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EXHIBIT 10.11
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 JONATHAN NEW (the "Employee").
R E C I T A L S
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
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 Chief Executive
Officer and shall exercise such power and authority as may from
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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
Two-Hundred-Fifty Thousand Dollars ($250,000.00) during the Term of this
Agreement, and such salary shall be payable in installments consistent with
the Company's normal payroll schedule commencing on either the first or
fifteenth day of the month, as the case may be, following the Effective
Date.
4.2 Benefits. During the Term of this Agreement, the Employee shall be
entitled to participate in all plans adopted for the general benefit of the
Company's employees, such as stock option plans, 401(k) plans, pension
plans, profit sharing plans, medical plans, group or other insurance plans
and benefits, to the extent that the Employee is and remains eligible to
participate therein and subject to the eligibility provisions of such plans
in effect from time to time. For each calendar year during the Term of this
Agreement, the Employee shall be entitled to not less than four weeks of
paid vacation, prorated for any period of employment of less than an entire
year.
4.3 Withholding. Notwithstanding any provision in this Agreement to
the contrary, all payments required to be made by the Company hereunder to
the Employee in connection with the Employee's employment hereunder shall
be subject to withholding of such amounts relating to taxes as the Company
may reasonably determine it should withhold pursuant to any applicable law
or regulation. In lieu of withholding such amounts, in whole or in part,
the Company may, in its sole discretion, accept other provisions for the
payment of taxes, provided that the Company is satisfied that all
requirements of law affecting its responsibilities to withhold have been
satisfied.
4.4 Reimbursement of Expenses. The Company agrees to reimburse the
Employee for all reasonable business expenses (including, without
limitation, reasonable travel and entertainment expenses) incurred by the
Employee in the discharge of his duties hereunder, subject to the Company's
reimbursement policies in effect from time to time. The Employee agrees to
maintain reasonable records of his business expenses in such form and
detail as the Company may request and to make such records available to the
Company as and when requested.
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5. TERMINATION
5.1 Termination for Cause. Notwithstanding any provision in this
Agreement to the contrary, this Agreement may be terminated by the Company
for "Cause" at any time during the Term hereof, and such termination shall
be effective immediately upon written notice to the Employee. For purposes
of this Agreement, "Cause" for the termination of the Employee's employment
hereunder shall be deemed to exist if, in the reasonable judgment of the
Company's Board of Directors: (a) the Employee commits fraud, theft or
embezzlement against the Company; (b) the Employee commits a felony or a
crime involving moral turpitude; (c) the Employee compromises trade secrets
or other proprietary information of the Company; (d) the Employee breaches
any non-competition or non-solicitation agreement with the Company or any
subsidiary or affiliate thereof; (e) the Employee breaches any of the terms
of this Agreement (other than those referenced in clauses (c) and (d) of
this Section 5.1) and fails to cure such breach within 10 days after the
receipt of written notice of such breach from the Company; or (f) the
Employee engages in gross negligence or willful misconduct that causes harm
to the business and operations of the Company or a subsidiary or affiliate
thereof. Upon any termination pursuant to this Section 5.1, the Employee
shall be entitled to be paid solely the Employee's salary then in effect
through the effective date of termination, and the Company shall have no
further liability or other obligation of any kind whatsoever to the
Employee.
5.2 Termination by the Company Without Cause. The Company may, in its
sole and absolute discretion, terminate the employment of the Employee
hereunder, at any time prior to the expiration of the term of this
Agreement, without "Cause" (as such term is defined in Section 5.1 above),
or otherwise without any cause, reason or justification, provided that the
Company provides to the Employee at least sixty (60) days' prior written
notice (the "Termination Notice") of such termination. In the event of any
such termination by the Company, (a) the Employee's employment with the
Company shall cease and terminate on the date specified in the Termination
Notice (or, if no date is so specified, on the date which is 60 days
following the date of such notice), and (b) the Employee shall be entitled
to receive and be paid solely the Employee's salary then in effect for the
shorter of (x) the 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 Employee's salary through the
date of death, and the Company shall have no further liability or other
obligation of any kind whatsoever to the Employee.
