DATED 23 April 1996
(1) ALEC DAVID JOHNSON
AND
(2)J&J SECURITIES LIMITED
SERVICE DEED
Messrs Howard Kennedy,
23 Harcourt House,
19 Cavendish Square,
London WlA 2AW
Tel:071-636 1616
Ref:18/933452
THIS DEED is made the 23rd day of April 1996
BETWEEN:-
(1) J&J SECURITIES LIMITED a company registered in England under number
1335672 whose registered office is situate at [Shelbourne House,
Croxley Business Park, Watford, Herts, WD1 8YE] ("the Company");
(2) ALEC DAVID JOHNSON of 12 The Witherings, Emerson Park, Hornchurch,
Essex, RM11 2RA ("the Appointee")
NOW THIS DEED WITNESSETH as follows:-
1. DEFINITIONS
In this Deed and the Schedule (unless it is expressly otherwise
provided or the context otherwise requires):-
1.1 the following expressions shall have the following meanings:-
1.1.1 "the Appointment" means the appointment of the Appointee by the
Company under this Deed.
1.1.2 "the Board" means the board of directors of the Company for the time
being and includes any duly appointed committee of the Board.
1.1.3 "Group Company" means any company which is for the time being the
Company's parent undertaking (as defined by Section 258 of the
Companies Act 1985) or a subsidiary undertaking (as so defined) of the
Company or a subsidiary undertaking of the Company's parent
undertaking (other than the Company) or any of them.
1.1.4 "month" means calendar month.
1.1.5 "the Salary" means the salary payable to the Appointee under Clause 5
of this Deed
1.1.6 "year" means calendar year.
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1.1.7 "Termination Date" means the date of termination of this Deed
howsoever caused.
1.2 References to statutory provisions shall be construed as references to
those provisions as respectively amended or re-enacted from time to
time (whether before or after the date hereof) and shall include any
provisions of which they are re-enactments (whether with or without
modification) and any subordinate legislation made under such
provisions.
1.3 References to Clauses and Schedules are to those of this Deed.
1.4 The Schedule(s) form(s) part of this Deed and shall be deemed to be
incorporated herein and any reference to this Deed shall include the
Schedules(s)
1.5 Reference to the singular number shall include the plural number and
vice versa and those denoting one gender only shall include the other
1.6 Headings are inserted for convenience only and shall not affect the
construction or interpretation of this Deed.
2. APPOINTMENT AND TERM
2.1 With effect from the date hereof, the Company hereby appoints the
Appointee and the Appointee agrees to serve the Company as the [ ]
Director of the Company or in such other capacity consistent with his
status as the Board may determine and the Director may agree and the
duties ot the Appointee rnay relate to the Company and/or any Group
Company (if the Board so determines and the Appointee so agrees) upon
the terms of this Deed.
2.2 The Appointment shall be for a term of 3 (three) years from the date
hereof and shall be terminable by either party serving upon the other
12 months' notice in writing such notice not to expire before the
third anniversary hereof
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2.3 During the course of any applicable notice period the Company may
require the Appointee to continue to be available to perform his
duties at all times during usual working hours and whether at his home
or at the offices of the Company or any Group Company (subject to
clause 4.1 below) PROVIDED HOWEVER that
i) for a period of not exceeding 6 (six) months during such period the
Company shall not be obliged to assign or continue to assign any
duties to the Appointee whether or not this results in the Appointee
being inactive or his duties being wholly or partly performed by other
employees;
ii) during such notice period the Appointee shall be entitled to be
paid and receive his remuneration and all other benefits to which he
is contractually entitled hereunder.
iii) during the notice period the provisions of Clause 13.1.3 shall
apply as if the Appointment had been terminated.
2.4 The Appointee warrants that by virtue of entering into this Agreement
he will not be in breach of any express or implied terms of any
contract with or of any other obligation to any third party binding
upon him.
3. DUTIES
3.1 The Appointee shall during the Appointment exercise such powers and
shall comply with and perform such reasonable directions and duties
consistent with his status in relation to the businesses and affairs
of the Company and (if he so reasonably agrees) any Group Company as
may from time to time be vested in or given to him by the Board and
with any standing orders or other regulations for the time being in
force.
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3.2 The Appointee undertakes well and faithfully to serve the Company and
to use his best endeavours to advance promote and develop the
businesses and interests of the Company and the Group Companies.
3.3 The Appointee shall, unless prevented by sickness or accident, devote
his full time attention and abilities during normal business hours to
his duties hereunder.
