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) John L. Guadagno ("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.
(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
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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.
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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.
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(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.
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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.
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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
10800 Biscayne Boulevard
Suite 800
7
Miami, Florida 33161
Attention: Martin Kalb
Mr. John L. Guadagno
15 Fillow Street
Westport, Connecticut 06880
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.
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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.
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IN WITNESS WHEREOF, the parties hereto have cause this Agreement to be
duly executed as of the date first written above.
UniCapital Corporation
By: /s/ Robert J. New
--------------------------------------
Name: Robert J. New
--------------------------------
Title: Chairman & Chief
Executive Officer
-------------------------------
EMPLOYEE:
/s/ John L. Guadagno
----------------------------------
John L. Guadagno
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Exhibit 10.03
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is
made and entered into as of the 1st day of March, 2000 by and between UNICAPITAL
CORPORATION, a Delaware corporation (the "Company"), and MARTIN KALB (the
"Employee").
RECITALS
The Company and the Employee are parties to an Employment Agreement
dated as of May 20, 1998 (the "Original Agreement"). The Company desires to
retain 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 continue to make his services available to the Company on
the terms and subject to the conditions set forth in this Agreement. The Company
and the Employee are therefore amending and restating the Original Agreement in
its entirety by entering into this Agreement.
AGREEMENT
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 Executive Vice President and General Counsel 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 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"), and expiring on February 28, 2002.
4. COMPENSATION.
4.1 Salary. The Employee shall receive an annual salary of
Four-Hundred-Fifty Thousand Dollars ($450,000.00) during the Term of this
Agreement, and such salary shall be payable in installments consistent with the
Company's normal payroll schedule but not less than monthly.
4.2 Incentive Bonus. During the Term, the Employee shall be
eligible to receive an incentive bonus up to the amount, based upon the
criteria, and payable at such times as are, specified in Exhibit A attached
hereto. The amount, manner of payment, and form of consideration, if any, shall
be determined by the Board of Directors or the Compensation Committee thereof,
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 the
Employee's employment hereunder expires before the end of a fiscal period, and
if the Employee is eligible to receive a bonus at such time (such eligibility
being subject to the restrictions set forth in Section 5 below), any bonus
payable in respect of such fiscal period's results may be prorated.
4.3 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.
4.4 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
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that the Company is satisfied that all requirements of law affecting its
responsibilities to withhold have been satisfied.
4.5 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.
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 ten (10) days' 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 not 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 fifteen-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
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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.
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
performance 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 30 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.
4
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 or customer or attempt to call on, solicit, take away or
accept as a client, customer or 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,
5
disclose, make available or cause to be used, disclosed or made available, or
pen-nit 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.
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
6
shall have the power to 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:
Martin Kalb
16406 S.W. 39th Street
Miramar, FL 33027
(ii) If to the Company:
UniCapital Corporation
10800 Biscayne Boulevard, Suite 800
Miami, FL 33161
Attention: Robert J. New
with a copy given in the manner prescribed above to:
Morgan, Lewis & Bockius LLP
One Oxford Centre, Thirty-Second Floor
Pittsburgh, PA 15219
Attention: David A. Gerson
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.
7
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.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
8
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
UNICAPITAL CORPORATION
By: /s/ Robert J. New
-------------------------------------------
Name: Robert J. New
Title: Chairman and Chief Executive Officer
EMPLOYEE:
/s/ Martin Kalb
----------------------------------------------
Martin Kalb
9
EXHIBIT A
In determining the incentive bonus, if any, payable to the Employee
under this Agreement, the Company's Board of Directors or its Compensation
Committee will take into account the achievement of criteria specified by the
Board or the Compensation Committee relating to growth in the Company's earnings
per share from period to period. Any incentive bonus payable to the Employee
under this Agreement will not exceed 100% of the Employee's base salary, and
will be paid out of a bonus pool determined by the Board of Directors or its
Compensation Committee. Any incentive bonus will be payable in the form of cash,
stock options, or other non-cash awards, in such proportions, and in such forms,
as are determined by the Board of Directors or its Compensation Committee.
10
Exhibit 10.06
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, dated as of the 1st day of February, 1999,
is by and between (i) UniCapital Corporation, a Delaware corporation (the
"Company"), and (ii) Edward A. Jaeckel ("Employee").
RECITALS
The Company desires to employ Employee and to have the benefit of his
skills and services, and Employee desires to accept employment with the Company,
on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises, terms,
covenants and conditions set forth herein, and the performance of each, the
parties hereto, intending legally to be bound, hereby agree as follows:
AGREEMENTS
1. EMPLOYMENT; TERM. The Company hereby employs Employee to perform the
duties described herein, and Employee hereby accepts employment with the
Company, for a term beginning on the date hereof and expiring on April 1, 2000,
unless sooner terminated (the "Term").
