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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
CITYSCAPE FINANCIAL CORP.
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(Name of Issuer)
Common Stock, par value $0.01 per share
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(Title of Class of Securities)
178778106
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(CUSIP number)
Jonah L. Goldstein, Esq.
Cityscape Financial Corp.
565 Taxter Road
Elmsford, New York 10523
(914) 592-6677
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(Name, address and telephone number of person
authorized to receive notices and communications)
May 1, 1996
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(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 Rule 13d-1(b)(3) or (4), check the following box
/ /.
Check the following box if a fee is being paid with the statement /X/
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent of
the class of securities described in Item 1; and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of five percent or less of
such class.) (See Rule 13d-7.)
Note. Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom copies
are to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
(Page 1 of 6 Pages)
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CUSIP NO. 178778106 13D PAGE 2 OF 6 PAGES
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1 NAME OF REPORTING PERSONS
S.S OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Jay L. Botchman
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) / /
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S.
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7 SOLE VOTING POWER
NUMBER OF
2,270,000*
SHARES ------------------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY
------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
2,270,000*
PERSON WITH ------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,270,000
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
/ /
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.4%
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14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
*UPON EXERCISE OF OPTIONS WITH RESPECT TO 2,070,000 SHARES
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ITEM 1. SECURITY AND ISSUER
This statement relates to the Common Stock, par value $0.01 per share
(the "Common Stock"), of Cityscape Financial Corp., a Delaware corporation (the
"Company"). The principal executive offices of the Company are located at 565
Taxter Road, Elmsford, New York 10523.
ITEM 2. IDENTITY AND BACKGROUND
This statement is being filed by Jay L. Botchman, a U.S. citizen. Mr.
Botchman is primarily a consultant and is the sole owner of J.L.B. Equities, Inc
("J.L.B."), located at 565 Taxter Road, Elmsford, New York 10523.
Mr. Botchman has not during the past five years been convicted in a
criminal proceeding nor has he been a party to any civil proceeding of a
judicial or administrative body of competent jurisdiction, a result of which he
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to Federal or
State securities laws, or finding any violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
As more fully described below, beneficial ownership of 60,000 shares of
Common Stock and options to purchase 2,070,000 shares of Common Stock were
consideration for consulting services rendered by Mr. Botchman. Mr. Botchman has
no current plans to exercise such options. Beneficial ownership of 140,000
shares of Common Stock was acquired in consideration for the forgiveness of
indebtedness. Each of these transactions is more fully described below.
ITEM 4. PURPOSE OF TRANSACTION
Prior to April 5, 1995, Mr. Botchman acquired beneficial ownership of
60,000 shares of Common Stock (the "Trinity Shares") for consulting services
that he rendered to Trinity America Corp. ("Trinity"). Also prior to April 5,
1995, J.L.B. acquired beneficial ownership of 140,000 shares of Common Stock
(the "Omnimax Shares") for forgiveness of indebtedness relating to loans in
excess of $175,000 made by J.L.B. to Omnimax, Inc. ("Omnimax"). On March 10,
1995, in exchange for consulting services rendered by Mr. Botchman to the
Company, Mr. Botchman acquired the option to purchase an aggregate of 2,070,000
shares of Common Stock (the "Option Shares") from Messrs. Robert Grosser and
Robert C. Patent, each a director and officer of the Company, and Mr. Asher
Fensterheim, a director of the Company. Each of Messrs. Grosser, Patent and
Fensterheim granted an option to Mr. Botchman to acquire up to 690,000 shares
of Common Stock. Such options may be exercised by Mr. Botchman beginning on
July 1, 1996 and expire on March 10, 2000.
