Exhibit 10.29
-------------
NONCOMPETITION AND CONFIDENTIALITY AGREEMENT
This Agreement (this "Agreement") made as of October 11, 2001, by and
between American Tower Corporation, a Delaware corporation ("ATC"), and J.
Xxxxxxx Xxxxxx, Xx. ("Xxxxxx"), an individual residing at 0000 Xxxxx Xxxx Xxxxx,
Xxxxxxx, Xxxxxxx 00000.
WHEREAS, ATC, American Tower International, Inc., a Delaware corporation
("ATC International"), Gearon, and ATC Mexico Holding Corp, a Delaware
corporation ("ATC Mexican Sub"), are parties to a Stockholder Agreement, dated
as of the date hereof (the "Mexican Stockholder Agreement"), pursuant to which
ATC Mexican Sub will issue and sell to Gearon shares of its Common Stock, par
value $.01 per share; and
WHEREAS, ATC, ATC International, Gearon, and ATC South America Holding
Corp, a Delaware corporation ("ATC South American Sub"), may become parties to a
Stockholder Agreement (the "South American Stockholder Agreement" and,
collectively with the Mexican Stockholder Agreement, the "Stockholder
Agreements"), pursuant to which ATC South American Sub will issue and sell to
Gearon South America shares of its Common Stock, par value $.01 per share; and
WHEREAS, Gearon is one of the executive officers of ATC and will become the
president of ATC Mexican Sub and ATC South American Sub;
NOW, THEREFORE, in consideration of the consummation of the transactions
contemplated by the Stockholder Agreements and the election of Gearon as
president of ATC Mexican Sub and ATC South American Sub, the sum of One Dollar
($1.00), the material covenants and agreements contained herein, and other good
and valuable consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, do
covenant and agree as follows:
Section 1. Definitions. Terms used in this Agreement which are not defined
herein but which are defined in the Stockholder Agreements shall have the
respective meanings so defined.
Confidential Information shall mean any and all information (excluding
information in the public domain other than as a direct or indirect result of
any breach by Gearon or either Gearon Entity of the provisions of this
Agreement) related to the business, operations, management, assets, property,
plans or prospects, condition, financial or other, or results of operation of
ATC, any Affiliate of ATC or any of their respective successors or assigns,
including without limitation:
(a) the whole or any portion or phase of any business plans, financial
information, purchasing data, supplier or customer data, accounting
data, or computer programs (including source and object codes), tapes,
discs, data, software or other information;
(b) the whole or any portion or phase of any marketing or sales
information or technique, sales records, customer lists, supplier
lists, prices, sales projections or other listings of names,
addresses, or telephone numbers, or other sales information;
(c) the whole or any portion or phase of any employee payroll, fringe
benefit, salary, bonus, commission or other form of compensation
information and all employee personnel information, including
information relating to performance evaluations, discipline, employee
conduct, complaints and other matters relating to employment of any
Person; and
(d) Intellectual Property;
whether or not any of the foregoing has been made, developed and/or conceived by
Gearon or by others in the employ of any such Person. Notwithstanding the
foregoing, the term "Confidential Information" shall not include and information
reasonably necessary for the conducting of any activity expressly excluded from
the definition of "Proscribed Activity" hereunder.
Covered Territory shall mean (a) while Gearon is employed by ATC or any of
its Affiliates, North, South and Latin America, Europe and all other areas in
which ATC or any of its Affiliates has invested or proposes to invest; and (b)
thereafter, North America and any other markets where Gearon has been or is
involved or is negotiating a proposed investment, acquisition or other
transaction on behalf of ATC or any of its Affiliates.