2. POSITION AND DUTIES. The Company hereby employs Employee as
Executive Vice President and Chief Credit Policy Officer. Employee will report
directly to, and will be subject to the authority of, the Chief Operating
Officer of the Company. Employee hereby accepts this employment upon the terms
and conditions herein contained and agrees to devote all of his professional
time, attention, and efforts to promote and further the business of the Company.
Employee shall faithfully adhere to, execute, and fulfill all policies
established by the Company.
3. COMPENSATION. For all services rendered by Employee, the Company
shall compensate Employee as follows:
(a) Base Salary. Effective on the date hereof, the base salary
payable to Employee shall be $250,000 per year, payable on a regular basis in
accordance with the Company's standard payroll procedures, but not less than
monthly.
(b) Incentive Bonus. During the Term, Employee shall be
eligible to receive an incentive bonus up to the amount, based upon the
criteria, and payable at such times, as may be determined by the Chief Executive
Officer, upon the advice and with the consent of the Company's Board of
Directors (the "Board") or the Compensation Committee thereof. To the extent
that such bonus is to be determined in light of Employee's performance during a
specified fiscal period and this Agreement commences on a date after the start
of such fiscal period, any bonus payable in respect of such fiscal period's
results may be prorated. In addition, if the period of Employee's employment
hereunder expires before the end of a fiscal period, and if Employee is eligible
to receive a bonus at such time (such eligibility being subject to the
restrictions set
forth in Section 6 below), any bonus payable in respect of such fiscal period's
results may be prorated.
(c) Perquisites, Benefits, and Other Compensation. During the
Term, Employee shall be entitled to receive all perquisites and benefits as are
customarily provided by the Company to similarly situated employees, subject to
such changes, additions, or deletions as the Company may make generally from
time to time, as well as such other perquisites or benefits as may be specified
from time to time by the Board.
4. EXPENSE REIMBURSEMENT. The Company shall reimburse Employee for (or,
at the Company's option, pay) all business travel and other out-of-pocket
expenses reasonably incurred by Employee in the performance of his services
hereunder during the Term. All reimbursable expenses shall be appropriately
documented in reasonable detail by Employee upon submission of any request for
reimbursement, and in a format and manner consistent with the Company's expense
reporting policy, as well as applicable federal and state tax record keeping
requirements.
5. PLACE OF PERFORMANCE. Employee understands that he may be requested
by the Company to relocate from his present residence to another geographic
location in order to more efficiently carry out his duties and responsibilities
under this Agreement or as part of a promotion or a change in duties and
responsibilities. In such event, if Employee agrees to relocate, the Company
will provide Employee with a relocation allowance, in an amount determined by
the Company, to assist Employee in covering the costs of moving himself, his
immediate family, and their personal property and effects. The total amount and
type of costs to be covered shall be determined by the Company, in light of
prevailing Company policy at the time.
6. TERMINATION; RIGHTS ON TERMINATION. Employee's employment may be
terminated in any one of the following ways, prior to the expiration of the
Term:
(a) Death. The death of Employee shall immediately terminate
the Term, and no Severance Compensation (as defined below) or other compensation
shall be owed to Employee's estate.
(b) Disability. If, as a result of incapacity due to physical
or mental illness or injury, Employee shall have been unable to perform the
essential functions of his position, with or without reasonable accommodation,
on a full-time basis for a period of four consecutive months, or for a total of
four months in any six-month period, then 30 days after written notice to
Employee (which notice may be given before or after the end of the
aforementioned periods, but which shall not be effective earlier than the last
day of the applicable period), the Company may terminate Employee's employment
hereunder if Employee is unable to resume his full-time duties at the conclusion
of such notice period. If Employee's employment is terminated as a result of
Employee's disability, the Company shall continue to pay Employee his base
salary at the then-current rate for the lesser of (i) three months from the
effective date of termination, or (ii) whatever time period is remaining under
the then-current period of the Term (without regard to renewals thereof). Such
payments shall be made in accordance with the Company's regular payroll cycle.
