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Exhibit 10.01
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into
effective as of February 4, 1998, by and between UniCapital Corporation, a
Delaware corporation (the "Company"), and Xxxxxxxx X. Xxxxxxxx (the
"Consultant").
WHEREAS, the Company desires that the Consultant provide certain
consulting services to the Company consistent with the duties and
responsibilities that would be assigned to a Chief Operating Officer, on the
terms and conditions contained in this Agreement, and the Consultant wishes to
provide such consulting services on the terms and conditions contained in this
Agreement; and
WHEREAS, the Company and the Consultant have agreed that, upon the
terms and conditions contained in this Agreement, the Consultant will not
compete with the Company during the term of this Agreement and for a period of
two years after the end of the Consulting Term (as defined below);
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the Company and the Consultant, each intending to be
legally bound hereby, agree as follows:
1. RETENTION OF CONSULTANT. Subject to the terms and conditions of this
Agreement, the Company hereby retains the Consultant to perform consulting
services in accordance with Section 4 hereof, and the Consultant hereby agrees
to render such services.
2. TERM. Unless otherwise terminated in accordance with Section 14
hereof, the Consultant shall perform the duties and services specified herein
for a period commencing on the date hereof (the "Effective Date") and ending on
the earlier of (i) April 1, 2000 or (ii) the commencement date of Consultant's
employment with the Company pursuant to an employment agreement substantially in
the form attached hereto as Exhibit A (the "Employment Agreement"). The period
during which the Consultant is obligated to perform such duties and services, as
the same may be reduced by termination pursuant to Section 14 hereof, is
referred to herein as the "Consulting Term."
3. EMPLOYMENT AGREEMENT. It is understood by the Consultant that the
Company is preparing to undertake an initial public offering of its common stock
(the "IPO"). If the IPO is consummated, then effective upon such consummation
the Company and Consultant shall enter into the Employment Agreement and this
Consulting Agreement shall immediately thereupon terminate in accordance with
Section 2 hereof.
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4. CONSULTING SERVICES. During the Consulting Term, the Consultant
shall perform such consulting services consistent with the duties and
responsibilities that would be assigned to a Chief Operating Officer with
respect to the business and operations of the Company, and such other services
as may be requested of him from time to time by the Chief Executive Officer of
the Company. All of the consulting services rendered by the Consultant to the
Company in accordance with the terms of this Agreement are referred to herein as
"Services."
5. COMPENSATION. (a) As consideration for the Consultant's provision of
Services hereunder, the Company shall pay the Consultant a fee (the "Fee") of
$39,583.33 each month. The Fee shall be paid in installments consistent with the
Company's normal payroll schedule, commencing on either the first or fifteenth
day of the month, as the case may be, following the date of commencement of the
Consulting Term.
(b) The Company agrees to reimburse the Consultant for all
reasonable business expenses (including, without limitation, reasonable travel
and entertainment expenses) incurred by the Consultant in rendering Services
hereunder, subject to the Company's reimbursement policies in effect from time
to time. The Consultant 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.
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 Consulting Term (clauses (a) and
(b) collectively referred to herein as the "Company's Business").
6.2 The Consultant agrees that, during the Consulting Term and
for two years thereafter (but subject to the proviso contained in this Section
6.2 below), 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. Notwithstanding the foregoing,
if an Employment Agreement is entered into, then the duration of the restriction
contained in this Section 6.2 following the end of the Consulting Term shall be
solely in accordance with the terms of Section 6.2 of such Employment Agreement.
7. AGREEMENT NOT TO SOLICIT OR SELL TO CUSTOMERS. The Consultant agrees
that, during the Consulting Term and for two years thereafter (but subject to
the proviso contained in this Section 7 below), he will not without the prior
written consent of the Company, either directly or indirectly, call on, solicit,
take away, accept as a client, customer or prospective client, customer or
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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. Notwithstanding the foregoing, if an Employment Agreement is entered
into, then the duration of the restriction contained in this Section 7 following
the end of the Consulting Term shall be solely in accordance with the terms of
Section 7 of such Employment Agreement.