Good Reason shall mean:
(a) the assignment to Gearon of any duties inconsistent in any material
respect with his position, authority, duties or responsibilities as
contemplated in Section 4(f) of the Stockholder Agreement or any other
action by ATC, ATC Mexican Sub or ATC South American Sub or any of
their Affiliates that results in a diminution, in any material
respect, in such position, authority, duties or responsibilities; or
(b) a material reduction in Gearon's compensation or other benefits
(taking into account the compensation and other benefits from ATC, ATC
Mexican Sub or ATC South American Sub and their Affiliates from whom
he may, from time to time, receive compensation), the result of which
is to place Gearon in a materially less favorable position as to such
compensation and benefits compared to other employees of ATC, ATC
Mexican Sub or ATC South American Sub and their Affiliates of similar
stature and position; or
(c) any other failure by ATC, ATC Mexican Sub or ATC South American Sub or
any of their Affiliates to comply in any material respect with any
material provision of either Stockholder Agreement; or
(d) the failure of Gearon to be nominated as a director of ATC;
that (i) is incapable of cure, or (ii) has not been cured or remedied promptly
(and in any event within thirty (30) days) after written notice to the board of
directors of ATC from Gearon specifying in reasonable detail the nature of such
assignment, action, reduction or failure.
Immediate Family shall mean spouses, children and parents, whether related
by blood, adoption or marriage.
Intellectual Property shall mean, with respect to Gearon, any and all
research, information, inventions, designs, procedures, developments,
discoveries, improvements, patents and applications therefor, trademarks and
applications therefor, service marks, trade names, copyrights and applications
therefor, trade secrets, drawing, plans, systems, methods, specifications,
computer software programs, tapes, discs and related data processing software
(including object and source codes) owned by Gearon or in which he has an
interest and all other manufacturing, engineering, technical, research and
development data and know-how made, conceived, developed and/or acquired by
Gearon solely or jointly with others during the period of his employment with
ATC or any of its Subsidiaries or within one year thereafter, which relate to
the manufacture, production or processing of any products developed or sold by
ATC or any of its Subsidiaries during the term of this Agreement or which are
within the scope of or usable in
-2-
connection with ATC's or any of its Subsidiaries' business as it may, from time
to time, hereafter be conducted or proposed to be conducted.
Proscribed Activity shall mean any and all activities related to (a) the
construction, ownership, operation, leasing or management of telecommunications
or broadcast towers, (b) providing network development services or components
for wireless service providers or broadcasters, (c) providing high speed
Internet access and related services via satellite to foreign-based Internet
service providers, telephone or other telecommunciations companies, and other
businesses, or (d) providing other satellite and Internet protocol network
transmission services.
Restricted Period shall mean a period commencing with the date hereof and
terminating the latest of (a) one year after the later of (i) exercise of the
put (or call) provided for in Section 6 of the Mexican Stockholder Agreement or
(ii) exercise of the put (or call) provided for in Section 6 of the South
American Stockholder Agreement, (b) two years after the sooner to occur of (i) a
Forfeiture Event, or (ii) the resignation by Gearon from all positions with ATC
and each of its subsidiaries other than for Good Reason, or (c) one year after
the resignation by Gearon from all positions with ATC and each of its
subsidiaries for the reason set forth in paragraph (d) of the definition of Good
Reason.
Section 2. Confidentiality. Gearon shall not, either during the Restricted
Period or thereafter, reveal or disclose to any person outside ATC and its
subsidiaries or use for his own benefit, without ATC's specific prior written
authorization, whether by private communication or by public address or
publication or otherwise, any Confidential Information. All originals and copies
of any Confidential Information, relating to the business of ATC or any of its
subsidiaries, however and whenever produced, shall be the sole property of ATC
and its subsidiaries, not to be removed from the premises or custody of ATC or
its subsidiaries without in each instance first obtaining prior written consent
or authorization of ATC.
Section 3. Disclosure and Assignment of Intellectual Property. Gearon shall
promptly disclose to ATC and any successor or assign, and grant to ATC, and its
successors and assigns (without any separate remuneration or compensation other
than that received by him from time to time in the course of his employment) his
entire right, title and interest throughout the world in and to all Intellectual
Property. It is understood and agreed that Gearon has heretofore disclosed to
ATC, and assigned to it, all Intellectual Property now known to him over which
he has any control. Gearon agrees to execute all appropriate patent applications
securing all United States and foreign patents on all Intellectual Property, and
to do, execute and deliver any and all acts and instruments that may be
necessary or proper to vest all Intellectual Property in ATC or its nominee or
designee and to enable ATC, or its nominee or designee, to obtain all such
patents; and Gearon agrees to render to ATC, or its nominee or designee, all
such reasonable assistance as it may require in the prosecution of all such
patent applications and applications for the reissue of such patents, and in the
prosecution or defense of all interferences which may be declared involving any
of said patent applications or patents, but the expense of all such assignments
and patent applications, or all other proceedings referred to herein above,
shall be borne by ATC. Gearon shall be entitled to fair and reasonable
compensation for any such assistance requested by ATC or its nominee or designee
and furnished by him after the termination of his employment.
