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EXHIBIT 10.8
NONCOMPETITION AGREEMENT
THIS NONCOMPETITION AGREEMENT (the "Agreement") is made as of October
12, 1994, by and between Xxx Xxxxx ("Principal") and American Tower
Corporation, a Delaware corporation ("Buyer").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Assignment dated as of October 12,
1994, the Buyer has succeeded to all rights, title and interest of BSC
Acquisition, Inc. to acquire all of the outstanding capital stock of Xxxxx-
Xxxxx Holdings, Inc., a Delaware corporation ("BSHI"), pursuant to that certain
Stock Purchase Agreement dated September 2, 1994 (the "Purchase Agreement"), by
and among BSC, BSHI and the stockholders of BSHI (including an affiliate of the
Principal), and assigned by BSC to Buyer and
WHEREAS, the Principal is one of the principal beneficial stockholders
and/or is an executive officer or director of BSHI or a subsidiary of BSHI; and
WHEREAS, the Principal is a primary beneficiary of the consideration to
be paid under the Stock Purchase Agreement; and
WHEREAS, because of, among other matters, Principal's or its affiliates'
intimate knowledge of the business of BSHI and its subsidiaries and his
reputation and relationships with, among others, the clients, customers,
subcontractors, suppliers, employees and other agents of BSHI and its
subsidiaries, Principal and the Buyer recognize and acknowledge (i) the
detrimental effect on the business and the substantially decreased value of
BSHI and its subsidiaries and the business which would result if Principal were
to enter into competition with the business within a reasonable period of time
after the Buyer's purchase of the business of BSHI, (ii) that the agreements
and covenants in this Agreement are essential to protect the business and
goodwill purchased by Buyer, and (iii) that Buyer would not have entered into
the Stock Purchase Agreement but for the covenants and agreements contained in
this Agreement; and
WHEREAS, it is a material condition to Buyer's obligation to consummate
the transactions contemplated by the Stock Purchase Agreement that the
Principal enter into this Agreement.
NOW, THEREFORE, for and in consideration of the mutual promises,
covenants, and obligations contained herein and in the Stock Purchase
Agreement, and as an inducement to Buyer to consummate the purchase of
Principal's beneficial ownership interest in BSHI, Buyer and Principal agree as
follows:
1. Principal agrees that commencing on the date of this Agreement
and continuing for a period of seven years thereafter, Principal will not
directly or indirectly engage in any Competitive Activities (as hereinafter
defined). The term "Competitive Activities" as used herein shall mean:
(a) directly or indirectly engaging in, continuing in or
carrying on the business of renting or leasing space on, or owning or
managing radio or other communications towers or managing communication
facilities on building tops (the "Business"), including owning,
controlling, participating in, joining, operating, or managing or being
a partner or stockholder of any business which competes with or is
engaged in or carries on as a material part of its business operations
any aspect of the Business provided, however, that the Business shall
not be deemed
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to include the business of constructing or servicing towers as conducted
on the date hereof by Allied Tower Company, Inc.;
(b) consulting with, advising or assisting in any way, whether
or not for consideration, any corporation, partnership, firm or other
business organization which at the time of such consultation, advice or
assistance is or proposes to become a competitor of the Business,
including, but not limited to, advertising or otherwise endorsing the
products or services of any such competitor; soliciting clients or
customers of BSHI or its subsidiaries (or persons or entities from which
BSHI or its subsidiaries have solicited orders for the sale of any
Business service within the three years immediately preceding the date
of this Agreement) or otherwise serving as an intermediary for any such
competitor; loaning money or rendering any other form of financial
assistance to any such competitor;
(c) offering employment to, or inducing or attempting to
induce any director, officer, employee, agent, or customer, supplier or
lessor of BSHI or its subsidiaries to terminate such position or
relationship with BSHI or its subsidiaries; or
(d) operate any business or offer any goods or services under
the name "Xxxxx-Xxxxx" or any of the names of the Subsidiaries, or any
variation thereof, unless Buyer has abandoned the name; provided,
however, that Principal shall at all times be entitled to operate any
business or offer any goods or services or make any use whatsoever it
wishes of his personal name;
provided, however, that the term "Competitive Activities" shall not include the
ownership of securities of corporations which are listed on a national
securities exchange or traded in the national over-the-counter market in an
amount which shall not exceed 5% of the outstanding shares of any such
corporation. The parties agree that, since the scope of the Business conducted
by or through BSHI and its subsidiaries, is or will likely be carried out
through-out the Unites States, the geographic scope of this covenant not to
compete shall extend through-out the United States. Notwithstanding anything
to the contrary contained in this Agreement, this Agreement shall terminate
immediately upon the occurrence of either of the following events: (i) Buyer's
failure to pay when due any amount payable to Principal pursuant to Paragraph 2
hereof which failure shall continue for thirty (30) days after such due date or
(ii) Buyer's failure to pay when due any monetary payments owed to Principal or
its affiliates under the terms of the Purchase Agreement or any agreement
executed in connection therewith which failure shall remain uncured for a
period of thirty (30) days after notice thereof from Principal to Buyer.
