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Exhibit 10.04
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
effective as of May 20, 1998 (the "Effective Date"), by and between UNICAPITAL
CORPORATION, a Delaware corporation (the "Company"), and STEVEN E. HIRSCH (the
"Employee").
R E C I T A L S
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The Company desires to obtain the services of the Employee in the
employment of the Company on the terms and subject to the conditions set forth
in this Agreement, and the Employee desires to make his services available to
the Company on the terms and subject to the conditions set forth in this
Agreement.
A G R E E M E N T
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NOW, THEREFORE, in consideration of the premises, agreements and mutual
covenants set forth herein, the parties hereto, intending to be bound legally,
hereby agree as follows:
1. DEFINITIONS. The following terms when used herein, unless the
context otherwise requires, shall be defined as follows:
1.1 "Cause" shall have the meaning set forth in Section
5.1 hereof.
1.2 "Company" shall mean U.S. Leasing, Inc., 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 of Employment" 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 -- Structured Finance during the Term of
Employment 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.
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2.2 Duties of Employee.
(a) During the Term of Employment, the Employee
shall:
(i) report directly to the Chief Executive
Officer until such time as the Company has hired a Chief Operating Officer,
whereupon Employee shall report to the Chief Operating Officer of the Company
(the Chief Executive Officer, prior to the hiring of the Chief Operating
Officer, and the Chief Operating Officer are sometimes hereinafter referred to
as the "Reporting Officer");
(ii) diligently perform all duties and
responsibilities as may be assigned to him by the Company's Board of Directors
and by the Reporting Officer; and
(iii) exercise such power and authority as
may from time to time be delegated to him by the Company's Board of Directors
and by the Reporting Officer.
(b) 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. The Employee shall be permitted, to the extent that such activities do
not interfere with or detract from the Employee's performance of his duties and
responsibilities hereunder, to (i) manage the Employee's personal, financial and
legal affairs, and (ii) serve on corporate, civic or charitable boards or
committees unless the Company's Board of Directors or Chief Executive Officer
reasonably determines that such service in any instance would be inimical to or
otherwise not in the best interests of the Company.
(c) The Employee shall not be required to
perform any duties or responsibilities which would be reasonably likely to
result in non-compliance or violation of any applicable law or regulation. The
Company shall be entitled to rely upon the advice of its in-house and/or outside
counsel in concluding that any such non-compliance or violation is not
reasonably likely to result, and the Employee shall be bound by the Company's
conclusion if so advised.
(d) In furtherance of the performance of his
duties hereunder, but not in limitation of the Employee's responsibility to
perform such duties, the Employee shall be provided with reasonable
administrative and technical support consistent with his position and with the
Company's ordinary practices for the assignment of personnel.
3. TERM. Subject to the provisions of Section 5 of this
Agreement, the Company shall employ the Employee for a term of two years (the
"Term of Employment") commencing on the Effective Date and expiring on January
24, 2000.
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4. COMPENSATION.
4.1 Salary. The Employee shall receive an initial annual
salary of $250,000.00 during the Term of Employment, 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. The Employee's performance and then-existing annual salary will be reviewed
by the Compensation Committee of the Company's Board of Directors on the first
and on each successive anniversary of the Effective Date during the Term of
Employment, at which time the Employee's annual salary may be adjusted (but in
no event to an amount less than $250,000 per year).
4.2 Benefits and Perquisites.
(a) During the Term of Employment, the Employee
shall be entitled to participate in all plans, programs and arrangements adopted
for the general benefit of the Company's employees and officers, such as stock
option plans, 401(k) plans, pension plans, profit sharing plans, medical plans,
group or other insurance plans and benefits and other perquisites generally
available to employees and officers, to the extent that the Employee is and
remains eligible to participate therein and subject to the eligibility
provisions of such plans, programs and arrangements in effect from time to time.
The Company also expects to develop annual bonus or other incentive arrangements
for executive officers of the Company, and the Employee shall participate in
such arrangements on a basis substantially similar to that of the Company's
other executive officers.
(b) For each calendar year during the Term of
Employment, 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.
(c) To the extent that, and for a duration not
to exceed the period in which, the Company does not provide welfare benefit
plans of a general type similar to those maintained by the Employee's
immediately prior employer in which the Employee is entitled to participate on a
post-termination basis under COBRA, the Company shall reimburse the Employee for
the Employee's COBRA contribution payment costs in connection with the
Employee's post-termination participation in such prior employer's welfare
benefit plans.
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 is required to 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.
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4.4 Reimbursement of Expenses. The Company agrees to
reimburse the Employee for all reasonable business expenses incurred by the
Employee in the discharge of his duties hereunder (including, without
limitation, reasonable travel and entertainment expenses), subject to the
Company's reimbursement policies in effect from time to time. The Employee
agrees to maintain records of his business expenses in such form and detail as
the Company may reasonably request and to make such records available to the
Company as and when requested.