8. AGREEMENT NOT TO SOLICIT OR HIRE EMPLOYEES. The Consultant agrees
that, during the Consulting Term and for two years thereafter (but subject to
the proviso contained in this Section 8 below), 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. Notwithstanding
the foregoing, if an Employment Agreement is entered into, then the duration of
the restriction contained in this Section 8 following the end of the Consulting
Term shall be solely in accordance with the terms of Section 8 of such
Employment Agreement.
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 Consultant, or
obtained, assembled or compiled by the Consultant or under his supervision
during the course of his rendering Services to 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 Consultant.
9.2 The Consultant 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 the end of the Consulting Term, as
a prior condition to the Consultant's receipt of any final Fee payments
hereunder, the Consultant 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 payments shall
not be considered a satisfaction or a release of or liquidated damages for any
claim(s)
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for damages against the Consultant which may accrue to the Company, as a result
of any breach of this Section 9 by the Consultant.
9.3 The Consultant agrees that he will not, either during the
Consulting Term or at any time thereafter, without the prior written consent of
the Company, use, disclose or make available any Confidential Information to any
person or entity, nor shall he use, disclose, make available or cause to be
used, disclosed or made available, or permit or allow, either on his own behalf
or on behalf of others, any use or disclosure of such Confidential Information
other than in the proper performance of the Consultant's duties hereunder.
10. INVENTIONS. The Consultant 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
Consultant, solely or jointly with another, during the Consulting Term and that
are directly related to the business or activities of the Company and that the
Consultant conceives as a result of his rendering Services to the Company,
regardless of whether or not such ideas, inventions, or improvements qualify as
"works for hire." The Consultant 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 Consultant 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 Consultant 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 Consultant 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
Consultant or any of his affiliates, associates,
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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. TERMINATION; COMPENSATION. Either party shall have the right to
terminate the Consulting Term at any time. If the Consulting Term is terminated
by the Company pursuant to this Section 14 prior to the time at which it would
otherwise have expired under Section 2 hereof, then the Company shall continue
to pay the Consultant the Fee for the remaining portion of the Consulting Term.
15. PRIOR AGREEMENTS. The Consultant represents to the Company that:
(a) other than those set forth in this Agreement, there are no agreements,
arrangements or understandings, written or oral, with the Company with respect
to his retention as a consultant, his employment, payment of compensation or
entitlement to benefits for himself, or his heirs or beneficiaries of any kind;
(b) there are no restrictions, agreements or understandings whatsoever to which
the Consultant is a party or by which he is bound which would prevent or make
unlawful his execution of this Agreement or his retention as a consultant
hereunder; (c) his execution of this Agreement and his retention as a consultant
hereunder do not constitute a breach of any contract, agreement or
understanding, oral or written, to which he is a party or by which he is bound;
and (d) he is free and able to execute this Agreement and to enter into the
consulting arrangement hereunder on the terms and subject to the conditions
hereof.
16. GENERAL PROVISIONS.
16.1 Indulgences, Etc. Any failure or delay on the part of any
party to exercise any right, remedy, power or privilege under this Agreement
will not operate as a waiver thereof, nor will any single or partial exercise of
any right, remedy, power or privilege preclude any other or further exercise of
the same or of any other right, remedy, power or privilege, nor will any waiver
of any right, remedy, power or privilege with respect to any occurrence be
construed as a waiver of that right, remedy, power or privilege with respect to
any other occurrence.
16.2 Notices. All notices, requests, demands and other
communications required or permitted under this Agreement must be in writing and
will be deemed to have been duly given, made and received only when delivered
(personally, by facsimile transmission or by courier service such as Federal
Express, or by other messenger) or when deposited in the United States mails,
registered or certified mail, postage prepaid, return receipt requested,
addressed as set forth below:
(i) If to the Consultant:
Xxxxxxxx X. Xxxxxxxx
--------------------
--------------------
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(ii) If to the Company:
UniCapital Corporation
0000 Xxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxx Xxxxxx, XX 00000
Attention: Xxxxxx X. New
with a copy given in the manner prescribed
above to:
Xxxxxx, Xxxxx & Bockius LLP
Xxx Xxxxxx Xxxxxx, Xxxxxx-Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Any party may alter the address to which communications or copies are to be sent
by giving notice of any change of address to the other party in conformity with
the provisions of this paragraph for the giving of notice.
