As filed with the Securities and Exchange Commission on June 9, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMERICAN TOWER CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 65-0598206
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
116 Huntington Avenue, Boston, Massachusetts 02116
(Address, including zip code, of principal executive offices)
American Tower Corporation 1995 Stock Option Plan
(Full title of the Plan)
STEVEN B. DODGE
American Tower Corporation
116 Huntington Avenue
Boston, Massachusetts 02116
(617) 375-7500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
NORMAN A. BIKALES, ESQ.
Sullivan & Worcester LLP
One Post Office Square
Boston, Massachusetts 02109
(617) 338-2800
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Amount Maximum Maximum
Title of Each Class of to be Offering Price Aggregate Amount of
Securities to be Registered Registered Per Share Offering Price Registration Fee
<S> <C> <C> <C> <C>
Class A Common Stock, $.01 par value...... 1,252,364 $0.519 to $2.465(2) $2,862,500(2) $845
Issuable upon exercise of outstanding
options under the American Tower
Corporation 1995 Stock Option Plan(1)
<FN>
(1) Options to purchase Common Stock under the American Tower Corporation ("ATC") 1995 Stock Option Plan (the "Plan") were assumed
by American Tower Corporation (formerly known as American Tower Systems Corporation, the
<PAGE>
"Company"), pursuant to a certain Agreement and Plan of Merger (the "Merger Agreement") by and among the Company and ATC, dated
as of December 12, 1997, and as amended on June 5, 1998. Pursuant to such assumption, the shares of ATC Common Stock issuable
under the Plan were converted into the right to purchase shares of the Company's Class A Common Stock pursuant to a formula set
forth in the Merger Agreement. Pursuant to the Merger Agreement, the Company changed its name from American Tower Systems
Corporation to American Tower Corporation.
(2) Pursuant to Rule 457(h) the offering price is calculated based upon the exercise price with respect to shares subject to
options currently outstanding.
</FN>
</TABLE>
<PAGE>
AMERICAN TOWER SYSTEMS CORPORATION
REGISTRATION STATEMENT ON FORM S-8
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information; Item 2. Registrant Information and Employee Plan
Annual Information.
The documents containing the information required by these items will be
given to employees participating in the American Tower Corporation 1995 Stock
Option Plan, as amended (the "Plan") and are not required to be filed with the
Securities and Exchange Commission (the "Commission") as part of the
Registration Statement or as an exhibit thereto.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed by the Company with the
Commission are incorporated by reference in and made a part of this Registration
Statement, as of their respective dates:
(a) The Company's Prospectus from the Registration Statement on Form S-1
(File No. 333-50111) as filed pursuant to Rule 424(b) on June 5, 1998;
(b) The Company's Form 8-A filed on June 4, 1998; and
(c) The Company's Form 8-Ks filed on May 1, 1998, March 20, 1998 and June
4, 1998.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be part hereof
from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
herein, or in any subsequently filed document which also is or is deemed to be
incorporated by reference, modifies or supersedes such statement. Any statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
None.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares offered hereby will be passed upon for the
Company by Sullivan & Worcester LLP, Boston, Massachusetts. Norman A. Bikales, a
member of the firm of Sullivan & Worcester LLP owns 9,000 shares of Class A
Common and 41,490 shares of Class B Common and currently has an option to
purchase 20,000 shares of Class A Common Stock at $10.00 per share. Mr. Bikales
and/or associates of that firm serve as secretary or assistant secretaries of
the Company and certain of its subsidiaries.
II-1
<PAGE>
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL") provides,
in effect, that any person made a party to any action by reason of the fact that
he is or was a director, officer, employee or agent of the Company may and, in
certain cases, must be indemnified by the Company against, in the case of a
non-derivative action, judgments, fines, amounts paid in settlement and
reasonable expenses (including attorney's fees), if in either type of action he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company and, in a non-derivative action,
which involves a criminal proceeding, in which such person had no reasonable
cause to believe his conduct was unlawful. This indemnification does not apply,
in a derivative action, to matters as to which it is adjudged that the director,
officer, employee or agent is liable to the Company, unless upon court order it
is determined that, despite such adjudication of liability, but in view of all
the circumstances of the case, he is fairly and reasonably entitled to indemnity
for expenses.
