FOUNDER NONCOMPETITION AGREEMENT
Exhibit 10.12
This NONCOMPETITION AGREEMENT is made as of May 22, 2007, by and between Communications
Infrastructure Investments, LLC (the “Company”), and Xxx Xxxxxx, residing at [ ] (the
“Employee”). Capitalized terms used herein and not defined shall have the meanings
ascribed to them in the Company’s Amended and Restated Limited Liability Company Agreement of even
date herewith, as amended from time to time (the “LLC Agreement”) by and among the
Company, and the persons named on Schedule A thereto.
RECITALS
WHEREAS, in order to make available needed capital to help ensure its future success, the
Company desires to issue Units to the Institutional Investors pursuant to the LLC Agreement; and
WHEREAS, the Employee is one of the two founders of the Company who together own, through
investment vehicles, all of the outstanding equity interests in the Company, which interests shall
be converted into Class A Preferred Units pursuant to the LLC Agreement;
WHEREAS, the Employee is employed by the Company or any of its Subsidiaries and is being
issued Common Units of the Company; and
WHEREAS, the Employee has substantial knowledge and experience in the Company’s and its
Subsidiaries’ businesses and intimate knowledge of their customers, processes, trade secrets and
other business information; and
WHEREAS, the Employee will benefit substantially as a result of the Institutional Investors’
investment in the Company, including through the expansion of the Company’s and its Subsidiaries’
businesses to be financed with the funds to be invested by the Institutional Investors; and
WHEREAS, the Institutional Investors wish to protect the value of their investment in the
Company from the risk of competition posed by the Employee and it is a condition to the
obligations of the Institutional Investors under the LLC Agreement that this Agreement be executed
by the parties hereto, and the parties are willing to execute this Agreement and to be bound by
the provisions hereof;
NOW THEREFORE, in consideration of the foregoing, the agreements set forth below, and the
parties’ desire to preserve the value inherent in the Company for their mutual benefit and the
benefit of the Institutional Investors and the Company, the Employee, intending to be legally
bound hereby, agrees with the Company as follows:
1. Definitions.
“Board” means the Company’s Board of Managers.
“Capital Contributions” has the meaning set forth in the LLC Agreement.
“Cause” means the Employee’s: (i) dishonesty of a material nature with respect to the
Company (including, but not limited to, theft or embezzlement of the Company’s or any of its
Subsidiaries’ funds or assets); (ii) conviction of, or guilty plea or no contest plea, to a felony
charge or any misdemeanor involving moral turpitude, or the entry of a consent decree with any
governmental body; (iii) noncompliance in any material respect with any laws or regulations,
foreign or domestic, affecting the operation of the Company’s or any of its Subsidiaries’ business,
if such noncompliance is likely to have a material adverse effect on the Company or any of its
Subsidiaries; (iv) violation of any express direction or any rule, regulation or policy established
by the Board that is consistent with the terms of this Agreement, which violation, if reasonably
susceptible to cure, is not cured within ten (10) days of written notice thereof from the Board,
and if such violation is likely to have a material adverse effect on the Company or any of its
Subsidiaries; (v) material breach of this Agreement, which breach, if reasonably susceptible to
cure, is not cured within ten (10) days of written notice thereof from the Board or material breach
of the Executive’s fiduciary duties to the Company or any of its Subsidiaries; or (vi) gross
incompetence, gross neglect, or gross misconduct in the performance of the Executive’s duties.
“Competing Business” means any business engaged in owning or operating fiber
networks.
“Expiration Date” has the meaning specified in Section 2 of this
Agreement.
“Fair Market Value” has the meaning set forth in the LLC Agreement.
“Good Reason” means the occurrence of any of the following events: (A) a substantial
adverse change in the nature or scope of Employee’s responsibilities, authorities, powers,
functions or duties attached to Employee’s position with the Company or any of its Subsidiaries as
of the date of this Agreement, (B) the relocation of the offices at which Employee is principally
employed to any other location that is more than 75 miles from the current location of such
offices or (C) Employee’s title as of the date of this Agreement is changed in any manner, other
than as a result of a promotion. Notwithstanding the foregoing, the occurrence of any event
specified in paragraphs (A), (B) or (C) shall not be deemed to be “Good Reason” if Employee fails
to voluntarily terminate his employment under this Agreement within sixty (60) days following such
event.