16.3 Binding Nature of Agreement; Assignment. This Agreement
shall be binding upon and inure to the benefit of the Company and its successors
and assigns and shall be binding upon the Consultant, his heirs and legal
representatives. The Company may assign this Agreement at any time to any
affiliate, provided that such assignee assumes all of the obligations of the
Company hereunder; the Consultant may not assign this Agreement.
16.4 Execution in Counterparts. This Agreement may be executed
in any number of counterparts, each of which will be deemed to be an original
and all of which will together constitute one and the same instrument.
16.5 Provisions Separable. The provisions of this Agreement
are independent of and separable from each other, and no provision will be
affected or rendered invalid or unenforceable by virtue of the fact that for any
reason any other or others of them may be invalid or unenforceable in whole or
in part.
16.6 Entire Agreement. This Agreement (including the Exhibit
attached hereto) contains the entire understanding between the parties hereto
with respect to the subject matter of this Agreement, and supersedes all prior
and contemporaneous agreements and understandings, inducements or conditions,
express or implied, oral or written, with respect to the subject matter of this
Agreement. The express terms of this Agreement control and supersede any course
of performance and/or usage of the trade inconsistent with any of the terms
hereof. This Agreement may not be modified or amended other than by an agreement
in writing.
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16.7 Remedies. The rights conferred upon the Company pursuant
to Section 13 hereof shall not be exclusive of, but shall be in addition to, any
other rights or remedies which the Company may have at law, in equity or
otherwise.
16.8 Section Headings. The section headings in this Agreement
are for convenience only; they form no part of this Agreement and will not
affect its interpretation.
16.9 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 Consultant 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.
16.10 Survival. The provisions of Sections 6, 7, 9, 10, 11,
12, 13 and 16 hereof shall survive the termination of this Agreement to the
extent necessary to effectuate the respective purposes of such provisions.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
UNICAPITAL CORPORATION
By: /s/ Xxxxxx X. New
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Name: Xxxxxx X. New
Title: Chairman and Chief Executive Officer
CONSULTANT
/s/ Xxxxxxxx X. Xxxxxxxx
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Xxxxxxxx X. Xxxxxxxx
Exhibit A: Form of Employment Agreement
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EXHIBIT A
FORM OF EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of the ____ day of ____________, 1998 by and between UNICAPITAL CORPORATION, a
Delaware corporation (the "Company"), and XXXXXXXX X. XXXXXXXX (the "Employee").
R E C I T A L S
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The Company desires to obtain the services of the Employee in the
employment of the Company on the terms and subject to the conditions set forth
in this Agreement, and the Employee desires to make his services available to
the Company on the terms and subject to the conditions set forth in this
Agreement.
A G R E E M E N T
-----------------
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 Operating 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
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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"), which shall be the date of consummation of
the initial public offering by the Company of its common stock (the "IPO")
pursuant to a registration statement on Form S-1 filed by the Company with the
Securities and Exchange Commission (the "SEC") relating to such IPO (the
"Registration Statement") and declared effective by the SEC and expiring on
April 1, 2000.
4. COMPENSATION.
4.1 Salary. The Employee shall receive an annual salary of
Four-Hundred- Seventy-Five Thousand Dollars ($475,000.00) during the Term of
this Agreement, and such salary shall be payable in installments consistent with
the Company's normal payroll schedule commencing on either the first or
fifteenth day of the month, as the case may be, following the Effective Date.
