EXHIBIT 10.28
EMPLOYMENT AGREEMENT
AGREEMENT made as of January 22, 1998, by and between American Tower
Systems (Delaware), Inc., a Delaware corporation formerly known as American
Tower Systems, Inc. ("ATSI"), and J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇., an individual resident
of the State of Georgia ("Gearon");
WHEREAS, ATSI and Gearon & Co., Inc., a Georgia corporation ("Gearco"),
among others, are parties to an agreement and plan of merger, dated as of
November 21, 1997 (the "Merger Agreement"), pursuant to which Gearco will merge
with and into ATSI; and
WHEREAS, Gearon is the principal stockholder and the chief executive
officer of Gearco and it is a condition of ATSI's obligation to consummate the
transactions contemplated by the Merger Agreement that Gearon shall enter into
an employment agreement substantially in the form hereof;
NOW, THEREFORE, in consideration of the sum of One Dollar ($1.00), as a
condition to the obligation of ATSI to consummate the transactions contemplated
by the Merger Agreement, 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. Term of Employment. ATSI agrees to employ Gearon from the date
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hereof until December 31, 2000 as an Executive Vice President of ATSI and the
Chief Executive Officer of the division of ATSI which will continue the business
heretofore conducted by Gearco (the "Gearon Division"). At the end of the
initial term of employment, the period of employment will be automatically
renewed for successive one (1) year terms, unless written notice to the contrary
is given by ATSI to Gearon, or by Gearon to ATSI, at least three (3) months
before the end of the initial term or any renewal thereof. Gearon represents and
warrants to ATSI that he is not now under any obligations to any Person and has
no investment or other interest which is inconsistent or in conflict with any
provision of this Agreement, or which would prevent, limit or impair, in any
way, the performance by him of any of the covenants or duties of his employment
as herein set forth.
Section 2. Compensation. ATSI agrees to pay Gearon for his services
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during the term of his employment hereunder at an annual rate of Two Hundred
Thousand Dollars ($200,000) (the "Base Salary"), payable in accordance with
standard ATSI practice, but in any event not less often than monthly, subject
only to such payroll and withholding deductions as are required by Law. The
Board of Directors shall review the Base Salary no less frequently than once a
year and may, but shall not be obligated to, increase the Base Salary; provided,
however, that in no event shall the Base Salary be reduced unless as part of an
overall general reduction of all senior executive officers of ATSI and then only
commensurate with such other reductions.
Section 3. Office and Duties. Gearon shall have the usual duties of an
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Executive Vice President of ATSI and shall be responsible, subject to the Board
of Directors and the Chief Executive Officer and the Chief Operating Officer of
ATSI, for participating in the management and direction of the business and
operations of ATSI, shall perform all duties incident to such office and shall
perform such specific other tasks, consistent with his position with ATSI, as
may from time to time be assigned to him by the Board of Directors or the Chief
Executive Officer or the Chief Operating Officer of ATSI. Gearon shall be
responsible, subject to supervision by the Board of Directors and the Chief
Executive Officer of ATSI, for the management and direction of the Gearon
Division. Effective on the date hereof, Gearon shall be appointed a member of
the Board of Directors of American Tower Systems Corporation, the parent of ATSI
("ATS"). Gearon shall devote substantially all of his business time, labor,
skill, undivided attention and best ability to the performance of his duties
hereunder in a manner which will faithfully and diligently further the business
and interests of ATSI. During the term of his employment, Gearon shall not
directly or indirectly pursue any
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other business activity which involves a Proscribed Activity or which
unreasonably interferes with the performance of his duties and responsibilities
hereunder. Gearon may serve on civic or other charitable boards or committees,
and manage personal investments, so long as such activities do not involve a
Proscribed Activity and do not interfere in any material respect with the
performance of his duties and responsibilities hereunder. Gearon agrees that he
will travel to whatever extent is reasonably necessary or desirable in the
conduct of the business of ATSI and its Affiliates.
