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Exhibit 10.10
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of the 20th day of May, 1998 by and between UNICAPITAL CORPORATION, a Delaware
corporation (the "Company"), and XXXXXX X. NEW (the "Employee").
R E C I T A L S
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The Company desires to obtain the services of the Employee in the
employment of the Company on the terms and subject to the conditions set forth
in this Agreement, and the Employee desires to make his services available to
the Company on the terms and subject to the conditions set forth in this
Agreement.
A G R E E M E N T
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NOW, THEREFORE, in consideration of the premises, agreements and mutual
covenants set forth herein, the parties hereto, intending to be bound legally,
hereby agree as follows:
1. DEFINITIONS. The following terms when used herein, unless the
context otherwise requires, shall be defined as follows:
1.1 "Cause" shall have the meaning set forth in Section
5.1 hereof.
1.2 "Company" shall mean UniCapital Corporation, a
Delaware corporation.
1.3 "Competing Business" shall have the meaning set forth
in Section 6.1 hereof.
1.4 "Confidential Information" shall have the meaning set
forth in Section 9.1 hereof.
1.5 "Term" shall have the meaning set forth in Section 3
hereof.
2. EMPLOYMENT
2.1 General. The Company hereby agrees to employ the Employee
as Chairman and Chief Executive Officer during the Term of this Agreement on the
terms and subject to the conditions contained in this Agreement, and the
Employee hereby agrees to accept such employment on the terms and subject to the
conditions contained in this Agreement.
2.2 Duties of Employee. During the Term of this Agreement, the
Employee shall diligently perform all duties and responsibilities as may be
assigned to him by the Company's Board of Directors and shall exercise such
power and authority as may from time to time be delegated to
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him thereby. The Employee shall devote his full business time and attention to
the business and affairs of the Company as necessary to perform his duties and
responsibilities hereunder, render such services to the best of his ability, and
use his best efforts to promote the interests of the Company.
3. TERM. Subject to the provisions of Section 5 of this
Agreement, the Company shall employ the Employee for a term commencing on the
date first written above (the "Effective Date"), which shall be the date of
consummation of the initial public offering by the Company of its common stock
(the "IPO") pursuant to a registration statement on Form S-1 filed by the
Company with the Securities and Exchange Commission (the "SEC") relating to such
IPO (the "Registration Statement") and declared effective by the SEC and
expiring on April 1, 2000.
4. COMPENSATION.
4.1 Salary. The Employee shall receive an annual salary of
Six-Hundred-Fifty Thousand Dollars ($650,000.00) during the Term of this
Agreement, and such salary shall be payable in installments consistent with the
Company's normal payroll schedule commencing on either the first or fifteenth
day of the month, as the case may be, following the Effective Date.
4.2 Benefits. During the Term of this Agreement, the Employee
shall be entitled to participate in all plans adopted for the general benefit of
the Company's employees, such as stock option plans, 401(k) plans, pension
plans, profit sharing plans, medical plans, group or other insurance plans and
benefits, to the extent that the Employee is and remains eligible to participate
therein and subject to the eligibility provisions of such plans in effect from
time to time. For each calendar year during the Term of this Agreement, the
Employee shall be entitled to not less than four weeks of paid vacation,
prorated for any period of employment of less than an entire year.
4.3 Withholding. Notwithstanding any provision in this
Agreement to the contrary, all payments required to be made by the Company
hereunder to the Employee in connection with the Employee's employment hereunder
shall be subject to withholding of such amounts relating to taxes as the Company
may reasonably determine it should withhold pursuant to any applicable law or
regulation. In lieu of withholding such amounts, in whole or in part, the
Company may, in its sole discretion, accept other provisions for the payment of
taxes, provided that the Company is satisfied that all requirements of law
affecting its responsibilities to withhold have been satisfied.
4.4 Reimbursement of Expenses. The Company agrees to reimburse
the Employee for all reasonable business expenses (including, without
limitation, reasonable travel and entertainment expenses) incurred by the
Employee in the discharge of his duties hereunder, subject to the Company's
reimbursement policies in effect from time to time. The Employee agrees to
maintain reasonable records of his business expenses in such form and detail as
the Company may request and to make such records available to the Company as and
when requested.
