expiration of the Option; and,
all or any portion of 150,000 Shares (in whole shares) of the Option from April
27, 2002 to the expiration of the Option; provided, however, that any portion of
the Option shall be exercisable in denominations of 25,000 Shares or more.
5. Exercise of Options. The Option may be exercised by written notice
to the Chief Executive Officer of the Company at the Company's 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
Grantee or his "Permitted Assigns," in accordance with Paragraph 6 below. 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 or cash equivalents. The Grantee shall have the right to instruct the
Company to
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withhold a portion of the Option shares to meet the obligations for
tax withholding upon exercise of the Option or pay cash to satisfy such tax
withholding obligations. 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 and shall be delivered, as provided above,
to or upon the written order of the person or persons exercising the Option 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 to a member of the immediate family of Grantee or to
trustees of a trust, the beneficiaries of which are members of the Grantee's
immediate family, or 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. Termination of Employment. In the event the employment of the
Grantee with the Company is terminated by the Company for Cause (as such term is
defined in the Employment Letter, dated April 25, 2000, between the Company and
the Grantee), all rights to purchase shares pursuant to the Option shall
forthwith cease and terminate. In the event the employment of the Grantee with
the Company is terminated by the Company without Cause, the rights to exercise
the Option shall accelerate and the Grantee shall have the right for a period of
three months after the termination of his employment, to exercise all of the
shares subject to the Option. In the event the employment of the Grantee with
the Company is terminated by the Grantee, all rights to purchase shares pursuant
to the Option shall forthwith cease and terminate, except that for a period of
three months after the termination of his employment, the Grantee shall have the
right to exercise the Option with respect to those shares which he had a right
to purchase as of the date of termination. If such termination results from
physical disability, then the right to exercise the Option shall accelerate and
the Grantee shall have the right to exercise the Option in full for a period of
twelve (12) months after the date of the date of his termination of employment
or until the expiration date of the Option, if sooner. Notwithstanding anything
contained herein to the contrary, if the Grantee terminates his employment as a
result of a Change in Control of the Company (as defined below), all options not
otherwise vested pursuant to this agreement, shall immediately vest and be
exercisable upon such termination. Change in Control of the Company shall occur
at any time that Xxxxxxx X. Xxxxxxxxx shall no longer be Chairman of the Company
and the majority of the members
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of the Board of Directors shall consist of individuals who were not directors of
the Company on the first annual meeting of shareholders subsequent to the date
hereof.
8. Death of Grantee. In the event of the death of the Grantee while
he is in the employ of the Company, the Option or unexercised portion thereof
shall be exercisable in full at any time prior to the expiration date of the
Option, in accordance with the terms of the Option, but only by the person or
persons to whom such Grantee's rights under the Option shall pass by the
Grantee's will or by laws of descent and distribution of the state of his
domicile at the time of his death.
9. Adjustments. In the event of any merger, reorganization,
consolidation, sale of substantially all assets, recapitalization,
reclassification, Common Stock dividend (in excess of 5% thereon), 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.
10. 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.
11. 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.
12. No Obligation to Exercise Option. The granting of the Option shall
impose no obligation upon the Grantee to exercise the Option.
13. 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/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chief Executive Officer
/s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxxx
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FINANCIAL PERFORMANCE CORPORATION
000 XXXXX XXXXXX
XXXXXXXXX XXXXX
XXX XXXX, XX 00000
April 25, 2000
Xx. Xxxxxx X. Xxxxxxxxx
00 Xxxxxxxxx Xxxx Xxxx
Xxxxxx, XX 00000
Dear Xx. Xxxxxxxxx:
We are pleased to extend to you an offer to be employed as a principal
executive officer of Financial Performance Corporation (the "Company") upon the
terms and conditions herein set forth. This offer shall remain open until May 1,
2000 and is contingent upon your acceptance of this offer by returning a signed
copy of this letter to us no later than May 1, 2000.
1. We have agreed to employ you as an Executive Vice President of the
Company and you have agreed to serve as such for a term commencing on May 15,
2000 (the "Effective Date") and ending on May 14, 2002, unless sooner terminated
or extended as herein provided (the "Term"). The Term shall be automatically
extended by one year, unless either party provides the other with written
notice, not later than ninety days prior to the expiration of the Term, of its
election not to extend the Term. Thereafter, the Term shall be automatically
extended by additional one year periods, unless either party provides the other
with written notice, not later than ninety days prior to the expiration of the
Term, as extended, of its election not to extend the Term.
