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Exhibit 10.06
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, dated as of the 1st day of February, 1999,
is by and between (i) UniCapital Corporation, a Delaware corporation (the
"Company"), and (ii) Xxxxxx X. Xxxxxxx ("Employee").
RECITALS
The Company desires to employ Employee and to have the benefit of his
skills and services, and Employee desires to accept employment with the Company,
on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises, terms,
covenants and conditions set forth herein, and the performance of each, the
parties hereto, intending legally to be bound, hereby agree as follows:
AGREEMENTS
1. EMPLOYMENT; TERM. The Company hereby employs Employee to perform the
duties described herein, and Employee hereby accepts employment with the
Company, for a term beginning on the date hereof and expiring on April 1, 2000,
unless sooner terminated (the "Term").
2. POSITION AND DUTIES. The Company hereby employs Employee as
Executive Vice President and Chief Credit Policy Officer. Employee will report
directly to, and will be subject to the authority of, the Chief Operating
Officer of the Company. Employee hereby accepts this employment upon the terms
and conditions herein contained and agrees to devote all of his professional
time, attention, and efforts to promote and further the business of the Company.
Employee shall faithfully adhere to, execute, and fulfill all policies
established by the Company.
3. COMPENSATION. For all services rendered by Employee, the Company
shall compensate Employee as follows:
(a) Base Salary. Effective on the date hereof, the base salary
payable to Employee shall be $250,000 per year, payable on a regular basis in
accordance with the Company's standard payroll procedures, but not less than
monthly.
(b) Incentive Bonus. During the Term, Employee shall be
eligible to receive an incentive bonus up to the amount, based upon the
criteria, and payable at such times, as may be determined by the Chief Executive
Officer, upon the advice and with the consent of the Company's Board of
Directors (the "Board") or the Compensation Committee thereof. To the extent
that such bonus is to be determined in light of Employee's performance during a
specified fiscal period and this Agreement commences on a date after the start
of such fiscal period, any bonus payable in respect of such fiscal period's
results may be prorated. In addition, if the period of Employee's employment
hereunder expires before the end of a fiscal period, and if Employee is eligible
to receive a bonus at such time (such eligibility being subject to the
restrictions set
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forth in Section 6 below), any bonus payable in respect of such fiscal period's
results may be prorated.
(c) Perquisites, Benefits, and Other Compensation. During the
Term, Employee shall be entitled to receive all perquisites and benefits as are
customarily provided by the Company to similarly situated employees, subject to
such changes, additions, or deletions as the Company may make generally from
time to time, as well as such other perquisites or benefits as may be specified
from time to time by the Board.
4. EXPENSE REIMBURSEMENT. The Company shall reimburse Employee for (or,
at the Company's option, pay) all business travel and other out-of-pocket
expenses reasonably incurred by Employee in the performance of his services
hereunder during the Term. All reimbursable expenses shall be appropriately
documented in reasonable detail by Employee upon submission of any request for
reimbursement, and in a format and manner consistent with the Company's expense
reporting policy, as well as applicable federal and state tax record keeping
requirements.
5. PLACE OF PERFORMANCE. Employee understands that he may be requested
by the Company to relocate from his present residence to another geographic
location in order to more efficiently carry out his duties and responsibilities
under this Agreement or as part of a promotion or a change in duties and
responsibilities. In such event, if Employee agrees to relocate, the Company
will provide Employee with a relocation allowance, in an amount determined by
the Company, to assist Employee in covering the costs of moving himself, his
immediate family, and their personal property and effects. The total amount and
type of costs to be covered shall be determined by the Company, in light of
prevailing Company policy at the time.
6. TERMINATION; RIGHTS ON TERMINATION. Employee's employment may be
terminated in any one of the following ways, prior to the expiration of the
Term:
(a) Death. The death of Employee shall immediately terminate
the Term, and no Severance Compensation (as defined below) or other compensation
shall be owed to Employee's estate.