“Institutional Investors” means, collectively, Columbia Capital Equity Partners IV
(QP), L.P., Columbia Capital Equity Partners IV (QPCO), L.P., Columbia Capital Employee Investors
IV, L.P., M/C Venture Partners VI, L.P., M/C Venture Investors, L.L.C, Oak Investment Partners
XII, Limited Partnership, Battery Ventures VII, L.P., Battery Investment Partners VII, LLC,
Centennial Ventures VII, L.P. and Centennial Entrepreneurs Fund VII, L.P.
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“Investors” means, collectively, the Institutional Investors, Bear Investments, LLLP,
Bear Equity, LLC and ESU Investments, LLC.
“Priority Return” has the meaning set forth in the LLC Agreement.
“Protected Territory” shall mean, prior to the Termination Date, the world, and
commencing on and after the Termination Date, shall include the United States and any other
geographic area in which the Company or any of its Subsidiaries conducts business as of the
Termination Date, or has developed an intention to conduct business in such geographic area on or
before the Termination Date and for which the Company or any of its Subsidiaries has prepared or
commissioned the preparation of a business plan or study on or before the Termination Date.
“Termination Date” shall mean the date the Employee ceases to be employed by the
Company or any of its Subsidiaries as a result of (i) the Employee voluntarily terminating his
employment with the Company or any Subsidiary other than for Good Reason or (ii) the Employee
being terminated by the Company or any Subsidiary for Cause.
“Threshold Investment Date” means the date on which the Investors have made cash
Capital Contributions to the Company in the aggregate amount of $50,000,000.
2. Term. The term of this Agreement shall be for a period commencing on the
Threshold Investment Date and ending on the earlier of the first anniversary of the
Termination
Date or October 31, 2010 (the “Expiration Date”). Notwithstanding the foregoing, in
the event
that the sum of (i) the Fair Market Value of the Institutional Investors’ Class A Preferred
Units
on the Expiration Date plus (ii) the aggregate amount of distributions paid by the Company
with
respect to the Institutional Investors’ Class A Preferred Units (excluding Tax Distributions,
as
defined under the LLC Agreement), including the Fair Market Value of any distributions other
than cash (the “Investment Value”) is less than the aggregate amount of Capital
Contributions
made with respect to the Institutional Investors’ Class A Preferred Units (plus the Priority
Return
accrued thereon), the Expiration Date shall extend until the earliest of (i) the first
anniversary of
the Termination Date, (ii) the date on which the Investment Value of the Institutional
Investors’
Class A Preferred Units is equal to or exceeds the aggregate amount of Capital Contributions
made with respect to the Investors’ Class A Preferred Units (plus the Priority Return accrued
thereon) (only if Termination Date is on or after October 31, 2010) and (iii) October 31,
2012.
3. Noncompetition and Nonsolicitation.
(a) Noncompetition. During the term of this Agreement, the Employee agrees
that Employee will not, singly, jointly, or as a partner, member, employee, agent, officer,
director, stockholder, equity holder, lender, consultant, independent contractor, or joint
venturer of any other Person, or in any other capacity, directly, indirectly or
beneficially (except (i) as a passive holder of not more than one percent (1%) of the
outstanding stock of any company listed on a national securities exchange, or actively
traded in a national over-the-counter market, (ii) as a passive participant in any venture
capital fund where his interest therein does not exceed one percent (1%) of the total
capital commitments, or (iii)
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as Executive Chairman of EnVysion, (iv) as an employee, manager, director or owner of MCCC
ICG Holdings LLC or (v) as a director or owner of New Global Telecom, Inc. (collectively,
“Permitted Activities”)), own, manage, operate, join, control, or participate in the
ownership, management, operation or control of, or permit the use of his name by, or work
for, or provide consulting, financial or other assistance to, or be connected in any manner
with, a Competing Business within the Protected Territory;
(b) Nonsolicitation. During the term of this Agreement, the Employee agrees
that Employee will not, singly, jointly, or as a partner, member, employee, agent, officer,
director, stockholder, equity holder, lender, consultant, independent contractor, or joint
venturer of any other Person, or in any other capacity, directly, indirectly or
beneficially (except for Permitted Activities) induce or attempt to induce any Person which
is a customer of the Company or any of its Subsidiaries, or which otherwise is a
contracting party with the Company or any of its Subsidiaries, as of the date hereof or at
any time hereafter during the term of this Agreement, to terminate, alter or amend any
written or oral agreement or understanding with the Company or any of its Subsidiaries.