2. As Executive Vice President of the Company, you shall perform such
duties as shall be requested of you from time to time by the Board of Directors.
You shall be nominated, and you agree to serve, for no additional compensation,
as a member of the Board of Directors. You further agree to serve as an officer
or director of any of the current or future subsidiaries of the Company, as the
Board of Directors shall request, without additional compensation.
3. You shall receive a salary of $250,000 per year to be paid in
accordance with the Company's normal payroll practices. In addition, you shall
be eligible to receive an annual cash bonus based upon your performance and the
performance of the Company, as determined by the
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Xx. Xxxxxx Xxxxxxxxx
April 25, 2000
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Board of Directors in their sole discretion; provided, however, that you shall
receive a guaranteed minimum bonus of $150,000 for each year of the Term payable
in accordance with the Company's policies. You may also, at the discretion of
the Board of Directors, participate in any of the Company's incentive
compensation plans and to receive bonus awards or commissions based on such
plans subject to your attainment of performance goals set by the Board of
Directors; provided, however, during the Term, you shall receive incentive
performance commissions, payable at the Company's discretion in either cash or
common stock of the Company (provided, however, that in the event the Company is
in a cash positive position, up to $250,000 shall be payable, at your
discretion, in cash), upon the closing of any equity or debt (not including debt
refinancings) raised by the Company or any of its subsidiaries, assuming that
you participated in structuring and closing the transaction, determined in
accordance with the following formula: between $2.5 million and $5 million, a
total of $100,000; and, above $5 million, 5% of the total equity or debt raised,
net of reasonable and customary expenses. Further, during the Term, the Company
shall provide you with an automobile, the exact model of which shall be either a
Mercedes E class, BMW 5 Series or equivalent model mutually agreed to between
you and the Company, at the Company's full cost and expense. We also agree, at
your option, to either reimburse you for any expenses incurred by you for
payment of COBRA, term life and disability premiums during the Term, or provide
you with healthcare, term life and disability benefits as provided to other
senior executives of the Company.
4. During each year of the Term, you shall be entitled to a total of
four weeks vacation taken in accordance with the Company's policies.
5. The Company shall pay for or reimburse you for all reasonable
expenses actually incurred by or paid by you during the Term in the performance
of your services under this agreement, upon presentation of expense statements
or vouchers or such other supporting information as the Company customarily may
require of its officers.
6. In consideration of your signing and the delivery of this
Agreement, we have agreed to grant to you an initial bonus consisting of an
option to purchase 100,000 shares of the Company's Common Stock, in accordance
with the Form of Option attached hereto as Exhibit A.
7. As further consideration, we have agreed to grant to you an option
to purchase 300,000 shares of the Company's Common Stock, in accordance with the
Form of Option attached hereto as Exhibit B.
8. During the time that you are employed by the Company and for a
period of twenty-four months thereafter, you agree that you will not, in any
manner, be engaged directly or indirectly, within the United States of America,
its territories and possessions (or for such lesser period of time or for such
lesser geographical areas as may be determined by a Court of law or equity to be
a reasonable limitation on your competitive activities) as an employee, partner,
officer, director,
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Xx. Xxxxxx Xxxxxxxxx
April 25, 2000
Page 3
representative, consultant, agent or stockholder of any company in direct
competition with the Company or any of its subsidiaries; provided, however,
nothing shall prohibit you from owning up to 5% of the outstanding securities of
any such company; and, provided further, however, that nothing herein shall be
deemed to prohibit you from being employed or working in the financial services
business.
9. (a) You agree that all information pertaining to the business of
the Company, its subsidiaries and affiliates, and their respective officers,
directors, employees, agents, shareholders and customers (excluding publicly
available information) constitutes a valuable and confidential asset of the
Company. Such information includes, without limitation, information related to
trade secrets, business plans, product designs, statistical data and
compilations, sourcing contacts and financial information of the Company. You
shall hold all such information in trust and confidence for the Company, its
subsidiaries and affiliates, and shall not use or disclose any such information
to any person, firm, corporation or other entity, except as may be required
pursuant to the order of a court of competent jurisdiction, and shall be liable
for damages incurred by the Company as a result of disclosure of such
information by you for any purpose other than the Company's business, either
during your employment or after your employment terminates for whatever reason.
