Exhibit 10.13


 


AMENDED AND RESTATED


FIBERTOWER CORPORATION


STOCK INCENTIVE PLAN, AS AMENDED


 


(1)           Purpose.     The
purpose of the FiberTower Corporation Stock Incentive Plan, as amended from
time to time (the “Plan”), is to promote the interests of FiberTower
Corporation, a Delaware corporation (the “Company”), and any Parent or
Subsidiary thereof and the interests of the Company’s stockholders by providing
an opportunity to selected employees, directors and officers of the Company or
any Parent or Subsidiary thereof as of the date of the adoption of the Plan or
at any time thereafter to purchase Common Stock of the Company. By encouraging
such stock ownership the Company seeks to attract, retain and motivate such
employees, directors and officers and other persons and to encourage such
employees, directors and officers and other persons to devote their best
efforts to the business and financial success of the Company. It is intended
that this purpose will be effected by the granting of “non-qualified stock options”
and/or “incentive stock options” to acquire the Common Stock of the Company and
by the granting of Restricted Stock. Under the Plan, the Committee (as
hereinafter defined) shall have the authority (in its sole discretion) to grant
“incentive stock options” within the meaning of Section 422(b) of the
Code, “non-qualified stock options” as described in Treasury Regulation Section 1.83-7
or any successor regulation thereto and Restricted Stock.


 


(2)           Definitions.     For
purposes of the Plan, the following terms used herein shall have the following
meanings, unless a different meaning is clearly required by the context:


 


A.        “Awards”
means, collectively, Options or Restricted Stock.


 


B.        “Board
of Directors” shall mean the Board of Directors of the Company.


 


C.        “Code”
shall mean the Internal Revenue Code of 1986, as amended.


 


D.        “Committee”
shall mean the committee of the Board of Directors referred to in Section 5
hereof, provided, that if no such committee is appointed by the Board of
Directors, the Board of Directors shall have all of the authority and
obligations of the Committee under the Plan.


 


E.         “Common
Stock” shall mean the Common Stock $.001 par value, of the Company.


 


F.         “Company”
has the meaning set forth in Section 1.


 


G.        “Employee” shall mean with respect to an
ISO, any person, including without limitation, an officer of the Company, who,
at the time an ISO is granted to such person hereunder, is employed by the
Company or any Parent or Subsidiary of the Company, and (ii) with respect
to a Non-Qualified Option or Restricted Stock, any person employed by, or
performing services for, the Company or any Parent or Subsidiary of the Company,
including, without limitation, consultants, officers and Non-Employee
Directors.


 


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H.        “Fair
Market Value” of a share of Common Stock as of any day shall mean
the average of the closing prices of sales of shares of Common Stock on all
national securities exchanges on which the Common Stock may at the time be
listed or, if there shall have been no sales on any such day, the average of
the highest bid and lowest asked prices on all such exchanges at the end of
such day, or, if on any day the Common Stock shall not be so listed, the
average of the representative bid and asked prices quoted in the NASDAQ system
as of 3:30 p.m., New York time, on such day, or, if on any day the Common
Stock shall not be quoted in the NASDAQ system, the average of the high and low
bid and asked prices on such day in the over-the-counter market as reported by
National Quotation Bureau Incorporated, or any single successor organization,
or, if the applicable day as of which the fair market value is to be determined
is not a day for which the above described information is available, such as in
the case of a weekend or holiday, then the determination of fair market value
shall be based on information for the most recent preceding date for which such
information is available. If on any applicable day the Common Stock is not
listed on any national securities exchange or quoted in the NASDAQ system or
the over-the-counter market, the fair market value of a share of Common Stock
on such day shall be the fair market value determined in good faith by the
Board of Directors.


 


I.          “ISO”
shall mean an Option granted to a Participant pursuant to the Plan that
constitutes and shall be treated as an “incentive stock option” as defined in Section 422(b) of
the Code.


 


J.         “Named
Executive Officers” shall have the meaning set forth in Section 14(1).


 


K.        “Non-Employee
Director” means a director of the Company’s Board of Directors who
is not a current employee of the Company or any Parent or Subsidiary.


 


L.         “Non-Qualified
Option” shall mean an Option granted to a Participant pursuant to
the Plan that is intended to be, and qualifies as, a “non-qualified stock
option” as described in Treasury Regulation Section 1.83-7 or any
successor regulation thereto and that shall not constitute or be treated as an
ISO.


 


M.       “Option”
shall mean any ISO or Non-Qualified Option granted to an Employee pursuant to
the Plan.


 


N.        “Parent”
of the Company shall have the meaning of “parent corporation” set forth in Section 424(e) of
the Code.


 


O.        “Participant”
means any Employee granted an Award under this Plan.


 


P.         “Plan”
has the meaning set forth in Section 1.


 


Q.        “Restricted
Period” means, with respect to an Award, the period established by
the Committee during which such Award either remains subject to forfeiture or
is not exercisable by the Participant.


 


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R.        “Restricted
Stock” means one or more shares of Common Stock, prior to the lapse
of restrictions thereon, granted under this Plan.


 


S.         “Subsidiary”
of the Company shall have the meaning of “subsidiary corporation” set forth in Section 424(f) of
the Code.


