Exhibit 10.2


 


FIBERTOWER
CORPORATION

2010 STOCK INCENTIVE PLAN


 


RESTRICTED
STOCK AGREEMENT


 


1.             Agreement to Grant Restricted Stock.  Subject to the conditions described in this
agreement (the “Award Agreement”) and in the FiberTower Corporation 2010 Stock Incentive
Plan, as amended from time to time (the “Plan”), FiberTower Corporation, a Delaware
corporation (the “Company”), hereby agrees to grant to                                                         
(“Participant”) all rights, title and interest in the record and beneficial
ownership of                                 
(            )
shares (the “Restricted Stock”) of common stock, $0.001 par value per share, of
the Company (“Common Stock”).  This Award
of Restricted Stock shall be effective as of the date (the “Grant Date”) of
approval by the Committee.  The Grant
Date is                                             ,
20        .  All capitalized terms not otherwise defined
herein shall have the meanings set forth in the Plan, the terms of which are incorporated
herein by reference.


 


2.             Vesting.


 


(a)           Vesting Schedule.
Subject to the satisfaction of the terms and conditions set forth in the Plan
and this Award Agreement, Participant shall vest in his rights under the
Restricted Stock and the Company’s right to the return and reacquisition of
such shares shall lapse with respect to the Restricted Stock according to the
following schedule and conditions:


 


(i)            One-third of the Restricted Stock (rounded to the nearest
whole number of shares) shall vest on the first anniversary of the Grant Date.


 


(ii)           One-third of the Restricted Stock (rounded to the nearest
whole number of shares) shall vest on the second anniversary of the Grant Date.


 


(iii)          The remainder of the Restricted Stock shall vest on the
third anniversary of the Grant Date.


 


(b)           Vesting upon Change of Control.  Notwithstanding the
foregoing, subject to the provisions of the Plan, in the event of a Change of
Control, then immediately prior to the consummation of such Change of Control,
any of the Restricted Stock held by Participant which remain unvested and not
previously forfeited at such time shall immediately become vested.


 


(c)           Change of Control.  “Change of Control” shall mean:


 


(i)            a transaction or series of related transactions which
results in the acquisition of 100% of the Company’s outstanding voting power by
a single person or entity or by a group of persons and/or entities acting in
concert, or


 


(ii)           the Incumbent Board ceasing for any reason to constitute at
least a majority of the Board or of the board of directors of the resulting,
surviving or successor entity in connection with or as a direct result of any
the events or transactions described in subsections (a), (b), (c) or (d) of
the definition of “Change of Control” in the Plan.


 


In determining if the Incumbent Board has ceased to constitute at least
a majority of the Board or of the board of directors of the resulting,
surviving or successor entity, any individual becoming a member of the Board
whose election by the Board was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board shall be considered as though
such individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an election contest with respect to the election or removal of
directors or other solicitation of proxies or consents by or on behalf of a
person other than the Board.


 


Further, in the case of any item of income under the Award subject to
this Award Agreement to which the foregoing definition would otherwise apply
with the effect that the income tax under Section 409A of the


 

















 


Code would apply or be imposed on income under that Award, but where
such tax would not apply or be imposed if the meaning of the term “Change of
Control” met the requirements of Section 409A(a)(2)(A)(v) of the
Code, then the term “Change of Control” herein shall mean, but only with
respect to the income so affected, a transaction, circumstance or event that
constitutes a “Change of Control” (as defined above) and that also constitutes
a “change in control event” within the meaning of Treas. Reg. §1.409A-3(i)(5).


 


(d)           Termination in Connection with a Change of Control.


 


(i)            Notwithstanding the foregoing, in the event of Participant’s
Termination by the Participant for Good Reason or by the Company without Cause,
and in either case, such Termination occurs during the period beginning thirty
(30) days prior to, and ending on the consummation of a Change of Control, any
of the
Restricted Stock held by Participant which remain unvested and not previously
forfeited at the time of such Termination or such Change of Control, whichever
is later, shall immediately become vested.