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5. TERMINATION
5.1 Termination for Cause. Notwithstanding any provision in
this Agreement to the contrary, this Agreement may be terminated by the Company
for "Cause" at any time during the Term hereof, and such termination shall be
effective immediately upon written notice to the Employee. For purposes of this
Agreement, "Cause" for the termination of the Employee's employment hereunder
shall be deemed to exist if, in the reasonable judgment of the Company's Board
of Directors: (a) the Employee commits fraud, theft or embezzlement against the
Company; (b) the Employee commits a felony or a crime involving moral turpitude;
(c) the Employee compromises trade secrets or other proprietary information of
the Company; (d) the Employee breaches any non-competition or non-solicitation
agreement with the Company or any subsidiary or affiliate thereof; (e) the
Employee breaches any of the terms of this Agreement (other than those
referenced in clauses (c) and (d) of this Section 5.1) and fails to cure such
breach within 10 days after the receipt of written notice of such breach from
the Company; or (f) the Employee engages in gross negligence or willful
misconduct that causes harm to the business and operations of the Company or a
subsidiary or affiliate thereof. Upon any termination pursuant to this Section
5.1, the Employee shall be entitled to be paid solely the Employee's salary then
in effect through the effective date of termination, and the Company shall have
no further liability or other obligation of any kind whatsoever to the Employee.
5.2 Termination by the Company Without Cause. The Company may,
in its sole and absolute discretion, terminate the employment of the Employee
hereunder, at any time prior to the expiration of the term of this Agreement,
without "Cause" (as such term is defined in Section 5.1 above), or otherwise
without any cause, reason or justification, provided that the Company provides
to the Employee at least sixty (60) days' prior written notice (the "Termination
Notice") of such termination. In the event of any such termination by the
Company, (a) the Employee's employment with the Company shall cease and
terminate on the date specified in the Termination Notice (or, if no date is so
specified, on the date which is 60 days following the date of such notice), and
(b) the Employee shall be entitled to receive and be paid solely the Employee's
salary then in effect for the shorter of (x) the three-month period following
the Employee's termination or (y) the remaining Term of this Agreement, payable
over such period at the Company's regular and customary intervals for the
payment of salaries as then in effect, and the Company shall have no further
liability or other obligation of any kind whatsoever to the Employee.
5.3 Death of the Employee. In the event that the Employee
shall die during the Term of this Agreement, the Employee's employment with the
Company shall immediately cease and terminate and the Employee's estate, heirs
(at law), devisees, legatees or other proper and legally entitled descendants,
or the personal representative, executor, administrator or other proper legal
representative on behalf of such descendants, shall be entitled to receive and
be paid solely the Employee's salary through the date of death, and the Company
shall have no further liability or other obligation of any kind whatsoever to
the Employee.
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5.4 Disability of the Employee. In the event that the Employee
becomes incapacitated during the Term by reason of sickness, accident or other
mental or physical disability such that he is substantially unable to perform
his duties and responsibilities hereunder for a period of 60 consecutive days,
or for shorter or intermittent periods aggregating 90 days during any 12-month
period (a "Disability"), the Company thereafter shall have the right, in its
sole and absolute discretion, to terminate the Employee's employment under this
Agreement by sending written notice of such termination to the Employee or its
legal guardian or other proper legal representative and thereupon his employment
hereunder shall immediately cease and terminate. In the event of any such
termination, the Employee shall be entitled to receive and be paid solely the
Employee's salary then in effect through the effective date of termination and
the Company shall have no further liability or other obligation of any kind
whatsoever to the Employee.
5.5 Termination by the Employee. Provided that the Company
does not have "Cause" to terminate the Employee pursuant to Section 5.1 above,
the Employee may terminate the Employee's employment with the Company hereunder
at any time and for any reason. Employee must provide to the Company written
notice of such termination not less than 365 days prior to the date such
termination is to be effective. Upon any termination pursuant to this Section
5.5, the Employee shall be entitled to be paid solely the Employee's salary then
in effect through the effective date of termination, and the Company shall have
no further liability or other obligation of any kind whatsoever to the Employee.
6. AGREEMENT NOT TO COMPETE
6.1 As used in this Agreement, "Competing Business" shall mean
any business or enterprise which is engaged in (a) the equipment leasing
business; or (b) any business, business segment or product line engaged in by
the Company on the date of termination of the Employee's employment with the
Company (clauses (a) and (b) collectively referred to herein as the "Company's
Business").
6.2 The Employee agrees that, during the Term of this
Agreement and for two years following the termination or expiration of his
employment for any reason whatsoever, he will not, without the prior written
consent of the Company, either directly or indirectly, on his own behalf or in
the service of or on behalf of others as a shareholder, director, officer,
trustee, consultant, independent contractor or employee, engage in, or be
employed by, or provide services to, any Competing Business within the State of
Florida or in any other state in which the Company or any subsidiary or
affiliate thereof is engaged in business or in which of any of their respective
products or services are marketed or sold at the time of such termination.
7. AGREEMENT NOT TO SOLICIT OR SELL TO CUSTOMERS. The Employee
agrees that, during the Term of this Agreement and for two years following the
termination or expiration of his employment for any reason whatsoever, he will
not without the prior written consent of the Company, either directly or
indirectly, call on, solicit, take away, accept as a client, customer or
prospective client, customer or attempt to call on, solicit, take away or accept
as a client, customer
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prospective client or customer, any person that was a client, customer or
prospective client or customer of the Company or any of its subsidiaries or
affiliates.
