WARRANT AGREEMENT
THIS AGREEMENT, made as of the 16th day of September 1996, by and between
Financial Performance Corporation, a New York corporation having an address at
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (hereinafter referred to as the
"Corporation") and the various individuals and entities set forth on Schedule I
annexed hereto and made a part hereof (each of such parties is hereinafter
referred to as "Warrant Holder").
W I T N E S S E T H:
Whereas, the Corporation has determined to issue and deliver to Warrant Holder
warrants (the "Warrants") to purchase shares of the Corporation's common stock,
par value $0.01 per share, (CUSIP No. 317630 30 9) in the amount set forth for
each Warrant Holder in Schedule I (the "Shares");
Whereas, the Corporation desires to provide for the form and provisions of the
Warrants, the terms upon which they will be issued and may be exercised, and the
respective rights, limitations of rights and immunities of the Corporation and
the Warrant Holder;
Whereas, the Corporation desires to make the Warrants, when executed on behalf
of the Corporation, the valid, binding and legal obligation of the Corporation,
and has done and performed all acts and things necessary to make the Warrants
the valid, binding and legal obligations of the Corporation; and
Whereas, the Corporation desires to act on its own behalf in connection with the
issuance, registration, transfer and exchange of the Warrants, the issuance of
certificates representing the Warrants and the exercise of the Warrants, except
to the extent that the Corporation's transfer agent may be required to issue the
Shares.
Now, therefore, in consideration of the premises, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Corporation and Warrant Holder agree as follows:
1. Issuance of Warrants. The Corporation shall issue to Warrant Holder the
Warrants evidenced by a Warrant Certificate which shall be dated as of September
16, 1996 and shall evidence the right of the Warrant Holder to purchase the
Shares. For purposes of this Agreement, "Common Stock" of the Corporation shall
be defined as "Common Stock" and shall mean any and all shares of common stock
of the Corporation, whether now or hereafter authorized or issued, shares issued
by way of dividend or upon an increase, reduction, substitution or
reclassification of common stock, and upon any merger, consolidation or
reorganization of the Corporation and by the Secretary of the Corporation. Each
Warrant shall be duly executed on behalf of the Corporation by the
President or a Vice President of the Corporation and by the Secretary or
Assistant Secretary of the Corporation. If any officer whose signature has been
placed upon any of the Warrants ceases to be that officer before any of the
Warrants are issued, the Warrants may be issued with the same effect as if the
officer had not ceased to be that officer on the date of issuance.
2. Warrant Price and Duration of the Warrants. The Warrants may be exercised
from time to time and at any time, in whole or in part, from and after the date
of issuance through September 15, 2006 ("Warrant Expiration Date"), except that
if notice has been given as provided in subsection 5(a) below in connection with
the liquidation, dissolution or winding up of the Corporation, the right to
exercise the Warrants shall expire on the date specified in such notice as the
record date for determining holders of stock of the Corporation entitled to
receive any distribution upon the liquidation, dissolution or winding up of the
Corporation. The Warrants shall entitle the Warrant Holder to purchase the
Shares at the price of one ($1.00) dollar per share (the "Warrant Price"). Each
of the Warrants shall entitle the Warrant Holder to purchase one of the Shares
at the Warrant Price, subject to adjustment as set forth in Section 4 below.
3. Exercise of Warrants.
(a) The Warrants may be exercised by surrendering the Warrants at the office of
the Corporation, and by delivering to the Corporation a duly completed and
executed exercise form substantially in the form attached to Warrant, together
with the Warrant Price for each full share of Common Stock as to which the
Warrants are exercised. The Warrant Price shall be paid in cash or by certified
or official bank check payable to the order of the Corporation.
(b) Upon the exercise of any of the Warrants, the Corporation shall instruct the
Corporation's transfer agent to issue and deliver to the Warrant Holder a
certificate or certificates for the number of full shares of Common Stock to
which the Warrant Holder is entitled, registered in the name or names specified
by the Warrant Holder, and cash with respect to any remaining fractional
interest in a share as set forth in subsection 3(c) below. If the Warrants are
not exercised in full (except with respect to a remaining fraction of a share)
the Corporation shall also issue and deliver new Warrants for the number of
shares (including fractional shares) as to which the Warrants have not been
exercised.