Article XII of the Company's By-Laws provides that the Company shall
indemnify each person who is or was an officer or director of the Company to the
fullest extent permitted by Section 145 of the DGCL.
Article Sixth of the Company's Restated Certificate of Incorporation states
that no director of the Company shall be personally liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for (i) breach of the director's duty of loyalty to the Company or its
stockholders, (ii) acts or omissions not in good faith or which involve
intentional misconduct or knowing violation of law, (iii) liability under
Section 174 of the DGCL relating to certain unlawful dividends and stock
repurchases, or (iv) any transaction from which the director derived an improper
personal benefit.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Listed below are the exhibit which are filed as part of this registration
statement (according to the number assigned to them in Item 601 of Regulation
S-K).
<TABLE>
<CAPTION>
Exhibit No. Description of Document Exhibit File No.
<S> <C> <C>
5 Opinion of Sullivan & Worcester LLP............................. Filed herewith as Exhibit 5
10.1 American Tower Corporation 1995 Stock Option Plan............... Filed herewith as Exhibit 10.1
23.0 Consent of Sullivan & Worcester LLP............................. Contained in the opinion of
Sullivan & Worcester LLP filed
herewith as part of Exhibit 5
23.1 Consent of Deloitte & Touche LLP................................ Filed herewith as Exhibit 23.1
24 Power of Attorney............................................... Filed herewith as page II-4 of the
Registration Statement
99 Agreement Regarding American Tower Corporation Options......... Filed herewith as Exhibit 99
</TABLE>
Item 9. Undertakings.
(a) 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
Securities Act of 1933;
II-2
<PAGE>
(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:
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Company
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, 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; and
(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;
(b) For purposes of determining any liability under the Securities Act of
1933, each filing of the Company's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in the Registration Statement 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; and
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in that Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Company of expenses incurred or paid by a director,
officer or controlling person of the Company 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 Company 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
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boston, Commonwealth of Massachusetts, on the 8th day
of June, 1998.
AMERICAN TOWER CORPORATION
By: /s/ Steven B. Dodge
Steven B. Dodge
Chairman of the Board, President
and Chief Executive Officer
The undersigned Officers and Directors of American Tower Corporation (the
"Company") hereby severally constitute Joseph L. Winn, Justin D. Benincasa,
Michael B. Milsom and Norman A. Bikales, and each of them, acting singly, our
true and lawful attorneys to sign for us and in our names in the capacities
indicated below the Company's Registration Statement on Form S-8 relating to the
registration of an aggregate of 1,252,364 shares of the Company's Class A Common
Stock, $.01 par value issued or issuable upon the exercise of options granted
under the American Tower Corporation 1995 Stock Option Plan, and any and all
amendments and supplements thereto, filed with the Securities and Exchange
Commission, for the purpose of registering such shares, under the Securities Act
of 1933, as amended, granting unto each of said attorneys, acting singly, full
power and authority to do and perform each and every act and thing requisite or
necessary 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 our
signatures to said registration statement signed by our said attorneys and all
else that said attorneys may lawfully do and cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons on behalf
of the Company and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Steven B. Dodge Chairman, President and June 8, 1998
Steven B. Dodge Chief Executive Officer
/s/ Justin D. Benincasa Vice President and June 8, 1998
Justin D. Benincasa Corporate Controller
/s/ Alan L. Box Executive Vice President and June 8, 1998
Alan L. Box Director
/s/ Arnold L. Chavkin Director June 8, 1998
Arnold L. Chavkin
/s/ J. Michael Gearon, Jr. Executive Vice President and June 8, 1998
J. Michael Gearon, Jr. Director
II-4
<PAGE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Thomas H. Stoner Director June 8, 1998
Thomas H. Stoner
/s/ Fred R. Lummis Director June 8, 1998
Fred R. Lummis
/s/ Randall Mays Director June 8, 1998
Randall Mays
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
Listed below are the exhibit which are filed as part of this registration
statement (according to the number assigned to them in Item 601 of Regulation
S-K).