Except that, from time to time, Mr. Botchman may dispose of Common
Stock as permitted pursuant to Rule 144 of the Securities Act of 1933, as
amended, Mr. Botchman is not involved in any plan or proposal that would result
in any of the following:
- The acquisition by any person of additional securities of the
Company, or the disposition of securities of the Company;
Page 3 of 6
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- An extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Company or any of its
subsidiaries;
- A sale or transfer of a material amount of assets of the Company or
any of its subsidiaries;
- Any change in the present board of directors or management of the
Company, including any plans or proposals to change the number or
term of directors or to fill any existing vacancies on the board of
directors;
- Any material change in the present capitalization or dividend policy
of the Company;
- Any other material change in the Company's business or corporate
structure;
- Changes in the Company's charter, bylaws or instruments
corresponding thereto or other actions which may impede the
acquisition of control of the Company by any person;
- Causing a class of securities of the Company to be delisted from a
national securities exchange or to cease to be authorized to be
quoted in an inter-dealer quotation system of a registered national
securities association; or
- A class of equity securities of the Company becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the
Securities Exchange Act of 1934, as amended.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
At the close of business on April 24, 1996, there were 14,756,728
outstanding shares of Common Stock. Including the Option Shares, Mr. Botchman
beneficially owns 15.4% of the outstanding Common Stock, of which Mr. Botchman
has sole voting and dispositive power with respect to the Trinity Shares and the
Omnimax Shares and of which Mr. Botchman will acquire sole voting power and
dispositive power upon exercise of options with respect to the Option Shares.
Until the exercise of such options, sole voting and dispositive power with
respect to the Option Shares is held by the current owners of such shares. Mr.
Botchman has not effected any transactions in the Common Stock in the last 60
days.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR
RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER
Mr. Botchman's Trinity Shares and J.B.L.'s Omnimax Shares are held by
Trinity, Omnimax and/or Mr. Lynn Dixon for the account of Mr. Botchman. The
Option Shares are held by Messrs. Grosser, Patent and Fensterheim, subject to
exercise by Mr. Botchman. To the best of Mr. Botchman's knowledge, there are at
present no other contracts, arrangements, understandings or relationships (legal
or otherwise) between Mr. Botchman and any person with respect to any securities
of the Company, including but not limited to, transfer or voting of any of the
securities of the Company, finder's fees, joint ventures, loan or option
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arrangements, puts or calls, guarantees of profits, division of profits or loss
or the giving or withholding of proxies, or a pledge or contingency the
occurrence of which would give another person voting power or investment power
over the Common Stock of the Company (other than standard default and similar
provisions contained in loan agreements).
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
The foregoing summaries are qualified in their entirety by reference to
the following Exhibits:
1. Letter dated April 5, 1995 to J.L.B. Equities, Inc. from
Omnimax, Inc.
2. Letter dated April 5, 1995 to Mr. Botchman from Trinity America
Corp.
3. Option Agreement dated as of March 10, 1995 between Mr. Grosser
and Mr. Botchman.
4. Option Agreement dated as of March 10, 1995 between Mr. Patent and
Mr. Botchman.
5. Option Agreement dated as of March 10, 1995 between Mr.
Fensterheim and Mr. Botchman.
Page 5 of 6
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: May 9, 1996 s/Jay L. Botchman
------------------------------------
Jay L. Botchman
Page 6 of 6
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EXHIBIT INDEX
1. Letter dated April 5, 1995 to J.L.B. Equities, Inc. from
Omnimax, Inc.
2. Letter dated April 5, 1995 to Mr. Botchman from Trinity
America Corp.
3. Option Agreement dated as of March 10, 1995 between Mr. Grosser
and Mr. Botchman.
4. Option Agreement dated as of March 10, 1995 between Mr. Patent and
Mr. Botchman.
5. Option Agreement dated as of March 10, 1995 between Mr.
Fensterheim and Mr. Botchman.
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EXHIBIT 1
<PAGE> 2
April 5, 1995
J.L.B. Equities, Inc.
3010 Westchester Avenue
Purchase, N.Y. 10577
Gentlemen:
Omnimax, Inc. is indebted to you in a sum in excess of $175,000 as the
unpaid balance of loans hereto made by you to Omnimax, Inc. Among other things,
Abraham J. Salaman guaranteed repayment of said loan. In full payment and
satisfaction of the indebtedness of Omnimax, Inc. to you and of the liability
of Abraham J. Salaman as guarantor thereof, we are causing to be transferred to
you by Lynn Dixon, 70,000 shares of common stock of Cityscape Financial Corp.
By affixing his signature below, Lynn Dixon confirms the foregoing and
that such transfer is being made by him for and on behalf of Omnimax, Inc. and
Abraham J. Salaman and that he has no claim whatsoever against you with respect
to such transfer of the 70,000 shares.
Very truly yours,
OMNIMAX, INC.