(c) The Corporation shall not be required to issue fractional shares upon the
exercise of the Warrants. If the Warrant Holder exercises the purchase rights
under the Warrants in a manner that leaves the right to purchase a fraction of a
share unexercised, the Corporation shall purchase the fractional interest for an
amount in cash equal to the then current market value of the fractional
interest, computed on the basis of the average closing bid and asked prices of
its shares of Common Stock on the date of exercise as furnished to the
Corporation by any member or member firm of a registered national
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securities exchange or, if the Common Stock is not then being publicly traded,
on another reasonable basis determined by the Corporation.
(d) All of the Shares issued upon the exercise of the Warrants shall be duly and
validly issued, fully paid and nonassessable and the Corporation shall pay all
documentary, stamp or other taxes and governmental charges in connection with
the issuance of the Warrants and the issuance or delivery of any Shares upon
exercise of the Warrants. In addition, upon issuance, the Shares shall be free
and clear of any and all liens, encumbrances, adverse interests, claims,
charges, levies, restrictions, agreements and taxes of any nature whatsoever
except only for applicable restrictions under state and federal securities laws
with regard to the transfer of the Warrants and the Shares.
(e) Each person in whose name any certificate or certificates for shares of
Common Stock is issued shall for all purposes be deemed to have become the
holder of record of such shares on the date on which the Warrants were
surrendered in connection with the exercise of the Warrants and payment of the
Warrant Price was tendered, irrespective of the date of delivery of the
certificate or certificates, except that if the date of surrender and payment is
a date when the stock transfer books of the Corporation are closed, a person
shall be deemed to have become the holder of the Shares at the close of business
on the immediately preceding date on which the stock transfer books are open.
4. Adjustments in Warrant Price and Shares.
(a) Change in Class of Shares. If, at any time or from time to time, the
Corporation, by stock dividend, stock split, subdivision, reverse split,
consolidation, reorganization, reclassification of shares, or otherwise, changes
as a whole its outstanding Common Stock into a different class of shares, the
class of shares into which the Common Stock has been changed shall replace the
Common Stock for the purposes of the Warrants so that the Warrant Holder shall
be entitled to receive, and shall receive upon the exercise of the Warrants,
shares of the class of stock into which the Common Stock has been changed.
(b) Stock Dividends and Split-ups. If at any time or from time to time, the
number of outstanding shares of Common Stock of the Corporation is increased by
a stock dividend payable in shares of Common Stock or by a stock split or
subdivision of Common Stock, or otherwise, then, on the day following the date
fixed for the determination of holders of Common Stock entitled to receive the
stock dividend or split-up, the number of Shares issuable on the exercise of
each Warrant shall be increased in proportion to the increase in outstanding
shares of Common Stock and the then applicable Warrant Price shall be
correspondingly decreased.
(c) Aggregation of Shares. If at any time or from time to time, the number of
outstanding shares of Common Stock of the Corporation is decreased by a reverse
split, consolidation or reclassification of shares of Common Stock, or
otherwise, then, after the
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effective date of the reverse split, consolidation or reclassification, the
number of Shares issuable on exercise of each Warrant shall be decreased in
proportion to the decrease in outstanding shares of Common Stock and the then
applicable Warrant Price shall be correspondingly increased.
(d) Special Stock Dividends. If at any time or from time to time, shares of any
class of stock of the Corporation (other than Common Stock) are issued by way of
a stock dividend on outstanding Common Stock, then, commencing with the day
following the date fixed for the determination of holders of Common Stock
entitled to receive the stock dividend, in addition to any shares of Common
Stock receivable upon exercise of the Warrants, the Warrant Holder shall upon
exercise of the Warrants be entitled to receive, as nearly as practicable, the
same number of shares of dividend stock, plus any shares issued upon any
subsequent change, replacement, subdivision, or combination of the stock
dividend, to which the Warrant Holder would have been entitled if the Warrants
would have been exercised immediately prior to the stock dividend. No adjustment
in the Warrant Price shall be made by virtue of the happening of any event
specified in this Subsection 4(d).