<TABLE>
<CAPTION>
Exhibit No. Description of Document Exhibit File No. Page
- ----------- ----------------------- ---------------- ----
<S> <C> <C>
5 Opinion of Sullivan & Worcester LLP............................. Filed herewith as Exhibit 5
10.1 American Tower Corporation 1995 Stock Option Plan............... Filed herewith as Exhibit 10.1
23.0 Consent of Sullivan & Worcester LLP............................. Contained in the opinion of
Sullivan & Worcester LLP filed
herewith as part of Exhibit 5
23.1 Consent of Deloitte & Touche LLP............................... Filed herewith as Exhibit 23.1
24 Power of Attorney.............................................. Filed herewith as page II-4 of
the Registration Statement
99 Agreement Regarding American Tower Corporation Options......... Filed herewith as Exhibit 99
</TABLE>
II-6
EXHIBIT 5
SULLIVAN & WORCESTER LLP
ONE POST OFFICE SQUARE
BOSTON, MASSACHUSETTS 02109
(617) 338-2800
FAX NO. 617-338-2880
IN WASHINGTON, D.C. IN NEW YORK CITY
1025 CONNECTICUT AVENUE, N.W. 767 THIRD AVENUE
WASHINGTON, D.C. 20036 NEW YORK, NEW YORK 10017
(202) 775-8190 (212) 486-8200
FAX NO. 202-293-2275 FAX NO. 212-758-2151
June 8, 1998
American Tower Corporation
116 Huntington Avenue
Boston, MA 02116
Re: Registration Statement on Form S-8 of an Aggregate of
1,252,364 Shares of Class A Common Stock
Dear Sir or Madam:
In connection with the registration under the Securities Act of 1933,
as amended (the "Securities Act"), by American Tower Corporation, a Delaware
corporation (formerly known as American Tower Systems Corporation, the
"Company"), of an aggregate of 1,252,364 shares (the "Registered Shares") of its
Class A Common Stock, par value $.01 per share (the "Class A Common Stock")
which underlie options that were issued to purchase shares of Common Stock of
American Tower Corporation ("ATC") under the American Tower Corporation 1995
Stock Option Plan (the "ATC Stock Option Plan"), the following opinion is
furnished to you to be filed with the Securities and Exchange Commission (the
"Commission") as Exhibit 5 to the Company's registration statement on Form S-8
(the "Registration Statement").
We have acted as counsel to the Company in connection with the
preparation of the Registration Statement, and we have examined originals or
copies, certified or otherwise identified to our satisfaction, of the
Registration Statement, the Restated Certificate of Incorporation of the
Company, as amended (the "Restated Certificates"), Agreement and Plan of Merger
by and among the Company and ATC, as amended, and certain related documents, the
ATC Stock Option Plan, corporate records, certificates and statements of
officers and accountants of the Company and of public officials, and such other
documents as we have considered necessary in order to furnish the opinion
hereinafter set forth. We express no opinion herein as to any laws other than
the General Corporation Law of the State of Delaware. We assume that the number
and issuance of options to be offered from time to time pursuant to the ATC
Stock Option Plan have been determined and authorized by proper action of the
Board of Directors, or a committee thereof, of the Company and that the number,
issuance and sale of the Registered Shares to be offered from time to time
pursuant
<PAGE>
American Tower Corporation
June 8, 1998
Page 2
to the exercise of such options have been and will be determined in accordance
with the Restated Certificate and applicable Delaware Law. We further assume
that prior to the issuance of any Registered Shares, there will exist, under the
Company's Restated Certificate, the requisite number of authorized shares of
common stock for such issuance which are unissued and are not otherwise reserved
for issuance.
