<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 26, 1996
REGISTRATION NO. 333-04388
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
POST-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
ADVANCED RADIO TELECOM CORP.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 4812 52-1348016
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification No.)
</TABLE>
<TABLE>
<S> <C>
VERNON L. FOTHERINGHAM
CHIEF EXECUTIVE OFFICER
ADVANCED RADIO TELECOM CORP. ADVANCED RADIO TELECOM CORP.
500 108TH AVENUE, N.E., SUITE 2600 500 108TH AVENUE, N.E., SUITE 2600
BELLEVUE, WASHINGTON 98004 BELLEVUE, WASHINGTON 98004
(206) 688-8700 (206) 688-8700
(Address, Including Zip Code, and Telephone (Name, Address, Including Zip Code, and
Number, Including Area Code, of Registrant's Telephone Number, Including Area Code, of
Principal Executive Offices) Agent for Service)
</TABLE>
<TABLE>
<S> <C> <C>
COPIES TO:
JAMES KARDON, ESQ. JOHN D. WATSON, JR., ESQ. W. THEODORE PIERSON, JR., ESQ.
HAHN & HESSEN LLP LATHAM & WATKINS PIERSON & BURNETT, LLP
350 FIFTH AVENUE 1001 PENNSYLVANIA AVE., N.W. 1667 K. STREET, N.W., SUITE 801
NEW YORK, NEW YORK 10118 WASHINGTON, D.C. 20004 WASHINGTON, D.C. 20006
(212) 736-1000 (202) 637-2200 (202) 466-3044
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
------------------------
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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- --------------------------------------------------------------------------------
<PAGE>
ADVANCED RADIO TELECOM CORP.
CROSS-REFERENCE SHEET
PURSUANT TO ITEM 501(B) OF REGULATION S-K SHOWING LOCATION
IN PROSPECTUS OF INFORMATION REQUIRED BY ITEMS OF FORM S-1
<TABLE>
<CAPTION>
ITEM AND CAPTION IN FORM S-1 CAPTION IN PROSPECTUS
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<C> <S> <C>
1. Forepart of the Registration Statement and Outside
Front Cover Page of Prospectus...................... Outside Front Cover Page of Prospectus
2. Inside Front and Outside Back Cover Pages of
Prospectus.......................................... Inside Front Cover Page of Prospectus; Outside Back
Cover Page of Prospectus
3. Summary Information, Risk Factors and Ratio of
Earnings to Fixed Charges........................... Prospectus Summary; Risk Factors
4. Use of Proceeds...................................... Use of Proceeds
5. Determination of Offering Price...................... Outside Front Cover Page of Prospectus; Risk Factors;
Underwriting
6. Dilution............................................. Dilution; Shares Eligible for Future Sale
7. Selling Security Holders............................. Not Applicable
8. Plan of Distribution................................. Outside Front Cover Page of Prospectus; Underwriting
9. Description of Securities to be Registered........... Outside Front Cover Page of Prospectus; Prospectus
Summary; Description of Capital Stock; Shares
Eligible for Future Sale
10. Interests of Named Experts and Counsel............... Legal Matters; Experts
11. Information with Respect to the Registrant........... Prospectus Summary; Risk Factors; The Company;
Dividend Policy; Capitalization; Selected Historical
Combined and Pro Forma Financial Data; Management's
Discussion and Analysis of Financial Condition and
Results of Operations; Business; Management;
Principal Stockholders; Certain Transactions;
Description of Capital Stock; Description of Certain
Indebtedness; Financial Statements.
12. Disclosure of Commission Position on Indemnification
for Securities Act Liabilities...................... Not Applicable.
</TABLE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses in connection with the
sale and distribution of the securities being registered, not including the
Representative's non-accountable expense allowance. Except for the SEC
registration fee, the NASD filing fee and the Nasdaq listing fee, all of the
amounts in the table below are estimated.
<TABLE>
<CAPTION>
Securities and Exchange Commission registration fee................ $ 19,628
<S> <C> <C>
NASD filing fee.................................................... 5,718
Nasdaq listing fee................................................. 50,000
Accounting fees and expenses....................................... 568,600
Printing........................................................... 650,000
Blue Sky fees and expenses (including counsel fees)................ 20,000
Legal fees and expenses............................................ 620,000
Transfer Agent and Registrar fees and expenses..................... 2,500
Miscellaneous expenses............................................. 37,603
----------
TOTAL (estimated).................................................. $1,974,049
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</TABLE>
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<PAGE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of Delaware provides that a
corporation has the power to indemnify a director, officer, employee or agent of
the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he is or is threatened to be
made a party be reason of such position. If such person shall have acted in good
faith and in a manner he reasonable believed to be in or not opposed to the best
interests of the corporation, and, in any criminal proceeding, if such person
had no reasonable cause to believe his conduct was unlawful; provided that, in
the case of actions brought by or in the right of the corporation, no
indemnification shall be made with respect to any matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the
extent that the adjudicating court determines that such indemnification is
proper under the circumstances.
Reference is made to Article Ninth of the Certificate of Incorporation of
the Registrant, Section 6.4 of the By-laws and each of the Indemnification
Agreements filed as Exhibits 10-5, 10-6, 10-7 and 10-8, respectively, to this
Registration Statement for information regarding indemnification of directors
and officers under certain circumstances.
The Registrant has agreed to indemnify the Underwriters and their
controlling persons, and the Underwriters have agreed to indemnify the
Registrant and its controlling persons, against certain liabilities, including
liabilities under the Securities Act of 1933, as amended (the "Act"). Reference
is made to the Underwriting Agreement filed as part of Exhibit 1-1 hereto.
For information regarding the Registrant's undertaking to submit to
adjudication the issue of indemnification for violation of the Act, see Item 17
hereof.
The Registrant's Certificate of Incorporation provides that every director,
officer or agent of the Company shall be entitled to be indemnified out of the
assets of the Company against all losses or liabilities which he or she may
sustain or incur in or about the execution of the duties of his or her office or
otherwise in relation thereto, including any liability incurred by him or her in
defending any proceedings, whether civil or criminal, in which judgment is given
in his or her favor or in which he or she is acquitted, and no director or other
officer shall be liable for any loss, damage or misfortune which may happen to
or be incurred by the Company in the execution of the duties of his or her
office or in relation thereto.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
TELECOM CLASS A AND B COMMON STOCK PRIVATE PLACEMENT
In April 1995, the Company and Landover Holdings Corporation ("LHC")
subscribed 340,000 shares of Telecom Class A common stock and 640,000 shares of
Telecom Class B common stock, respectively, for $0.001 per share, which, after
giving effect to anti-dilution adjustments and the February 1996 Reorganization,
currently are equivalent upon conversion prior to the Offering to 3,641,111
shares and 2,650,414 shares, respectively, of Common Stock. In addition,
Hedgerow Corporation of Maine ("Hedgerow") and Toro Financial Corp. ("Toro")
subscribed 15,000 shares and 5,000 shares, respectively, of Telecom Class A
common stock at the price of $0.001 per share, which, after giving effect to
anti-dilution adjustments and the February 1996 Reorganization currently are
equivalent upon conversion prior to the Offering to 160,637 shares and 53,546
shares of the Common Stock, respectively. The securities issued in the above
transactions were offered and sold in reliance upon the exemption from
registration under Section 4(2) of the Act. The recipients made certain
representations as to the nature of their investments and had adequacy of access
to information about the Registrant.
PREFERRED STOCK PRIVATE PLACEMENTS
Between May 8, 1995 and November 13, 1995, the LHC Stock was diluted by
purchases of series of Telecom preferred stock by E2-2, E2, E1 Holdings L.P.
("E1") and E2-3 Holdings, L.P. ("E2-3" and collectively with E1, E2 and E2-2,
the "Landover Partnerships"), each a limited partnership whose general partner
is controlled by LHC, in separate private placements. E2-2, which committed to
II-2
<PAGE>
purchase up to $3,500,000 of Telecom preferred stock matching other investors
under the LHC Purchase Agreement, purchased 405,880 shares of Telecom Series A
preferred stock (which converts into 1,918,705 shares of Common Stock upon
completion of this offering) for an aggregate of $946,600, and LHC purchased
35,873 shares of such Telecom Series A preferred stock from E2-2 for $1,050,000
pursuant to an option. E2 purchased an aggregate of 105,823 shares of Telecom
Series B preferred stock (which converts into 500,254 shares of Common Stock
upon completion of this offering) for an aggregate of $842,400. E1 purchased
13,797 shares of Telecom Series A preferred stock (which converts into 65,222
shares of Common Stock upon completion of this offering) for an aggregate of
$60,000 and 8,856 shares of Telecom Series B preferred stock (which converts
into 41,865 shares of Common Stock upon completion of this offering) for an
aggregate of $38,300. E2-3 purchased an aggregate of 7,363 shares of Telecom
Series C preferred stock (which converts into 34,807 shares of Common Stock upon
completion of this offering) for an aggregate of $112,700. All of the Landover
Partnerships will liquidate upon completion of this offering. The securities
issued in each of the foregoing transactions were offered and sold in reliance
on an exemption from registration under Regulation D promulgated under the Act.
On November 9, 1995, Telecom sold 61,640 shares of Telecom Series D
preferred stock (which convert into 291,390 shares of Common Stock upon
completion of this offering) for $2,000,000 in a private placement. Telecom
simultaneously redeemed 293,791 shares of Telecom common stock from LHC for
$2,000,000. In connection with the February 1996 Reorganization described below,
LHC granted to the holders of Telecom Series D preferred stock a contingent
option to purchase 145,685 shares of Telecom common stock at a nominal price
(the "Series D/LHC Option"), which option expires upon completion of this
offering.
On November 13, 1995, Global Private Equity II, L.P., Advent Partners
Limited Partnership and Advent International Investors II L.P. each a limited
partnership controlled by Advent International Corporation, (collectively,
"Advent") purchased for an aggregate of $5,000,000, (i) one share of ART's
Series A Redeemable Preferred Stock for a purchase price of $50,000 and (ii) the
Company's 10% Secured Convertible Demand Promissory Notes in the aggregate
principal amount of $4,950,000. In connection with the February 1996
Reorganization, Advent exchanged such Preferred Stock and Note for 232,826
shares of Telecom Series E preferred stock (which converts into 1,100,632 shares
of Common Stock upon completion of this Offering), $0.001 par value per share.
The securities issued in each of the foregoing transactions were offered and
sold in reliance on an exemption from registration under Regulation D
promulgated under the Act. Advent made certain representations as to the nature
of its investment and had adequate access to information about the Registrant.
On February 2, 1996, Ameritech Development Corp. ("Ameritech") purchased for
an aggregate of $2,500,000 48,893 shares of Telecom Series F preferred stock,
par value $0.001 per share, (the "Ameritech Financing") convertible into 231,131
shares of Common Stock upon completion of this offering. In addition, Telecom
entered into the Ameritech Strategic Distribution Agreement and in connection
therewith granted to Ameritech a ten-year warrant to purchase 318,959 shares of
Telecom common stock exercisable at a nominal price per share (the "Ameritech
Warrant"). The securities issued in each of the foregoing transactions were
offered and sold in reliance on an exemption from registration under Regulation
D promulgated under the Act. Ameritech made certain representations as to the
nature of its investment and had adequate access to information about the
Registrant.
MARCH BRIDGE NOTES
On March 8, 1996, Telecom issued in a private placement $5,000,000 principal
amount of two year, 10% unsecured notes (the "March Bridge Notes") and five-year
warrants to purchase up to an aggregate of 400,000 shares of Telecom common
stock at a price of $17.1875 per share (the "March Bridge Warrants") to
investors including: (i) affiliates of J.C. Demetree, Jr. and Mark Demetree,
directors of the Company; (ii) the Advent Partnerships; and (iii) Ameritech, who
invested $700,000, $725,000 and $750,000 in the March Bridge Notes and March
Bridge Warrants, respectively.
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<PAGE>
EQUIPMENT FINANCING
On April 1, 1996, CRA, Inc. ("CRA") entered into a secured equipment
financing with Telecom (the "Equipment Financing") for the purchase from P-Com
of 38 GHz radio equipment. To evidence its obligations and the Equipment
Financing, Telecom issued in favor of CRA a $2,445,000 promissory note, payable
in 24 monthly installments of $92,694 with a final payment equal to $642,305 due
April 1, 1998. The securities issued in the foregoing transaction were offered
and sold in reliance on an exemption from registration under Regulation D
promulgated under the Act.
COMMCOCCC ACQUISITION
On July 3, 1996, the Company entered into the CommcoCCC Agreement to acquire
129 38 GHz wireless broadband authorizations from CommcoCCC, Inc. in exchange
for 6,000,000 shares of Common Stock. The stockholders of CommcoCCC
simultaneously loaned $3.0 million on a secured, subordinated basis bearing
interest at the prime rate and payable on September 30, 1996 and issued three-
year warrants to acquire 18,182 shares of Common Stock at $24.75 per share. In
connection with an October 1996 amendment to the CommcoCCC Agreement, the
Company modified the terms of such warrants, reduced the exercise price of such
warrants to $17.1875 per share and increased the number of shares issuable upon
exercise to 87,272 shares. The securities to be issued in the foregoing
transaction will be offered and sold in reliance on an exemption from
registration under Regulation D promulgated under the Act.