By: /s/ Abraham J. Salaman
----------------------
Abraham J. Salaman
The above is confirmed:
/s/ Lynn Dixon
- ----------------------
Lynn Dixon
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EXHIBIT 2
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April 5, 1995
Mr. Jay L. Botchman
3010 Westchester Avenue
Purchase, N.Y. 10577
Gentlemen:
The undersigned, Trinity America Corp. confirms that you have
heretofore rendered to it certain valuable consulting services. As
consideration to you for such services we are causing to be transferred to you
30,000 shares of the common stock of Cityscape Financial Corp.
Very truly yours,
TRINITY AMERICA CORP.
By: /s/ Abraham Salaman
-------------------
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EXHIBIT 3
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OPTION AGREEMENT
This OPTION AGREEMENT is entered into as of March 10, 1995 by and
between Robert Grosser ("Optionor") and Jay L. Botchman ("Optionee").
WHEREAS, Optionor is the owner of 1,380,000 shares of the common stock,
par value $.01 per share, of Cityscape Financial Corp., a Delaware corporation
(the "Corporation"); and
WHEREAS, Optionee has provided consulting services to the Corporation
and to its wholly owned subsidiary Cityscape Corp, in the past and will
continue to do so in the future; and
WHEREAS, as a shareholder of the Corporation, Optionor derives indirect
benefits from the consulting services provided to the Corporation and Cityscape
Corp by Optionee; and
WHEREAS, Optionor desires to grant to Optionee and Optionee desires to
acquire from Optionor, an option to purchase up to 345,000 shares of the common
stock of the Corporation, par value $.01 per share (the "Common Stock"), held
by Optionor on the terms and conditions of this Agreement;
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants hereinafter
set forth, and for other good and valuable consideration, the parties hereto
have agreed, and do hereby agree, as follows:
1. Grant of Option. Optionor hereby grants to Optionee the right
and option (the "Option") to purchase, on the terms and conditions herein set
forth, up to 345,000 shares of the Common Stock held by Optionor.
<PAGE> 3
2. Term of Option. The term of the Option shall commence on July
1, 1996, and all rights to purchase shares thereunder shall cease at 11:59
P.M., Eastern Standard Time, five years from the date hereof.
3. Purchase Price. The purchase price of the shares of Common
Stock covered by the Option (the "Purchase Price") shall be Five Dollars
($5.00) per share.
4. Exercise of Option. Subject to the terms and conditions of
this Agreement, Optionee may exercise the Option during the term thereof by
giving written notice to Optionor at the address set forth under Optionor's
signature below. Such notice shall state the election to exercise the Option
and the number of shares of Common Stock as to which the Option is being
exercised, and shall be accompanied by full payment in cash or certified check
of the full Purchase price for the number of shares of Common Stock as to which
the Option is being exercised, as provided in Section 3 above. The Option may
be exercised in whole or in part. Upon receipt of the notice of election and
payment of the Purchase Price, Optionor shall cause certificates for the shares
subject to the Option to be issued in the name of Optionee. Until such time as
the Option is exercised, Optionor shall have the entire beneficial ownership
in such shares, including without limitation, all voting rights relating to
the shares, and the right to receive any dividends or other distributions
relating thereto.
2
<PAGE> 4
5. Restricted Stock. The shares of Common Stock that are subject
to the Option are restricted, and the certificates evidencing such shares bear
the following legend:
The shares represented by this certificate have not been registered
under the Securities Act of 1933. These shares have been acquired for
investment and not for distribution or resale. They may not be
mortgaged, pledged, hypothecated, or otherwise transferred without an
effective registration statement for such shares under the Securities
Act of 1933 or an opinion of counsel for the corporation that
registration is not required under such Act.
The Optionee acknowledges that any certificates evidencing shares
obtained by the Optionee upon the exercise of this Option shall bear the same
or a similar legend.
6. Adjustments. The number and class of shares subject to the
Option, and the Purchase Price per share (but not the total Purchase Price),
shall all be proportionately adjusted in the event of any change or increase or
decrease in the number of issued shares of Common Stock, without receipt of
consideration by the Corporation, that results from a split-up or consolidation
of shares, payment of a stock dividend, a recapitalization, a combination of
shares or other like capital adjustment, or upon a merger, consolidation or
reorganization of the Corporation with one or more corporations as a result of
which the Corporation is not the surviving corporation, so that, upon exercise
of the Option, Optionee shall receive the number and class of shares that he
would have received had he been the holder of the number of shares of
Common Stock for which the Option is being exercised on the date of such change
or increase or decrease in the number of shares of Common Stock or on the
effective date of such merger, consolidation or reorganization. No fractional
shares shall be issued under the Option.