Section 4. Expenses. Commencing on the date hereof, Gearon shall be
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entitled to receive prompt reimbursement for all reasonable business expenses
incurred by him on behalf of ATSI (in accordance with the policies and
procedures established by the Board of Directors from time to time for ATSI's
executive officers) in performing services hereunder during the term of his
employment hereunder, provided that Gearon properly accounts therefor in
accordance with ATSI's policies and procedures, including without limitation
those relating to federal and state income tax matters.
Section 5. Vacation During Employment. Gearon shall be entitled to such
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reasonable vacations as may be allowed by ATSI in accordance with general
practices established from time to time for personnel similarly situated, but in
any event not less than three (3) weeks during each twelve (12) month period,
and shall also be entitled to all paid holidays given by ATSI to its personnel
similarly situated.
Section 6. Additional Benefits. Commencing on the date hereof, Gearon
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shall, to the extent he is otherwise eligible, be entitled to participate in
ATSI's stock option plan and in all group insurance programs or other fringe
benefit plans which ATSI may from time to time in its sole and absolute
discretion make available generally to its personnel, or for personnel similarly
situated with ATSI or any of its subsidiaries, but ATSI shall not be required to
establish or maintain any such program or plan, except as otherwise specifically
provided in this Section. In the event ATSI adopts a stock purchase or other
stock ownership plan or program, Gearon shall be entitled to participate in such
plan or program on a level commensurate with his compensation and position with
ATSI.
Section 7. Termination of Employment. Notwithstanding any other provision
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of this Agreement, this Agreement may be terminated as follows:
(a) Cause. By ATSI for Cause.
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(b) Disability. By ATSI in the event of Gearon's Disability.
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(c) Death. Automatically in the event of Gearon's death.
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(d) Good Reason. By Gearon for Good Reason.
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(e) Expiration. By ATSI or Gearon by notice given in accordance with
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the provisions of Section 1.
(f) Other. By ATSI other than for any of the reasons set forth in
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paragraphs (a), (b), (c) or (e) or by Gearon other than for any of the
reasons set forth in paragraphs (d) or (e), upon not less than thirty (30)
days' prior written notice.
In the event of any termination of this Agreement pursuant to this Section
or otherwise, anything in this Agreement to the contrary notwithstanding, ATSI
shall not be liable to Gearon (or his legal representatives) pursuant to the
provisions of this Agreement, except as follows:
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A. Cause or Early Termination by Gearon. If ATSI shall terminate
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Gearon's employment pursuant to the provisions of paragraph (a), or if
Gearon shall terminate his employment pursuant to the provisions of
paragraph (f), ATSI shall have no further obligations to Gearon under this
Agreement, except with respect to the Base Salary and expense
reimbursements through the date of such termination, such payments to be
made in accordance with the applicable provisions of this Agreement.
B. Disability. If ATSI shall terminate Gearon's employment pursuant
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to the provisions of paragraph (b), (i) ATS shall pay Gearon (or his legal
representative) any unpaid Base Salary and expense reimbursements through
the date of termination and (ii) Gearon (or his legal representative) shall
continue to receive the Base Salary for the month in which such termination
occurs until the earlier to occur of (A) the end of the six-month period
following the date of such termination or (B) such time as Gearon (or his
legal representative) is entitled to receive benefits under any disability
insurance carried by ATSI or any Affiliate for the benefit of Gearon, such
payments to be made in accordance with the applicable provisions of this
Agreement. Gearon shall be obligated, in the event of any cessation of his
disability, to accept reemployment in a senior managerial position with
ATSI if ATSI shall, in its sole and absolute discretion, offer such
employment.
C. Death. If Gearon's employment shall terminate pursuant to the
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provisions of paragraph (c), ATSI shall pay the legal representatives of
Gearon an amount equal to (i) the Base Salary earned through the date of
such termination and any unpaid expense reimbursements, and (ii) any death
benefits payable to the legal representatives or beneficiaries of Gearon
under any insurance carried by ATSI for the benefit of Gearon, including
without limitation under any group insurance plan or program, such payment
to be made in a single payment as promptly as practicable after the death
of Gearon.