2
(c) Termination by the Company for "Cause." The Company may
terminate the Term 10 days after written notice to Employee for "cause," which
shall be: (i) Employee's material breach of this Agreement, which breach is not
cured within 10 days of receipt by Employee of written notice from the Company
specifying the breach; (ii) Employee's gross negligence in the performance of
his duties hereunder, intentional nonperformance or misperformance of such
duties, or refusal to abide by or comply with the directives of the Board, his
superior officers, or the Company's policies and procedures, which actions
continue for a period of at least 10 days after receipt by Employee of written
notice of the need to cure or cease; (iii) Employee's willful dishonesty, fraud,
or misconduct with respect to the business or affairs of the Company, and that
in the judgment of the Company materially and adversely affects the operations
or reputation of the Company; (iv) Employee's conviction of a felony or other
crime involving moral turpitude; or (v) Employee's abuse of alcohol or drugs
(legal or illegal) that, in the Company's judgment, materially impairs
Employee's ability to perform his duties hereunder. In the event of a
termination for "cause," as enumerated above, Employee shall have no right to
any Severance Compensation or other compensation.
(d) Without Cause. At any time after the commencement of
employment, the Company may, without "cause", terminate the Term and Employee's
employment, effective 30 days after written notice is provided to Employee.
Should Employee be terminated by the Company without "cause", Employee shall
receive from the Company compensation ("Severance Compensation") equal to the
base salary at the rate then in effect for the greater of (i) twelve months from
the effective date of termination, or (ii) whatever time period is remaining
under the then-current period of the Term (without regard to renewals thereof).
Such payments shall be made in accordance with the Company's regular payroll
cycle. If Employee resigns or otherwise terminates his employment for any reason
or for no reason, other than for disability pursuant to Section 6(b), Employee
shall receive no Severance Compensation or other compensation.
(e) Payment Through Termination. Upon termination of
Employee's employment, Employee shall be entitled to receive all compensation
earned and all benefits and reimbursements (including payments for accrued
vacation and sick leave, in each case in accordance with applicable policies of
the Company) due through the effective date of termination. Additional
compensation subsequent to termination, if any, will be due and payable to
Employee only to the extent and in the manner expressly provided above in this
Section 6. With respect to incentive bonus compensation, Employee shall be
entitled to receive any bonus declared but not paid prior to termination. In
addition, in the event of a termination by the Company under Sections 6(b) or
6(d), Employee shall be entitled to receive incentive bonus compensation through
the end of the Company's fiscal year in which termination occurs, and paid in
such amounts, at such times, and in such forms as are determined pursuant to
Section 3(b) above. Except as specified in the preceding two sentences, Employee
shall not be entitled to receive any incentive bonus compensation after the
effective date of termination of his employment. All other rights and
obligations of the Company and Employee under this Agreement shall cease as of
the effective date of termination, except that Employee's obligations under
Sections 7, 8, 9 and 10 below shall survive such termination in accordance with
their terms.
3
7. RESTRICTION ON COMPETITION.
(a) During the Term, and thereafter, if Employee continues to
be employed by the Company and/or any other entity owned by or affiliated with
the Company on an "at will" basis, for the duration of such period, and
thereafter for a period of two years, Employee shall not, directly or
indirectly, for himself or on behalf of or in conjunction with any other person,
company, partnership, corporation, business, group, or other entity (each, a
"Person"):
(i) engage, as an officer, director, shareholder, owner,
partner, joint venturer, or in a managerial capacity, whether as an employee,
independent contractor, consultant, advisor, lender or sales representative, in
any business engaged in providing or servicing equipment leasing or speciality
finance products or services in direct competition with the Company, or any
business engaging in the consolidation of the equipment leasing or speciality
finance industry, within the United States of America (the "Territory");
(ii) call upon any Person who is, at that time, within
the Territory, an employee of the Company for the purpose or with the intent of
enticing such employee away from or out of the employ of the Company;
(iii) call upon any Person who or that is, at that time,
or has been, within one year prior to that time, a customer of the Company
within the Territory for the purpose of soliciting or selling products or
services in direct competition with the Company within the Territory; or
(iv) on Employee's own behalf or on behalf of any
competitor, call upon any Person that, during Employee's employment by the
Company was either called upon by the Company as a prospective acquisition
candidate or was the subject of an acquisition analysis conducted by the
Company.
(b) The foregoing covenants shall not be deemed to prohibit
Employee from acquiring as an investment not more than one percent (1%) of the
capital stock of a competing business, whose stock is traded on a national
securities exchange or through the automated quotation system of a registered
securities association.
(c) It is further agreed that, in the event that Employee
shall cease to be employed by the Company and enters into a business or pursues
other activities that, at such time, are not in competition with the Company,
Employee shall not be chargeable with a violation of this Section 7 if the
Company subsequently enters the same (or a similar) competitive business or
activity.
(d) For purposes of this Section 7 and Sections 8, 9 and 10,
references to the "Company" shall mean UniCapital Corporation, together with its
subsidiaries and affiliates.
