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Exhibit 10.20
RELEASE AND SETTLEMENT AGREEMENT
This Release and Settlement Agreement (the "Agreement") is entered into
as of May 12, 1997 by and between PCX Corporation, a Delaware corporation
("PCX"), and The North Carolina Enterprise Fund Limited Partnership, a North
Carolina limited partnership, Kitty Hawk Capital Limited Partnership, III, a
Delaware limited partnership, Xxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx, Xxxx X.
Xxxxxxx, and Xxxxxx X. Xxxxxxxxx (collectively, the "PCX Shareholders"), US
Towers, Inc., a Delaware corporation ("Towers"), Xxxxxx X. Xxxx ("Long"), and
Xxxxxxx X. Xxxxx ("Xxxxx").
WHEREAS, Xxxxx and the PCX Shareholders are the owners, of record and
beneficially, of all of the issued and outstanding shares of the capital stock
of PCX;
WHEREAS, Xxxxx is a shareholder, director, officer, and employee of PCX;
WHEREAS, Long is an employee of PCX;
WHEREAS, Xxxxx and Long are the owners, of record and beneficially, of
all of the issued and outstanding shares of the capital stock of Towers;
WHEREAS, Long, with significant assistance from Xxxxx and other
employees of PCX, developed a corporate opportunity that would allow PCX to
enter into the business of the construction and leasing of towers used to hold
the antennas required in the wireless communications industry (the "tower
business");
WHEREAS, the Board of Directors of PCX determined that it would be
willing to exchange its corporate opportunity in the tower business for a
warrant to acquire shares of the common stock of Towers and the other agreements
and covenants set forth herein;
WHEREAS, Towers has entered into a Letter of Intent, dated March 19,
1997, to acquire Telesite Services, LLC, an Arkansas limited liability company
("Telesite"), and its majority-owned subsidiary Metrosite, LLC, an Arkansas
limited liability company ("Metrosite");
WHEREAS, Telesite and Metrosite are engaged in all aspects of the tower
business, including wireless communications site acquisition, tower development
and ownership, site management, co-location marketing, project management, and
site maintenance; and
WHEREAS, the parties now desire to fully and finally settle and resolve
all matters related to, and arising, directly or indirectly, out of, the PCX
tower business corporate opportunity.
NOW, THEREFORE, the parties agree as follows:
1. In consideration of the issuance by Towers to PCX of the "Warrant,"
as defined herein, the agreements and covenants set forth in this Agreement, and
other good and valuable
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consideration, the receipt and sufficiency of which are hereby acknowledged, PCX
and the PCX Shareholders, jointly and severally, hereby release, and forever
irrevocably discharge Towers (its past, present, and future officers, directors,
agents, shareholders, employees, and representatives and its parents,
subsidiaries, affiliates, and its and their successors and assigns) and Long and
Xxxxx and their heirs, executors, personal representatives, administrators, and
assigns, jointly and severally, from any and all claims, demands, charges,
lawsuits, debts, defenses, actions or causes of action, obligations, damages,
sums of money, loss of services, compensation, attorneys' fees, costs and
expenses of suit, and liabilities whatsoever, which PCX and the PCX
Shareholders, derivatively or otherwise, had, now have, or may have, whether the
same be at law, in equity, or mixed, upon or by reason of any action or event
occurring prior to, on, or after the date hereof and related to the PCX tower
business corporate opportunity and the acquisition by Towers (or any of its
affiliates, successors, or assigns) of Telesite and Metrosite.
2. Simultaneously with the execution and delivery of this Agreement by
the parties, Towers shall issue, execute, and deliver to PCX a Warrant, in the
form attached hereto as an Exhibit (the "Warrant"), to acquire shares of the
Common Stock, par value $0.001 per share, of Towers upon the terms and
conditions set forth therein.
3. PCX and the PCX Shareholders, jointly and severally acknowledge and
agree that, other than the Warrant, and the other agreements and covenants set
forth herein, they are not entitled to any other compensation, monies, or
benefits from Towers (or any of its affiliates, successors, or assigns), Long,
and Xxxxx in connection with the release set forth herein.
4. After the date hereof and until the earlier of January 1, 1998 or
such time as PCX is sold, Xxxxx shall devote at least twenty percent (20%) of
his business time to PCX and PCX shall pay Xxxxx twenty percent (20%) of his
current salary. After January 1, 1998, Xxxxx shall, upon the election by the
shareholders of PCX, continue to serve as a member of PCX' Board of Directors,
but Xxxxx shall not serve in an executive position with PCX. After January 1,
1998, Xxxxx shall serve as a consultant to PCX until such time as PCX is
dissolved. As consideration for such consulting services, PCX shall pay Xxxxx an
annual consulting fee of $1,000. Xxxxx shall continue to be eligible to exercise
his PCX stock options, in accordance with the terms and conditions thereof,
until ninety (90) days after Xxxxx ceases to be a consultant to PCX. Without the
prior consent of PCX, until two (2) months after such time as PCX is sold,
Towers shall not employ, and neither Xxxxx nor Long shall employ on behalf of
Towers (or any of its affiliates, successors, or assigns), any employee of PCX
other than Long.
5. Each of the parties shall keep the terms of this Agreement strictly
confidential and shall not disclose any information concerning the terms of this
Agreement or provide a copy of the same to anyone, except the parties'
respective directors, advisory board members, limited partners, equity
investors, legal counsel or financial advisors, and Towers' affiliates,
successors, or assigns, Towers' equity investors, and Telesite and Metrosite,
and their respective legal counsel and financial advisors all of whom shall be
bound to maintain the confidence of the terms of this Agreement, unless
otherwise required by a court of competent jurisdiction. If required by law to
produce a copy or to make such disclosure, such party shall give the other
parties notice to the extent reasonably possible prior to such production or
disclosure.