(b) Disability. If, as a result of incapacity due to physical
or mental illness or injury, Employee shall have been unable to perform the
essential functions of his position, with or without reasonable accommodation,
on a full-time basis for a period of four consecutive months, or for a total of
four months in any six-month period, then 30 days after written notice to
Employee (which notice may be given before or after the end of the
aforementioned periods, but which shall not be effective earlier than the last
day of the applicable period), the Company may terminate Employee's employment
hereunder if Employee is unable to resume his full-time duties at the conclusion
of such notice period. If Employee's employment is terminated as a result of
Employee's disability, the Company shall continue to pay Employee his base
salary at the then-current rate for the lesser of (i) three months from the
effective date of termination, or (ii) whatever time period is remaining under
the then-current period of the Term (without regard to renewals thereof). Such
payments shall be made in accordance with the Company's regular payroll cycle.
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(c) Termination by the Company for "Cause." The Company may
terminate the Term 10 days after written notice to Employee for "cause," which
shall be: (i) Employee's material breach of this Agreement, which breach is not
cured within 10 days of receipt by Employee of written notice from the Company
specifying the breach; (ii) Employee's gross negligence in the performance of
his duties hereunder, intentional nonperformance or misperformance of such
duties, or refusal to abide by or comply with the directives of the Board, his
superior officers, or the Company's policies and procedures, which actions
continue for a period of at least 10 days after receipt by Employee of written
notice of the need to cure or cease; (iii) Employee's willful dishonesty, fraud,
or misconduct with respect to the business or affairs of the Company, and that
in the judgment of the Company materially and adversely affects the operations
or reputation of the Company; (iv) Employee's conviction of a felony or other
crime involving moral turpitude; or (v) Employee's abuse of alcohol or drugs
(legal or illegal) that, in the Company's judgment, materially impairs
Employee's ability to perform his duties hereunder. In the event of a
termination for "cause," as enumerated above, Employee shall have no right to
any Severance Compensation or other compensation.
(d) Without Cause. At any time after the commencement of
employment, the Company may, without "cause", terminate the Term and Employee's
employment, effective 30 days after written notice is provided to Employee.
Should Employee be terminated by the Company without "cause", Employee shall
receive from the Company compensation ("Severance Compensation") equal to the
base salary at the rate then in effect for the greater of (i) twelve months from
the effective date of termination, or (ii) whatever time period is remaining
under the then-current period of the Term (without regard to renewals thereof).
Such payments shall be made in accordance with the Company's regular payroll
cycle. If Employee resigns or otherwise terminates his employment for any reason
or for no reason, other than for disability pursuant to Section 6(b), Employee
shall receive no Severance Compensation or other compensation.
(e) Payment Through Termination. Upon termination of
Employee's employment, Employee shall be entitled to receive all compensation
earned and all benefits and reimbursements (including payments for accrued
vacation and sick leave, in each case in accordance with applicable policies of
the Company) due through the effective date of termination. Additional
compensation subsequent to termination, if any, will be due and payable to
Employee only to the extent and in the manner expressly provided above in this
Section 6. With respect to incentive bonus compensation, Employee shall be
entitled to receive any bonus declared but not paid prior to termination. In
addition, in the event of a termination by the Company under Sections 6(b) or
6(d), Employee shall be entitled to receive incentive bonus compensation through
the end of the Company's fiscal year in which termination occurs, and paid in
such amounts, at such times, and in such forms as are determined pursuant to
Section 3(b) above. Except as specified in the preceding two sentences, Employee
shall not be entitled to receive any incentive bonus compensation after the
effective date of termination of his employment. All other rights and
obligations of the Company and Employee under this Agreement shall cease as of
the effective date of termination, except that Employee's obligations under
Sections 7, 8, 9 and 10 below shall survive such termination in accordance with
their terms.
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7. RESTRICTION ON COMPETITION.