D. Good Reason or Early Termination by ATSI. If Gearon shall
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terminate his employment pursuant to the provisions of paragraph (d), or if
ATSI shall terminate Gearon's employment pursuant to the provisions of
paragraph (f), ATSI shall pay Gearon an amount equal to the sum of (x) the
Base Salary earned through the date of termination and any unpaid expense
reimbursements, (y) additional compensation equal to any amount Gearon
would have received (with respect to the year in which the termination
occurs) under any and all incentive, bonus, and other special compensation
plans and arrangements in which Gearon is a participant at the date of
termination, multiplied by a fraction, the numerator of which is the number
of days that have elapsed in such year through the date of termination, and
the denominator of which is 365, and (z) additional compensation equal to
the total Base Salary Gearon would have received (assuming the Base Salary
as in effect on the date of such termination) for the greater of (A) the
period from the date of termination through the remainder of his term of
employment under this Agreement (but not to exceed, in any event, twelve
(12) months), or (B) the six-month period following the date of
termination. In addition, Gearon shall be entitled to participate in such
medical, dental, disability, hospitalization, and life insurance plans in
which Gearon is participating as of the date on which Gearon's employment
is terminated for so long as Gearon is receiving any Base Salary pursuant
to this Section 7.D. Payment of the foregoing amounts shall be made in
accordance with the applicable provisions of this Agreement (which in the
case of clause (z) shall mean the provisions of and at the times set forth
in Section 2).
E. Expiration. If the employment of Gearon shall terminate pursuant
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to the provisions of paragraph (e), ATSI shall have no further obligations
to Gearon under this Agreement, except with respect to (x) Base Salary
earned through the date of such termination and any unpaid expense
reimbursements, and (y) additional compensation equal to any amount Gearon
would have received (with respect to the year in which the termination
occurs) under any and all incentive, bonus, and
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other special compensation plans and arrangements in which Gearon is a
participant at the date of termination, multiplied by a fraction, the
numerator of which is the number of days that have elapsed in such year
through the date of termination, and the denominator of which is 365, such
payments to be made in accordance with the applicable provisions of this
Agreement.
F. Tax Withholding. Each amount paid pursuant to this Section 7
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shall be paid after deducting such payroll and withholding deductions as
are required by Law.
G. Other Matters. Anything in this Section or elsewhere in this
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Agreement to the contrary notwithstanding, the provisions of Sections 8, 9
and 10 shall survive, in accordance with their respective terms and for the
respective periods, if any, therein set forth, termination of the
employment of Gearon pursuant to the provisions of this Section or
otherwise, whether by ATSI, by Gearon, upon the expiration of the term of
this Agreement in accordance with the provisions of Section 1, or
otherwise.
Section 8. Disclosure and Assignment of Intellectual Property. Gearon
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shall promptly disclose to ATSI and any successor or assign, and grant to ATSI,
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 ATSI, 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 ATSI or its nominee or designee and to enable ATSI, or its nominee
or designee, to obtain all such patents; and Gearon agrees to render to ATSI, 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 ATSI. Gearon shall be
entitled to fair and reasonable compensation for any such assistance requested
by ATSI or its nominee or designee and furnished by him after the termination of
his employment.
Section 9. Confidentiality. Gearon shall not, either during the period of
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his employment with ATSI or thereafter, reveal or disclose to any person outside
ATSI or use for his own benefit, without ATSI's specific prior written
authorization, whether by private communication or by public address or
publication or otherwise, any Confidential Information, except as required in
the performance of his duties. All originals and copies of any Confidential
Information, relating to the business of ATSI, however and whenever produced,
shall be the sole property of ATSI, not to be removed from the premises or
custody of ATSI (which shall include any ATSI office located in Atlanta,
Georgia) without in each instance first obtaining prior written consent or
authorization of ATSI, except as required in the performance of Gearon's duties.