 


(3)           Eligibility.    Awards
may be granted to any Employee. The Committee shall have the sole authority to
select the persons to whom Awards are to be granted hereunder, and to determine
whether a person is to be granted a Non-Qualified Option, an ISO, Restricted
Stock or any combination thereof. No person shall have any right to participate
in the Plan. Any person selected by the Committee for participation during any
one period will not by virtue of such participation have the right to be selected
as a Participant for any other period.


 


(4)           Common Stock Subject to the Plan.


 


A.        Number
of Shares.    The total number of shares of
Common Stock for which Awards may be granted under the Plan shall not exceed in
the aggregate 23,314,588 shares of Common Stock (subject to adjustment as
provided in Section 7 hereof); provided that the number of shares of
Common Stock for which Awards may be granted under the Plan shall be increased,
on August 29, 2007 and on each anniversary of such date through the
remaining term of the Plan, by the lesser of: (i) one point five percent
(1.5%) of the number of shares of Common Stock issued and outstanding at the
time immediately prior to the date of increase, and (ii) a lesser number
of shares of Common Stock determined by the Board of Directors.  In order that ISOs may be granted under the
Plan, the number of shares for which ISOs may be granted under the Plan shall
not exceed in the aggregate 23,314,588 shares of Common Stock (subject to
adjustment as provided in Section 7 hereof).


 


B.        Reissuance.    The
shares of Common Stock that may be subject to Awards granted under the Plan may
be either authorized and unissued shares or shares reacquired at any time and
now or hereafter held as treasury stock as the Committee may determine. In the
event that any outstanding Award expires or is terminated or forfeited for any
reason, the shares of Common Stock allocable to the unexercised, terminated, or
forfeited portion of such Award may again be subject to an Award granted under
the Plan.


 


C.        Special
ISO Limitations.


 


1.             The
aggregate Fair Market Value (determined as of the date an ISO is granted) of
the shares of Common Stock with respect to which ISOs are exercisable for the
first time by an Employee during any calendar year (under all incentive stock
option plans of the Company or any Parent or Subsidiary of the Company) shall
not exceed $100,000. To the extent such limitations is exceeded, such Option
shall be considered a Non-Qualified Option for purposes of this Plan.


 


2.             No
ISO shall be granted to an Employee who, at the time the ISO is granted, owns
(actually or constructively under the provisions of Section 424(d) of
the Code) stock possessing more than 10% of the total combined voting power 


 


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of
all classes of stock of the Company or any Parent or Subsidiary of the Company,
unless (i) the option price is at least 110% of the Fair Market Value
(determined as of the time the ISO is granted) of the shares of Common Stock subject
to the ISO and (ii) the ISO by its terms is not exercisable more than five
years from the date it is granted.


 


D.        Limitations
Not Applicable to Non-Qualified Options.    Notwithstanding
any other provision of the Plan, the provisions of Sections 4(C)(1) (other
than the second sentence thereof) and (2) shall not apply, nor shall be
construed to apply, to any Non-Qualified Option granted under the Plan.


 


(5)          Administration
of the Plan


 


A.        Administration.    Subject
to the proviso in Section 2(D) hereof, the Plan shall be administered
by a committee of the Board of Directors (the “Committee”) established by the
Board of Directors. The Committee shall be appointed from time to time by, and
shall serve at the pleasure of, the Board of Directors. To the extent deemed
necessary or appropriate by the Board of Directors or the Committee, the
Committee may be limited to specified members for purposes of complying with
applicable provisions of the Code, securities laws, or the rules of any
exchange on which the Common Stock is traded.


 


B.        Grant
of Options.    The
Committee shall have the sole authority and discretion under the Plan (i) to
select the Employees who are to be granted Options hereunder, (ii) to
designate whether any Option to be granted hereunder is to be an ISO or a
Non-Qualified Option; (iii) to establish the number of shares of Common
Stock that may be subject to each Option; (iv) to determine the time and
the conditions subject to which Options may be exercised in whole or in part; (v) to
determine the amount (not less than the par value per share) and the form of
the consideration that may be used to purchase shares of Common Stock upon
exercise of any Option (including, without limitation, the circumstances under
which issued and outstanding shares of Common Stock owned by a Participant may
be used by the Participant to exercise an Option); (vi) to impose
restrictions and/or conditions with respect to shares of Common Stock acquired
upon exercise of an Option; (vii) to determine the circumstances under
which shares of Common Stock acquired upon exercise of any Option may be
subject to repurchase by the Company; (viii) to determine the
circumstances and conditions subject to which shares acquired upon exercise of
an Option may be sold or otherwise transferred, including, without limitation,
the circumstances and conditions subject to which a proposed sale of shares of
Common Stock acquired upon exercise of an Option may be subject to the Company’s
right of first refusal (as well as the terms and conditions of any such right
of first refusal), (ix) to establish a vesting provision for any Option
relating to the time when (or the circumstances under which) the Option may be
exercised by a Participant, including, without limitation, vesting provisions
that may be contingent upon (A) the Company’s meeting specified financial
goals, (B) a change of control of the Company or (C) the occurrence
of other specified events; (x) to accelerate the time when outstanding 


 


4

















 


Options may be exercised, and (xi) to
establish any other terms, restrictions and/or conditions applicable to any
Option not inconsistent with the provisions of the Plan.


