-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, IIL0ru7EgzqvWV2FzQnRTIgKHpBGMAsseurqNIYLa+30QQvjsTm2pqF5fwxnlox1 H+ce/zZ7uFGP6hOt/sGEaA== 0000950123-01-000622.txt : 20010129 0000950123-01-000622.hdr.sgml : 20010129 ACCESSION NUMBER: 0000950123-01-000622 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20010126 GROUP MEMBERS: RONALD NASH GROUP MEMBERS: SILVERMAN JEFFREY S SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: FINANCIAL PERFORMANCE CORP CENTRAL INDEX KEY: 0000798600 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-MANAGEMENT CONSULTING SERVICES [8742] IRS NUMBER: 133236325 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-57197 FILM NUMBER: 1515750 BUSINESS ADDRESS: STREET 1: 777 THIRD AVENUE STREET 2: 30TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 BUSINESS PHONE: 212-446-0200 MAIL ADDRESS: STREET 1: 777 THIRD AVENUE STREET 2: 30TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: SILVERMAN JEFFREY S CENTRAL INDEX KEY: 0001041741 STANDARD INDUSTRIAL CLASSIFICATION: [] STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 777 THIRD AVENUE STREET 2: 30TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 BUSINESS PHONE: 212-446-0200 MAIL ADDRESS: STREET 1: 777 THIRD AVENUE STREET 2: 30TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 SC 13D/A 1 y44690sc13da.txt AMENDMENT NO.2 TO SCHEDULE 13D 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 AMENDMENT NO. 2 TO SCHEDULE 13D Under the Securities Exchange Act of 1934 Financial Performance Corporation (Name of Issuer) Common Stock, $.01 par value (Title of Class of Securities) 317630 30 9 (CUSIP Number) Charles M. Modlin, Esq. Modlin Haftel & Nathan LLP 777 Third Avenue New York, New York 10017 (212) 832-1600 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) January 16, 2001 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f), or 240.13d-1(g), check the following box: [ ] Page 1 of 8 pages 2 SCHEDULE 13D - -------------------------------------------------------------------------------- CUSIP No. 317630 30 9 1) NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Jeffrey S. Silverman SS# ###-##-#### - -------------------------------------------------------------------------------- 2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3) SEC USE ONLY - -------------------------------------------------------------------------------- 4) SOURCE OF FUNDS PF - -------------------------------------------------------------------------------- 5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------- 6) CITIZENSHIP OR PLACE OF ORGANIZATION UNITED STATES - -------------------------------------------------------------------------------- 7) SOLE VOTING POWER NUMBER OF 4,131,000* (See Item 5) SHARES ----------------------------------------------------- BENEFICIALLY 8) SHARED VOTING POWER OWNED BY See Item 5 EACH ----------------------------------------------------- REPORTING 9) SOLE DISPOSITIVE POWER PERSON 4,131,000* (See Item 5) WITH ----------------------------------------------------- 10) SHARED DISPOSITIVE POWER See Item 5 - -------------------------------------------------------------------------------- 11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,131,000* - -------------------------------------------------------------------------------- 12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 27.14% - -------------------------------------------------------------------------------- 14) TYPE OF REPORTING PERSON IN - -------------------------------------------------------------------------------- * Includes 3,250,000 shares of Common Stock issuable upon exercise of the Aggregate Silverman Stock Options held by the Reporting Person and 200,000 shares of Common Stock issuable upon conversion of the Company's Class A Convertible Preferred Stock held by the Reporting Person. See Item 5. The percentage listed on Row 13 assumes the full exercise of the Aggregate Silverman Stock Options held by the Reporting Person and the full conversion of the Class A Convertible Preferred Stock into Common Stock held by the Reporting Person. 3 SCHEDULE 13D CUSIP No. 317630 30 9 - -------------------------------------------------------------------------------- 1) NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Ronald Nash SS# ###-##-#### - -------------------------------------------------------------------------------- 2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3) SEC USE ONLY - -------------------------------------------------------------------------------- 4) SOURCE OF FUNDS PF - -------------------------------------------------------------------------------- 5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------- 6) CITIZENSHIP OR PLACE OF ORGANIZATION UNITED STATES - -------------------------------------------------------------------------------- 7) SOLE VOTING POWER NUMBER OF 4,073,000* (See Item 5) SHARES -------------------------------------------------------- BENEFICIALLY 