4. Injunctive Relief. The Employee agrees that the breach of this Agreement by such
Employee will cause irreparable damage to the Company and that in the event of such breach the
Company shall have, in addition to any and all remedies of law, the right to an injunction,
specific performance or other equitable relief to prevent the violation of the Employee’s
obligations hereunder.
5. Amendments; Waiver. Any amendment to or modification of this Agreement,
and any waiver of any provision hereof, shall be in writing and shall require the prior
written
approval of the Company. Any waiver by the Company of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent breach hereof.
6. Enforcement. The Company and the Employee agree that the covenants set forth
in this Agreement shall be enforced to the fullest extent permitted by law. Accordingly if, in
any
judicial or similar proceedings, a court or any similar judicial body shall determine that
such
covenant is unenforceable because it covers too extensive a geographical area or survives too
long a period of time, or for any other reason, then the parties intend that such covenant
shall be
deemed to cover only such maximum geographical area and maximum period of time, and shall
otherwise be deemed to be limited in such manner, as will permit enforceability by such court
or
similar body. The Company and the Employee further agree that covenants set forth in this
Agreement are reasonable in all the circumstances for the protection of the legitimate
interests of
the Company and its Members. In the event that any one or more of such covenants shall, either
taken by itself or themselves together, be adjudged to go beyond what is reasonable in all the
circumstances for the protection of the interests of the Company and its Members, but would be
adjudged reasonable if any particular covenant or covenants or parts thereof were deleted,
restricted or limited in a particular manner, then the said covenants shall apply with such
deletions, restrictions or limitations, as the case may be.
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7. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to contracts made and to be
performed therein.
8. Consent to Jurisdiction. The Employee hereby agrees to submit to the exclusive
jurisdiction of the court in and of the State of Delaware and to the courts to which the
decisions
of appeal of such courts may be taken and consents that service of process with respect to all
courts in and of the State of Delaware may be made by registered mail to Employee’s address
set
forth on page 1 hereof.
9. Successors and Assigns. The Company shall have the right to assign this
Agreement to its successors and assigns, and all covenants and agreements hereunder shall
inure
to the benefit of and be enforceable by said successors or assigns; provided, however, that
the
parties hereto agree that in the event of any such assignment by the Company, the phrase
“Competing Business” shall, for purposes of being applied to Employee’s obligations hereunder
to the assignee, be limited to the business of the Company as of the date of such assignment.
10. Captions; Gender and Number. The captions of the sections of this Agreement
are for convenience of reference only and in no way define, limit or affect the scope or
substance
of any section of this Agreement. The gender and number used in this Agreement are used as
reference terms only and shall apply with the same effect whether the parties are of the
masculine, neuter or feminine gender, corporate or other form, and the singular shall likewise
include the plural.
11. Entire Agreement. This Agreement and each related agreement to which the
undersigned are a party constitute the full and entire understanding and agreement between the
parties with regard to the subjects hereof and thereof and supersede all prior agreements and
understandings, whether oral or written, with respect thereto and hereto.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date and year first above
written.
| COMPANY: COMMUNICATIONS INFRASTRUCTURE INVESTMENTS, LLC |
||||
| By: | /s/ Illegible | |||
| Name: | ||||
| Title: | ||||
| EMPLOYEE: |
||||
| /s/ Xxx Xxxxxx | ||||
| Xxx Xxxxxx | ||||
[Signature to Founder Noncompetition Agreement]