Based on and subject to the foregoing, we are of the opinion that, when
the Registration Statement has become effective under the Securities Act, upon
due authorization by the Board of Directors, or a committee thereof, of the
Company of an issuance of an option pursuant to the ATC Stock Option Plan, and
upon an issuance by the Company of Registered Shares pursuant to the exercise of
such option and upon delivery of certificates representing the Registered Shares
against payment therefor in the manner contemplated by the ATC Stock Option
Plan, the Registration Statement and any applicable amendment of either thereof,
the Registered Shares represented by such certificates will be duly authorized,
validly issued, fully paid and nonasseassable by the Company.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act or the Rules and Regulations of the Commission promulgated
thereunder.
Very truly yours,
/s/ SULLIVAN & WORCESTER LLP
SULLIVAN & WORCESTER LLP
EXHIBIT 10.1
AMERICAN TOWER CORPORATION
1995 STOCK OPTION PLAN
I. Purpose of the Plan
The AMERICAN TOWER CORPORATION 1995 STOCK OPTION PLAN (the "Plan") is
intended to provide a means whereby certain employees of AMERICAN TOWER
CORPORATION, a Delaware corporation (the "Company"), and its subsidiaries may
develop a sense of proprietorship and personal involvement in the development
and financial success of the Company, and to encourage them to remain with and
devote their best efforts to the business of the Company, thereby advancing the
interests of the Company and its stockholders. Accordingly, the Company may
grant to certain employees ("Optionees") the option ("Option") to purchase
shares of the common stock of the Company ("Stock"), as hereinafter set forth.
Options granted under the Plan may be either incentive stock options, within the
meaning of section 422(b) of the Internal Revenue Code of 1986, as amended (the
"Code"), ("Incentive Stock Options") or options which do not constitute
Incentive Stock Options.
II. Administration
The Plan shall be administered by the Board of Directors of the Company
(the "Board") acting as a committee of the whole or another committee appointed
from time to time by, and comprised of members of, the Board (the "Committee");
provided, however, that if and when the Company becomes subject to Section 16 of
the Securities Exchange Act of 1934, as amended (the "1934 Act"), then, from and
after such time, the Committee shall be constituted so as to permit the Plan to
comply with Rule 16b-3, as then in effect or as thereafter modified or amended
("Rule 16b-3"), promulgated under the 1934 Act. The Committee shall have sole
authority to select the Optionees from among those individuals eligible
hereunder and to establish the number of shares which may be issued under each
Option. In selecting the Optionees from among individuals eligible hereunder and
in establishing the number of shares that may be issued under each Option, the
Committee may take into account the nature of the services rendered by such
individuals, their present and potential contributions to the Company's success
and such other factors as the Committee in its discretion shall deem relevant.
The Committee is authorized to interpret the Plan and may from time to time
adopt such rules and regulations, consistent with the provisions of the Plan, as
it may deem advisable to carry out the Plan. All decisions made by the Committee
in selecting the Optionees, in establishing the number of shares which may be
issued under each Option and in construing the provisions of the Plan shall be
final.
III. Option Agreements
(a) Each Option shall be evidenced by a written agreement between the
Company and the Optionee ("Option Agreement") which shall contain such terms and
conditions as may be approved by the Committee. The terms and conditions of the
respective Option Agreements need
<PAGE>
not be identical. Specifically, an Option Agreement may provide for the
surrender of the right to purchase shares under the Option in return for a
payment in cash or shares of Stock or a combination of cash and shares of Stock
equal in value to the excess of the fair market value of the shares with respect
to which the right to purchase is surrendered over the option price therefor
("Stock Appreciation Rights"), on such terms and conditions as the Committee in
its sole discretion may prescribe; provided, that, except as provided in
Subparagraph VIII(c) hereof, the Committee shall retain final authority (i) to
determine whether an Optionee shall be permitted, or (ii) to approve an election
by an Optionee, to receive cash in full or partial settlement of Stock
Appreciation Rights. Moreover, an Option Agreement may provide for the payment
of the option price, in whole or in part, by the delivery of a number of shares
of Stock (plus cash if necessary) having a fair market value equal to such
option price.