 


(ii)           Cause.  Except in circumstances in which the
provisions of Section 2(d)(iv) apply, “Cause” shall have the meaning assigned to it in the
Plan.


 


(iii)          Good Reason.  Except in circumstances in which the
provisions of Section 2(d)(iv) apply, “Good Reason” shall mean the Participant’s resignation of
employment in connection with or based upon (A) a material diminution in
Participant’s responsibilities, duties or authority; (B) a material
diminution in Participant’s base compensation; (C) assignment of
Participant to a principal office located beyond a 50-mile radius of
Participant’s then current work place, or (D) a material breach by Company
of any material provision of this Award Agreement, in each case without the
Participant’s written consent, but only if: the Participant provides Company
with written notice of the existence of one or more of the aforementioned
conditions and his intention to resign for Good Reason based thereon; such
notice is delivered to the Company within 60 days after the initial existence
of any such condition(s); and the Company fails to remedy each such condition
constituting the basis for such Good Reason resignation (as described in the
Participant’s notice) within 30 days of the date of that notice.  For purposes of this Award Agreement, if the
Company does not remedy the condition(s) constituting the stated basis for
the Good Reason resignation within such 30 day period, the Participant’s
employment with Company shall terminate on the date that is 31 days following
the date of Participant’s notice.


 


(iv)          Alternate Definitions.  If at any time on the date of the Participant’s
Termination, all of the principal terms of Participant’s employment with the
Company are subject to an employment agreement that defines “cause” and/or “good
reason” (or a term that is substantially similar in function) with respect to
an event of termination of employment, then the term “Good Reason” or “Cause”,
as the case may be, as used in this Award Agreement shall have the meaning, and
shall be subject to conditions and requirements as prescribed for “good reason”
or “cause”, as the case may be (or the term that is substantially similar in
function) as provided in that employment agreement, but only if applying such
meaning and such provisions under this Award Agreement would not have any adverse
effect under Section 409A of the Code and only if and as the Committee so
chooses and determines in its sole discretion.


 


(e)           Forfeited Restricted Stock.  For the sake of clarity, references to
Restricted Stock does not include any previously forfeited Restricted Stock.


 


3.             Issuance and Transferability.


 


(a)           Registration and Restricting Legend. Upon grant, the Restricted Stock granted hereunder shall
be registered in the name of Participant and, unless and until such Restricted
Stock vest, shall be left on deposit with the Company, or in trust or escrow
pursuant to an agreement satisfactory to the Company, until such time as the
restrictions on transfer have lapsed.  If
the Restricted Stock are represented by certificates, such certificates shall
be marked with the following legend:


 


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“The shares represented by this
certificate have been issued pursuant to the terms of the FiberTower 2010 Corporation
Stock Incentive Plan and may not be sold, pledged, transferred, assigned or
otherwise encumbered in any manner except as is set forth in the terms of the
Restricted Stock Agreement dated                               
           ,
20        .”


 


(b)           Book Entry Form.
If the shares are held in book entry form, then such entry will reflect, in a
manner sufficient to effect in a legally enforceable form, that such shares of Restricted Stock are subject to
the restrictions of this Award Agreement and the Plan.


 


(c)           Stock Power.
Participant will deliver to the Company a stock power, in substantially the
form as Exhibit A attached hereto or such form as required by the Company,
endorsed in blank, with respect to each Award of Restricted Stock.


 


(d)           Release of Restrictions.
Upon vesting of any portion of the shares of Restricted Stock and satisfaction
of any other conditions required by the Plan or pursuant to this Award
Agreement, the Company shall promptly either issue a stock certificate,
without such restricted legend, for any shares of the Restricted Stock that
have vested, or, if the shares are held in book entry form, the Company shall
remove the notations on the book form for any shares of the Restricted Stock
that have vested.


