1
Exhibit 10.01
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, dated as of this 2nd day of August, 1999, is
by and between (i) UniCapital Corporation, a Delaware corporation (the
"Company"), and (ii) Xxxx X. Xxxxxxxx ("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 continuing for a period of
three years, unless sooner terminated (the "Term").
2. POSITION AND DUTIES. The Company hereby employs Employee as the
President of the Company's "Technology and Finance Group". As such, Employee
shall have responsibilities, duties and authority reasonably accorded to and
expected of the President of the Company's Technology and Finance Group and will
report directly to the Chief Executive Officer of the Company. For purposes of
this Agreement, the term "Technology and Finance Group" means the subsidiaries
and other business units of the Company which are engaged in computer and
telecommunications leasing and middle market leasing, as determined by the
Company from time to time. 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 and the Technology and Finance Group. 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, during the Term, as follows:
(a) Base Salary. The annual base salary payable to Employee
shall be $350,000, payable on a regular basis in accordance with the Company's
standard payroll procedures, but not less than monthly.
2
(b) Commission.
(i) In addition to the foregoing base salary, Employee shall
receive an annual commission (the "Commission") equal to the
sum of (a) one-half of one percent (.5%) of the first
$50,000,000 of the net income earned by UniCapital's
Technology and Finance Group, as reported in UniCapital's
Annual Report on Form 10-K , and (b) one percent (1.0%) of the
net income earned by UniCapital's Technology and Finance Group
in excess of $50,000,000, as reported in UniCapital's Annual
Report on Form 10-K.
(ii) The Commission shall be payable annually within 91 days after
the end of the calendar year during which such Commission was
earned.
(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 its 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 Company or the Compensation Committee.
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.
(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
2
3
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.
(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 Company, his
superior officers, or the policies and procedures of the Company, 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 or any of
its subsidiaries, and that in the judgment of the Company materially and
adversely affects the operations or reputation of the Company or any of its
subsidiaries; (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 judgment of the Company, materially impairs Employee's ability to
perform his duties hereunder.
(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 lesser 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 his base salary 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. 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, 10 and 11 below shall survive such
termination.
3
4
7. RESTRICTION ON COMPETITION.
(a) During the Term, 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") engage or prepare to 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 specialty finance products or services in direct competition with the
Company, or any business engaging in the consolidation of the equipment leasing
or specialty finance industry, within the United States of America (the
"Territory").
(b) During the Term, and thereafter, if Employee continues to
be employed by the Company 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 Person:
(i) call upon, correspond with or otherwise engage in
discussions with any Person who is, at that time, 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;
(ii) call upon, correspond with or otherwise engage in
discussions with 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
(iii) 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.
(c) The foregoing covenants shall not be deemed to prohibit
Employee from acquiring as a passive investment not more than one percent 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.
(d) For purposes of this Section 7 and Sections 8, 9, 10 and
11, 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 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.
4
5
(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. 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 its 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.
5
6
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; (c) is reasonably believed by Employee,
based upon the advice of legal counsel, to be required to be disclosed in
defense of a lawsuit or other legal or administrative action brought against
Employee; or (d) is known to Employee prior to the date of this Agreement or is
developed by Employee after the Term; 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.
6
7
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 their
respective 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, non-solicitation agreement, invention, secrecy, or
other agreement between Employee and such third party that was in existence as
of the date of this Agreement.
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 000
0
0
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxx
Xx. Xxxx X. Xxxxxxxx
00 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
with a copy to:
-------------------------------
-------------------------------
-------------------------------
Attention:
---------------------
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 by Federal Express or other overnight
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.
8
9
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, 10 and/or 11, 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 Company 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 Company. Each party shall bear its own counsel fees. The
arbitration proceeding shall be held in the city where the principal office of
the Company is located. 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 __________, without giving effect to any
conflicts of laws principles thereof that would compel the application of the
substantive laws of any other jurisdiction. The Company and Employee each hereby
irrevocably submits to the jurisdiction of the state or federal courts located
in the State of __________ in connection with any suit, action or other
proceeding arising out of or relating to this Agreement and hereby agrees not to
assert, by way of motion, as a defense, or otherwise in such suit, action or
proceeding that the suit, action or proceeding is brought in an inconvenient
forum, that the venue of the suit, action or proceeding is improper or that this
Agreement or the subject matter hereof may not be enforced by such courts.
9
10
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 X. New
--------------------------------------
Name: Xxxxxx X. New
--------------------------------
Title: Chairman & Chief
Executive Officer
-------------------------------
EMPLOYEE:
/s/ Xxxx X. Xxxxxxxx
----------------------------------
Xxxx X. Xxxxxxxx
10