4.5 Moving and Transition Expenses. The Company shall
promptly reimburse the Employee for the actual cost of all reasonable moving and
relocation expenses (as agreed upon between the Company and the Employee)
reasonably incurred by the Employee in relocating from the New York, New York
metropolitan area to the Miami, Florida metropolitan area. The Employee shall
complete such relocation as soon as is reasonably practicable, in Employee's
reasonable judgment, for the Employee and his family. During the Term of
Employment but prior to such relocation, the Company will reimburse the Employee
for the actual cost of transition expenses, which shall consist of the
reasonable expenses of commuting for business purposes from the Employee's home
in the New York, New York metropolitan area to the Company's principal place of
business in the Miami, Florida metropolitan area.
5. TERMINATION.
5.1 Termination for Cause.
(a) 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 of Employment. 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: (i) the Employee is convicted of fraud, theft or embezzlement against
the Company; (ii) the Employee is convicted of a felony or a crime involving
moral turpitude; (iii) the Employee breaches any of the terms of this Agreement,
which breach results in material harm to the business and/or operations of the
Company and its subsidiaries taken as a whole; or (iv) the Employee engages in
gross or willful misconduct that causes material harm to the business and/or
operations of the Company and its subsidiaries taken as a whole.
(b) If the Company intends to terminate the
Employee for Cause as defined herein, then the Company shall notify the Employee
in writing executed by or on behalf of the Company's Chief Executive Officer.
Such written notice shall specify the particular act or acts, or failure to act,
which is or are the basis for the decision so to terminate the Employee's
employment for Cause. The Employee shall be given the opportunity within the 30
calendar days after delivery of the notice (i) to meet with the Company's Board
of Directors to defend such act or acts, or failure to act, and (ii) if the
Board determines by majority vote that such act or failure to act can be
corrected, to correct such act or failure to act. Upon failure of the Employee,
within such 30-day period, to correct such act or failure to act, if permitted,
or upon failure of the Board within such
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30-day period to cancel the notice of termination for Cause, the termination of
the Employee's employment by the Company for Cause under this Section 5.1 shall
be immediately effective.
(c) 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 any other
compensation and benefits as may be provided in accordance with the terms and
provisions of any applicable plans or programs of the Company, and (except as
specifically set forth in this Agreement) the Company shall have no further
liability or other obligation of any kind whatsoever to the Employee in his
capacity as such.
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
Employment, 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 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 greater of (x) the 12-month period following the
Employee's termination or (y) the remaining Term of Employment, payable over
such period at the Company's regular and customary intervals for the payment of
salaries as then in effect and any other compensation and benefits as may be
provided in accordance with the terms and provisions of any applicable plans or
programs of the Company, and (except as specifically set forth in this
Agreement) the Company shall have no further liability or other obligation of
any kind whatsoever to the Employee in his capacity as such. In addition, the
Company shall reimburse the Employee for the actual cost of moving expenses
reasonably incurred by the Employee in relocating back to the New York, New York
metropolitan area, including, without limitation, all reasonable costs and
expenses attributable to house-hunting trips by the Employee and/or his spouse,
provided, that relocation expenses reimbursed pursuant to this Section 5.2 shall
not exceed $20,000 in the aggregate.
5.3 Death of the Employee. If the Employee shall die
during the Term of Employment, then 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 any other
compensation and benefits as may be provided in accordance with the terms and
provisions of any applicable plans or programs of the Company, and (except as
specifically set forth in this Agreement) the Company shall have no further
liability or other obligation of any kind whatsoever to the Employee in his
capacity as such.
5.4 Disability of the Employee. If the Employee becomes
incapacitated during the Term of Employment by reason of sickness, accident or
other mental or physical disability such
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that he is substantially unable to perform the essential functions of his duties
and responsibilities hereunder, with or without reasonable accommodation, for a
period of 120 consecutive days, or for shorter or intermittent periods
aggregating 120 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 any other compensation and
benefits as may be provided in accordance with the terms and provisions of any
applicable plans or programs of the Company, and (except as specifically set
forth in this Agreement) the Company shall have no further liability or other
obligation of any kind whatsoever to the Employee in his capacity as such.
5.5 Termination by the Employee.
(a) 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 60
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 any other compensation and benefits as may be provided in accordance with
the terms and provisions of any applicable plans or programs of the Company, and
(except as specifically set forth in this Agreement) the Company shall have no
further liability or other obligation of any kind whatsoever to the Employee in
his capacity as such.