Section 4. Restriction. ATC through its subsidiaries intends to continue
and expand the business heretofore conducted by it and them and it and in
connection therewith ATC and its subsidiaries have invested and may in the
future be required to invest substantial sums of money, directly or indirectly,
and as Gearon recognizes that ATC would be substantially injured by Gearon
disclosing to others, or by Gearon using for his own benefit, any Intellectual
Property or any other Confidential Information he has obtained or shall obtain
from ATC or any of its subsidiaries, or which he may now
-3-
possess and which he has made available to ATC or any of its subsidiaries,
Gearon agrees that during the Restricted Period:
(a) Neither he nor any member of his Immediate Family will be interested,
directly or indirectly, as an investor in any other Entity (including
without limitation either Gearon Entity), business or enterprise
within the Covered Territory, which is engaged in any Proscribed
Activity (except as an investor in securities (i) issued by ATC or any
of its subsidiaries or (ii) listed on a national securities exchange
or actively traded over the counter so long as such investments are in
amounts not significant as compared to his total investments and do
not exceed one percent (1%) of the outstanding securities of the
issuer of the same class or issue); and
(b) Other than in connection with his serving as an officer and/or
director of ATC and its subsidiaries, he will not, directly or
indirectly, for his own account or as employee, officer, director,
partner, trustee, principal, member, joint venturer, agent, adviser,
consultant or otherwise, engage within the Covered Territory, in any
phase of any Proscribed Activity.
Gearon further agrees that during the Restricted Period, he will not,
directly or indirectly, solicit business for a Proscribed Activity from any
Person, business or enterprise which is, or proposes to be, a customer of ATC or
any of its subsidiaries or any of their respective successors or assigns, or
from any Person, business or enterprise with which ATC or any of its
subsidiaries or any of their respective successors or assigns is negotiating or
holding discussion or to which it has made a proposal at the time of such
termination, induce any such Person, business or enterprise not to undertake, or
to curtail or cancel business with ATC or any of its subsidiaries or any of
their respective successors or assigns, induce or attempt to induce any employee
of ATC or any of its subsidiaries or any of their respective successors or
assigns to terminate his employment therewith, or intentionally divulge or
utilize for the direct or indirect benefit (financial or other) of himself or
any other Person, business or enterprise, any Intellectual Property or any
Confidential Information he has obtained as an officer, director and/or
stockholder of ATC or any of its subsidiaries.
This Agreement shall be deemed to consist of a series of separate
covenants, one for each line of business carried on by ATC and its subsidiaries
and each region included within the geographic areas referred to in this
Section. Gearon and ATC are of the belief that the Restricted Period, the
Proscribed Activity and the Covered Territory herein specified are reasonable,
in light of the circumstances as they exist on the date upon which this
Agreement has been executed, including without limitation the nature of the
business in which ATC and its subsidiaries are engaged and proposes to engage,
the state of their product development and Gearon's knowledge of such business
and his prior affiliations with and interest in ATC. However, if such period,
activity or area should be adjudged unreasonable in any Legal Action, whether at
law or in equity, then the Restricted Period shall be reduced by such period of
time, the Proscribed Activity shall be reduced by such activities, or the
Covered Territory shall be reduced by such area, or any combination thereof, as
are deemed unreasonable, so that this covenant may be enforced in such area,
with respect to such activities and during such period of time as is adjudged to
be reasonable.
Section 5. Security for Gearon Obligations. Gearon's obligations under this
Agreement shall be secured by twenty percent (20%) of the gross sale proceeds
(before deduction of commissions, discounts, brokerage fees or other fees and
expenses) of (a) all of his membership interests in each Gearon Entity, (b) all
shares of capital stock and other securities issued by ATC Mexican Sub or ATC
South American Sub to Gearon, and (c) all shares of capital stock and other
securities issued by ATC Mexican Sub or ATC South American Sub received by
Gearon pursuant to any distribution to him by either Gearon Entity or otherwise
acquired by him. Gearon and ATC agree that all such proceeds shall be held
-4-
by an escrow agent or agents reasonably acceptable to Gearon and ATC and subject
to the terms and conditions of an escrow agreement to be executed by ATC and
Gearon and reasonably satisfactory to ATC and Gearon.