3.4 The Company may, without the Appointee's consent second him to be
employed by any Group Company without prejudice to his rights under
this Agreement.
4. LOCATION
4.1 The Appointee's place of work (when not engaged on business travel)
shall be at the above registered office of the Company or within 50
miles of Watford, Herts
4.2 The Appointee shall travel to such other places (whether inside or
outside the United Kingdom) for such purposes and on such occasions as
may reasonably be required for the proper fulfilment of his duties
hereunder.
5. REMUNERATION
5.1 The Company shall pay to the Appointee (which shall include any
remuneration payable to the Appointee as a Director or other officer
of the Company or any Group Company or any office held by him as
nominee or representative of the Company or any Group Company) a
salary payable by equal monthly instalments in arrear on the last
business day of each month at the rate of (pound)l5O,OOO per annum
together with the rights and benefits referred to in the Schedule.
5.2 The Salary is deemed to accrue from day to day and the first monthly
instalment will be calculated from the date hereof and the last
monthly
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instalment will be calculated down to the date of termination of the
Appointment.
5.3 The Salary is subject to upwards only review on each anniversary of
the date hereof at the discretion of the Board provided that the
Salary shall be increased on 1st January in each year by the
percentage increase (if any) in the Retail Prices Index in the
preceding year.
5.4 Contemporaneously with the execution of this Deed the Appointee shall
enter into a Stock Option Agreement with Cityscape Financial Corp
substantially an the terrns attached hereto and initialled by the
parties for identification purposes.
6. EXPENSES
6.1 The Company shall promptly reimburse to the Appointee on a monthly
basis all reasonable travelling hotel and other out--of-pocket
expenses properly incurred by him in the performance of his duties
hereunder provided that receipts for such expenses or other evidence
thereof is produced to the Company to the reasonable satisfaction of
the Board.
6.2 Where the Company issues a company sponsored credit or charge card to
the Appointee he shall use such card only for expenses reimbursable
under Clause 7.1 above, and shall return it to the Company forthwith
on the termination of his employment.
7. HOLIDAYS
7.1 The Appointee shall be entitled to paid leave of absence for holiday
for thirty working days during each year of the Appointrnent (and pro
rata as regards each part of a year) to be taken by the Appointee at
such time or times as the Board shall approve (such approval not to be
unreasonably withheld or delayed) in addition to bank and public
holidays.
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7.2 The Appointee may not carry forward any unused holiday entitlement
from one year to the next without the prior consent of the Board (such
approval not to be unreasonably withheld or delayed.
7.3 On termination of the Appointment the Appointee shall be entitled to
payment in lieu of any holiday entitlement accrued due as at the
Termination Date and in determining the amount of such payment one
day's holiday pay will be calculated as 1/260th of the Appointes's
annual salary.
8. SICKNESS OR ACCIDENT
8.1 During any period in which the Appointee may be incapacitated from
performing his duties hereunder due to sickness (including mental
disorder) or accident the Company shall pay to the Appointee a
sickness allowance at the following rates:-
8.1.1 during the first six consecutive months of such incapacity an
allowance of an amount which is equal to the Salary which would
otherwise be payable to the Appointee; and
8.1.2 during the next six consecutive months of such incapacity (up to and
including the twelfth month) an allowance of an amount which is equal
to one-half of the Salary which would otherwise be payable to the
Appointee;
8.1.3 after the twelfth consecutive month of such incapacity an allowance at
the Board's discretion.
Provided always that such remuneration shall be inclusive of any
Statutory Sick Pay to which the Appointee is entitled under the
provisions of the Social Security and Housing Benefits Act 1982 and
any Social Security Sickness Benefit or other benefits recoverable by
the Appointee (whether or not recovered) may be deducted therefrom and
that the benefits to be provided to the Appointee in accordance with
the Schedule shall still continue to be provided to him.
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8.2 If after the twelfth consecutive month of absence by reason of such
incapacity the Appointee continues to be so absent the Company may
terminate the Appointment at any time by not less than twelve weeks
notice in writing to the Appointee.
8.3 In the event of absence through sickness or injury the Appointee must
notify the Company of the date of commencement and the nature of the
sickness or injury or arrange for such notification to be made on his
or her behalf on the first working day of absence either by telephone
or in writing to the Company.
8.4 In addition to notification in accordance with this Clause the
Appointee must submit to the Company a completed certificate of
sickness every seventh day of absence (or not later than the day of
return to work if the period of absence is less than seven days). In
the case of absences from work for seven days or more certificates of
sickness must be produced from the Appointee's G.P. or other medical
adviser recognised by the Company.