 


(e)           Prohibition on Transfer.
Until restrictions lapse, the Restricted Stock shall not be transferable.  No right or benefit hereunder shall in any
manner be liable for or subject to any debts, contracts, liabilities, or torts
of Participant.  Any purported assignment,
alienation, pledge, attachment, sale, transfer or other encumbrance of the
Restricted Stock, regardless of by whom initiated or attempted, prior to the
lapse of restrictions shall be void and unenforceable against the Company. If,
notwithstanding the foregoing, an assignment, alienation, pledge, attachment,
sale, transfer or other encumbrance of the Restricted Stock is effected by
operation of law, court order or otherwise, the affected Restricted Stock shall
remain subject to the risk of forfeiture, vesting requirement and
all other terms and conditions of this Award Agreement.  In the case of Participant’s death or
Disability, Participant’s vested rights under this Award Agreement (if any) may
be exercised and enforced by Participant’s guardian or legal representative.


 


4.             Forfeiture.  Except as provided in Section 2(d),
in the event of Participant’s Termination by the Company or by Participant for
any reason whatsoever, including, without limitation, as a result of
the Participant’s death or Disability, the unvested portion of the Restricted
Stock held by Participant at that time shall immediately be forfeited.


 


5.             Ownership Rights.  Subject to any
reservations, conditions or restrictions set forth in this Award Agreement
and/or the Plan, upon grant to Participant of the Restricted Stock, Participant
shall be entitled to all voting rights applicable to the Restricted Stock
during the Restricted Period.  In the
event of forfeiture of shares of Restricted Stock, the Participant shall have
no further rights with respect to such Restricted Stock.


 


6.             Reorganization of the Company.  The existence of
this Award Agreement shall not affect in any way the right or power of the
Company or its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company’s capital
structure or its business; any merger or consolidation of the Company; any
issue of bonds, debentures, preferred or prior preference stock ahead of or
affecting the Restricted Stock or the rights thereof; the dissolution or
liquidation of the Company, or any sale or transfer of all or any part of its
assets or business, or any other corporate act or proceeding, whether of a
similar character or otherwise.


 


7.             Certain Restrictions.  By executing this Award
Agreement, Participant acknowledges that he will enter into such written
representations, warranties and agreements and execute such documents as the
Company may reasonably request in order to comply with the securities law or
any other applicable laws, rules or regulations, or with this Award
Agreement or the terms of the Plan.


 


8.             Amendment and Termination.  This Award
Agreement or the Plan may be amended or terminated in accordance with the terms
of the Plan.


 


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9.             Taxes and Withholdings.


 


(a)           Tax Consequences. The
granting, vesting and/or sale of all or any portion of the Restricted Stock may trigger tax
liability.  Participant agrees that he
shall be solely responsible for any such tax liability.  Participant is encouraged to contact his tax
advisor to discuss any tax implications which may arise in connection with the
Restricted Stock.


 


(b)           Withholding.  Participant
acknowledges that the vesting of Restricted Stock granted pursuant to this Award
Agreement, the making of an election under Section 83(b) of the Code
and the vesting and payment of any accrued dividends may result in federal,
state or local tax withholding obligations. 
Participant understands and acknowledges that the Company will not
deliver shares of Common Stock or make any payment of accrued dividends until
it is satisfied that appropriate arrangements have been made to satisfy any tax
obligation under this Award Agreement or the Plan and agrees to make
appropriate arrangements suitable to the Company for satisfaction of all tax
withholding obligations.  Further, Participant
hereby agrees and grants to the Company the right to withhold from any payments
or amounts of compensation, payable in cash or otherwise, in order to meet any
tax withholding obligations under this Award Agreement or the Plan.  As such, if the Company requests that
Participant take any action required to effect any action described in this Section 9
and to satisfy the tax withholding obligation pursuant to this Award Agreement
and the Plan, Participant hereby agrees to promptly take any such action.


 


(c)           Section 83(b).
Participant understands that any election under Section 83(b) of the
Code with regard to the Restricted Stock must be made within thirty (30) days
of the Grant Date and that, in the event of such election, Participant will so
notify the Company in writing on or before such date.