(b) In addition to the rights to terminate set
forth in Section 5.5(a), the Employee may terminate his employment hereunder for
Good Reason, as defined in this Section 5.5(b). For purposes of this Agreement,
"Good Reason" means (i) the assignment to the Employee of duties or
responsibilities materially inconsistent with and inferior to his title and
position, (ii) any material decrease in the aggregate compensation of the
Employee, or any failure to pay such compensation when due (other than a failure
to pay resulting from mere technical error or mistake), or (iii) any demand by
the Company that the Employee relocate to a principal office other than the
Company's principal executive offices unless consented to by the Employee. In
the event of a resignation for Good Reason, Company shall reimburse the Employee
for the actual cost of moving expenses reasonably incurred by the Employee in
relocating back to the New York, New York metropolitan area, including, without
limitation, all reasonable costs and expenses attributable to house-hunting
trips by the Employee and/or his spouse, provided, that relocation expenses
reimbursed pursuant to this Section 5.5(b) shall not exceed $20,000 in the
aggregate. In all respects and for all purposes of this Agreement, a termination
by the Employee of his employment hereunder for Good Reason shall have the same
effect as, and shall entitle the Employee to the same rights and benefits as, a
termination of the Employee's employment by the Company without Cause under this
Agreement.
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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
Employment and for two years following the termination of his employment by the
Company for Cause or his resignation without Good Reason, 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:
(a) employment with an investment banking or
financial advisory firm or boutique (or the investment banking or financial
advisory division of a commercial bank) in a position analogous to, or providing
services analogous to, the position in which the Employee was employed with, or
those services provided by the Employee at, Morgan Stanley & Co. Incorporated
prior to the commencement of the Term of Employment shall not violate the
covenant contained in this Section 6.2, so long as the Employee does not advise
or provide other services in respect of the consolidation of leasing companies;
and
(b) so long as the Employee has not violated any
covenant contained in Article 7, 8 or 9 hereof, the duration of the covenant
contained in this Section 6.2 shall be nine months; provided, however, that in
the event of any violation of any covenant contained in Article 7, 8 or 9 hereof
prior to the expiration of such covenants in accordance with their terms, the
nine-month duration provided for in this Section 6.2(b) shall be null and void
and of no further force and effect, and the two year duration shall again apply;
and
(c) the foregoing covenants shall not be deemed
to prohibit the Employee from acquiring as an investment not more than five
percent of the capital stock of a Competing Business whose stock is traded on a
national securities exchange or through the automated quotation system of a
registered securities association.
7. AGREEMENT NOT TO SOLICIT OR SELL TO CUSTOMERS. The Employee
agrees that, during the Term of Employment and for two years following the
termination of his employment by the Company for Cause or his resignation
without Good Reason, 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,
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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. Notwithstanding the foregoing, employment and
activities of the type permitted by clause (a) of Section 6.2 shall not violate
the covenant contained in this Section 7, so long as the Employee does not
advise or provide other services in direct support of the consolidation of
leasing companies.
8. AGREEMENT NOT TO SOLICIT OR HIRE EMPLOYEES. The Employee
agrees that during the Term of Employment and for two years following the
termination of his employment with Cause or his resignation without Good Reason,
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 that the Employee can show that the same (a) is or
becomes publicly known through no fault or breach of this Agreement by the
Employee, or (b) was known by the Employee without restriction of
confidentiality prior to the commencement of the Term of Employment.
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.
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9.3 The Employee agrees that he will not, either during
the Term of Employment 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 (a) other than in the proper performance of the
Employee's duties hereunder, or (b) unless required to do so by order of a court
of law or at equity, by order of a governmental authority or agency or pursuant
to a subpoena, after reasonable notice to the Company and an opportunity for the
Company to contest, in each case to the fullest extent practicable.
10. INVENTIONS. The Employee hereby assigns and agrees to assign
to the Company or its nominee all his interests in (a) all works of authorship
reduced to a tangible medium of expression and (b) all patentable inventions,
improvements, and valuable discoveries that, in either case, are conceived or
made by the Employee, solely or jointly with another, during the Term of
Employment and that are directly related to the business or activities of the
Company and that the Employee conceives in the course of his employment by the
Company, regardless of whether or not such works of authorship, inventions or
improvements qualify as "works for hire." Whenever requested to do so by the
Company, the Employee shall execute at the expense of the Company 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,
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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. NO ASSIGNMENT. The Employee shall not assign or 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.
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 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:
(a) If to the Employee:
Steven E. Hirsch
554 Alda Road
Mamaroneck, NY 10543
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(b) 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
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. 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
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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 or the Employee 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 or the Employee 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.
25. SURVIVAL. The respective rights and obligations of the parties
hereunder shall survive any termination of this Agreement or the Term of
Employment for any reason to the extent necessary to the intended provision of
such rights and the intended performance of such obligations.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
UNICAPITAL CORPORATION, a
Delaware corporation
By: /s/ ROBERT J. NEW
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Name: Robert J. New
Title: Chairman and Chief
Executive Officer
EMPLOYEE:
/s/ STEVEN E. HIRSCH
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Steven E. Hirsch
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