(e) The covenants in this Section 7 are severable and
separate, and the unenforceability of any specific covenant shall not affect the
provisions of any other covenant. If any provision of this Section 7 relating to
the time period or geographic area of the restrictive covenants shall be
declared by a court of competent jurisdiction to exceed the maximum time period
or geographic area, as applicable, that such court deems reasonable and
enforceable, said
4
time period or geographic area shall be deemed to be, and thereafter shall
become, the maximum time period or largest geographic area that such court deems
reasonable and enforceable and this Agreement shall automatically be considered
to have been amended and revised to reflect such determination.
(f) All of the covenants in this Section 7 shall be construed
as an agreement independent of any other provision in this Agreement, and the
existence of any claim or cause of action of Employee against the Company,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Company of such covenants; provided, that upon
the failure of the Company to make any payments required under this Agreement,
Employee may, upon 30 days' prior written notice to the Company, waive his right
to receive any additional compensation pursuant to this Agreement and engage in
any activity prohibited by the covenants of this Section 7. It is specifically
agreed that the period of two years stated at the beginning of this Section 7,
during which the agreements and covenants of Employee made in this Section 7
shall be effective, shall be computed by excluding from such computation any
time during which Employee is in violation of any provision of this Section 7.
(g) If the time period specified by this Section 7 shall be
reduced by law or court decision, then, notwithstanding the provisions of
Section 6 above, Employee shall be entitled to receive from the Company his base
salary at the rate then in effect solely for the longer of (i) the time period
during which the provisions of this Section 7 shall be enforceable under the
provisions of such applicable law, or (ii) the time period during which Employee
is not engaging in any competitive activity, but in no event longer than the
applicable period provided in Section 6 above.
(h) Employee has carefully read and considered the provisions
of this Section 7 and, having done so, agrees that the restrictive covenants in
this Section 7 impose a fair and reasonable restraint on Employee and are
reasonably required to protect the interests of the Company, and their
respective officers, directors, employees, and stockholders. It is further
agreed that the Company and Employee intend that such covenants be construed and
enforced in accordance with the changing activities, business, and locations of
the Company throughout the term of these covenants.
8. CONFIDENTIAL INFORMATION. Employee hereby agrees to hold in strict
confidence and not to disclose to any third party any of the valuable,
confidential, and proprietary business, financial, technical, economic, sales,
and/or other types of proprietary business information relating to the Company
(including all trade secrets), in whatever form, whether oral, written, or
electronic (collectively, the "Confidential Information"), to which Employee
has, or is given (or has had or been given), access as a result of his
employment by the Company. It is agreed that the Confidential Information is
confidential and proprietary to the Company because such Confidential
Information encompasses technical know-how, trade secrets, or technical,
financial, organizational, sales, or other valuable aspects of the Company's
business and trade, including, without limitation, technologies, products,
processes, plans, clients, personnel, operations, and business activities. This
restriction shall not apply to any Confidential Information that (a) becomes
known generally to the public through no fault of Employee; (b) is required by
applicable law, legal process, or any order or mandate of a court or other
governmental authority to be disclosed; or (c) is reasonably believed by
Employee, based upon the advice of legal
5
counsel, to be required to be disclosed in defense of a lawsuit or other legal
or administrative action brought against Employee; provided, that in the case of
clauses (b) or (c), Employee shall give the Company reasonable advance written
notice of the Confidential Information intended to be disclosed and the reasons
and circumstances surrounding such disclosure, in order to permit the Company to
seek a protective order or other appropriate request for confidential treatment
of the applicable Confidential Information.
9. INVENTIONS. Employee shall disclose promptly to the Company any and
all significant conceptions and ideas for inventions, improvements, and valuable
discoveries, whether patentable or not, that are conceived or made by Employee,
solely or jointly with another, during the period of employment or within one
year thereafter, and that are directly related to the business or activities of
the Company and that Employee conceives as a result of his employment by the
Company, regardless of whether or not such ideas, inventions, or improvements
qualify as "works for hire". Employee hereby assigns and agrees to assign all
his interests therein to the Company or its nominee. Whenever requested to do so
by the Company, Employee shall execute any and all applications, assignments, or
other instruments that the Company shall deem necessary to apply for and obtain
Letters Patent of the United States or any foreign country or to otherwise
protect the Company's interest therein.
10. RETURN OF COMPANY PROPERTY; ACCESS TO RECORDS. Promptly upon
termination of Employee's employment by the Company for any reason or no reason,
Employee or Employee's personal representative shall return to the Company (a)
all Confidential Information; (b) all other records, designs, patents, business
plans, financial statements, manuals, memoranda, lists, correspondence, reports,
records, charts, advertising materials, and other data or property delivered to
or compiled by Employee by or on behalf of the Company or its representatives,
vendors, or customers that pertain to the business of the Company, whether in
paper, electronic, or other form; and (c) all keys, credit cards, vehicles, and
other property of the Company. Employee shall not retain or cause to be retained
any copies of the foregoing. Employee hereby agrees that all of the foregoing
shall be and remain the property of the Company, as the case may be, and be
subject at all times to their discretion and control.