Section 6. Miscellaneous Provisions.
(a) Assignment; Successors and Assigns. In the event that ATC shall be
merged with, or consolidated into, any other Entity, or in the event that it
shall sell and transfer substantially all of its assets to another Entity, the
terms of this Agreement shall inure to the benefit of, and be assumed by, the
Entity resulting from such merger or consolidation, or to which ATC's assets
shall be sold and transferred. This Agreement shall not be assignable by Gearon,
but it shall be binding upon his heirs, executors, administrators and legal
representatives to the extent they constitute members of his Immediate Family.
Nothing in this Agreement expressed or implied is intended to and shall not be
construed to confer upon or create in any person (other than the parties hereto
and their permitted successors and assigns) any rights or remedies under or by
reason of this Agreement.
(b) Specific Performance; Other Rights and Remedies. Gearon recognizes and
agrees that ATC's remedy at law for any breach of the provisions of this
Agreement, including without limitation Sections 2, 3, or 4 would be inadequate,
and he agrees that for breach of such provisions, ATC shall, in addition to such
other remedies as may be available to it at law or in equity or as provided in
this Agreement, be entitled to injunctive relief and to enforce its rights by an
action for specific performance to the extent permitted by applicable law.
Without limiting the generality of the foregoing, in the event of a breach or
threatened breach by Gearon of the provisions of this Agreement, ATC shall be
entitled to an injunction restraining Gearon from soliciting employees,
customers or suppliers, or from disclosing, in whole or in part, any
Confidential Information, or from rendering any services to any Person to whom
such information has been disclosed, or is threatened to be disclosed, from
engaging, participating or otherwise being connected with any business described
in Section 3 or from otherwise violating the terms of this Agreement. Nothing
herein contained shall be construed as prohibiting each party from pursuing any
other remedies available to it pursuant to the provisions of, and subject to the
limitations contained in, this Agreement for such breach or threatened breach;
provided, however, that none of the parties shall pursue, and each party hereby
waives, any punitive, indirect, special, incidental, exemplary, consequential or
similar damages arising out of this Agreement (including without limitation
damages for diminution in value and loss of anticipated profits) and the
multiplied portion of damages.
(c) Entire Agreement. This Agreement constitutes the entire agreement
between ATC and Gearon with respect to the subject matter hereof, and supersedes
all prior agreements, arrangements, covenants, promises, conditions,
understandings, inducements, representations and negotiations, expressed or
implied, oral or written, among them as to such subject matter.
(d) Waivers; Amendments. Any provision of this Agreement to the contrary
notwithstanding, changes in or additions to this Agreement may be made, or
compliance with any term, covenant, agreement, condition or provision set forth
herein may be omitted or waived (either generally or in a particular instance
and either retroactively or prospectively) with, but only with, the consent in
writing of the parties hereto. Any consent may be given subject to satisfaction
of conditions stated therein. The failure to insist upon the strict provisions
of any covenant, term, condition or other provision of this Agreement or to
exercise any right or remedy thereunder shall not constitute a waiver of any
such covenant, term, condition or other provision thereof or default in
connection therewith. The waiver of any covenant, term, condition or other
provision thereof or default thereunder shall not affect or alter this Agreement
in any other respect, and each and every covenant, term, condition or other
provision of this Agreement shall, in such event, continue in full force and
effect, except as so waived, and shall be operative with respect to any other
then existing or subsequent default in connection therewith.
-5-
(e) Notices. All notices and other communications which by any provision
of this Agreement are required or permitted to be given shall be given in
writing and shall be effective (i) five (5) days after being mailed by
first-class, express mail, postage prepaid, (ii) the next day when sent by
overnight by recognized mail courier service, (iii) upon confirmation when sent
by telex, telegram, telecopy or other similar form of rapid transmission,
confirmed by mailing (by first class or express mail, postage prepaid, or
recognized overnight mail courier service) written confirmation at substantially
the same time as such rapid transmission, or (iv) upon delivery personally
delivered to an officer of the receiving party. All such communications shall be
mailed, set or delivered as set forth below or at such other addresses as the
party entitled thereto shall have designated by notice as herein provided.
