letter proposes the following Separation Agreement and General Release (this “Agreement”)
between you and FiberTower Network Services Corp., a wholly-owned subsidiary of
FiberTower Corporation (together, hereinafter referred to as “FiberTower”)
regarding the terms of your separation of employment from FiberTower.
last day of employment with FiberTower will be August 31,
2008 (your “Termination Date”).
order to effect the termination of your employment and to provide you with
certain benefits that you would not otherwise be entitled to, you and
FiberTower agree as follows:
1. This Agreement shall not be in any
way construed as an admission by FiberTower that it has acted wrongfully with
respect to you or any other person, or that you have any rights whatsoever
2. Even if you do not sign this
Agreement, FiberTower will pay you the compensation that you have earned
through your Termination Date, accrued and unused vacation benefits through
your Termination Date, and performance bonus earned through the Termination Date. Similarly, even if you do not sign this
Agreement, you will be offered benefits to which you are entitled under the
Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), and you
retain all benefits under FiberTower’s 401(k) Plan; provided, however,
that you will not be entitled to make any further 401(k) payroll deduction
contributions after your Termination Date and all FiberTower matching
contributions will also cease as of your Termination Date.
3. In exchange for the promises
contained in this Agreement and the release of claims as set forth below, and
provided that you sign this Agreement and return the original to FiberTower on
or prior to October 14, 2008 and do not revoke this Agreement as set forth
in Paragraph 9(d) below:
a. FiberTower will pay you a severance
allowance amount of $99,999.95 less any
required withholdings, which is equal 6 months salary based on your most current annual base
salary. This severance allowance amount
will be payable in installments equivalent to your regular bi-weekly rate until
the gross severance amount is paid in full.
The bi-weekly payment amounts will be paid in accordance to FiberTower’s
normal payroll cycle in the form of check or direct deposit (whichever method
is currently elected). Your first
payment installment will be processed on a regularly scheduled payroll
following the 8th day of this signed Agreement.
b. FiberTower is also offering
company-paid COBRA, if elected, for you and your dependents (if currently
elected) towards your medical and dental coverage under the FiberTower Group
Insurance Plan beginning 9/1/2008 and ending 2/28/09. After such date, you will be entitled to
remain on COBRA through February 28, 2010 at your own cost.
c. FiberTower is extending to you
bonus payment eligibility for a prorate 3Q2008 Bonus Payout. The bonus calculation will be subject to plan
requirements and normal payout schedule.
The payout for all plan participants will take place within 30-days
after FiberTower’s quarterly earnings release and announcement.
d. On August 31, 2008 you will no
longer be subject to the current mandatory black-out period. Please note that, in accordance with
Paragraph 6.B.4.b of the FiberTower Stock Option Plan, all of your FiberTower
options which are fully vested but unexercised as of the Termination Date must
be exercised on or prior to November 28, 2008 or they will become null and
4. In consideration of the promises
contained in this Agreement, you agree as follows:
a. That, to the full extent permitted by law, you (for
yourself, your spouse, executors, heirs, beneficiaries, representatives,
personal representatives, successors, assigns, legatees, and anyone claiming by
or through you), upon signing this Agreement, do immediately, completely,
knowingly and voluntarily release and forever discharge, covenant not to
present or to sue, and waive any right to recover from FiberTower (including
its predecessors, successors, affiliates, partial affiliates, shareholders,
officers, directors, agents, insurers, representatives, employees and former
employees, all individually and in their official capacities) from any and all
claims relating to or arising from your employment and termination of
employment with FiberTower and any act that has occurred as of the date of the
execution of this Agreement in connection with any service that you may have
rendered or may have been requested to render to or on behalf of FiberTower at
anytime; and that this release shall be construed as broadly as possible and
shall include without limitation any (1) contractual or other claims of
employment, benefits, or payment you may have, if any; (2) claims, if any,
arising out of or in connection with the initiation, termination or existence
of your employment relationship with FiberTower or any service performed on
behalf of FiberTower; (3) claims, if any, regarding wages and/or
compensation in any form whatsoever, vacation, leaves, bonuses, commissions,
monies, perquisites, benefits, severance, or any other item attributable to or
arising in connection with your employment with FiberTower; and (4) without
limitation, claims, if any, arising under the following:
· Title VII of the Civil Rights Act of 1964, as
· The Americans with Disabilities Act of 1990,
· The Age Discrimination in Employment Act of
1967, as amended(1);
· The Fair Labor Standards Act of 1938, as
· The Family and Medical Leave Act of 1993;
· The Employee Retirement Income Security Act of
1974 (ERISA), as amended;
· The Sarbanes-Oxley Act of 2002;
· The Occupational Safety and Health Act of 1970
· The Equal Pay Act of 1963;
· The National Labor Relations Act (NLRA);
· The Immigration Reform and Control Act (IRCA);
· The Uniformed Services Employment and
Reemployment Rights Act;
· any other federal, state or local civil or
human rights law or other local, state or federal law, regulation or ordinance;
· any public policy, contract, tort, or common
law (including without limitation those relating to fraud, whistleblower,
retaliation, negligent or intentional conduct of any nature); or
· any allegation for damages,
costs, fees, or expenses including expert witness and attorneys’ fees incurred
in these matters.