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6. PCX represents and warrants to Towers, Long, and Xxxxx that the PCX
Shareholders and Xxxxx are the owners, of record and beneficially, of all of the
issued and outstanding shares of the capital stock of PCX. The foregoing
representation and warranty shall survive the execution and delivery of this
Agreement.
7. Except as required or permitted by law, each of the parties shall
keep strictly confidential and shall not use for its benefit or disclose to
others, except to the parties' respective directors, advisory board members,
limited partners, equity investors, legal counsel, or financial advisors (all of
whom shall be bound to maintain the confidence of such information), any
confidential business information or financial information or trade secrets of
the other parties, or other technical, business, or financial information, the
use or disclosure of which may be contrary to such parties' interests. If
required by law to produce a copy or to make such disclosure, such party shall
give the other parties notice to the extent reasonably possible prior to such
production or disclosure. This obligation shall remain in effect as to any
confidential business or financial information or trade secrets of each party
for the shorter of (a) three years from the date hereof or (b) so long as such
confidential business or financial information or such trade secrets shall
remain confidential and protectable information of such party under applicable
law. Such confidential information shall not include any information that may be
independently obtained from or developed by third party sources who are not
under an obligation of confidentiality with respect to such information.
8. PCX and the PCX Shareholders hereby assign to Towers (and its
affiliates, successors and assigns) all of their right, title, and interest in
and to all business, financial, technical, proprietary, and other information,
trade secrets, and all other intellectual property rights related to the PCX
tower business (the "Tower Business Information"). The provisions of Paragraph 7
of this Agreement shall not apply to the use or disclosure of the Tower Business
Information by Towers (and its affiliates, successors, or assigns), Xxxxx, or
Long.
9. Each of the parties acknowledges that it or he fully and completely
understands the terms and conditions of this Agreement and has voluntarily and
knowingly agreed to said terms and conditions, including all releases of claims
PCX, and the PCX Shareholders may have against Towers (its past, present, and
future officers, directors, agents, shareholders, employees, and representatives
and its parents, subsidiaries and affiliates and its and their successors and
assigns) and Long and Xxxxx and their heirs, executors, personal
representatives, administrators and assigns, in exchange for a valuable
consideration to PCX, and the PCX Shareholders.
10. With respect to the negotiation and execution of this Agreement and
the Warrant, no party shall be regarded as a prevailing party for any purpose,
including, but not limited to, determining responsibility for or entitlement to
attorneys' fees under any statute or otherwise. Each of the parties expressly
waives, as to each of the other parties, any and all claims for attorneys' fee,
in connection with the negotiation and execution of this Agreement and the
Warrant.
11. This Agreement shall not be used or construed by any person or
entity as an admission of liability or finding or admission that PCX' and the
PCX Shareholders' rights were in any way violated by Towers, Long, or Xxxxx, and
this Agreement may not be offered or received in
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evidence in any action or proceeding as an admission or concession of liability
or wrongdoing on the part of Towers, Long, or Xxxxx.
12. This Agreement shall be binding upon and inure to the benefit of
PCX, and each of the PCX Shareholders, and their respective successors, assigns,
heirs, executors, representatives, and administrators and Long and Xxxxx and
their respective heirs, executors, representatives, administrators, and assigns.
13. Each of the parties acknowledges and agrees that this Agreement
contains and comprises the entire agreement and understanding of the parties
with respect to the subject matter hereof and that there are no agreements or
understandings other than those contained herein. Further, each of the parties
acknowledges and agrees that this Agreement is intended to be a binding contract
between them and shall not be amended or modified, except by writing executed
and delivered by all of the parties.
14. This Agreement shall be governed by and construed in accordance with
the laws of the State of North Carolina.
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SEPARATE SIGNATURE PAGE
FOR RELEASE AND SETTLEMENT AGREEMENT
BY AND BETWEEN PCX CORPORATION, THE NORTH CAROLINA
ENTERPRISE FUND LIMITED PARTNERSHIP, KITTY HAWK
CAPITAL LIMITED PARTNERSHIP, III, XXXXX X. XXXXXX,
XXXXXXX X. XXXXXX, XXXX X. XXXXXXX, XXXXXX X. XXXXXXXXX,
US TOWERS, INC., XXXXXX X. XXXX, AND XXXXXXX X. XXXXX
MAY 12, 1997
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have executed this RELEASE AND SETTLEMENT AGREEMENT as of the date first
written above.
PCX CORPORATION (SEAL)
By: /s/ Xxxxxxx X. Xxxxxx
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Title: C.F.O.
THE NORTH CAROLINA ENTERPRISE FUND
LIMITED PARTNERSHIP (SEAL)
By: /s/ Xxxxxx X. Xxxx
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Title: Vice President
KITTY HAWK CAPITAL LIMITED
PARTNERSHIP, III (SEAL)
By: Kitty Hawk Partners Limited Partnership III,
General Partner
By: /s/ W. Xxxxx Xxxxxx
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Title: General Partner
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx (SEAL)
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/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx (SEAL)
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx (SEAL)
/s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx (SEAL)
US TOWERS, INC. (SEAL)
By: /s/ Xxxxxxx X. Xxxxx
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Title: President
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx (SEAL)
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx (SEAL)
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