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Exhibit 10.01
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT, dated this 18th day of March, 1999, is by
and among (i) Jacom Computer Services, Inc., a New York corporation (the
"Company") and a wholly-owned subsidiary of UniCapital Corporation, a Delaware
corporation ("UniCapital"); (ii) Schooner Capital Group, Inc., a Florida
corporation ("Consultant"); and (iii) Xxxx Xxxxxx.
RECITALS
A. The Company desires to engage Consultant and to have the benefit of
the skills and services of Consultant and its employees, and Consultant desires
to accept such engagement by the Company, on the terms and conditions set forth
herein.
B. Xxxx Xxxxxx is the sole shareholder of the Consultant.
C. Concurrently with the execution of this Agreement by the parties
hereto, Xxxx Xxxxxx shall resign his position as an officer and employee of the
Company.
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. ENGAGEMENT; TERM. The Company hereby engages Consultant to provide
the services described herein, and Consultant hereby accepts such engagement by
the Company, for a term beginning on the date hereof and continuing until May
19, 2000, unless sooner terminated (the "Term").
2. POSITION AND DUTIES. The Company hereby engages Consultant to
provide advice and assistance to the Company on sales and marketing matters
affecting the Company. Consultant hereby accepts this engagement upon the terms
and conditions herein contained and agrees to devote such time, attention, and
efforts as necessary to fulfill Consultant's obligations hereunder.
3. FEES. For all services rendered by Consultant hereunder, the Company
shall pay Consultant an annual fee of $333,000, payable on the last day of each
month during the Term. In addition, Consultant shall be eligible for stock
options of UniCapital under the 1998 Long Term Incentive Plan, as well as other
perquisites offered to consultants by the Company and UniCapital.
4. TERMINATION; RIGHTS ON TERMINATION. At any time after the
commencement of the Term, either the Company or Consultant may, with or without
cause, terminate this Agreement, effective 30 days after written notice is
provided to the other party (the "Termination Date"); provided that if the
Termination Date is not the last day of the month, then the termination shall be
effective on the last day of the month in which the Termination Date occurs.
Upon termination of this Agreement, Consultant shall be entitled to receive all
fees earned
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through the effective date of termination. Notwithstanding any provision to the
contrary set forth in this Agreement, Consultant shall not be entitled to
receive any other fees after the effective date of termination of this
Agreement. All other rights and obligations of UniCapital, the Company,
Consultant and Xxxx Xxxxxx under this Agreement shall cease as of the effective
date of termination, except that the obligations of Consultant and Xxxx Xxxxxx
under Sections 5, 6, 7, 8 and 9 below shall survive such termination.
5. RESTRICTION ON COMPETITION.
(a) During the Term, and thereafter, if Consultant continues to
provide services to 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, neither Consultant nor Xxxx
Xxxxxx shall, directly or indirectly, for itself or 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 specialty
finance products or services in direct competition with the Company or
UniCapital, or any business engaging in the consolidation of the equipment
leasing or specialty 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 Consultant's or Xxxx Xxxxxx'x own behalf or on behalf of
any competitor, call upon any Person that, during the term of this Agreement,
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.
(b) The foregoing covenants shall not be deemed to prohibit
Consultant or Xxxx Xxxxxx 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 Consultant shall
cease to provide services to the Company or UniCapital and either Consultant or
Xxxx Xxxxxx enters into a business or pursues other activities that, at such
time, are not in competition with the Company or UniCapital, neither Consultant
nor Xxxx Xxxxxx shall be chargeable with a violation of this Section 5 if the
Company or UniCapital subsequently enters the same (or a similar) competitive
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business or activity. In addition, if neither Consultant nor Xxxx Xxxxxx has
actual knowledge that its or his actions violate the terms of this Section 5,
neither Consultant nor Xxxx Xxxxxx shall be deemed to have breached the
restrictive covenants contained herein if, promptly after being notified by the
Company or UniCapital of such breach, Consultant and Xxxx Xxxxxx cease the
prohibited actions.
(d) For purposes of this Section 5, references to "UniCapital" shall
mean UniCapital Corporation, together with its subsidiaries and affiliates.
(e) The covenants in this Section 5 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 5 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 5 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 either Consultant or Xxxx Xxxxxx
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, Consultant may, upon 30 days'
prior written notice to the Company, waive its right to receive any additional
compensation pursuant to this Agreement and engage in any activity prohibited by
the covenants of this Section 5. It is specifically agreed that the period of
two years stated at the beginning of this Section 5, during which the agreements
and covenants of Consultant and Xxxx Xxxxxx made in this Section 5 shall be
effective, shall be computed by excluding from such computation any time during
which either Consultant or Xxxx Xxxxxx is in violation of any provision of this
Section 5.
(g) If the time period specified by this Section 5 shall be reduced
by law or court decision, then, notwithstanding the provisions of Section 4
above, Consultant shall be entitled to receive from the Company the fee
described in section 3 for the longer of (i) the time period during which the
provisions of this Section 5 shall be enforceable under the provisions of such
applicable law, or (ii) the time period during which Consultant and Xxxx Xxxxxx
are not engaging in any competitive activity, but in no event longer than the
applicable period provided in Section 4 above.