(b) For all purposes under the Plan, the fair market value of a share
of Stock on a particular date shall be equal to the mean of the high and low
sales prices of the Stock (i) reported by the National Market System of NASDAQ
on that date or (ii) if the Stock is listed on a national stock exchange,
reported on the stock exchange composite tape on that date; or, in either case,
if no prices are reported on that date, on the last preceding date on which such
prices of the Stock are so reported. If the Stock is traded over the counter at
the time a determination of its fair market value is required to be made
hereunder, its fair market value shall be deemed to be equal to the average
between the reported high and low or closing bid and asked prices of Stock on
the most recent date on which Stock was publicly traded. In the event Stock is
not publicly traded at the time a determination of its value is required to be
made hereunder, the determination of its fair market value shall be made by the
Committee in such manner as it deems appropriate.
(c) Each Option and all rights granted thereunder shall not be
transferable other than by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order as defined by the Code or Title
I of the Employee Retirement Income Security Act of 1974, as amended, or the
rules thereunder, and shall be exercisable during the Optionee's lifetime only
by the Optionee or the Optionee's guardian or legal representative.
IV. Eligibility of Optionee
Options may be granted only to individuals who are employees (including
officers and directors who are also employees) of the Company or any parent or
subsidiary corporation (as defined in section 424 of the Code) of the Company at
the time the Option is granted. Options may be granted to the same individual on
more than one occasion. No Incentive Stock Option shall be granted to an
individual if, at the time the Option is granted, such individual owns stock
possessing more than 10% of the total combined voting power of all classes of
stock of the Company or of its parent or subsidiary corporation, within the
meaning of section 422(b)(6) of the Code, unless (i) at the time such Option is
granted the option price is at least 110% of the fair market value of the Stock
subject to the Option and (ii) such Option by its terms is not exercisable after
the expiration of five years from the date of grant. To the extent that the
aggregate fair market value (determined at the time the respective Incentive
Stock Option is granted) of stock with respect to which Incentive Stock Options
are exercisable for the first time by an individual during any calendar year
under all incentive stock option plans of the Company and its parent and
-2-
<PAGE>
subsidiary corporations exceeds $100,000, such excess Incentive Stock Options
shall be treated as Options which do not constitute Incentive Stock Options. The
Committee shall determine, in accordance with applicable provisions of the Code,
Treasury Regulations and other administrative pronouncements, which of an
Optionee's Incentive Stock Options will not constitute Incentive Stock Options
because of such limitation and shall notify the Optionee of such determination
as soon as practicable after such determination.
V. Shares Subject to the Plan
The aggregate number of shares which may be issued under Options
granted under the Plan shall not exceed 9,231 shares of Stock. Such shares may
consist of authorized but unissued shares of Stock or previously issued shares
of Stock reacquired by the Company. Any of such shares which remain unissued and
which are not subject to outstanding Options at the termination of the Plan
shall cease to be subject to the Plan, but, until termination of the Plan, the
Company shall at all times make available a sufficient number of shares to meet
the requirements of the Plan. Should any Option hereunder expire or terminate
prior to its exercise in full, the shares theretofore subject to such Option may
again be subject to an Option granted under the Plan (but only to the extent
permitted under Rule 16b-3 with respect to shares subject to an Option that
expires or terminates on or after the time the Company becomes subject to
Section 16 of the 1934 Act). The aggregate number of shares which may be issued
under the Plan shall be subject to adjustment in the same manner as provided in
Paragraph VIII hereof with respect to shares of Stock subject to Options then
outstanding. Exercise of an Option in any manner, including an exercise
involving a Stock Appreciation Right, shall result in a decrease in the number
of shares of Stock which may thereafter be available, both for purposes of the
Plan and for sale to any one individual, by the number of shares as to which the
Option is exercised. Separate stock certificates shall be issued by the Company
for those shares acquired pursuant to the exercise of an Incentive Stock Option
and for those shares acquired pursuant to the exercise of any Option which does
not constitute an Incentive Stock Option.