 


C.        Grant
of Restricted Stock.    The
Committee may grant shares of Restricted Stock to any Employee.  Restricted Stock shall be subject to such
forfeiture restrictions (including, without limitation, limitations that
qualify as a “substantial risk of forfeiture” within the meaning given to that
term under Section 83 of the Code) and restrictions on transfer by the
Participant and repurchase by the Company as the Committee, in its sole
discretion, shall determine.


 


D.        Interpretation.    The
Committee shall be authorized to interpret the Plan in its discretion and may,
from time to time, adopt such rules and regulations, not inconsistent with
the provisions of the Plan, as it may deem advisable to carry out the purposes
of the Plan.


 


E.         Finality.    The
interpretation and construction by the Committee of any provision of the Plan,
any Award granted hereunder or any agreement evidencing any such Award shall be
final and conclusive upon all parties.


 


F.         Expenses,
Etc.    All expenses and liabilities incurred by
the Committee in the administration of the Plan shall be borne by the Company.
The Committee may employ attorneys, consultants, accountants or other persons
in connection with the administration of the Plan. The Company, and its
officers and directors, shall be entitled to rely upon the advice, opinions or
valuations of any such persons. No member of the Committee shall be liable for
any action, determination or interpretation taken or made in good faith with
respect to the Plan or any Award granted hereunder.


 


G.        Amendment
of Awards.    The Committee
may amend an Award; provided, however, that 
no amendment of an Award may, without the consent of the holder of the
Award, adversely affect such person’s rights with respect to such Award in any
material respect.  Notwithstanding the
foregoing, the Committee may amend any Award without the consent of the holder
if the Committee deems it necessary to avoid adverse tax consequences to the
holder under Code Section 409A.  The
Committee shall retain full power and discretion to accelerate or waive, at any
time, any term or condition of an Award that is not mandatory under this Plan;
provided, however, that the Committee shall not have discretion to accelerate
or waive any term or condition of an Award (i) if such discretion would
cause the Award to have adverse tax consequences to the Participant under 409A,
or (ii) if the Award is intended to qualify as “performance-based
compensation” for purposes of Section 162(m) of the Code and such
discretion would cause the Award not to so qualify.  Except in cases in which the Committee is
authorized to require other forms of consideration under this Plan, or to the
extent other forms of consideration must be paid to satisfy the requirements of
the Delaware Corporation Law, no consideration other than services may be
required for the grant of any Award.


 


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(6)           Terms and Conditions of Awards.


 


A.        ISOs.    The
terms and conditions of each ISO granted under the Plan shall be specified by
the Committee and shall be set forth in an ISO agreement between the Company
and the Participant in such form as the Committee shall approve. The terms and
conditions of each ISO shall be such that each ISO issued hereunder shall
constitute and shall be treated as an “incentive stock option” as defined in Section 422(b) of
the Code; provided that to the extent an Option intended to be an ISO does not
qualify as an ISO under the applicable requirements of the Code, such Option
shall be considered a Non-Qualified Option for purposes of this Plan. The terms
and conditions of any ISO granted hereunder need not be identical to those of
any other ISO granted hereunder.


 


The terms and conditions of each ISO shall include the following:


 


1.                                       The
option price shall be fixed by the Committee but shall in no event be less than
100% (or 110% in the case of an Employee referred to in Section 4(C)(2) hereof)
of the Fair Market Value of the shares of Common Stock subject to the ISO on
the date the ISO is granted.


 


2.                                       ISOs,
by their terms, shall not be transferable otherwise than by will or the laws of
descent and distribution, and, during a Participant’s lifetime an ISO shall be
exercisable only by the Participant.


 


3.                                       The
Committee shall fix the term of all ISOs granted pursuant to the Plan
(including, without limitation, the date on which such ISO shall expire and
terminate), provided, however, that such term shall in no event exceed five
years from the date on which such ISO is granted. Each ISO shall be exercisable
in such amount or amounts, under such conditions and at such times or intervals
or in such installments as shall be determined by the Committee in its sole
discretion.


 


4.                                       To
the extent that the Company or any Parent or Subsidiary of the Company is
required to withhold any Federal, state or local taxes in respect of any
compensation income realized by any Participant as a result of any “disqualifying
disposition” of any shares of Common Stock acquired upon exercise of an ISO
granted hereunder, the Company shall deduct from any payments of any kind
otherwise due to such Participant the aggregate amount of such Federal, state
or local taxes required to be so withheld or, if such payments are insufficient
to satisfy such Federal, state or local taxes, such Participant will be
required to pay to the Company, or make other arrangements satisfactory to the
Company regarding payment to the Company of, the aggregate amount of any such
taxes. All matters with respect to the total amount of taxes to be withheld in
respect of any such compensation income shall be determined by the Board of
Directors, in its sole discretion.


 


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5.                                       The
terms and conditions of each ISO may include the following provisions:


 


a)             In
the event a Participant’s employment by the Company or any Parent or Subsidiary
of the Company shall be terminated for cause or shall be terminated by the
Participant for any reason whatsoever other than as a result of the Participant’s
death or “disability” (within the meaning of Section 22(e)(3) of the
Code), the unexercised portion of any ISO held by such Participant at that time
may only be exercised within one month after the date on which the Participant
ceased to be so employed, and only to the extent that the Participant could
have otherwise exercised such ISO as of the date on which he ceased to be so
employed.