11. NO PRIOR AGREEMENTS. Employee hereby represents and warrants to the
Company that the execution of this Agreement by Employee, his employment by the
Company, and the performance of his duties hereunder will not violate or be a
breach of any agreement with a former employer, client, or any other Person.
Further, Employee agrees to indemnify and hold harmless the Company and its
officers, directors, and representatives for any claim, including, but not
limited to, reasonable attorneys' fees and expenses of investigation, of any
such third party that such third party may now have or may hereafter come to
have against the Company or such other persons, based upon or arising out of any
non-competition agreement, invention, secrecy, or other agreement between
Employee and such third party that was in existence as of the date of this
Agreement. To the extent that Employee had any oral or written employment
agreement or understanding with the Company, this Agreement shall automatically
supersede such agreement or understanding, and upon execution of this Agreement
by Employee and the Company, such prior agreement or understanding automatically
shall be deemed to have been terminated and shall be null and void.
6
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
10800 Biscayne Boulevard
Miami, Florida 33161
Attention: Martin Kalb
To Employee: Edward A. Jaeckel
9630 N. W. 2nd Street
Unit 305
Pembroke Pines, Florida 33024
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
7
by express delivery, hand delivery, or facsimile, when actually received. Either
party may change the address for notice by notifying the other party of such
change in accordance with this Section 14.
15. SEVERABILITY; HEADINGS. If any portion of this Agreement is held
invalid or inoperative, the other portions of this Agreement shall be deemed
valid and operative and, so far as is reasonable and possible, effect shall be
given to the intent manifested by the portion held invalid or inoperative. This
severability provision shall be in addition to, and not in place of, the
provisions of Section 7(e) above. The paragraph headings herein are for
reference purposes only and are not intended in any way to describe, interpret,
define or limit the extent or intent of the Agreement or of any part hereof.
16. EQUITABLE REMEDY. Because of the difficulty of measuring economic
losses to the Company as a result of a breach of the restrictive covenants set
forth in Sections 7, 8, 9 and 10, and because of the immediate and irreparable
damage that would be caused to the Company for which monetary damages would not
be a sufficient remedy, it is hereby agreed that in addition to all other
remedies that may be available to the at law or in equity, the Company shall be
entitled to specific performance and any injunctive or other equitable relief as
a remedy for any breach or threatened breach of the aforementioned restrictive
covenants.
17. ARBITRATION. Any unresolved dispute or controversy arising under or
in connection with this Agreement shall be settled exclusively by arbitration
conducted in accordance with the rules of the American Arbitration Association
then in effect. The arbitrators shall not have the authority to add to, detract
from, or modify any provision hereof nor to award punitive damages to any
injured party. A decision by a majority of the arbitration panel shall be final
and binding. Judgment may be entered on the arbitrators' award in any court
having jurisdiction. The direct expense of any arbitration proceeding shall be
borne by the party or parties designated by the arbitration panel. Each party
shall bear its own counsel fees. The arbitration proceeding shall be held in
Miami, Florida. Notwithstanding the foregoing, the Company shall be entitled to
seek injunctive or other equitable relief, as contemplated by Section 16 above,
from any court of competent jurisdiction, without the need to resort to
arbitration.
18. GOVERNING LAW. This Agreement shall in all respects be construed
according to the laws of the State of Florida, without giving effect to any
conflicts of laws principles thereof that would compel the application of the
substantive laws of any other jurisdiction.
8
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/ Martin Kalb
--------------------------------------
Name: Martin Kalb
--------------------------------
Title: Executive Vice President
-------------------------------
EMPLOYEE:
/s/ Edward A. Jaeckel
----------------------------------
EDWARD A. JAECKEL
9
Exhibit 10.10
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is
made and entered into as of the 1st day of March, 2000 by and between UNICAPITAL
CORPORATION, a Delaware corporation (the "Company"), and ROBERT J. NEW (the
"Employee").
RECITALS
The Company and the Employee are parties to an Employment Agreement
dated as of May 20, 1998 (the "Original Agreement"). The Company desires to
retain 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 continue to make his services available to the Company on
the terms and subject to the conditions set forth in this Agreement. The Company
and the Employee are therefore amending and restating the Original Agreement in
its entirety by entering into this Agreement.
AGREEMENT
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 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"), and expiring on February 28, 2002.