VI. Option Price
The purchase price of Stock issued under each Option shall be
determined by the Committee, but (i) in the case of an Incentive Stock Option,
such purchase price shall not be less than the fair market value of Stock
subject to the Option on the date the Option is granted, and (ii) in the case of
an option that does not constitute an Incentive Stock Option, such purchase
price shall not be less than 50% of the fair market value of Stock subject to
the Option on the date the Option is granted.
VII. Term of Plan
The Plan shall be effective upon the date of its adoption by the Board,
provided the Plan is approved by the stockholders of the Company within twelve
months thereafter. Notwithstanding any provision in this Plan or in any Option
Agreement, no Option shall be exercisable prior to such stockholder approval.
Except with respect to Options then outstanding, if not sooner terminated under
the provisions of Paragraph IX, the Plan shall terminate upon and no further
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<PAGE>
Options shall be granted after the expiration of ten years from the date of its
adoption by the Board.
VIII. Recapitalization or Reorganization
(a) The existence of the Plan and the Options granted hereunder shall
not affect in any way the right or power of the Board or the stockholders of the
Company to make or authorize any adjustment, recapitalization, reorganization or
other change in the Company's capital structure or its business, any merger or
consolidation of the Company, any issue of debt or equity securities, the
dissolution or liquidation of the Company or any sale, lease, exchange or other
disposition of all or any part of its assets or business or any other corporate
act or proceeding.
(b) The shares with respect to which Options may be granted are shares
of Stock as presently constituted, but if, and whenever, prior to the expiration
of an Option theretofore granted, the Company shall effect a subdivision or
consolidation of shares of Stock or the payment of a stock dividend on Stock
without receipt of consideration by the Company, the number of shares of Stock
with respect to which such Option may thereafter be exercised (i) in the event
of an increase in the number of outstanding shares shall be proportionately
increased, and the purchase price per share shall be proportionately reduced,
and (ii) in the event of a reduction in the number of outstanding shares shall
be proportionately reduced, and the purchase price per share shall be
proportionately increased.
(c) If the Company recapitalizes, reclassifies its capital stock, or
otherwise changes its capital structure (a "recapitalization"), the number and
class of shares of Stock covered by an Option theretofore granted shall be
adjusted so that such Option shall thereafter cover the number and class of
shares of stock and securities to which the Optionee would have been entitled
pursuant to the terms of the recapitalization if, immediately prior to the
recapitalization, the Optionee had been the holder of record of the number of
shares of Stock then covered by such Option. If (i) the Company shall not be the
surviving entity in any merger, consolidation or other reorganization (or
survives only as a subsidiary of an entity other than a previously wholly-owned
subsidiary of the Company), (ii) the Company sells, leases or exchanges all or
substantially all of its assets to any other person or entity (other than a
wholly-owned subsidiary of the Company), (iii) the Company is to be dissolved
and liquidated, (iv) any person or entity, including a "group" as contemplated
by Section 13(d)(3) of the 1934 Act, acquires or gains ownership or control
(including, without limitation, power to vote) of more than 50% of the
outstanding shares of the Company's voting stock (based upon voting power), or
(v) as a result of or in connection with a contested election of directors, the
persons who were directors of the Company before such election shall cease to
constitute a majority of the Board (each such event is referred to herein as a
"Corporate Change"), no later than (a) ten days after the approval by the
stockholders of the Company of such merger, consolidation, reorganization, sale,
lease or exchange of assets or dissolution or such election of directors or (b)
thirty days after a change of control of the type described in Clause (iv), the
Committee, acting in its sole discretion without the consent or approval of any
Optionee, shall act to effect one or more of the following alternatives, which
may vary among individual Optionees and which may vary among Options held by any
individual Optionee: (1) accelerate the time at which Options then outstanding
may be exercised so that such
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<PAGE>