 


b)            In
the event a Participant’s employment by the Company or any Parent or Subsidiary
of the Company shall terminate for any reason other than (x) a termination
specified in clause (a) above or (y) by reason of the Participant’s
death or “disability” (within the meaning of Section 22(e)(3) of the
Code), the unexercised portion of any ISO held by such Participant at that time
may only be exercised within three months after the date on which the
Participant ceased to be so employed, and only to the extent that the
Participant could have otherwise exercised such ISO as of the date on which he
ceased to be so employed.


 


c)             In
the event a Participant shall cease to be employed by the Company or any Parent
or Subsidiary of the Company by reason of his “disability” (within the meaning
of Section 22(e)(3) of the Code), the unexercised portion of any ISO
held by such Participant at that time may only be exercised within one year
after the date on which the Participant ceased to be so employed, and only to
the extent that the Participant could have otherwise exercised such ISO as of
the date on which he ceased to be so employed.


 


d)            In
the event a Participant shall die while in the employ of the Company or a
Parent or Subsidiary of the Company (or within a period of one month after
ceasing to be an Employee for any reason other than his “disability” (within
the meaning of Section 22(e)(3) of the Code) or within a period of
one year after ceasing to be an Employee by reason of such “disability”), the
unexercised portion of any ISO held by such Participant at the time of his
death may only be exercised within one year after the date of such Participant’s
death, and only to the extent that the Participant could have otherwise
exercised such ISO at the time of his death. In such event, such ISO may be
exercised by the executor or administrator of the Participant’s estate or by
any person or persons who shall have acquired the ISO directly from the
Participant by bequest or inheritance.


 


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B.        Non-Qualified
Options.    The terms and conditions of each
Non-Qualified Option granted under the Plan shall be specified by the
Committee, in its sole discretion, and shall be set forth in a written option
agreement between the Company and the Participant in such form as the Committee
shall approve. The terms and conditions of each Non-Qualified Option will be
such (and each Non-Qualified Option agreement shall expressly so state) that
each Non-Qualified Option issued hereunder shall not constitute nor be treated
as an “incentive stock option” as defined in Section 422(b) of the
Code, but will be a “non-qualified stock option” for Federal, state and local
income tax purposes. The terms and conditions of any Non-Qualified Option
granted hereunder need not be identical to those of any other Non-Qualified
Option  granted hereunder.


 


The terms and conditions of each Non-Qualified Option Agreement shall
include the following:


 


1.                                       Except
in the case of substitute options that are not treated as a modification of an
existing option or the grant of a new option for purposes of Section 409A
of the Code, the option exercise price shall be not less than 100% of the Fair
Market Value per share of the shares of Common Stock subject to the
Non-Qualified Option on the date such Non-Qualified Option is granted.


 


2.                                       The
Committee shall fix the term of all Non-Qualified Options granted pursuant to
the Plan (including, without limitation, the date on which such Non-Qualified
Option shall expire and terminate). Such term may be no more than five years
from the date on which such Non-Qualified Option is granted. Each Non-Qualified
Option shall be exercisable in such amount or amounts, under such conditions
(including, without limitation, provisions governing the rights to exercise
such Non-Qualified Option), and at such times or intervals or in such
installments as shall be determined by the Committee in its sole discretion.


 


3.                                       Non-Qualified
Options shall not be transferable otherwise than by will or the laws of descent
and distribution, and during a Participant’s lifetime a Non-Qualified Option
shall be exercisable only by the Participant.


 


4.                                       The
terms and conditions of each Non-Qualified Option may include the following
provisions:


 


a)             In
the event a Participant’s employment by the Company or any Parent or Subsidiary
of the Company shall be terminated for cause or shall be terminated by the
Participant for any reason whatsoever other than as a result of the Participant’s
death or “disability” (within the meaning of Section 22(e)(3) of the
Code), the unexercised portion of any Non-Qualified Option held by such
Participant at that time may only be exercised within one month after the date
on which the Participant ceased to be an Employee, and only to the extent that
the Participant could have otherwise exercised such Non-Qualified Option as of
the date on which he ceased to be an Employee.


 


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b)            In
the event a Participant’s employment by the Company or any Parent or Subsidiary
of the Company shall terminate for any reason other than (x) a termination
specified in clause (a) above or (y) by reason of the Participant’s
death or “disability” (within the meaning of Section 22(e)(3) of the
Code), the unexercised portion of any Non-Qualified Option held by such
Participant at that time may only be exercised within three months after the
date on which the Participant ceased to be an Employee, and only to the extent
that the Participant could have otherwise exercised such Non-Qualified Option
as of the date on which he ceased to be an Employee.


 


c)             In
the event a Participant shall cease to be an Employee of the Company or any
Parent or Subsidiary of the Company by reason of his “disability” (within the
meaning of Section 22(e)(3) of the Code), the unexercised portion of
any Non-Qualified Option held by such Participant at that time may only be
exercised within one year after the date on which the Participant ceased to be
an Employee, and only to the extent that the Participant could have otherwise
exercised such Non-Qualified Option as of the date on which he ceased to be an
Employee.


