1
EXHIBIT 10.10
CONSULTING AGREEMENT
THIS AGREEMENT made as of January 1, 1999 (the "Effective Date"), by and
between SpectraSite Communications, Inc., a Delaware corporation (the
"Company"), and Xxxxxx & Company, Inc., an Arkansas corporation (the
"Consultant").
WHEREAS, the Company desires to obtain, on a part-time basis, the
services of Consultant, and the benefits of the Consultant's expertise;
WHEREAS, Consultant desires to provide part-time consultation services to
the Company;
WHEREAS, Consultant acknowledges and agrees that in connection with
providing consultation services as set forth herein, it is beneficial and
necessary to receive from the Company technical and business information,
including trade secrets and other proprietary information of the Company; and
WHEREAS, this Agreement is necessary for the protection of the Company's
legitimate and protectable business interests in its customers, accounts,
prospects, proprietary and confidential information.
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
herein contained, and other good and valuable consideration, including the
disclosure of proprietary and confidential information to the Consultant, the
parties hereto, intending legally to be bound, hereby agree as follows:
1. OBLIGATIONS OF CONSULTANT. Consultant will provide general business and
strategic consulting to the Company for not less than fifty (50) hours
per month during the "Term," as defined herein, at such times to be
determined by Consultant and the Company.
2. CONFIDENTIALITY.
(a) Consultant acknowledges that, in and as a result of this
Agreement, he will be making use of, acquiring and/or adding to
"Proprietary Information" (as defined herein) of a special and
unique nature and value. Consultant covenants and agrees that he
shall not, except with the prior written consent of the Board of
Directors of the Company or in connection with providing services
to the Company pursuant to this Agreement, at any time during or
following the expiration or termination of this Agreement with the
Company, directly or indirectly, divulge, use, reveal, report,
publish, transfer or disclose, for any purpose whatsoever, any
Proprietary Information which has been obtained by or disclosed to
Consultant as a result of his providing services under this
Agreement.
(b) For purposes of this Agreement, the term "Proprietary Information"
shall mean all of the following materials and information (whether
or not reduced to
2
writing and whether or not patentable or protectable by copyright) which
Consultant receives, receives access to, conceives of or develops, in
whole or in part, as a direct or indirect result of his providing
services to the Company as set forth in this Agreement, or through the
use of any of the Company's facilities or resources:
i. Discoveries, concepts and ideas, whether or not
patentable or protectable by copyright, including,
without limitation, the nature and results of
research and development activities, technical
information on product performance and reliability,
processes, formulas, techniques, "know-how," source
codes, object codes, designs, drawings and
specifications; and
ii. Any manufactured products or components thereof
and related goods or systems thereof and any and all
future products developed or derived therefrom; and
iii. Trade secrets, production processes, marketing
techniques, software programs, marketing plans,
formulae, data, mailing lists, purchasing
information, price lists, pricing policies, quoting
procedures, financial information, customer and
prospect names and requirements, customer data,
customer site information, pricing strategies and
other materials or information relating to the manner
in which the Company does business; and
iv. Any other materials or information related to the
business or activities of the Company which are not
generally known to others engaged in similar
businesses or activities; and
v. Any other materials or information that has been
created, discovered or developed, or otherwise become
known to the Company which has commercial value in
the business in which the Company is engaged; and
vi. All ideas which are derived from or relate to
Consultant's access to or knowledge of any of the
above-enumerated materials and information.
Failure to xxxx any of the Proprietary Information as confidential shall not
affect its status as Proprietary Information under the terms of this Agreement.
2
3
(c) The aforementioned obligation of confidentiality and
non-disclosure shall not apply when:
i. Public Domain. The Proprietary Information disclosed to
Consultant was in the public domain at the time of
disclosure, or at any time after disclosure has become a
part of the public domain by publication or otherwise
through sources other than Consultant, directly or
indirectly, and without fault on the part of Consultant in
failing to keep such information confidential; or
ii. Requirement of Law or Order. Disclosure is required by law
or court order, provided Consultant gives the Company as
much prior written notice of any such disclosure as is
reasonably possible; or
iii. Agreement. Disclosure is made with the prior written
agreement of the Board of Directors of the Company; or
iv. Third Party Disclosure. The Proprietary Information is
lawfully disclosed to Consultant after the expiration or
termination of this Agreement by a third party who is under
no obligation of confidentiality to the Company with
respect to such information; or
v. Independent Development. Such information is independently
developed by Consultant after the expiration or termination
of his Agreement with the Company, as demonstrated by
written records of Consultant which are contemporaneously
maintained.