SEPTEMBER BRIDGE FINANCING
In August 1996, the Company received commitments for $3.0 million of 14.75%
unsecured notes due March 1998 (the "September Bridge Notes"). The September
Bridge Notes were funded from August 30, 1996 to October 1996. In October 1996,
the Company received an additional $1.0 millon of proceeds therefrom. The
Company also issued five-year warrants to purchase up to an aggregate of 116,364
shares of Common Stock at a price of $17.1875 per share (the "September Bridge
Warrants") to private investors including the Advent Partnerships, Ameritech,
LHC and affiliates of J.C. Demetree, Jr. and Mark C. Demetree. The securities
issued in the foregoing transaction were offered and sold in reliance on an
exemption from registration under Regulation D promulgated under the Act.
CIBC FINANCING
The Company has entered into commitment letters (subject to definitive
documentation) with certain investors (the "Noteholders") which provide for the
issuance of $50,000,000 of the Company's $12.5% Senior Secured Notes due 1998
(the "Senior Secured Notes") at any time, at the Company's option, during the
period commencing upon consummation of the Offering until 90 days thereafter
(the "CIBC Financing"). The interest rate on the Senior Secured Notes will
increase by 0.5% for each three-month period after the consummation of the
Offering until such time as the Senior Secured Notes have been repaid. The
Company will issue ten-year warrants at a nominal exercise price to the
Noteholders upon each of the following events: (i) the consummation of the
Offering, (ii) the issuance of the Senior Secured Notes and (iii) if the Senior
Secured Notes continue to be outstanding six months after the date of the
consummation of the Offering and, at various times thereafter. The Senior
Secured Notes must be repaid with the proceeds of any future debt and equity
financings. The securities issued in the foregoing transaction were offered and
sold in reliance on an exemption from registration under Regulation D
promulgated under the Act.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
The following exhibits were delivered with this Registration Statement, or
will be delivered by amendment, for filing:
<TABLE>
<C> <S> <C>
1-1 Purchase Agreement.**
2-1 (a) Amended and Restated Certificate of Incorporation and Bylaws of
Registrant.**
(b) Amendment to Amended and Restated Certificate of Incorporation.**
</TABLE>
II-4
<PAGE>
<TABLE>
<C> <S> <C>
(c) Second Amended and Restated Certificate of Incorporation (to be effective
prior to the consummation of the Offering) and Restated and Amended Bylaws
(effective on the date of the Prospectus) of Registrant.**
4-1 Specimen of Common Stock Certificate.**
4-2 Omitted
4-3 Form of Lock-Up Agreement.**
4-4 Omitted
5-1 Opinion and Consent of Hahn & Hessen LLP, counsel for the Registrant, with
respect to the Registrant's Common Stock.**
9-1 (a) Voting Trust Agreement.**
(b) Form of Trustee Indemnification Agreement.**
(c) Voting Agreement.**
(d) Confidentiality Agreement.**
10-1 Employment and Consulting Agreements.
(a) Vernon L. Fotheringham, dated December 16, 1995.**
(b) Steven D. Comrie, dated February 2, 1996.**
(c) W. Theodore Pierson, Jr., dated May 8, 1995 and effective January 1, 1995.**
(d) I. Don Brown, dated February 16, 1996.**
(e) Charles Menatti, dated March 8, 1996.**
(f) James D. Miller, dated February 1, 1996.**
(g) Thomas A. Grina, dated April 26, 1996.
10-2 (a) Second Amended and Restated Certificate of Incorporation and By-laws of
Telecom (filed as Exhibit 2-1 to the Registration Statement on Form S-1 of the
Company dated May 2, 1996).**
(b) Certificate of Incorporation of ART Merger Corporation (to become the
Certificate of Incorporation of Telecom upon the completion of the Merger).**
10-3 Form of Director Indemnification Agreement.**
10-4 (a) Registrant's Equity Incentive Plan, as amended.**
(b) Form of Stock Option Agreement.**
10-5 (a) Registrant's 1996 Non-Employee Directors Automatic Stock Option Plan.**
(b) Form of Non-Employee Directors Stock Option Agreement.**
10-6 Stock Option Agreements.
(a) Comrie Non-Qualified Stock Option Agreement.**
(b) Comrie Incentive Stock Option Agreement.**
10-7 Management Consulting Agreement with Landover Holdings Corporation, dated
November 13, 1995.**
10-8 (a) ART West Joint Venture Agreement dated April 4, 1995, with Extended
Communications, Inc.**
(b) Put/Call Agreement dated October 1, 1994, with Extended Communications,
Inc.**
(c) Services Agreement dated October 1, 1994, with Extended Communications,
Inc.**
(d) Amendment dated April 4, 1995 to the Put/Call Agreement dated October 1,
1994, with Extended Communications, Inc.**
(e) Asset Purchase Agreement dated June 24, 1996 with Extended Communications,
Inc.**
(f) Management Agreement dated June 1, 1996 with ART West Partnership.**
10-9 (a) Put/Call Agreement dated September 1, 1994 with DCT Communications, Inc.**
(b) Services Agreement dated September 1, 1994 with DCT Communications, Inc.**
(c) Term Sheet dated April 26, 1996 with DCT.**
(d) Purchase Agreement with DCT dated July 1, 1996.**
(e) Amendment to Services Agreement dated June 1996 with DCT.**
</TABLE>
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<TABLE>
<C> <S> <C>
10-10 (a) Asset Purchase Agreement dated April 4, 1995 with EMI Communications
Corporation.**
(b) $1,500,000 Nonnegotiable and Nontransferable Promissory Note.**
(c) Maintenance Agreement dated November 14, 1995 with EMI Communications
Corporation.**
(d) Agreement dated November 14, 1995 with EMI Communications Corporations.**
10-11 38 GHz Radio Links Purchase Agreement dated August 11, 1995 with P-Com, Inc.+**
10-12 (a) Agreement dated May 25, 1995 with Telecom One.++
(b) Services Agreement dated April 24, 1996 with Telecom One.**
(c) Asset Purchase Agreement and Management Agreement with Telecom One dated
June 27, 1996.**
10-13 Agreement dated April 25, 1996 with GTE.**
10-14 Software License Agreement dated March 29, 1996 with GTE.**
10-15 Agreement dated July 12, 1995 with Southeast Research Partners, Inc.**
10-16 Agreement dated March 1, 1995 with High Sky Limited Partnership, High Sky II
Limited Partnership, Vernon L. Fotheringham, W. Theodore Pierson, Jr., and F.
Thomas Tuttle.**
10-17 Stock Purchase Agreement dated May 8, 1995 with Vernon L. Fotheringham, W.
Theodore Pierson, Jr., High Sky Limited Partnership, High Sky II Limited
Partnership, and Extended Communications, Inc.**
10-18 (a) Purchase Agreement dated April 21, 1995 with Landover Holdings
Corporation.**
(b) Letter Agreement dated May 8, 1995 with the Demetrees, Telecom and Landover
Holdings Corporation.**
(c) Letter Agreement dated November 13, 1995 with Telecom, E2-2 Holdings, L.P.
and the Demetrees.**
10-19 Restated and Amended Stockholders' Agreement dated February 2, 1996 with Telecom
and the stockholders of each of Telecom and the Company.**
10-20 Second Restated and Amended Registration Rights Agreement dated July 3, 1996
with Telecom and the stockholders of each of Telecom and the Company.**
10-21 Services Agreement dated May 8, 1995 with Telecom.**
10-22 Option Agreement dated February 2, 1996 with Telecom.**
10-23 (a) Securities Purchase Agreement dated November 13, 1995 with Telecom, Vernon
Fotheringham, W. Theodore Pierson, Jr., the stockholders of Telecom named
therein and the Advent Partnerships.**
(b) Exchange Agreement dated February 2, 1996 with Telecom and the Advent
Partnerships.**
10-24 (a) Securities Purchase Agreement dated February 2, 1996 with Telecom and
Ameritech Development Corporation ("Ameritech"), including letter of
intent.**
(b) Warrant issued on February 2, 1996 to Ameritech.**
(c) Put/Call Agreement dated February 2, 1996 with Ameritech.**
10-25 Strategic Distribution Agreement dated April 29, 1996 with Ameritech.**
10-26 Second Restated and Amended Merger Agreement and Plan of Reorganization dated
October 11, 1996 between the Company, Merger Sub and Telecom.**
10-27 (a) $2,445,000 Promissory Note in favor of CRA, Inc. ("CRA").**
(b) Security Agreement with CRA (including UCC-1 Financing Statement).**
(c) Indemnity Agreement.**
(d) Form of Indemnity Warrant.**
10-28 Omitted.
10-29 (a) Purchase Agreement dated April 26, 1996 with Harris Corporation Farinon
Division ("Harris").+
(b) PCS Marketing Agreement dated April 26, 1996 with Harris.+
</TABLE>
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<TABLE>
<C> <S> <C>
10-30 Form of Subscription Agreement dated March 8, 1996, including Forms of Bridge
Note and Bridge Warrant.**
10-31 (a) Asset Acquisition Agreement and Plan of Reorganization dated July 3, 1996
with CommcoCCC, Inc.**
(b) Form of Note issued to Commco, L.L.C.**
(c) Form of Note issued to Columbia Capital Corporation.**
(d) Form of Warrant issued to Commco, L.L.C.**
(e) Form of Warrant issued to Columbia Capital Corporation.**
(f) Option Agreement dated July 3, 1996 with Commco, L.L.C.**
(g) Security Agreement dated June 27, 1996 with Columbia Capital Corporation.**
(h) Form of Noncompetition Agreement with CommcoCCC.**
(i) CommcoCCC Management Agreement dated July 3, 1996.**
(j) Right of First Offer Agreement dated July 3, 1996.**
(k) Engagement Letter with Montgomery Securities dated May 23, 1996.**
(l) Agreement to Lease between COMMCO, L.L.C. and Advanced Radio Technologies
Corporation.**
(m) Extension Agreement.**
(n) Amendment No. 1 to Asset Acquisition Agreement and Plan of Reorganization.**
10-32 Letter of Intent dated April 29, 1996 with Helioss Communications Inc.**
10-33 Letter of Intent dated March 26, 1996 with Advantage Telecom, Inc.**
10-34 (a) Consulting Agreement dated March 1, 1996 with Trond Johannesen.**
(b) Shareholders Agreement.**
(c) License and Support Agreement, dated September 30, 1996 (United Kingdom).**
(d) License and Support Agreement, dated September 30, 1996 (Sweden).**
10-35 Form of Subscription Agreement dated September 1996, including Forms of
September Bridge Note and September Bridge Warrant.**
10-36 Memorandum of Terms with Advantage Telecom, Inc.**
10-37 Installation Services Agreement dated October 2, 1996 with Teleport
Communications Group, Inc.**
10-38 (a) Commitment Letter.**
(b) Form of Senior Secured Credit Agreement with CIBC.**
(c) Form of Senior Secured Notes.**
(d) Form of CIBC Warrants.**
(e) Form of Security Agreement.**
10-39 Master Service Agreements.
(a) Microwave Partners, d/b/a Astrolink Communications Inc., dated October 3,
1996.**
(b) American PCS, L.P., dated July 29, 1996.**
(c) Message Center Management, Inc., dated September 19, 1996.**
(d) NEXTLINK Communications, LLC, dated October 13, 1996.**
(e) GST Telecom, Inc., dated October 11, 1996.**
(f) CAIS, Inc., dated October 1996.**
(g) DIGEX, Incorporated, dated October 1996.**
(h) Brooks Fiber Properties, Inc. dated October 1996.**
10-40 MFS Communications Company, Inc. Agreements.**
10-41 Services Agreement dated as of October 29, 1996 with ICG Telecom Group, Inc. and
Pacific & Eastern Digital Transmission Services, Inc.**
</TABLE>
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<TABLE>
<C> <S> <C>
11 Computation of Pro Forma Net Loss Per Share of Common Stock.**
12 Omitted.
21 Subsidiaries of the Registrant.**
23(a) Consent of the Registrant's Independent Accountants.
23(b) Consent of the Registrant's Counsel (Included in Exhibit 5-1).**
25 Omitted
</TABLE>
- ------------------------
* To be filed by amendment.
** Previously filed.
+ Confidential treatment requested for the deleted portions of this document.
++ Withdrawn pursuant to Rule 477 of the Securities Act of 1933, as amended.
ITEM 17. UNDERTAKINGS.
Insofar as indemnification for liabilities under the Act may be permitted to
directors, officers and controlling person of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been advised that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes to provide the Underwriters at
the closing specified in the Underwriting Agreement certificates in such
denomination and registered in such names as required by the Underwriters to
permit prompt delivery to each purchaser.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Act, the
information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4), or
497(h) under the Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purposes of determining any liability under the Act, each
post-effective amendment that contains a form of prospectus shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
II-8
<PAGE>
(2) That, for the purpose of determining any liability under the Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
II-9
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment to this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on November 25, 1996.