 


d)            In
the event a Participant shall die while an Employee of the Company or a Parent
or Subsidiary of the Company (or within a period of one month after ceasing to
be an Employee for any reason other than his “disability” (within the meaning
of Section 22(e)(3) of the Code) or within a period of one year after
ceasing to be an Employee by reason of such “disability”), the unexercised
portion of any Non-Qualified Option held by such Participant at the time of his
death may only be exercised within one year after the date of such Participant’s
death, and only to the extent that the Participant could have otherwise
exercised such Non-Qualified Option at the time of his death. In such event,
such Non-Qualified Option may be exercised by the executor or administrator of
the Participant’s estate or by any person or persons who shall have acquired
the Non-Qualified Option directly from the Participant by bequest or
inheritance.


 


5.                                       To
the extent that the Company (or any Parent or Subsidiary thereof) is required
to withhold any Federal, state or local taxes in respect of any compensation
income realized by any Participant in respect of a Non-Qualified Option granted
hereunder or in respect of any shares of Common Stock acquired upon exercise of
a Non-Qualified Option, the Company shall deduct from any payments of any kind
otherwise due to such Participant the aggregate amount of such Federal, state
or local taxes required to be so withheld or, if such payments are insufficient
to satisfy such Federal, state or local taxes, or if no such payments are due
or to become due to such Participant, then, such Participant will be required
to pay to the Company, or make other arrangements satisfactory to the Company
regarding payment to the Company of, the aggregate amount of any such taxes.
All matters with respect to the total amount of taxes to be withheld in


 


9














 


respect of any such compensation
income shall be determined by the Committee, in its sole discretion.


 


C.        Restricted Stock.  The terms and conditions of each Restricted
Stock award granted under the Plan shall be specified by the Committee and
shall be set forth in a written agreement between the Company and the
Participant in such form as the Committee shall approve.  The terms and conditions of any Restricted
Stock award granted hereunder need not be identical to those of any other
Restricted Stock award granted hereunder.


 


The terms and conditions of each Restricted Stock
award agreement shall include the following:


 


1.             Restricted
Stock shall be subject to such forfeiture restrictions (including, without
limitation, limitations that qualify as a “substantial risk of forfeiture”
within the meaning given to that term under Section 83 of the Code) and
restrictions on transfer by the Participant and repurchase by the Company as
the Committee, in its sole discretion, shall determine.  Prior to the lapse of such restrictions, the
Participant shall not be permitted to transfer such shares.  The Company shall have the right to
repurchase or recover such shares for the lesser of (i) the fair market value
or (ii) amount of cash paid therefor, if any, if the Participant’s employment
with the Company is terminated by the Company or the Participant prior to the
lapse of such restrictions or the Restricted Stock is forfeited by the
Participant pursuant to the terms of the award agreement.


 


2.             Each
certificate representing Restricted Stock awarded under this Plan shall be
registered in the name of the Participant and, during the Restricted Period,
shall be left on deposit with the Company, or in trust or escrow pursuant to an
agreement satisfactory to the Committee, along with a stock power endorsed in
blank until such time as the restrictions on transfer have lapsed.  The grantee of Restricted Stock shall have
all the rights of a stockholder with respect to such shares including the right
to vote and the right to receive dividends or other distributions paid or made
with respect to such shares; provided, however, that the Committee may in the
award agreement restrict the Participant’s right to dividends until the
restrictions on the Restricted Stock lapse. 
Any certificate or certificates representing shares of Restricted Stock
shall bear a legend substantially similar to the following:


 


The shares represented by this certificate have been
issued pursuant to the terms of the FiberTower 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 such award dated
                              ,
200      .


 


3.             If,
for any reason, the restrictions imposed by the Committee upon Restricted Stock
are not satisfied at the end of the Restricted Period, any Restricted Stock
remaining subject to such restrictions shall thereupon be 


 


10

















 


forfeited by the Participant and reacquired by the
Company at a purchase price as set forth in Section (6)(C)(1) hereof.


 


4.             Subject
to the withholding requirements of  Section (6)(C)(7) of
this Plan, at the expiration of the Restricted Period, the Company will deliver
to the Participant a stock certificate evidencing, or credit to the Participant’s
book-entry account, the Restricted Stock (to the nearest full share) with
respect to which the Restricted Period has expired without charge to the
Participant, or his personal representative, free of all restrictions under
this Plan.


 


5.             No
shares of Common Stock will be issued or transferred pursuant to an Award
unless and until all then-applicable requirements imposed by federal and state
securities and other laws, rules and regulations and by any regulatory agencies
having jurisdiction and by any stock market or exchange upon which the Common
Stock may be listed, have been fully met. 
As a condition precedent to the issuance of shares pursuant to the grant
or exercise of an Award, the Company may require the grantee to take any
reasonable action to meet such requirements. 
The Company shall not be obligated to take any affirmative action in
order to cause the issuance or transfer of shares pursuant to an Award to
comply with any law or regulation described in the second preceding sentence.


 


6.             The
Company, in its discretion, may postpone the issuance and/or delivery of shares
of Common Stock upon any exercise of an Award until completion of such stock
exchange listing, registration or other qualification of such shares under any
state and/or federal law, rule or regulation as the Company may consider
appropriate, and may require any Participant to make such representations and
furnish such information as it may consider appropriate in connection with the
issuance or delivery of the shares in compliance with applicable laws, rules and
regulations.


