Exhibit 10.2


 


REGISTRATION RIGHTS AGREEMENT


 


BY AND AMONG


 


TOWER TECH HOLDINGS INC.


 


AND


 


THE MEMBERS OF


 


ENERGY MAINTENANCE SERVICE, LLC


 


JANUARY 16, 2008


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
  ARTICLE
  1

  	
   

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  2

  	
   

  	
  Registration Rights

  	
  3

  
	
   

  	
   

  	
   

  	
   

  
	
  2.1

  	
   

  	
  Current Public Information

  	
  3

  
	
   

  	
   

  	
   

  	
   

  
	
  2.2

  	
   

  	
  Demand Registration

  	
  3

  
	
   

  	
   

  	
   

  	
   

  
	
  2.3

  	
   

  	
  Piggyback Registration

  	
  6

  
	
   

  	
   

  	
   

  	
   

  
	
  2.4

  	
   

  	
  Underwriting; Holdback Agreements

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
  2.5

  	
   

  	
  Registration Procedures

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
  2.6

  	
   

  	
  Conditions Precedent to Company’s
  Obligations Pursuant to this Agreement

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
  2.7

  	
   

  	
  Fees and Expenses

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
  2.8

  	
   

  	
  Indemnification

  	
  11

  
	
   

  	
   

  	
   

  	
   

  
	
  2.9

  	
   

  	
  Participation in Registrations

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
  2.1

  	
  0

  	
  Compliance

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3

  	
   

  	
  Transfers of Certain Rights

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
  3.1

  	
   

  	
  Transfer

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
  3.2

  	
   

  	
  Transferees

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
  3.3

  	
   

  	
  Subsequent Transferees

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4

  	
   

  	
  Representations of Purchasers

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
  4.1

  	
   

  	
  Certain Representations of the
  Purchasers

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
  4.2

  	
   

  	
  Effect of Representations

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5

  	
   

  	
  Miscellaneous

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  5.1

  	
   

  	
  Recapitalizations, Exchanges, etc

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  5.2

  	
   

  	
  No Inconsistent Agreements

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  5.3

  	
   

  	
  Amendments and Waivers

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  5.4

  	
   

  	
  Severability

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  5.5

  	
   

  	
  Counterparts

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  5.6

  	
   

  	
  Notices

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  5.7

  	
   

  	
  Governing Law

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  5.8

  	
   

  	
  Forum; Service of Process

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  5.9

  	
   

  	
  Captions

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  5.1

  	
  0

  	
  No Prejudice

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  5.1

  	
  1

  	
  Words in Singular and Plural Form

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  5.1

  	
  2

  	
  Remedy for Breach

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  5.1

  	
  3

  	
  Successors and Assigns, Third Party
  Beneficiaries

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  5.1

  	
  4

  	
  Entire Agreement

  	
  19

  



 


i

















 


	
  5.1

  	
  5

  	
  Attorneys’ Fees

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  5.1

  	
  6

  	
  Termination of Rights

  	
  20

  



 


ii

















 


REGISTRATION RIGHTS AGREEMENT


 


This REGISTRATION RIGHTS
AGREEMENT, dated as of January 16, 2008 (the “Agreement”), is entered into by and among TOWER
TECH HOLDINGS INC., a Nevada corporation (the “Company”),
EMS, Inc., a South Dakota corporation (“EMS”),
Fagen, Inc., a Minnesota corporation (“Fagen”),
Joseph A. Kolbach, an individual residing at 3771 Edgewater Drive, Gary, South
Dakota 57237 (“Kolbach”) and Daniel A.
Yarano, an individual residing at 2169 Edgcumbe Road, St. Paul, MN (“Yarano”) (EMS, Fagen, Kolbach and
Yarano are collectively referred to herein as the “Purchasers”).


 


RECITALS:


 


A.                                   The
Company desires to issue and sell one million six hundred twenty-nine thousand
eight hundred thirty-four and ninety-one-hundredths (1,629,834.91) shares of
its Common Stock to the Holders as set forth in the Membership Interest
Purchase Agreement, dated as of December 9, 2007, as amended by that
certain Amendment No. 1 to Membership Interest Purchase Agreement dated as
of January 8, 2008, entered into by and among the Company, Energy
Maintenance Service, LLC and the Purchasers (the “Purchase Agreement”);


 


B.                                     It
is a condition precedent to the consummation of the transactions contemplated
by the Purchase Agreement that the Company provide for the rights set forth in
this Agreement; and


 


C.                                     Certain
terms used in this Agreement are defined in Article 1 hereof.


 


AGREEMENT


 


NOW, THEREFORE, in
consideration of the foregoing premises and the mutual covenants and agreements
hereinafter contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, intending to be
legally bound, the parties hereto hereby agree as follows:


 


ARTICLE 1

DEFINITIONS


 


“Affiliate”
means any Person that directly or indirectly controls, or is under control
with, or is controlled by such Person. 
As used in this definition, “control” (including with its correlative
meanings, “controlled by” and “under common control with”) shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person (whether through ownership
of securities or partnership or other ownership interests, by contract or
otherwise).


 


“Business Day”
means any day excluding Saturday, Sunday or any other day which is a legal
holiday under the laws of the State of Wisconsin or is a day on which banking
institutions therein located are authorized or required by law or other
governmental action to close.


 

















 


 “Closing
Date” has the meaning ascribed to such term in the Purchase Agreement.


 


“Common Stock”
means the common stock, par
value $0.001 per share, of the Company.


 


“Company”
has the meaning set forth in the preamble.


 


“Demand
Notice” has the meaning set forth in Section 2.2.


 


“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the SEC promulgated thereunder.


 


“Holders” means holders of the
Registrable Securities.


 


“Indemnified Party”
has the meaning set forth in Section 2.8.


 


“Losses”
has the meaning set forth in Section  2.8.


 


“Majority Holders”
means those Holders holding at least a majority of the Registrable Securities.


 


“Person”
means any individual, company,
partnership, firm, joint venture, association, joint-stock company, trust,
unincorporated organization, governmental body or other entity.


 


“Piggyback
Registration”  has the meaning set forth in Section 2.3.


 


“Purchase Agreement”
has the meaning set forth in
the preamble.


 


“Purchase Price”
has the meaning ascribed to
such term in the Purchase Agreement.