Upon the termination of Gearon's employment in any manner or for any reason,
Gearon shall promptly surrender to ATSI all copies of any Confidential
Information, together with any other documents, materials, data, information and
equipment belonging to or relating to ATSI's business and in his possession,
custody or control, and Gearon shall not thereafter retain or deliver to any
other Person, any Confidential Information or any summary or memorandum thereof.
Section 10. Restriction. ATSI intends to continue and expand the business
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heretofore conducted by Gearco and ATSI and in connection therewith ATSI has
invested, and ATSI will in the future be required to invest, substantial sums of
money, directly or indirectly, and as Gearon recognizes that ATSI, 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 as an employee of ATSI, or
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which he may now possess and which he has made available to ATSI, 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,
business or enterprise, other than American Tower Systems Corporation, the
parent of ATSI, and its Subsidiaries, which does business or operates
within the Covered Territory which is engaged in any Proscribed Activity
(except as an investor in securities listed on a national securities
exchange or actively traded over the counter so long as such investments do
not exceed one percent (1%) of the outstanding securities of the issuer of
the same class or issue); and
(b) 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 or with
respect to the Covered Territory, in any phase of any Proscribed Activity.
Gearon further agrees that during the Restricted Period, he will not,
directly or indirectly, (i) solicit business within the Covered Territory, other
than on behalf of ATSI, its Affiliates or any of their respective successors or
assigns, for a Proscribed Activity from any Person, business or enterprise which
is, or proposes to be, a customer of ATSI, its Affiliates or any of their
respective successors or assigns, or from any Person, business or enterprise
with which ATSI, its Affiliates or any of their respective successors or assigns
is negotiating or holding discussion or to which it has made a proposal, (ii)
induce any such Person, business or enterprise not to undertake, or to curtail
or cancel, business with ATSI, its Affiliates or any of their respective
successors or assigns, (iii) induce or attempt to induce any employee of ATSI,
its Affiliates or any of their respective successors or assigns to terminate his
or her employment therewith, or (iv) divulge or utilize for the direct or
indirect benefit (financial or other) of himself or any other Person, business
or enterprise, other than ATSI, its Affiliates or any of their respective
successors or assigns, any Intellectual Property or any other Confidential
Information he has obtained or shall obtain as an employee of ATSI, or which he
may now possess and which he has made available to ATSI.
This Agreement shall be deemed to consist of a series of separate
covenants, one for each line of business carried on by ATSI and each region
included within the geographic areas referred to in this Section. Gearon and
ATSI 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 ATSI
is engaged and proposes to engage, the state of its product development and
Gearon's knowledge of such business and his prior affiliations with and interest
in ATSI. However, if such period, activity or area should be adjudged
unreasonable in any Legal Action, 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 11. Assignment; Successors and Assigns. In the event that ATSI
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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
ATSI's assets shall be sold and transferred and ATSI may assign its rights and
remedies hereunder to any bank or other financial institution which has loaned
funds or otherwise extended credit to it. This Agreement shall not be assignable
by Gearon, but it shall be binding upon, and to the extent provided in Section 7
shall inure to the benefit of, his heirs, executors, administrators and legal
representatives. 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
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and assigns) any rights or remedies under or by reason of this Agreement,
including without limitation any rights to enforce this Agreement, except as
otherwise provided in Section 7.
Section 12. Specific Performance; Other Rights and Remedies. Gearon
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recognizes and agrees that ATSI's remedy at law for any breach of the provisions
of this Agreement, including without limitation Sections 8, 9 or 10, would be
inadequate, and he agrees that for breach of such provisions, ATSI 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 Law.