4.2 Benefits. During the Term of this Agreement, the Employee
shall be entitled to participate in all plans adopted for the general benefit of
the Company's employees, such as stock option plans, 401(k) plans, pension
plans, profit sharing plans, medical plans, group or other insurance plans and
benefits, to the extent that the Employee is and remains eligible to participate
therein and subject to the eligibility provisions of such plans in effect from
time to time. For each calendar year during the Term of this Agreement, the
Employee shall be entitled to not less than four weeks of paid vacation,
prorated for any period of employment of less than an entire year.
4.3 Withholding. Notwithstanding any provision in this
Agreement to the contrary, all payments required to be made by the Company
hereunder to the Employee in connection with the Employee's employment hereunder
shall be subject to withholding of such amounts relating to taxes as the Company
may reasonably determine it should withhold pursuant to any applicable law or
regulation. In lieu of withholding such amounts, in whole or in part, the
Company may, in its sole discretion, accept other provisions for the payment of
taxes, provided that the Company is satisfied that all requirements of law
affecting its responsibilities to withhold have been satisfied.
4.4 Reimbursement of Expenses. The Company agrees to reimburse
the Employee for all reasonable business expenses (including, without
limitation, reasonable travel and entertainment expenses) incurred by the
Employee in the discharge of his duties hereunder, subject to the Company's
reimbursement policies in effect from time to time. The Employee agrees to
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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 written notice to the Employee. For purposes of this
Agreement, "Cause" for the termination of the Employee's employment hereunder
shall be deemed to exist if, in the reasonable judgment of the Company's Board
of Directors: (a) the Employee commits fraud, theft or embezzlement against the
Company; (b) the Employee commits a felony or a crime involving moral turpitude;
(c) the Employee compromises trade secrets or other proprietary information of
the Company; (d) the Employee breaches any non-competition or non-solicitation
agreement with the Company or any subsidiary or affiliate thereof; (e) the
Employee breaches any of the terms of this Agreement (other than those
referenced in clauses (c) and (d) of this Section 5.1) and fails to cure such
breach within 10 days after the receipt of written notice of such breach from
the Company; or (f) the Employee engages in gross negligence or willful
misconduct that causes harm to the business and operations of the Company or a
subsidiary or affiliate thereof. Upon any termination pursuant to this Section
5.1, the Employee shall be entitled to be paid solely the Employee's salary then
in effect through the effective date of termination, and the Company shall have
no further liability or other obligation of any kind whatsoever to the Employee.
5.2 Termination by the Company Without Cause. The Company may,
in its sole and absolute discretion, terminate the employment of the Employee
hereunder, at any time prior to the expiration of the term of this Agreement,
without "Cause" (as such term is defined in Section 5.1 above), or otherwise
without any cause, reason or justification, provided that the Company provides
to the Employee at least sixty (60) days' prior written notice (the "Termination
Notice") of such termination. In the event of any such termination by the
Company, (a) the Employee's employment with the Company shall cease and
terminate on the date specified in the Termination Notice (or, if no date is so
specified, on the date which is 60 days following the date of such notice), and
(b) the Employee shall be entitled to receive and be paid solely the Employee's
salary then in effect for the shorter of (x) the eight-month period following
the Employee's termination or (y) the remaining Term of this Agreement, payable
over such period at the Company's regular and customary intervals for the
payment of salaries as then in effect, and the Company shall have no further
liability or other obligation of any kind whatsoever to the Employee.
5.3 Death of the Employee. In the event that the Employee
shall die during the Term of this Agreement, the Employee's employment with the
Company shall immediately cease and terminate and the Employee's estate, heirs
(at law), devisees, legatees or other proper and legally entitled descendants,
or the personal representative, executor, administrator or other proper legal
representative on behalf of such descendants, shall be entitled to receive and
be paid solely the
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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 perform
his duties and responsibilities hereunder for a period of 60 consecutive days,
or for shorter or intermittent periods aggregating 90 days during any 12-month
period (a "Disability"), the Company thereafter shall have the right, in its
sole and absolute discretion, to terminate the Employee's employment under this
Agreement by sending written notice of such termination to the Employee or its
legal guardian or other proper legal representative and thereupon his employment
hereunder shall immediately cease and terminate. In the event of any such
termination, the Employee shall be entitled to receive and be paid solely the
Employee's salary then in effect through the effective date of termination and
the Company shall have no further liability or other obligation of any kind
whatsoever to the Employee.