 


“Purchasers”
has the meaning set forth in
the preamble.


 


“Registrable Securities”
means, subject to the immediately following sentences, (i) shares of
Common Stock acquired by the Purchasers from the Company pursuant to the
Purchase Agreement and so long as this Agreement is still in effect, any other
shares of Common Stock acquired by the Purchasers on or after the Closing Date,
and (ii) any shares of Common Stock issued or issuable, directly or
indirectly, with respect to the securities referred to in clause (i) by
way of stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization.  In addition, any particular shares of Common
Stock constituting Registrable Securities will cease to be Registrable
Securities when (x) their offer and sale have been effectively registered
under the Securities Act and disposed of in accordance with a Registration
Statement covering such offer and sale, (y) they have been sold to the
public pursuant to Rule 144 (or by similar provision under the Securities
Act), or (z) are eligible for resale by the Holder thereof under Rule 144(k) (or
by similar provision under the Securities Act) without any limitation on the
amount of securities that may be sold under paragraph (e) thereof.


 


“Registration Statement”
means a registration statement on Form S-3 (or, if the Company is not
eligible to use Form S-3, such other appropriate registration form of the
SEC 


 


2

















 


pursuant to which the Company is eligible to
register the resale of Registrable Securities) filed by the Company under the
Securities Act which covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the prospectus, amendments and
supplements to such registration statement, including post-effective
amendments, all exhibits and all material incorporated by reference in such
registration statement, which shall permit the Purchasers to offer and sell, on
a delayed or continuous basis pursuant to Rule 415 under the Securities
Act, the Registrable Securities.


 


“register,”
“registered” and “registration” each shall refer to a
registration effected by preparing and filing a registration statement or
statements or similar documents in compliance with the Securities Act and the
declaration or ordering of effectiveness of such registration statement(s) or
documents by the SEC.


 


“Rule 144” means Rule 144
promulgated by the SEC pursuant to the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC having substantially the same effect as such Rule.


 


“Rule 415” means Rule 415
promulgated by the SEC pursuant to the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC having substantially the same effect as such Rule.


 


“SEC”
means the United States Securities and Exchange Commission or any other federal
agency at the time administering the Securities
Act and Exchange Act.


 


“Securities Act”
means the Securities Act of
1933, as amended, and the rules and regulations of the SEC promulgated
thereunder.


 


ARTICLE 2

REGISTRATION RIGHTS


 


2.1                                 Current Public
Information.  The Company covenants
that it will use its best efforts to file all reports required to be filed by
it under the Exchange Act and will use its reasonable best efforts to take such
further action as the Holders may reasonably request, all to the extent
required to enable the Holders to sell Registrable Securities pursuant to Rule 144
adopted by the SEC under the Securities Act or any similar rule or
regulation hereafter adopted by the SEC. 
The Company shall, upon the request of a Holder, deliver to such Holder
a written statement as to whether it has complied with such requirements during
the twelve month period immediately preceding the date of such request.


 


2.2                                 Demand
Registration.


 


(a)       At any time after the one year anniversary of this
Agreement and upon the written request of the Majority Holders, requesting that
the Company effect the registration under the Securities Act of all or part of
such Holders’ Registrable Securities and specifying the intended method of
disposition thereof (the “Demand
Notice”), the Company will promptly give written notice of such
requested registration to all Holders, and thereupon the Company will use its
reasonable best efforts to file with the SEC as soon as reasonably practicable
following the 


 


3





















 


Demand Notice (but in no event later than the date that is 90 days
after the Demand Notice) a Registration Statement.  The Company shall use its reasonable best
efforts to cause such Registration Statement to be declared effective by the
SEC within 90 days after the initial filing of the Registration Statement, and
if such Registration Statement is not declared effective within 90 days after
its initial filing, as soon as possible thereafter.  The Company shall include in such
Registration Statement:


 


(i)                                     the Registrable Securities
which the Holders have requested to be registered by the Company for
disposition in accordance with the intended method of disposition stated in
such request;


 


(ii)                                  all other Registrable
Securities the holders of which shall have made a written request to the
Company for registration thereof within 30 days after the giving of such
written notice by the Company (which request shall specify the intended method
of disposition of such Registrable Securities); and


 


(iii)                               all shares of Common Stock
which the Company or Persons entitled to exercise “piggy-back” registration
rights pursuant to contractual commitments of the Company may elect to register
in connection with the offering of Registrable Securities pursuant to this Section 2.2;


 


all to the extent requisite to permit the
disposition (in accordance with the intended methods thereof as aforesaid) of
the Registrable Securities and the additional shares of Common Stock, if any,
so to be registered; provided, that, the provisions of this Section 2.2
shall not require the Company to effect more than one registration of
Registrable Securities.


 


(b)                                 Notwithstanding
anything to the contrary contained in this Agreement, the Company shall not be
required to effect a registration pursuant to this Section 2.2
within 180 days following the effective date of a registration statement filed
by the Company in accordance with Section 2.3 for the account of
another Holder of Registrable Securities if the Holders were afforded the
opportunity to include the Registrable Securities in such registration.


 


(c)          The registration under this Section 2.2
shall be on an appropriate Registration Statement that permits the disposition
of such Registrable Securities in accordance with the intended methods of
distribution specified by the Majority Holders in their request for
registration.  The Company agrees to
include in any such Registration Statement all information which Holders of
Registrable Securities being registered shall reasonably request to effect the
registration.


 


(d)         A registration requested pursuant to this Section 2.2
shall not be deemed to have been effected (i) unless a Registration
Statement with respect thereto registering all of the Registrable Securities
initially included on such Registration Statement pursuant to Section 2.2(a)(i)
and (ii) has become effective; provided, that a Registration Statement
which does not become effective after the Company has filed a Registration
Statement with respect thereto solely by reason of the refusal to proceed of
the Majority Holders (other than a refusal to proceed based upon the advice of
counsel relating to a matter with respect to the Company) or because of a
breach of this Agreement by any Holder shall be deemed to have been effected by
the 


 


4





















 


Company at the request of the Majority Holders unless the Holders
electing to have Registrable Securities registered pursuant to such
Registration Statement shall have elected to pay all fees and expenses
otherwise payable by the Company in connection with such registration pursuant
to Section 2.7, (ii) if, after it has become effective, such
registration is withdrawn by the Company (other than at the request of the
Majority Holders) or interfered with by any stop order, injunction or other
order or requirement of the SEC or other governmental agency or court for any
reason prior to the expiration of a 180 day period following such Registration
Statement’s effectiveness; provided, however, that the Company shall remain
obligated to use its reasonable best efforts to obtain the withdrawal of such
stop order and otherwise undertake its obligations as set forth in Section 2.5
with respect to such Registration Statement, or (iii) if the conditions to
closing specified in any purchase agreement or underwriting agreement entered
into in connection with such registration are not satisfied, other than due
solely to some act or omission by the Holders electing to have Registrable
Securities registered pursuant to such Registration Statement.


