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EXHIBIT 10.22
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of April 18, 1997, by and between CITYSCAPE CORP.,
having an office address at 000 Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000
(hereinafter referred to as the "Company") and XXXXX X. XXXXX residing at 0
Xxxxxxx Xxxxx, Xxxxxxx, XX 00000 (hereinafter referred to as the "Employee").
W I T N E S S E T H :
WHEREAS, the Company desires to hire and retain the Employee as an
employee to perform certain services for the Company.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and on the attached Schedule, and for other good and valuable
consideration the receipt of which is hereby acknowledged, the Company and the
Employee hereby agree as follows:
1. EMPLOYMENT OF EXECUTIVE.
(a) The Company hereby employs the Employee in the capacity
and for the position set forth on Item 1 of the Schedule attached hereto.
Employee hereby accepts such employment with the Company upon the terms and
conditions hereinafter set forth.
(b) The duties of the Employee shall include the duties and
services described in Item 2 of the Schedule, which duties and services shall at
all times be subject to the direction, approval and control of the Company and
shall include such other duties, as may be assigned by the Board of Directors of
the Company commensurate with the responsibilities normally associated with
Employee's position.
2. SERVICES TO BE RENDERED.
The Employee will devote Employee's full time and efforts to
the business and affairs of the Company and shall not during the term of this
Agreement be engaged in any other businesses; provided that the Employee may
engage in passive investments in businesses in which the Employee does not
participate. The Employee will always use Employee's best efforts to promote the
interests of the Company.
3. TERM.
The term of this Agreement (the "Term") shall commence on May
1, 1997, and shall continue until April 30, 2001, unless (i) extended by the
mutual agreement of the Company and the Employee or (ii) terminated as
hereinafter provided.
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4. COMPENSATION.
(a) The Employee shall receive a salary as set forth on
Schedule Item 3. Effective May 1, 1997, the salary due and payable under
Schedule Item 4 shall be increased each January by the percentage increase, if
any, in the Consumer Price Index defined in (c) below between November 1996 and
November 1997 for the first increase and between November 1997 and November 1998
for the second increase, and November 1998 and November 1999 for the third
increase. The increases shall be cumulative, that is the base salary upon which
a CPI increase is determined is that which is in effect at the end of each year.
In no event shall the salary be reduced because of a percentage decline in the
Consumer Price Index.
(b) Each January, commencing with January 1998, the Board of
Directors of the Company shall review Employee's performance and the Board of
Directors may, in its sole discretion, elect to increase the salary and bonus
then paid to Employee; however, there shall be absolutely no obligation to do
so.
(c) Consumer Price Index shall mean the Index published by the
United States Department of Labor for all Urban Consumers U.S. City Average
N.Y., N.J., CT. 1982-1984 = 100 or such successor Index as may be published
which most closely corresponds to this Index.
5. BENEFITS.
The Employee shall be entitled to participate in the regular
pension, profit sharing, health, disability, and other benefit programs of the
Company in effect from time to time on the same basis that other senior officers
of the Company participate therein. In addition to the foregoing, the Company
shall reimburse Employee up to Three Thousand Dollars ($3,000) for the costs of
maintaining a long term disability policy. To the extent possible, without
incurring additional expense and without adversely affecting the right of any
other employee, the Company shall endeavor to eliminate or waive any waiting
period with respect to profit sharing and/or pension benefits as well as health
insurance benefits. The Employee shall be entitled, for the term hereof, to
annual vacations to be taken in accordance with the policies of the Company in
effect from time to time for senior officers.
6. EXPENSES.
The Company shall reimburse the Employee against appropriate
vouchers or other receipts for business expenses reasonably incurred by Employee
in the performance of Employee's duties pursuant to the terms hereof. In
addition, upon the submission of appropriate vouchers or other receipts, the
Company shall reimburse Employee for gas, tolls, car phone charges, and health
club costs. Employee shall submit vouchers or other receipts once per calendar
month and shall be reimbursed by Company within thirty (30) days of submission.
Expenses shall further include
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reimbursement for reasonable monthly car rental or car purchase payments not
exceeding Six Hundred Fifty Dollars ($650).
