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EXHIBIT 99.2
ASSIGNOR COVENANT NOT TO COMPETE
This COVENANT NOT TO COMPETE (this "Agreement") is made as of
August __, 2001, by and among XXXXX XXXXXXX WIRELESS Corporation, a Florida
corporation ("BAW"), XXXXX XXXXXXX WIRELESS, INC., a Florida corporation
(together with BAW, jointly referred to as, the "Covenantors" or "Assignors"),
and TRITON PCS PROPERTY COMPANY LLC, a Delaware limited liability company
("Assignee").
W I T N E S S E T H:
WHEREAS, pursuant to the Assignment and Assumption of Leases,
dated as of the date hereof (the "Agreement"), by and among Assignors and
Assignee, the Assignors are assigning the Leases to the Assignee and Assignee is
assuming such Leases from the Assignors on the terms and subject to the
conditions and other provisions set forth in the Agreement. Capitalized terms
used and not otherwise defined herein shall have the respective meanings
ascribed to them in the Agreement.
WHEREAS, as a condition of closing pursuant to Section 7.10 of
the Agreement, Covenantors have agreed to execute and deliver this Agreement,
and Covenantors realize and acknowledge a benefit to them as a result of the
consummation of the transactions contemplated by the Agreement; and
WHEREAS, Assignee wishes to protect the confidential
information, customer and employee relations, intellectual property, and other
legitimate business interests of Assignee and its parent companies, subsidiaries
and affiliates.
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual covenants and agreements hereinafter set forth and as set forth in
the Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and the parties hereto covenant
and agree as follows:
1. Covenant Not to Compete
(a) Covenantors agree that from the date hereof
until October 8, 2002 (the "Restricted Period"), Covenantors shall not, without
the express prior written consent of Assignee, directly or indirectly or
otherwise through any affiliates or other entity, either become or act as a
proprietor, partner, officer, director, employee, stockholder (other than as a
holder of not more than five percent (5%) of any class of securities of any
corporation or partnership which securities are registered under Section 12 of
the Securities Exchange Act of 1934, as amended), joint venturer, or investor
in, or agent for, or consultant to (whether for compensation or without
compensation), or otherwise engage in any business that constitutes a Prohibited
Activity. "Prohibited Activity" shall mean the distribution of, promotion of,
sale of services or equipment related to, solicitation of customers for, or
otherwise engaging in the wireless telephony and data services anywhere within
the geographic area of any basic trading area for which Assignee or any of
Assignee's Affiliates hold a license or permit for wireless telephony or data
services or personal communications services issued by the Federal
Communications Commission (the "Footprint"), which may be withheld in Assignee's
sole discretion; provided
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however, that (a) Assignors may open a retail store in any shopping mall where
Assignee operates a Retail Store if either of the Assignors offers SunCom
Wireless products at such location on an exclusive basis and otherwise in
accordance with the agency agreement, dated August 5, 1999 (the "Dealer
Agreement"), between Assignee and BAW, (b) Assignors may open a retail store
within the Footprint, other than in any shopping mall where Assignee operates a
Retail Store, if either of the Assignors offers SunCom Wireless products and
services at such location on a non-exclusive basis and otherwise in accordance
with the Dealer Agreement and (c) paging services shall not be considered a
Prohibited Activity.
(b) Covenantors further agrees that, during the
Restricted Period, Covenantors will not, nor will it permit any of its
affiliates to, directly or indirectly, solicit or cause or assist in the
solicitation of the employment, or employ any employee of any Retail Store who
becomes an employee of Assignee or any affiliate of Assignee, any person who
provides services to Assignee pursuant to the Loaned Employee Agreement or any
former employee who has terminated employment with Covenantors, the Assignee or
any Retail Store within a period of less than six months from the date hereof.
Covenantors also agree not to induce any employee of any Retail Store or of
Assignee or any of its affiliates to leave the employment of Assignee or any of
its affiliates.