Advanced Radio Technologies
Corporation
By: /s/ VERNON L. FOTHERINGHAM
-----------------------------------
Vernon L. Fotheringham
CHAIRMAN, CHIEF EXECUTIVE OFFICER
AND DIRECTOR
<TABLE>
<C> <S> <C>
SIGNATURES TITLE DATE
- ------------------------------------------------------ -------------------------------- -----------------------
/s/ VERNON L. FOTHERINGHAM
------------------------------------------- Chairman, Chief Executive November 25, 1996
Vernon L. Fotheringham Officer and Director
/s/ STEVEN D. COMRIE
------------------------------------------- President, Chief Operating November 25, 1996
Steven D. Comrie Officer and Director
/s/ THOMAS A. GRINA
------------------------------------------- Executive Vice President and November 25, 1996
Thomas A. Grina Chief Financial Officer
/s/ MARK C. DEMETREE
------------------------------------------- Director November 25, 1996
Mark C. Demetree
/s/ ANDREW I. FILLAT
------------------------------------------- Director November 25, 1996
Andrew I. Fillat
/s/ JAMES C. COOK
------------------------------------------- Director November 25, 1996
James C. Cook
</TABLE>
II-10
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby severally constitutes and appoints Vernon L. Fotheringham and
Thomas A. Grina, and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement and all
documents relating thereto, including one or more registration statements that
may be filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, and to file the same, with all exhibits hereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, full power and
authority to do and perform each and every act and thing necessary or advisable
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do
or cause to be done in virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<C> <S> <C>
SIGNATURES TITLE DATE
- ------------------------------------------------------ -------------------------------- -----------------------
/s/ VERNON L. FOTHERINGHAM
------------------------------------------- Chairman, Chief Executive November 25, 1996
Vernon L. Fotheringham Officer and Director
/s/ STEVEN D. COMRIE
------------------------------------------- President, Chief Operating November 25, 1996
Steven D. Comrie Officer and Director
/s/ JAMES C. COOK
------------------------------------------- Director November 25, 1996
James C. Cook
/s/ MARK C. DEMETREE
------------------------------------------- Director November 25, 1996
Mark C. Demetree
/s/ ANDREW I. FILLAT
------------------------------------------- Director November 25, 1996
Andrew I. Fillat
</TABLE>
II-11
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBITS DESCRIPTION PAGE
- ---------- ---------------------------------------------------------------------------------------- ---------
<C> <S> <C>
1-1 Purchase Agreement.**
2-1 (a) Amended and Restated Certificate of Incorporation and Bylaws of Registrant.**
(b) Amendment to Amended and Restated Certificate of Incorporation.**
(c) Second Amended and Restated Certificate of Incorporation (to be effective prior to
the consummation of the Offering) and Restated and Amended Bylaws (effective on the
date of the Prospectus) of Registrant.**
4-1 Specimen of Common Stock Certificate.**
4-2 Omitted
4-3 Form of Lock-Up Agreement.**
4-4 Omitted.
5-1 Opinion and Consent of Hahn & Hessen LLP, counsel for the Registrant, with respect to
the Registrant's Common Stock.**
9-1 (a) Voting Trust Agreement.**
(b) Form of Trustee Indemnification Agreement.**
(c) Voting Agreement.**
(d) Confidentiality Agreement.**
10-1 Employment and Consulting Agreements.
(a) Vernon L. Fotheringham, dated December 16, 1995.**
(b) Steven D. Comrie, dated February 2, 1996.**
(c) W. Theodore Pierson, Jr., dated May 8, 1995 and effective January 1, 1995.**
(d) I. Don Brown, dated February 16, 1996.**
(e) Charles Menatti, dated March 8, 1996.**
(f) James D. Miller, dated February 1, 1996.**
(g) Thomas A. Grina, dated April 26, 1996.
10-2 (a) Second Amended and Restated Certificate of Incorporation and By-laws of Telecom
(filed as Exhibit 2-1 to the Registration Statement on Form S-1 of the Company dated
May 2, 1996).**
(b) Certificate of Incorporation of ART Merger Corporation (to become the Certificate of
Incorporation of Telecom upon the completion of the Merger).**
10-3 Form of Director Indemnification Agreement.**
10-4 (a) Registrant's Equity Incentive Plan, as amended.**
(b) Form of Stock Option Agreement.**
10-5 (a) Registrant's 1996 Non-Employee Directors Automatic Stock Option Plan.**
(b) Form of Non-Employee Directors Stock Option Agreement.**
10-6 Stock Option Agreements.
(a) Comrie Non-Qualified Stock Option Agreement.**
(b) Comrie Incentive Stock Option Agreement.**
10-7 Management Consulting Agreement with Landover Holdings Corporation, dated November 13,
1995.**
10-8 (a) ART West Joint Venture Agreement dated April 4, 1995, with Extended Communications,
Inc.**
(b) Put/Call Agreement dated October 1, 1994, with Extended Communications, Inc.**
(c) Services Agreement dated October 1, 1994, with Extended Communications, Inc.**
(d) Amendment dated April 4, 1995 to the Put/Call Agreement dated October 1, 1994, with
Extended Communications, Inc.**
(e) Asset Purchase Agreement dated June 24, 1996 with Extended Communications, Inc.**
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS DESCRIPTION PAGE
- ---------- ---------------------------------------------------------------------------------------- ---------
(f) Management Agreement dated June 1, 1996 with ART West Partnership.**
<C> <S> <C>
10-9 (a) Put/Call Agreement dated September 1, 1994 with DCT Communications, Inc.**
(b) Services Agreement dated September 1, 1994 with DCT Communications, Inc.**
(c) Term Sheet dated April 26, 1996 with DCT.**
(d) Purchase Agreement with DCT dated July 1, 1996.**
(e) Amendment to Services Agreement dated June 1996 with DCT.**
10-10 (a) Asset Purchase Agreement dated April 4, 1995 with EMI Communications Corporation.**
(b) $1,500,000 Nonnegotiable and Nontransferable Promissory Note.**
(c) Maintenance Agreement dated November 14, 1995 with EMI Communications Corporation.**
(d) Agreement dated November 14, 1995 with EMI Communications Corporations.**
10-11 38 GHz Radio Links Purchase Agreement dated August 11, 1995 with P-Com, Inc.+
10-12 (a) Agreement dated May 25, 1995 with Telecom One.++
(b) Services Agreement dated April 24, 1996 with Telecom One.**
(c) Asset Purchase Agreement and Management Agreement with Telecom One dated June 27,
1996.**
10-13 Agreement dated April 25, 1996 with GTE.**
10-14 Software License Agreement dated March 29, 1996 with GTE.**
10-15 Agreement dated July 12, 1995 with Southeast Research Partners, Inc.**
10-16 Agreement dated March 1, 1995 with High Sky Limited Partnership, High Sky II Limited
Partnership, Vernon L. Fotheringham, W. Theodore Pierson, Jr., and F. Thomas Tuttle.**
10-17 Stock Purchase Agreement dated May 8, 1995 with Vernon L. Fotheringham, W. Theodore
Pierson, Jr., High Sky Limited Partnership, High Sky II Limited Partnership, and
Extended Communications, Inc.**
10-18 (a) Purchase Agreement dated April 21, 1995 with Landover Holdings Corporation.**
(b) Letter Agreement dated May 8, 1995 with the Demetrees, Telecom and Landover Holdings
Corporation.**
(c) Letter Agreement dated November 13, 1995 with Telecom, E2-2 Holdings, L.P. and the
Demetrees.**
10-19 Restated and Amended Stockholders' Agreement dated February 2, 1996 with Telecom and the
stockholders of each of Telecom and the Company.**
10-20 Second Restated and Amended Registration Rights Agreement dated July 3, 1996 with
Telecom and the stockholders of each of Telecom and the Company.**
10-21 Services Agreement dated May 8, 1995 with Telecom.**
10-22 Option Agreement dated February 2, 1996 with Telecom.**
10-23 (a) Securities Purchase Agreement dated November 13, 1995 with Telecom, Vernon
Fotheringham, W. Theodore Pierson, Jr., the stockholders of Telecom named therein
and the Advent Partnerships.**
(b) Exchange Agreement dated February 2, 1996 with Telecom and the Advent
Partnerships.**
10-24 (a) Securities Purchase Agreement dated February 2, 1996 with Telecom and Ameritech
Development Corporation ("Ameritech"), including letter of intent.**
(b) Warrant issued on February 2, 1996 to Ameritech.**
(c) Put/Call Agreement dated February 2, 1996 with Ameritech.**
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS DESCRIPTION PAGE
- ---------- ---------------------------------------------------------------------------------------- ---------
10-25 Strategic Distribution Agreement dated April 29, 1996 with Ameritech.**
<C> <S> <C>
10-26 Second Restated and Amended Merger Agreement and Plan of Reorganization dated October
11, 1996 between the Company, Merger Sub and Telecom.**
10-27 (a) $2,445,000 Promissory Note in favor of CRA, Inc. ("CRA").**
(b) Security Agreement with CRA (including UCC-1 Financing Statement).**
(c) Indemnity Agreement.**
(d) Form of Indemnity Warrant.**
10-28 Memorandum of Terms of Development and Procurement Agreement with American Wireless with
Extension Agreement dated April 25, 1996.**
10-29 (a) Purchase Agreement dated April 26, 1996 with Harris Corporation Farinon Division
("Harris") (confidential treatment requested for certain terms).+
(b) PCS Marketing Agreement dated April 26, 1996 with Harris (confidential treatment
requested for certain terms).+
10-30 Form of Subscription Agreement dated March 8, 1996, including Forms of Bridge Note and
Bridge Warrant.**
10-31 (a) Asset Acquisition Agreement and Plan of Reorganization dated July 3, 1996 with
CommcoCCC, Inc.**
(b) Form of Note issued to Commco, L.L.C.**
(c) Form of Note issued to Columbia Capital Corporation.**
(d) Form of Warrant issued to Commco, L.L.C.**
(e) Form of Warrant issued to Columbia Capital Corporation.**
(f) Option Agreement dated July 3, 1996 with Commco, L.L.C.**
(g) Security Agreement dated June 27, 1996 with Columbia Capital Corporation.**
(h) Form of Noncompetition Agreement with CommcoCCC.**
(i) CommcoCCC Management Agreement dated July 3, 1996.**
(j) Right of First Offer Agreement dated July 3, 1996.**
(k) Engagement Letter with Montgomery Securities dated May 23, 1996.**
(l) Agreement to Lease Between COMMCO, L.L.C. and Advanced Radio Technologies
Corporation.**
(m) Extension Agreement.**
(n) Amendment No. 1 to Asset Acquisition Agreement and Plan of Reorganization.**
10-32 Letter of Intent dated April 29, 1996 with Helioss Communications Inc.**
10-33 Letter of Intent dated March 26, 1996 with Advantage Telecom, Inc.**
10-34 (a) Consulting Agreement dated March 1, 1996 with Trond Johannesen.**
(b) Shareholders Agreement.**
(c) License and Support Agreement, dated September 30, 1996 (United Kingdom).**
(d) License and Support Agreement, dated September 30, 1996 (Sweden).**
10-35 Form of Subscription Agreement dated September 1996, including Forms of Bridge Note and
Bridge Warrant.**
10-36 Memorandum of Terms with Advantage Telecom, Inc.**
10-37 Installation Services Agreement dated October 2, 1996 with Teleport Communications
Group, Inc.**
10-38 (a) Commitment Letter.**
(b) Senior Secured Credit Agreement with CIBC.**
(c) Form of Senior Secured Notes.**
(d) Form of CIBC Warrants.**
(e) Security Agreement.**
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS DESCRIPTION PAGE
- ---------- ---------------------------------------------------------------------------------------- ---------
10-39 Master Service Agreements
<C> <S> <C>
(a) Microwave Partners, d/b/a Astrolink Communications Inc., dated October 3, 1996.**
(b) American PCS, L.P., dated July 29, 1996.**
(c) Message Center Management, Inc., dated September 19, 1996.**
(d) NEXTLINK Communications, LLC, dated October 13, 1996.**
(e) GST Telecom, Inc., dated October 11, 1996.**
(f) CAIS, Inc., dated October 1996.**
(g) DIGEX, Incorporated, dated October 1996.**
(h) Brooks Fiber Properties, Inc. dated October 1996.**
10-40 MFS Communications Company, Inc. Agreements.**
10-41 Services Agreement dated as of October 29, 1996 with ICG Telecom Group, Inc. and Pacific
& Eastern Digital Transmission Services, Inc.**
11 Computation of Pro Forma Net Loss Per Share of Common Stock.**
12 Omitted.
21 Subsidiaries of the Registrant.**
23(a) Consent of the Registrant's Independent Accountants.
23(b) Consent of the Registrant's Counsel (Included in Exhibit 5-1).**
25 Omitted
</TABLE>
- ------------------------
* To be filed by amendment.
** Previously filed.
+ Confidential treatment requested for the deleted portions of this document.
++ Withdrawn pursuant Rule 477 of the Securities Act of 1933, as amended.
<PAGE>
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into and made effective the 26th day
of April, 1996 ("Effective Date"), by and between Advanced Radio Telecom Corp.,
a Delaware Corporation with principal offices located at 500 - 108th Avenue
N.E., Suite 1910, Bellevue, WA 98004 (the "Employer"), and Thomas A. Grina,
presently residing at the address listed in Section 20 hereof (the "Employee").
The Employer is in the business of providing local wireless communications
using 38 GHz radio signals including provision of high speed data links for
business, integrated data and voice services extending fiber optic rings and
interconnections between mobile radio base stations and switches. The Employer
desires to engage the services of the Employee and the Employee desires to
accept such engagement, on the terms and subject to the conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein set forth, the parties, intending to be legally bound, hereby agree as
follows:
1. EMPLOYMENT. The Employer engages the Employee, and the Employee
accepts engagement by the Employer, upon the terms and subject to the conditions
set forth in this Agreement, and subject to the terms and conditions of the ART
Employee Handbook which the Employee has read and with which the Employee is
familiar.