8) SHARED VOTING POWER OWNED BY See Item 5 EACH -------------------------------------------------------- REPORTING 9) SOLE DISPOSITIVE POWER PERSON 4,073,000* (See Item 5) WITH -------------------------------------------------------- 10) SHARED DISPOSITIVE POWER See Item 5 - -------------------------------------------------------------------------------- 11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,073,000* - -------------------------------------------------------------------------------- 12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 26.76% - -------------------------------------------------------------------------------- 14) TYPE OF REPORTING PERSON IN - -------------------------------------------------------------------------------- * Includes 3,250,000 shares of Common Stock issuable upon exercise of the Aggregate Nash Stock Options held by the Reporting Person and 200,000 shares of Common Stock issuable upon conversion of the Company's Class A Convertible Preferred Stock held by the Reporting Person. See Item 5. The percentage listed on Row 13 assumes the full exercise of the Aggregate Nash Stock Options held by the Reporting Person and the full conversion of the Class A Convertible Preferred Stock into Common Stock held by the Reporting Person. 4 The filing of this Statement does not constitute an admission that the Reporting Persons constitute a "group" for purposes of the Securities Exchange Act of 1934, as amended ("Exchange Act"), or the rules promulgated thereunder or for any other purpose whatsoever. Each of the Reporting Persons has made, and will continue to make, his own investment decisions. Although the Reporting Persons expect to consult with each other from time to time concerning matters relating to their respective investments in the Company and the business of the Company, the investment decisions of one Reporting Person may or may not coincide with the investment decisions made by the other Reporting Person. See Item 4. Each of the Reporting Persons expressly disclaims the existence of a group within the meaning of Rule 13d-5(b)(i) of the Exchange Act and expressly disclaims beneficial ownership of the Common Stock beneficially owned by the other Reporting Person. Amendment No. 2 to Schedule 13D This Statement amends and supplements the statement on Schedule 13D dated November 24, 1999 filed by Jeffrey Silverman and Ronald Nash (the "Initial Schedule 13D"), relating to the common stock, $.01 par value (the "Common Stock"), of Financial Performance Corporation, a New York corporation (the "Company"), as amended by Amendment No. 1 filed by Jeffrey Silverman and Ronald Nash on January 14, 2000 (the "Amendment No. 1"). Notwithstanding this Amendment No. 2, the Initial Schedule 13D and the Amendment No. 1 speak as of their respective dates. Capitalized terms used herein without definition have the meanings assigned to such terms in the Initial Schedule 13D and the Amendment No. 1. Unless otherwise specified herein, the Initial Schedule 13D and the Amendment No. 1 are collectively referred to herein as the "Schedule 13D." ITEM 3 OF THE SCHEDULE 13D, "SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION," IS HEREBY AMENDED TO ADD THE FOLLOWING NEW PARAGRAPHS AT THE END THEREOF: As of January 16, 2001, the Reporting Persons, taken together, beneficially owned an aggregate of 8,204,000 shares of Common Stock (including 6,500,000 shares issuable in the future upon exercise of the Aggregate Silverman Stock Options and the Aggregate Nash Stock Options and 400,000 shares issuable in the future upon conversion of the Class A Convertible Preferred Stock into Common Stock held by the Reporting Persons described in Item 4 below). 5 Of the shares of Common Stock owned by Mr. Silverman, 81,000 shares were acquired in purchases in the open market at prices ranging from $4.94 per share to $10.40 per share. In addition, Mr. Silverman acquired 200,000 shares of the Company's Class A Convertible Preferred Stock (the "Preferred Stock"), at $2.50 per share. A copy of the Certificate of Designations of the Preferred Stock is attached hereto as Exhibit 11, and is hereby incorporated herein by reference in its entirety. Mr. Silverman purchased the shares of Common Stock which he beneficially owns and the shares of the Preferred Stock held by him using personal funds. Of the shares of Common Stock owned by Mr. Nash, 33,000 shares were acquired in purchases in the open market at prices ranging from $4.56 per share to $5.44 per share. In addition, Mr. Nash acquired 200,000 shares of the Preferred Stock. Mr. Nash purchased the shares of Common Stock which he beneficially owns and the shares of the Preferred Stock held by him using personal funds. ITEM 4 OF THE SCHEDULE 13D, "PURPOSE OF TRANSACTION," IS AMENDED TO ADD THE FOLLOWING NEW PARAGRAPH AT THE END THEREOF: Each of the Reporting persons acquired beneficial ownership of the shares of Common Stock and Preferred Stock to which this Statement relates for investment purposes and to add to their respective equity interest in the Company. 