8.5 Monday to Friday shall be "qualifying days" for purposes of
calculating the amount of Statutory Sick Pay for any period of
sickness.
9. CONFIDENTIALITY
9.1 The Appointee shall not at any time whether during the continuance of
the Appointment or at any time after its termination divulge to any
third party whatsoever (except insofar as it may be necessary to do so
in the performance of his duties hereunder or in strict confidence to
professional advisers or as required by law or the rules of any
regulatory authority) or use take away conceal destroy or retain for
his own or another's advantage or to the detriment of the Company or
any Group Company any of the trade secrets accounts financial or
trading information or other confidential information which the
Appointee may receive or obtain in relation to the businesses finances
dealings or affairs
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of the Company or any Group Company including any information
regarding the products processes formulae research projects or other
technical data or the customers suppliers, borrowers, brokers or
agents of the Company or any Group Company and including any drawings
plans models designs papers or records howsoever recorded (whether in
writing or print or by photographic electrical magnetic symbolic or
other means) save to the extent that such information is (or becomes
other than through a breach by the Appointee of this Clause) within
the public domain.
9.2 All notes, memoranda, records and writing made by the Appointee
relating to the business of the Company or any Group Companies shall
be and remain the property of the Company or any Group Company to
whose business they relate and shall be delivered by him to the
company to which they belong forthwith upon request.
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10. INVENTIONS/COPYRIGHT
If at any time during the Appointment the Appointee either alone or
jointly makes discovers or acquires any invention development
improvement process or secret whatsoever or any interest therein
(whether the subject of letters patent or not) which relates to or
concerns any of the products of the Company or any Group Company or
creates or produces any artistic or other work which may be the
subject of copyright or other form of intellectual property protection
in any jurisdiction (except only those works and designs originated
conceived written or made by the Appointee wholly outside his normal
working hours and wholly unconnected with the Appointment) (hereafter
together referred to as "an Invention") or if details of any Invention
are communicated to the Appointee by any other employee of the
Company or any Group Company then:-
10.1 the Appointee shall forthwith in writing communicate full details
thereof including all necessary plans and models to the Board or as
the Board may direct;
10.2 any such Invention made or discovered by the Appointee or his share
therein if made or discovered jointly belongs to and is the absolute
property of the Company;
10.3 at the request of the Company and either during the Appointment or
after its termination the Appointee shall at the expense of the
Company or its nominee as part of his duties hereunder join with and
assist the Company or its nominee in obtaining and/or renewing letters
patent design and/or trade mark registrations or other like protection
in such countries as the Board may direct for any such Invention and
shall execute such deeds and documents and carry out such acts as may
be necessary for vesting in the Company or its nominee as the case may
be the sole beneficial right in any such Invention;
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10.4 the Company is under no liability to account to the Appointee for any
revenue or profit derived or resulting from any such Invention;
10.5 the Appointee hereby irrevocably and unconditionally waives in favour
of the Company any and all moral rights conferred on him by Chapter IV
of Part I of the Copyright Designs and Patents Act 1988 for any work
in which copyright or design right is vested in the Company by Clause
10; and
10.6 the Appointee hereby irrevocably and by way of security appoints any
Director of the Company to be his attorney and in his name and on his
behalf to do and execute any such act or instrument as may be
necessary for the purpose of implementing the provisions of this
Clause.
11. TERMINATION OF AGREEMENT
11.1 The Company may terminate the Appointment forthwith by notice in
writing to the Appointee in any of the following circumstances:-
11.1.1 if the Appointee is guilty of any fraud or material dishonesty
(whether or not connected with his employment) gross misconduct
(connected with his employment) or wilful neglect of duty (otherwise
than as a result of sickness (including mental or accident)) or shall
commit any continued material breach of the terms of this Deed which
material breach (if capable of remedy) shall continue unremedied for
at least 30 days of the Appointee being given written notice by the
Company requiring such breach to be remedied
11.1.2 if the Appointee is convicted of any criminal offence (excluding any
offence under road traffic legislation or any offence for which the
Appointee is not sentenced to any term of imprisonment (whether
suspended or not);
11.1.3 if the Appointee becomes bankrupt or makes any arrangement or
composition with his creditors;
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11.1.4 if the Appointee is made the subject of an order under the Mental
Health Act 1983; or
11.1.5 if the Appointee is convicted of an offence under the Criminal Justice
Act 1993
11.2 The Appointee has no claim (other than as provided in this Agreement)
against the Company or any Group Company for damages or otherwise by
reason of termination under this Clause or under Clause 8.2. Any delay
or forbearance by the Company in exercising any such right of
termination shall not constitute a waiver of that right.