(e) Merger, Consolidation and Sale. If at any time, a consolidation or merger of
the Corporation with or into another corporation (other than a consolidation or
merger in which the Corporation is the continuing corporation and which does not
result in any reclassification or change of outstanding shares issuable upon
exercise of the Warrants), or sale or transfer of all or substantially all of
its assets to another corporation, is effective, then, as a condition of the
consolidation, merger or sale, the holder(s) of the Warrants then outstanding
shall have the right to exercise the Warrants for the kind and amount of shares
and other securities and property receivable upon the consolidation, merger,
sale or transfer by a holder of the number of shares of Common Stock which might
have been purchased upon exercise of the Warrants immediately prior to the
consolidation, merger, sale or transfer and provision shall be made whereby the
Warrant Holder after the transaction shall have the right to purchase and
receive, upon the basis and upon the terms and conditions specified in the
Warrants, the same number of shares purchasable immediately prior to the
transaction upon the exercise of the rights represented by the Warrants. The
Corporation shall not effect any consolidation, merger, transfer or sale unless,
prior to the consummation of the transaction, the successor corporation (if
other than the Corporation) resulting from the consolidation or merger, or the
corporation purchasing the assets of the Corporation, assumes by written
instrument executed and delivered to the Warrant Agent and the Warrant Holder
the obligation to deliver to the Warrant Holder the shares of stock in
accordance with the preceding sentence.
(f) Pre-emptive or Other Rights. If at any time prior to the exercise of all of
the Warrants, the Corporation offers any shares of its Common Stock to the
holders of its Common Stock as a class for subscription in accordance with the
preemptive or other rights of those stockholders, the Warrant Holder shall be
entitled to subscribe for the
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same number of shares of Common Stock as the Warrant Holder would have been
entitled to purchase, upon exercising the Warrants and becoming a stockholder of
the Corporation, immediately prior to the record or effective date with respect
to the preemptive or other rights.
(g) Distribution of Assets. If at any time after the date of this Agreement, the
Corporation makes any distribution of its assets upon or with respect to its
shares of Common Stock as a liquidating or partial liquidating dividend (other
than upon a liquidation, dissolution or winding up of the Corporation as
provided for in Subsection 5(a) below, or other than as a cash dividend payable
out of earnings or any surplus legally available for dividends), the holder(s)
of the Warrants then outstanding shall, upon exercise of the Warrants after the
record date of distribution or in the absence of a record date, after the date
of distribution, receive, in addition to the shares subscribed for, the amount
of the assets or a sum equal to the value of the assets at the time of the
distribution, which would have been distributed to the holder if the Warrants
had been exercised immediately prior to the record date for the distribution or,
in the absence of a record date, immediately prior to the date of the
distribution.
(h) Other Change. If the Corporation takes any action with respect to its shares
of Common Stock, other than as set forth in this Agreement, which would
adversely affect the rights of the holder(s) of the Warrants, then the Shares
shall be changed in a manner which is equitable under the circumstances. Unless
the context otherwise indicates, all references to shares of Common Stock in
this Agreement and the Warrants shall, in the event of a change under this
Section 4, be deemed to refer to any other securities or property included in
the Common Stock pursuant to the change.
(i) Form of Warrants. The form of the Warrants need not be changed due to any
change pursuant to this Section 4, and warrants issued after a change may state
the same Warrant Price and the same number of shares as is stated in the
Warrants initially issued pursuant hereto.