2. TERM/SURVIVABILITY. Subject to the provisions hereof, the Employee's
employment by the Employer under this Agreement shall be at will. All
provisions of this Agreement, including, but not limited to those contained in
Sections 7, 10, 11, 12, 13 and 14, that by their nature are intended to survive
the termination of this Agreement shall so survive, continue in full force and
effect and be fully enforceable according to their provisions. The term of the
Employee's employment hereunder is hereinafter referred to as the "Employment
Period."
3. POSITION, TITLE AND DUTIES. The Employee's title shall be Executive
Vice President, Chief Financial Officer. During the Employment Period, the
Employee shall perform such assignments and have such powers and duties as are
assigned or delegated to him by the Employer. Such assignments, powers and
duties, may, from time to time, be modified by the Employer as Employer's needs
may require. The Employee's initial duties will include, but not be limited to
those customarily associated with the position of Executive Vice President,
Chief Financial Officer.
At the request of the Employer, the Employee shall also perform similar
services for any Affiliate (as hereinafter defined) of the Employer without
additional compensation as long as the requests are reasonable (giving due
regard to the Employee's time commitments as an executive of the Employer),
legitimate and lawful. The Employee agrees to devote substantially all of his
business time, skill, attention and best
<PAGE>
efforts to the business of the Employer and Affiliates in the advancement of
the best interests of the Employer and Affiliates, except that the Employee
shall be permitted to devote a reasonable amount of time to charitable
endeavors, investments and to personal affairs to the extent that such
additional endeavors do not interfere with the employee's duties with the
Employer. As used in this Agreement, the term "Affiliate" of the Employer
means any person or corporation that, directly or indirectly, through one or
more intermediaries, controls or is controlled by or is under common control
with the Employer or its stockholders. The Employer and its Affiliates
assume all responsibility related to the proper reporting as Employer, for
services performed by the Employee, to the relevant taxing authorities. The
Employee shall render his services in the Seattle, Washington metropolitan
area, provided that the Employer or Affiliates may require the Employee to
render his services in another community within the United States for periods
of limited duration.
4. COMPENSATION.
4.1. SALARY.
4.1.1. BASE SALARY. For all services rendered by the Employee
to the Employer through April 30, 1997, the Employer (or at the Employer's
option, any Affiliate of the Employer) shall pay the Employee an annualized Base
Salary of One Hundred Ninety Thousand Dollars ($190,000.00), to be paid in equal
semi-monthly installments. The Employer shall review the Base Salary at least
once per year, no later than the fourth calendar quarter, with any increase to
be effective January 1 of the following calendar year.
4.1.2 BONUS. A cash bonus of $50,000 shall be paid within 45
days following the end of each fiscal year beginning with the 1996 fiscal year
for achievement of annual link installation goals. The goal for fiscal year
1996 is 1596 equivalent DSI links. For subsequent years the bonus will be based
on achieving link goals to be established in succeeding years' annual operating
budgets as presented by the President and approved by the Employer's Board of
Directors. The amount of the bonus may increase or decrease depending on
achievement of these goals and will be calculated according to the Bonus
Achievement Scale immediately below:
Bonus Achievement Scale
-----------------------
Goal Achievement Level Percent of Bonus Paid
---------------------- ---------------------
200% or more 200%
175-199% 175%
150-174% 150%
125-149% 125%
100-124% 100%
75-99% 75%
2
<PAGE>
50-74% 50%
less than 50% 0%
To the extent that the Board of Directors deems it advisable, in its sole
discretion, the Employee may use amounts awarded as bonuses under this Section,
in whole or in part, to purchase shares of common stock of Advanced Radio
Technology, Limited. The class of common stock will be prescribed by the Board
of Directors. The price of such shares shall be their fair market value
("FMV"). For purposes of this Section 4.1.2, "FMV" shall mean: (a) the closing
price per share on the day prior to the date of purchase, if shares of the class
of stock to be purchased are publicly-traded; or (b) if shares of the class of
stock to be purchased are not publicly-traded, the last price at which shares of
such class were sold by the Employer in an arms-length transaction to a party
other than the Employee, and other than in a sale involving the exercise of an
option to purchase shares of such class. The Employee agrees to deliver to the
Employer, at the time of any purchase made pursuant to this Section, an executed
Stock Purchase Agreement in such form as prescribed by the Employer.
4.2. ADDITIONAL INCENTIVES.
4.2.1. [Reserved]
4.2.2. RELOCATION EXPENSES. Employer will pay the costs of
Employee's relocation from Greer, South Carolina, to the Seattle, Washington
area, including all reasonable cartage, realtor fees (on the sale of Employee's
present residence), financing fees ("points") on Employee's new residence and
other relocation assistance subject to the President's approval.
4.2.3. TEMPORARY LIVING EXPENSES. Employer will pay reasonable
expenses while Employee is in transition, subject to President's approval.
4.2.4. AUTOMOBILE ALLOWANCE. During the Employment Period, the
Employee will receive from the Employer an allowance of Eight Hundred Dollars
($800.00) per month to cover expenses associated with operating and maintaining
an automobile to be used in furtherance of the business interests of the
Employer.
4.3 STOCK OPTIONS:
4.3.1. GRANT OF OPTIONS. Upon the Effective Date of this Agreement,
the Employer will grant to the Employee options to purchase Three Hundred
Thousand (300,000) shares of common stock of the Employer (or any successor
thereto) set forth in Exhibit A, attached hereto, and incorporated herein by
reference. All of the options shall be Nonqualified Stock Options. With the
exception of the options that vest immediately all options will be subject to
certain financial performance requirements to be developed jointly with the
Employee and approved by the Employer's Board or appointed
3
<PAGE>
committee(s). All options are subject to the Employer's "1995 Employee Stock
Option Plan," regulatory rules and underwriter's approval.
4.3.2. VESTING. The stock options granted pursuant to Section 4.3.1.
of this Agreement will vest according to the schedule set forth in Exhibit A,
attached hereto, and incorporated by reference herein, provided that the
financial performance requirements, if any, contemplated by Section 4.3.1. have
been satisfied. In any event, all of the stock options granted pursuant to
Section 4.3.1. shall vest on April 26, 1999, even if the financial performance
requirements have not been satisfied Further, all such options shall vest
immediately upon the merger of the Employer with other than an affiliated
corporation, the sale of a controlling interest of the Employer in other than a
public offering, the sale of substantially all of the assets of the Employer, or
a Change of Control of the Employer as defined in the 1995 Employee Stock Option
Plan, as amended from time to time.
4.3.3. EXERCISE AND PAYMENT. Except as otherwise provided in the 1995
Employee Stock Option Plan or the Stock Option Agreements issued pursuant
thereto, each option shall be exercisable for a period of five (5) years from
the date of vesting of each such option at the exercise price of Six and Twenty
Five One Hundredths Dollars ($6.25) per share. In connection with the exercise
of any stock option granted pursuant to this Agreement, the Employee agrees to
deliver to the Employer, at the time of exercise, an executed Stock Option
Agreement in such form as prescribed by the Employer.
5. [Reserved]
6. EMPLOYEE BENEFITS. During the Employment Period, the Employee shall
be entitled to participate in the Employer's benefit plans, pension plans and
retirement plans, life insurance, long-term disability insurance,
hospitalization, surgical and major medical coverage, and other fringe benefits
enjoyed by executive employees of the Employer, including a 401(k) plan and an
Employee Stock Purchase Plan, if and when adopted, and the 1995 Employee Stock
Option Plan to the extent provided in Exhibit A hereto. The Employee will also
be entitled to paid annual vacation time (not to exceed three weeks), sick
leave, and holidays.
7. INDEMNIFICATION; LIABILITY INSURANCE. The Employer shall, to the
fullest extent permitted by the provisions of Section 145 of the General
Corporation Law of the State of Delaware, as the same may be amended and
supplemented, indemnify the Employee from and against any and all of the
expenses, liabilities, or other matters referred to in or covered by said
Section. Such indemnification shall be provided with respect to actions taken
in the Employee's official capacity and as to actions taken in another capacity
while holding such office. The indemnification coverage provided in this
Section 7 shall continue after the Employee's termination with respect to such
actions during the Employment Period. The Employer also agrees to use its best
efforts to obtain and maintain an insurance policy or policies providing
liability coverage to the
4
<PAGE>
Employer's executive officers and directors for acts or omissions in
connection with their duties as executive officers and directors of the
Employer.
8. EXPENSE REIMBURSEMENT. Subject to such policies regarding expenses
and expense reimbursement as may be adopted from time to time by the Employer
and compliance therewith by the Employee, the Employee is authorized to incur
reasonable expenses in the performance of his duties hereunder, and the Employer
shall reimburse the Employee for such reasonable out-of-pocket expenses, upon
the presentation by the Employee of an itemized account of such expenses and
receipts satisfactory to the Employer. The Employer shall have the right to
request reasonable additional documentation of such requests.
9. TERMINATION.
9.1. INVOLUNTARY TERMINATION. Termination by the Employer of the
Employee under this Agreement as a result of incapacity or disability by
accident, sickness or other cause so as to render the Employee mentally or
physically incapable of performing those services required to be performed by
him under this Agreement for a period of 180 consecutive days or longer, or for
180 days during any twelve month period (such condition being called a
"Disability"), is referred to herein as an "Involuntary Termination." If the
Employee dies during the Employment Period, his engagement hereunder shall be
deemed to cease as of the date of his death, and the termination of his
engagement occasioned thereby also shall be deemed an Involuntary Termination.
9.2. TERMINATION FOR CAUSE. The Employer may terminate the Employee's
engagement for cause ("Termination for Cause"). For purposes of this Agreement,
"Cause" is limited to the following:
(a) the willful and continued failure by the Employee substantially to
perform the duties described in Section 3 (other than a failure resulting
from an illness or similar incapacity or disability) for 10 days after a
written demand for performance is provided to the Employee by or on behalf
of the Board of Directors which specifically identifies the manner in which
it is alleged that the Employee has failed to perform his duties;
(b) the engaging of the Employee in the misappropriation of funds,
properties or assets of the Employer or any Affiliate or an intentional
tort or other conduct relating to his office or engagement with the
Employer which has, or may be reasonably anticipated to have, a material
adverse effect on the Employer or any Affiliate;
(c) the Employee's conviction of a crime constituting a felony, including
the entry of a plea of guilty or no contest by the Employee to a charge of
a crime constituting a felony.
5
<PAGE>
9.3 TERMINATION WITHOUT CAUSE. The termination of the Employee's
engagement by the Employer at any time during the Employment Period without
"Cause," other than an Involuntary Termination, is referred to herein as a
"Termination Without Cause."
9.4 VOLUNTARY TERMINATION. Any termination of the Employee's
engagement that is not an Involuntary Termination, a Termination for Cause, or a
Termination Without Cause, including the Employee's giving notice of termination
prior to the end of the Employment Period, is referred to herein as a "Voluntary
Termination."
9.5. EFFECT OF TERMINATION - VOLUNTARY TERMINATION OR TERMINATION FOR
CAUSE. Upon the termination of the Employee's engagement pursuant to a
Voluntary Termination or a Termination for Cause, neither the Employee nor his
beneficiary or estate shall have any further rights or claims against the
Company or any Affiliate under this Agreement except:
(a) the right to receive any unpaid portion of the Employee's Base Salary
provided for in Section 4.1.1 and Bonus provided for in Section 4.1.2,
computed on a PRO RATA basis to the date of termination; and
(b) reimbursement for any expenses for which the Employee has not yet been
reimbursed as provided in Section 8.
9.6 EFFECT OF TERMINATION - INVOLUNTARY TERMINATION OR TERMINATION
WITHOUT CAUSE. Upon the termination of the Employee's engagement pursuant to an
Involuntary Termination or a Termination Without Cause, the Employee shall be
entitled to the following:
(a) any unpaid portion of the Employee's Base Salary provided for in
Section 4.1.1. and Bonus, if any, provided for in Section 4.1.2, computed
on a PRO RATA basis to the date of termination;
(b) reimbursement for any expenses for which the Employee has not yet been
reimbursed as provided in Section 8;
(c) a payment equivalent to six (6) months of the employee's Base Salary
and Bonus in effect at the time of such termination;
(d) continuance of the Employee's automobile allowance, as described in
Section 4.2.4 hereof, for a period of six (6) months following the date of
termination;
(e) continuance of the Employee's long-term disability insurance,
hospitalization, surgical and major medical coverage for a period of six
(6) months following the date of termination;
6
<PAGE>
10. COVENANT NOT TO COMPETE. The Employee expressly recognizes the highly
competitive nature of the business conducted and planned to be conducted by the
Employer and its Affiliates. The Employee, therefore, covenants and agrees that
during the term of this Agreement and for a period of one (1) year thereafter,
he will not, within the United States or in any market in which the Employer is
conducting business:
(a) directly or indirectly engage in any Competitive Business, whether as
an employer, employee, officer, director, owner, partner, consultant or
other participant;
(b) assist others in engaging in any Competitive Business in the manner
described in above in clause (a); or
(c) induce employees of the Employer or its Affiliates to terminate their
employment with the Employer or Affiliates or engage in any Competitive
Business.
The Term "Competitive Business" means the provision of 38 GHz services.