4. COMPENSATION.
4.1 Salary. The Employee shall receive an annual salary of Six
Hundred and Fifty Thousand Dollars ($650,000) during the Term of this Agreement,
and such salary shall be payable in installments consistent with the Company's
normal payroll schedule but not less than monthly.
4.2 Incentive Bonus. During the Term, the Employee shall be
eligible to receive an incentive bonus up to the amount, based upon the
criteria, and payable at such times as are, specified in Exhibit A attached
hereto. The amount, manner of payment, and form of consideration, if any, shall
be determined by the Board of Directors or the Compensation Committee thereof,
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 the
Employee's employment hereunder expires before the end of a fiscal period, and
if the Employee is eligible to receive a bonus at such time (such eligibility
being subject to the restrictions set forth in Section 5 below), any bonus
payable in respect of such fiscal period's results may be prorated.
4.3 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.
4.4 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
2
that the Company is satisfied that all requirements of law affecting its
responsibilities to withhold have been satisfied.
4.5 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.
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 ten (10) days' 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 not 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 fifteen-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
3
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.
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
performance 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 30 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.
4
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 or customer or attempt to call on, solicit, take away or
accept as a client, customer or 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,
5
disclose, make available or cause to be used, disclosed or made available, or
pen-nit 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.
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
6
shall have the power to 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:
Robert J. New
11414 North Bayshore Drive
North Miami, Florida 33181
(ii) If to the Company:
UniCapital Corporation
10800 Biscayne Boulevard, Suite 800
Miami, FL 33161
Attention: Martin Kalb
with a copy given in the manner prescribed above to:
Morgan, Lewis & Bockius LLP
One Oxford Centre, Thirty-Second Floor
Pittsburgh, PA 15219
Attention: David A. Gerson
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.
7
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.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
8
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
UNICAPITAL CORPORATION
By: /s/ MARTIN KALB
-------------------------------------------
Name: MARTIN KALB
Title: Executive Vice President
EMPLOYEE:
/s/ ROBERT J. NEW
----------------------------------------------
Robert J. New
9
EXHIBIT A
In determining the incentive bonus, if any, payable to the Employee
under this Agreement, the Company's Board of Directors or its Compensation
Committee will take into account the achievement of criteria specified by the
Board or the Compensation Committee relating to growth in the Company's earnings
per share from period to period. Any incentive bonus payable to the Employee
under this Agreement will not exceed 100% of the Employee's base salary, and
will be paid out of a bonus pool determined by the Board of Directors or its
Compensation Committee. Any incentive bonus will be payable in the form of cash,
stock options, or other non-cash awards, in such proportions, and in such forms,
as are determined by the Board of Directors or its Compensation Committee.
10
Exhibit 10.11
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is
made and entered into as of the 1st day of March, 2000 by and between UNICAPITAL
CORPORATION, a Delaware corporation (the "Company"), and JONATHAN NEW (the
"Employee").
RECITALS
The Company and the Employee are parties to an Employment Agreement
dated as of May 20, 1998 (the "Original Agreement"). The Company desires to
retain 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 continue to make his services available to the Company on
the terms and subject to the conditions set forth in this Agreement. The Company
and the Employee are therefore amending and restating the Original Agreement in
its entirety by entering into this Agreement.
AGREEMENT
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 Chief Financial 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 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"), and expiring on February 28, 2002.
4. COMPENSATION.
4.1 Salary. The Employee shall receive an annual salary of
Three Hundred Thousand Dollars ($300,000) during the Term of this Agreement, and
such salary shall be payable in installments consistent with the Company's
normal payroll schedule but not less than monthly.
4.2 Incentive Bonus. During the Term, the Employee shall be
eligible to receive an incentive bonus up to the amount, based upon the
criteria, and payable at such times as are, specified in Exhibit A attached
hereto. The amount, manner of payment, and form of consideration, if any, shall
be determined by the Board of Directors or the Compensation Committee thereof,
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 the
Employee's employment hereunder expires before the end of a fiscal period, and
if the Employee is eligible to receive a bonus at such time (such eligibility
being subject to the restrictions set forth in Section 5 below), any bonus
payable in respect of such fiscal period's results may be prorated.
4.3 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.
4.4 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
2
that the Company is satisfied that all requirements of law affecting its
responsibilities to withhold have been satisfied.
4.5 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.
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 ten (10) days' 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 not 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 fifteen-month period following
the Employee's termination or (y) the remaining Term of this Agreement
("Severance Compensation"), 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
3
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.
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
performance 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 30 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 at any time Employee is receiving Severance Compensation, 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.
4
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 or customer or attempt to call on, solicit, take away or
accept as a client, customer 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,
5
disclose, make available or cause to be used, disclosed or made available, or
pen-nit 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.