(j) Notice of Adjustment. Upon any adjustment of the Warrant Price or number of
shares issuable on exercise of the Warrants pursuant to the provisions of this
Section 4, then and in each case, the Corporation shall give prompt written
notice of adjustment to the Warrant Holder by certified mail, return receipt
requested at the address registered with the Corporation. The notice shall set
forth in reasonable detail the facts requiring the change, the Warrant Price
resulting from the adjustment and the increase or decrease if any, in the number
of Shares as so changed, setting forth in reasonable detail the method of
calculation and the facts upon which the calculation is based. Without limiting
the foregoing notice requirement, in case at any time:
(i) the Corporation pays any dividends payable in stock upon its Common
Stock or makes any distributions (other than regular cash dividends) to the
holders of its Common Stock;
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(ii) the Corporation offers for subscription pro-rata to the holders of
its Common Stock any additional shares of stock of any class or any other
rights; or
(iii) there is a capital reorganization, a reclassification of the capital
stock of the Corporation, or a consolidation or merger of the Corporation with,
or a sale of all or substantially all of its assets to another corporation;
then, in any or more of these cases, the Corporation shall give written notice
to the Warrant Holder in the manner set forth above of the date on which (i) the
books of the Corporation close or a record is taken for the dividend,
distribution or subscription rights, or (ii) the reorganization,
reclassification, consolidation, merger or sale takes place. The notice also
shall specify the date as of which the holders of the Common Stock of record
shall participate in dividend distribution or subscription rights, or shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon the reorganization, reclassification, consolidation, merger or
sale. The notice shall be given at least 30 days prior to the transaction in
question and not less than 20 days prior to the record date or the date on which
the Company's transfer books are closed with respect to the transaction.
5. Provisions for Protection of Warrant Holders.
(a) In the event of the liquidation, dissolution or winding up of the
Corporation, a notice shall be filed by the Corporation with the Warrant Holder
at least 60 days before the record date (which shall be specified in the notice)
for determining holders of the shares of Common Stock entitled to receive any
distribution upon the liquidation, dissolution or winding up. The notice must
contain: (i) the date on which the transaction is to take place; (ii) the record
date (which must be at least 60 days after the giving of the notice) as of which
holders of Common Stock entitled to receive distributions upon the liquidation,
dissolution or winding up shall be determined; (iii) a brief description of the
transaction; (iv) a brief description of the distributions, if any, to be made
to holders of the Common Stock as a result of the transaction; and (v) an
estimate of the fair market value of the distributions. The notice shall also
specify the date on which the right to exercise the Warrants shall expire. A
copy of the notice shall be mailed to Warrant Holder and to each other holder of
Warrants at the address(es) registered with the Corporation not more than 30 and
not less than 20 days before the record date.
(b) The Corporation shall at all times reserve and keep available out of its
authorized but unissued shares of Common Stock the number of shares that are
from time to time sufficient to permit the exercise of all outstanding Warrants
and the issuance of the Shares. If at any time the number of authorized but
unissued shares of Common Stock is not sufficient for these purposes, the
Corporation shall take all action that may be necessary to increase its
authorized but unissued shares to the number of shares sufficient for these
purposes.
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(c) The Warrants may not be redeemed by the Corporation at any time.
(d) If any of the Warrant Certificate(s) becomes lost, stolen, mutilated or
destroyed, the Corporation shall issue a new Warrant Certificate(s) of like
denomination, tenor and date as the Warrant Certificate(s) lost, stolen,
mutilated or destroyed. Any new Warrant shall constitute an original contractual
obligation of the Corporation, regardless of whether the allegedly lost, stolen,
mutilated or destroyed Warrant Certificate(s) is (are) at any time enforceable
by anyone.
(e) All rights of action are vested in the Warrant Holder and all other
holder(s) of the Warrants. Any holder of any Warrant may, in the holder's own
behalf and for the holder's own benefit, enforce, and may institute and maintain
any suit, action or proceeding against the Corporation suitable to enforce, the
right to exercise the Warrant for the purchase of Common Stock, and for any
other purpose in connection with the Warrants.