(c) Covenantors further agree that, during the
Restricted Period, Covenantors will not, directly or indirectly, induce or
attempt to induce any person, business or entity which is a party to any written
or oral contract or agreement with, or is a customer of, Assignee or any Retail
Store or any of Assignee's affiliates, to terminate such written or oral
agreement or understanding customer relationship with any Assignee or any Retail
Store or any of Assignee's affiliates.
(d) Covenantors acknowledge and agree that the
restrictions contained in this Paragraph 1 are necessary to protect Assignee's
employee and customer relationships, to prevent the use and disclosure of
confidential information and to protect Assignee's legitimate business
interests.
(e) Covenantors agree that all of the
restrictions in this Paragraph 1 are reasonable in all respects, including
duration, territory and scope activity.
(f) The parties hereto intend that the covenants
contained in this Paragraph 1 shall be construed as a series of separate
covenants, one for each municipality or county in each of the states in which
the Retail Stores are located, as the case may be. Except for geographic
coverage, each such separate covenant shall be deemed identical in terms to the
covenant contained in this paragraph. If, in any judicial proceedings, a court
shall refuse to enforce any of the separate covenants deemed included in this
Paragraph 1, then such unenforceable covenant shall be deemed eliminated from
these provisions for the purpose of those proceedings to the extent necessary to
permit the remaining separate covenants to be enforced.
2. Consideration. As specified in the Agreement, in
consideration of the covenant not to compete made herein, Assignee shall make
the payment of the Purchase Price specified in Section 2.1 of the Agreement.
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3. Proprietary Information. Covenantors acknowledge and
agree that it will not at any time during the Restricted Period or at any time
thereafter, except as may be required by law, use or disclose to any person,
firm or other legal entity, any confidential records, secrets or information
related to any Lease or Retail Store, including, without limitation, customer
and supplier lists, the names of the Assignee's or Retail Store's employees and
other agents, forms and arrangements with customers and suppliers; advertising
concepts; information regarding the Assignee's or Retail Store's past, present,
or future products, software, research, development, inventions, computer
processes, techniques, designs, or other technical information and data;
compensation paid to Assignee employees and independent contractors or other
employment or personnel data; marketing surveys and analyses; budgets, business
plans, and other financial information; and other confidential matters;
provided, however, that Covenantors shall be allowed to disclose such
information to its attorneys or accountants for the preparation of financial
statements and tax returns and as may be required in response to any subpoena,
summons or judicial order; provided, that Covenantors shall provide Assignee
with advance notice of such subpoena, summons or order pursuant to Paragraph 15
of this Agreement to enable Assignee to obtain a protective order.
4. Injunctive Relief. Covenantors acknowledge that the
breach, or threatened breach, by any Covenantor of the provisions of this
Agreement shall cause irreparable harm to Assignee, which harm cannot be fully
redressed by the payment of damages to Assignee. Covenantors acknowledge that
the duration and terms of this Agreement are reasonable under the circumstances.
Accordingly, Assignee shall be entitled, in addition to any other right or
remedy it may have at law or in equity, to an injunction enjoining or
restraining Covenantors from any breach or threatened breach of this Agreement.
Covenantors hereby waive the defense in any equitable proceeding that there is
an adequate remedy at law for any such breach. The Restricted Period shall be
tolled on a day-for-day basis for each day during which Covenantors violate the
provisions of Paragraph 1 in any respect so that Covenantors are restricted from
engaging in the activities prohibited by Paragraph 1 for the full number of days
comprising the Restricted Period.
5. Representations and Warranties of Covenantor.
Covenantors represent and warrant to Assignee that (i) each Covenantor has the
full power and authority or capacity, as applicable, to execute and deliver this
Agreement and to perform its obligations hereunder; and (ii) this Agreement has
been duly and validly executed and delivered by each Covenantor and constitutes
the legal, valid and binding agreement of each Covenantor enforceable in
accordance with its terms.
6. Benefit and Assignment. No person or entity other
than the parties hereto is or shall be entitled to bring any action to enforce
any provision of this Agreement against any of the parties hereto, and the
covenants and agreements set forth in this Agreement shall be solely for the
benefit of, and shall be enforceable only by, the parties hereto. None of the
rights hereunder shall be assignable by any party without the prior written
consent of the other parties, provided that Assignee may assign all or a portion
of its rights hereunder to any affiliate of Assignee or to any purchaser or
sub-tenant of one or more of the Leases without the consent of Covenantor.