7. Shares Free and Clear. All shares of Common Stock purchased by
Optionee pursuant to the exercise of the Option shall be delivered by Optionor
free and clear of all claims, liens and encumbrances of every nature (except
the provisions of
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this Agreement and any conditions concerning the shares imposed under
applicable securities laws), and Optionee shall acquire full and complete title
and right to all of such shares free and clear of all claims, liens and
encumbrances of every nature (except the provisions of this agreement and any
conditions concerning the shares imposed under applicable securities laws).
8. Representations and Warranties of Optionee. Optionee represents
and warrants to Optionor that the Option and any shares that may be acquired
upon exercise of the Option are being acquired by him for investment for his
account and not with a view to disposition in connection with a resale or other
disposition thereof and that he is an "accredited investor" within the
definition thereof set forth in Rule 501(a) of the Securities Act of 1933.
9. Representations and Warranties of Optionor. Optionor
represents and warrants to Optionee that the execution, delivery and
performance of this Agreement by the Optionor and the consummation by him of
the transactions contemplated hereby do not require the consent, waiver,
approval, license or authorization of or any filing with any person or public
authority, except as may be required by applicable securities laws and will not
violate or result in a breach of any agreement, contract, instrument,
judgement, decree or order to which he is a party or by which he is bound.
10. Specific Performance. The parties hereto acknowledge that
money damages are an inadequate remedy for breach of this Agreement because of
the difficulty of ascertaining the amount of damages that would be suffered by
Optionee in the event of a breach of this Agreement by Optionor. Therefore,
Optionor agrees that Optionee may obtain specific performance of this Agreement
and injunctive relief against any breach hereof.
11. Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered or mailed, by United States certified or registered
mail, postage prepaid, to the parties or their assignees at the addresses set
forth under the signatures below (or such other address as shall be given in
writing by either party to the other).
12. Binding Obligations. This Agreement shall be binding upon and
shall
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inure to the benefit of the parties hereto and their respective
representatives, successors and permitted assigns.
13. Applicable Law. This Agreement, the rights and obligations of
the parties hereto, and any claims or disputes relating thereto, shall be
governed by and construed in accordance with the laws of the State of New York
(but not including the choice of law rules thereof).
14. Entire Agreement. This instrument contains the entire agreement
of the parties with respect to the subject matter hereof. This Agreement may be
amended only by an agreement in writing signed by both of the parties hereto.
15. Effect of Headings. The descriptive headings contained
herein are for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
16. Assignment. Neither party hereto may assign any of his rights
or obligations under this Agreement without the prior written consent of the
other party hereto.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first hereinabove set forth.
/s/ Robert Grosser
-------------------------------
Robert Grosser
39 Windgate Drive
New City, N.Y. 10956
/s/ Jay L. Botchman
-------------------------------
Jay L. Botchman
63 Byram Shore
Greenwich, CT 06830
5
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EXHIBIT 4
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OPTION AGREEMENT
This OPTION AGREEMENT is entered into as of March 10, 1995 by and
between Robert C. Patent ("Optionor") and Jay L. Botchman ("Optionee").
WHEREAS, Optionor is the owner of 1,380,000 shares of the common stock,
par value $.01 per share, of Cityscape Financial Corp., a Delaware corporation
(the "Corporation"); and
WHEREAS, Optionee has provided consulting services to the Corporation
and to its wholly owned subsidiary Cityscape Corp, in the past and will
continue to do so in the future; and
WHEREAS, as a shareholder of the Corporation, Optionor derives indirect
benefits from the consulting services provided to the Corporation and Cityscape
Corp by Optionee; and
WHEREAS, Optionor desires to grant to Optionee and Optionee desires to
acquire from Optionor, an option to purchase up to 345,000 shares of the
common stock of the Corporation, par value $.01 per share (the "Common Stock"),
held by Optionor on the terms and conditions of this Agreement;
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants hereinafter
set forth, and for other good and valuable consideration, the parties hereto
have agreed, and do hereby agree, as follows:
1. Grant of Option. Optionor hereby grants to Optionee the right
and option (the "Option") to purchase, on the terms and conditions herein set
forth, up to 345,000 shares of the Common Stock held by Optionor.