Employee acknowledges that he has read and understood this Section 10; that he
understands that it may operate to restrain his ability to obtain employment
elsewhere after his termination by Employer; that this employment agreement is
adequate consideration for his agreeing to be bound by the covenant in this
Section 10; and that he agrees that breach of this Section by him would
irreparably damage Employer or its Affiliates, and he hereby consents to entry
of injunctive relief to enforce compliance with this Section 10, which relief
shall be in addition to all other forms of relief available at law or equity.
11. COVENANT NOT TO DISCLOSE OR USE. The Employee covenants and agrees
that he will not disclose, at any time during or after the Employment Period, to
any person or entity except as required by law, any secret or confidential
information concerning the business, clients or affairs of the Employer or its
Affiliates other than in furtherance of his work for the Employer or Affiliates.
The Employee also covenants and agrees that he will not, at any time during or
after the Employment Period, use for his own account or profit any secret or
confidential information concerning the business, clients or affairs of the
Employer or its Affiliates. For purposes of this Section, the term "secret or
confidential information" shall include, but not be limited to, information
concerning any inventions, processes, operations, administrative procedures,
databases, programs, systems, flow charts, software, firmware or equipment used
in the Employer's or the Affiliates' business, customers lists, customer
information, or trade secrets. Employee acknowledges that he has read and
understood this Section 11; that he understands that it may operate to restrain
his ability to obtain employment elsewhere after his termination by Employer;
that this employment agreement is adequate consideration for his agreeing to be
bound by the covenant in this Section 11; and that he
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agrees that breach of this Section by him would irreparably damage Employer
or its Affiliates, and he hereby consents to entry of injunctive relief to
enforce compliance with this Section 11, which relief shall be in addition to
all other forms of relief available at law or equity.
12. COVENANT NOT TO SOLICIT. The Employee expressly recognizes that the
Employer's or Affiliates' customers and employees are important and critical
aspects of their ability to operate profitably. The Employee, therefore,
covenants and agrees that during the term of this Agreement and for a period of
one (1) year thereafter, he will not solicit, or cause or assist in any way in
causing another person or entity to solicit, the then-existing customers or
employees of the Employer or its Affiliates to become customers or employees of
any other entity in a Competitive Business. For purposes of this Section, the
term "Competitive Business" means the provision of 38 GHz services. Employee
acknowledges that he has read and understood this Section 12; that he
understands that it may operate to restrain his ability to obtain employment
elsewhere after his termination by the Employer; that this employment agreement
is adequate consideration for his agreeing to be bound by the covenant in this
Section 12; and that he agrees that breach of this Section by him would
irreparably damage the Employer or its Affiliates, and he hereby consents to
entry of injunctive relief to enforce compliance with this Section 12, which
relief shall be in addition to all other forms of relief available at law or
equity.
13. SEVERABILITY. Wherever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but, if any provision hereof shall be prohibited by or held
invalid or unenforceable under any such law, such provision shall be ineffective
to the extent of such prohibition, invalidity or unenforceability, without
invalidating or nullifying the remainder of such provision or any other
provision of this Agreement. The parties further agree to substitute a
provision that effects the intent of the invalidated provision as nearly as
possible.
14. BINDING EFFECT; ASSIGNMENT. This Agreement is personal in its nature,
and neither the Agreement nor any rights or obligations thereunder may be
assigned or transferred without the written consent of the parties hereto;
PROVIDED, HOWEVER, that the provisions hereof shall inure to the benefit of, and
be binding upon, each successor of the Employer, whether by merger,
consolidation, transfer of all or substantially all assets, or otherwise.
15. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall, when executed, be deemed to be an original,
but all of which together shall constitute one and the same instrument.
16. ENFORCEMENT. The parties desire that the provisions of this Agreement
shall be enforced to the fullest extent permissible under the laws and public
policies applied to the jurisdiction whose laws govern this Agreement.
Accordingly, to the extent that a restriction contained in this Agreement is
more restrictive than permitted by the
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laws of any jurisdiction where this Agreement may be subject to review and
interpretation, the terms of such restriction, for the purpose only of the
operation of such restriction in such jurisdiction, shall be the maximum
restriction allowed by the laws of such jurisdiction and such restriction
shall be deemed to have been revised accordingly herein.
17. REMEDIES. The Employee acknowledges that the provisions of this
Agreement are of a special and unique nature, the loss of which cannot be
accurately compensated for in damages by an action at law, and in the event of a
breach of Section 10, 11, or 12, the Employer shall be entitled to an injunction
restraining him from such breach, in addition to any other remedies available to
the Employer.
18. GOVERNING LAW. The parties agree that this Agreement shall be
interpreted and construed both as to performance and validity in accordance with
and governed by the laws of the State of Washington even if its choice of law
provisions are in conflict with this requirement.
19. WAIVER OF BREACH. The waiver by either part of a breach of any
provision of this Agreement by the other part must be in writing and shall not
operate or be construed as a waiver of any subsequent breach by such other
party.
20. NOTICES. All notices and other communications which are required or
may be given under this Agreement shall be in writing and shall be delivered
personally or by overnight air courier or first class certified or registered
mail, return receipt requested and postage prepaid to the persons and addresses
listed below, or to such other address as the party to whom notice is to be
given has furnished to the other party. Each such notice shall, simultaneously
with its being delivered to the courier or messenger for delivery or placed in
the mail, be sent by facsimile or comparable electronic means. All notices and
other communications hereunder shall be deemed to have been given: (i) on the
date of delivery if personally delivered or, if not delivered on a business day,
the first business day thereafter; (ii) on the first business day after the date
sent if sent by overnight air courier; or (iii) on the fifth business day after
the date sent if sent by mail.
If to the Employer:
Tom Walker, Esq.
Advanced Radio Telecom Corp.
500 - 108th Ave. N.E., Suite 2600
Bellevue, WA 98004
If to the Employee:
Thomas A. Grina
307 Sugar Mill Road
Greer, South Carolina 29650
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21. ENTIRE AGREEMENT/MODIFICATION. This Agreement constitutes the entire
agreement between the parties hereto and supersedes all prior representations,
agreements, understandings and arrangements, oral or written, between the
parties hereto with respect to the subject matter hereof. This Agreement may
not be modified except by a writing that expressly refers to this Agreement and
is executed by all parties hereto.
22. HEADINGS. The section and sub-section headings contained herein are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement on the date
first above written.
Employee
/s/ Thomas A. Grina
______________________
Thomas A. Grina
Advanced Radio Telecom Corp.
By: /s/ Steven D. Comrie
_______________________
Steven D. Comrie
President & COO
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HARRIS CORPORATION
FARINON DIVISION
PURCHASE AGREEMENT
This Agreement is entered into this 26th day of April, 1996, by and
between Advanced Radio Telecom Corporation, a Delaware corporation with offices
located at 500 108th Avenue NE, Suite 2600, Bellevue, WA 98006 ("ART" or
"Customer"), and Harris Corporation, Farinon Division, a Delaware corporation,
with offices located at 330 Twin Dolphin Drive, Redwood Shores, CA 94065
("Harris").
Whereas, Customer desires to purchase microwave transmission equipment, software
and services ("Products") , and
Whereas, Harris is willing to sell such Products to Customer upon the terms and
conditions as set forth herein and the various annexes attached hereto and
incorporated into this document.
Now, Therefore, in consideration of the mutual
covenants set forth below, ART and Harris, intending to be legally bound,
hereby agree as follows:
1. EFFECTIVE DATE; RELATED PCS MARKETING AGREEMENT; FINANCING COMMITMENT.
The Effective Date of this Agreement shall be the date of execution by the
parties, provided, however, that the rights and obligations of the parties
hereunder shall not become effective unless and until the parties have executed
a definitive marketing agreement ("PCS Marketing Agreement") for 38 GHz services
as contemplated by Version 5 of a Letter of Intent executed by ART and Harris
and dated February 22, 1996.
2. SCOPE
Harris will furnish Products for Customer in accordance with the individual
Purchase Orders issued by Customer from time to time during the Term of this
Agreement based upon the prices provided in Annex A hereto. The Products will
be provided in conformity with the terms, conditions, specifications and other
requirements of this Agreement and each Purchase Order will be governed by the
terms and conditions stated herein.
3. PRICES/TAXES
All prices are exclusive of shipping and insurance charges which shall be billed
separately. All prices are exclusive of all sales, use, excise, and other taxes,
duties or charges. Unless evidence of tax exempt status is provided by
Customer, Customer shall pay, or upon receipt of invoice from Harris, shall
reimburse Harris for all such taxes or charges levied or imposed on Customer, or
required to be collected by Harris, resulting from this transaction or any part
thereof.
All prices are FOB Harris' Factory. Unless instructed otherwise, Harris will
arrange for insurance and standard commercial shipping, the costs of which will
be invoiced to the Customer.
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Responsibilities regarding the export of items delivered under this Agreement
are detailed in Articles 8. Prior to delivery, Harris reserves the right to
make substitutions, modifications and improvements to the equipment and/or
software ordered, provided that such substitutions, modifications or
improvements shall not materially affect performance in the application
originally agreed to with Customer.
4. PURCHASE FORECAST GOALS.
ART shall provide Harris with MicroStar and MicroStar Plus purchase forecasts,
which shall serve as a baseline to establish pricing levels outlined in Annex
A. ART's initial forecast is attached hereto as ANNEX B. Unless otherwise
agreed by the parties, future forecasts shall be provided by ART on a quarterly
basis.
5. PAYMENT/FINANCING
Payment terms shall be determined on a per order basis and are subject to credit
review by Harris.
Late payments shall result in the assessment of a late charge equal to one and
one-half (1 1/2%) percent per month on any outstanding balance, or the maximum
amount of interest chargeable by law, whichever is less.
Customer shall remain liable for all payments regardless of the method of
payment or financing of this Agreement, unless otherwise agreed to in writing by
Harris.
Customer's payment obligations are particular hereto, and Customer has no right
of set-off against other Purchase Orders or other transactions between the
parties.
6. WARRANTIES AND LICENSE
A) EQUIPMENT WARRANTY
Refer to Annex C for terms and conditions related to customer service and
equipment warranty.
Harris warrants that each product of its own manufacture shall, at the time
of delivery and for a period of twenty-four (24) months thereafter, be free
from defects in materials and workmanship and to conform to Harris' published
specifications. Such warranty shall not include any consumable components to
which a specific manufacturer's guarantee applies. If any Harris product
shall prove to be defective in materials or workmanship under normal intended
usage, operation and maintenance during the applicable warranty period as
determined by Harris after examination of the product claimed to be
defective, then Harris shall repair, replace or refund the purchase price
of, at Harris' sole option, such defective product, in accordance with
procedures specified below, at its own expense, exclusive, however, of the
cost of labor by the Customer's own employees, agents or contractors in
identifying, removing or replacing the defective part(s) of the product.
Replacement products may be new, refurbished or remanufactured. Returned
replaced products shall become the property of Harris. Replacement products
shall be warranted for the balance of the unexpired portion of the returned
products warranty.
In composite equipment assemblies and systems, which include equipment of such
other than Harris manufacture, Harris' responsibility under this warranty
provision for the non-Harris manufactured portion of the equipment shall be
limited to the other equipment manufacturer's standard warranty. Provided,
however, that if the other manufacturer's standard warranty period
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<PAGE>
is of a shorter duration than the warranty period applicable to Harris'
manufactured equipment, then Harris shall extend additional coverage to such
other equipment manufacturer's warranty equal to the differential in time
between the expiration of the other manufacturer's warranty and the duration
of Harris' manufactured equipment warranty applicable to such order. Harris
shall repair, replace or refund the purchase price of, at Harris'
sole option, such other manufacturer's defective part(s) within sixty (60) days
after receipt of such parts by Harris in accordance with the below specified
procedures, at Harris' own expense, exclusive, however, of cost of labor by the
Customer's own employees, agents or contractors in identifying, removing or
replacing the defective part(s) of the product.
A written authorization to return products to Harris under this warranty must
be obtained from a Harris representative prior to making shipment to Harris'
plant, and all returns shall be shipped freight prepaid. Collect shipments
will not be accepted, but Harris will prepay return freight charges on
repaired and replaced products found to be actually defective.
The warranty provided herein does not cover damage, defects, malfunctions or
service failures caused by:
(1) Customer's failure to follow Harris' environmental, installation, operation
or maintenance specifications or instructions;
(2) Modifications, alterations or repairs made other than by Harris;
(3) Customer's mishandling, abuse, misuse, negligence, or improper storage,
servicing or operation of the Equipment (including without limitation use with
incompatible equipment); or
(4) Power failures, surges, fire, flood, accident, actions of third parties or
other like events outside Harris' control. Repairs necessitated during the
warranty period by any of the foregoing causes may be made by Harris, and
the Customer shall pay Harris' standard charges for time and materials,
together with all shipping and handling charges arising from such repairs.
B) SOFTWARE WARRANTY AND LICENSE
(1) LICENSE. Harris grants to Customer a non-exclusive, non-transferable
license to use the software and related documentation ("Software") provided
hereunder. The Software may include software and documentation that are owned
by third parties and distributed by Harris under license from the owner. If
Customer is a reseller of the software purchased under this agreement, this
license is assignable only to Customer's customer, subject to Harris' written
authorization and only if the end customer is bound in writing to the Terms and
Conditions of this license. Customer shall retain a copy of such end Customer
Agreement for Harris' inspection.
(2) COPIES. Customer shall not make any copies of the Software, except for
a single archival copy solely for internal purposes.
