Exhibit 10.3


 


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.                                      Performance-Based Compensation.  This Award Agreement and the underlying Award
is intended to meet the requirements for Performance-Based Compensation and
shall be subject to and comply with Article IX of the Plan and Section 162(m) of
the Code and the regulations thereunder.


 


3.                                      Vesting.


 


(a)                      Vesting
Requirements. 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,
on the Certification Date, if:  (i) at
any time during the Performance Period, the FMV Per Share equaled or exceeded
$X.XX for twenty (20) consecutive trading days (the “Performance Goal”); (ii) except
as provided in Section 3(c), the Performance Period closes, (iii) the
Committee certifies that the Performance Goal was achieved; and (iv) except
as otherwise provided by Section 5(c), an event of Termination has
not occurred with respect to the Participant during the period beginning on the
Grant Date and ending on the Certification Date.


 


(b)                     Performance
Period.  “Performance Period”
shall mean a three (3) year period, beginning on the Grant Date and ending
on the third (3rd) anniversary of the Grant Date.


 


(c)                      Effect
of Change of Control on Vesting. 
If the Performance Goal is achieved during the Performance Period and
prior to the consummation of a Change of Control, Vesting of the Restricted
Stock shall be accelerated in accordance with the definition of “Certification
Date” below.


 


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


 


4.                                      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:


 


“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, then 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.


 


5.                                      Forfeiture.


 


(a)                                  Lapse
of Performance Period. If the Performance Goal is not
achieved on or before the last day of the Performance Period, all Restricted
Stock shall be forfeited as of 11:59 p.m. (Pacific Time) on the last day
of the Performance Period.


 


(b)                                 Termination.  Except as provided in Section 5(c),
if 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, occurs on or before the Certification Date, the unvested
portion of the Restricted Stock held by Participant at Termination shall
immediately be forfeited.


 


(c)                                  Involuntary
Termination without Cause and Termination for Good Reason.


 


(i)                                     Participant
shall not immediately forfeit any unvested Restricted Stock held by Participant
upon Termination if:


 


a)                                      Participant’s Termination is a Termination by
the Company without Cause and such Termination occurs on or after the first
anniversary of the Grant Date; or


 


b)                                     Participant’s Termination is a Termination by
the Participant for Good Reason or by the Company without Cause, and in either
case, if such Termination occurs on or after the first anniversary of the Grant
Date and during the period beginning thirty (30) days prior to, and ending one (1) year
after, the consummation of a Change of Control.


 


(ii)                                  Eligibility
for Vesting.  Restricted Stock
that is not forfeited by application of this Section 5(c) shall,
subject to forfeiture under Sections 5(a) and 5(b) and the
provisions of the Plan, continue to be eligible for vesting.


 


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


 


1)                                      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


 


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2)                                      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).


 


(iv)                              Cause.  Except in circumstances in which the
provisions of Section 5(c)(vi) apply, “Cause” shall have the meaning assigned to it in the
Plan.


 


(v)                                 Good
Reason.  Except in
circumstances in which the provisions of Section 5(c)(vi) 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.


 


(vi)                              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.


 


6.                                      Committee Determinations.


 


(a)                      Certification
Requirement.  No shares of
Restricted Stock or any rights to dividends accrued on such Restricted Stock
shall vest unless the Committee certifies in writing that the 


 


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Performance
Goal and all other applicable conditions and requirements of this Award Agreement
and the Plan have been satisfied and the resulting number of shares of
Restricted Stock that vested under this Award Agreement.


 


(b)                     Certification
Date.  “Certification Date”
means the date the Committee makes the certification described in Section 6(a) or
determines the requirements for such certification have not been or cannot be
met, which date shall be no later than 2 1/2 months from the last day of the
Performance Period; provided, however, that if the Performance Goal is achieved
during the Performance Period and prior to the consummation of a Change of
Control, the Certification Date shall be not later than immediately before the
consummation of the Change of Control.


 


7.                                      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 and shall forfeit all rights to any dividends in
respect of such forfeited shares of Restricted Stock.


 


8.                                      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.


 


9.                                      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.


 


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


 


11.                               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 11
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.


 


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12.                               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.


 


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


 


14.                               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.


 


15.                               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.


 


16.                               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.


 


17.                               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 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: 

  	
                                                           

  	
   .

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FIBERTOWER
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Kurt Van Wagenen

  
	
   

  	
   

  	
  CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
  Accepted:  

  	
                                                                     

  	
   .

  	
   

  
	
   

  	
   

  
	
   

  	
  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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