 


7.             Any
issuance of unrestricted shares of Common Stock pursuant to the release of
restrictions on Restricted Stock shall not be made until appropriate
arrangements satisfactory to the Company have been made for the payment of any
tax amounts (federal, state, local or other) that may be required to be
withheld or paid by the Company with respect thereto.  Such arrangements may, at the discretion of
the Committee, include allowing the person to tender to the Company shares of
Common Stock owned by the person, or to request the Company to withhold shares
of Common Stock being acquired pursuant to the award agreement, whether through
the exercise of an Option or as a distribution pursuant to the award agreement,
which have an aggregate fair market value as of the date of such withholding
that is not greater than the sum of all tax amounts to be withheld with respect
thereto at the minimum statutory rate, together with payment of any remaining
portion of such tax amounts in cash or by check payable and acceptable to the
Company.


 


Notwithstanding the
foregoing, if on the date of an event giving rise to a tax withholding
obligation on the part of the Company the person is an officer or


 


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individual subject to Rule 16b-3, such person may
direct that such tax withholding be effectuated by the Company withholding the
necessary number of shares of Common Stock (at the minimum statutory tax rate)
from such award payment or exercise.


 


(7)           Adjustments.


 


1.             In
the event that, after the adoption of the Plan by the Board of Directors, the
outstanding shares of the Company’s Common Stock shall be increased or
decreased or changed into or exchanged for a different number or kind of shares
of stock or other securities of the Company or of another entity in each such
case (x) without receiving compensation therefore in money, services or
property and (y) through reorganization, merger or consolidation,
recapitalization, reclassification, stock split, split-up, combination or
exchange of shares, declaration of any dividends payable in Common Stock, or
any similar event, the Committee in good faith shall, subject to the provisions
of Section 7(3) below if the circumstances therein specified are
applicable, appropriately adjust (i) the number and type of shares of
Common Stock (and the grant or exercise price with respect to any Award)
subject to any outstanding Award (to the nearest possible full share);
provided, however, that the limitations of Section 424 of the Code shall
apply with respect to adjustments made to ISOs and the limitations of Section 409A
of the Code shall apply with respect to adjustments made to all Awards and (ii) the
number and type of shares of Common Stock for which Awards may be granted under
the Plan, as set forth in Sections 4(A) and 14(3) hereof, and such
adjustments shall be effective and binding for all purposes of the Plan.


 


2.             If
any capital reorganization or reclassification of the capital stock of the
Company or any consolidation or merger of the Company with another entity, or
the sale of all or substantially all its assets to another entity, shall be
effected in such a way that holders of Common Stock shall be entitled to
receive stock, securities or assets with respect to or in exchange for Common
Stock, then, subject to the provisions of Section 7(3) below if the
circumstances therein specified are applicable, each holder of an Option shall
thereafter have the right to purchase, upon the exercise of the Option in
accordance with the terms and conditions specified in the option agreement
governing such Option and in lieu of the shares of Common Stock immediately
theretofore receivable upon the exercise of such Option, such shares of stock,
securities or assets (including, without limitation, cash) as may be issued or
payable with respect to or in exchange for a number of outstanding shares of
such Common Stock equal to the number of shares of such Common Stock immediately
theretofore so receivable had such reorganization, reclassification,
consolidation, merger or sale not taken place.


 


3.             Notwithstanding
Sections 7(1) and 7(2) hereof, in the event of (i) any offer to
holders of the Company’s Common Stock generally relating to the acquisition of
all or substantially all of their shares, including, without limitation,


 


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through purchase, merger or otherwise, or (ii) any
proposed transaction generally relating to the acquisition of substantially all
of the assets or business of the Company (herein sometimes referred to as an “Acquisition”),
the Board of Directors may, in its sole discretion, cancel any outstanding
Options (provided, however, that the limitations of Section 424 of the
Code shall apply with respect to adjustments made to ISOs and the limitations
of Section 409A of the Code shall apply with respect to adjustments made
to all Options) and pay or deliver, or cause to be paid or delivered, to the
holder thereof an amount in cash or securities having a value (as determined by
the Board of Directors acting in good faith) equal to the product of (A) the
number of shares of Common Stock (the “Option Shares”) that, as of the date of
the consummation of such Acquisition, the holder of such Option had become
entitled to purchase (and had not purchased) multiplied by (B) the amount,
if any, by which (1) the formula or fixed price per share paid to holders
of shares of Common Stock pursuant to such Acquisition exceeds (2) the
option price applicable to such Option Shares.


 


4.             In
the event of an Acquisition or the consummation of any merger, reorganization,
business combination or consolidation of the Company or one of its subsidiaries
with or into any other entity, the Committee may cause Options to be issued in
substitution for an outstanding option or assume an option of the other entity
(the “Old Options”).  In such event,
Options may be issued in substitution or exchange for the Old Options provided
that such substituted or exchanged Options would not be considered a
modification of the Old Options according to the principles set forth in
Treasury Regulations 1.424-1(a) and 1.409A-1(b)(5).


 


(8)           Annual Grants to
Non-Employee Directors.


 


A.        Eligibility.  Non-Employee Directors are eligible for
Options granted pursuant to Section 5(B) hereof and such Options
shall be Non-Qualified Options. 
Notwithstanding the foregoing sentence, Non-Employee Directors are also
eligible to receive Awards pursuant to Section 5(C) hereof and this Section 8.