<PAGE> 3
2. Term of Option. The term of the Option shall commence on July
1, 1996, and all rights to purchase shares thereunder shall cease at 11:59
P.M., Eastern Standard Time, five years from the date hereof.
3. Purchase Price. The purchase price of the shares of Common
Stock covered by the Option (the "Purchase Price") shall be Five Dollars
($5.00) per share.
4. Exercise of Option. Subject to the terms and conditions of
this Agreement, Optionee may exercise the Option during the term thereof by
giving written notice to Optionor at the address set forth under Optionor's
signature below. Such notice shall state the election to exercise the Option
and the number of shares of Common Stock as to which the Option is being
exercised, and shall be accompanied by full payment in cash or certified check
of the full Purchase price for the number of shares of Common Stock as to which
the Option is being exercised, as provided in Section 3 above. The Option may
be exercised in whole or in part. Upon receipt of the notice of election and
payment of the Purchase Price, Optionor shall cause certificates for the shares
subject to the Option to be issued in the name of Optionee. Until such time as
the Option is exercised, Optionor shall have the entire beneficial ownership in
such shares, including without limitation, all voting rights relating to the
shares, and the right to receive any dividends or other distributions relating
thereto.
2
<PAGE> 4
5. Restricted Stock. The shares of Common Stock that are subject
to the Option are restricted, and the certificates evidencing such shares bear
the following legend:
The shares represented by this certificate have not been registered
under the Securities Act of 1933. These shares have been acquired for
investment and not for distribution or resale. They may not be
mortgaged, pledged, hypothecated, or otherwise transferred without an
effective registration statement for such shares under the Securities
Act of 1933 or an opinion of counsel for the corporation that
registration is not required under such Act.
The Optionee acknowledges that any certificates evidencing shares
obtained by the Optionee upon the exercise of this Option shall bear the same or
a similar legend.
6. Adjustments. The number and class of shares subject to the
Option, and the Purchase Price per share (but not the total Purchase Price),
shall all be proportionately adjusted in the event of any change or increase or
decrease in the number of issued shares of Common Stock, without receipt of
consideration by the Corporation, that results from a split-up or consolidation
of shares, payment of a stock dividend, a recapitalization, a combination of
shares or other like capital adjustment, or upon a merger, consolidation or
reorganization of the Corporation with one or more corporations as a result of
which the Corporation is not the surviving corporation, so that, upon exercise
of the Option, Optionee shall receive the number and class of shares that he
would have received had he been the holder of the number of shares of Common
Stock for which the Option is being exercised on the date of such change or
increase or decrease in the number of shares of Common Stock or on the effective
date of such merger, consolidation or reorganization. No fractional shares
shall be issued under the Option.
7. Shares Free and Clear. All shares of Common Stock purchased by
Optionee pursuant to the exercise of the Option shall be delivered by Optionor
free and clear of all claims, liens and encumbrances of every nature (except
the provisions of
3
<PAGE> 5
this Agreement and any conditions concerning the shares imposed under
applicable securities laws), and Optionee shall acquire full and complete title
and right to all of such shares free and clear of all claims, liens and
encumbrances of every nature (except the provisions of this agreement and any
conditions concerning the shares imposed under applicable securities laws).
8. Representations and Warranties of Optionee. Optionee represents
and warrants to Optionor that the Option and any shares that may be acquired
upon exercise of the Option are being acquired by him for investment for his
account and not with a view to disposition in connection with a resale or other
disposition thereof and that he is an "accredited investor" within the
definition thereof set forth in Rule 501(a) of the Securities Act of 1933.
9. Representations and Warranties of Optionor. Optionor represents
and warrants to Optionee that the execution, delivery and performance of this
Agreement by the Optionor and the consummation by him of the transactions
contemplated hereby do not require the consent, waiver, approval, license or
authorization of or any filing with any person or public authority, except as
may be required by applicable securities laws and will not violate or result in
a breach of any agreement, contract, instrument, judgement, decree or order to
which he is a party or by which he is bound.