6 ITEM 4(a) OF THE SCHEDULE 13D IS AMENDED TO ADD THE FOLLOWING NEW PARAGRAPHS AT THE END THEREOF: Mr. Silverman purchased 200,000 shares of Preferred Stock of the Company at $2.50 per share. The Preferred Stock is non-voting and automatically convertible into 200,000 shares of Common Stock of the Company upon approval by the shareholders of the Company of such conversion at the next annual meeting of shareholders of the Company. See Item 6. Mr. Nash purchased 200,000 shares of Preferred Stock of the Company at $2.50 per share. The Preferred Stock is non-voting and is automatically convertible into 200,000 shares of Common Stock of the Company upon approval by the shareholders of the Company of such conversion at the next meeting of shareholders of the Company. See Item 6. ITEM 5(a) OF THE SCHEDULE 13D, "INTEREST IN SECURITIES OF THE ISSUER," IS AMENDED AND RESTATED IN ITS ENTIRETY AS FOLLOWS: As of January 16, 2001, the Reporting Persons, taken together, beneficially owned an aggregate of 8,204,000 shares of Common Stock (including 6,500,000 shares issuable in the future upon exercise of the Aggregate Silverman Stock Options and the Aggregate Nash Stock Options (collectively, the "Stock Options") and 400,000 shares issuable in the future upon conversion of the Preferred Stock held by such Reporting Persons (collectively, the "Preferred Stock Holdings")), representing approximately 47.10% of the outstanding shares of Common Stock (assuming full exercise of all of the Stock Options and full conversion of the Preferred Stock Holdings). This percentage ownership is based on a calculation of the total number of shares of Common Stock outstanding as follows: the 11,458,140 shares of Common Stock reported by the Company to be issued and outstanding as of October 26, 2000 in its Quarterly Report on Form 10-QSB for the quarter ended September 30, 2000, plus 1,562,500 shares of Common Stock issued in connection with the Company's purchase of Willey Brothers, Inc., plus the 4,000,000 shares of Common Stock underlying the Silverman Company Options and the Nash Company Options, plus the 400,000 shares issuable upon conversion of the Preferred Stock, for a total of 17,420,640 shares, and assumes the full exercise of all of the Stock Options held by the Reporting Persons and the full conversion of the Preferred Stock Holdings. Mr. Silverman beneficially owns 4,131,000 shares of Common Stock, or approximately 27.14%, of the outstanding shares of Common Stock (assuming full exercise of 7 all of the Aggregate Silverman Stock Options and the conversion of all of the Preferred Stock held by the Reporting Person). This percentage is based on a calculation of the total number of shares of Common Stock outstanding as follows: the 11,458,140 shares of Common Stock reported by the Company to be issued and outstanding as of October 26, 2000 in its Quarterly Report on Form 10-QSB for the quarter ended September 30, 2000, plus 1,562,500 shares of Common Stock issued in connection with the Company's acquisition of Willey Brothers, Inc., plus the 2,000,000 shares of Common Stock underlying the Silverman Company Options, plus the 200,000 shares issuable upon conversion of the Preferred Stock held by Mr. Silverman, for a total of 15,220,640 shares, and assumes the full exercise of all of the Aggregate Silverman Stock Options and conversion of the Preferred Stock held by Mr. Silverman. Mr. Nash beneficially owns 4,073,000 shares of Common Stock, or approximately 26.76%, of the outstanding shares of Common Stock (assuming full exercise of the Aggregate Nash Stock Options and the conversion of all of the Preferred Stock held by the Reporting Person). This percentage is based on a calculation of the total number of shares of Common Stock outstanding as follows: the 11,458,140 shares of Common Stock reported by the Company to be issued and outstanding as of October 26, 2000 in its Quarterly Report on Form 10-QSB for the quarter ended September 30, 2000, plus 1,562,500 shares of Common Stock issued in connection with the Company's acquisition of Willey Brothers, Inc., plus the 2,000,000 shares of Common Stock underlying the Nash Company Options, plus the 200,000 shares issuable upon conversion of the Preferred Stock held by Mr. Nash, for a total of 15,220,640 shares, and assumes the full exercise of all of the Aggregate Nash Stock Options and the conversion of the Preferred Stock held by Mr. Nash. ITEM 5(b) OF THE SCHEDULE 13D IS AMENDED TO ADD THE FOLLOWING NEW PARAGRAPH AT THE END THEREOF: By reason of the Agreement described in Item 6 below, the Reporting Persons may be deemed to share voting power with certain other shareholders of the Company (including Robert S. Trump) with respect to voting their shares at the next meeting of the shareholders of the Company in favor of proposals to ratify