 


(e)          If the requested registration pursuant to this Section 2.2
involves an underwritten offering, and the managing underwriter shall advise the
Company in writing (with a copy to each Holder of Registrable Securities
requesting registration) that, in its opinion, the number of securities
requested to be included in such registration (including securities of the
Company which are not Registrable Securities) exceeds the number which can be
sold in such offering within a price range reasonably acceptable to the Company
and to the holders of a majority (by number of shares) of the Registrable
Securities requested to be included in such Registration Statement, the Company
will include in such registration, to the extent of the number which the
Company is so advised can be sold in such offering, (i) first, the
Registrable Securities which have been requested to be included in such
registration by the Holders pursuant to this Agreement (pro rata based on the
amount of Registrable Securities sought to be registered by such Persons), (ii) second,
provided that no securities sought to be included by the Holders have been
excluded from such registration, the securities of other Persons entitled to
exercise “piggy-back” registration rights pursuant to contractual commitments
of the Company (pro rata based on the amount of securities sought to be
registered by such Persons) and (iii) third, securities the Company
proposes to register.


 


(f)            The Company shall use its reasonable best efforts to
keep any Registration Statement filed pursuant to this Section 2.2
continuously effective until the Registrable Securities registered pursuant to
such Registration Statement cease to constitute Registrable Securities.


 


(g)         The Company shall have the right at any time, to
suspend the filing of a Registration Statement under this Section 2.2
or require that the Holders of Registrable Securities suspend further open
market offers and sales of Registrable Securities pursuant to a Registration
Statement filed hereunder for a period not to exceed an aggregate of 30 days in
any six month period or an aggregate of 60 days in any twelve-month period for
valid business reasons (not including avoidance of their obligations hereunder)
(i) to avoid premature public disclosure of a pending corporate
transaction, including pending acquisitions or divestitures of assets, mergers
and combinations and similar events; (ii) upon the occurrence of any of
the events specified in Section 2.5(e), until the time that the
Holders receive copies of a supplement or amendment to the prospectus included
in the applicable Registration Statement as contemplated in 


 


5





















 


Section 2.5(e); and (iii) upon the
occurrence of any of the events specified in Section 2.5(i), until
the time the Company notifies the Holders in writing that such suspension is no
longer effective.


 


2.3                                 Piggyback
Registration.


 


(a)       Whenever the Company proposes to register any of its
securities under the Securities Act (other than pursuant to a registration
pursuant to Section 2.2, a registration on Form S-4 or S-8 or
any successor or similar forms, or the initial registration statement, or any
subsequent registration statement, related to a rights offering by the Company)
and the registration form to be used may be used for the registration of
Registrable Securities, whether or not for sale for its own account, the
Company will give prompt written notice (but in no event less than 30 days
before the anticipated filing date) to all Holders (other than Holders all of
whose Registrable Securities are then covered by an effective Registration
Statement), and such notice shall describe the proposed registration and
distribution and offer to all such Holders the opportunity to register the
number of Registrable Securities as each such Holder may request.  The Company will include in such registration
statement all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 15 days after the
Holders’ receipt of the Company’s notice (a “Piggyback
Registration”).


 


(b)      The Company shall use its reasonable best efforts to
cause the managing underwriter or underwriters of a proposed underwritten
offering involving a Piggyback Registration to permit the Registrable
Securities requested to be included in a Piggyback Registration to be included
on the same terms and conditions as any similar securities of the Company or
any other security holder included therein and to permit the sale or other
disposition of such Registrable Securities in accordance with the intended
method of distribution thereof.


 


(c)       Any Holder shall have the right to withdraw its
request for inclusion of its Registrable Securities in any Registration
Statement pursuant to this Section 2.3 by giving written notice to
the Company of its request to withdraw; provided, that in the event of such
withdrawal (other than pursuant to Section 2.3(e) hereof), the
Company shall not be required to reimburse such Holder for the fees and
expenses referred to in Section 2.7 hereof incurred by such Holder
prior to such withdrawal, unless such withdrawal was due to a material adverse
change to the Company.  The Company may
withdraw a Piggyback Registration at any time prior to the time it becomes
effective.


 


(d)      If (i) a Piggyback Registration involves an
underwritten offering of the securities being registered, whether or not for
sale for the account of the Company, to be distributed (on a firm commitment
basis) by or through one or more underwriters of recognized standing under
underwriting terms appropriate for such a transaction, and (ii) the
managing underwriter of such underwritten offering shall inform the Company and
Holders requesting such registration by letter of its belief that the
distribution of all or a specified number of such Registrable Securities
concurrently with the securities being distributed by such underwriters would
interfere with the successful marketing of the securities being distributed by
such underwriters (such writing to state the basis of such belief and the
approximate number of such Registrable Securities which may be distributed
without such effect), then the Company will be required to include in such
registration only the amount of securities which it is so advised should be
included in such registration.  In such
event: (x) in cases initially involving the 


 


6





















 


registration for sale of securities for the Company’s own account,
securities shall be registered in such offering in the following order of
priority: (i) first, the securities which the Company proposes to
register, and (ii) second, Registrable Securities and securities which
have been requested to be included in such registration by Persons entitled to
exercise “piggy-back” registration rights pursuant to contractual commitments
of the Company (pro rata based on the amount of securities sought to be
registered by Holders and such other Persons); and (y) in cases not
initially involving the registration for sale of securities for the Company’s
own account, securities shall be registered in such offering in the following
order of priority: (i) first, the securities of any Person whose exercise
of a “demand” registration right pursuant to a contractual commitment of the
Company is the basis for the registration, (ii) second, Registrable
Securities and securities which have been requested to be included in such
registration by Persons entitled to exercise “piggy-back” registration rights
pursuant to contractual commitments of the Company (pro rata based on the
amount of securities sought to be registered by Holders and such other
Persons), and (iii) third, the securities which the Company proposes to
register.