6. Representations of the Corporation.
The Corporation represents, warrants and covenants to the Warrant Holder as
follows:
(a) All shares of Common Stock that may be issued upon the exercise of the
Warrants shall, upon issuance, be duly and validly issued, fully paid and
nonassessable, and free from all liens, encumbrances, adverse interests, claims,
charges, levies, restrictions, agreements and taxes of any nature whatsoever
with respect to the purchase and issuance of the Shares except only for
applicable restrictions under state and federal securities laws with regard to
the transferability thereof. The Corporation has done and performed all acts and
things necessary to make the Warrants the valid, binding and legal obligations
of the Corporation and the Warrants are the valid, binding and legal obligations
of the Corporation;
(b) The Corporation is a corporation duly organized and validly existing under
the laws of the State of New York, has all requisite corporate power and
authority to own, operate and carry on its business and to enter into this
Agreement and to perform all of its obligations hereunder and is duly qualified
and in good standing in the State of New York;
(c) The Corporation has obtained all necessary authorizations and approvals from
its Board of Directors required for the execution and delivery of this Agreement
and all collateral documents arising out of or relating to this transaction.
This Agreement has been duly executed and delivered by the Corporation and
constitutes the legal, valid and binding obligation of the Corporation
enforceable against the Corporation in accordance with its terms (except as may
be limited by applicable bankruptcy and insolvency laws);
(d) Neither the execution and delivery of this Agreement nor any of the other
instruments or documents contemplated hereby, nor the issuance of the Shares or
the
7
Warrants, nor the incurrence of the obligations herein set forth (i) will result
in a violation of, or constitute a default under, the certificate of
incorporation or by-laws of the Corporation, or any material obligations,
agreements, covenants or conditions contained in any bond, debenture, mortgage,
loan agreement, lease, joint venture or other agreement or instrument, mortgage,
loan agreement, lease, joint venture or other agreement or instrument to which
the Corporation is a party or by which it or any of its properties may be bound,
or (ii) is in violation of any order, rule, regulation, writ, injunction, or
decree of any domestic government, governmental instrumentality or court;
(e) The Corporation has complied with and shall comply with all applicable
federal, state and local laws, ordinances, rules, regulations, orders and
standards applicable to the issuance of the Warrants. The transactions
underlying or giving rise to the Warrants and the issuance of the Shares upon
the exercise thereof shall not violate any federal, state or local law, rule or
regulation.
7. Transfer and Ownership of Warrants.
(a) Title to the Warrants shall pass by delivery in the same manner as a
negotiable instrument payable to bearer, accompanied by a transfer form
substantially in the form annexed to the Warrant. Each holder of the Warrants
may be treated by the Corporation and the Corporation's transfer agent as the
absolute owner thereof for all purposes and as the person entitled to exercise
the Warrants or transfer title to it.
(b) One or more Warrants may be surrendered to the Corporation for exchange and,
upon their cancellation, the Corporation shall countersign and deliver in
exchange one or more new Warrants, as requested by the bearer of the cancelled
Warrant or Warrants, for the same aggregate number of Shares as were evidenced
by the Warrant or Warrants so cancelled. The Corporation shall give notice to
the registered holders of the Warrants of any change in the address of, or in
the designation of the Corporation's transfer agent.
(c) The Warrant Holder represents to the Corporation that he is acquiring the
Warrants and will acquire the Shares for his own account for investment and not
with a view to, or for sale in connection with, any distribution thereof. If, in
the future, the Warrant Holder shall decide to dispose of the Warrants or the
Shares, any such disposition shall be made only in a transaction which is exempt
from registration under then applicable federal and state securities laws or
pursuant to registration under such laws.
8. Assignability. Neither this Warrant Agreement nor any of the Warrants may be
assigned by the Corporation. The Warrant Holder or any other holder(s) of the
Warrants may assign this Warrant Agreement and the Warrants, in whole or in
part, in compliance with applicable state and federal securities laws.
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9. Miscellaneous.
(a) Applicable Law. The validity, interpretation and performance of this
Agreement and of the Warrants shall be governed by the internal laws of the
State of New York.
(b) Agreement. Copies of this agreement shall be available at the office of the
Corporation for examination by the Warrant Holder and all holder(s) of any of
the Warrants.
(c) Notices and Demands. Any and all notices, demands or other communications
provided for in this Agreement shall be given in writing and by registered or
certified mail, postage prepaid, return receipt requested, addressed as follows:
To the Corporation: Financial Performance Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, President
With a copy served Xxxxxxx Xxxxxxxx Plotnicki
in like manner to: & Grun, LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
To Warrant Holder: See Schedule I Annexed Hereto
(d) Assigns. The term "Warrant Holder" as used in this Agreement shall, unless
otherwise specifically indicated, mean and include the Warrant Holder, all
assignees of the Warrant Holder and all future holder(s) of any of the Warrants.
