Exhibit 2.11F
NON-COMPETITION AGREEMENT
NON-COMPETITION AGREEMENT, dated as of November 22, 1997, by and between
International Wireless Communications Holdings, Inc. (the "Company") and Xxxxxx
Xxxxxx (the "Executive");
WHEREAS, the Executive is the Chief Executive Officer of Radio Movil
Digital Americas, Inc. ("RMD");
WHEREAS, concurrently with the execution and delivery of this Agreement,
the Company and RMD are entering into an Agreement and Plan of Merger (the
"Merger Agreement"), dated as of the date hereof;
WHEREAS, RMD intends to enter into a consulting agreement (the "Consulting
Agreement") with the Executive dated as of the date hereof;
WHEREAS, the Executive has substantial experience and significant business
relationships in the specialized mobile radio trunking business;
WHEREAS, the Company and RMD would suffer damages, including the loss of
profits, if the Executive disclosed any confidential information of the Company
or RMD, engaged in any business that is competitive with the Company or RMD or
solicited the termination of the Company's or RMD's relationships with its
suppliers, customers or employees;
WHEREAS, the Company would not have entered into the Merger Agreement
absent the execution by the Executive of this Agreement;
WHEREAS, it is the interest of the Executive that the transactions
contemplated by the Merger Agreement be consummated; and
WHEREAS, this Agreement has been reached in good faith in arms-length
negotiations.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. PAYMENTS. In consideration of the execution, delivery and
performance of this Agreement and the covenants contained herein, upon the
effectiveness of this Agreement as contemplated by Section 9 hereof, the
Company shall pay the Executive $450,000.
2. CONFIDENTIAL INFORMATION. The Executive recognizes and acknowledges
that he has had access to certain information of members of the Company Group
(as defined below) and that such information is confidential and constitutes
valuable, special and unique property of such members of the Company Group.
The Executive shall not at any time after the date hereof, disclose to
others, use, copy or permit to be copied, except in pursuance of his duties
for and on behalf of the Company and RMD, their respective successors,
assigns or nominees, any Confidential Information of any member of the
Company Group (regardless of whether developed by the Executive) without the
prior written consent of the Company.
As used herein, "Company Group" means the Company (including RMD), and
any entity that directly or indirectly controls, is controlled by, or is
under common control with, the Company and RMD, and for purposes of this
definition "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such
entity, whether through the ownership of voting securities, by contract or
otherwise.
The term "Confidential Information" with respect to any person means any
secret or confidential information or know-how and shall include, but shall
not be limited to, the plans, customers, costs, prices, uses, and
applications of products and services (including all licenses and airwave
frequencies), results of investigations, studies or experiments owned or used
by such person, and all apparatus, products, processes, compositions,
samples, formulas, computer programs, computer hardware designs, computer
firmware designs, and servicing, marketing or manufacturing methods and
techniques at any time used, developed, investigated, made or sold by such
person, all financial matters and information relating to merger and
acquisitions, in all such cases before or during the term of this Agreement,
that are not readily available to the public or that are maintained as
confidential by such person. The Executive shall maintain in confidence any
Confidential Information of third parties received as a result of his
Consulting with the Company in accordance with the Company's obligations to
such third parties and the policies established by the Company.
3. NO COMPETITION. For the term of the Consulting Agreement and for a
period of 2 years following the date of the expiration of the term of the
Consulting Agreement, the Executive shall not directly or indirectly engage
in Latin America in the specialized mobile radio trunking business (the "SMR
Business"). For purposes of this Section 2, the Executive shall be deemed to
engage in a business if he, directly or indirectly, engages or invests in,
owns, manages, operates, controls or participates in the ownership,
management, operation or control of, is employed by, associated or in any
manner connected with, or renders services or advice to, any business engaged
in the SMR Business; PROVIDED, HOWEVER, that the Executive may invest in the
securities of any enterprise (but without otherwise participating in the
activities of such enterprise) if (x) such securities are listed on any
national or regional securities exchange or have been registered under
Section 12(g) of the Securities Exchange Act of 1934 and (y) the Executive
does not beneficially own (as
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defined Rule 13d-3 promulgated under the Securities Exchange Act of 1934) in
excess of 3% of the outstanding equity of such enterprise. The foregoing
shall not prevent the Executive from being employed by a company or a
subsidiary, division or business unit of a company (each, a "Separate Unit")
where the Separate Unit itself is not engaged in the SMR Business and where
the Executive has no business relationship with any other parts of the
company that are engaged in the SMR Business and where the Executive is not
involved, directly or indirectly, in any part of the company's (or any other
Separate Unit's) SMR Business activities.