 


(e)       If, as a result of the proration provisions of this Section 2.3,
any Holder shall not be entitled to include all Registrable Securities in a
Piggyback Registration that such Holder has requested to be included, such holder
may elect to withdraw his request to include Registrable Securities in such
registration.


 


(f)         The right of the Holders to register Registrable
Securities pursuant to this Section 2.3 is only exercisable with
respect to Registrable Securities not then covered by an effective Registration
Statement.


 


2.4                                 Underwriting;
Holdback Agreements.


 


(a)       In the event that one or more Holders elect to
dispose of Registrable Securities under a Registration Statement pursuant to an
underwritten offering or a requested registration pursuant to Section 2.2
involves an underwritten offering, the managing underwriter or underwriters
shall be selected by the holders of a majority (by number of shares owned) of
the Registrable Securities to be sold in the underwritten offering or requested
to be included in such Registration Statement and shall be reasonably
acceptable to the Company.  In connection
with any such underwritten offering, the Company shall take all such reasonable
actions as are required by the managing underwriters in order to expedite and
facilitate the registration and disposition of the Registrable Securities,
including the Company causing appropriate executive officers of the Company or
its Affiliates to participate in a “road show” or similar marketing effort
being conducted by such managing underwriters with respect to such underwritten
offering.


 


(b)      All Holders proposing to distribute their
Registrable Securities through an underwritten offering shall enter into an
underwriting agreement in customary form with the managing underwriters
selected for such underwritten offering.


 


(c)       To the extent not inconsistent with applicable law,
in connection with a public offering of securities of the Company, upon the
request of the Company or, in the case of an underwritten public offering of
the Company’s securities, the managing underwriters, each Holder who
beneficially owns (as defined in Rule 13d-3 adopted by the SEC under the
Exchange 


 


7





















 


Act) at least 5% of the outstanding capital stock of the Company will
not effect any sale or distribution (other than those included in the
registration statement being filed with respect to such public offering) of, or
any short sale of, or any grant of option to purchase, or any hedging or
similar transaction with respect to, any securities of the Company, or any
securities, options or rights convertible into or exchangeable or exercisable
for such securities during the 14 days prior to and the 90-day period beginning
on the effective date of such public offering, unless the Company, or in the
case of an underwritten public offering, the managing underwriters otherwise
agree to a shorter period of time.  At
the request of the Company or the managing underwriters, each such Holder shall
execute a customary “lock-up” agreement consistent with the provisions of this Section 2.4;
provided, however, that no Holder shall be required to enter into any such “lock
up” agreement unless and until all of the Company’s executive officers and directors
execute substantially similar “lock up” agreements and the Company uses
commercially reasonable efforts to cause each holder of more than 5% of its
outstanding capital stock to execute substantially similar “lock up”
agreements.  Neither the Company nor the
underwriter shall terminate, materially amend or waive the enforcement of any
material provision under a “lock up” agreement unless each “lock up” agreement
with a Holder is also amended or waived in a similar manner or terminated, as
the case may be.  The Company may impose
stop-transfer instructions to enforce the restrictions imposed by this Section 2.4.


 


2.5                                 Registration Procedures.  The Company will use its reasonable best
efforts to effect the registration of Registrable Securities pursuant to this
Agreement in accordance with the intended methods of disposition thereof, and
pursuant thereto the Company will as expeditiously as possible:


 


(a)       before filing the Registration Statement or any
amendment or supplement thereto, the Company will furnish to any counsel
selected by the holders of a majority of the Registrable Securities a copy of
such Registration Statement, amendment or supplement and allow such counsel
reasonable time to review and comment on such Registration Statement, amendment
or supplement prior to the filing thereof and will provide such counsel with
all written correspondence with the SEC regarding such Registration Statement,
amendment or supplement;


 


(b)      prepare and file with the SEC the Registration
Statement, and such amendments and supplements to such Registration Statement
and the prospectus used in connection therewith as may be necessary to keep
such Registration Statement effective for the periods provided for in Section 2.2
or the periods contemplated by the Company or the Holders requesting any
Registration Statement filed pursuant to Section 2.3, and in
compliance with all applicable rules and regulations of the SEC and the
terms of this Agreement;


 


(c)       furnish to each Holder selling such Registrable
Securities such number of copies of such Registration Statement, each amendment
and supplement thereto, the prospectus included in the Registration Statement
(including each preliminary prospectus) and such other documents as such seller
may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such Holder;


 


(d)      use its reasonable best efforts to register or
qualify such Registrable Securities under such other state securities or “blue
sky” laws as the selling Holders selling such 


 


8





















 


Registrable Securities reasonably requests and do any and all other
acts and things which may be reasonably necessary or reasonably advisable to
enable such Holder to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such Holder and to keep each such registration
or qualification (or exemption therefrom) effective during the period which the
Registration Statement is required to be kept effective (provided, that the Company
will not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
subparagraph, (ii) subject itself to taxation in any such jurisdiction or (iii) consent
to general service of process in any such jurisdiction);


 


(e)       notify each Holder selling such Registrable
Securities, at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, of the happening of any event as a result
of which the prospectus included in the Registration Statement contains an
untrue statement of a material fact or omits any fact necessary to make the
statements therein not misleading in the light of the circumstances under which
they were made, and, at the request of any such Holder, the Company will as
soon as possible prepare and furnish to such Holder a reasonable number of
copies of a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
will not contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading in the light of
the circumstances under which they were made;


 


(f)         cause all such Registrable Securities to be listed
or quoted on each securities exchange or quotation service on which similar
securities issued by the Company are then listed or quoted and, if not so
listed, to be approved for trading on any automated quotation system of a
national securities association on which similar securities of the Company are
quoted;


 


(g)      provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such Registration
Statement;


 


(h)      enter into such customary agreements (including
underwriting agreements containing customary representations and warranties)
and take all other customary and appropriate actions as the holders of a
majority of the Registrable Securities being sold or the managing underwriters,
if any, reasonably request in order to expedite or facilitate the disposition
of such Registrable Securities;


 


(i)          notify each Holder of any stop order issued or
threatened by the SEC;


 