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5.4 Disability of the Employee. In the event that the Employee becomes
incapacitated during the Term by reason of sickness, accident or other
mental or physical disability such that he is substantially unable to
perform his duties and responsibilities hereunder for a period of 60
consecutive days, or for shorter or intermittent periods aggregating 90
days during any 12-month period (a "Disability"), the Company thereafter
shall have the right, in its sole and absolute discretion, to terminate the
Employee's employment under this Agreement by sending written notice of
such termination to the Employee or its legal guardian or other proper
legal representative and thereupon his employment hereunder shall
immediately cease and terminate. In the event of any such termination, the
Employee shall be entitled to receive and be paid solely the Employee's
salary then in effect through the effective date of termination and the
Company shall have no further liability or other obligation of any kind
whatsoever to the Employee.
5.5 Termination by the Employee. Provided that the Company does not
have "Cause" to terminate the Employee pursuant to Section 5.1 above, the
Employee may terminate the Employee's employment with the Company hereunder
at any time and for any reason. Employee must provide to the Company
written notice of such termination not less than 365 days prior to the date
such termination is to be effective. Upon any termination pursuant to this
Section 5.5, the Employee shall be entitled to be paid solely the
Employee's salary then in effect through the effective date of termination,
and the Company shall have no further liability or other obligation of any
kind whatsoever to the Employee.
6. AGREEMENT NOT TO COMPETE
6.1 As used in this Agreement, "Competing Business" shall mean any
business or enterprise which is engaged in (a) the equipment leasing
business; or (b) any business, business segment or product line engaged in
by the Company on the date of termination of the Employee's employment with
the Company (clauses (a) and (b) collectively referred to herein as the
"Company's Business").
6.2 The Employee agrees that, during the Term of this Agreement and
for two years following the termination or expiration of his employment for
any reason whatsoever, he will not, without the prior written consent of
the Company, either directly or indirectly, on his own behalf or in the
service of or on behalf of others as a shareholder, director, officer,
trustee, consultant, independent contractor or employee, engage in, or be
employed by, or provide services to, any Competing Business within the
State of Florida or in any other state in which the Company or any
subsidiary or affiliate thereof is engaged in business or in which of any
of their respective products or services are marketed or sold at the time
of such termination.
7. AGREEMENT NOT TO SOLICIT OR SELL TO CUSTOMERS. The Employee agrees that,
during the Term of this Agreement and for two years following the termination or
expiration of his employment for any reason whatsoever, he will not without the
prior written consent of the Company, either directly or indirectly, call on,
solicit, take away, accept as a client, customer or prospective client, customer
or attempt to call on, solicit, take away or accept as a client, customer
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prospective client or customer, any person that was a client, customer or
prospective client or customer of the Company or any of its subsidiaries or
affiliates.
8. AGREEMENT NOT TO SOLICIT OR HIRE EMPLOYEES. The Employee agrees that
during the Term of this Agreement and for two years following the termination or
expiration of his employment for any reason whatsoever, he will not, either
directly or indirectly, on his own behalf or in the service or on behalf of
others, solicit, divert or hire, attempt to solicit, divert or hire or induce or
attempt to induce to discontinue employment with the Company or any subsidiary
or affiliate thereof, any person employed by the Company or any subsidiary or
affiliate thereof, whether or not such employee is a full time employee or a
temporary employee of the Company or any subsidiary or affiliate thereof and
whether or not such employment is for a determined period or is at will.
9. OWNERSHIP AND NON-DISCLOSURE AND NON-USE OF CONFIDENTIAL INFORMATION
9.1 As used in this Agreement, "Confidential Information" shall mean
all customer sales and marketing information, customer account records,
proprietary receipts and/or processing techniques, information regarding
vendors and products, training and operations memoranda and similar
information, personnel records, pricing information, financial information
and trade secrets concerning or relating to the business, accounts,
customers, employees and affairs of the Company, or any subsidiary or
affiliate thereof, obtained by or furnished, disclosed or disseminated to
the Employee, or obtained, assembled or compiled by the Employee or under
his supervision during the course of his employment by the Company, and all
physical embodiments of the foregoing, all of which are hereby agreed to be
the property of and confidential to the Company, but Confidential
Information shall not include any of the foregoing to the extent the same
is or becomes publicly known through no fault or breach of this Agreement
by the Employee.