Each party hereby waives any requirement for security or the posting of any bond
or other surety in connection with any temporary or permanent award of
injunctive, mandatory or other equitable relief. Without limiting the generality
of the foregoing, in the event of a breach or threatened breach by Gearon of the
provisions of this Agreement, ATSI 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, from
engaging, participating or otherwise being connected with any business described
in Section 10 or from otherwise violating the terms of this Agreement. Nothing
herein contained shall be construed as prohibiting ATSI from pursuing any other
remedies available to it or them for such breach or threatened breach, including
without limitation the recovery of actual damages from Gearon. The rights and
remedies of the parties under this Agreement are cumulative and are not in lieu
of, but are in addition to, any other rights and remedies which the parties
shall have under or by virtue of any Applicable Law, or any other agreement or
obligation between the parties or any of them.
Section 13. Definitions. Capitalized terms used in this Agreement which
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are not defined herein and are defined in the Merger Agreement shall have the
meaning prescribed therefor in the Merger Agreement. Terms defined in the
singular shall have a comparable meaning when used in the plural, and vice
versa, and the reference to any gender shall be deemed to include all genders.
References to "hereof", "herein" or similar terms are intended to refer to this
Agreement as a whole and not a particular Section, and references to "this
Section" are intended to refer to this entire Section and not a particular
subsection thereof. The term "any party" shall, unless the context otherwise
requires, refer to Gearon and ATSI. As used herein, unless the context otherwise
requires, the following terms shall have the respective meanings set forth
herein.
"Affiliate", when used with respect to any Person, shall mean (a) any other
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Person at the time directly or indirectly controlling, controlled by or under
direct or indirect common control with such Person, (b) any other Person of
which such Person at the time owns, or has the right to acquire, directly or
indirectly, five percent (5%) or more on a consolidated basis of the equity or
beneficial interest, (c) any other Person which at the time owns, or has the
right to acquire, directly or indirectly, five percent (5%) or more of any class
of the capital stock or beneficial interest of such Person, (d) any executive
officer or director of such Person, and (e) when used with respect to an
individual, shall include a spouse, any ancestor or descendant, or any other
relative (by blood, adoption or marriage), within the third degree of such
individual any member of such individual's Immediate Family. A Person shall be
deemed to be "controlled by" any other Person if such other Person possesses,
directly or indirectly, power to direct or cause the direction of the management
or policies of such Person or the disposition of its assets or properties,
whether by stock, equity or other ownership, by contract, arrangement or
understanding, or otherwise.
"Cause" shall mean Gearon's
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(a) 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 under this
Agreement, which (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
Board of Directors of ATSI to
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Gearon specifying in reasonable detail the nature of such
failure, refusal or misconduct, or
(b) material breach of the provisions of Section 8, 9 or 10 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 Board of Directors of ATSI to Gearon specifying
in reasonable detail the nature of such breach, or
(c) act or acts of dishonesty in connection with his employment
intended by Gearon to result in substantial personal enrichment,
or
(d) commission a crime involving moral turpitude or which otherwise
materially and adversely affects ATSI or its business or
reputation.
"ATSI" is defined in the preambles of this Agreement and shall, for the
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purposes of Sections 8, 9 and 10, include all Affiliates of ATSI, and, in each
case, their respective successors and assigns.
"Confidential Information" shall mean any and all information (excluding
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information which (i) has been or is obtained by Gearon from a source
independent of ATSI or Gearco and is not specifically related to the activities
conducted by ATSI (in contrast to the general nature of owning, operating or
acquiring communications sites or towers), (ii) is or becomes part of, the
public domain other than as a direct or indirect result of any breach by Gearon
of Section 9 of this Agreement, or (iii) is independently developed by Gearon
without reliance in any way on information provided by ATSI or Gearco and is not
specifically related to the activities conducted by ATSI (in contrast to the
general nature of owning, operating or acquiring communications sites or
towers)) related to the business or businesses of ATSI, any Affiliate of ATSI 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, tenant or landlord 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, tenant lists, landlord or
supplier lists, prospective site lists, prices, sales projections or
other listings of names, addresses, or telephone numbers, or other
lease or 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.