10. Specific Performance. The parties hereto acknowledge that money
damages are an inadequate remedy for breach of this Agreement because of the
difficulty of ascertaining the amount of damages that would be suffered by
Optionee in the event of a breach of this Agreement by Optionor. Therefore,
Optionor agrees that Optionee may obtain specific performance of this Agreement
and injunctive relief against any breach hereof.
11. Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered or mailed, by United States certified or registered
mail, postage prepaid, to the parties or their assignees at the addresses set
forth under the signatures below (or such other address as shall be given in
writing by either party to the other).
12. Binding Obligations. This Agreement shall be binding upon and
shall
4
<PAGE> 6
inure to the benefit of the parties hereto and their respective
representatives, successors and permitted assigns.
13. Applicable Law. This Agreement, the rights and obligations of
the parties hereto, and any claims or disputes relating thereto, shall be
governed by and construed in accordance with the laws of the State of New York
(but not including the choice of law rules thereof).
14. Entire Agreement. This instrument contains the entire agreement
of the parties with respect to the subject matter hereof. This Agreement may be
amended only by an agreement in writing signed by both of the parties hereto.
15. Effect of Headings. The descriptive headings contained herein
are for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
16. Assignment. Neither party hereto may assign any of his rights
or obligations under this Agreement without the prior written consent of the
other party hereto.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first hereinabove set forth.
/s/ Robert C. Patent
------------------------
Robert C. Patent
44 Colby Lane
Scarsdale, N.Y. 10583
/s/ Jay L. Botchman
-----------------------
Jay L. Botchman
63 Byram Shore
Greenwich, CT 06830
5
<PAGE> 1
EXHIBIT 5
<PAGE> 2
OPTION AGREEMENT
This OPTION AGREEMENT is entered into as of March 10, 1995 by and
between Asher Fensterheim ("Optionor") and Jay L. Botchman ("Optionee").
WHEREAS, Optionor is the owner of 1,330,000 shares of the common stock,
par value $.01 per share, of Cityscape Financial Corp., a Delaware corporation
(the "Corporation"); and
WHEREAS, Optionee has provided consulting services to the Corporation
and to its wholly owned subsidiary Cityscape Corp, in the past and will
continue to do so in the future; and
WHEREAS, as a shareholder of the Corporation, Optionor derives indirect
benefits from the consulting services provided to the Corporation and Cityscape
Corp by Optionee; and
WHEREAS, Optionor desires to grant to Optionee and Optionee desires to
acquire from Optionor, an option to purchase up to 345,000 shares of the common
stock of the Corporation, par value $.01 per share (the "Common Stock"), held
by Optionor on the terms and conditions of this Agreement;
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants hereinafter
set forth, and for other good and valuable consideration, the parties hereto
have agreed, and do hereby agree, as follows:
1. Grant of Option. Optionor hereby grants to Optionee the right
and option (the "Option") to purchase, on the terms and conditions herein set
forth, up to 345,000 shares of the Common Stock held by Optionor.
<PAGE> 3
2. Term of Option. The term of the Option shall commence on July
1, 1996, and all rights to purchase shares thereunder shall cease at 11:59
P.M., Eastern Standard Time, five years from the date hereof.
3. Purchase Price. The purchase price of the shares of Common
Stock covered by the Option (the "Purchase Price") shall be Five Dollars
($5.00) per share.
4. Exercise of Option. Subject to the terms and conditions of this
Agreement, Optionee may exercise the Option during the term thereof by giving
written notice to Optionor at the address set forth under Optionor's signature
below. Such notice shall state the election to exercise the Option and the
number of shares of Common Stock as to which the Option is being exercised, and
shall be accompanied by full payment in cash or certified check of the full
Purchase price for the number of shares of Common Stock as to which the Option
is being exercised, as provided in Section 3 above. The Option may be exercised
in whole or in part. Upon receipt of the notice of election and payment of the
Purchase Price, Optionor shall cause certificates for the shares subject to the
Option to be issued in the name of Optionee. Until such time as the Option is
exercised, Optionor shall have the entire beneficial ownership in such shares,
including without limitation, all voting rights relating to the shares, and the
right to receive any dividends or other distributions relating thereto.
