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CUSIP NO. 31769Q-10-8 Page 1 of 12 Pages
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)
Financial Services Acquisition Corporation
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, $.001 par value
- --------------------------------------------------------------------------------
(Title of Class of Securities)
31769Q-10-8
- --------------------------------------------------------------------------------
(CUSIP Number)
Donald R.A. Marshall
c/o Euro Brokers Investment Corporation
Two World Trade Center, Suite 8400
New York, New York 10048
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
November 19, 1996
-----------------------------
(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 this statement [ ].
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CUSIP NO. 31769Q-10-8 Page 2 of 12 Pages
1) Name of Reporting Person Donald R.A. Marshall
S.S. or I.R.S. Identification
No. of Above Person
- --------------------------------------------------------------------------------
2) Check the Appropriate Box (a) [ ]
if a Member of a Group (b) [ ]
- --------------------------------------------------------------------------------
3) SEC Use Only
- --------------------------------------------------------------------------------
4) Source of Funds OO
- --------------------------------------------------------------------------------
5) Check if Disclosure of
Legal Proceedings Is Not Applicable
Required Pursuant to
Items 2(d) or 2(e)
- --------------------------------------------------------------------------------
6) Citizenship or Place
of Organization United States
- --------------------------------------------------------------------------------
Number of 7) Sole Voting 1,428,947 shares of
Shares Beneficially Power Common Stock,
Owned by Each including shares
Reporting Person issuable upon
exercise of
Warrants
------------------------------------
8) Shared Voting
Power -0-
------------------------------------
9) Sole Disposi- 1,428,947 shares of
tive Power of Common Stock,
including shares
issuable upon
exercise of
Warrants
------------------------------------
10) Shared Dis-
positive Power -0-
------------------------------------
11) Aggregate Amount Beneficially 1,428,947 shares of
Owned by Each Reporting Person Common Stock,
including shares
issuable upon
exercise of
Warrants
- --------------------------------------------------------------------------------
12) Check if the Aggregate
Amount in Row (11)
Excludes Certain Shares
- --------------------------------------------------------------------------------
13) Percent of Class
Represented by 14.4%
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CUSIP NO. 31769Q-10-8 Page 3 of 12 Pages
Amount in Row (11)
- --------------------------------------------------------------------------------
14) Type of Reporting
Person IN
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CUSIP NO. 31769Q-10-8 Page 4 of 12 Pages
Schedule 13D
Donald R.A. Marshall (the "Reporting Person") hereby amends
his Statement on Schedule 13D relating to the Common Stock, $.001 par value (the
"Common Stock"), of Financial Services Acquisition Corporation, a Delaware
corporation (the "Issuer"), dated August 16, 1996, as follows:
Item 1. Security and Issuer.
The last sentence of the first paragraph is hereby deleted and replaced by the
following:
"The principal executive offices of the Issuer are located at Two World
Trade Center, 84th floor, New York, New York 10048."
Item 2. Identity and Background.
Paragraph (c) is hereby deleted and replaced by the following:
"(c) The present principal occupation of the
Reporting Person is acting as a private investor and consultant."
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities
of the Issuer.
The following two paragraphs are hereby inserted as additional paragraphs at the
end of Item 6:
Pursuant to an agreement, dated November 19, 1996,
among the Reporting Person, the Issuer and EBIC (the "Consultancy
Agreement"), the Reporting Person resigned, with effect at the end of
November 22, 1996 (the "Effective Date"), as an employee, officer and
director of each of the Issuer, EBIC and their subsidiaries and agreed
to serve as a consultant to EBIC for a period of three years from the
Effective Date. Among other things, the Consultancy Agreement provides
that the Issuer will use its reasonable best efforts during the one
year period following the Effective Date to arrange for the private
sale or sales, at mutually agreed prices, of up to 50% of the shares of
Common Stock currently owned by the Reporting Person (and up to 50% of
any shares of Common Stock received by the Reporting Person during such
time upon exchange or exercise of Warrants currently owned by the
Reporting Person). In addition, should the Reporting Person die while a
key person life insurance policy (the "Policy") currently maintained by
EBIC in the amount of approximately $9.3 million with
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CUSIP NO. 31769Q-10-8 Page 5 of 12 Pages
respect to the Reporting Person is in effect, the Consultancy Agreement
obligates the Issuer (or its designee) to purchase (and the Reporting
Person's estate to sell) all shares (the "Shares") of Common Stock
beneficially owned by the Reporting Person at the time of his death
(including shares previously transferred to a spouse, descendants or
trusts), at a price (the "Price") equal to 50% of the after-tax
proceeds of the Policy actually received by the Issuer; provided,
however, that if such event were to occur after February 1, 1997 and
the fair market value of the Shares at such time were to exceed the
Price, the Issuer would be entitled to purchase (and the estate would
be obligated to sell) only that number of the Shares as is equal to the
quotient of the Price divided by such fair market value.