"Covered Territory" shall mean any geographic area or areas in the United
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States or Canada or any other country in which ATSI or any Affiliate of ATSI or
any of their respective successors or assigns engages or has engaged in business
activity within twelve (12) months of the time of the enforcement this Agreement
and for which Gearon has, or at such time had, significant responsibility.
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"Disability" or "Disabled" shall mean a condition (mental or physical or
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both) which, in the good faith judgment of the Board of Directors of ATSI,
renders Gearon, in his capacity as an executive officer of ATSI, and by reason
of incapacity (mental or physical or both) unable to perform properly his duties
as such executive officer of ATSI for a period of not less than six (6) months
during any twenty-four (24) month period.
"Gearon" is defined in the preambles of this Agreement.
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"Good Reason" shall mean:
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(a) the assignment to Gearon of any duties inconsistent in any material
respect with his position, authority, duties or responsibilities as
contemplated in Section 3 or any other action by ATSI which results in
a diminution, in any material respect, in such position, authority,
duties or responsibilities; or
(b) a material reduction in Gearon's Base Salary or in the extent of
Gearon's entitlement to the expenses, fringe benefits or perquisites
referred to in this Agreement, the result of which is to place Gearon
in a materially less favorable position as to such compensation,
participation or entitlement, compared to other employees of ATSI and
its subsidiaries of similar stature and position; or
(c) any other failure by ATSI to comply in any material respect with any
material provision of this Agreement; or
(d) any requirement by ATSI for Gearon to move more than fifty (50) miles
from his residence as of the date hereof, without his prior consent;
or
(e) any failure by ATS to nominate Gearon for re-election as a member of
the Board of Directors of ATS, so long as Gearon continues to hold,
directly or indirectly, not less than twenty-five percent (25%) of the
shares of ATS common stock received pursuant to the provisions of
Section 3.1(b)(ii) of the Merger 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 to the Board of
Directors of ATSI or ATS, as applicable, from Gearon specifying in reasonable
detail the nature of such assignment, action, reduction or failure.
"Immediate Family" shall mean spouses and minor children, whether related
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by blood or by marriage.
"Intellectual Property" shall mean the following, but solely and
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exclusively to the extent they relate to a Proscribed Activity, and not
otherwise: any and all research, information, inventions, designs, procedures,
developments, discoveries, improvements, patents and applications therefor,
trademarks and applications therefor, copyrights and applications therefor,
trade secrets, drawings, 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 ATSI, which relate to the
manufacture, production or processing of any products developed or sold by ATSI
during the term of this Agreement or which are within the scope of or usable in
connection with ATSI's business as it may, from time to time, hereafter be
conducted or proposed to be conducted.
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"Law" shall mean any (a) administrative, judicial, legislative or other
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action, code, consent decree, constitution, decree, directive, enactment,
finding, guideline, law, injunction, interpretation, judgment, order, ordinance,
policy statement, proclamation, promulgation, regulation, requirement, rule,
rule of law, rule of public policy, settlement agreement, statute, or writ of
any Authority, domestic or foreign; (b) the common law, or other legal or quasi-
legal precedent; or (c) arbitrator's, mediator's or referee's award, decision,
finding or recommendation; including, in each such case or instance, any
interpretation, directive, guideline or request, whether or not having the force
of law including, in all cases, without limitation any particular section, part
or provision thereof.
"Proscribed Activity" shall mean any and all activities related to the
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ownership and/or operation of communications towers or sites, or the acquisition
or management of communications towers or sites for third parties.
"Restricted Period" shall mean the period commencing on the date of this
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Agreement and ending as follows:
(a) in the event Gearon's employment with ATSI is terminated (i) by
Gearon pursuant to paragraph (d) of Section 7 or (ii) by ATSI other than
pursuant to paragraphs (a) or (e) of Section 7 -- six (6) months after the
effective date of such termination; or
(b) in the event Gearon's employment with ATSI is terminated (i) by
Gearon for any reason other than pursuant to paragraphs (d) or (e) of
Section 7 or (ii) by ATSI pursuant to paragraph (a) of Section 7 --
eighteen (18) months after the effective date of such termination; or
(c) in the event Gearon's employment with ATSI is terminated because
this contract is not renewed pursuant to the provisions of Section 1, six
(6) months after the effective date of such termination.