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5. Restricted Stock. The shares of Common Stock that are subject to
the Option are restricted, and the certificates evidencing such shares bear the
following legend:
The shares represented by this certificate have not been registered
under the Securities Act of 1933. These shares have been acquired for
investment and not for distribution or resale. They may not be
mortgaged, pledged, hypothecated, or otherwise transferred without an
effective registration statement for such shares under the Securities
Act of 1933 or an opinion of counsel for the corporation that
registration is not required under such Act.
The Optionee acknowledges that any certificates evidencing shares
obtained by the Optionee upon the exercise of this Option shall bear the same
or a similar legend.
6. Adjustments. The number and class of shares subject to the
Option, and the Purchase Price per share (but not the total Purchase Price),
shall all be proportionately adjusted in the event of any change or increase or
decrease in the number of issued shares of Common Stock, without receipt of
consideration by the Corporation, that results from a split-up or consolidation
of shares, payment of a stock dividend, a recapitalization, a combination of
shares or other like capital adjustment, or upon a merger, consolidation or
reorganization of the Corporation with one or more corporations as a result of
which the Corporation is not the surviving corporation, so that, upon exercise
of the Option, Optionee shall receive the number and class of shares that he
would have received had he been the holder of the number of shares of Common
Stock for which the Option is being exercised on the date of such change or
increase or decrease in the number of shares of Common Stock or on the
effective date of such merger, consolidation or reorganization. No fractional
shares shall be issued under the Option.
7. Shares Free and Clear. All shares of Common Stock purchased by
Optionee pursuant to the exercise of the Option shall be delivered by Optionor
free and clear of all claims, liens and encumbrances of every nature (except
the provisions of
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this Agreement and any conditions concerning the shares imposed under
applicable securities laws), and Optionee shall acquire full and complete title
and right to all of such shares free and clear of all claims, liens and
encumbrances of every nature (except the provisions of this agreement and any
conditions concerning the shares imposed under applicable securities laws).
8. Representations and Warranties of Optionee. Optionee
represents and warrants to Optionor that the Option and any shares that may be
acquired upon exercise of the Option are being acquired by him for investment
for his account and not with a view to disposition in connection with a resale
or other disposition thereof and that he is an "accredited investor" within the
definition thereof set forth in Rule 501(a) of the Securities Act of 1933.
9. Representations and Warranties of Optionor. Optionor
represents and warrants to Optionee that the execution, delivery and
performance of this Agreement by the Optionor and the consummation by him of
the transactions contemplated hereby do not require the consent, waiver,
approval, license or authorization of or any filing with any person or public
authority, except as may be required by applicable securities laws and will not
violate or result in a breach of any agreement, contract, instrument,
judgement, decree or order to which he is a party or by which he is bound.
10. Specific Performance. The parties hereto acknowledge that
money damages are an inadequate remedy for breach of this Agreement because of
the difficulty of ascertaining the amount of damages that would be suffered by
Optionee in the event of a breach of this Agreement by Optionor. Therefore,
Optionor agrees that Optionee may obtain specific performance of this Agreement
and injunctive relief against any breach hereof.
11. Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered or mailed, by United States certified or registered
mail, postage prepaid, to the parties or their assignees at the addresses set
forth under the signatures below (or such other address as shall be given in
writing by either party to the other).
12. Binding Obligations. This Agreement shall be binding upon and
shall
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inure to the benefit of the parties hereto and their respective
representatives, successors and permitted assigns.
13. Applicable Law. This Agreement, the rights and obligations of
the parties hereto, and any claims or disputes relating thereto, shall be
governed by and construed in accordance with the laws of the State of New York
(but not including the choice of law rules thereof).
14. Entire Agreement. This instrument contains the entire
agreement of the parties with respect to the subject matter hereof. This
Agreement may be amended only by an agreement in writing signed by both of the
parties hereto.
15. Effect of Headings. The descriptive headings contained herein
are for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
16. Assignment. Neither party hereto may assign any of his rights
or obligations under this Agreement without the prior written consent of the
other party hereto.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first hereinabove set forth.
/s/ Asher Fensterheim
------------------------------------
Asher Fensterheim
300 Martine Avenue
White Plains, N.Y. 10601
/s/ Jay L. Botchman
------------------------------------
Jay L. Botchman
63 Byram Shore
Greenwich, CT 06830
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