The foregoing is merely a summary of certain
provisions of the Consultancy Agreement and is qualified in its
entirety by reference to the full text of the Consultancy Agreement, a
copy of which is attached hereto as Exhibit F and incorporated herein
by reference."
Item 7. Material to Be Filed as Exhibits.
The following document is hereby added as an additional exhibit:
"Exhibit F - Consultancy Agreement, dated November
19, 1996, by and among the Reporting Person, the Issuer and EBIC"
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CUSIP NO. 31769Q-10-8 Page 6 of 12 Pages
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.
/s/ Donald R.A. Marshall
-------------------------
Donald R.A. Marshall
Dated: December 13, 1996
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CUSIP NO. 31769Q-10-8 Page 7 of 12 Pages
EXHIBIT F
---------
Financial Services Acquisition Corporation
* * *
Euro Brokers Investment Corporation
November 19, 1996
Mr. Donald R.A. Marshall
927 Mohawk Road
Franklin Lakes, NJ 07417
Dear Donald:
This letter, when signed by all parties, will confirm our
agreement with respect to the changes in your employment and other relationships
with each of Financial Services Acquisition Corporation ("FSAC") and Euro
Brokers Investment Corporation (the "Company").
1. Termination of Existing Employment Agreement. The existing
employment agreement between you and the Company, dated as of March 8, 1996 (the
"Employment Agreement"), is hereby terminated by mutual agreement, effective as
of the close of business on November 22, 1996 (the "Effective Date"). You hereby
resign, effective as of the Effective Date, as an employee, officer and director
of each of FSAC, the Company and their subsidiaries.
2. Term and Certain Services. From and after the Effective
Date, and continuing through the third anniversary of the Effective Date (the
"Term"), you agree to make yourself reasonably available from time to time on
reasonable notice to consult and cooperate with and advise the Company with
respect to such matters involving the business of the Company as may reasonably
be requested (including, if required, being deposed in third-party lawsuits
relating to periods prior to the Effective Date). There is no minimum amount of
time, however, for which you must make yourself available and it is expressly
understood that you may pursue other personal or business interests during the
Term (subject to the non-competition and other provisions hereof).
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CUSIP NO. 31769Q-10-8 Page 8 of 12 Pages
3. Compensation. During the Term, in consideration of the
above services and the non-solicitation/non-competition covenants below, the
Company will pay you annual compensation of $450,000, payable in approximately
equal installments in accordance with past practices and the Company's customary
payroll procedures. In addition, you will remain eligible to receive a bonus for
the six-month period ending December 31, 1996, it being understood, however,
that the determination as to the making and, if made, the amount of any such
award will be in the sole discretion of the Board of Directors of the Company.
In addition, during the ten year period following the Effective Date, as
specific additional compensation for your covenants in Paragraph 7 below, the
Company will pay you $2,000 per month, either as reimbursement for your expenses
upon submission of appropriate receipts and invoices or, to the extent such
expenses are not incurred by you, as additional compensation.
4. Other Benefits. During the Term (unless you are earlier
employed by another company offering similar benefits), you shall continue to be
eligible to participate, at the Company's expense, in the life insurance,
medical insurance and accident and disability insurance plans that the Company
offers to its executive officers (subject to the requirements of such plans and
applicable law). After the Term and continuing until your death (or, if you are
still married to and predecease your current spouse, continuing until her
death), the Company will use its reasonable best efforts to maintain your
participation in its group medical insurance plan or, if the terms of the plan
or of applicable law do not so allow, will procure and pay for such separate
medical insurance coverage for you and your spouse as is obtainable at a cost
not materially in excess of the cost to the Company at such time of your
participation in its plan. It is understood that the coverage of any such
medical insurance (group or separate) will terminate during any periods in which
you otherwise obtain, or are employed by another company offering, medical
insurance benefits and will be limited to the extent that Medicare/Medicaid (or
similar programs) eventually provide you and your spouse with coverage. The
Company will continue to provide you with your current office space through
December 31, 1996.