8. AGREEMENT NOT TO SOLICIT OR HIRE EMPLOYEES. The Employee
agrees that during the Term of this Agreement and for two years following the
termination or expiration of his employment for any reason whatsoever, he will
not, either directly or indirectly, on his own behalf or in the service or on
behalf of others, solicit, divert or hire, attempt to solicit, divert or hire or
induce or attempt to induce to discontinue employment with the Company or any
subsidiary or affiliate thereof, any person employed by the Company or any
subsidiary or affiliate thereof, whether or not such employee is a full time
employee or a temporary employee of the Company or any subsidiary or affiliate
thereof and whether or not such employment is for a determined period or is at
will.
9. OWNERSHIP AND NON-DISCLOSURE AND NON-USE OF CONFIDENTIAL
INFORMATION
9.1 As used in this Agreement, "Confidential Information"
shall mean all customer sales and marketing information, customer account
records, proprietary receipts and/or processing techniques, information
regarding vendors and products, training and operations memoranda and similar
information, personnel records, pricing information, financial information and
trade secrets concerning or relating to the business, accounts, customers,
employees and affairs of the Company, or any subsidiary or affiliate thereof,
obtained by or furnished, disclosed or disseminated to the Employee, or
obtained, assembled or compiled by the Employee or under his supervision during
the course of his employment by the Company, and all physical embodiments of the
foregoing, all of which are hereby agreed to be the property of and confidential
to the Company, but Confidential Information shall not include any of the
foregoing to the extent the same is or becomes publicly known through no fault
or breach of this Agreement by the Employee.
9.2 The Employee acknowledges and agrees that all Confidential
Information, and all physical embodiments thereof, are confidential to and shall
be and remain the sole and exclusive property of the Company. Upon request by
the Company, and in any event upon termination of the Employee's employment with
the Company for any reason whatsoever, as a prior condition to the Employee's
receipt of any final salary or benefit payments hereunder, the Employee shall
deliver to the Company all property belonging to the Company or any of its
subsidiaries or affiliates, including, without limitation, all Confidential
Information (and all embodiments thereof), then in his custody, control or
possession, but any forfeiture of such salary or benefit shall not be considered
a satisfaction or a release of or liquidated damages for any claim(s) for
damages against the Employee which may accrue to the Company, as a result of any
breach of this Section 9 by the Employee.
9.3 The Employee agrees that he will not, either during the
Term of this Agreement or at any time thereafter, without the prior written
consent of the Company, use, disclose or make available any Confidential
Information to any person or entity, nor shall he use, disclose, make available
or cause to be used, disclosed or made available, or permit or allow, either on
his own behalf or on behalf of others, any use or disclosure of such
Confidential Information other than in the proper performance of the Employee's
duties hereunder.
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10. INVENTIONS. The Employee shall disclose promptly to the
Company any and all conceptions and ideas for inventions, improvements, and
valuable discoveries, whether patentable or not, that are conceived or made by
the Employee, solely or jointly with another, during the Term of this Agreement
and that are directly related to the business or activities of the Company and
that the 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." The 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, the 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.
11. REASONABLENESS OF RESTRICTIONS. In the event that any
provision relating to time period or geographic area of any restriction set
forth in Sections 6, 7, 8, 9 or 10 shall be declared by a court of competent
jurisdiction to exceed the maximum time period or area of restriction that the
court deems reasonable and enforceable, the time period or area of restriction
which the court finds to be reasonable and enforceable shall be deemed to
become, and thereafter shall be, the maximum time period or geographic area of
such restriction.
12. ENFORCEABILITY. Any provision of Sections 6, 7, 8, 9 or 10
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, but shall
be enforced to the maximum extent permitted by law, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
13. INJUNCTION. It is recognized and hereby acknowledged by the
parties hereto that a breach by the Employee of any of the covenants contained
in Sections 6, 7, 8, 9 or 10 of this Agreement will cause irreparable harm and
damage to the Company, the monetary amount of which may be virtually impossible
to ascertain. As a result, the Employee recognizes and hereby acknowledges that
the Company shall be entitled to an injunction from any court of competent
jurisdiction enjoining and restraining any violation of any or all of the
covenants contained in Sections 6, 7, 8, 9 or 10 of this Agreement by the
Employee or any of his affiliates, associates, partners or agents, either
directly or indirectly, and that such right to injunction shall be cumulative
and in addition to whatever other remedies the Company may possess.
14. ASSIGNMENT. The Employee shall not delegate his employment
obligations pursuant to this Agreement to any other person.