(3) CONFIDENTIALITY. Customer shall maintain the confidentiality of the
Software and shall not sub-license, sell, rent, disclose, make available, or
otherwise communicate the Software to any other person, or use the Software
except as expressly authorized in writing by Harris.
(4) TITLE. The Software and all copies thereof will at all times remain
the sole and exclusive property of Harris or its licensor, as applicable, and
Customer shall obtain no title to the Software.
(5) COPYRIGHT. Customer shall reproduce all copyright notices and any
other
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proprietary legends on any copy of the Software made by Customer.
(6) ALTERATION. Customer shall not modify, disassemble, or decompile the
Software.
(7) MEDIA. If Customer sells or otherwise disposes of Customer owned
media on which the software is fixed, such media must be erased before any sale
or disposal.
(8) WARRANTY. Harris does not warrant that the operation of the Software
will be error free. Harris will use reasonable efforts to correct any defects
reported to Harris in writing within twenty-four (24) months of the date of
shipment, exclusive of defects caused by physical defects in Software disks due
to mishandling, operator error or interfacing other systems not approved by
Harris.
c) LIMITATIONS
LIABILITY OF HARRIS FOR BREACH OF ANY AND ALL WARRANTIES HEREUNDER IS EXPRESSLY
LIMITED TO THE REPAIR, REPLACEMENT OR REFUND OF THE PURCHASE PRICE OF DEFECTIVE
PRODUCTS AS SET FORTH IN THIS SECTION, AND IN NO EVENT SHALL HARRIS BE LIABLE
FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES BY REASON OF ANY BREACH OF
WARRANTY OR DEFECT IN MATERIALS OR WORKMANSHIP. HARRIS SHALL NOT BE
RESPONSIBLE FOR REPAIR, REPLACEMENT REFUND OF PURCHASE PRICE OF PRODUCTS WHICH
HAVE BEEN SUBJECTED TO NEGLECT, ACCIDENT OR IMPROPER USE, OR WHICH HAVE BEEN
ALTERED BY OTHER THAN AUTHORIZED HARRIS PERSONNEL. THE FOREGOING WARRANTIES ARE
IN LIEU OF ALL OTHER WARRANTIES WHETHER ORAL, WRITTEN, EXPRESSED, IMPLIED, OR
STATUTORY. IN PARTICULAR, THE IMPLIED WARRANTIES OF FITNESS FOR PARTICULAR
PURPOSE AND MERCHANTABILITY ARE HEREBY DISCLAIMED AND SHALL NOT BE APPLICABLE
EITHER FROM HARRIS OR ANY OTHER EQUIPMENT OR SOFTWARE MANUFACTURER. HARRIS'
WARRANTY OBLIGATIONS AND CUSTOMER'S REMEDIES THEREUNDER ARE SOLELY AND
EXCLUSIVELY AS STATED HEREIN. IN NO CASE SHALL HARRIS BE LIABLE FOR INDIRECT
KINDS OF DAMAGES, INCLUDING BUT NOT LIMITED TO SPECIAL, INCIDENTAL, AND
CONSEQUENTIAL DAMAGES, OR LOSS OF CAPITAL, REVENUE, OR PROFITS. IN NO EVENT
SHALL HARRIS' LIABILITY TO CUSTOMER, OR ANY PARTY CLAIMING THROUGH CUSTOMER, BE
IN EXCESS OF THE ACTUAL SALES PRICE PAID BY CUSTOMER FOR ANY ITEMS SUPPLIED
HEREUNDER.
7. TITLE AND RISK OF LOSS
Risk of loss for all Equipment sold under this Agreement shall pass to Customer
at time of delivery as defined herein. Customer grants to Harris a security
interest in the Equipment covered by this Agreement in the amount of the unpaid
balance of the purchase price until payment in full of the purchase price at
which time title in the Equipment will pass in accordance with the terms and
conditions set forth herein. A financing statement may be filed with the
appropriate public authorities and Customer agrees to sign any such financing
statements or other documents tendered to it by Harris from time to time to
protect Harris' security interest.
8. EXPORT AND RE-EXPORT RESTRICTIONS
Performance and delivery of the equipment, documents, services and Software sold
or delivered hereunder are subject to export control laws and regulations of the
United States and/or Canada, as applicable, and conditioned upon receipt of
required U.S. and/or Canadian Government licenses and approvals by Harris.
Customers shall not export products or technical data delivered hereunder from
the United States or Canada without complying with regulations of the Bureau of
Export Administration of the United States Department of Commerce and/or the
Export Controls Division of the Canadian Department of Foreign Affairs and
International Trade, as applicable. Customers shall not re-export the products
and technical data delivered hereunder from the country of delivery or to any
facility engaged in the design, development, stockpiling,
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<PAGE>
manufacturing or use of missile, chemical or biological weapons without fully
complying with the regulations of the above United States and/or Canadian
government agencies.
9. EXCUSABLE DELAY
Harris shall be excused from performance under the Purchase Order and not be
liable to Customer for delay in performance attributable in whole or in part to
any cause beyond its reasonable control, including but not limited to, actions
or inactions of government whether in its sovereign or contractual capacity,
judicial action, war, civil disturbance, insurrection, sabotage, act of a public
enemy, labor difficulties or disputes, failure or delay in delivery by Harris'
suppliers or subcontractors, transportation difficulties, shortage of energy,
materials, labor or equipment, accident, fire, flood, storm or other act of God,
or Customer's fault or negligence.
In the event of an excusable delay, Harris shall make reasonable efforts to
notify Customer of the nature and extent of such a delay and Harris (i) will be
entitled to a schedule extension on at least a day-for-day basis, (ii) in the
event of Customer's fault or negligence, will be also entitled to an equitable
adjustment in the price of this contract. Notwithstanding any other term
contained herein, in the event an excusable delay occurs and continues for a
period of ninety (90) days or longer, ART shall have the right to immediately
terminate this Agreement or any Purchase Order given pursuant to the Agreement
without further liability to Harris.
10. TERM AND TERMINATION
This Agreement shall continue in effect for one (1) year from the date hereof at
which time it will terminate, unless terminated earlier pursuant to this Article
12. Renewal is subject to mutual written agreement signed by both parties.
Cancellation of any Purchase Order hereunder will be accepted only upon the
specific written approval of Harris and is subject to standard Harris
cancellation charges of 25 % if cancellations is received 30 days after receipt
of order from ART, provided however, that ART may cancel any Purchase Order
without the approval of Harris and without incurring cancellation charges if the
delivery of Products under such Purchase Order is delayed, or expected to be
delayed, by ninety (90) days or more from the original delivery date.
In the event that Customer shall become liquidated, dissolved, bankrupt or
insolvent, or shall take any action to be so declared, or shall suffer any such
action brought by another, Harris shall have the right to terminate this
Agreement and all Purchase Orders immediately and may stop shipment of any
Products in transit.
Either party may terminate this Agreement immediately upon notice in writing to
the other party:
a) if the other party shall breach any provision of this Agreement in any
material respect and such breach remains unremedied thirty (30) days after
notice thereof from the non-breaching party;
b) in the event that the other party breaches any material term, condition
or covenant of the PCS Marketing Agreement referenced in Section 1 above and the
other party fails to cure any default or breach within thirty (30) days of
receipt of written notice of such breach from the non-breaching party; or
c) in the event that the other party has caused the PCS Marketing
Agreement referenced in Section 1 above to be terminated.
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The right of termination provided herein is absolute and neither party
shall be liable to the other for damages or otherwise by reason of such
termination.
11. INFRINGEMENT INDEMNIFICATION
Customer agrees to promptly notify Harris in writing of any notice, suit, or any
action against Customer based upon a claim that the Product infringes a U.S.
patent, copyright, trademark, or trade secret of a third party. Harris will
defend at its expense any such action, except as excluded below, and shall have
full control of such defense including all appeals and negotiations, and will
pay all settlement costs, or damages awarded against Customer, but Harris shall
not be liable to Customer for special, incidental, indirect or consequential
damages. In the event of such notice, suit or action, Harris will at its
expense procure for the Customer the right to continue using the product, or
modify the Product to render such non-infringing, or accept return and replace
such with substantially equivalent non-infringing equipment, or accept return of
the Product and refund or credit to Customer the amount of the original purchase
price, less a reasonable charge for depreciation and damage.
The preceding agreements by Harris in this section shall not apply to any
Product or portion thereof manufactured to specifications furnished by or on
behalf of Customer, or to any infringement arising out of the use of the Product
in combination with other equipment or software not furnished by Harris, or to
use in a manner not normally intended, or to any patent, copyright, trademark or
trade secret in which Customer, or subsidiary or affiliate thereof, has a direct
or indirect interest, or if customer has not provided Harris with prompt notice,
authority, information and assistance necessary to defend the action. The
foregoing states the entire liability of Harris for patent, copyright, trademark
and trade secret infringements by the Product or portion thereof.
The rights and obligations of the parties under this Section shall survive
termination of this Agreement.
12. TECHNICAL DATA AND INVENTION
Unless specifically agreed to by Harris and identified and priced in this
contract as a separate item or items to be delivered by Harris (and in that
event, except to the extent so identified and priced), the sale of goods
hereunder confers on Customer no right in, license under, access to, or
entitlement of any kind to any of Harris' technical data including but not
limited to design, process technology, software and drawings, or to Harris'
inventions (whether or not patentable) irrespective of whether any such
technical data or invention or any portion thereof arose out of work performed
under or in the course of this contract, and irrespective of whether Customer
has paid or is obligated to pay Harris for any part of the design and/or
development of the goods.
Harris shall not be obliged to safeguard or hold confidential any data whether
technical or otherwise, furnished by Customer for Harris' performance of this
contract unless (and only to the extent that) Customer and Harris have entered
into a separate written confidential agreement.
Customer shall not violate Harris' copyright of documents or software or
disclose Harris' confidential or proprietary data to others without Harris
written permission.
13. ASSIGNMENT
Neither party may assign this agreement in whole or in part without the prior
written consent signed by an officer of the other party. Such consent shall not
be unreasonably withheld.
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14. GOVERNING LAW, VENUE, AND JURISDICTION
This Agreement will be governed by and construed in accordance with the laws of
the State of California. The parties agree that any action to enforce any
provision of this Agreement or arising out of or based upon this Agreement or
the business relationship between Harris and Customer will be brought in a local
or Federal court of competent jurisdiction in the State of California.
15. ENFORCEABILITY
If any provision of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity, legality or enforceability of the remaining
provisions shall in no way be affected or impaired.
16. NOTICES
All notices shall be in writing and shall be delivered or sent by registered,
certified or express mail, return receipt requested, to the addresses indicated
in this Agreement or to such other addresses as the parties shall specify by
giving notice pursuant hereto. A copy of all notices shall be sent to Harris
Corporation, Farinon Division, 330 Twin Dolphin Drive, Redwood Shores, CA 94065,
Attention: Manager of Contracts, and to W. Theodore Pierson, Jr. Executive Vice
President and General Counsel, 1667 K Street, NW, Suite 801 Washington, DC
20006.
17. INDEMNIFICATION
a) INDEMNIFICATION OF ART BY HARRIS
Harris shall indemnify ART against, and hold ART harmless from all liabilities,
demands, claims, damages, losses, demands, costs, judgments and expenses
(including reasonable attorneys' fees) arising out of or in connection with
arising out of or relating to the installation, operation, or use of the
Products for personal injury or damage to tangible property, caused by the
negligent acts or omissions of Harris or Harris's employees, agents or invitees.
In no event shall ART's employees, agents or invitees be deemed to be employees,
agents or invitees of Harris.
b) INDEMNIFICATION OF HARRIS BY ART
ART shall indemnify Harris against, and hold Harris harmless from all
liabilities, demands, claims, damages, losses, demands, costs, judgments and
expenses (including reasonable attorneys' fees) to the extent they arise out of
or are in connection with or relate to the installation, operation, or use of
the Products for personal injury or damage to tangible property, caused by the
negligent acts or omissions of ART or ART's employees, agents or invitees. In
no event shall Harris's employees, agents or invitees be deemed to be employees,
agents or invitees of ART.
c) DUTY TO NOTIFY AND ASSIST
If any claim arises to which the provisions of this Section may be applicable,
the party against whom such claim is made shall notify the other party
immediately upon learning of the claim. If it appears that the other party may
be obligated to provide indemnification as a result of such claim, the other
party, in its discretion, may settle or compromise the claim
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<PAGE>
or retain counsel of its own choosing and control and prosecute the defense
against such claim. In no event shall the party against whom the claim is
asserted have the right to pay, settle or compromise such claim without the
prior written consent of the party who may be obligated to indemnify under
this Section and the parties hereto agree that they will not unreasonably
withhold consent to such consent to payment, settlement or compromise. The
party against whom the claim is asserted shall provide the other party such
assistance as may be reasonable in the defense and disposition of such claim.
The rights and obligations of the parties under this Section shall survive
termination of this Agreement.
18. LIMITATION OF LIABILITY
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS CONTRACT, UNDER NO CIRCUMSTANCES
SHALL HARRIS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY CLAIMING UNDER CUSTOMER
FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, AS A RESULT OF A
BREACH OF ANY PROVISION OF THIS CONTRACT.
19. ENTIRE AGREEMENT
This Agreement supersedes all previous communications, transactions, and
understandings, whether oral, or written, and constitutes the sole and entire
agreement between the parties pertaining to the subject matter hereof. No
modification or deletion of, or addition to these terms shall be binding on
either party unless made in writing and signed by a duly authorized
representative of both parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized representatives as of the day and year first stated
above.