3. INVENTIONS
(a) Consultant hereby assigns to the Company all of Consultant's
right, title and interest in any idea (whether or not patentable
or protectable by copyright), invention, development or design,
conceived or developed in whole or in part, or in which Consultant
may have aided development, while providing services to the
Company, including, without limitation, any Proprietary
Information. If any one or more of the aforementioned are deemed
in any way to fall within the definition of "work made for hire"
as such term is defined in 17 U.S.C. Section 101, such work shall
be considered "work made for hire," and the copyright of which
shall be owned solely by, or assigned or transferred completely
and exclusively to, the Company. Consultant agrees to execute all
documents and other instruments and
3
4
to do all other things reasonably requested by the Company (both
during and after termination of this Agreement) in order to more
fully vest in the Company all ownership rights in those items
thereby transferred by Consultant to the Company. Consultant
further agrees to disclose immediately to the Company all
Proprietary Information conceived of or developed in whole or in
part by it by during the Term while providing services to the
Company and to assign to the Company any right, title or interest
it may have in such Proprietary Information.
(b) Notwithstanding anything in this Agreement to the contrary, the
obligation of Consultant to assign or offer to assign its rights
in an invention to the Company shall not extend or apply to an
invention that Consultant developed without using the Company's
equipment, supplies, facility or trade secret information unless
such invention:
vi. relates to the Company's business or actual or demonstrably
anticipated research or development; or
vii. results from any services provided by Consultant for the
Company.
(c) Consultant shall bear the burden of proof in establishing that its
invention qualifies for exclusion under Section 3(b). With respect
to Section 3(b) it is agreed and acknowledged that during the
Term, the Company may enter other lines of business, which are
related or unrelated to its current lines of business, in which
case this Agreement covers such new lines of business.
(d) Consultant hereby represents and warrants that Consultant has
fully disclosed to the Company on Exhibit A hereto any idea,
invention, improvement or other equipment or technology related to
the products and services offered by the Company ("Inventions or
Improvements") not covered in Section 3(a) above which, prior to
the date of this Agreement, Consultant conceived of or developed,
wholly or in part, and in which Consultant has any right, title or
proprietary interest and which are directly related to the
Company's business, but which has not been published or filed with
the United States Patent or Copyright offices or assigned or
transferred to the Company, and which Consultant desires to remove
from the operation of this Agreement. If there is no such list on
Exhibit A, Consultant represents that Consultant has made no such
Inventions or Improvements at the time of signing this Agreement
or Consultant hereby assigns such Inventions or Improvements to
the Company.
4. COVENANT NOT TO COMPETE It is recognized and understood by the parties
hereto that Consultant, through its association with the Company, shall
acquire and have access
4
5
to a considerable amount of knowledge and goodwill with respect to the
business of the Company, which knowledge and goodwill is extremely
valuable to the Company and which would be extremely detrimental to the
Company if used by Consultant to compete with the Company. It is,
therefore, understood and agreed by the parties hereto that, because of
the nature of the business of the Company, it is necessary to afford fair
protection to the Company from such unfair competition by Consultant.
Consequently, as a material inducement to the Company to obtain the
services of Consultant, Consultant covenants and agrees to the following:
(a) that at any time during the Term and for a period of three (3)
years following the expiration or termination of this Agreement,
Consultant will not, directly or indirectly, with or through any
family member or former director, officer or employee of the
Company, or acting alone or as a director, employee, agent,
consultant, member of a partnership, firm, corporation or other
entity or as a holder of or investor in 5% or more of any security
of any class of any corporation or other business entity:
i. perform or provide services for any customer of the Company
which are the same or substantially similar to the services
performed or provided by Consultant for such customers on
behalf of the Company during the Term; or
ii. interfere with, or seek to interfere with, the relationship
between the Company and any of the following: (a) any of
the employees of the Company; (b) any of the customers of
the Company then existing or existing at any time during
the Term; or (c) any of the suppliers of the Company then
existing or existing at any time during the Term; or
iii. perform or provide services for any Competing Business (as
hereinafter defined) in the United States which are the
same or substantially similar to the services performed or
provided to the Company by Consultant during the Term.
"Competing Business" means any person, firm or corporation
related to wireless communications site acquisition, tower
development and ownership, site management, co-location
marketing, project management, and site maintenance then
being actively pursued or reasonably anticipated to be
pursued by the Company at any time during the Term. With
respect to the covenant contained in this Section
4(a)(iii), it is acknowledged by Consultant that the
Company's competitors are located throughout the United
States, and that unfair competition can be prevented only
by enforcing this specific covenant on a basis throughout
the United States.
5
6
5. REASONABLENESS OF RESTRICTIONS
(a) Consultant has carefully read and considered the provisions of
Sections 2 through 4 hereof (and has had the full opportunity to
obtain advice of counsel with respect thereto) and, having done
so, agrees that the restrictions set forth therein are fair and
reasonable and are reasonably required for the protection of the
interests of the Company, its officers, directors, stockholders,
investors, and employees. Consultant further acknowledges that the
nature of the Company's products and services are such that its
natural market is throughout the United States. Accordingly,
Consultant agrees that the length of time, geographic area and any
other restrictions contained in this Agreement are reasonable to
protect the legitimate interests of the Company and do not
unfairly restrict or penalize Consultant.