Options may be exercised in full for a limited period of time on or before a
specified date (before or after such Corporate Change) fixed by the Committee,
after which specified date all unexercised Options and all rights of Optionees
thereunder shall terminate, (2) require the mandatory surrender to the Company
by selected Optionees of some or all of the outstanding Options held by such
Optionees (irrespective of whether such Options are then exercisable under the
provisions of the Plan) as of a date, before or after such Corporate Change,
specified by the Committee, in which event the Committee shall thereupon cancel
such Options and the Company shall pay to each Optionee an amount of cash per
share equal to the excess, if any, of the amount calculated in Subparagraph (d)
below (the "Change of Control Value") of the shares subject to such Option over
the exercise price(s) under such Options for such shares, (3) make such
adjustments to Options then outstanding as the Committee deems appropriate to
reflect such Corporate Change (provided, however, that the Committee may
determine in its sole discretion that no adjustment is necessary to Options then
outstanding) or (4) provide that the number and class of shares of Stock covered
by an Option theretofore granted shall be adjusted so that such Option shall
thereafter cover the number and class of shares of stock or other securities or
property (including, without limitation, cash) to which the Optionee would have
been entitled pursuant to the terms of the agreement of merger, consolidation or
sale of assets and dissolution if, immediately prior to such merger,
consolidation or sale of assets and dissolution, the Optionee had been the
holder of record of the number of shares of Stock then covered by such Option.
(d) For the purposes of clause (2) in Subparagraph (c) above, the
"Change of Control Value" shall equal the amount determined in clause (i), (ii)
or (iii), whichever is applicable, as follows: (i) the per share price offered
to stockholders of the Company in any such merger, consolidation,
reorganization, sale of assets or dissolution transaction, (ii) the price per
share offered to stockholders of the Company in any tender offer or exchange
offer whereby a Corporate Change takes place, or (iii) if such Corporate Change
occurs other than pursuant to a tender or exchange offer, the fair market value
per share of the shares into which such Options being surrendered are
exercisable, as determined by the Committee as of the date determined by the
Committee to be the date of cancellation and surrender of such Options. In the
event that the consideration offered to stockholders of the Company in any
transaction described in this Subparagraph (d) or Subparagraph (c) above
consists of anything other than cash, the Committee shall determine the fair
cash equivalent of the portion of the consideration offered which is other than
cash.
(e) Any adjustment provided for in Subparagraphs (b) or (c) above shall
be subject to any required stockholder action.
(f) Except as hereinbefore expressly provided, the issuance by the
Company of shares of stock of any class or securities convertible into shares of
stock of any class, for cash, property, labor or services, upon direct sale,
upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into such shares
or other securities, and in any case whether or not for fair value, shall not
affect, and no adjustment by reason thereof shall be made with respect to, the
number of shares of Stock subject to Options theretofore granted or the purchase
price per share.
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<PAGE>
IX. Amendment or Termination of the Plan
The Board in its discretion may terminate the Plan at any time with
respect to any shares for which Options have not theretofore been granted. The
Board shall have the right to alter or amend the Plan or any part thereof from
time to time; provided, that no change in any Option theretofore granted may be
made which would impair the rights of the Optionee without the consent of such
Optionee; and provided, further, that (i) the Board may not make any alteration
or amendment on or after the time the Company becomes subject to Section 16 of
the 1934 Act that would decrease any authority granted to the Committee
hereunder in contravention of Rule 16b-3 and (ii) the Board may not make any
alteration or amendment which would materially increase the benefits accruing to
participants under the Plan, increase the aggregate number of shares which may
be issued pursuant to the provisions of the Plan, change the class of
individuals eligible to receive Options under the Plan or extend the term of the
Plan, without the approval of the stockholders of the Company.