 


10.          No Guarantee of Tax Consequences.  The Company, Board
and Committee make no commitment or guarantee to Participant that any federal,
state or local tax treatment will apply or be available to any person eligible
for benefits under this Award Agreement and assumes no liability whatsoever for
the tax consequences to Participant.


 


11.          Condition and Consideration.  The Company is
entering into this Award Agreement with Participant, in part, as consideration
for the execution by Participant and/or the continued enforceability of the Company’s
Proprietary Information and Inventions and Non-Competition Agreement.


 


12.          Severability.  In
the event that any provision of this Award Agreement is, becomes or is deemed
to be illegal, invalid, or unenforceable for any reason, or would disqualify
the Plan or this Award Agreement under any law deemed applicable by the Board
or the Committee, such provision shall be construed or deemed amended as
necessary to conform to the applicable laws, or if it cannot be construed or
deemed amended without, in the determination of the Board or the Committee,
materially altering the intent of the Plan or this Award Agreement, such
provision shall be stricken as to such jurisdiction, the Participant or this Award
Agreement, and the remainder of this Award Agreement shall remain in full force
and effect.


 


13.          Terms of the Plan Control.  This Award
Agreement and the underlying Award are made pursuant to the Plan.  Notwithstanding anything in this Award
Agreement to the contrary, the terms of the Plan, as amended from time to time
and interpreted and applied by the Committee, shall govern and take precedence.


 


14.          Governing Law.  This Award
Agreement shall be construed in accordance with (excluding any conflict or
choice of law provisions of) the laws of the State of Delaware to the extent
federal law does not supersede and preempt Delaware law.


 


15.          Consent to Electric Delivery; Electronic
Signature.  Except as otherwise prohibited by law, in
lieu of receiving documents in paper format, Participant agrees, to the fullest
extent permitted by law, to accept electronic delivery of any documents that
the Company may be required to deliver (including, but not limited to,
prospectuses, prospectuses supplements, grant or award notifications and
agreements, account statements, annual and quarterly reports, and all other
forms of communications) in connection with this and any other Award made or
offered by the Company.  Electronic
delivery may be via a Company electronic mail system or by reference to a
location on a Company intranet to which Participant has access.  Participant hereby consents to any and all
procedures the Company has established or may establish for an electronic
signature system for delivery and 


 


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acceptance
of any such documents that the Company may be required to deliver, and agrees
that his electronic signature is the same as, and shall have the same force and
effect as, his manual signature.


 


[signature blanks follow]


 


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  Executed:

  	
   

  	
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  FIBERTOWER CORPORATION

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Kurt Van Wagenen

  
	
   

  	
   

  	
   

  	
   

  	
  CEO

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Accepted:

  	
   

  	
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  PARTICIPANT:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  [PARTICIPANT NAME INSERT HERE]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Address:

  
	
   

  	
   

  	
   

  	
  [PARTICIPANT ADDRESS OF]

  
	
   

  	
   

  	
   

  	
  [RECORD INSERT HERE]

  
	
   

  	
   

  	
   

  	
   

  



 


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EXHIBIT A


 


Assignment
Separate from Certificate


 


FOR
VALUE RECEIVED,                                                               
hereby sells, assigns and transfers unto FiberTower Corporation, a Delaware
corporation (the “Company”),                           
(                          )
shares of common stock of the Company represented by Certificate No.                 
and does hereby irrevocably constitute and appoint                                                               ,
or his designee or successor, as attorney to transfer the said stock on the
books of the Company with full power of substitution in the premises.


 


	
  Dated:
                                    ,
  20      .

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature

  



 


INSTRUCTIONS:
 PLEASE DO
NOT FILL IN ANY BLANKS OTHER THAN THE SIGNATURE LINE.  THE PURPOSE OF THIS ASSIGNMENT IS TO ENABLE
THE COMPANY TO EXERCISE ITS “REPURCHASE OPTION” SET FORTH IN THE AWARD
AGREEMENT WITHOUT REQUIRING ADDITIONAL SIGNATURES ON THE PART OF THE
PURCHASER.


 


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