5.5 Termination by the Employee. Provided that the Company
does not have "Cause" to terminate the Employee pursuant to Section 5.1 above,
the Employee may terminate the Employee's employment with the Company hereunder
at any time and for any reason. Employee must provide to the Company written
notice of such termination not less than 365 days prior to the date such
termination is to be effective. Upon any termination pursuant to this Section
5.5, the Employee shall be entitled to be paid solely the Employee's salary then
in effect through the effective date of termination, and the Company shall have
no further liability or other obligation of any kind whatsoever to the Employee.
6. AGREEMENT NOT TO COMPETE
6.1 As used in this Agreement, "Competing Business" shall mean
any business or enterprise which is engaged in (a) the equipment leasing
business; or (b) any business, business segment or product line engaged in by
the Company on the date of termination of the Employee's employment with the
Company (clauses (a) and (b) collectively referred to herein as the "Company's
Business").
6.2 The Employee agrees that, during the Term of this
Agreement and for two years following the termination or expiration of his
employment for any reason whatsoever, he will not, without the prior written
consent of the Company, either directly or indirectly, on his own behalf or in
the service of or on behalf of others as a shareholder, director, officer,
trustee, consultant, independent contractor or employee, engage in, or be
employed by, or provide services to, any Competing Business within the State of
Florida or in any other state in which the Company or any subsidiary or
affiliate thereof is engaged in business or in which of any of their respective
products or services are marketed or sold at the time of such termination.
7. AGREEMENT NOT TO SOLICIT OR SELL TO CUSTOMERS. The Employee agrees
that, during the Term of this Agreement and for two years following the
termination or expiration of his
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employment for any reason whatsoever, he will not without the prior written
consent of the Company, either directly or indirectly, call on, solicit, take
away, accept as a client, customer or prospective client, customer or attempt to
call on, solicit, take away or accept as a client, customer prospective client
or customer, any person that was a client, customer or prospective client or
customer of the Company or any of its subsidiaries or affiliates.
8. AGREEMENT NOT TO SOLICIT OR HIRE EMPLOYEES. The Employee agrees that
during the Term of this Agreement and for two years following the termination or
expiration of his employment for any reason whatsoever, he will not, either
directly or indirectly, on his own behalf or in the service or on behalf of
others, solicit, divert or hire, attempt to solicit, divert or hire or induce or
attempt to induce to discontinue employment with the Company or any subsidiary
or affiliate thereof, any person employed by the Company or any subsidiary or
affiliate thereof, whether or not such employee is a full time employee or a
temporary employee of the Company or any subsidiary or affiliate thereof and
whether or not such employment is for a determined period or is at will.
9. OWNERSHIP AND NON-DISCLOSURE AND NON-USE OF CONFIDENTIAL INFORMATION
9.1 As used in this Agreement, "Confidential Information"
shall mean all customer sales and marketing information, customer account
records, proprietary receipts and/or processing techniques, information
regarding vendors and products, training and operations memoranda and similar
information, personnel records, pricing information, financial information and
trade secrets concerning or relating to the business, accounts, customers,
employees and affairs of the Company, or any subsidiary or affiliate thereof,
obtained by or furnished, disclosed or disseminated to the Employee, or
obtained, assembled or compiled by the Employee or under his supervision during
the course of his employment by the Company, and all physical embodiments of the
foregoing, all of which are hereby agreed to be the property of and confidential
to the Company, but Confidential Information shall not include any of the
foregoing to the extent the same is or becomes publicly known through no fault
or breach of this Agreement by the Employee.