7. DEATH AND DISABILITY.
In the event of the death of the Employee during the Term, the
Employee's employment hereunder shall automatically terminate. In the event of
the total disability of the Employee, the Employee's employment hereunder may
terminate at the option of the Board of Directors of the Company. For purposes
of this Agreement, "total disability" shall mean the Employee's inability to
perform Employee's regular and customary duties on behalf of the Company for a
period of no less than 120 consecutive days, or any 180 days during any twelve
(12) month period, with such "total disability" being established by a written
certification submitted by a medical doctor agreed to by the Employee and the
Company. In the absence of agreement, the Company and the Employee shall each
nominate a qualified medical doctor and these two (2) doctors shall select a
third qualified medical doctor, which third doctor shall make the determination
as to total disability. During the aforementioned 120 and 180 day periods,
Employee shall receive his regular salary less any Company provided disability
insurance proceeds Employee may receive. After the termination of these time
periods, no salary will be payable.
8. CAUSE.
By notice to the Employee, the President or the Board of
Directors of the Company may terminate this Agreement for Cause. As used herein,
"Cause" shall be defined as: (a) the refusal or failure by the Employee to carry
out specific directions of the Board of Directors which are of a material nature
and consistent with Employee's position described in the Schedule, or the
refusal or failure by the Employee to perform a material part of the Employee's
duties hereunder; (b) the commission by the Employee of a breach of any of the
provisions of this Agreement; (c) the commission by the Employee of a fraudulent
or dishonest act in Employee's relations with the Company or any of its
affiliates, or with any customer or business contact of the Company or any of
its affiliates ("dishonest" for these purposes shall mean that Employee
knowingly or recklessly made a material misstatement or omission for Employee's
personal benefit); (d) the conviction of the Employee for any crime involving an
act of moral turpitude; (e) any act of insubordination or the willful failure to
carry out a written directive of the Board of Directors which does not violate
the terms of this Agreement; (f) any breach under Sections 9 and 10 of this
Agreement; or (g) the Employee's gross incompetence. Notwithstanding the
foregoing, no "Cause" for termination shall be deemed to exist with respect to
the Employee's acts described in clauses (a) or (b) above, unless the Company
shall have given written notice to the Employee specifying the "Cause" with
reasonable particularity and, within ten (10) business days after such notice,
Employee shall not have cured or eliminated the problem or thing giving rise to
such "Cause"; provided, however, that (i) any periodic breach or continual
breaching after notice and cure of any provision of clauses (a) or (b) above, or
(ii) a repeated breach after notice and cure, of any provision of clauses (a) or
(b) above, involving the same or substantially similar actions or conduct, shall
be grounds for
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termination for cause without any additional notice from the Company. The
parties hereto agree that three (3) separate instances of a breach by the
Employee of the provisions of this Agreement during the Term shall be considered
periodic, continual or repeated and shall constitute "Cause" within the meaning
of this Section 8.
9. NON-COMPETITION.
(a) During the Term and for six (6) months after the
expiration of the Term, except if the Employee terminates Employee's employment
hereunder as a result of a Continued Company Breach (as such term is defined in
((c)) below) the Employee agrees that Employee will not, directly or indirectly,
enter into or participate (whether as owner, partner, shareholder, officer,
director, salesman, consultant, employee, principal, or in any other
relationship or capacity) in any business operating or providing services in any
State in which the Company or its affiliates are operating or providing services
as of the date of termination which is, or owns, manages or performs the
following business activities and services: residential and commercial and real
estate lending; servicing loan portfolios and/or mortgage or real estate
brokerage services (a "Competing Entity"); provided, that the Employee may own
up to one percent (1%) of the outstanding equity securities of any Competing
Entity that is subject to the public reporting requirements of the Securities
Exchange Act of 1934.
(b) During the Term and for three (3) years after the
termination of the Employee's employment hereunder for any reason, the Employee
shall not, without the prior written consent of the Company, directly or
indirectly, (i) solicit, request, cause or induce any person who is at the time,
or twelve (12) months prior thereto had been, an employee of or a consultant to
the Company to leave the employ of or terminate Employee's relationship with the
Company or (ii) employ, hire, engage or be associated with, or endeavor to
entice away from the Company any such person, or any customer of the Company or
its affiliates or (iii) attempt to limit or interfere with any business
agreement or relationship existing between the Company and/or its affiliates
with a third party.