(i) if to Holding or ATC, at 000 Xxxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 Attention: Chief Executive Officer and Chief Financial
Officer, Telecopier No.: (000) 000-0000 with a copy (which shall not
constitute notice to ATC or Holding) to Xxxxxxxx & Worcester LLP, Xxx Xxxx
Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxx,
Esq., Telecopier No.: (000) 000-0000) and
(ii) if to Gearon, at 0000 Xxxx Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000 with a copy (which shall not constitute notice to Gearon) to
King & Xxxxxxxx, 0000 Avenue of the Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxx X. Xxxxxx, Esq., Telecopier No.: (000) 000-0000).
(f) Severability. If any provision of this Agreement shall be held or
deemed to be, or shall in fact be, invalid, inoperative, illegal or
unenforceable as applied to any particular case in any jurisdiction or
jurisdictions, or in all jurisdictions or in all cases, because of the
conflicting of any provision with any constitution or statute or rule of public
policy or for any other reason, such circumstance shall not have the effect of
rendering the provision or provisions in question invalid, inoperative, illegal
or unenforceable in any other jurisdiction or in any other case or circumstance
or of rendering any other provision or provisions herein contained invalid,
inoperative, illegal or unenforceable to the extent that such other provisions
are not themselves actually in conflict with such constitution, statute or rule
of public policy, but this Agreement shall be reformed and construed in any such
jurisdiction or case as if such invalid, inoperative, illegal or unenforceable
provision had never been contained herein and such provision reformed so that it
would be valid, operative and enforceable to the maximum extent permitted in
such jurisdiction or in such case, except when such reformation and construction
could operate as an undue hardship on either party, or constitute a substantial
deviation from the general intent and purpose of such party as reflected in this
Agreement. The parties shall endeavor in good faith negotiations to replace the
invalid, inoperative, illegal or unenforceable provisions with valid, operative,
legal and enforceable provisions the economic effect of which comes as close as
possible to that of the invalid, inoperative, illegal or unenforceable
provisions.
(g) Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument, binding upon all the parties hereto. In
pleading or proving any provision of this Agreement, it shall not be necessary
to produce more than one of such counterparts.
(h) Section Headings. The headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
(i) Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the applicable laws of the
United States of America and the domestic substantive laws of the State of
Georgia without giving effect to any choice or conflict of laws provision or
rule that would cause the application of domestic substantive laws of any other
jurisdiction. Anything
-6-
in this Agreement to the contrary notwithstanding, in the event of any dispute
between the parties which results in a Legal Action, the prevailing party shall
be entitled to receive from the non-prevailing party reimbursement for
reasonable legal fees and expenses incurred by such prevailing party in such
Legal Action.
(j) Further Acts. Each party agrees that at any time, and from time to
time, before and after the consummation of the transactions contemplated by this
Agreement, it will do all such things and execute and deliver all such
agreements, assignments, instruments, other documents and assurances, as any
other party or its counsel reasonably deems necessary or desirable in order to
carry out the terms and conditions of this Agreement and the transactions
contemplated hereby or to facilitate the enjoyment of any of the rights created
hereby or to be created hereunder.
(k) Gender. Whenever used herein the singular number shall include the
plural, the plural shall include the singular, and the use of any gender shall
include all genders.
(l) Consultation with Counsel; No Representations. Gearon agrees and
acknowledges that he has had a full and complete opportunity to consult with
counsel of his own choosing concerning the terms, enforceability and
implications of this Agreement, and that ATC has made no representations or
warranties to him concerning the terms, enforceability or implications of this
Agreement other than as are reflected in this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Noncompetition
and Confidentiality Agreement, all pursuant to authority heretofore granted, as
of the date and year first above written.
American Tower Corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------
Name:
Title:
/s/ J. Xxxxxxx Xxxxxx, Xx.
-------------------------------------
J. Xxxxxxx Xxxxxx, Xx.
-7-