 


B.        Initial Grant.  Each Non-Employee Director who is a member of
the Board of Directors of the Company immediately after the effective time of
the merger contemplated by the Agreement and Plan of Merger dated May 14,
2006, by and among First Avenue Networks, Inc., Marlin Acquisition
Corporation and FiberTower Corporation, will automatically be granted a number
of shares of Restricted Stock equal in value to $85,000 (measured by the Fair
Market Value on the date of grant).  Thereafter,
on the date a Non-Employee Director first becomes a member of the Board of
Directors (whether through election by the stockholders of the Company or by
appointment by the Board of Directors to fill a vacancy), such Non-Employee
Director will automatically be granted a number of shares of Restricted Stock
equal in value to $85,000 (measured by the Fair Market Value on the date of
grant (in both cases above, the “Initial Grant”). Such Restricted Stock shall
vest on the day immediately following the date of grant of such Restricted
Stock.


 


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C.        Succeeding Grant.  Each Non-Employee Director shall
automatically be granted a number of shares of Restricted Stock equal in value
to $85,000 (measured by the Fair Market Value on the date of grant) on the
first regularly scheduled board meeting of each calendar year, provided on such
date the Non-Employee Director continues to serve on the Board in his or her
capacity as a Non-Employee Director (a “Succeeding Grant”).  Such Restricted Stock shall vest on the day
immediately following the date of grant of such Restricted Stock.


 


D.        Limitation on Succeeding Grants.  Notwithstanding the provisions of Section (8)C
above, in no event shall the aggregate number of shares of Restricted Stock
granted to all of the participating Non-Employee Directors at the first
regularly scheduled board meeting of a calendar year exceed 0.7% of the number
of fully diluted outstanding shares of Common Stock as of the date of such
grant.


 


(9)           Effect
of the Plan on Employment Relationship.    Neither
the Plan nor any Award granted hereunder to a Participant shall be construed as
conferring upon such Participant any right to continue in the employ of (or
otherwise provide services to) the Company or any Subsidiary or Parent thereof,
or limit in any respect the right of the Company or any Subsidiary or Parent
thereof to terminate such Participant’s employment or other relationship with
the Company or any Subsidiary or Parent, as the case may be, at any time.


 


(10)         Taxes.  The Committee will make such provision for
the withholding of taxes as it deems necessary. 
The Committee may, but need not, hold back shares of stock from an Award
or permit a Participant to tender previously owned shares of stock in
satisfaction of tax withholding requirements (but not in excess of the minimum
withholding required law).


 


(11)         Amendment
of the Plan.    The Board of Directors may amend
the Plan from time to time as it deems desirable; provided, however, that,
without the approval of the holders of a majority of the outstanding capital
stock of the Company entitled to vote thereon or consent thereto, the Board of
Directors may not amend the Plan (i) to increase (except for increases due
to adjustments in accordance with Section 7 hereof) the aggregate number
of shares of Common Stock for which Awards may be granted hereunder or (ii) to
change the class of Employees eligible to receive ISOs under the Plan.


 


(12)         Termination
of the Plan.    The Board of Directors may
terminate the Plan at any time. Unless the Plan shall theretofore have been
terminated by the Board of Directors, the Plan shall terminate ten years after
the date of its initial adoption by the Board of Directors. No Award may be
granted hereunder after termination of the Plan. The termination or amendment
of the Plan shall not alter or impair any rights or obligations under any Award
theretofore granted under the Plan.


 


(13)         Effective
Date of the Plan.    The Plan shall be effective
as of December 20, 2001, the date on which the Plan was adopted by the
Board of Directors and approved by the requisite holders of outstanding capital
stock of the Company.


 


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(14)         Named
Executive Officers.


 


1.             The
provisions of this Section 14 shall apply only to those executive officers
(i) whose compensation is required to be reported in the Company’s proxy
statement pursuant to Item 402(a)(3)(i) and (ii) (or any successor
thereto) of Regulation S-K (or any successor thereto) under the general rules and
regulations under the Exchange Act and (ii) whose total compensation,
including estimated or future compensation attributable to Awards under this
Plan or any other plan of the Company or any Parent or Subsidiary thereof, is
determined by the Board of Directors to possibly be subject to the limitations
on deductions imposed by Section 162(m) of the Code (“Named Executive Officers”). In the event
of any inconsistencies between this Section 14 and the other Plan
provisions as they pertain to Named Executive Officers, the provisions of this Section 14
shall control.


 


2.             No
amendment of this Plan with respect to any Named Executive Officer may be made
which would (i) increase the maximum amount that can be paid to any one
Participant pursuant to this Plan or (ii) modify the requirements as to
eligibility for participation in this Plan, unless the Company’s shareholders
have first approved such amendment in a manner which would permit the deduction
under Section 162(m) (or any successor thereto) of the Code of such
payment in the fiscal year it is paid. The Board of Directors shall amend this Section 14
and such other provisions as it deems appropriate, to cause amounts payable to
Named Executive Officers to satisfy the performance based compensation requirements
of Section 162(m) (or any successor thereto) and the Treasury
regulations promulgated thereunder.