(c) As used herein, Continued Company Breach shall mean three
(3) separate instances of a material breach during the Term by the Company of
the obligations it owes the Employee pursuant to Section 1, Section 4(a) and (c)
and Section 5 hereof after the Company has received written notice from the
Employee regarding each such breach and the Company fails to cure each such
breach within ten (10) days of the receipt of such notice.
10. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION.
(a) The Employee acknowledges that as a result of Employee's
employment by the Company, the Employee, both during and after the Term, will
obtain secret and confidential information concerning the business of the
Company and its affiliates, including, without limitation, financial
information, trade secrets, information concerning the operations, sales,
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personnel, suppliers, customers, costs, profits and pricing policies, "know how"
and certain business methodologies (the "Confidential Information").
(b) During the Term and thereafter, the Employee shall
exercise all due and diligent precautions to protect the integrity of the
customer lists, mailing lists and sources thereof, statistical data and
compilations, agreements, contracts, manuals, memoranda, notes, records, reports
or other documents and any and all other materials embodying any Confidential
Information (the "Confidential Materials") and, upon the Company's request in
writing, Employee shall immediately return to the Company all such Confidential
Materials (and copies thereof) then in Employee's possession or control.
(c) The Employee agrees that Employee will not at any time,
either during the Term of this Agreement or thereafter, divulge to any person or
entity any Confidential Information or deliver or permit any person or entity to
obtain any Confidential Materials except (i) when required in the course of
performing Employee's duties hereunder, (ii) with the Company's express written
consent; or (iii) where required to be disclosed by court order, subpoena or
other government process, or (iv) the Employee shall have no responsibility for
the divulgence of any information which is in the public domain. If the Employee
shall be required to make disclosure pursuant to the provisions of clause (iii)
of the preceding sentence, the Employee promptly, but in no event more than 48
hours after learning of such subpoena, court order, or other governmental
process, shall notify, by personal delivery or by electronic means, confirmed by
mail, the Company and, at the Company's expense, Employee shall: (x) take all
reasonably necessary steps required by the Company to defend against the
enforcement of such subpoena, court order or other government process, and (y)
permit the Company to intervene and participate with counsel of its choice in
any proceeding relating to the enforcement thereof.
(d) Upon termination of Employee's employment with the
Company, the Employee will promptly deliver to the Company all Confidential
Materials relating to the Company and its affiliates, which Employee may then
possess or have under Employee's control; provided, however, that Employee shall
be entitled to retain copies of such documents reasonably necessary to document
Employee's financial relationship (both past and future) with the Company.
(e) The Employee acknowledges that (i) any breach of the
provisions of these Sections 9 and 10 may cause substantial and irreparable harm
to the Company for which the Company would have no adequate remedy at law, and
(ii) the provisions of this Agreement are reasonable and necessary for the
protection of the business of the Company and its affiliates.
11. REMEDIES.
(a) If Employee commits a breach, or threatens to commit a
breach, of any of the provisions of Sections 9 and 10, the Company shall have
the right and remedy:
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(i) to have the provisions of this Agreement specifically
enforced by any court having equity jurisdiction; and
(ii) to require Employee to account for and to pay over the
Company all damages suffered by the Company as the result of any transactions
constituting a breach of any of the provisions of Sections 9 and 10, and
Employee hereby agrees to account for and pay over such damages to the Company;
(b) The Employee acknowledges and agrees that the services
being rendered hereunder to the Company are of a special, unique and
extraordinary character and that any such breach or threatened breach may cause
substantial and irreparable injury to the Company and that money damages will
not provide an adequate remedy to the Company. Employee further agrees that the
Company in any such equitable proceeding shall not have to prove irreparable
harm. (However, in a suit for damages, Company shall be required to prove the
amount of damages actually sustained.)
(c) Each of the rights and remedies enumerated in Section
11(a) shall be independent of the other, and shall be severally enforceable, and
such rights and remedies shall be in addition to, and not in lieu of any other
rights and remedies available to the Company under law or equity.