(a) During the Term, and thereafter, if Employee continues to
be employed by the Company and/or any other entity owned by or affiliated with
the Company on an "at will" basis, for the duration of such period, and
thereafter for a period of two years, Employee shall not, directly or
indirectly, for himself or on behalf of or in conjunction with any other person,
company, partnership, corporation, business, group, or other entity (each, a
"Person"):
(i) engage, as an officer, director, shareholder, owner,
partner, joint venturer, or in a managerial capacity, whether as an employee,
independent contractor, consultant, advisor, lender or sales representative, in
any business engaged in providing or servicing equipment leasing or speciality
finance products or services in direct competition with the Company, or any
business engaging in the consolidation of the equipment leasing or speciality
finance industry, within the United States of America (the "Territory");
(ii) call upon any Person who is, at that time, within
the Territory, an employee of the Company for the purpose or with the intent of
enticing such employee away from or out of the employ of the Company;
(iii) call upon any Person who or that is, at that time,
or has been, within one year prior to that time, a customer of the Company
within the Territory for the purpose of soliciting or selling products or
services in direct competition with the Company within the Territory; or
(iv) on Employee's own behalf or on behalf of any
competitor, call upon any Person that, during Employee's employment by the
Company was either called upon by the Company as a prospective acquisition
candidate or was the subject of an acquisition analysis conducted by the
Company.
(b) The foregoing covenants shall not be deemed to prohibit
Employee from acquiring as an investment not more than one percent (1%) of the
capital stock of a competing business, whose stock is traded on a national
securities exchange or through the automated quotation system of a registered
securities association.
(c) It is further agreed that, in the event that Employee
shall cease to be employed by the Company and enters into a business or pursues
other activities that, at such time, are not in competition with the Company,
Employee shall not be chargeable with a violation of this Section 7 if the
Company subsequently enters the same (or a similar) competitive business or
activity.
(d) For purposes of this Section 7 and Sections 8, 9 and 10,
references to the "Company" shall mean UniCapital Corporation, together with its
subsidiaries and affiliates.
(e) The covenants in this Section 7 are severable and
separate, and the unenforceability of any specific covenant shall not affect the
provisions of any other covenant. If any provision of this Section 7 relating to
the time period or geographic area of the restrictive covenants shall be
declared by a court of competent jurisdiction to exceed the maximum time period
or geographic area, as applicable, that such court deems reasonable and
enforceable, said
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time period or geographic area shall be deemed to be, and thereafter shall
become, the maximum time period or largest geographic area that such court deems
reasonable and enforceable and this Agreement shall automatically be considered
to have been amended and revised to reflect such determination.
(f) All of the covenants in this Section 7 shall be construed
as an agreement independent of any other provision in this Agreement, and the
existence of any claim or cause of action of Employee against the Company,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Company of such covenants; provided, that upon
the failure of the Company to make any payments required under this Agreement,
Employee may, upon 30 days' prior written notice to the Company, waive his right
to receive any additional compensation pursuant to this Agreement and engage in
any activity prohibited by the covenants of this Section 7. It is specifically
agreed that the period of two years stated at the beginning of this Section 7,
during which the agreements and covenants of Employee made in this Section 7
shall be effective, shall be computed by excluding from such computation any
time during which Employee is in violation of any provision of this Section 7.
(g) If the time period specified by this Section 7 shall be
reduced by law or court decision, then, notwithstanding the provisions of
Section 6 above, Employee shall be entitled to receive from the Company his base
salary at the rate then in effect solely for the longer of (i) the time period
during which the provisions of this Section 7 shall be enforceable under the
provisions of such applicable law, or (ii) the time period during which Employee
is not engaging in any competitive activity, but in no event longer than the
applicable period provided in Section 6 above.
(h) Employee has carefully read and considered the provisions
of this Section 7 and, having done so, agrees that the restrictive covenants in
this Section 7 impose a fair and reasonable restraint on Employee and are
reasonably required to protect the interests of the Company, and their
respective officers, directors, employees, and stockholders. It is further
agreed that the Company and Employee intend that such covenants be construed and
enforced in accordance with the changing activities, business, and locations of
the Company throughout the term of these covenants.
