Exhibit 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
AGREEMENT made and entered into by and between
FiberTower Corporation, a Delaware corporation, (the
“Company”) and Kurt J. Van Wagenen (the
“Executive”) on the 9th day of April, 2008.
WHEREAS, the operations of the Company and its
Affiliates are a complex matter requiring direction and leadership
in a variety of arenas, including financial, strategic planning,
regulatory, community relations and others;
WHEREAS, the Executive is possessed of certain
experience and expertise that qualify him to provide the direction
and leadership required by the Company and its Affiliates;
and
WHEREAS, subject to the terms and conditions
hereinafter set forth, the Company therefore wishes to employ the
Executive as its President and Chief Executive Officer and the
Executive wishes to accept such employment;
NOW, THEREFORE, in consideration of the
foregoing premises and the mutual promises, terms, provisions and
conditions set forth in this Agreement, the parties hereby
agree:
1.
Employment . Subject to the terms and conditions set forth
in this Agreement, the Company hereby offers and the Executive
hereby accepts employment.
2.
Term . Subject to earlier termination as hereafter provided,
this Agreement shall have an original term of three (3) years
commencing on the date hereof (the “Effective Date”)
and shall be automatically extended thereafter for successive terms
of one (1) year each, unless either party provides notice to
the other at least sixty (60) days prior to the expiration of the
original or any extension term that the Agreement is not to be
extended. The term of this Agreement, as from time to time extended
or renewed, is hereafter referred to as “the term of this
Agreement” or “the term hereof.”
3.
Capacity and Performance .
(a)
During the term hereof, the Executive shall serve the Company as
its President and Chief Executive Officer. In addition, the Company
shall promptly nominate and recommend the Executive for membership
on the Board of Directors of the Company (the “Board”),
and if so elected or appointed, without further compensation,
during the term hereof, the Executive shall serve as a member of
the Board and, if so elected or appointed from time to time, also
shall serve as a director and/or officer of one or more of the
Company’s Affiliates.
(b)
During the term hereof, the Executive shall be employed by the
Company on a full-time basis and shall perform the duties of his
position and such other duties on behalf of the Company and its
Affiliates, reasonably consistent with his position, as may be
designated from time to time by the
Board or its designee; provided that the
Company recognizes that there will be a transition period from the
Effective Date through June 30, 2008 during which the
Executive shall perform his duties in part from his current
location in Massachusetts, which shall not be deemed a violation of
this provision or constitute Cause within the meaning of
Section 5(c).
(c)
During the term hereof, the Executive shall devote his full
business time and his best efforts, business judgment, skill and
knowledge exclusively to the advancement of the business and
interests of the Company and its Affiliates and to the discharge of
his duties and responsibilities hereunder. The Executive shall not
engage in any other business activity or accept any professional,
governmental or academic position during the term of this
Agreement, except for non-profit activities that do not materially
interfere with the performance of the Executive’s services
hereunder or as may be expressly approved in advance by the Board
in writing.
4.
Compensation and Benefits . As compensation for all services
performed by the Executive under and during the term hereof and
subject to performance of the Executive’s duties and of the
obligations of the Executive to the Company and its Affiliates
pursuant to this Agreement:
(a)
Base Salary . The Company shall pay the Executive a base
salary at the rate of Three Hundred and Fifty Thousand Dollars
($350,000) per annum, payable in accordance with the payroll
practices of the Company for its executives. Such base salary
shall be reviewed by the Board on no less than an annual basis, and
shall be subject to increase at such times by the Board, in its
sole discretion, but shall not be subject to decrease. Such base
salary, as from time to time increased, is hereafter referred to as
the “Base Salary.”
(b)
Incentive and Bonus Compensation .
(i)
The Executive shall be eligible annually for a bonus (the
“Annual Bonus”) as determined by the Board with a
target (the “Target Bonus”) of 75% of the Base
Salary. The range of possible Annual Bonus shall be
determined annually but shall not be less than 150% of the Target
Bonus on the upside. For 2008, the range of potential Annual
Bonus shall be 0% to 200% of Target Bonus. The amount of the Annual
Bonus shall be determined annually by the Board, based on its
assessment, in its reasonable discretion, of the Executive’s
performance and that of the Company against appropriate and
reasonably obtainable goals which shall be established no later
than March 31 st of the calendar year in question
by the Compensation Committee of the Board after consultation with
the Executive. The parties acknowledge that the Compensation
Committee may revise the bonus goals applicable to all executives
of the Company, including the Executive, during a
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calendar year in consultation with the
Executive. In the event an Annual Bonus is payable hereunder
for a portion of a calendar year (such as 2008, when the Executive
will not have been employed for a full calendar year), the Annual
Bonus will be pro-rated for the portion of the year during which
the Executive was employed by the Company. The Annual Bonus
(including any pro-rated bonus), if any, shall be paid in
accordance with the Company’s regular bonus payment practices
but not later than two and one-half months following the end of the
calendar year during which the bonus was earned. Any bonus or
incentive compensation paid to the Executive shall be in addition
to the Base Salary.