and approve the conversion rights contained in certain promissory notes delivered by the Company to each of Thomas P. Willey and James M. Willey as partial consideration for the Company's acquisition of Willey Brothers, Inc. and the conversion of the Preferred Stock into Common Stock. See Item 6 for information relating to such agreement. Each of the Reporting Persons expressly disclaims the existence of a group within the meaning of Rule 13d-5(b)(i) of the Exchange Act and expressly disclaims beneficial ownership, by reason of the provisions of such Agreement, of the Common Stock owned by such other shareholders (including Robert S. Trump). ITEM 5(c) OF THE SCHEDULE 13D IS AMENDED TO ADD THE FOLLOWING NEW PARAGRAPH AT THE END THEREOF: Mr. Silverman acquired the following shares of Common Stock of the Company in open market transactions, on the dates and at the prices indicated: 5,000 shares on April 3, 2000 at $10.40 per share; 10,000 shares on April 3, 2000 at $10.13 per share; 10,000 shares on April 4, 2000 at $9.99 per share; 1,000 shares on April 7, 2000 at $8.19 per share; 39,000 shares on April 19, 2000 at $5.92 per share; 10,000 shares on April 24, 2000 at $4.94 per share; and, 6,000 shares on April 27, 2000 at $6.78 per share. Mr. Nash acquired the following shares of Common Stock of the Company in open market transactions, on the dates and at the prices indicated: 10,000 shares on April 20, 2000 at $5.44 per share; 10,000 shares on April 20, 2000 at $5.31 per share; 1,000 shares on April 20, 2000 at $5.19 per share; 600 shares on April 20, 2000 at $5.00 per share; 6,400 shares on April 24, 2000 at $4.63 per share; and, 5,000 shares on April 24, 2000 at $4.56 per share. ITEM 6 OF THE SCHEDULE 13D, "CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER," IS AMENDED TO ADD THE FOLLOWING NEW PARAGRAPH AT THE END THEREOF: Pursuant to the terms of an Agreement, dated as of January 11, 2001, between the Company, Jeffrey S. Silverman, Ronald Nash, William Lilley III, Laurence J. DeFranco, Robert Trump, James M. Willey and Thomas P. Willey, a copy of which is attached hereto as Exhibit 12 and is incorporated herein by reference in its entirety, the Company has agreed to submit to its shareholders, as soon as practicable, 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 certain promissory notes delivered by the Company to each of Thomas P. Willey and James M. Willey as partial consideration for the Company's acquisition of Willey Brothers, Inc., and the conversion of the Preferred Stock into Common Stock (the "Proposals"). Each of such parties, including the Reporting Persons hereunder, have agreed to vote in favor of the Proposals. ITEM 7 OF THE SCHEDULE 13D IS AMENDED TO ADD THE FOLLOWING NEW EXHIBITS AT THE END THEREOF: Exhibit 11 - Certificate of Designations of Class A Convertible Preferred Stock of the Company Exhibit 12 - Voting Agreement 8 SIGNATURES After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certify that the information set forth in this Statement is true, complete and correct. Dated: January 25, 2001 /s/ Jeffrey S. Silverman ----------------------------- Name: Jeffrey S. Silverman /s/ Ronald Nash ----------------------------- Name: Ronald Nash EX-99.11 2 y44690ex99-11.txt CERTIFICATE OF DESIGNATIONS 1 Exhibit 11 CERTIFICATE OF DESIGNATIONS of CLASS A CONVERTIBLE PREFERRED STOCK of FINANCIAL PERFORMANCE CORPORATION (Pursuant to Section 502 of the Business Corporation Law of the State of new York) Financial Performance Corporation, a corporation organized and existing under the Business Corporation Law of the State of New York (the "CORPORATION"), hereby certifies that the following resolutions were adopted by the Board of Directors of the Corporation (the "BOARD OF DIRECTORS") pursuant to authority of the Board of Directors as required by Section 502 of the New York Business Corporation Law of the State of New York: RESOLVED, that pursuant to the authority granted to and vested in the Board of Directors in accordance with the provisions of the Certificate of Incorporation of the Corporation, as amended (the "CERTIFICATE OF INCORPORATION"), the Board of Directors hereby creates a series of the Corporation's previously authorized preferred stock, par value $0.01 per share (the "PREFERRED STOCK"), and hereby states the designation and number thereof, and fixes the voting powers, preferences and relative, participating, optional and other special rights, and the qualifications, limitations and restrictions, thereof as follows: Class A Convertible Preferred Stock: I. DESIGNATION AND AMOUNT The number of shares of the Class A Convertible Preferred Stock is hereby set at 1,650,000 shares and may be increased or decreased from time to time by a resolution or resolutions of the Board of Directors; PROVIDED, HOWEVER, that such number shall not be decreased below the aggregate number of shares of the Class A Convertible Preferred Stock then outstanding. 