11.3 In order to investigate a complaint against the Appointee of
misconduct the Company shall be entitled to suspend the Appointee on
full pay and benefits for so long as may be necessary to carry out a
proper investigation and hold a disciplinary hearing provided that
such suspension shall not be for a period longer than 30 days.
12. NO OTHER INTERESTS
12.1 The Appointee shall not at any time during the continuance of the
Appointment be or become a Director of any company (other than the
Company or any Group Company) or be engaged concerned or interested
directly or indirectly in any other business trade or occupation.
12.2 Nothing in this Deed prevents the Appointee from:-
12.2.1 being engaged concerned or interested in any other business trade or
occupation with the prior written consent of the Board; or
12.2.2 holding or being beneficially interested in not more than five per
cent of any class of securities in any company if such class of
securities is listed on a recognised Stock Exchange
13. RESTRICTIONS
13.1 The Appointee hereby covenants with and undertakes to the Company that
he will not:-
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13.1.1 at any time during the continuance of the Appointment or within the
period of twelve months after its termination induce solicit or
endeavour to entice away from the Company or any Group Company with
which the Appointee was actively engaged during the period of one year
prior to termination of the Appointment on his own behalf or on behalf
of any third party any person firm or company who or which is or was
at any time during the period of one year prior to termination of the
Appointment a customer of or in the habit of dealing with the Company
or any such Group Company:
13.1.2 at any time during the continuance of the Appointment or within the
period of twelve months after its termination induce solicit or
endeavour to entice away from the Company or any Group Company any
person who is an employee of the Company or any Group Company; or
13.1.3 at any time after the termination of the Appointment hold himself out
as being in any way connected with the Company or any of the Group
Companies or use any name which is identical or similar to or likely
to be confused with the name of the Company or any Group Company or of
any business carried on by any such company or any product or service
produced or provided by any such company or which might suggest a
connection with any such company or any of its products or services.
13.2 Each of the covenants in Clause 13.1 above constitutes a separate and
independent covenant and is to be construed independently of the other
covenants in Clause 13. 1.
13.3 The Appointee shall not, and shall ensure that any member of his
immediate family shall not, (i) buy or sell securities in Cityscape
Financial Corp. or other publicly traded securities, including without
limitation purchasing, selling, selling short and purchasing or
writing options on the securities or as to any rights, options,
warrants or convertible securities related to the said securities,
when in possession of material information
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about Cityscape Financial Corp. or any of its subsidiaries which has
not been publicly disseminated ("Inside Information") in a manner that
would violate applicable US securities laws or (ii) pass the Inside
Information along to others.
14. PROTECTION OF GOODWILL
The Appointee hereby covenants with and undertakes to the Company that
he will not within the period of one year after the termination of the
Appointment be engaged concerned or interested whether directly or
indirectly and whether as director employee sub-contractor partner
consultant proprietor or agent in any business trade or occupation
which shall in any way be in competition with any of the businesses of
the Company or any Group Company being businesses with which the
Appointee was actively engaged during the period of one year prior to
termination of the Appointment Provided always that the provisions of
this Clause shall not apply in the event that the Appointee's
employment hereunder is terminated by the Company in breach of
contract or in circumstances which amount to unfair or constructve
dismissal.
15. DOCUMENTS AND OTHER PROPERTY
All documents records correspondence price lists accounts statistics
equipment or other property relating to the businesses or affairs of
the Company or any Group Company including all those items referred to
in Clause 9 above kept in the possession or under the control of the
Appointee and all copies thereof or extracts therefrom made by or on
behalf of the Appointee are and remain the property of the Company and
will be delivered up to the Company on termination of the Appointment.
16. DIRECTORSHIPS OF THE APPOINTEE
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If the Appointee shall be a director of the Company or any Group
Company the Board on or after the Termination Date may give him notice
in writing requesting him to and he shall forthwith resign such
directorship and if the appropriate resignation or resignations shall
not be signed and delivered by the Appointee to the Board within seven
days after such request the Board may appoint any director of the
Company to sign notices of resignation as attorney for and on behalf
of any such director as his attorney for such purpose but such
resignation shall not terminate this Agreement.