9.2 The Employee acknowledges and agrees that all Confidential
Information, and all physical embodiments thereof, are confidential to and
shall be and remain the sole and exclusive property of the Company. Upon
request by the Company, and in any event upon termination of the Employee's
employment with the Company for any reason whatsoever, as a prior condition
to the Employee's receipt of any final salary or benefit payments
hereunder, the Employee shall deliver to the Company all property belonging
to the Company or any of its subsidiaries or affiliates, including, without
limitation, all Confidential Information (and all embodiments thereof),
then in his custody, control or possession, but any forfeiture of such
salary or benefit shall not be considered a satisfaction or a release of or
liquidated damages for any claim(s) for damages against the Employee which
may accrue to the Company, as a result of any breach of this Section 9 by
the Employee.
9.3 The Employee agrees that he will not, either during the Term of
this Agreement or at any time thereafter, without the prior written consent
of the Company, use, disclose or make available any Confidential
Information to any person or entity, nor shall he use, disclose, make
available or cause to be used, disclosed or made available, or permit or
allow, either on his own behalf or on behalf of others, any use or
disclosure of such Confidential Information other than in the proper
performance of the Employee's duties hereunder.
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10. INVENTIONS. The Employee shall disclose promptly to the Company any and
all conceptions and ideas for inventions, improvements, and valuable
discoveries, whether patentable or not, that are conceived or made by the
Employee, solely or jointly with another, during the Term of this Agreement and
that are directly related to the business or activities of the Company and that
the Employee conceives as a result of his employment by the Company, regardless
of whether or not such ideas, inventions, or improvements qualify as "works for
hire." The Employee hereby assigns and agrees to assign all his interests
therein to the Company or its nominee. Whenever requested to do so by the
Company, the Employee shall execute any and all applications, assignments or
other instruments that the Company shall deem necessary to apply for and obtain
Letters Patent of the United States or any foreign country or to otherwise
protect the Company's interest therein.
11. REASONABLENESS OF RESTRICTIONS. In the event that any provision
relating to time period or geographic area of any restriction set forth in
Sections 6, 7, 8, 9 or 10 shall be declared by a court of competent jurisdiction
to exceed the maximum time period or area of restriction that the court deems
reasonable and enforceable, the time period or area of restriction which the
court finds to be reasonable and enforceable shall be deemed to become, and
thereafter shall be, the maximum time period or geographic area of such
restriction.
12. ENFORCEABILITY. Any provision of Sections 6, 7, 8, 9 or 10 which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, but shall be enforced to the
maximum extent permitted by law, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
13. INJUNCTION. It is recognized and hereby acknowledged by the parties
hereto that a breach by the Employee of any of the covenants contained in
Sections 6, 7, 8, 9 or 10 of this Agreement will cause irreparable harm and
damage to the Company, the monetary amount of which may be virtually impossible
to ascertain. As a result, the Employee recognizes and hereby acknowledges that
the Company shall be entitled to an injunction from any court of competent
jurisdiction enjoining and restraining any violation of any or all of the
covenants contained in Sections 6, 7, 8, 9 or 10 of this Agreement by the
Employee or any of his affiliates, associates, partners or agents, either
directly or indirectly, and that such right to injunction shall be cumulative
and in addition to whatever other remedies the Company may possess.
14. ASSIGNMENT. The Employee shall not delegate his employment obligations
pursuant to this Agreement to any other person.
15. EMPLOYER'S AUTHORITY. The relationship between the parties hereto is
that of employer and employee. The Employee agrees to observe and comply with
the rules and regulations of the Company, as adopted by the Company from time to
time with respect to the performance of the duties of the Employee. The Employee
acknowledges that he has no authority to enter into any contracts or other
obligations that are binding upon the Company unless such contracts or
obligations are authorized by the Board of Directors of the Company. The Company
shall have the power to
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direct, control and supervise the duties to be performed by the Employee, the
manner of performing said duties, and the time of performing said duties.