(b) During the Term of this Agreement and continuing for a period
of twenty-four months after the expiration or termination of this Agreement and
the Term, you agree that you shall not, directly or indirectly, individually or
on behalf of other persons, solicit, aid or induce any employee of the Company,
its subsidiaries or affiliates to leave their employment with the Company or
such subsidiaries or affiliates in order to accept employment with or render
services to or with another person, firm, corporation or other entity, or assist
or aid any other person, firm, corporation or entity in identifying or hiring
such employees.
10. Subject to the other terms and conditions herein, your employment
under this Agreement shall terminate upon the expiration of the Term or, if
earlier, upon the earliest to occur of any of the following events or in
accordance with the other provisions of this paragraph:
(a) If, in the written opinion of a qualified physician selected
by the Company and reasonably approved by you, you shall become unable to
perform your duties hereunder due to physical or mental illness, and you have
failed, because of such illness, to render, for 120 days out of any 180-day
period, services of the character contemplated by this Agreement, the Company
may terminate your employment upon written notice to you. In such event or in
the event of your death during the Term, you shall be entitled to receive your
base salary at the rate provided in paragraph 3 to the end of the calendar month
in which termination occurs and the minimum annual bonus payable to you in
accordance with paragraph 3 for the year of the Term in which termination
occurs.
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Xx. Xxxxxx Xxxxxxxxx
April 25, 2000
Page 4
(b) The Company may terminate your employment at any time for
Cause, upon written notice to you. As used in this Agreement, "Cause" shall mean
(i) the willful failure by you to substantially perform your duties hereunder
(other than any such failure resulting from your incapacity due to physical or
mental illness); (ii) any act of fraud, misappropriation, dishonesty,
embezzlement or similar conduct against the Company; (iii) conviction of a
felony or any crime involving moral turpitude; or (iv) gross negligence by you
in the performance of your duties hereunder.
If your employment is terminated by the Company for any reason other than
as set forth in paragraphs 10(a) and (b) above, the Company shall continue to
pay to you the salary, the minimum guaranteed bonus and healthcare, term life,
disability and automobile benefits that you would have otherwise received during
the Term had your employment not otherwise been terminated. If you terminate
your employment as a result of a Change in Control of the Company (as defined
below), the Company shall pay to you, in one lump sum payment within 30 days
after the Change of Control, the salary and the minimum guaranteed bonus,
together with compensation for lost benefits (which are limited to healthcare,
term life, disability and automobile) through the remainder of the Term, that
you would have otherwise received during the Term had your employment not
otherwise been terminated and, in addition, all options not otherwise vested
pursuant to the Form of Option attached hereto as Exhibit B, shall immediately
vest and be exercisable upon such termination. Change in Control of the Company
shall occur at any time that Xxxxxxx X. Xxxxxxxxx shall no longer be Chairman of
the Company and the majority of the members of the Board of Directors shall
consist of individuals who were not directors of the Company on the first annual
meeting of shareholders subsequent to the date hereof.
11. By accepting the terms contained herein, you acknowledge and
represent that you are not bound by any restriction, covenant or other agreement
that would prohibit or otherwise restrict your employment with the Company.
12. This Agreement may be modified only by an instrument in writing
signed by each of us. This Agreement and your employment hereunder shall be
construed in accordance with the laws of the State of New York, applicable to
contracts to be performed entirely within New York State.
13. Any notice to be given hereunder shall be in writing and delivered
personally or by certified mail, postage prepaid, return receipt requested,
addressed to the appropriate party at the address indicated above.
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Xx. Xxxxxx Xxxxxxxxx
April 25, 2000
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Kindly sign a copy of this letter indicating your agreement with respect
hereto.
Very truly yours,
FINANCIAL PERFORMANCE CORPORATION
By: /s/
---------------------------------
ACCEPTED AND AGREED TO:
/s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Xxxxxx X. Xxxxxxxxx
Date: April 26, 2000
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