(d) If any provision of Sections 9 or 10 is held to be
unenforceable because of the scope, duration or area of its applicability, the
court making such determination shall have the power to modify such scope,
duration, or area, or all of them, and such provision or provisions shall then
be applicable in such modified form.
12. INDEMNIFICATION.
(a) The Company hereby agrees to indemnify and hold harmless
the Employee, both during and after the expiration of the Term, from and against
any and all loss or liability including reasonable legal fees and legal
disbursements which the Employee may have to third parties as a result of the
proper performance of Employee's duties hereunder during the Term, to the extent
permitted by the laws of the State of New York. The Employee hereby agrees to
indemnify and hold harmless the Company from any and all loss or liability which
the Company suffers as a result of employee's breach of Employee's obligations
hereunder to the extent permitted by the laws of the State of New York. When the
Company assumes its obligation to indemnify and hold harmless the Employee in
connection with a claim or litigation, its obligation with respect to such claim
or litigation shall be limited to holding the Employee harmless from and against
any judgment or settlement approved by the Company in connection with the claim
or litigation. The Company reserves the right to select counsel of its choosing
to defend the Employee.
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(b) Whenever a claim shall arise for which any party may be or
become entitled to indemnification hereunder, the indemnified party shall notify
the indemnifying party promptly, and in the case of a third party claim, in
writing within ten (10) days of the indemnified party's first receipt of written
notice of such third party claim, and in any event within such shorter period as
may be legally required for the indemnifying party or parties to take
appropriate action to resist such claim. The failure to give a timely notice, as
provided in the preceding sentence, shall not operate as a waiver of an
indemnified party's right to indemnification, provided that the failure to give
such notice did not materially prejudice the legal rights of the indemnifying
party. Such notice shall specify all facts known to the indemnified party giving
rise to such indemnity rights and shall estimate (to the extent determinable)
the amount of the liability arising therefrom.
13. EARLY TERMINATION.
In the event of termination of the Employee's employment
status by the Employer before the expiration of the term of this Agreement,
except in accordance with paragraphs 7 and 8 of the Agreement, then and in that
event Employee shall be entitled to receive all compensation hereunder accrued
and unpaid as of the date of termination and all compensation due over the
remainder of this Employment Agreement, but not to exceed one hundred and fifty
percent (150%) of Employee's total earnings including bonus for the previous
twelve (12) months. In the event this Agreement is terminated during the first
twelve (12) months of employment, employee shall receive one hundred and fifty
percent (150%) of twelve (12) months contractual earnings including bonus. The
payments provided for in this section shall be paid either lump sum or in
periodic payments at the sole option of the Employee. In addition, Employee
shall receive immediate vesting of all insurance, retirement, profitsharing,
stock option, and other benefits except to the extent such vesting may be in
direct conflict with other ERISA plans. If the Employee elects to take
compensation payments in periodic installments, then the Employer will continue
to pay its share of medical, dental, life, and disability insurance premiums and
maintain such coverage in effect for the duration of periodic payments, but not
to exceed the term of the Employment Agreement.
14. MOVING AND RELOCATION EXPENSES.
Upon the signing of the Agreement, the Company will cause the
Employee's residence to be appraised by a competent appraisal firm and will in
the event that Employee is unable to sell the residence after completion of his
new residence, purchase the said residence for the appraised value.
The Employee's moving expenses reasonably incurred including,
among others, transportation and temporary storage of household goods and
personal effects, airline transportation, rental vehicles, meals and lodging for
the Employee and his family to travel to and search for new housing, in moving
the Employee and his family to New York will be reimbursed by the Company in
full. Notwithstanding, Employee may, at his expense, require Employer to
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obtain a second appraisal from another competent appraisal firm and the purchase
price to be paid for the residence shall be the average of the two appraisals.
For a period not to exceed, the shorter of, fourteen (14)
months or when employee moves his family to New York, the Company will reimburse
employee for reasonable rental expense of a one (1) bedroom furnished apartment
in Westchester County.
15. NOTICE.
Any notice required hereunder shall be delivered by hand, or
sent by registered or certified mail, addressed to the other party hereto at its
address set forth above or at such other address as notice thereof shall have
been given in accordance with the provisions of this Section 13. Any such notice
shall become effective (a) if mailed, on the date indicated on the receipt or if
not accepted, the date indicated that delivery was attempted, and (b) in the
case of delivery by hand, upon delivery or attempted delivery as shown on the
records of the deliveries.