(j)          otherwise comply with all applicable rules and
regulations of the SEC, and make available to its security holders, as soon as
reasonably practicable, an earnings statement covering the period of at least
twelve months beginning with the first day of the Company’s first full calendar
quarter after the effective date of the Registration Statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder;


 


(k)       in the event of the issuance of any stop order
suspending the effectiveness of a Registration Statement, or of any order suspending
or preventing the use of any related prospectus or suspending the qualification
of any securities included in such Registration 


 


9





















 


Statement for sale in any jurisdiction, the Company will use its
reasonable best efforts to promptly obtain the withdrawal of such order;


 


(l)          with respect to an underwritten offering pursuant to
any Registration Statement filed under Section 2.2, obtain one or
more comfort letters, dated the effective date of the Registration Statement
and, if required by the managing underwriters, dated the date of the closing
under the underwriting agreement, signed by the Company’s independent public
accountants in customary form and covering such matter of the type customarily
covered by comfort letters in similar transactions;


 


(m)    with respect to an underwritten offering pursuant to
any Registration Statement filed under Section 2.2, obtain a legal
opinion of the Company’s outside counsel, dated the effective date of such
Registration Statement and, if required by the managing underwriters, dated the
date of the closing under the underwriting agreement, with respect to the
Registration Statement, each amendment and supplement thereto, the prospectus
included therein (including the preliminary prospectus) and such other
documents relating thereto in customary form and covering such matters of the
type customarily covered by legal opinions in similar transactions;


 


(n)      subject to execution and delivery of mutually
satisfactory confidentiality agreements, make available at reasonable times for
inspection by each Holder selling such Registrable Securities, any managing
underwriter participating in any disposition of such Registrable Securities
pursuant to the Registration Statement, and any attorney, accountant or other
agent retained by such Holder or any such managing underwriter, during normal
business hours of the Company at the Company’s corporate office in Manitowoc,
Wisconsin and without unreasonable disruption of the Company’s business or
unreasonable expense to Company and solely for the purpose of due diligence
with respect to the Registration Statement, legally disclosable, financial and
other records and pertinent corporate documents of the Company and its
subsidiaries reasonable requested by such Persons, and cause the Company’s
employees to, and request its independent accountants to, supply all similar
information reasonably requested by any such Person, as shall be reasonably
necessary to enable them to exercise their due diligence responsibility;


 


(o)      cooperate with each seller of Registrable Securities
and each underwriter participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings required
to be made with the OTC Bulletin Board or FINRA; and


 


(p)      take all other steps reasonably necessary to effect
the registration of the Registrable Securities contemplated hereby.


 


2.6                                 Conditions Precedent to
Company’s Obligations Pursuant to this Agreement.  It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Article 2
with respect to the Registrable Securities of any Holder that such Holder shall
timely furnish to the Company such information regarding itself, the
Registrable Securities held by it and the intended method of distribution of
such securities as shall reasonably be required to effect the registration of
such Holder’s Registrable Securities.


 


10





















 


2.7                                 Fees and Expenses.  All expenses incident to the Company’s
performance of or compliance with this Agreement including, without limitation,
all registration and filing fees payable by the Company, fees and expenses of
compliance by the Company with securities or blue sky laws, printing expenses
of the Company, messenger and delivery expenses of the Company, and fees and
disbursements of counsel for the Company and all independent certified public
accountants of the Company, and other Persons retained by the Company will be borne
by the Company, and the Company will pay its internal expenses (including,
without limitation, all salaries and expenses of the Company’s employees
performing legal or accounting duties), the expense of any annual audit or
quarterly review, the expense of any liability insurance of the Company and the
expenses and fees for listing or approval for trading of the securities to be
registered on each securities exchange on which similar securities issued by
the Company are then listed or on any automated quotation system of a national
securities association or other quotation system on which similar securities of
the Company are quoted.  In connection
with any Registration Statement filed hereunder, the Company will pay the
reasonable fees and expenses of a single counsel retained by the Holders of a
majority (by number of shares) of the Registrable Securities requested to be
included in such Registration Statement. 
The Company shall have no obligation to pay any underwriting discounts
or commissions attributable to the sale of Registrable Securities and any of
the expenses incurred by any Holder which are not payable by the Company, such
costs to be borne by such Holder or Holders, including, without limitation,
underwriting fees, discounts and expenses, if any, applicable to any Holder’s
Registrable Securities; fees and disbursements of counsel or other
professionals that any Holder may choose to retain in connection with a
Registration Statement filed pursuant to this Agreement (except as otherwise
provided herein); selling commissions or stock transfer taxes applicable to the
Registrable Securities registered on behalf of any Holder; any other expenses
incurred by or on behalf of such Holder in connection with the offer and sale
of such Holder’s Registrable Securities other than expenses which the Company
is expressly obligated to pay pursuant to this Agreement.


 


2.8                                 Indemnification.


 


(a)       The Company agrees to indemnify and hold harmless,
to the fullest extent permitted by law, Holders and each underwriter, if any,
and any Person who controls such underwriter (within the meaning of Section 15
of the Securities Act), from and against any loss, claim, damage, liability,
reasonable attorney’s fees, cost or expense and costs and expenses of
investigating and defending any such claim (collectively, the “Losses”), joint or several, and any
action in respect thereof to which the Holders may become subject under the
Securities Act or otherwise, insofar as such Losses (or actions or proceedings,
whether commenced or threatened, in respect thereto) arise out of or are based
upon (i) any breach by the Company of any of its representations,
warranties or covenants contained in this Agreement, (ii) any untrue or
alleged untrue statement of a material fact contained in any Registration
Statement, prospectus or preliminary or summary prospectus or any amendment or
supplement thereto or (iii) any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Company shall reimburse the Holders
for any reasonable legal or any other expenses actually incurred by them in
connection with investigating or defending or preparing to defend against any
such Loss, action or proceeding; provided, however, that the Company shall not
be liable to the Holders or other indemnitee in any such case to the extent
that any such Loss (or action or proceeding, whether 


 


11





















 


commenced or threatened, in respect thereof) arises out of or is based
upon (x) an untrue statement or alleged untrue statement or omission or
alleged omission, made in such Registration Statement, any such prospectus or
preliminary or summary prospectus or any amendment or supplement thereto, in
reliance upon, and in conformity with, written information prepared and
furnished to the Company by any Holder expressly for use therein and, with
respect to any untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus relating to the Registration
Statement, to the extent that a prospectus relating to the Registrable
Securities was required to be delivered by such Holder under the Securities Act
in connection with such purchase, there was not sent or given to such Person,
at or prior to the written confirmation of the sale of such Registrable
Securities to such Person, a copy of the final prospectus that corrects such
untrue statement or alleged untrue statement or omission or alleged omission if
the Company had previously furnished copies thereof to such Holder or (y) use
of a Registration Statement or the related prospectus during a period when a
stop order has been issued in respect of such Registration Statement or any
proceedings for that purpose have been initiated or use of a prospectus when
use of such prospectus has been suspended pursuant to Sections 2.5(e)
or (i); provided that in each case, that such Holder received prior written
notice of such stop order, initiation of proceedings or suspension from the
Company.   In no event, however, shall
the Company be liable for indirect, incidental or consequential or special
damages of any kind.