X. Securities Laws
(a) The Company shall not be obligated to issue any Stock pursuant to
any Option granted under the Plan at any time when the offering of the shares
covered by such Option have not been registered under the Securities Act of 1933
and such other state and federal laws, rules or regulations as the Company or
the Committee deems applicable and, in the opinion of legal counsel for the
Company, there is no exemption from the registration requirements of such laws,
rules or regulations available for the offering and sale of such shares.
(b) From and after the time the Company becomes subject to Section 16
of the 1934 Act, it is intended that the Plan and any grant of an Option made to
a person subject to Section 16 of the 1934 Act meet all of the requirements of
Rule 16b-3. If any provision of the Plan or any such Option would disqualify the
Plan or such Option under, or would otherwise not comply with, Rule 16b-3, such
provision or Option shall be construed or deemed amended to conform to Rule
16b-3.
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement on
Form S-8 under the Securities Act of 1933 of American Tower Corporation
(formerly American Tower Systems Corporation) of our reports dated March 6, 1998
(March 27, 1998 as to the sixth paragraph of Note 1 and the second paragraph of
Note 4) and contained in a prospectus filed pursuant to Rule 424(b) under the
Securities Act of 1933 on June 5, 1998 relating to Registration Statement No.
333-50111 of American Tower Systems Corporation on Form S-1 under the Securities
Act of 1933 insofar as such report relates to the financial statements and
schedules of American Tower Systems Corporation for the years ended December 31,
1997 and 1996 and the period from July 17, 1995 (Incorporation) to December 31,
1995.
DELOITTE & TOUCHE LLP
Boston, Massachusetts
June 8, 1998
Agreement Regarding American Tower Corporation Options
This Agreement (this "Agreement") is entered into as of June 5, 1998 by
American Tower Systems Corporation ("ATS") for the benefit of the holders of
options issued by American Tower Corporation ("ATC") pursuant to the American
Tower Corporation 1995 Stock Option Plan.
Background
ATC and ATS are parties to an Agreement and Plan of Merger dated
December 12, 1997, as amended by the First Amendment of even date herewith (as
so amended, the "Merger Agreement"), pursuant to which ATC shall be merged with
and into ATS effective as of June 8, 1998. The terms of the Merger Agreement
require ATS to assume ATC 1995 Stock Option Plan (the "Plan"). ATS is entering
into this Agreement to evidence its assumption of the Plan and related
obligations.
Agreements
ATS agrees as follows for the benefit of the holders of options issued
pursuant to the Plan:
1. ATS hereby assumes the obligations of ATC under the Plan and all
option agreements executed and delivered prior to the date hereof pursuant to
the Plan, which option agreements are between ATC and each of the individuals
listed on Exhibit A hereto (the "Option Agreements").
2. ATS agrees that the number of option shares represented by each of
the Option Agreements shall be multiplied by the same factor as used to convert
one share of common stock of ATC into one share of ATS Class A Common Stock
pursuant to the terms of the Merger Agreement (the "Adjustment Factor") and the
per share exercise price payable under the Option Agreements shall be the
exercise price in effect divided by the Adjustment Factor.
3. ATS acknowledges that each of the individuals listed on Exhibit A
intend to exercise on June 9, 1998 the number of options listed for each under
the "Options to be Exercised" column of Exhibit A multiplied by the Adjustment
Factor and that, upon such exercise, each individual will be required to pay an
aggregate exercise price equal to the amount set forth opposite each person's
name in the "Option Proceeds" column of Exhibit A.
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the 5th day of June, 1998.
American Tower Systems Corporation
By: /s/ Joseph L. Winn
Chief Financial Officer
