Exhibit 10.1


 


FIBERTOWER
CORPORATION


 


WAIVER
OF


ACCELERATION
OF BENEFITS UPON CHANGE OF CONTROL


 


This Waiver of Acceleration of Benefits Upon Change of
Control (this “Waiver”), is entered into between FiberTower Corporation, a
Delaware corporation (the “Company”) and Kurt J. Van Wagenen (the “Executive”)
and is effective as of the date of the last signature hereof.


 


RECITALS


 


WHEREAS, a change of control of the Company may occur as a
result of the mandatory redemption of the Company’s 9.00% Mandatorily Redeemable
Convertible Senior Secured Notes due 2012 (the “Change of Control”);


 


WHEREAS, the Executive and the Company have entered into the
following agreements that provide the following benefits that would accelerate
upon a change of control:


 


1.  Pursuant to
that certain Signing Bonus Agreement dated April 9, 2008 between the Company
and the Executive (the “Signing Bonus Agreement”), the Company has agreed to
pay the Executive a cash signing bonus of $666,667 on April 9, 2010 and an
additional cash signing bonus of $333,333 on April 9, 2011 if the
Executive continues to remain employed on such dates.  If a change of control (as defined therein)
occurs on or before April 9, 2011, then any cash amounts not yet vested
and paid under the Signing Bonus Agreement will become immediately vested, due
and payable.


 


2.  Pursuant to that certain
Executive Employment Agreement dated April 9, 2008 between the Company and
the Executive (the “Employment Agreement”), the Company agreed to grant to the
Executive 875,000 shares of restricted stock and an option to purchase
1,125,000 shares of common stock of the Company under the FiberTower Stock
Incentive Plan.  Pursuant to that certain
Restricted Stock Agreement, on April 9, 2008 the Company granted to the
Executive 875,000 shares of restricted stock with 25% of the granted shares
vesting annually on each of the first, second, third and fourth anniversary
dates of the grant.  Pursuant to that
certain Incentive Stock Option, on April 9, 2008 the Company granted to
the Executive an incentive stock option to purchase 1,125,000 shares of common
stock of the Company with 25% of the shares which are subject to the option
vesting and becoming exercisable on the first anniversary date of the grant and
1/48th of
the shares which are subject to the option vesting and becoming exercisable
monthly for the next 36 months.  As
provided in the Employment Agreement and in the respective grant agreements, if
a change of control (as defined therein) occurs and the Executive does not
resign without good reason and is not terminated with cause during the
six-month period following the change of control, then any unvested shares of
restricted stock or options that have not yet become vested and exercisable
shall become vested and exercisable six months following the change of control.


 


3.  Pursuant to that certain
Incentive Stock Option, on March 17, 2009 the Company granted to the
Executive an incentive stock option to purchase 500,000 shares of common stock 


 


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of the Company
with 25% of the shares which are subject to the option vesting and becoming
exercisable on the first anniversary date of the grant and 2.08% of the shares
which are subject to the option vesting and becoming exercisable monthly for
the next 36 months.  In the event of a
change of control (as defined therein), then immediately prior to the
consummation of such change of control, any of the shares which are subject to
the option that have not yet become vested and exercisable will vest and become
exercisable on a basis that gives the Executive an opportunity, as determined
by the Company’s board of directors, to participate as a stockholder in the
change of control transaction following exercise;


 


WHEREAS, the Executive desires to voluntarily relinquish,
waive, forfeit and disclaim, the acceleration of certain of the above described
benefits that would otherwise occur upon the Change of Control; and


 


WHEREAS, the Company and Executive wish to waive any
requirement in Section 5(h)(i) and (ii) of the Employment
Agreement that would otherwise delay vesting of the cash signing bonus and
shares of restricted stock until six months after the Change of Control.


 


NOW THEREFORE, in consideration of the mutual terms, conditions,
and covenants set forth herein, and the ongoing employment relationship and
compensation to be paid and received in connection therewith, the Company and
Executive agree as follows:


 


1.                                       Waiver of Acceleration of Benefits Upon
Change of Control.  The Executive hereby unconditionally and
voluntarily and irrevocably relinquishes, waives forfeits and disclaims the
acceleration of the following benefits that would otherwise result from the Change
of Control:


 


(i)                                     Acceleration of vesting and payment of
the cash signing bonus that would occur by reason of the Change of Control of
any amounts that would otherwise vest and become payable pursuant to the terms
of the Signing Bonus Agreement after December 31, 2010.


 


(ii)                                  Acceleration of exercisability that would
occur by reason of the Change of Control of the incentive stock options granted
on April 9, 2008 and March 17, 2009 that have not otherwise become
vested and exercisable as of the Change of Control; provided, however, that
with respect to any incentive stock option the exercise price of which is less
than the Fair Market Value (as defined in the FiberTower Corporation Stock
Incentive Plan) of the common stock of the Company on the effective date of
this Waiver, the acceleration of exercisability of these options is waived only
if the Change of Control occurs after December 31, 2009.


 


(iii)                               Acceleration of vesting that would occur
by reason of the Change of Control of any shares of restricted stock which were
granted on April 9, 2008 that would otherwise vest after December 31,
2010.


 


2.                                       Waiver of any Six-Month Delay in
Employment Agreement Upon Change of Control.  The Company
and the Executive hereby agree that the provisions of Section 5(h)(i) and



 


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(ii) of the Employment Agreement that would otherwise delay
vesting until six months after a change of control shall not apply as a result
of the Change in Control to the vesting and payment of any cash signing bonus
amount payable pursuant to the terms of the Signing Bonus Agreement and to any
shares of restricted stock which were granted on April 9, 2008, that
would, in the absence of a change in control, otherwise vest on April 9,
2010.


 


3.                                       Except as otherwise provided herein, all
other terms and provisions of the agreements described above will remain in
full force and effect.


 


The parties have executed this Waiver effective as of the date of the
last signature hereof.


 


	
  FIBERTOWER
  CORPORATION

  	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ John P.
  Kelly

  	
   

  	
  By:

  	
  /s/ Kurt J. Van
  Wagenen

  
	
  Printed Name:

  	
  John P. Kelly

  	
   

  	
  Printed Name:

  	
  Kurt J. Van
  Wagenen

  
	
  Title:

  	
  Chairman-Compensation
  Committee-

  	
   

  	
  Title:

  	
  President and
  CEO

  
	
   

  	
  FiberTower
  Corporation

  	
   

  	
  Date:

  	
  December 11,
  2009

  
	
  Date:

  	
  December 16,
  2009

  	
   

  	
   

  	
   

  
							



 


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