5. Options. Prior to the Effective Date, FSAC will award you
150,000 stock options under FSAC's 1996 Stock Option Plan, with such options to
vest in three equal installments on the first, second and third anniversaries of
the Effective Date.
6. Stock. FSAC will use its reasonable best efforts during the
first year of the Term to arrange for the private sale or sales, at mutually
agreed prices, of up to 50% of the shares of its common stock currently owned by
you (and up to 50% of any
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CUSIP NO. 31769Q-10-8 Page 9 of 12 Pages
shares received by you during such time upon exchange or exercise of FSAC
warrants currently owned by you).
7. Non-Solicitation/Non-Competition/Confidentiality Covenants.
In consideration of the compensation and other benefits and arrangements
provided for herein, you agree that, without the prior written consent of FSAC's
Chief Executive Officer, you will not, directly or indirectly, with or without
pay, either as an employee, employer, consultant, agent, principal, partner,
stockholder, corporate officer, director, manager, investor, lender, advisor,
owner, associate or in any other individual or representative capacity, (i)
during the Term solicit, entice, encourage or otherwise attempt to procure or
service by telephone or otherwise accounts from, or otherwise interfere with,
disrupt or damage or attempt to interfere with, disrupt or damage the
relationship of the Company or a subsidiary with, any customers or prospective
customers (in each case determined as of the Effective Date) of the Company or a
subsidiary thereof for a business that is engaged in or otherwise conducts or
provides a business or service that is competitive in any manner (a "Competitive
Business") with any of the businesses or services in which the Company is
engaged (or known to you to be specifically contemplating being engaged) as of
the Effective Date (the "Business"), (ii) during the Term either solicit, entice
or encourage any employee (determined as of the Effective Date) of the Company
or a subsidiary thereof to terminate such employee's employment or aid or assist
in any fashion a Competitive Business in the hiring of such employee or (iii)
during the two year period following the Effective Date engage or participate
in, or aid or assist in any manner, any Competitive Business. Notwithstanding
the termination of the Employment Agreement, you agree that Section 11(a)
thereof (relating to confidentiality) shall survive.
8. Publicity; Non-Disparagement. The content of all press
releases and other publicity concerning the agreement made hereby shall be
mutually agreed among you, FSAC and the Company. Neither you, on the one hand,
nor FSAC and the Company, on the other hand, shall make or publish, directly or
indirectly, any statement which is (or might reasonably be construed to be)
disparaging of the other.
9. No Other Claims. The obligations contained in this letter
agreement constitute the entirety of FSAC's and the Company's obligations to you
and, except for any breach by FSAC or the Company of their respective
obligations hereunder, you agree that none of FSAC, the Company, their
subsidiaries or the respective officers, directors, employees and shareholders
thereof will have any liability to you with respect to the Employment Agreement,
your employment with the Company or the
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CUSIP NO. 31769Q-10-8 Page 10 of 12 Pages
termination of that employment.