2 II. RANK A. With respect to dividend rights, the Class A Convertible Preferred Stock shall rank on a parity with each other class or series of Preferred Stock which by its terms ranks on a parity with the Class A Convertible Preferred Stock and prior to the Corporation's Common Stock, par value $0.01 per share (the "COMMON STOCK"), and, except as specified above, all other classes and series of capital stock of the Corporation hereafter issued by the Corporation. With respect to dividends, all equity securities of the Corporation to which the Class A Convertible Preferred Stock ranks senior, including the Common Stock, are collectively referred to herein as the "JUNIOR DIVIDEND SECURITIES"; all equity securities of the Corporation with which the Class A Preferred Stock ranks on a parity are collectively referred to herein as the "PARITY DIVIDEND SECURITIES". B. With respect to the distribution of assets upon liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, the Class A Convertible Preferred Stock shall rank on a parity with each other class or series of Preferred Stock which by its terms ranks on a parity with the Class A Convertible Preferred Stock and prior to the Common Stock, and, except as specified above, all other classes and series of capital stock of the Corporation hereinafter issued by the Corporation. With respect to the distribution of assets upon liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, all equity securities of the Corporation to which the Class A Convertible Preferred Stock ranks senior, including the Common Stock, are collectively referred to herein as "JUNIOR LIQUIDATION SECURITIES" (and together with the Junior Dividend Securities are referred to herein as the "JUNIOR SECURITIES"); all equity securities of the Corporation to which the Class A Preferred Stock ranks on parity are collectively referred to herein as "PARITY LIQUIDATION SECURITIES" (and together with the Parity Dividend Securities are referred to herein as the "PARITY SECURITIES"). III. DIVIDENDS Shares of Class A Convertible Preferred Stock shall accrue no dividends. IV. LIQUIDATION PREFERENCE In the event of a liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, the holders of then-outstanding shares of Class A Convertible Preferred Stock shall be entitled to receive out of the assets of the Corporation, whether such assets are capital or surplus of any nature, an amount per share equal to the sum of (i) accrued but unpaid dividends thereon, if any, to the date of final distribution to such holders, whether or not such dividends are declared, and (ii) the Converted Value (as defined below) thereof, before any payment shall be made or any assets distributed to the holders of any Junior 3 Liquidation Securities. All the assets of the Corporation available for distribution to stockholders after the liquidation preferences stated above shall be distributed ratably among the holders of the then-outstanding shares of Class A Convertible Preferred Stock and Parity Liquidation Securities, if any, and the Common Stock. Neither a consolidation or merger of the Corporation with or into any other Person or Persons, nor a sale, conveyance, lease, exchange or transfer of all or part of the Corporation's assets for cash, securities or other property to a Person or Persons shall be deemed to be a liquidation, dissolution or winding up of the Corporation for purposes of this Article IV. V. VOTING RIGHTS The holders of shares of Class A Convertible Preferred Stock shall have no voting rights except as otherwise from time to time required by law. VI. CONVERSION A. CONVERSION. Each share of Class A Convertible Preferred Stock shall be automatically converted upon shareholder approval of such conversion at the next meeting of shareholders of the Company following the date of these resolutions or such date as shall be determined by the Board of Directors in the manner provided herein (the "Conversion Date") into one fully paid and nonassessable share of Common Stock. All holders of record of shares of Class A Convertible Preferred Stock shall be given at least ten days' prior written notice of the expected Conversion Date. On or before such date, each holder of shares of Class A Convertible Preferred Stock shall surrender his, her or its certificate or certificates for all such shares to the Corporation at the place designated in such notice. As promptly as practical, and in any event within ten Business Days after the Conversion Date, the Corporation shall deliver or cause to be delivered as directed by the holder of shares of Class A Convertible Preferred Stock being converted certificates representing the number of validly issued, fully paid and nonassessable full shares of Common Stock to which such holder shall be entitled to. The Corporation will pay any and all issue and other taxes (other than taxes based on income) that may be payable in respect of any issue or delivery of shares of Common Stock on