16. GOVERNING LAW. This Agreement, the rights and obligations of the
parties hereto, and any claims or disputes relating thereto, shall be governed
by and construed in accordance with the laws of the State of Florida, excluding
the choice of law rules thereof. The Company and the Employee each hereby
irrevocably submit to the jurisdiction of the state or federal courts located in
Dade County, Florida in connection with any suit, action or other proceeding
arising out of or relating to this Agreement and hereby agree not to assert, by
way of motion, as a defense, or otherwise in any such suit, action or proceeding
that the suit, action or proceeding is brought in an inconvenient forum, that
the venue of the suit, action or proceeding is improper or that this Agreement
or the subject matter hereof may not be enforced by such courts.
17. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements, understandings and arrangements, both oral and
written, between the parties hereto with respect to such subject matter. This
Agreement may not be modified in any way, unless by a written instrument signed
by both the Company and the Employee.
18. NOTICES. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been given when
delivered by hand or three (3) days after sent by registered or certified United
States mail, return receipt requested, postage prepaid, or the next business day
following dispatch by a reputable overnight courier service, addressed as
follows:
(i) If to the Employee:
Jonathan New
10023 Bay Harbor Terrace
Bay Harbor, Florida 33154
(ii) If to the Company:
UniCapital Corporation
1111 Kane Concourse, Suite 301
Bay Harbor Island, FL 33154
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
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or to such other addresses as either party hereto may from time to time give
notice of to the other party hereto in the aforesaid manner.
19. BENEFITS; BINDING EFFECT. This Agreement shall be for the benefit of
and binding upon the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and assigns.
20. SEVERABILITY. Except as otherwise provided in Sections 11 and 12, the
invalidity of any one or more of the words, phrases, sentences, clauses,
sections or subsections contained in this Agreement shall not affect the
enforceability of the remaining portions of this Agreement or any part thereof,
all of which are inserted conditionally on their being valid in law, and, in the
event that any one or more of the words, phrases, sentences, clauses, sections
or subsections contained in this Agreement or any part thereof shall be declared
invalid, this Agreement shall be construed as if such invalid word or words,
phrase or phrases, sentence or sentences, clause or clauses, section or sections
or subsection or subsections had not been inserted. If such invalidity is caused
by length of time or size of area, or both, the otherwise invalid provision will
be considered to be reduced to a period or area which would cure such
invalidity.
21. DAMAGES. Nothing contained herein shall be construed to prevent the
Company or the Employee from seeking and recovering from the other damages
sustained by either or both of them as a result of its or his breach of any term
or provision of this Agreement. In the event that either party hereto brings
suit for the collection of any damages resulting from, or the injunction of any
action constituting, a breach of any of the terms or provisions of this
Agreement, then the non- prevailing party shall pay all reasonable court costs
and attorneys' fees of the other party.
22. SECTION HEADINGS. The section headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
23. NO THIRD PARTY BENEFICIARY. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any person
other than the parties hereto and their respective heirs, personal
representative, legal representative, successors and assigns, any rights or
remedies under or by reason of this Agreement.
24. AMENDMENT; MODIFICATION; WAIVER. No amendment, modification or waiver
of the terms of this Agreement shall be valid unless made in writing and duly
executed by the Company and the Employee. No delay or failure at any time on the
part of the Company in exercising any right, power or privilege under this
Agreement, or in enforcing any provision of this Agreement, shall impair any
such right, power or privilege, or be construed as a waiver of any default or as
any acquiescence therein, or shall affect the right of the Company thereafter to
enforce each and every provision of this Agreement in accordance with its terms.
The waiver by either party hereto of a breach or violation of any term or
provision of this Agreement shall neither operate nor be construed as a waiver
of any subsequent breach or violation.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
UNICAPITAL CORPORATION
By:
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Name:
Title:
EMPLOYEE
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Jonathan New
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