(b) In the event that, notwithstanding the foregoing, any part of the
covenants set forth in Sections 2 through 4 hereof shall be held
to be invalid and unenforceable, the court so deciding shall
interpret such provisions in a manner so as to enforce them to the
fullest extent of the law.
6. REMEDIES Consultant understands and agrees that the Company will suffer
irreparable harm in the event that Consultant breaches any of his
obligations under this Agreement and that monetary damages will be
inadequate to compensate the Company for such breach. Accordingly,
Consultant agrees that, in the event of a breach or threatened breach by
Consultant of any of the provisions of this Agreement, the Company, in
addition to and not in limitation of any other rights, remedies or
damages available to the Company at law or in equity, shall be entitled
to a permanent injunction in order to prevent or to restrain any such
breach by Consultant, or by Consultant's partners, agents,
representatives, servants, employers, employees and/or any and all
persons directly or indirectly acting for or with Consultant. This
remedy, however, shall be cumulative and in addition to any other
remedies the Company may have, Consultant hereby agrees to indemnify,
defend and hold harmless the Company, its officers, directors, employees,
agents and shareholders, from and against any and all third party claims,
actions, proceedings, liabilities or losses including without limitation
reasonable attorneys fees, arising from and based on (i) Consultant's
negligence or intentional misconduct, or (ii) the infringement of the
intellectual property rights of a third party by Consultant.
7. SURVIVAL OF COVENANTS The provisions and covenants set forth in Sections
2 through 6 of this Agreement shall survive the termination of this
Agreement.
8. OBLIGATIONS OF COMPANY
6
7
(a) Company will make its existing facilities, and support
services available to Consultant in performing this
Agreement.
(b) Company will provide Consultant office space and part-time
secretarial services.
(c) In consideration of the services provided under this
Agreement, the Company will pay Consultant Nine Thousand
Dollars ($9,000.00) per month during the Term.
(d) Company will reimburse Consultant for reasonable expenses
incurred by Consultant in performing consulting services
under this Agreement, upon presentation by Consultant, from
time to time, of a detailed and itemized account of such
expenses, evidenced by appropriate documentation.
Notwithstanding the foregoing, all expenses greater than
$150.00 must be approved in advance by the Company.
9. TERM AND TERMINATION
(a) Unless earlier terminated as provided herein, the initial
term of this Agreement will begin on the Effective Date and
will terminate on May 31, 1999. This Agreement will
automatically renew on a monthly basis unless either party
gives written notice to the other of its intent not to
renew this Agreement at least fifteen (15) days prior to
the expiration of the initial term or the then current
renewal term. The initial term of this Agreement and all
renewal terms of this Agreement are referred to as the
"Term."
(b) Any modification of this Agreement must be in writing and
signed by the parties.
10. NATURE OF RELATIONSHIP
(a) The Company will have no control or direction over the
services provided by Consultant and Consultant will perform
services hereunder as an independent contractor.
(b) No employer-employee relationship is created by this
Agreement and Consultant will not have any claim against
Company for any vacation pay, sick leave, retirement or
Social Security benefits, workers' compensation,
disability, unemployment insurance benefits, or any other
employee benefits.
(c) Consultant shall have no authority to bind the Company or
to incur obligations or liabilities or act in the name of
or on behalf of the Company.
7
8
(d) Consultant shall not assign this Agreement and will not delegate
his obligations hereunder without the prior written consent of the
Company.
11. ENTIRE AGREEMENT
This Agreement and the Exhibit hereto sets forth the entire agreement and
understanding between the parties with respect to the subject matter hereof, and
no representations, promises, agreements or understandings, written or oral, not
herein contained shall be of any force or effect. No change or modification
hereof shall be valid or binding unless the same is in writing and signed by the
parties against whom said waiver is sought to be enforced; moreover, no valid
waiver of any other provision of this Agreement at any time shall be deemed a
waiver of any other provision of this Agreement at such time nor will it be
deemed a valid waiver of such provision at any other time.
12. GOVERNING LAW
The validity, construction, interpretation and enforceability of this
Agreement, and the capacity of the parties shall be determined and governed by
the laws of the State of North Carolina without reference to the choice of law
provisions of such laws.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the Effective Date.
SPECTRASITE COMMUNICATIONS, INC.
By: Xxxxx X. Xxxxxx
--------------------------------
Title:
-----------------------------
XXXXXX & COMPANY, INC.
By: Xxx X. Xxx Xxxxxx
--------------------------------
Title:
-----------------------------
8
9
9
10
EXHIBIT A
Ideas, Inventions, Etc. Not Covered by Section 4
None.
10