8. CONFIDENTIAL INFORMATION. Employee hereby agrees to hold in strict
confidence and not to disclose to any third party any of the valuable,
confidential, and proprietary business, financial, technical, economic, sales,
and/or other types of proprietary business information relating to the Company
(including all trade secrets), in whatever form, whether oral, written, or
electronic (collectively, the "Confidential Information"), to which Employee
has, or is given (or has had or been given), access as a result of his
employment by the Company. It is agreed that the Confidential Information is
confidential and proprietary to the Company because such Confidential
Information encompasses technical know-how, trade secrets, or technical,
financial, organizational, sales, or other valuable aspects of the Company's
business and trade, including, without limitation, technologies, products,
processes, plans, clients, personnel, operations, and business activities. This
restriction shall not apply to any Confidential Information that (a) becomes
known generally to the public through no fault of Employee; (b) is required by
applicable law, legal process, or any order or mandate of a court or other
governmental authority to be disclosed; or (c) is reasonably believed by
Employee, based upon the advice of legal
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counsel, to be required to be disclosed in defense of a lawsuit or other legal
or administrative action brought against Employee; provided, that in the case of
clauses (b) or (c), Employee shall give the Company reasonable advance written
notice of the Confidential Information intended to be disclosed and the reasons
and circumstances surrounding such disclosure, in order to permit the Company to
seek a protective order or other appropriate request for confidential treatment
of the applicable Confidential Information.
9. INVENTIONS. Employee shall disclose promptly to the Company any and
all significant conceptions and ideas for inventions, improvements, and valuable
discoveries, whether patentable or not, that are conceived or made by Employee,
solely or jointly with another, during the period of employment or within one
year thereafter, and that are directly related to the business or activities of
the Company and that Employee conceives as a result of his employment by the
Company, regardless of whether or not such ideas, inventions, or improvements
qualify as "works for hire". Employee hereby assigns and agrees to assign all
his interests therein to the Company or its nominee. Whenever requested to do so
by the Company, Employee shall execute any and all applications, assignments, or
other instruments that the Company shall deem necessary to apply for and obtain
Letters Patent of the United States or any foreign country or to otherwise
protect the Company's interest therein.
10. RETURN OF COMPANY PROPERTY; ACCESS TO RECORDS. Promptly upon
termination of Employee's employment by the Company for any reason or no reason,
Employee or Employee's personal representative shall return to the Company (a)
all Confidential Information; (b) all other records, designs, patents, business
plans, financial statements, manuals, memoranda, lists, correspondence, reports,
records, charts, advertising materials, and other data or property delivered to
or compiled by Employee by or on behalf of the Company or its representatives,
vendors, or customers that pertain to the business of the Company, whether in
paper, electronic, or other form; and (c) all keys, credit cards, vehicles, and
other property of the Company. Employee shall not retain or cause to be retained
any copies of the foregoing. Employee hereby agrees that all of the foregoing
shall be and remain the property of the Company, as the case may be, and be
subject at all times to their discretion and control.
11. NO PRIOR AGREEMENTS. Employee hereby represents and warrants to the
Company that the execution of this Agreement by Employee, his employment by the
Company, and the performance of his duties hereunder will not violate or be a
breach of any agreement with a former employer, client, or any other Person.
Further, Employee agrees to indemnify and hold harmless the Company and its
officers, directors, and representatives for any claim, including, but not
limited to, reasonable attorneys' fees and expenses of investigation, of any
such third party that such third party may now have or may hereafter come to
have against the Company or such other persons, based upon or arising out of any
non-competition agreement, invention, secrecy, or other agreement between
Employee and such third party that was in existence as of the date of this
Agreement. To the extent that Employee had any oral or written employment
agreement or understanding with the Company, this Agreement shall automatically
supersede such agreement or understanding, and upon execution of this Agreement
by Employee and the Company, such prior agreement or understanding automatically
shall be deemed to have been terminated and shall be null and void.
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12. ASSIGNMENT; BINDING EFFECT. Employee understands that he has been
selected for employment by the Company on the basis of his personal
qualifications, experience, and skills. Employee agrees, therefore, that he
cannot assign all or any portion of his performance under this Agreement. This
Agreement may not be assigned or transferred by the Company without the prior
written consent of Employee. Subject to the preceding two sentences, this
Agreement shall be binding upon, inure to the benefit of, and be enforceable by
the parties hereto and their respective heirs, legal representatives, and
assigns. Notwithstanding the foregoing, if Employee accepts employment with a
subsidiary or affiliate of the Company, unless Employee and his new employer
agree otherwise in writing, this Agreement shall automatically be deemed to have
been assigned to such new employer (which shall thereafter be an additional or
substitute beneficiary of the covenants contained herein, as appropriate), with
the consent of Employee, such assignment shall be considered a condition of
employment by such new employer, and references to the "Company" in this
Agreement shall be deemed to refer to such new employer. If the Company is
merged with or into one of its subsidiaries or affiliates, such action shall not
be considered to cause an assignment of this Agreement, and the surviving or
successor entity shall become the beneficiary of this Agreement and all
references to the "Company" shall be deemed to refer to such surviving or
successor entity.