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
6
shall have the power to 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:
Jonathan New
2335 Magnolia Drive
North Miami, Florida 33181
(ii) If to the Company:
UniCapital Corporation
10800 Biscayne Boulevard, Suite 800
Miami, FL 33161
Attention: Robert J. New
with a copy given in the manner prescribed above to:
Morgan, Lewis & Bockius LLP
One Oxford Centre, Thirty-Second Floor
Pittsburgh, PA 15219
Attention: David A. Gerson
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.
7
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.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
8
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
UNICAPITAL CORPORATION
By: /s/ Martin Kalb
-------------------------------------------
Name: Martin Kalb
Title: Executive Vice President
EMPLOYEE:
/s/ Jonathan New
----------------------------------------------
Jonathan New
9
EXHIBIT A
In determining the incentive bonus, if any, payable to the Employee
under this Agreement, the Company's Board of Directors or its Compensation
Committee will take into account the achievement of criteria specified by the
Board or the Compensation Committee relating to growth in the Company's earnings
per share from period to period. Any incentive bonus payable to the Employee
under this Agreement will not exceed 100% of the Employee's base salary, and
will be paid out of a bonus pool determined by the Board of Directors or its
Compensation Committee. Any incentive bonus will be payable in the form of cash,
stock options, or other non-cash awards, in such proportions, and in such forms,
as are determined by the Board of Directors or its Compensation Committee.
10
Exhibit 21.01
Subsidiaries
---------------------------------------- ------------------------------------- -------------------------------------
SUBSIDIARY JURISDICTION OF ORGANIZATION d/b/a NAMES
---------------------------------------- ------------------------------------- -------------------------------------
Aircorp II, Inc. Texas
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 347, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 369, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 373, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 11111, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 20527, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 20527 Trust Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 20622, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 20624 and 20626, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 20627, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 21955, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 22055, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 22067 Trust Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 22120, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 22121, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 22122, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 22222, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 22620, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 22688, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 22688 Trust Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 22689, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 22689 Trust Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 23230, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 23345, Inc. Florida
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 23377, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 23506, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 23771, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 23772, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 23623, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 23830, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 23895, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 23922, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 29328, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 23928 Trust Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 23929, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 23929 Trust Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 23983, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 23983 Trust Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 24176, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 24176 Trust Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 24209, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 24355, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 24356, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 24451, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 24451 Trust Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 24474, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 24497, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 24497 Trust Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 24813, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 24837, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 25221, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 25262, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 45775, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 46095, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 46941, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 48008, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 48009, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 48024, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 48025, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 49104, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 49262, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 49263, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 49368, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 49632, Inc. Florida
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 53015, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 53623, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft 53624, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Aircraft Finance Trust Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Alphamstone Limited Ireland
---------------------------------------- ------------------------------------- -------------------------------------
Amaistre Ltd. Ireland
---------------------------------------- ------------------------------------- -------------------------------------
American Capital Resources New York NY American Capital Resources
---------------------------------------- ------------------------------------- -------------------------------------
American Video Games and Missouri
Computers, Inc.
---------------------------------------- ------------------------------------- -------------------------------------
Avalon Leasing Corporation Delaware
---------------------------------------- ------------------------------------- -------------------------------------
B&A Leasing Corporation Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Bionic Leasing Corporation Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Boulder Capital Group, Inc. Colorado
---------------------------------------- ------------------------------------- -------------------------------------
Boulder Capital Mortgage Colorado
Corporation
---------------------------------------- ------------------------------------- -------------------------------------
Boulder Capital of New York, Inc. Colorado
---------------------------------------- ------------------------------------- -------------------------------------
Bulbeck Limited Ireland
---------------------------------------- ------------------------------------- -------------------------------------
Cauff, Lippman Aviation, Inc. Florida UniCapital Air Group
---------------------------------------- ------------------------------------- -------------------------------------
Chickney Limited Ireland
---------------------------------------- ------------------------------------- -------------------------------------
CLA Canada, Inc. Florida
---------------------------------------- ------------------------------------- -------------------------------------
CLA-DOA, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
CLA Enterprises, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
CLA Holdings, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
CL Aircraft Marketing, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
CLC 747, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
CLC Engine Leasing, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
---------------------------------------- ------------------------------------- -------------------------------------
CL Aircraft VIII, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
CL Aircraft XXXIV, Inc. Florida
---------------------------------------- ------------------------------------- -------------------------------------
Diamond Head Associates, LLC Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Galaxy Aircraft Corp. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Haysthorpe Limited Ireland
---------------------------------------- ------------------------------------- -------------------------------------
HLC Financial, Inc. Delaware HLC Financial Service
---------------------------------------- ------------------------------------- -------------------------------------
Horthlew Limited Ireland
---------------------------------------- ------------------------------------- -------------------------------------
Information Control Systems, Inc. Missouri
---------------------------------------- ------------------------------------- -------------------------------------
JJ Leasing, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Jacom Computer Services, Inc. New York
---------------------------------------- ------------------------------------- -------------------------------------
Jetz, Inc. Delaware Jetz of Delaware, Inc.