(1) As mandated by the ADEA, not
withstanding any other provision stated herein including the covenant not to
sue, you are not relinquishing your right to challenge the validity of this
Release or any future claims under the ADEA that may arise after you sign this
b. You agree that you shall not bring any legal action
against any of the Releasees for any claim waived and released under this
Agreement and that you represent and warrant that no such claim has been filed
to date. You further agree that should
you bring any type of administrative or legal action arising out of claims
waived under this Agreement, you will bear all legal fees and costs, including
those of the Releasees.
c. You understand and agree that this Agreement is final
and binding when you execute it. You
agree to keep the terms of this Agreement and payment amount completely
confidential. You further agree not to
disclose any information or materials FiberTower considers to be proprietary,
client privileged, or otherwise confidential.
d. You agree that you will abide by the terms of all
policies of and agreements you have signed with FiberTower, including those
concerning non-disclosure or use of trade secrets or proprietary or
confidential information. You
specifically reaffirm your agreement with and your obligations to FiberTower as
set out within, but without limitation, the FiberTower Proprietary Information
and Inventions and Non-Competition Agreement, together with all other
FiberTower policies on confidential and proprietary information. You also agree not to challenge the
enforceability of these agreements and policies. You also reaffirm your release of any claim
you may have to FiberTower’s trade secrets and proprietary and confidential
information and goodwill. You also
reaffirm your agreement not to disclose or use FiberTower’s trade secrets or
proprietary or confidential information or interfere with FiberTower’s good
will. You further agree that, in the
course of performing your duties for FiberTower, FiberTower has provided you
with certain proprietary information, confidential information, trade secrets,
specialized training, and access to its good will and to computer information
which are the exclusive proprietary information, property, and valuable assets
of FiberTower. You acknowledge that
FiberTower also has a vital interest in and desires to protect such information
and property from disclosure; and that you have not and will not, directly or
indirectly, disclose or use, FiberTower’s trade secrets and other confidential
and proprietary information, specialized training, or other restricted information
learned during your term of employment.
Trade secrets and confidential and proprietary information include,
without limitation, customer lists, good will, personnel lists, fee schedules,
training manuals and materials, devices, inventions, processes and compilations
of information, records and specifications, computer data base, programs and
software, financial data and plans, profit margins and pricing policies and
practices, sales and marketing techniques, history, and data forecast, and
personnel training techniques and materials.
e. You agree that you will take none of FiberTower’s
property, including information or lists, in original or copy, such as
customer, employee, vendor or consultant lists, process charts or information,
software, laptop computers, cellular phones, pagers, or anything else that
belongs to FiberTower or which it uses.
You further represent and warrant that you have not retained any copies,
electronic or otherwise, of such property.
f. You agree that you will not say anything disparaging
about FiberTower or its employees or any comments relating to FiberTower or its
employees which are critical, derogatory or which may tend to injure FiberTower’s
business. Conversely, if you refer job
reference seekers to FiberTower’s Human Resources Department and that is where
contact is made, we will confirm that your separation was the result of a
reduction in force and will then follow our normal practice of confirming the
position you held, the dates of employment and, if you provide written
authorization, your compensation. The
obligation of FiberTower under this Paragraph is separable and any failure by
FiberTower to perform the obligation in this Paragraph will only give rise to
an action to enforce this Paragraph.
g. That you have made reasonable efforts to understand
fully the terms of this Agreement, including the nature and extent of the
claims released, and that you are freely and knowingly, after adequate
consideration, agreeing to its terms.
5. You agree that you have timely
received all vacation, leaves, wages, commissions, bonuses, monies, benefits,
perquisites and whatever else of any nature you contend or may contend are due
to you from FiberTower.
6. This Agreement shall be binding on
the parties and upon their heirs, administrators, representatives, executors,
successors and assigns and shall inure to their benefit and to that of their
heirs, administrators, representatives, executors, successors and assigns.
7. You will cooperate fully with
FiberTower in its defense of or other participation in any administrative,
judicial or other proceeding arising from any charge, complaint or other action
which has been or may be filed.
