Exhibit 10.10
NONCOMPETITION AND CONFIDENTIALITY
AGREEMENT
This Agreement (this
“Agreement”) made as of January 1, 2004, by and
between American Tower Corporation, a Delaware corporation
(“ATC”), and William H. Hess (“Optionee”),
an individual residing at
.
WHEREAS, ATC, American Tower
International, Inc., a Delaware corporation (“ATC
International”), and ATC South America Holding Corp, a
Delaware corporation (“Holding”), are parties to a
Stockholder/Optionee Agreement, dated as of January 1, 2004,
and of which Optionee executed a counterpart on January 1,
2004 (collectively, the “Stockholder Agreement”),
pursuant to which Holding will issue to Optionee options to
purchase shares of its Common Stock, par value $.01 per share;
and
WHEREAS, Optionee is an employee of
ATC or one of its subsidiaries and will perform services for
Holding;
NOW, THEREFORE, in consideration of
the consummation of the transactions contemplated by the
Stockholder Agreement, 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 Agreement 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 Optionee
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 Optionee 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 Optionee
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
Optionee 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 Optionee of any duties inconsistent in any material respect with
his current position, authority, duties or responsibilities or any
other action by ATC or Holding 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 Optionee’s compensation or other benefits
(taking into account the compensation and other benefits from ATC
or Holding and their Affiliates from whom he may, from time to
time, receive compensation), the result of which is to place
Optionee in a materially less favorable position as to such
compensation and benefits compared to other employees of ATC or
Holding and their Affiliates of similar stature and position;
or
|
|
|
(c)
|
any other
failure by ATC or Holding or any of their Affiliates to comply in
any material respect with any material provision of the Stockholder
Agreement;
|
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 Optionee 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
Optionee, 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
Optionee 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
Optionee solely or jointly with others during the period of his
employment with ATC or any of its Affiliates 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
Affiliates during the term of this Agreement or which are within
the scope of or usable in connection with ATC’s or any of its
Affiliates’ business as it may, from time to time, hereafter
be conducted or proposed to be conducted.
Optionee Forfeiture
Event shall mean any of
the following acts (other than as a result of the death or
Disability of Optionee) committed by Optionee:
(a) any willful or gross failure or
refusal to perform, or any willful or gross misconduct in the
performance of, any significant portion of his obligations, duties
and responsibilities as an
2
employee of Holding, the effect of
which has been or reasonably could be expected to materially and
adversely affect the business of ATC or any of its Affiliates, as
determined in good faith by the ATC Board of Directors, and that
(i) is incapable of cure, or (ii) has not been cured or
remedied as promptly as is reasonably possible (and in any event
within thirty (30) days) after written notice from the Holding
Board to Optionee specifying in reasonable detail the nature of
such failure, refusal or misconduct, or
(b) material breach of the
provisions of Section 2, 3 or 4 of this Agreement which
(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 from the Holding Board to Optionee specifying
in reasonable detail the nature of such breach, or
(c) Optionee is convicted of, pleads
guilty or nolo contendero to any act of fraud, embezzlement
or misappropriation or other crime involving moral turpitude in
connection with his employment by Holding or any of its Affiliates
intended by Optionee to result in substantial personal enrichment
and which adversely affects the business of ATC or any of its
Affiliates, all as determined in good faith by the ATC Board of
Directors.
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 exercise of the put (or call) provided for in Section 6
of the Stockholder Agreement, (b) two years after the sooner
to occur of (i) an Optionee Forfeiture Event, or (ii) the
resignation by Optionee from all positions with ATC and each of its
subsidiaries other than for Good Reason, or (c) one year after
the resignation by Optionee 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 .
Optionee 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. Optionee 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 Optionee has heretofore disclosed to
ATC, and assigned to it, all Intellectual Property now known to him
over which he has any control. Optionee 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 d