---------------------------------------- ------------------------------------- -------------------------------------
Jumbo Jet, Inc. Delaware Heavy Jumbo, Inc.
---------------------------------------- ------------------------------------- -------------------------------------
Jumbo Jet Leasing, LP Delaware
---------------------------------------- ------------------------------------- -------------------------------------
K.L.C. Inc. Connecticut Keystone Leasing
K.L.C., Inc. Connecticut
K.L.C. Leasing
K.L.C. of Connecticut
Keystone K.L.C., Inc.
---------------------------------------- ------------------------------------- -------------------------------------
LeaseAdvisor.com, LLC Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Matcan International, Inc. Barbados
---------------------------------------- ------------------------------------- -------------------------------------
Matcan Leasing, Inc. Utah
---------------------------------------- ------------------------------------- -------------------------------------
Matrix Credit Corporation Utah
---------------------------------------- ------------------------------------- -------------------------------------
Matrix Funding Corporation Utah Matrix Credit
---------------------------------------- ------------------------------------- -------------------------------------
Merrimac Financial Associates, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
The Myerson Companies, Inc. Delaware BSB Leasing
---------------------------------------- ------------------------------------- -------------------------------------
Nounsley Limited Ireland
---------------------------------------- ------------------------------------- -------------------------------------
NSJ-DOA, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
The NSJ Group, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
NSJ Support, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Praxis Paradigm Synergies, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Saddleback Financial Corporation Delaware Saddleback Financial Center
---------------------------------------- ------------------------------------- -------------------------------------
SFC Capital Group Corporation Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Shimpling Limited Ireland
---------------------------------------- ------------------------------------- -------------------------------------
---------------------------------------- ------------------------------------- -------------------------------------
Skywatch Registered Agents, Inc. Florida
---------------------------------------- ------------------------------------- -------------------------------------
SLC International Trading Missouri
Corporation
---------------------------------------- ------------------------------------- -------------------------------------
Sonic Leasing Corporation Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Stuie II Corp. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
Stuie III Corp. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
SWR Aircraft Group, Inc. Florida
---------------------------------------- ------------------------------------- -------------------------------------
SWR 767, Inc. Florida
---------------------------------------- ------------------------------------- -------------------------------------
SWR Brazil 767, Inc. Florida
---------------------------------------- ------------------------------------- -------------------------------------
Tailwind International AB Sweden
---------------------------------------- ------------------------------------- -------------------------------------
UCP Engines, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
UCP Engines Trust Delaware
---------------------------------------- ------------------------------------- -------------------------------------
UCP German Holdings, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
UCP GP SPE 1998-1 LLC Nevada
---------------------------------------- ------------------------------------- -------------------------------------
UCP Operating SPE 1998-1 Nevada
Limited Partnership
---------------------------------------- ------------------------------------- -------------------------------------
UCP Borrowing SPE 1998-1 Nevada
Limited Partnership
---------------------------------------- ------------------------------------- -------------------------------------
UCP Qualifying SPE 1998-1 Nevada
Limited Partnership
---------------------------------------- ------------------------------------- -------------------------------------
UCP Warehouse Holdings, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
UCP Warehouse SPE 1999-2 LLC Nevada
---------------------------------------- ------------------------------------- -------------------------------------
UCP Warehouse SPE 1999-3 LLC Nevada
---------------------------------------- ------------------------------------- -------------------------------------
UCP 1999-1 LLC I Nevada
---------------------------------------- ------------------------------------- -------------------------------------
UCP 1999-1 LLC II Nevada
---------------------------------------- ------------------------------------- -------------------------------------
UniCapital AFT-I, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
UniCapital AFT-II, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
UniCapital Aircraft Engine Group, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
UniCapital Air Group, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
UniCapital Funding Corporation Delaware
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UniCapital Mexico Group, Inc. Delaware
---------------------------------------- ------------------------------------- -------------------------------------
UniCapital Mexico Holdings, LLC Delaware
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UniCapital of Mexico, S.A. de c.v. Mexico
---------------------------------------- ------------------------------------- -------------------------------------
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 (No. 333-61353) of UniCapital Corporation of our report
dated February 3, 2000, except for Note 24, as to which the date is March 28,
2000 relating to the financial statements, which appears in this Form 10-K.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Fort Lauderdale, Florida
March 30, 2000
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