(ii)
Executive shall be paid a signing bonus in accordance with the
terms of the Signing Bonus Agreement (the “Signing Bonus
Agreement”) entered into the date hereof between the Company
and the Executive.
(c)
Restricted Stock . In connection with the
Executive’s appointment as President and Chief Executive
Officer, the Company shall grant to the Executive 875,000 shares
(the “Restricted Stock”) of the common stock of the
Company as a Restricted Stock grant under the Company’s Stock
Incentive Plan, as amended from time to time (the
“Plan”). Twenty-five percent (25%) of the shares
of Restricted Stock shall vest on each of the first, second, third
and fourth anniversaries of the date of grant, provided that the
Executive is still employed by the Company on each such date.
The Restricted Stock granted to the Executive under this Agreement
shall be subject to the Plan, to any applicable restricted stock
certificate, restricted stock agreement or shareholder agreement
and to such other restrictions as are generally applicable to
restricted stock grants to employees of the Company, as in effect
from time to time. The grant of the Restricted Stock to the
Executive is subject to the Executive signing an acknowledgment of
the terms of the applicable restricted stock agreement and the
Plan. The Executive shall not be eligible to receive any stock
options, restricted stock or other equity of the Company, whether
under an equity incentive plan or otherwise, except as expressly
provided in this Agreement or as otherwise expressly authorized for
him individually by the Board or the Compensation Committee.
(d)
Stock Options . In connection with the Executive’s
appointment as President and Chief Executive Officer, the Company
shall grant to the Executive an option (the “Option”)
to purchase 1,125,000 shares of the common stock of the Company at
an exercise price per share equal to the Fair Market Value (as
defined in the Plan) on the date of grant. Twenty-five percent
(25%) of the shares which are subject to the Option shall become
exercisable on the first anniversary of the date of grant, provided
that the Executive is still employed by the Company on such date.
Thereafter, 1/48th of the of the shares which are subject to the
Option shall
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vest and become exercisable monthly, provided
that the Executive is still employed by the Company on each such
date. The stock options granted to the Executive under this
Agreement shall be subject to the Plan, to any applicable stock
option certificate, stock option agreement or shareholder agreement
and to such other restrictions as are generally applicable to stock
options issued to employees of the Company, as in effect from time
to time. The grant of the Option to the Executive is subject to the
Executive signing an acknowledgment of the terms of the applicable
stock option agreement and the Plan. The Executive shall not be
eligible to receive any stock options, restricted stock or other
equity of the Company, whether under an equity incentive plan or
otherwise, except as expressly provided in this Agreement or as
otherwise expressly authorized for him individually by the Board or
the Compensation Committee.
(e)
Vacations . The Executive shall be entitled to four
(4) weeks of vacation per year, to be taken at such times and
intervals as shall be determined by the Executive, subject to the
reasonable business needs of the Company. In addition, the
Executive shall be entitled to up to two (2) weeks of unpaid
vacation during the Transition Period (as defined below).
Vacation shall otherwise be governed by the policies of the
Company, as in effect from time to time.
(f)
Other Benefits . During the term hereof and subject to any
contribution therefor generally required of executives of the
Company, the Executive shall be entitled to participate in any and
all employee benefit plans from time to time in effect for senior
executives of the Company generally, except to the extent such
plans are in a category of benefit otherwise provided to the
Executive under this Agreement ( e.g ., severance pay). Such
participation shall be subject to the terms of the applicable plan
documents and generally applicable Company policies.
(g)
Business Expenses . The Company shall pay or reimburse the
Executive for all reasonable customary business expenses incurred
or paid by the Executive in the performance of his duties and
responsibilities hereunder, subject to restrictions on such
expenses set by the Board and to such reasonable substantiation and
documentation as may be specified by the Company from time to
time.
(h)
Attorneys’ Fees . The Company shall pay or
reimburse the Executive for all reasonable attorneys’ fees
and costs incurred in connection with the negotiation of this
Agreement, not to exceed $5,000.
(i)
Relocation Expense Reimbursement . The Company will
reimburse Executive, upon Executive’s providing reasonable
documentation thereof, for the following actual reasonable costs
incurred by Executive in connection with Executive’s
relocation to the San Francisco, California bay area:
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(i)
Temporary housing expenses for the Executive from the Effective
Date through the earlier of (A) June 30, 2008, or
(B) the date the Executive establishes a new residence in the
San Francisco Bay area (the “Transition Period”);
(ii)
Reimbursement in accordance with the Company’s travel policy
for reasonable expenses incurred by the Executive during the
Transition Period in connection with his travel from his current
primary residence in Massachusetts to the Company’s San
Francisco office or to other locations necessitated by his duties
under this Agreement;
(iii)
Payment of normal real estate commissions (not to exceed 6%) and
normal closing costs incurred by Executive in connection with the
sale by Executive of his current primary residence;
(iv)
Travel expenses for up to two (2) trips for Executive and his
spouse to the San Francisco, California bay area to search for a
new primary residence;
(v)
Advance purchase coach airfare for Executive and his family to
travel to San Francisco, California upon moving;
(vi)
Until the earlier of (i) 60 days following sale of
Executive’s Massachusetts residence or
(ii) December 31, 2008, temporary housing expenses for
Executive and his family;
(vii)
Normal costs for moving Executive’s household goods and up to
two (2) automobiles to the San Francisco, California bay area
from his current primary residence (excluding the costs of moving
any unusual items such as pianos, home gymnasium equipment, etc.);
and
(viii)
Up to $6,000 for ancillary costs associated with such
relocation.