17. REORGANISATIONS ETC
If the Appointee shall have been offered but shall unreasonably have
refused or unreasonably failed to agree to the transfer of this Deed
by way of novation to a company which as a result of a re-organisation
or reconstruction has acquired or agreed to acquire the whole or
substantially the whole of the undertaking and assets of or the whole
or not less than 90 per cent of the equity share capital of the
Company the Appointee shall have no claim against the Company in
respect of the termination of the Appointment by reason of the
subsequent voluntary winding up of the Company or of the disclaimer of
this Agreement by the Company within three months after such
unreasonable refusal or unreasonable failure to agree.
18. PRIOR AGREEMENTS AND CONTINUOUS PERIOD OF EMPLOYMENT
18.1 This Deed is in substitution for and supersedes all former and
existing agreements or arrangements for the employment of the
Appointee by the Company all of which are deemed to have been
cancelled with effect from the date of commencement of this Deed.
18.2 The Appointee's employment with the Company which began on 2nd August
1990 counts as part of the Appointee's continuous period of
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employment with the Company for the purposes of the Employment
Protection (Consolidation) Act 1978 (as amended).
19. DISCIPLINARY RULES AND GRIEVANCE PROCEDURE
19.1 There are no set disciplinary rules applicable to the Appointee.
19.2 If the Appointee is dissatisfied with any disciplinary decision
relating to him or wishes to seek redress of any grievance relating to
the Appointment he should apply to the Board in writing or in person
by prior appointment. The Board shall then consider his grievance
notify its decision to him afford him an opportunity of commenting
thereon and shall thereafter take such action as it considers
appropriate.
20. DIRECTORS INSURANCE
The Company shall effect and maintain insurance for the benefit of the
Appointee against any liability incurred by him in respect of any
actual omission in the actual or purported exercise, execution and/or
discharge of his powers of duties and/or otherwise in relation to his
duties, powers or officers in relation to the Company and any Group
Company of which he shall become a director. The terms and conditions
of such insurance shall not be materially less advantageous to the
Appointee than that enjoyed by him immediately prior to this
Agreement.
21. NOTICES
Any notice required to be given hereunder is deemed duly served if
delivered by hand or sent by registered or recorded delivery post to
the Company at its registered office for the time being or to the
Appointee at his last known address and is deemed to be served at the
time when the same is delivered to such address or if served by post
forty-eight hours after the time of posting.
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22. GOVERNING LAW
This Deed shall be governed by and construed in all respect in
accordance with the laws England and the parties agree to submit to
the exclusive jurisdiction of the Courts of England.
23. VARIATION
This Deed shall only be capable of being varied by a supplemental deed
signed by or on behalf of the parties.
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AS WITNESS the parties have executed this Deed the day and year first above
written.
EXECUTED and DELIVERED )
as a DEED by J & J SECURITIES- )
LIMITED acting by :- )
Director
Director /Secretary
SIGNED as a DEED and )
DELIVERED by ALEC DAVID )
JOHNSON )
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THE SCHEDULE
(Referred to in Clause 5)
RIGHTS AND BENEFITS
1. During the Appointment:-
1.1 subject to the Appointee holding a current full driving licence the
Company shall provide the Appointee with a motor car to a value of not
less than (pound)40,000 for the sole use of the Appointee and his
spouse in connection with the performance of his duties under this
Agreement. Such motor car shall be replaced in accordance with Company
policy from time to time in force;
1.2 the expenses of taxing insuring repairing maintaining and where'
appropriate the full operating lease charges and (in so far as
attributable to the use of the said motor car for the purposes of the
business of the Company or any Group Company) the expense of running
the said motor car shall be borne by the Company;
1.3 the Appointee shall ensure that at all times when the said motor car
is driven on the road it is in the state and condition required by law
and that if so required a current test certificate is in force in
respect of it. The Appointee shall also at all times be the holder of
a current driving licence entitling him to drive motor cars in the
United Kingdom and shall produce it to the Company on request; and
1.4 the Appointee (and his spouse) shall be solely entitled to use the
said motor car privately. Such use shall (subject to paragraph 1.2 of
this Schedule) be at the sole expense of the Appointee.
2. During the Appointment the Company shall also provide at its expense
for the benefit of the Appointee, his spouse and children medical
insurance with such organisation as currently provide such insurance
to the Appointee and
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provided that the level of such benefit shall not be materially
advantageous than that enjoyed by the Appointee in his employment by
the Company immediately prior to the date hereof
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