13. COMPLETE AGREEMENT WAIVER; AMENDMENT. This Agreement is not a
promise of future employment. Employee has no oral representations,
understandings, or agreements with the Company or any of its officers,
directors, or representatives covering the same subject matter as this
Agreement. This Agreement is the final, complete, and exclusive statement and
expression of the agreement between the Company and Employee with respect to the
subject matter hereof, and cannot be varied, contradicted, or supplemented by
evidence of any prior or contemporaneous oral or written agreements. This
written Agreement may not be later modified except by a further writing signed
by a duly authorized officer of the Company and Employee, and no term of this
Agreement may be waived except by a writing signed by the party waiving the
benefit of such term.
14. NOTICE. Whenever any notice is required hereunder, it shall be
given in writing addressed as follows:
To the Company: UniCapital Corporation
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxx
To Employee: Xxxxxx X. Xxxxxxx
0000 X. X. 0xx Xxxxxx
Xxxx 000
Xxxxxxxx Xxxxx, Xxxxxxx 00000
Notice shall be deemed given and effective three days after the deposit in the
U.S. mail of a writing addressed as above and sent first class mail, certified,
return receipt requested, or, if sent
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by express delivery, hand delivery, or facsimile, when actually received. Either
party may change the address for notice by notifying the other party of such
change in accordance with this Section 14.
15. SEVERABILITY; HEADINGS. If any portion of this Agreement is held
invalid or inoperative, the other portions of this Agreement shall be deemed
valid and operative and, so far as is reasonable and possible, effect shall be
given to the intent manifested by the portion held invalid or inoperative. This
severability provision shall be in addition to, and not in place of, the
provisions of Section 7(e) above. The paragraph headings herein are for
reference purposes only and are not intended in any way to describe, interpret,
define or limit the extent or intent of the Agreement or of any part hereof.
16. EQUITABLE REMEDY. Because of the difficulty of measuring economic
losses to the Company as a result of a breach of the restrictive covenants set
forth in Sections 7, 8, 9 and 10, and because of the immediate and irreparable
damage that would be caused to the Company for which monetary damages would not
be a sufficient remedy, it is hereby agreed that in addition to all other
remedies that may be available to the at law or in equity, the Company shall be
entitled to specific performance and any injunctive or other equitable relief as
a remedy for any breach or threatened breach of the aforementioned restrictive
covenants.
17. ARBITRATION. Any unresolved dispute or controversy arising under or
in connection with this Agreement shall be settled exclusively by arbitration
conducted in accordance with the rules of the American Arbitration Association
then in effect. The arbitrators shall not have the authority to add to, detract
from, or modify any provision hereof nor to award punitive damages to any
injured party. A decision by a majority of the arbitration panel shall be final
and binding. Judgment may be entered on the arbitrators' award in any court
having jurisdiction. The direct expense of any arbitration proceeding shall be
borne by the party or parties designated by the arbitration panel. Each party
shall bear its own counsel fees. The arbitration proceeding shall be held in
Miami, Florida. Notwithstanding the foregoing, the Company shall be entitled to
seek injunctive or other equitable relief, as contemplated by Section 16 above,
from any court of competent jurisdiction, without the need to resort to
arbitration.
18. GOVERNING LAW. This Agreement shall in all respects be construed
according to the laws of the State of Florida, without giving effect to any
conflicts of laws principles thereof that would compel the application of the
substantive laws of any other jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have cause this Agreement to be
duly executed as of the date first written above.
UNICAPITAL CORPORATION
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
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Title: Executive Vice President
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EMPLOYEE:
/s/ Xxxxxx X. Xxxxxxx
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XXXXXX X. XXXXXXX
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