ADVANCED RADIO TELECOM CORPORATION
BY: /s/ Charles H. Menatti
______________________________
NAME: /s/ Charles Menatti
___________________________
TITLE: V.P. Bus. Development
___________________________
HARRIS CORPORATION
FARINON DIVISION
BY: /s/ J. Michael Slattery
______________________________
NAME: /s/ J. Michael Slattery
___________________________
TITLE: Division Controller
___________________________
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[Annexes A, B and C omitted due to confidential treatement]
<PAGE>
PCS MARKETING AGREEMENT
THIS PCS MARKETING AGREEMENT ("Agreement") is entered into as of the 26th day
of April, 1996 by and between Advanced Radio Telecom Corporation, a Delaware
corporation with offices located at 500 108th Avenue NE, Suite 2600, Bellevue,
WA 98006 ("ART"), and Harris Corporation, Farinon Division, a Delaware
corporation, with offices located at 330 Twin Dolphin Drive, Redwood Shores, CA
94065 ("Harris").
WHEREAS ART and Harris wish to develop new business opportunities in the
emerging Personal Communications Services ("PCS") marketplace for the provision
of both 38 GHz services and equipment; and
WHEREAS ART has acquired authorizations at 38 GHz in certain markets in the
United States; and
WHEREAS Harris desires to include ART's 38 GHz services Right-of -Use of its
38 Ghz frequencies and associated coordination services as well as installation
and network monitoring, field services in conjunction with its sales of 38 GHz
equipment to the PCS marketplace;
WHEREAS Harris desires, as a secondary approach to direct sales of it's
microwave radio , to promote ART's leased services to the PCS market.
NOW THEREFORE, in consideration of the premises and the mutual representations,
warranties, covenants and agreements hereinafter set forth, ART and Harris,
intending to be legally bound, hereby agree as follows:
1.0 EFFECTIVE DATE; RELATED SUPPLY AGREEMENT. The Effective Date of this
Agreement shall be the date of execution by the parties, provided, however, that
the rights and obligations of the parties hereunder shall not become effective
unless and until the parties have executed a definitive supply agreement
("Purchase Agreement") for 38 GHz equipment as contemplated by Version 2 of a
Letter of Intent executed by ART and Harris and dated February 22, 1996.
2.0 TERM OF AGREEMENT, RENEWAL AND TERMINATION. Subject to the provisions of
Section 1.0 hereof, the term of this Agreement begins on the Effective Date and
shall continue in effect for one (1) year from the Effective Date ("Initial
Term"). The Agreement shall automatically renew after the Initial Term for
successive periods of one (1) year (each successive period a "Renewal Term")
unless one of the parties gives written notice not to renew no later than sixty
(60) days prior to the scheduled date of expiration of the Initial Term or any
subsequent Renewal Term. The parties acknowledge and agree that failure of
either party to give notice of termination shall give rise to a conclusive
presumption that the Agreement is to be renewed pursuant to this Section 2.0. A
party may terminate this Agreement:
(a) upon notice in writing delivered to the other party, in the event
that the other party breaches any material term, condition or covenant hereof if
the other party fails to cure any default or breach within thirty (30) days of
receipt of written notice of such breach from the non-breaching party;
1
<PAGE>
(b) upon notice in writing delivered to the other party, in the event that
the other party breaches any material term, condition or covenant of the
Purchase Agreement referenced in Section 1.0 above and the other party fails to
cure any default or breach within thirty (30) days of receipt of written notice
of such breach from the non-breaching party; or
(c) upon notice in writing delivered to the other party in the event
that the other party has caused the Purchase Agreement referenced in Section 1.0
above to be terminated; or
(d) at any time by providing ninety (90) days written notice to the other
party.
2.1 PROVISIONS OF TERMINATION FOR OPERATING FREQUENCIES: In the event of
termination of this agreement under the terms and conditions outlined in section
2.0, all Right of Use of ART's frequencies purchased from Harris prior the
effective date of the termination shall remain in effect for the time period
agreed in section 3.0. Harris agrees, for the remaining period that the Right of
Use is in effect, to pay to ART the annual coordination fees specified in
section 5.2.
3.0 RIGHTS GRANTED TO HARRIS. During the Initial Term and any Renewal Term
of this Agreement, and subject to the terms and conditions of this Agreement,
ART hereby grants to Harris a non-transferable non-exclusive right to use
("Right of Use") 38 GHz authorizations which ART owns or otherwise controls for
a period not exceeding 10 years. (as shown in Exhibit A attached hereto). Not
withstanding the forgoing, Harris may transfers to the PCS End User the rights
contained in this paragraph, provided that the PCS End User agrees in writing to
the terms and conditions of this agreement that are applicable to it. The Right
of Use granted to Harris hereunder shall be limited to Harris's 38 GHz equipment
sales to the PCS market. Harris covenants and agrees that, during the term of
this Agreement, it will not offer or promote alternate 38 GHz T1 leased services
from any other provider of 38 GHz service to any PCS accounts identified in
Exhibit B hereto. In consideration for the grant of the Right of Use, Harris
shall pay ART the fees identified in Section 5.1 hereof.
3.1 COVENANT WITH RESPECT TO RIGHT OF USE. ART covenants and agrees to
take all necessary action to comply with FCC rules and regulations governing the
Right of Use granted to Harris hereunder. ART shall be responsible for
resolving all regulatory and channel conflict issues concerning the Right of
Use.
4.0 SERVICES PROVIDED BY ART.
4.1 FREQUENCY COORDINATION. In addition to the Rights of Use granted
to Harris under Section 3.0 hereof, ART shall also provide Harris with channel
conflict assessment services ("Frequency Coordination") for links sold by Harris
to the PCS market. Harris shall notify ART at least 15 working days prior to
each shipment made under this agreement, and ART shall be solely responsible for
Frequency Coordination and provide to Harris the frequency assignment within 5
business days of Harris notification to ART, including the assignment of the
frequency to be used by the end-user and avoidance of channel conflicts. In
consideration for these services, Harris shall pay ART the fees identified in
Section 5.2 hereof.
4.2 INSTALLATION AND NETWORKING MONITORING, FIELD SERVICE/RESTORAL In
addition to the Rights of Use granted to Harris under Section 3.0 hereof, ART
shall also provide Harris installation and network monitoring, field
service/restoral services as defined in EXHIBIT E and EXHIBIT F, respectively
hereto. In connection with the provision of such network monitoring, field
service/restoral and installation services, Harris shall provide ART with
installation and workmanship standards training, as identified in EXHIBIT D
hereto, at no charge to ART.
2
<PAGE>
4.3 LIMITED WARRANTY: ART warrants that the installation, Network
Monitoring and Field Service/Restoral services to be provided by ART pursuant
to this Agreement will be performed in a good and substantial workmanlike
manner in accordance with the performance requirements hereunder, generally
prescribed industry standards and, when applicable, in accordance with
manufacturers instructions and specifications. The warranty granted under
Section 4.3 with respect to ART's Installation services shall be for a period
of one (1) year from the date of Installation of any equipment.
4.4 LIMITATION OF LIABILITY: OTHER THAN AS SET FORTH IN SECTION 4.3
HEREIN, ART MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THIS AGREEMENT
WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR CONFORMITY TO ANY
REPRESENTATION OR DESCRIPTION. EXCEPT FOR CREDITS FOR OUTAGES AS DESCRIBED
IN SECTION 11, ART SHALL NOT BE LIABLE FOR ANY CLAIM OF ANY KIND, INCLUDING,
BUT NOT LIMITED TO, ACTIONS, DAMAGES, DEMANDS, JUDGMENTS, LOSSES, COSTS,
EXPENSES, LIABILITIES, AND LOSS OF MONIES ARISING OUT OF THIS AGREEMENT OR
THE PERFORMANCE THEREOF, WHETHER BASED ON CONTRACT, WARRANTY, TORT INCLUDING
NEGLIGENCE, MISTAKE, ERROR, MISCONDUCT, INTERRUPTION, DELAY, DEFECT OR
OTHERWISE OF ART, ITS EMPLOYEES, AGENTS, CONTRACTORS, OR SUB-CONTRACTORS, OR
AFFILIATED COMPANIES, INCLUDING BUT NOT LIMITED TO SPECIAL, INCIDENTAL,
CONSEQUENTIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, LOSS OF REVENUE OR
PROFIT, LOSS OF USE OF ANY PROPERTY, COST OF SUBSTITUTE PERFORMANCE,
EQUIPMENT OR SERVICES, COST OF CAPITAL DOWNTIME COSTS AND CLAIMS OF THE
CUSTOMER FOR DAMAGES.
4.5 EFFECT OF TARIFFS: SERVICES SHALL BE PROVIDED BY ART TO HARRIS
PURSUANT TO THE TERMS AND CONDITIONS SET FORTH HEREIN, AND IN THE APPLICABLE
TARIFFS ON FILE WITH THE FEDERAL COMMUNICATIONS COMMISSION AND RELEVANT STATE
UTILITY COMMISSIONS. THE TERMS AND CONDITIONS OF THOSE TARIFFS, AS AMENDED FROM
TIME TO TIME, CONTROL THE PARTIES' OBLIGATIONS NOTWITHSTANDING ANYTHING TO THE
CONTRARY HEREIN.
3
[Section 5 omitted due to confidential treatement]
<PAGE>
6.0 BETA TRIALS. ART shall provide Harris Rights of Use and Frequency
Coordination Services for a period of sixty (60) days without any obligation of
Harris to pay a Rights of Use fee for the frequency channels solely for the
purpose of conducting two (2) BETA trials, with each trial consisting of one
Harris client and one link . The specific location of these trials shall be
subject to the mutual agreement of ART and Harris. All costs associated with
installation, including, but not limited to, site specific equipment and
materials and field service during the BETA trial period shall be borne by
Harris. ART shall bear its own personnel and travel-related costs associated
with the site survey and installation in connection with the two BETA trials.
7.0 SALES FORECAST: Harris shall provide ART with 38 GHz radio link sales
forecasts, which shall serve as a basis to establish pricing levels outlined in
section 5.1. Harris' initial forecast is attached hereto as EXHIBIT C. Unless
otherwise agreed by the parties, future forecasts shall be provided by Harris
on a quarterly basis.
8.0 RELATIONSHIP OF THE PARTIES; NO AGENCY OR PARTNERSHIP. Each party is an
independent business entity and will perform its obligations hereunder as an
independent contractor. It is agreed and understood that neither party is an
agent, employee or legal representative of the other, and has no authority to
bind the other in any way. Nothing in this Agreement shall be deemed to
constitute ART and Harris as partners, joint ventures, or otherwise associated
in or with the business of the other, and neither party shall be liable for the
debts, accounts, obligations or other liabilities of the other party, its agents
or employees. Neither party is authorized to incur debts or other obligations
of any kind on the part of or as agent for the other except as may be
specifically authorized herein.
9.0 INTELLECTUAL PROPERTY. Except as may be expressly authorized by this
Agreement or by separate written agreement between the parties, nothing herein
shall grant either party a license to use the trademarks, service marks or
trade names of the other party, its affiliates and/or suppliers or licensers.
All intellectual property shall remain the exclusive property of the party
owning or controlling such intellectual property.
4
<PAGE>
10.0 CONFIDENTIALITY AND NON-DISCLOSURE. In connection with this Agreement,
each party may disclose or otherwise make available certain data or information
to the other party, which data or information the disclosing party considers to
be confidential and proprietary. As used herein, "Confidential Information,"
means any non-public information, including customer and vendor lists, business
plans and proposals, financial information, marketing information, problem
solving methods, implementation steps, know-how, technology, trade secrets and
drawings and renderings related to each party's ongoing and proposed businesses,
products and services (including installation and training services) which is
being provided or which has been provided to the receiving party by the
disclosing party, or which is obtained by the receiving party from its meetings
and contacts with the disclosing party, or any information derived by receiving
party from information so provided or obtained. Confidential Information
includes all written or electronically recorded materials identified and marked
as confidential or proprietary or which on their face appear to be confidential
or proprietary, and oral disclosures of Confidential Information by the
disclosing party which are identified as confidential or proprietary at the time
of such oral disclosure. Confidential Information does not include any of the
following: (a) information that is in or becomes part of the public domain
without violation of this Agreement by the receiving party; (b) information
that was known to or in the possession of the receiving party on a non-
confidential basis prior to the disclosure thereof to the receiving party by the
disclosing party; (c) information that was developed independently by the
receiving party's employees, which employees have had no access to the
Confidential Information; (d) information that is disclosed to the receiving
party by a third party under no obligation of confidentiality to the disclosing
party and without violation of this Agreement by the receiving party; or (e) is
authorized by the disclosing party in writing for disclosure or release by the
receiving party. The parties agree: (a) to treat and keep as confidential and
proprietary all Confidential Information disclosed by the other party; (b) to
advise each employee to whom any Confidential Information is to be made
available of the confidential nature of such Confidential Information and of the
terms of this Agreement; (c) to promptly return to the disclosing party (or its
designees), upon the disclosing party's request, all Confidential Information
and all copies thereof. The receiving party shall have discharged its obligation
to safeguard the Confidential Information received hereunder only if it has
exercised the same degree of care as it uses to protect its own proprietary
information of like importance.