 


(b)      In connection with the filing of the Registration
Statement by the Company pursuant to this Agreement, the Holders will furnish
to the Company in writing such information as the Company reasonably requests
for use in connection with such Registration Statement and the related
prospectus and, to the fullest extent permitted by law, the Holders will
indemnify and hold harmless the Company and its officers, directors, employees
and agents, and each underwriter, if any, and any Person who controls such
underwriter (within the meaning of Section 15 of the Securities Act), from
and against any Losses, severally but not jointly, and any action in respect
thereof to which the Company or its officers, directors, employees and agents,
may become subject under the Securities Act or otherwise, insofar as such
Losses (or actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon (i) the purchase or sale of
Registrable Securities during a suspension as set forth in Section 2.5(e) or
Section 2.5(i) in each case after receipt of written notice of such
suspension, (ii) any untrue or alleged untrue statement of a material fact
contained in the Registration Statement, prospectus or preliminary or summary
prospectus or any amendment or supplement thereto, or (iii) any omission
or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, but, with respect to
clauses (ii) and (iii) above, only to the extent that such untrue
statement or omission is made in such Registration Statement, any such
prospectus or preliminary or summary prospectus or any amendment or supplement
thereto, in reliance upon and in conformity with written information prepared
and furnished to the Company by such Holder expressly for use therein or by
failure of such Holder to deliver a copy of the Registration Statement or
prospectus or any amendments or supplements thereto, and such Holder will
reimburse the Company for any reasonable legal or any other expenses incurred
by them in connection with investigating or defending or preparing to defend against
any such Loss, action or proceeding; provided, however, that such Holder shall
not be liable in any such case to the extent that prior to the filing of any
such Registration Statement or prospectus or amendment or supplement thereto,
such Holder has furnished in writing to the Company information expressly for
use in such Registration Statement or prospectus or any amendment or supplement



 


12





















 


thereto which corrected or made not misleading information previously
furnished to the Company.  The obligation
of each Holder to indemnify the Company and its officers, directors, employees
and agents,  shall be limited to the net
proceeds received by such Holder from the sale of Registrable Securities under
such Registration Statement.  In no
event, however, shall any Holder be liable for indirect, incidental or
consequential or special damages of any kind.


 


(c)       Promptly after receipt by any Person in respect of
which indemnity may be sought pursuant to Section 2.8(a) or 2.8(b) (an
“Indemnified Party”) of notice of any
claim or the commencement of any action, the Indemnified Party shall, if a
claim in respect thereof is to be made against the Person against whom such
indemnity may be sought (an “Indemnifying
Party”), promptly notify the Indemnifying Party in writing of
the claim or the commencement of such action; provided, that the failure to
notify the Indemnifying Party shall not relieve the Indemnifying Party from any
liability which it may have to an Indemnified Party under Section 2.8(a) or
2.8(b) except to the extent of any actual prejudice resulting
therefrom.  If any such claim or action
shall be brought against an Indemnified Party, and it shall notify the
Indemnifying Party thereof, the Indemnifying Party shall be entitled to
participate therein, and, to the extent that it wishes, jointly with any other
similarly notified Indemnifying Party, to assume the defense thereof with
counsel reasonably satisfactory to the Indemnified Party. After notice from the
Indemnifying Party to the Indemnified Party of its election to assume the
defense of such claim or action, the Indemnifying Party shall not be liable to
the Indemnified Party for any legal or other expenses subsequently incurred by
the Indemnified Party in connection with the defense thereof other than
reasonable costs of investigation; provided, that the Indemnified Party shall
have the right to employ separate counsel to represent the Indemnified Party
who may be subject to liability arising out of any claim in respect of which
indemnity may be sought by the Indemnified Party against the Indemnifying
Party, but the fees and expenses of such counsel shall be for the account of
such Indemnified Party unless (i) the Indemnifying Party and the
Indemnified Party shall have mutually agreed to the retention of such counsel
or (ii) in the written opinion of counsel to such Indemnified Party,
representation of both parties by the same counsel would be inappropriate due
to actual or potential conflicts of interest between them, it being understood,
however, that the Indemnifying Party shall not, in connection with any one such
claim or action or separate but substantially similar or related claims or
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (together with appropriate local counsel) at any time for all
Indemnified Parties.  No Indemnifying
Party shall, without the prior written consent of the Indemnified Party, effect
any settlement of any claim or pending or threatened proceeding in respect of
which the Indemnified Party is or could have been a party and indemnity could
have been sought hereunder by such Indemnified Party, unless such settlement
includes an unconditional release of such Indemnified Party from all liability
arising out of such claim or proceeding other than the payment of monetary
damages by the Indemnifying Party on behalf of the Indemnified Party.  Whether or not the defense of any claim or
action is assumed by the Indemnifying Party, such Indemnifying Party will not
be subject to any liability for any settlement made without its written
consent, which consent will not be unreasonably withheld.


 


(d)      If the indemnification provided for in this Section 2.8
is unavailable to the Indemnified Parties in respect of any Losses referred to
herein notwithstanding that this Section 2.8 by its terms provides
for indemnification in such case, then each Indemnifying Party, 


 


13





















 


in lieu of indemnifying such Indemnified Party, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such Losses in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Holders on the other from the offering of
the Registrable Securities, or if such allocation is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits but also the relative fault of the Company on the one hand
and the Holders on the other in connection with the statements or omissions
which resulted in such Losses, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of each
Holder on the other shall be determined by reference to, among other things,
whether any action taken, including any untrue or alleged untrue statement of a
material fact, or the omission or alleged omission to state a material fact
relates to information supplied by such party, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.