 


3.             Notwithstanding
any provision of this Plan (including the provisions of this Section 14)
to the contrary, the amount of compensation which a Named Executive Officer may
receive with respect to Options which are granted hereunder shall be based
solely on an increase in the value of the applicable shares of Common Stock
after the date of grant of such Options. Thus, no Option with an exercise price
less than the Fair Market Value of the related shares of Common Stock on the
date of grant may be granted hereunder to a Named Executive Officer.
Furthermore, the maximum number of shares of Common Stock with respect to which
Options may be granted hereunder to any Named Executive Officer during any
calendar year may not exceed One Million (1,000,000) shares of Common Stock,
subject to adjustment as provided in Section 7.


 


(15)         Compliance with Securities
and Other Laws.  As a
condition to the issuance or transfer of any Option or any security issuable in
connection with such Option, the Company may require an opinion of counsel,
satisfactory to the Company, to the effect that (i) such issuance and/or
transfer will not be in violation of any applicable securities laws and (ii) such
issuance and/or transfer will not be in violation of the rules and
regulations of any securities exchange or automated quotation system on which
the Common Stock is listed or admitted to trading. Further, the Company may
refrain from issuing, delivering or transferring any Option or


 


15

















 


any security issuable in
connection with such Option until the Committee has determined that such
issuance, delivery or transfer will not violate such securities laws or rules and
regulations. The Company shall not be liable for damages due to delay in the
issuance, delivery or transfer of any Option or any security issuable in
connection with such Option or any agreement, instrument or certificate evidencing
such Option or security for any reason whatsoever, including, but not limited
to, a delay caused by the listing requirements of any securities exchange or
automated quotation system or any registration requirements under any state or
federal law, rule or regulation. The Company is under no obligation to
take any action or incur any expense to register or qualify the issuance,
delivery or transfer of any Option or any security issuable in connection with
such Option under applicable securities laws or to perfect any exemption from
such registration or qualification or to list any security on any securities
exchange or automated quotation system. Furthermore, the Company will have no
liability to any person for refusing to issue, deliver or transfer any Option
or any security issuable in connection with such Option if such refusal is
based upon the provisions of this Section 15. As a condition to any
issuance, delivery or transfer of any Option or any security issuable in
connection with such Option, the Company may place legends on any agreement,
instrument or certificate evidencing such Option or security; issue stop
transfer orders with respect thereto; require such market stand-off, lockup, or
similar agreements or undertakings as the Company deems necessary or desirable;
and require such agreements or undertakings as the Company may deem necessary
or advisable to assure compliance with applicable laws or regulations,
including, if the Company or its counsel deems it appropriate, representations
from the Participant (or successor in interest) to the effect that such
recipient is acquiring such Option or security solely for investment and not
with a view to distribution and that no distribution of the Option or security
will be made unless registered pursuant to applicable federal and state
securities laws, or in the opinion of counsel to the Company, such registration
is unnecessary.


 


(16)         Exemptions from Section 16(b) Liability.  It is the intent of the Company that the
grant of any Awards to or other transaction by a Participant who is subject to Section 16
of the Exchange Act shall be exempt from Section 16(b) of the
Exchange Act pursuant to an applicable exemption (except for transactions
acknowledged by the Participant in writing to be non-exempt).  Accordingly, if any provision of this Plan or
any Award agreement does not comply with the requirements of Rule 16b-3 as
then applicable to any such transaction, such provision shall be construed or
deemed amended to the extent necessary to conform to the applicable
requirements of Rule 16b-3 so that such Participant shall avoid liability
under Section 16(b) of the Exchange Act.


 


(17)         Miscellaneous.


 


A.        No Rights to Awards or Uniformity Among Awards.  No Participant or other person shall have any
claim to be granted any Award; there is no obligation for uniformity of
treatment of Participants, or holders or beneficiaries of Awards; and the terms
and conditions of Awards need not be the same with respect to each recipient.


 


B.        Conflicts with Plan.  In the event of any inconsistency or conflict
between the terms of this Plan and an Award, the terms of this Plan shall
govern.


 


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C.        Governing Law.  The validity, construction and effect of this
Plan and any rules and regulations relating to this Plan shall be
determined in accordance with applicable federal law and the laws of the State
of Delaware, without regard to any principles of conflicts of law.


 


D.        Gender, Tense and Headings.  Whenever the context requires such, words of
the masculine gender used herein shall include the feminine and neuter, and
words used in the singular shall include the plural.  Section headings as used herein are
inserted solely for convenience and reference and constitute no part of this Plan.


 


E.         Severability.  If any provision of this Plan or any Award is
or becomes or is deemed to be invalid, illegal or unenforceable in any
jurisdiction or as to any Participant or Award, or would disqualify this Plan
or any Award under any law deemed applicable by 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 Committee, materially altering the intent of this Plan or
the Award, such provision shall be stricken as to such jurisdiction,
Participant or Award, and the remainder of this Plan and any such Award shall
remain in full force and effect.


 


F.         Other Laws.  The Committee may refuse to issue or transfer
any shares or other consideration under an Award if, acting in its sole
discretion, it determines that the issuance or transfer of such shares or such
other consideration might violate any applicable law.


 


G.        Stockholder Agreements.  The Committee may condition the grant,
exercise or payment of any Award upon such person entering into a stockholders’
or repurchase agreement in such form as approved from time to time by the Board
of Directors.


 


H.        No Guarantee of Tax Consequences.  Neither the Board, nor the Company nor the
Committee makes any commitment or guarantee that any federal, state or local
tax treatment will apply or be available to any person participating or
eligible to participate hereunder.


 


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