8. In the event that you breach any of
your obligations under Paragraphs 4 through 6, any outstanding obligations of
FiberTower hereunder shall immediately terminate, and any payments previously
made to you pursuant to Paragraph 3 shall be returned to FiberTower.
9. You hereby acknowledge that you
have been informed pursuant to the Federal Older Workers Benefit Protection Act
of 1990 that:
a. You have the right to consult with an attorney before
signing this Agreement;
b. You do not waive rights or claims under the Federal Age
Discrimination in Employment Act that may arise after the date this waiver is
c. You have forty-five (45) days from the date of this
letter to consider this Agreement; and
d. You have seven (7) days after signing this
Agreement to revoke the Agreement, and the Agreement will not be effective
until that revocation period has expired.
Any revocation within this period must be submitted, in writing, to
FiberTower and state:
“I hereby revoke my acceptance of our Agreement.”
revocation must be personally delivered to Heidi Goldstein or Ms. Goldstein’s
designee, or mailed to Ms. Heidi Goldstein, FiberTower Corporation at 185
Berry Street, Suite 4800, San Francisco, CA 94107 and postmarked no later than the
seventh day after you sign this Agreement.
This Agreement shall not become effective or enforceable until
FiberTower has received from you a signed copy of the Agreement and a letter in
the form of Exhibit “A” and the revocation period has expired. If the last day of the revocation period is a
Saturday, Sunday, or legal holiday, then the revocation period shall not expire
until the next following day which is not a Saturday, Sunday or legal
holiday. The Agreement will be withdrawn
by FiberTower if not timely returned in the manner and within the times stated
herein. FiberTower does hereby advise
you to consult with an attorney prior to signing this Agreement.
10. The provisions of this Agreement are
severable. If any provision is held to be invalid or unenforceable, it shall
not affect the validity or enforceability of any other provision.
11. This Agreement sets forth the entire
agreement between you and FiberTower and supersedes any and all prior oral or
written agreements or understandings between you and FiberTower concerning the
subject matter of this Agreement, and you acknowledge that you are not relying
on any other representation or statement. This Agreement may not be altered,
amended or modified, except by a further written document signed by you and FiberTower.
12. You represent that you fully
understand your right to review all aspects of this Agreement with an attorney
of your choice, that you have had the opportunity to consult with an attorney
of your choice, that you have carefully read and fully understand all the
provisions of this Agreement and that you are freely, knowingly and voluntarily
entering into this Agreement. You
understand and agree that this Agreement is final and binding if you do not
13. YOU HAVE READ AND FULLY
CONSIDERED THIS AGREEMENT AND THE GENERAL RELEASE LANGUAGE HEREIN AND DESIRE TO
ENTER INTO THIS AGREEMENT. YOUHAVE BEEN ADVISED THAT YOU HAS FORTY-FIVE (45)
DAYS TO CONSIDER THIS AGREEMENT AND SEVEN (7) DAYS FROM THE DATE HE SIGNS
THIS AGREEMENT TO REVOKE THIS AGREEMENT.
REVOCATION MUST BE MADE IN WRITING TO HEIDI GOLDSTEIN OR HER DESIGNEE. YOU ARE ADVISED HEREIN IN WRITING TO CONSULT
WITH AN ATTORNEY PRIOR TO SIGNING THIS AGREEMENT.
ELECTED TO SIGN THIS AGREEMENT AND RECEIVE THE CONSIDERATION DESCRIBED IN
PARAGRAPH THREE (3) ABOVE, YOU FREELY AND KNOWINGLY, AND AFTER DUE
CONSIDERATION, ENTER INTO THIS AGREEMENT INTENDING TO WAIVE, SETTLE AND RELEASE
ALL CLAIMS YOU HAVE OR MIGHT HAVE AGAINST FIBERTOWER AND THOSE PERSONS AND
ENTITIES DESCRIBED IN PARAGRAPH FOUR (4) ABOVE AS OF THE DATE YOU SIGN
in executing this Agreement, you acknowledge that you have consulted with and
had the advice and counsel of an attorney duly admitted to practice law in the
State of NY, and you have voluntarily
executed this Agreement after careful and independent investigation, and not
under fraud, duress or undue influence.
you are willing to enter into this Agreement, please signify your acceptance in
the space indicated below, and return the original signed Agreement to Human
Resources / Attn: Vivian Hungat FiberTower’s
office located at 185 Berry Street, Suite 4800, San Francisco, CA 94107 by
October 13, 2008. As I noted
earlier, this Agreement will not become effective, and none of the severance
benefits in Paragraph 3 will be paid, until seven (7) days after the date
you sign this Agreement.
Kurt Van Wagenen
Kurt Van Wagenen
CAUTION: THIS A RELEASE. READ BEFORE SIGNING.
Accepted and agreed to on this 29th day of August, 2008.