10. Key Man Life Insurance and Share Purchase Obligations.
Without limiting the generality of the foregoing Paragraph 9, and
notwithstanding anything to the contrary contained elsewhere in this letter
agreement, it is agreed that the letter agreement, dated May 18, 1995, between
you and the Company with respect to key man life insurance and certain related
matters is hereby terminated in its entirety (to be replaced solely by the
obligations of this Paragraph 10). It is acknowledged that the premiums with
respect to the policy referred to in such letter agreement (the "Policy") have
been prepaid until February 1, 1997. The Company agrees to maintain the Policy
in effect until such date, but will not be obligated to (although you hereby
agree that the Company will be permitted to) continue the Policy in effect after
such date. If you should die before February 1, 1997 (or such later date as the
Company chooses to maintain the Policy), it is hereby agreed that FSAC or its
designee will purchase at a price equal to 50% of the after-tax proceeds of the
Policy actually received by the Company (the "Price"), and you hereby agree to
sell to FSAC or its designee at the Price (which agreement shall be binding on
your estate), all securities of FSAC beneficially owned by you (including FSAC
securities previously transferred by you, and FSAC securities received in
exchange for the Company's securities previously transferred by you, in each
case to any of your spouse, descendants or trusts for any of the foregoing) at
the time of your death (the "Shares"). Notwithstanding the immediately preceding
sentence, if the Policy is extended by the Company beyond February 1, 1997 and
the fair market value of the Shares at the time of the purchase contemplated
hereby would exceed the Price, then FSAC shall be entitled to purchase, and you
(and your estate) shall be obligated to sell, only that number of the Shares as
is equal to the quotient obtained by dividing the Price by such fair market
value. For purposes of the immediately preceding sentence, the fair market value
of the Shares shall be determined by an investment banker jointly selected by
FSAC and your legal representative or, if they cannot promptly agree on a
banker, by an investment banker jointly selected by investment bankers
respectively selected by each of FSAC and your legal representative.
Notwithstanding anything in this Paragraph 10 to the contrary, if you so request
of the Company in writing prior to the expiration or termination of the Policy,
and it is permitted by the terms of the Policy and the underwriter thereof, the
Company will fully cooperate with you in attempting to have the Policy (in its
original, or any adjusted, amount of coverage) and all of its rights (including
the right to designate a beneficiary) and obligations (including the obligation
to pay premiums) assigned to you by, and assumed by you from, the Company. If
such assignment and assumption is made, all rights
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CUSIP NO. 31769Q-10-8 Page 11 of 12 Pages
and obligations under this Paragraph 10 with respect to the Shares shall
thereupon automatically cease.
11. Remedies. In the event of a breach or threatened breach by
you of any of the provisions of Paragraph 7 above, you agree that the Company
shall be entitled, in addition to any other remedies, to injunctive relief in a
court of appropriate jurisdiction to remedy such breach or threatened breach.
You agree and acknowledge that the payment of compensation and other benefits
under Paragraphs 3 and 4 above, and the vesting and exercisability of the
options to be granted under Paragraph 5 above, are expressly conditioned on the
continued performance of your covenants under Paragraph 7 above.
12. Validity. The invalidity or unenforceability of any
provision of this letter agreement shall not affect the validity or
enforceability of any other provision hereof; provided, however, that if any one
or more of the terms contained in Paragraph 7 above shall for any reason be held
to be excessively broad with regard to time, duration, geographic scope or
activity, that term shall not be deleted but shall be construed and/or reformed
in a manner to enable it to be enforced to the maximum extent possible.
13. Attorneys' Fees. In the event that you, on the one hand,
and FSAC and/or the Company, on the other hand, become involved in any action,
suit or proceeding relating to an alleged breach of this letter agreement and a
monetary judgment or injunctive relief in such action, suit or proceeding is
rendered or entered against either party, such party shall be liable for and pay
to the prevailing party on demand all costs and expenses (including reasonable
attorneys' fees) incurred by such prevailing party in connection with such
action, suit or proceeding, including any appeal therefrom.
14. Assignment. This letter agreement, and your rights and
obligations hereunder, are personal to you and may not be assigned by you.
15. Binding Effect; Amendment; Governing Law. This letter
agreement contains all material terms of the agreement among you, FSAC and the
Company, and shall be fully effective and binding upon its execution by all
parties hereto. This letter agreement may not be amended except by a writing
signed by all parties hereto. This letter agreement shall be governed by and
construed in accordance with the laws of the State of New York.
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CUSIP NO. 31769Q-10-8 Page 12 of 12 Pages
If this letter agreement correctly sets forth your
understanding of our agreement, please so indicate by signing below, whereupon
this letter agreement shall become effective.
Very truly yours,
FINANCIAL SERVICES ACQUISITION
CORPORATION
By: /s/ Gilbert Scharf
--------------------------
Gilbert Scharf, Chairman
EURO BROKERS INVESTMENT
CORPORATION
By: /s/ Gilbert Scharf
--------------------------
Gilbert Scharf, Vice Chairman
Agreed:
/s/ Donald R.A. Marshall
- ---------------------------------
Donald R.A. Marshall