(h) Consultant and Xxxx Xxxxxx have carefully read and considered
the provisions of this Section 5 and, having done so, agree that the restrictive
covenants in this Section 5 impose a fair and reasonable restraint on Consultant
and Xxxx Xxxxxx 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, Consultant and Xxxx Xxxxxx
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.
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6. CONFIDENTIAL INFORMATION. Consultant and Xxxx Xxxxxx hereby agree 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 either Consultant or Xxxx Xxxxxx has, or is given (or
has had or been given), access as a result of its or his relationship with 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 Consultant of
Xxxx Xxxxxx; (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 Consultant or Xxxx Xxxxxx, 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 Consultant or Xxxx Xxxxxx; provided,
that in the case of clauses (b) or (c), Consultant and Xxxx Xxxxxx 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.
7. INVENTIONS. Consultant and Xxxx Xxxxxx 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 Consultant or Xxxx Xxxxxx, solely or jointly with
another, during the term of this Agreement or within one year thereafter, and
that are directly related to the business or activities of the Company or
UniCapital and that Consultant or Xxxx Xxxxxx conceives as a result of its or
his relationship with the Company, regardless of whether or not such ideas,
inventions, or improvements qualify as "works for hire." Each of Consultant and
Xxxx Xxxxxx hereby assigns and agrees to assign all its or his interests therein
to the Company or its nominee. Whenever requested to do so by the Company,
Consultant and Xxxx Xxxxxx 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.
8. RETURN OF COMPANY PROPERTY. Promptly upon termination of this
Agreement for any reason or no reason, Consultant, Xxxx Xxxxxx or Xxxx Xxxxxx'x
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
Consultant or Xxxx Xxxxxx by or on behalf of the Company, UniCapital or their
respective
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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.
Neither Consultant nor Xxxx Xxxxxx shall retain or cause to be retained any
copies of the foregoing. Each of Consultant and Xxxx Xxxxxx 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.
9. NO PRIOR AGREEMENTS. Consultant hereby represents and warrants to
the Company and UniCapital that the execution of this Agreement by Consultant,
the engagement of Consultant by the Company, and the performance of the services
required hereunder will not violate or be a breach of any agreement with a
former employer, client, or any other Person. Further, Consultant agrees to
indemnify and hold harmless the Company and UniCapital 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, UniCapital or such other persons, based upon or
arising out of any non-competition agreement, non-solicitation agreement,
invention, secrecy, or other agreement between Consultant and such third party
that was in existence as of the date of this Agreement.
10. BINDING EFFECT. This Agreement may not be assigned or transferred
by either party without the prior written consent of the other party, which
consent shall not be unreasonably withheld. Subject to the terms of this Section
10, 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. 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 beneficiary of the rights of the
Company under this Agreement. No other Person shall be a third-party
beneficiary.
11. COMPLETE AGREEMENT WAIVER; AMENDMENT. This Agreement is not a
promise of future engagement. Neither Consultant nor Xxxx Xxxxxx has any oral
representations, understandings, or agreements with the Company, UniCapital or
any of their respective 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,
UniCapital, Consultant and Xxxx Xxxxxx 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, UniCapital, Consultant and Xxxx Xxxxxx, and no term of
this Agreement may be waived except by a writing signed by the party waiving the
benefit of such term.
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12. NOTICE. Whenever any notice is required hereunder, it shall be
given in writing addressed as follows:
To the Company: Jacom Computer Services, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx Xxxxxx III
To UniCapital: UniCapital Corporation
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxx
To Consultant: Schooner Capital Group, Inc.
000 Xxxxxxxx Xxxx
Xxxxxxxx Xxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxx
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. Any party may change the address for notice
by notifying the other party of such change in accordance with this Section 12.
13. 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 5(c) 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.
14. 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 5, 6, 7 and 8, 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.
15. 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. 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 14 above, from any court of competent jurisdiction, without the need to
resort to arbitration.
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16. 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. The Company, UniCapital, Consultant
and Xxxx Xxxxxx each hereby irrevocably submits to the jurisdiction of the state
or federal courts located in the State of New York 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.
17. RELATIONSHIP OF CONSULTANT AND THE COMPANY. The parties hereto
understand, acknowledge and agree that Consultant's and Xxxx Xxxxxx'x
relationship to the Company and UniCapital created by this Agreement is that of
an independent contractor and not an employee. In this regard, Consultant and
Xxxx Xxxxxx further understand, acknowledge and agree that neither the Company
nor UniCapital shall be responsible for withholding any income taxes, paying any
payroll taxes, providing other benefits or fulfilling other employer-type
obligations for or on behalf of Consultant or Xxxx Xxxxxx.
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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.
Schooner Capital Group, Inc.
By: /s/ XXXX XXXXXX
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Name: Xxxx Alfrano
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Title: President
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/s/ XXXX XXXXXX
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Xxxx Xxxxxx
Jacom Computer Services, Inc.
By: /s/ XXXXXX NEW
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Name: Xxxxxx New
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Title: Chairman
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UniCapital Corporation
By: /s/ XXXXXX NEW
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Name: Xxxxxx New
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Title: Chief Executive Officer
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