conversion of Class A Convertible Preferred Stock pursuant hereto. Such conversion shall be deemed to have occurred at the close of business on the Conversion Date so that as of such time the rights of the holder thereof as to the shares being converted shall cease except for the right to receive shares of Common Stock and/or cash in accordance herewith, and the person entitled to receive the shares of Common Stock issued as a result of such conversion shall be treated for all purposes as having become the holder of such shares of Common Stock at such time. 4 B. ADJUSTMENT OF CONVERSION PRICE. The number of shares received on conversion shall be subject to adjustment from time to time as follows: (a) STOCK DIVIDENDS. In case the Corporation after the date of original issuance of the Class A Convertible Preferred Stock shall pay a dividend or make a distribution to all holders of shares of Common Stock in shares of Common Stock, then in any such case the shares of Common Stock to be received on conversion shall be adjusted accordingly. (b) STOCK SPLITS AND REVERSE SPLITS. In case after the date of original issuance of the Class A Convertible Preferred Stock outstanding shares of Common Stock shall be subdivided into a greater or lesser number of shares of Common Stock, the shares of Common Stock to be received on conversion shall be adjusted accordingly. (c) Converted Value shall be deemed to be $2.50 per share of Class A Convertible Preferred Stock. IX. MISCELLANEOUS A. NOTICES. Any notice referred to herein shall be in writing and, unless first-class mail shall be specifically permitted for such notices under the terms hereof, shall be deemed to have been given upon personal delivery thereof, upon transmittal of such notice by telecopy (with confirmation of receipt by telecopy or telex) or five days after transmittal by registered or certified mail, postage prepaid, addressed as follows: (i) if to the Corporation, to its office at 777 Third Avenue, New York, New York 10017 (Attention: Chief Executive Officer); (ii) if to a holder of the Class A Convertible Preferred Stock, to such holder at the address of such holder as listed in the stock record books of the Corporation (which may include the records of any transfer agent for the Class A Convertible Preferred Stock); or (iii) to such other address as the Corporation or such holder, as the case may be, shall have designated in writing by notice similarly given. B. REACQUIRED SHARES. Any shares of Class A Convertible Preferred Stock redeemed, purchased or otherwise acquired by the Corporation, directly or indirectly, in any manner whatsoever shall be retired and canceled promptly after the acquisition thereof (and shall not be deemed to be outstanding for any purpose) and, if necessary to provide for the lawful redemption or purchase of such shares, the capital represented by such shares shall be reduced in accordance with the New York Business Corporation Law. All such shares of Class 5 A Convertible Preferred Stock shall upon their cancellation and upon the filing of an appropriate certificate with the Secretary of State of the State of New York, become authorized but unissued shares of Preferred Stock, par value of $0.01, of the Corporation and may be reissued as part of another series of Preferred Stock, par value $0.01, of the Corporation subject to the conditions or restrictions on issuance set forth herein. C. ENFORCEMENT. Any registered holder of shares of Class A Convertible Preferred Stock may proceed to protect and enforce its rights and the rights of such holders by any available remedy by proceeding at law or in equity to protect and enforce any such rights, whether for the specific enforcement of any provision in this Certificate of Designations or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. D. TRANSFER TAXES. Except as otherwise agreed upon pursuant to the terms of this Certificate of Designations, the Corporation shall pay any and all documentary, stamp or similar taxes. EX-99.12 3 y44690ex99-12.txt VOTING AGREEMENT 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 Willey Brothers, Inc. ("Willey Brothers"); and B. A part of the consideration for such purchase of the shares of Willey 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 Willey Brothers to persons unrelated to the shareholders of Willey 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 Jeffrey S. Silverman, Edward T. Stolarski and Charles M. Modlin 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 Robert Trump 4,506,422 /s/ ---------------------------- Jeffrey S. Silverman 681,000 /s/ ---------------------------- Ronald Nash 623,000 /s/ ---------------------------- William Lilley III 500,000 /s/ ---------------------------- Laurence J. DeFranco 500,000 /s/ ---------------------------- James M. Willey 756,250 /s/ ---------------------------- Thomas P. Willey 756,250 /s/ ---------------------------- -----END PRIVACY-ENHANCED MESSAGE-----