4. NO SOLICITATION. During the same period as the restrictions of
Section 2 hereof shall apply, the Executive shall not (a) request, induce or
attempt to influence any distributor or supplier of goods or services to any
member of the Company Group to curtail or cancel any business they may
transact with any member of the Company Group; (b) request, induce or attempt
to influence any customers of any member of the Company Group that have done
business with or potential customers which have been in contact with any
member of the Company Group to curtail or cancel any business they may
transact with any member of the Company Group, (c) request, induce or attempt
to influence any employee of any member of the Company Group to terminate his
or her Consulting with such member of the Company Group or (d) request,
induce or attempt to influence any governmental entity or regulatory
authority to terminate, revoke or materially and adversely alter or impair
any SMR license or channel held, owned, used or reserved for the Company
Group.
5. ENFORCEABILITY. The Executive agrees that if a court of competent
jurisdiction determines that the length of time or any other restriction, or
portion thereof, set forth in this Agreement is overly restrictive and
unenforceable, the court may reduce or modify such restrictions to those
which it deems reasonable and enforceable under the circumstances, and as so
reduced or modified, the parties hereto agree that the restrictions of this
Agreement shall remain in full force and effect. The Executive further
agrees that if a court of competent jurisdiction determines that any
provision of this Agreement is invalid or against public policy, the
remaining provisions of this Agreement and the remainder of this Agreement
shall not be affected thereby, and shall remain in full force and effect.
The Executive acknowledges and the business of the Company Group is
international in scope and that the restrictions imposed by the Agreement are
legitimate, reasonable and necessary to protect the Company's and its
affiliates' investment in their businesses and the goodwill thereof. The
Executive acknowledges that the scope and duration of the restrictions
contained herein are reasonable in light of the time that the Executive has
been engaged in the SMR Business, the Executive's reputation in the markets
for the SMR Businesses and the Executive's relationship with the suppliers,
customers and clients of the RMD and its affiliates. The Executive further
acknowledges that the restrictions contained herein are not burdensome to the
Executive in light of the consideration paid therefor and the other
opportunities that remain open to the Executive. Moreover, the Executive
acknowledges that he has other means available to him for the pursuit of his
livelihood.
6. REMEDIES. The Executive acknowledges that money damages or other
remedy at law would not be sufficient or adequate remedy for any breach or
violation of, or default
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under, this Agreement, but the Executive agrees that in addition to all other
remedies available to the Company, the Company shall be entitled to the
fullest extent permitted by law to an injunction restraining such breach,
violation or default or threatened breach, violation or default and to any
other equitable relief, including, without limitation, specific performance,
without bond or other security interest being required. The Company shall
have the right to offset against amounts to be paid to the Executive to the
Company. The termination of the Consulting Agreement shall not be deemed to
be a waiver by the Company of any breach by the Executive of this Agreement
or any other obligation owed the Company, and notwithstanding such a
termination of the Executive shall be liable for all damages attributable to
such a breach.
7. INTENT OF PARTIES. Each of the parties hereto recognizes and agrees
that this Agreement is necessary and essential to enable the Company to
realize and derive all of the benefits, rights and expectation of the Merger
Agreement; that the area and duration of the covenants herein are in all
things, under the circumstances of the Merger Agreement, reasonable; and that
good and valuable consideration exists for Executive's agreeing to be bound
by such covenants.
8. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and the successors and assigns of the Company. The Company may assign its
rights under this Agreement in connection with any sale, transfer of other
disposition of all or a substantial portion of the stock or assets of the
Company. The Executive may not assign his duties or obligations hereunder,
but this Agreement shall be enforceable against the Executive's heirs and
estate to the extent of any violation hereof by the Executive.
9. EFFECTIVENESS. This Agreement shall become effective upon
consummation of the merger contemplated by the Merger Agreement and prior
thereto shall be of no force and effect. If the Merger Agreement shall be
terminated in accordance with its terms, this Agreement shall automatically
be deemed to have been terminated and shall thereafter be of no force or
effect.
10. GOVERNING LAW. This Agreement and the rights and obligations of
the parties hereto shall be governed, construed and enforced in accordance
with the laws of the State of Delaware.
11. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
shall constitute one and the same instrument, but only one of which need be
produced.
12. HEADINGS. The headings of this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning of this
Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
INTERNATIONAL WIRELESS
COMMUNICATIONS HOLDINGS, INC.
By:
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Name:
Title:
XXXXXX XXXXXX
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