 


The Company and the Holders agree that it
would not be just and equitable if contribution pursuant to this Section 2.8(d) were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the
immediately preceding paragraph.  The
amount paid or payable by an Indemnified Party as a result of the Losses
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any reasonable legal or other
expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending any such action or claim.  Notwithstanding the provisions of this Section 2.8,
no Holder shall be required to contribute any amount in excess of the amount by
which the total price at which the Registrable Securities of such Holder were
offered to the public exceeds the amount of any Losses which such Holder has
otherwise paid by reason of such untrue or alleged untrue statement or omission
or alleged omission.   No Person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.  Each Holder’s obligations to contribute
pursuant to this Section 2.8 is several in the proportion that the
proceeds of the offering received by such Holder bears to the total proceeds of
the offering received by all the Holders. 
The indemnification provided by this Section 2.8 shall be a
continuing right to indemnification with respect to sales of Registrable
Securities and shall survive the registration and sale of any Registrable
Securities by any Holder and the expiration or termination of this
Agreement.  The indemnity and contribution
agreements contained herein are in addition to any liability that any
Indemnifying Party might have to any Indemnified Party.


 


2.9                                 Participation
in Registrations.


 


(a)       No Person may participate in any registration
hereunder which is underwritten unless such Person (i) agrees to sell such
Person’s securities on the basis provided in any underwriting arrangements
approved by the Person or Persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements and this Agreement.


 


(b)      Each Person that is participating in any
registration under this Agreement agrees that, upon receipt of any notice from
the Company of the happening of any event of the 


 


14





















 


kind described in Section 2.5(e) or Section 2.5(i) above,
such Person will forthwith discontinue the disposition of its Registrable
Securities pursuant to the Registration Statement and all use of the
Registration Statement or any prospectus or related document until such Person’s
receipt of the copies of a supplemented or amended prospectus as contemplated
by such Section 2.5(e) or Section 2.5(i) and,
if so directed by the Company, will deliver to the Company (at the Company’s
expense) all copies, other than permanent file copies, then in such Holder’s
possession of such documents at the time of receipt of such notice.  Furthermore, each Holder agrees that if such
Holder uses a prospectus in connection with the offering and sale of any of the
Registrable Securities, the Holder will use only the latest version of such
prospectus provided by Company.


 


(c)       None of the Holders shall have the right to
participate as a purchaser or otherwise acquire any beneficial ownership of the
Company’s securities in any offering of the Company’s securities, including any
shareholder rights offering (i) occurring within twelve (12) months from
the date of this Agreement and (ii) in which any proceeds from such
offering are used to directly or indirectly reduce the Company’s indebtedness incurred to finance the transactions
contemplated by the Purchase Agreement.


 


2.10                           Compliance.  With respect to any registration under this
Agreement, each Holder shall comply in all material respects with all
applicable securities and other laws, rules and regulations, including but
not limited to all rules and regulations of the SEC, the National
Association of Securities Dealers and any securities exchange or quotation
service on which the Company’s securities are listed or quoted.


 


ARTICLE 3

TRANSFERS OF CERTAIN RIGHTS


 


3.1                                 Transfer.  The rights granted to the Purchasers under
this Agreement may be transferred, subject to the provisions of Sections 3.2
and 3.3; provided that nothing contained herein shall be deemed to
permit an assignment, transfer or disposition of the Registrable Securities in
violation of the terms and conditions of the Purchase Agreement or applicable
law.


 


3.2                                 Transferees.  Any transferee to whom rights under this
Agreement are transferred shall, before and as a condition to such transfer,
deliver to the Company a written instrument (i) stating the name and
address of the transferor and the transferee and the number of Registrable
Securities with respect to which the rights are intended to be transferred, and
(ii) by which such transferee agrees to be bound by the obligations
imposed upon the Purchasers under this Agreement to the same extent as if such
transferee were a Purchaser hereunder.


 


3.3                                 Subsequent Transferees.  A transferee to whom rights are transferred
pursuant to this Section 3 may not again transfer such rights to
any other Person, other than as provided in Sections 3.1 or 3.2
above.


 


15

















 


ARTICLE 4

REPRESENTATIONS OF PURCHASERS


 


4.1                                 Certain Representations of
the Purchasers.  In
connection with, and in consideration of, the acquisition of the Common Stock
by the Purchasers, each Purchaser hereby represents and warrants to the Company
as follows:


 


(a)                                  Such
Purchaser acknowledges that it (i) is acquiring the Common Stock for its
own account without a view to distribution within the meaning of the Securities
Act; (ii) has had an opportunity to review the Company’s filings with the
SEC and all other information that it has deemed necessary to make an informed
investment decision with respect to an investment in the Company in general and
the Common Stock in particular; (iii) is financially able to bear the
economic risks of an investment in the Company; and (iv) has such
knowledge and experience in financial and business matters so as to be capable,
by reason of such knowledge and experience, of evaluating the merits and risks
of, and making an informed business decision with regard to, the acquisition of
the Common Stock.


 


(b)                                 Such
Purchaser realizes that there are significant restrictions on the
transferability of the Common Stock, that the Common Stock have not been
registered for sale under the Securities Act or applicable state securities
laws (the “State Laws”),
and may be sold only pursuant to registration under the Securities Act and
State Laws, or an exemption therefrom.


 


(c)                                  Such
Purchaser is an “accredited investor” within the
meaning of Rule 501 (a) of Regulation D, promulgated under the
Securities Act and was not organized for the
specific purpose of acquiring the Common Stock, and, in the case of an
individual, is a resident of the state referenced in the preamble of this
Agreement or, with respect to an entity, has its principal executive office
located in its state of incorporation, as referenced in the preamble to this
Agreement.


 


(d)                                 Such
Purchaser acknowledges that this transaction has not been reviewed or approved
by the United States Securities and Exchange Commission (the “Commission”) or by any state
securities or other authority.


 


(e)                                  The
acquisition of the Common Stock by such Purchaser is not the result of any
general solicitation or general advertising, including, but not limited to (i) any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio; and
(ii) any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising.