In addition to the
reimbursement of the relocation expenses described above, Executive
shall be entitled to receive from the Company an additional payment
in an amount sufficient to indemnify him on a net after-tax basis
for any income tax associated with such reimbursements. All
sums paid pursuant to this Section 4(i) must be repaid to
the Company in the event the Executive terminates his employment
other than for Good Reason (as defined in Section 5 below)
within twelve (12) months of the Effective Date.
5.
Termination of Employment and Severance Benefits . This
Agreement and the Executive’s employment hereunder shall
terminate under the following circumstances:
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(a)
Death . In the event of the Executive’s death during
the term hereof, the Executive’s employment hereunder shall
immediately and automatically terminate. In such event, the Company
shall pay to the Executive’s designated beneficiary or, if no
beneficiary has been designated by the Executive, to his estate,
(i) the Base Salary earned but not paid through the date of
termination, (ii) pay for any vacation time earned but not
used through the date of termination, (iii) any Annual Bonus
awarded for the year preceding that in which termination occurs but
unpaid on the date of termination; (iv) a pro-rated Annual
Bonus for year in which the termination occurs; and (v) any
business expenses incurred by the Executive but un-reimbursed on
the date of termination, provided that such expenses and required
substantiation and documentation are submitted within ninety (90)
days of termination and that such expenses are reimbursable under
Company policy (all of the foregoing, “Final
Compensation”). In addition, the Company shall pay to
the Executive any Signing Bonus owed under the terms of the Signing
Bonus Agreement.
(b)
Disability .
(i)
The Company may terminate the Executive’s employment
hereunder, upon notice to the Executive, in the event that the
Executive becomes disabled during his employment hereunder through
any illness, injury, accident or condition of either a physical or
psychological nature and, as a result, is unable to perform
substantially all of his duties and responsibilities hereunder for
one hundred and eighty (180) days during any period of three
hundred and sixty-five (365) consecutive calendar days. In the
event of such termination, the Company shall have no further
obligation to the Executive, other than for payment of Final
Compensation and Severance Pay and Medical Benefits, as defined
below, and any obligations under the Signing Bonus Agreement.
(ii)
The Board may designate another employee to act in the
Executive’s place during any period of the Executive’s
disability. Regardless of whether the Board makes any such
designation, the Executive shall continue to receive all
compensation set forth in Section 4 during the period of any
disability, until the termination of his employment in accordance
with this Agreement. If, during any such disability period,
the Executive also receives disability income payments under the
Company’s disability income plan, the Company shall be
entitled to subtract such amounts from the Base Salary paid to the
Executive during such disability period.
(iii)
If any question shall arise as to whether during any period the
Executive is disabled through any illness, injury, accident or
condition of either a physical or psychological nature so as to be
unable to perform substantially all of his duties and
responsibilities
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hereunder, the Executive may, and at the
request of the Company shall, submit to a medical examination by a
physician selected by the Company to whom the Executive or his duly
appointed guardian, if any, has no reasonable objection to
determine whether the Executive is so disabled and such
determination shall for the purposes of this Agreement be
conclusive of the issue. If such question shall arise and the
Executive shall fail to submit to such medical examination, the
Company’s determination of the issue shall be binding on the
Executive.
(c)
By the Company for Cause . The Company may terminate the
Executive’s employment hereunder for Cause at any time upon
notice to the Executive setting forth in reasonable detail the
nature of such Cause. The following, as determined by the Board in
its reasonable judgment, shall constitute Cause for
termination:
(i)
The Executive’s failure to perform (other than by reason of
disability), or serious negligence in the performance of, his
material duties and responsibilities to the Company or any of its
Affiliates; provided that (A) this provision shall not apply
to mere dissatisfaction with Executive’s performance or his
failure to achieve particular objectives or goals, and
(B) this provision shall only constitute “Cause”
where the Company has previously provided the Executive with
reasonably detailed written notice of his alleged failure or
negligence which the Executive fails to cure within seven
(7) days of receipt of that notice;
(ii)
Material breach of Section 7, 8 or 9 hereof or breach of any
fiduciary duty owed to the Company or any of its Affiliates:
(iii)
Fraud or embezzlement or other dishonesty which is material
(monetarily or otherwise) with respect to the Company or any of its
Affiliates; or
(iv)
Indictment, conviction or plea of nolo contendere to a felony or
other crime involving moral turpitude.
Upon termination
of the Executive’s employment for Cause, the Company shall
pay the Executive the Final Compensation, but excluding any
pro-rated Annual Bonus for the calendar year in which the
termination occurs, and other than such payment the Company shall
have no further obligation to the Executive.
(d)
By the Company Other than for Cause . The Company may
terminate the Executive’s employment hereunder other
than
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