(e) No Modifications. This agreement shall not be changed, modified or amended
except by a writing signed by the party to be charged, and this agreement may
not be discharged except by performance in accordance with its terms or by a
writing signed by the party to be charged.
(f) No Waiver. It is agreed that a waiver by any party of a breach of any
provision of this agreement shall not operate, or be construed, as a waiver of
any subsequent breach by that same party.
(g) Further Performance. The Corporation and the Warrant Holder agree to execute
and deliver all such further documents, agreements and instruments and take such
other
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and further action as may be necessary or appropriate to carry out the purposes
and intent of this agreement.
(h) Counterparts. This agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which shall together
constitute one and the same instrument.
In witness whereof, this Agreement has been duly executed by the parties hereto
the day, month and year first above written.
Witness: Financial Performance Corporation
___________________________ By:_____________________________
Xxxxxxx X. Xxxxxx
Its: President
___________________________ By:_____________________________
Xxxxxxx Xxxx
Its: Secretary
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THE NUMBER OF SHARES AND EXERCISE PRICE REFERRED TO IN THIS WARRANT CERTIFICATE
ARE THOSE IN EFFECT SUBSEQUENT TO THE COMPANY'S ONE-FOR-FIVE REVERSE STOCK SPLIT
EFFECTIVE AS OF SEPTEMER 23, 1996.
FORM OF FPC 9-96 WARRANT CERTIFICATE
THIS WARRANT AND THE SECURITIES WHICH MAY BE ISSUED UPON EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR ANY APPLICABLE STATE SECURITIES LAWS, BY REASON OF SPECIFIC EXEMPTIONS
THEREUNDER, AND CANNOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF TO ANY
PERSON OR ENTITY UNLESS SUBSEQUENTLY REGISTERED THEREUNDER OR UNLESS APPLICABLE
EXEMPTIONS THEREFROM ARE AVAILABLE.
WARRANT
FOR THE PURCHASE OF 1
( 2 ) SHARES OF COMMON STOCK, PAR VALUE
$0.01 PER SHARE (CUSIP NO. 317630 30 9), OF
FINANCIAL PERFORMANCE CORPORATION
Incorporated under the laws of the State of New York
VOID AFTER SEPTEMBER 15, 2006
This is to certify that, for value received, 3 , or his/her/its assigns (the
"Warrant Holder"), is entitled to purchase at any time during the period
commencing as of September 16, 1996 and ending on or before September 15, 2006
("Exercise Period"), 1 (2) shares of the Common Stock, par value $0.01 per share
(CUSIP No. 317630 30 9), of Financial Performance Corporation (the
"Corporation") from the Corporation at a purchase price of one ($1.00) dollar
per share, and to receive a certificate or certificates for the shares of Common
Stock purchased upon presentation and surrender to the Corporation at the office
of the Corporation or at the offices of Corporation's warrant agent, if any, or
its successor as warrant agent, of this Warrant with the exercise form annexed
hereto as Exhibit "1" duly completed and executed, and accompanied by payment of
the purchase price of each share purchased either in cash or by certified or
bank cashier's check payable to the direct order of the Corporation.
This Warrant may be exercised at any time and from time to time during the
Exercise Period by the registered owner or owners hereof in whole, or in part,
for not less than one (1) full share of Common Stock of the Corporation. If this
Warrant is exercised at any time for less than the maximum number of shares of
Common Stock purchasable upon the exercise hereof, the Corporation shall issue
to the registered owner or owners of this Warrant a new warrant of like tenor
and date representing the number of shares of Common Stock equal to the
difference between the number of shares purchasable upon full exercise of this
Warrant and the number of shares that were purchased upon exercise of this
Warrant. No fractional shares of Common Stock will be issued upon the exercise
of rights to purchase hereunder.