2. As additional consideration of the agreements of Principal
contained herein, Buyer shall pay to Principal $440,000, $220,000 of which is
payable on July 1, 1995, and the remaining $220,000 of which is payable on
January 1, 1996.
3. If Principal commits a breach, or overtly threatens to commit a
breach, of any of the provisions of this Paragraph 1, Buyer shall have the
right and remedy to have the provisions of Paragraph 1 of this Agreement
specifically enforced by any court having jurisdiction, it being acknowledged
and agreed that any such breach or threatened breach will cause irreparable
injury and continuing damage to Buyer, BSHI and its subsidiaries, and that the
exact amount of which would be difficult to ascertain and that in any event
money damages will not provide an adequate remedy and Buyer shall be entitled
to injunctive relief restraining any violation of Paragraph 1.
The rights and remedies enumerated above shall be independent, and in addition
to, and not in lieu of, any other rights and remedies available to Buyer, at
law or in equity.
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4. The parties hereto intend to and hereby confer jurisdiction to
enforce the covenants contained in Paragraph 1 upon the courts of any state or
foreign jurisdiction within the geographical scope of such covenants. If the
courts of any one or more of such states or jurisdictions shall hold such
covenants wholly enforceable by reason of the breadth of such scope or
otherwise, it is the intention of the parties hereto that such determination
not bar or in any way affect Buyer's right to the relief provided above in the
courts of any other states or jurisdictions within the geographical scope of
such covenants, as to breaches of such covenants as they relate to each state
being, for this purpose, severable into diverse and independent covenants.
5. If any action, suit or other proceedings at law or in equity is
brought to enforce the covenants contained in Paragraph 1, or to obtain money
damages for the breach thereof, and such action results in the award of a
judgment for money damages or in the granting of any injunction in favor of
Buyer, all expenses (including reasonable attorneys' fees and expenses) of
Buyer, in such action, suit or other proceeding shall (on demand of Buyer) be
paid by the Principal; provided, that, if in any such action, suit or
proceeding, the Principal is the prevailing party, then Buyer shall, upon
demand, pay all expenses (including reasonable attorneys' fees) incurred by the
Principal in connection therewith.
6. Principal understands that the foregoing restrictions may limit
his ability to engage in a business similar to the Business, but acknowledges
that he is receiving sufficiently high benefits from Buyer hereunder and under
the Stock Purchase Agreement to justify such restriction.
7. It is expressly understood and agreed that Buyer and Principal
consider the restrictions contained in Paragraph 1 above to be reasonable and
necessary for the purposes of preserving and protecting the Business and good
will purchased by Buyer. Nevertheless, if any of the aforesaid restrictions
are found by a court having jurisdiction to be unreasonable, or over broad as
to geographic area or time, or otherwise unenforceable, the parties intend for
the restrictions therein set forth to be modified by such court so as to be
reasonable and enforceable and, as so modified by the court, to be fully
enforced.
8. No failure by either party hereto at any time to give notice of
any breach by the other party of, or to require compliance with, any condition
or provision of this Agreement shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent
time.
9. Neither this Agreement nor any interest herein may be assigned by
the Principal. Buyer may freely assign this Agreement and any and all interest
herein to any "affiliate" thereof or in connection with a transfer, directly or
indirectly, of all or substantially all of its interest in BSHI and its
subsidiaries or the assets or business thereof but may not otherwise assign
this Agreement provided that no such assignment shall relieve Buyer of its
obligations under this Agreement.
10. No modification or amendment of any provisions of this Agreement
shall be effective, unless such modification or amendment shall be in writing
and signed by a duly authorized officer of Buyer and by Principal. This
Agreement may be executed by the parties hereto in one or more counterparts,
each of which shall be an original and all of which shall together constitute
the Agreement. This Agreement constitutes the sole and entire agreement of the
parties hereto with respect to the matters covered hereby and supersedes all
prior negotiations and written, oral or implied representations, warranties,
commitments, offers, contracts and understandings between the parties with
respect to such matters.
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11. All notices, demands, consents or other communications required
or permitted hereunder shall be in writing and shall be deemed to have been
given when personally delivered or sent by registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
If to Buyer:
American Tower Corporation
Eight Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: President
and
Xxxxxx & Xxxxxx L.L.P.
1001 Xxxxxx
0000 Xxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Xx. Xxxxxxx X. Xxxxx
If to Principal:
at the address below its name on the signature page of this
Agreement
and with a copy to:
Xxxxx Xxxx Xxxxx Constant & Xxxxxxxx
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
or to such other person and place as a party shall furnish by notice to the
other party hereto if given in the manner required above. Any notice, demand,
consent or other communication given hereunder in the manner required above
shall be deemed to have been effected and received as of the date hand
delivered or, if mailed, three days after the date so mailed.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the date and year first above written.
XXX XXXXX
/s/ XXX XXXXX
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Address: 00000 Xxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxx 00000
AMERICAN TOWER CORPORATION
By: /s/ XXXX X. XXXXXX
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Xxxx X. Xxxxxx
President and CEO
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