Section 14. Expenses. Each party shall pay its own expenses incident to
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the negotiation, preparation, performance and enforcement of this Agreement
(including all fees and expenses of its counsel, accountants and other
consultants, advisors and representatives for all activities of such persons
undertaken pursuant to this Agreement), except to the extent, if any, otherwise
specifically set forth in this Agreement.
Section 15. Entire Agreement. This Agreement (which term, unless the
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context otherwise specifically requires, includes any exhibits or schedules
hereto and all agreements, instruments, other documents and certificates
delivered pursuant hereto or thereto) constitutes the entire agreement between
the parties 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, between them as to such subject matter.
Section 16. Waivers; Amendments. Anything in this Agreement to the
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contrary notwithstanding, amendments to and modifications of this Agreement may
be made, required consents and approvals may be granted, compliance with any
term, covenant, agreement, condition or other 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 written consent of the
party entitled to the benefit thereof. No delay on the part of any party at any
time or times in the exercise of any right or remedy shall operate as a waiver
thereof. Any consent may be given subject to satisfaction of conditions stated
therein. The failure of a party hereto at any time or times to insist upon
strict compliance with any term, covenant, agreement, condition or other
provision or to exercise any right or remedy with respect to such failure or to
require performance of any thereof shall in no manner affect its right at a
later time to enforce the same or constitute a waiver of any such term,
covenant, agreement, condition or other provision or any breach or default in
connection therewith. The waiver of any
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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.
Section 17. Notices. All notices and other communications which by any
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provision of this Agreement are required or permitted to be given shall be given
in writing and shall be (a) mailed by first-class or express mail, postage
prepaid, (b) sent by telex, telegram, telecopy or other form of rapid
transmission, confirmed by mailing (by first class or express mail, postage
prepaid) written confirmation at substantially the same time as such rapid
transmission, or (c) personally delivered to the receiving party (which if other
than an individual shall be an officer or other responsible party of the
receiving party). All such notices and communications shall be mailed, sent or
delivered as follows: (i) in the case of ATSI, at the addresses and to the
persons (including copies) set forth in the Merger Agreement; and (ii) in the
case of Gearon, at the addresses and to the persons (including copies) set forth
in the Merger Agreement, and/or to such other person(s), telex or facsimile
number(s) or as the party to receive any such communication or notice may have
designated by written notice to the other parties. A notice delivered in person
shall be deemed delivered when given; a notice sent by mail shall be deemed
delivered on the earlier of the date of receipt or refusal to accept or the
third business day after it has been mailed; a notice sent by telex, telegram,
telecopy or other form of rapid transmission shall be deemed delivered when
receipt of such transmission is acknowledged or other evidence of receipt is
evident; provided, however, that the failure to deliver a copy of any such
notice or other communication to the person(s) designated to receive copies
shall not affect the validity, force or effect of any notice or other
communication or subject a person so failing to deliver a copy to any liability.
Section 18. Severability. If any provision of this Agreement shall be
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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.
Section 19. Counterparts. This Agreement may be executed in several
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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.
Section 20. Section Headings. The headings contained in this Agreement
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are for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
Section 21. Further Acts. Each party agrees that at any time, and from
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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.
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Section 22. Governing Law. The validity, interpretation, construction and
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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 New
York 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.
Section 23. Consultation with Counsel; No Representations. Gearon agrees
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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 ATSI 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 have caused this Agreement to be executed
as a sealed instrument as of the date first above written.
American Tower Systems (Delaware), Inc.
By:_____________________________________
Name:
Title:
________________________________________
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