15. EMPLOYER'S AUTHORITY. The relationship between the parties
hereto is that of employer and employee. The Employee agrees to observe and
comply with the rules and regulations of the Company, as adopted by the Company
from time to time with respect to the performance of the duties of the Employee.
The Employee acknowledges that he has no authority to enter into any contracts
or other obligations that are binding upon the Company unless such contracts or
obligations are authorized by the Board of Directors of the Company. The Company
shall have the power to
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direct, control and supervise the duties to be performed by the Employee, the
manner of performing said duties, and the time of performing said duties.
16. GOVERNING LAW. This Agreement, the rights and obligations of
the parties hereto, and any claims or disputes relating thereto, shall be
governed by and construed in accordance with the laws of the State of Florida,
excluding the choice of law rules thereof. The Company and the Employee each
hereby irrevocably submit to the jurisdiction of the state or federal courts
located in Dade County, Florida in connection with any suit, action or other
proceeding arising out of or relating to this Agreement and hereby agree not to
assert, by way of motion, as a defense, or otherwise in any 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.
17. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements, understandings and arrangements, both oral
and written, between the parties hereto with respect to such subject matter.
This Agreement may not be modified in any way, unless by a written instrument
signed by both the Company and the Employee.
18. NOTICES. Any notice required or permitted to be given under
this Agreement shall be in writing and shall be deemed to have been given when
delivered by hand or three (3) days after sent by registered or certified United
States mail, return receipt requested, postage prepaid, or the next business day
following dispatch by a reputable overnight courier service, addressed as
follows:
(i) If to the Employee:
Xxxxxx X. New
00000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
(ii) If to the Company:
UniCapital Corporation
0000 Xxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxx Xxxxxx, XX 00000
Attention: Xxxxxx Xxxx
with a copy given in the manner prescribed
above to:
Xxxxxx, Xxxxx & Bockius LLP
Xxx Xxxxxx Xxxxxx, Xxxxxx-Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
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or to such other addresses as either party hereto may from time to time give
notice of to the other party hereto in the aforesaid manner.
19. BENEFITS; BINDING EFFECT. This Agreement shall be for the
benefit of and binding upon the parties hereto and their respective heirs,
personal representatives, legal representatives, successors and assigns.
20. SEVERABILITY. Except as otherwise provided in Sections 11 and
12, the invalidity of any one or more of the words, phrases, sentences, clauses,
sections or subsections contained in this Agreement shall not affect the
enforceability of the remaining portions of this Agreement or any part thereof,
all of which are inserted conditionally on their being valid in law, and, in the
event that any one or more of the words, phrases, sentences, clauses, sections
or subsections contained in this Agreement or any part thereof shall be declared
invalid, this Agreement shall be construed as if such invalid word or words,
phrase or phrases, sentence or sentences, clause or clauses, section or sections
or subsection or subsections had not been inserted. If such invalidity is caused
by length of time or size of area, or both, the otherwise invalid provision will
be considered to be reduced to a period or area which would cure such
invalidity.
21. DAMAGES. Nothing contained herein shall be construed to
prevent the Company or the Employee from seeking and recovering from the other
damages sustained by either or both of them as a result of its or his breach of
any term or provision of this Agreement. In the event that either party hereto
brings suit for the collection of any damages resulting from, or the injunction
of any action constituting, a breach of any of the terms or provisions of this
Agreement, then the non-prevailing party shall pay all reasonable court costs
and attorneys' fees of the other party.
22. SECTION HEADINGS. The section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
23. NO THIRD PARTY BENEFICIARY. Nothing expressed or implied in
this Agreement is intended, or shall be construed, to confer upon or give any
person other than the parties hereto and their respective heirs, personal
representative, legal representative, successors and assigns, any rights or
remedies under or by reason of this Agreement.
24. AMENDMENT; MODIFICATION; WAIVER. No amendment, modification or
waiver of the terms of this Agreement shall be valid unless made in writing and
duly executed by the Company and the Employee. No delay or failure at any time
on the part of the Company in exercising any right, power or privilege under
this Agreement, or in enforcing any provision of this Agreement, shall impair
any such right, power or privilege, or be construed as a waiver of any default
or as any acquiescence therein, or shall affect the right of the Company
thereafter to enforce each and every provision of this Agreement in accordance
with its terms. The waiver by either party hereto of a breach or violation of
any term or provision of this Agreement shall neither operate nor be construed
as a waiver of any subsequent breach or violation.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
UNICAPITAL CORPORATION
By: /s/ XXXXXX XXXX
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Name: Xxxxxx Xxxx
Title: Executive Vice President
EMPLOYEE
/s/ XXXXXX X. NEW
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Xxxxxx X. New
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