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7. Entire Agreement. This Agreement, together with the
Agreement, embodies the entire agreement and understanding of the parties hereto
in respect of the transactions contemplated by this Agreement.
8. Amendment and Modification. This Agreement may be
amended, modified or supplemented only by written agreement of Covenantors and
Assignee.
9. Severability. If any provision of this Agreement or
application thereof to any person or circumstance shall be invalid or
unenforceable, the remainder of this Agreement and the application of such
provision to other persons or circumstances shall not be affected thereby and
shall be enforced to the greatest extent permitted by law, except to the extent
inconsistent with Paragraph 1(f) hereof.
10. Governing Law. This Agreement shall be governed by
the laws of the Commonwealth of Virginia (but not the laws pertaining to choice
of law) as to all matters including but not limited to matters of validity,
construction, effect, performance and remedies.
11. Waiver of Compliance; Consents. Except as otherwise
provided in this Agreement, any failure of any of the parties to comply with any
obligation, representation, warranty, covenant, agreement or condition herein
may be waived by the party entitled to the benefits thereof only by a written
instrument signed by the party granting such waiver, but such waiver or failure
to insist upon strict compliance with such obligation, representation, warranty,
covenant, agreement or condition shall not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure. Whenever this Agreement
requires or permits consent by or on behalf of any party hereto, such consent
shall be given in writing in a manner consistent with the requirements for a
waiver of compliance as set forth in this Paragraph 11.
12. Attorneys' Fees. If any action, suit or proceeding is
brought by any of the parties hereto arising out of or relating to this
Agreement or its breach, the successful or prevailing party in any such action,
suit or proceeding, shall be entitled to the full amount of its reasonable
expenses, including all court costs and attorneys fees paid or incurred in
connection therewith, in addition to such other relief as such party shall be
entitled to.
13. Headings. The headings of the paragraphs contained in
this Agreement are inserted for convenience only and do not form a part of or
affect the meaning, construction or scope thereof.
14. Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument.
15. Notice. All notices and other communications
hereunder shall be in writing and shall be deemed given when delivered
personally or by nationally recognized courier service (receipt requested) or by
facsimile transmission, telexed or mailed by registered or certified mail
(return receipt requested), postage prepaid, to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice; provided that notices of a change of address shall be effective only
upon receipt thereof):
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if to Assignors:
Xxxxx Xxxxxxx Wireless Corporation
0000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxx, XX 00000
Attention: Xxxxxx X. XxXxxxxx
Telecopy: (000) 000-0000
Copies (which shall not constitute notice) to:
Xxxxx, Xxxxxx & Associates, P.L.
000 Xxxxx Xxxx Xxxx Xxxxxx
Xxxxx, XX 00000
Attention: Xxxxxxxxxxx Xxxxxx, Esq.
Telecopy: (000) 000-0000
if to Assignee:
Triton PCS, Inc.
0000 Xxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx, VP
Telecopy: (000) 000-0000
with a copy (which shall not constitute notice) to:
Dow, Xxxxxx & Xxxxxxxxx, PLLC
0000 Xxx Xxxxxxxxx Xxx, XX
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Telecopy: (000) 000-0000
[END OF PAGE. SIGNATURES FOLLOW.]
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IN WITNESS WHEREOF, each of the parties hereto has executed
this Covenant Not to Compete as of the date first above written.
COVENANTORS:
XXXXX XXXXXXX WIRELESS CORPORATION
By: /s/ Xxxxxx X. XxXxxxxx
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Name: Xxxxxx X. XxXxxxxx
Title: CEO
XXXXX XXXXXXX WIRELESS, INC.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: President
ASSIGNEE:
TRITON PCS PROPERTY COMPANY LLC
By: Triton Management Company, Inc.,
its manager
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Executive Vice President and
CFO