16. AGREEMENT; AMENDMENT.
This Agreement supersedes any prior agreements or
understandings, oral or written, between the parties hereto and represents their
entire understanding and agreement with respect to the subject matter hereof.
This Agreement can be amended, supplemented or changed, and any provision hereof
can be waived, only by written instrument making specific reference to this
Agreement which is signed by the party against whom enforcement of any such
amendment, supplement, modification or waiver is sought. Any waiver of any
breach of this Agreement shall not be construed to be a continuing waiver or
consent to any subsequent breach by any party hereto.
17. SEVERABILITY.
In the event of the invalidity or unenforceability of any one
or more provisions of this Agreement, such illegality or unenforceability shall
not affect the validity or enforceability of the other provisions hereof and
such other provisions shall be deemed to remain in full force and effect.
18. ASSIGNMENT; BINDING EFFECT.
This Agreement is not assignable by Employee without the prior
written consent of the Company. This Agreement shall be binding upon and shall
inure to the benefit of the Company and its successors and assigns. It is agreed
that in the event of a termination under this Agreement for any reason, all
salary and benefits shall cease as of the date of termination provided that all
accrued salary, bonus and expenses shall be paid to Employee or Employee's
estate or legal representative as the case may be.
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19. SECTION HEADINGS.
The Section Headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
20. GOVERNING LAW; VENUE.
This Agreement shall be construed and governed in accordance
with the laws of the State of New York. The parties hereto agree that any
actions or proceedings instituted to enforce rights hereunder shall be initiated
in the federal or state courts located in Westchester County, New York.
21. ARBITRATION IN THE EVENT OF DISPUTE.
EXCEPT IN CASES OF IRREPARABLE HARM WHERE IMMEDIATE INJUNCTIVE
RELIEF IS SOUGHT, ALL DISPUTES WHICH CANNOT BE RESOLVED INFORMALLY BY THE
PARTIES SHALL BE SUBMITTED FOR BINDING ARBITRATION IN ACCORDANCE WITH THE RULES
OF THE AMERICAN ARBITRATION ASSOCIATION WITH EACH PARTY BEARING THEIR OWN
EXPENSES, FEES AND COSTS OF REPRESENTATION AND THE PARTIES SPLITTING EQUALLY THE
ARBITRATION COSTS.
22. EXECUTION IN COUNTERPARTS.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute one and the same instruments.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
CITYSCAPE CORP.
By: /s/Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: President
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
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SCHEDULE
EMPLOYMENT AGREEMENT
MAY 1, 1997 - APRIL 30, 2001
1. Position Senior Vice President & Chief Operating
Officer
2. Duties & Services As determined by the Board of Directors
3. Salary $250,000 per annum
4. Signing Bonus $50,000 payable $25,000 on May 1, 1997 and
$25,000 on May 1, 1998.
5. Bonus Employee may earn and be entitled to a bonus
payment for each year of his employment
equal to at least his base salary during
such year.
In order for employee to earn a bonus, in
each year of the Employment Agreement,
certain goals must be attained. These goals
will be determined and mutually agreed to by
June 30, 1997.
6. Options In accordance with the Cityscape Financial
Corp. 1995 Employee Stock Option Plan to
purchase up to 400,000 shares at the Fair
Market Value at the date of grant. The
incentive options granted may be exercised
100,000 shares in 1998, 100,000 shares in
1999, 100,000 shares in 2000, and 100,000
shares in 2001. These options are subject to
approval by the Cityscape Financial Corp.
Stock Option Committee upon your approval of
the terms of the Agreement and shall only
vest if the profits of Cityscape Corp.
(domestic) as determined by the Company's
independent auditors exceed in each year the
pre-tax profits of the previous year by
twenty percent (20%). In each year where the
pre-tax profits do not attain such increase,
those options shall terminate. These options
may not be exercised more than five (5)
years after grant and terminate immediately
upon termination of the recipient's
employment with the Company for just cause,
or 12 months after death or permanent
disability, or three months after
termination of employment for any other
reason.
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