11.0 INDEMNIFICATION.
11.1 INDEMNIFICATION OF ART BY HARRIS. Harris shall indemnify ART
against, and hold ART harmless from all liabilities, demands, claims, damages,
losses, demands, costs, judgments and expenses (including reasonable attorneys'
fees) arising out of or in connection with this Agreement for personal injury or
damage to tangible property, or in connection with the use or exercise by Harris
of the Right of Use, caused by the negligent acts or willful omissions of Harris
or Harris's employees, agents or invitees. In no event shall ART's employees,
agents or invitees be deemed to be employees, agents or invitees of Harris.
11.2 INDEMNIFICATION OF HARRIS BY ART. ART shall indemnify Harris
against, and hold Harris harmless from all liabilities, demands, claims,
damages, losses, demands, costs, judgments and expenses (including reasonable
attorneys' fees) arising out of or in connection with this Agreement for
personal injury or damage to tangible property, or in connection with the use or
exercise by Harris of the Right of Use, caused by the negligent acts or willful
omissions of ART or ART's employees, agents or invitees. In no event shall
Harris's employees, agents or invitees be deemed to be employees, agents or
invitees of ART.
5
<PAGE>
11.3 DUTY TO NOTIFY AND ASSIST. If any claim arises to which the
provisions of this Section may be applicable, the party against whom such claim
is made shall notify the other party immediately upon learning of the claim. If
it appears that the other party may be obligated to provide indemnification as a
result of such claim, the other party, in its discretion, may settle or
compromise the claim or retain counsel of its own choosing and control and
prosecute the defense against such claim. In no event shall the party against
whom the claim is asserted have the right to pay, settle or compromise such
claim without the prior written consent of the party who may be obligated to
indemnify under this Section, and the parties hereto agree that they will not
unreasonably withhold consent to such consent to payment, settlement or
compromise. The party against whom the claim is asserted shall provide the
other party such assistance as may be reasonable in the defense and disposition
of such claim.
NOTICES. All notices, demands or other communications which are required or may
be given under this Agreement shall be given or made in writing, and shall be
delivered personally or by overnight air courier or first class certified or
registered mail, return receipt requested and postage prepaid to the persons and
addresses listed below, or to such other persons and/or address as the party to
whom notice is to be given has furnished to the other party. Each such notice,
demand or other communication shall, simultaneously with its being delivered to
the courier or messenger for delivery or placed in the mail, be sent by
facsimile or comparable electronic means. All notices and other communications
hereunder shall be deemed to have been given: (a) on the date of delivery if
personally delivered or, if not delivered on a business day, the first business
day thereafter; (b) on the first business day after the date sent if sent by
overnight air courier; or (c) on the fifth business day after the date sent if
sent by mail.
If to ART: If to Harris:
Steven D. Comrie Don Fenn
President Contracts Manager
500-108th Ave NE, Ste 2600 330 Twin Dolphin Drive
Bellevue, WA 98004 Redwood Shores CA, 94065
206-688-8700 415-594-3000
Copy to:
W. Theodore Pierson, Jr.
Executive Vice President and General Counsel
1667 K Street, NW, Ste 801
Washington, DC 20006
202-466-5278
13.0 SURVIVAL. It is expressly agreed that the provisions of Sections 5, 10,
11, 12, 17 and 18 shall survive any termination of this Agreement and shall be
and remain valid, binding and enforceable after any such termination according
to their terms.
14.0 ASSIGNMENT; BINDING EFFECT. Neither party shall assign or transfer any
of its rights or obligations hereunder without the prior written consent of the
other party hereto. Any attempted assignment without written consent will be
void. This Agreement shall inure to the benefit of and shall be binding upon
the successors and assigns of the parties.
15.0 SEVERABILITY. If any portion of this Agreement is held to be invalid by
a court of competent jurisdiction, that provision shall become ineffective and
unenforceable. The parties agree that such invalidity shall not affect the
validity of the remaining portions of this Agreement, and further agree to
substitute for the invalid provision a valid provision that most closely
approximates the effect and intent of the invalid provision.
6
<PAGE>
16.0 FORCE MAJEURE: NEITHER PARTY SHALL BE LIABLE FOR DELAYS IN PERFORMANCE,
OR FAILURE TO PERFORM, THIS AGREEMENT OR ANY OBLIGATIONS HEREUNDER, WHICH ARE
ATTRIBUTABLE TO CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING BUT NOT LIMITED
TO FIRE, FLOOD, EPIDEMIC, EARTHQUAKE, ENVIRONMENTAL DAMAGE, ACT OF GOD,
LIGHTNING, PUBLLIC POWER FAILURE OR SURGE, EXPLOSION, STRIKE OR OTHER LABOR
DISPUTE, RIOT OR CIVIL DISTURBANCE, WAR OR ARMED CONFLICT, OR OTHER GOVERNMENTAL
ORDER OR REGULATION, OR ORDER OF ANY COURT OF COMPETENT JURISDICTION, OR ANY
OTHER SIMILAR OCCURRENCE NOT WITHIN ITS CONTROL.
17.0. GOVERNING LAW. The parties agree that this Agreement shall be
interpreted and construed both as to performance and validity in accordance with
and governed by the laws of the domestic laws of the State of Washington even if
its choice of law provisions are in conflict with this requirement.
18.0. DISPUTE RESOLUTION; ARBITRATION. The parties agree that all
disputes, claims or controversies between them arising out of or relating to
this Agreement, and only if good faith attempt at resolution between parties
fails, shall be settled by arbitration in accordance with the rules of the
American Arbitration Association. Decisions of the arbitration panel shall
be based upon Washington State law, and the site of such arbitration shall be
in King County, Washington. The arbitration panel shall consist of three
arbitrators, one arbitrator to be selected by each party and the third
arbitrator to be selected by the other two arbitrators. Any decision
rendered by the arbitration panel pursuant to this provision shall be
concurred in by a majority of the members of the panel. Judgment may be
entered by any court of competent jurisdiction. Arbitration pursuant to this
section shall be the exclusive means of resolving any dispute, claim or
controversy arising hereunder. Each party shall bear its own costs,
including attorneys' fees, in connection with any proceeding brought under
this Section.
19.0 REGULATORY APPROVAL. The rights and obligations of the parties hereunder
are subject to any regulatory approvals which may be required, and this
Agreement may be terminated by either party if any governmental or regulatory
agency imposes rules or regulations affecting the relationship between the
parties in a material way.
20.0 WAIVER OF BREACH. The failure to enforce or to require the performance
at any time of any of the provisions of this Agreement by a party shall not be
construed to be a waiver of any other provisions by that party and shall not
affect either the validity of this Agreement or any part hereof or the right of
any party thereafter to enforce each and every provision of this Agreement.
21.0 EXECUTION IN COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall, when executed, be deemed to be an
original, but all of which together shall constitute one and the same
instrument.
22.0 PUBLICITY. Each party shall consult with the other before issuing any
press release or otherwise making any statements to third parties with respect
to this Agreement or the transactions and relationships contemplated hereby and
shall not issue any press release or make any such statements prior to obtaining
the written consent of the other party, which consent shall not be unreasonably
withheld.
23.0 SECTION HEADINGS. The section and sub-section headings contained herein
are for reference purposes only and shall not affect in any way the meaning or
interpretation of any provision of this Agreement.
7
<PAGE>
24.0 AUTHORITY. Each party represents and warrants that it has full power and
authority to enter into and perform under this Agreement and that its delivery
of this Agreement has been duly authorized by all necessary corporate or other
action and that the person signing the Agreement on its behalf is duly
authorized to do so. Each party further acknowledges that it has read and
understands this Agreement and agrees to be bound by all of its terms,
conditions and provisions.
25.0 ENTIRE AGREEMENT; MODIFICATION. This Agreement and all Exhibits,
Appendices and Attachments hereto constitutes the entire agreement between the
parties and supersedes all prior representations, agreements, understandings and
arrangements, oral or written, between the parties with respect to the subject
matter hereof. All Recitals, Background and Statements of Purpose are expressly
excluded from this Agreement. This Agreement allocates the risks of loss among
the parties, which allocation is reflected in the charges and terms and
conditions set forth herein. This Agreement may not be released, discharged,
amended, or modified in any way except by a writing that expressly refers to
this Agreement and is executed by all parties hereto IN WITNESS WHEREOF, the
parties have duly executed this Agreement as of the date first above written.
ADVANCE RADIO TELECOM CORPORATION HARRIS CORPORATION
By: /s/ Charles H. Menatti By: /s/ J. Michael Slattery
________________________ _________________________
Print Print
Name: Charles Menatti Name: J. Michael Slattery
_______________________ _______________________
Title: V.P. Bus. Development Title: Division Controller
______________________ ______________________
8
<PAGE>
PCS MARKETING AGREEMENT
BETWEEN ART AND HARRIS
LIST OF EXHIBITS
EXHIBIT A LIST OF AUTHORIZATIONS UNDER ART'S CONTROL AT 38 GHZ.
EXHIBIT B LIST OF HARRIS PCS TARGET ACCOUNTS.
EXHIBIT C HARRIS SALES FORECAST.
EXHIBIT D OUTLINE OF HARRIS TRAINING ON INSTALLATION AND WORKMANSHIP
STANDARDS.
EXHIBIT E DEFINITION OF ART'S INSTALLATION SERVICES, PROCEDURES AND
SCHEDULE.
EXHIBIT F DEFINITION OF ART'S NETWORK MONITORING SERVICES AND PROCEDURES.
9
<PAGE>
EXHIBIT A
LIST OF AUTHORIZATION UNDER ART'S CONTROL AT 38GHZ
MARKET CHANNELS
- ------ --------
1 Albany 13 NY
2 Albany 1,14 NY
3 Albuquerque 2 NM
4 Allentown 1,14 PA
5 Altoona 1,14 PA
6 Anchorage 2 AK
7 Atlanta 1 GA
8 Austin 2 TX
9 Baltimore 6 MD
10 Baltimore 1,14 MD
11 Baton Rouge 2 LA
12 Billings 1 MT
13 Binghamton 1,14 NY
14 Birmingham 4 AL
15 Boston (No.) 1,14 MA
16 Boston (So.) 1,14 MA
17 Bridgeport 1,14 NH
18 Buffalo 10 NY
19 Buffalo 1,14 NY
20 Canton 2 OH
21 Charleston 4 SC
22 Charleston 1 WV
23 Chicago 1 IL
24 Cincinnati 6 OH
25 Cleveland 1 OH
26 Columbus 6 OH
27 Corning 1,14 NY
28 Dallas 1 TX
29 Dayton 6 OH
30 Denver 1 CO
31 Des Moines 5 IA
32 Eugene 3 OR
33 Eureka 4 CA
34 Fairbanks 4 AK
35 Grand Rapids 7 MI
36 Greensboro 14 NC
37 Harris 1,14 PA
38 Hartford 2 CT
39 Hartford 1,14 CT
10
<PAGE>
EXHIBIT A
Page 2
40 Honolulu 4 HI
41 Houston 1 TX
42 Huntington 2 WV
43 Indianapolis 2 IN
44 Jackson 4 MS
45 Jackson 14 MS
46 Juneau 6 AK
47 Kansas City 1 MO
48 Kingston 1,14 NY
49 Knoxville 8 TN
50 Las Vegas 4 NV
51 Lincoln 4 NE
52 Lorain 1 OH
53 Louisville 6 KY
54 Madison 2 WI
55 Memphis 2 TN
56 Miami 1 FL
57 Minneapolis 6 MN
58 Mobile 8 AL
59 Nashville 12 TN
60 New Orleans 1 LA
61 New York - Long Island 1,14 NY
62 New York (Manhattan) 13 NY
63 New York (North) 1,14 NY
64 New York (South) 1,14 NY
65 Newark North 1,14 NJ
66 Newark South 1,14 NJ
67 Norfolk 4 VA
68 Oklahoma City 1 OK
69 Ogden 4 UT
70 Pensacola 3 FL
71 Philadelphia 1,14 PA
72 Phoenix 1 AZ
73 Pittsburgh 1,14 PA
74 Portland 2 OR
75 Providence 1,14 RI
76 Reno 1 NV
77 Richmond 4 VA
78 Rochester 2 NY
79 Rochester 1,14 NY
11
<PAGE>
EXHIBIT A
Page 3
80 Sacramento 9 CA
81 Salt Lake City 1 UT
82 San Antonio 11 TX
83 San Diego 6 CA
84 San Jose 9 CA
85 Scranton 3 PA
86 Scranton 1,14 PA
87 Seattle 1 WA
88 Shreveport 1 LA
89 Spokane 4 WA
90 Springfield 1,14 MA
91 St. Louis 1 MO
92 Stamford 1,14 CT
93 Syracuse 1,14 NY
94 Tacoma 1 WA
95 Trenton 1,14 NJ
96 Tucson 1 AZ
97 Utica-Rome 1,14 NY
98 Washington 6 DC
99 Washington 1,14 DC
100 White 1,14 NY
101 Wichita 3 KS
102 Wilmington 3 DE
103 Wilmington 1,14 DE
104 Worcester 1,14 MA
105 York 1 PA
12
<PAGE>
EXHIBIT A
STOCK OPTION VESTING SCHEDULE
Shares Covered Date of
by Option Vesting
-------------- -------
100,000 April 26, 1996
100,000 April 26, 1997
100,000 April 26, 1998
<PAGE>
[Exhibits B, C, D, E and F omitted due to
to confidential treatement]