The Corporation covenants and agrees that all shares that may be issued upon
exercise of this Warrant shall, upon issuance, be duly and validly issued, fully
paid and non-assessable, and free of all taxes, liens and charges with respect
to the purchase and the issuance of the shares.
The aggregate number of shares of Common Stock of the Corporation that the
Warrant Holder is entitled to receive upon exercise of this Warrant is 1 (2)
shares. The Corporation shall at all times reserve from its authorized and
unissued Common Stock and hold available a sufficient number of shares of Common
Stock to cover the number of shares issuable upon exercise of this Warrant.
This Warrant is assignable and transferable by delivery, in whole or in part, to
an "Accredited Investor" (as such term is defined in the Securities Act of 1933,
as amended, and the Rules promulgated thereunder), in accordance with the
provisions of the Warrant Agreement referred to below. This Warrant is
transferable in whole or in part on the books of the Corporation by the record
holder hereof in person or by duly authorized attorney upon surrender hereof,
properly endorsed, at the office of the Corporation, or at the office of the
Corporation's warrant agent, if any, in the City of New York and State of New
York, accompanied by a form substantially in the form of the assignment form
annexed hereto as Exhibit "2" duly completed and executed. Every holder of this
Warrant, by taking and holding the same, consents and agrees that title to this
Warrant (together with all rights represented hereby) is assignable and
transferable with the same effect as in the case of a negotiable instrument if
endorsed to a specified person and delivery is made to such person, and that if
endorsed in blank the holder hereof may be treated by the Corporation and all
other persons dealing with this Warrant as the absolute owner hereof for any
purpose, and as the person entitled to exercise this Warrant or to the transfer
thereof on said books, but until such transfer on such books, the Corporation
may treat the record holder as the owner hereof for the
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purpose of determining the person entitled to any rights or any notice pursuant
to the terms hereof or for any other purpose.
This Warrant is issued under and in accordance with that certain Warrant
Agreement dated as of September 16, 1996 and is subject to the terms and
provisions contained therein, as to all of which terms and conditions the
Corporation and the Warrant Holder are bound. Copies of the Warrant Agreement
are on file at the office of the Corporation.
This Warrant will be void unless exercised by 5:00 P.M. Eastern Standard Time on
September 15, 2006. If such date shall in the State of New York be a holiday or
a day on which banks are authorized to close, then the Warrant may be exercised
on the next following day which in the State of New York is not a holiday or a
day on which banks are authorized to close.
This Warrant may not be redeemed by the Corporation at any time.
In witness whereof, the Corporation has caused this Warrant to be duly executed,
by two of its officers duly authorized, as of the 16th day of September, 1996.
Financial Performance Corporation
By:__________________________
Xxxxxxx X. Xxxxxx
Its: President
By:_________________________
Xxxxxxx Xxxx
Its: Secretary
Exhibit 1 - Warrant Exercise Form
Exhibit 2 - Warrant Transfer or Assignment Form
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Exhibit "1"
EXERCISE FORM
The undersigned hereby: (1) subscribes for and offers to purchase ___________
shares of Common Stock of Financial Performance Corporation, par value $0.01 per
share (CUSIP No. 317630 30 9), pursuant to the Warrant to which this exhibit is
attached; (2) encloses payment of $________________ for these shares at a price
of one ($1.00) dollar per share; and (3) requests that a certificate for the
shares be issued in the name of the undersigned or such other name as may be
designated in writing by the undersigned and delivered to the undersigned at the
address specified below.
Date: _____________________
(Please sign exactly as your
name appears on the Warrant)
____________________________________
____________________________________
____________________________________
(Address of warrant holder)
Warrant holder's social security number
________________________
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Exhibit "2"
TRANSFER OR ASSIGNMENT FORM
To be Completed and Executed by the Registered Owner
in Order to Transfer or Assign Warrants
FOR VALUE RECEIVED, ________________________________ hereby sells, assigns and
transfers unto
Name: _________________________________________
Address: _______________________________________
Social Security No.:_______________________________
this Warrant and hereby irrevocably appoints
___________________________________
attorney with full power of substitution to transfer this Warrant Certificate on
the books of Financial Performance Corporation.
Date: ______________, _____ x_________________________________
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