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Exhibit 10.13
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, dated as of this 20th day of May, 1998, is
by and among UniCapital Corporation ("UniCapital"), a Delaware corporation,
Jacom Computer Services, Inc., a New York corporation (the "Company") and a
wholly-owned subsidiary of UniCapital and Xxxx X. Xxxxxx ("Employee").
RECITALS
The Company desires to continue to employ Employee and to have the
benefit of his skills and services, and Employee desires to continue 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
two years (the "Term").
2. POSITION AND DUTIES. The Company hereby employs Employee as
President and UniCapital hereby names Employee National Marketing Director of
UniCapital. As such, Employee shall have responsibilities, duties and authority
reasonably accorded to and expected of the President of the Company, including,
but not limited to, day to day control of the Company and the full authority
accorded the President of the Company before it became a subsidiary of
UniCapital. Notwithstanding the foregoing, Employee will report directly to, and
will be subject to the authority of, the Board of Directors of the Company (the
"Board"). 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, if consented
to by the Employee, a particular business area of UniCapital. Employee shall
faithfully adhere to, execute, and fulfill all policies established by the
Company. During the Term, the Company's principal executive office shall be
located at its current location in the State of New Jersey and Employee shall
not be required to be based in any other offices without his prior consent.
3. COMPENSATION. For all services rendered by Employee, the Company
shall compensate Employee as follows:
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(a) Base Salary. Effective on the date hereof, the base salary
payable to Employee shall be $300,000 per year, payable on a regular basis in
accordance with the Company's standard payroll procedures, but not less than
monthly. On at least an annual basis, the Board will review Employee's
performance and may make increases to such base salary if, in its sole
discretion, any such increase is warranted.
(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 Board, upon the
advice and with the consent of UniCapital's Board of Directors or the
Compensation Committee thereof. The amount, manner of payment, and form of
consideration, if any, shall be determined by the Board, in its sole and
absolute discretion, and such determination shall be binding and final. To the
extent that such bonus is to be determined in light of financial 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 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 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 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. [INTENTIONALLY OMITTED]
6. TERMINATION; RIGHTS ON TERMINATION. Employee's employment may be
terminated in any one of the followings 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.
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(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. Subject to Section 6(f) below, 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; (ii) Employee's
gross negligence in the performance of his duties hereunder, intentional
nonperformance or mis-performance 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; (iii) Employee's willful dishonesty, fraud, or
misconduct with respect to the business or affairs of the Company or UniCapital,
and that in the judgment of the Company or UniCapital materially and adversely
affects the operations or reputation of the Company or UniCapital; (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 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. 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
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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 Section 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, calculated as
if Employee had remained employed by the Company through the end of such fiscal
year, and paid in such amounts, at such times, and in such forms as are
determined pursuant to Section 3(b) above and Exhibit A attached hereto. 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 UniCapital, 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.
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 or UniCapital 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, 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 UniCapital, 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 or UniCapital for the purpose
or with the intent of enticing such employee away from or out of the employ of
the Company or UniCapital;
(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
or UniCapital within the Territory for the purpose of soliciting or selling
products or services in direct competition with the Company or UniCapital 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 or UniCapital was either called upon by the Company or UniCapital as a
prospective acquisition candidate or was the subject of an acquisition analysis
conducted by the Company or UniCapital.
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(b) The foregoing covenants shall not be deemed to prohibit
Employee from acquiring as an investment not more than five 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.
(c) It is further agreed that, in the event that Employee
shall cease to be employed by the Company or UniCapital and enters into a
business or pursues other activities that, at such time, are not in competition
with the Company or UniCapital, Employee shall not be chargeable with a
violation of this Section 7 if the Company or UniCapital subsequently enters the
same (or a similar) competitive business or activity. In addition, if Employee
has no actual knowledge that his actions violate the terms of this Section 7,
Employee shall not be deemed to have breached the restrictive covenants
contained herein if, promptly after being notified by the Company or UniCapital
of such breach, Employee ceases the prohibited actions.
(d) For purposes of this Section 7, references to "UniCapital"
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.
(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 or
UniCapital, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by UniCapital or 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
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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 UniCapital, 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 and UniCapital 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
and/or UniCapital (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 and/or UniCapital because such
Confidential Information encompasses technical know-how, trade secrets, or
technical, financial, organizational, sales, or other valuable aspects of the
Company's and UniCapital'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 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 and
UniCapital 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 or UniCapital 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.
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10. RETURN OF COMPANY PROPERTY. 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, UniCapital or their respective
representatives, vendors, or customers that pertain to the business of the
Company or UniCapital, whether in paper, electronic, or other form; and (c) all
keys, credit cards, vehicles, and other property of the Company or UniCapital.
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 or UniCapital, 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.
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,
successors, and assigns. Notwithstanding the foregoing, if Employee accepts
employment with a subsidiary or affiliate of UniCapital other than 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 another subsidiary or
affiliate of UniCapital, 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. It is intended that
UniCapital will be a third-party
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beneficiary of the rights of the Company under this Agreement. No other Person
shall be a third-party beneficiary.
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
0000 Xxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxx Xxxxxx, XX 00000
Attention: Xxxxxx Xxxx, Esquire
Telefax: (000) 000-0000
with a copy to: Xxxxxx, Xxxxx & Xxxxxxx, LLP
Xxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esquire
Telefax: (000) 000-0000
To Employee: Xxxx X. Xxxxxx
000 Xxxxxxxxxx
Xxxxxxxxx, Xxx Xxxxxx 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 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
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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 and/or UniCapital 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 and/or
UniCapital 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 or UniCapital at law or in equity, the Company and UniCapital 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 and/or
UniCapital 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 New York, 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 caused this Agreement to be
duly executed as of the date first written above.
JACOM COMPUTER SERVICES, INC.
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: President
EMPLOYEE:
/s/ XXXX X. XXXXXX
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Xxxx X. Xxxxxx
UNICAPITAL CORPORATION
By: /s/ XXXXXX X. NEW
-----------------
Name: Xxxxxx X. New
Title: Chairman and Chief Executive Officer
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