9.2 The Employee acknowledges and agrees that all Confidential
Information, and all physical embodiments thereof, are confidential to and shall
be and remain the sole and exclusive property of the Company. Upon request by
the Company, and in any event upon termination of the Employee's employment with
the Company for any reason whatsoever, as a prior condition to the Employee's
receipt of any final salary or benefit payments hereunder, the Employee shall
deliver to the Company all property belonging to the Company or any of its
subsidiaries or affiliates, including, without limitation, all Confidential
Information (and all embodiments thereof), then in his custody, control or
possession, but any forfeiture of such salary or benefit shall not be considered
a satisfaction or a release of or liquidated damages for any claim(s) for
damages against the Employee which may accrue to the Company, as a result of any
breach of this Section 9 by the Employee.
9.3 The Employee agrees that he will not, either during the
Term of this Agreement or at any time thereafter, without the prior written
consent of the Company, use, disclose or make available any Confidential
Information to any person or entity, nor shall he use, disclose,
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make available or cause to be used, disclosed or made available, or permit or
allow, either on his own behalf or on behalf of others, any use or disclosure of
such Confidential Information other than in the proper performance of the
Employee's duties hereunder.
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
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of the Company, as adopted by the Company from time to time with respect to the
performance of the duties of the Employee. The Employee acknowledges that he has
no authority to enter into any contracts or other obligations that are binding
upon the Company unless such contracts or obligations are authorized by the
Board of Directors of the Company. The Company shall have the power to 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:
Xxxxxxxx X. Xxxxxxxx
--------------------
--------------------
(ii) If to the Company:
UniCapital Corporation
0000 Xxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxx Xxxxxx, XX 00000
Attention: Xxxxxx X. New
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with a copy given in the manner prescribed
above to:
Xxxxxx, Xxxxx & Bockius LLP
Xxx Xxxxxx Xxxxxx, Xxxxxx-Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
or to such other addresses as either party hereto may from time to time give
notice of to the other party hereto in the aforesaid manner.
19. BENEFITS; BINDING EFFECT. This Agreement shall be for the benefit
of and binding upon the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and assigns.
20. SEVERABILITY. Except as otherwise provided in Sections 11 and 12,
the invalidity of any one or more of the words, phrases, sentences, clauses,
sections or subsections contained in this Agreement shall not affect the
enforceability of the remaining portions of this Agreement or any part thereof,
all of which are inserted conditionally on their being valid in law, and, in the
event that any one or more of the words, phrases, sentences, clauses, sections
or subsections contained in this Agreement or any part thereof shall be declared
invalid, this Agreement shall be construed as if such invalid word or words,
phrase or phrases, sentence or sentences, clause or clauses, section or sections
or subsection or subsections had not been inserted. If such invalidity is caused
by length of time or size of area, or both, the otherwise invalid provision will
be considered to be reduced to a period or area which would cure such
invalidity.
21. DAMAGES. Nothing contained herein shall be construed to prevent the
Company or the Employee from seeking and recovering from the other damages
sustained by either or both of them as a result of its or his breach of any term
or provision of this Agreement. In the event that either party hereto brings
suit for the collection of any damages resulting from, or the injunction of any
action constituting, a breach of any of the terms or provisions of this
Agreement, then the non-prevailing party shall pay all reasonable court costs
and attorneys' fees of the other party.
22. SECTION HEADINGS. The section headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
23. NO THIRD PARTY BENEFICIARY. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any person
other than the parties hereto and their respective heirs, personal
representative, legal representative, successors and assigns, any rights or
remedies under or by reason of this Agreement.
24. AMENDMENT; MODIFICATION; WAIVER. No amendment, modification or
waiver of the terms of this Agreement shall be valid unless made in writing and
duly executed by the Company
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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.]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
UNICAPITAL CORPORATION
By: /s/ XXXXXX X. NEW
---------------------------------------------
Name: Xxxxxx X. New
Title: President
EMPLOYEE
/s/ XXXXXXXX X. XXXXXXXX
---------------------------------------------
Xxxxxxxx X. Xxxxxxxx
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