 


(f)                                    Such
Purchaser certifies, under penalty of perjury, that it is not subject to the
backup withholding provisions of the Internal Revenue Code of 1986, as
amended.  (Note:  A Purchaser is subject to backup withholding
if:  (i) the Purchaser fails to
furnish the undersigned’s Social Security Number or Taxpayer Identification
Number herein; (ii) the Internal Revenue Service notifies the Company that
the Purchaser furnished an incorrect Social Security Number or Taxpayer
Identification Number; (iii) the Purchaser is notified that the
undersigned is subject to backup withholding; or (iv) the Purchaser fails
to certify that the Purchaser is not subject to 


 


16

















 


backup withholding or the Purchaser fails to
certify the Purchaser’s Social Security Number or Taxpayer Identification
Number).


 


4.2                                 Effect of Representations.  The parties hereto acknowledge and agree that
(i) the representations of the Purchasers contained in Section 4.1
shall in no way modify, effect or diminish the rights of the Purchasers to
pursue any potential claim against the Company under the Purchase Agreement and (ii) no breach or alleged
breach of any representation or warranty contained in Section 4.1 shall
effect the rights and obligations of the parties under this Agreement.


 


ARTICLE 5

MISCELLANEOUS


 


5.1                                 Recapitalizations,
Exchanges, etc.  The
provisions of this Agreement shall apply to the full extent set forth herein
with respect to (i) the Registrable Securities, (ii) any and all
shares of Common Stock into which the Registrable Securities are converted,
exchanged or substituted in any recapitalization or other capital
reorganization by the Company and (iii) any and all equity securities of
the Company or any successor or assign of the Company (whether by merger,
consolidation, sale of assets or otherwise) which may be issued in respect of,
in conversion of, in exchange for or in substitution of, the Registrable
Securities and shall be appropriately adjusted for any stock dividends, splits,
reverse splits, combinations, recapitalizations and the like occurring after
the date hereof. The Company shall cause any successor or assign (whether by
merger, consolidation, sale of assets or otherwise) to enter into a new
registration rights agreement with the Holders on terms substantially the same
as this Agreement as a condition of any such transaction.


 


5.2                                 No Inconsistent Agreements.  The Company has not and shall not enter into
any agreement with respect to its securities that is inconsistent with the
rights granted to a Purchaser in this Agreement.  The parties acknowledge and agree that the
Company may grant registration rights hereafter, which shall be pari passu with
the registration rights of a Purchaser, and shall not be deemed to conflict
with this covenant.


 


5.3                                 Amendments and Waivers.  The provisions of this Agreement may be
amended and the Company may take action herein prohibited, or omit to perform
any act herein required to be performed by it, if, but only if, the Company has
obtained the written consent of Holders of at least a majority of the
Registrable Securities then in existence.


 


5.4                                 Severability.  Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be held to
be prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Agreement.


 


5.5                                 Counterparts.  This Agreement may be executed in one or more
counterparts each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.


 


17





















 


5.6                                 Notices.  Any notices required or permitted to be given
under the terms of this Agreement shall be sent by certified or registered mail
(return receipt requested) or delivered personally or by courier (including a
recognized overnight delivery service) or by facsimile and shall be effective
five days after being placed in the mail, if mailed by regular United States
mail, or upon receipt, if delivered personally or by courier (including a
recognized overnight delivery service) or by facsimile, in each case addressed
to a party.  The addresses for such
communications shall be:


 


	
  If to the
  Company:

  	
   

  
	
   

  	
   

  
	
   

  	
  Tower Tech
  Holdings Inc.

  	
   

  
	
   

  	
  980 Maritime
  Drive, Suite 6

  	
   

  
	
   

  	
  Manitowoc,
  Wisconsin 54220

  	
   

  
	
   

  	
  Attention:
  Chief Executive Officer

  	
   

  
	
   

  	
  Facsimile:
  (920) 684-5579

  	
   

  
	
   

  	
   

  
	
  With copy
  to:

  	
   

  
	
   

  	
   

  
	
   

  	
  DLA
  Piper US LLP

  	
   

  
	
   

  	
  203
  N. LaSalle Street

  	
   

  
	
   

  	
  Suite 1900

  	
   

  
	
   

  	
  Chicago,
  IL 60601

  	
   

  
	
   

  	
  Attention:
  Stephen A. Landsman, Esq.

  	
   

  
	
   

  	
  Facsimile
  No.: (312)-630-6330

  	
   

  
	
   

  	
   

  
	
  If to
  Kolbach or EMS:

  	
   

  
	
   

  	
   

  
	
   

  	
  Mr. Joseph A. Kolbach

  	
   

  
	
   

  	
  c/o Energy Maintenance Service, LLC

  	
   

  
	
   

  	
  129 Main Avenue

  	
   

  
	
   

  	
  P.O. Box 158

  	
   

  
	
   

  	
  Gary, SD 57237

  	
   

  
	
   

  	
  Facsimile No.: (605) 272-5402

  	
   

  
	
   

  	
   

  
	
  With copy
  to:

  	
   

  
	
   

  	
   

  
	
   

  	
  Fabyanske, Westra, Hart & Thomson
  P.A.

  	
   

  
	
   

  	
  800 LaSalle Avenue

  	
   

  
	
   

  	
  Suite 1900

  	
   

  
	
   

  	
  Minneapolis, MN 55402

  	
   

  
	
   

  	
  Attn: Scott L. Anderson

  	
   

  
	
   

  	
  Facsimile No.: (612) 359-7602

  	
   

  



 


18

















 


	
  If to Fagen:

  	
   

  
	
   

  	
   

  
	
   

  	
  Fagen, Inc.

  	
   

  
	
   

  	
  501 West Highway 212

  	
   

  
	
   

  	
  P.O. Box 159

  	
   

  
	
   

  	
  Granite Falls, MN 56241

  	
   

  
	
   

  	
  Attn: Ron Fagen

  	
   

  
	
   

  	
  Facsimile No.: (320) 564-3278

  	
   

  
	
   

  	
   

  
	
  If to Yarano:

  	
   

  
	
   

  	
   

  
	
   

  	
  Daniel A. Yarano

  	
   

  
	
   

  	
  c/o Fredrikson & Byron, P.A.

  	
   

  
	
   

  	
  200 South Sixth Street, Suite 4000

  	
   

  
	
   

  	
  Minneapolis, MN 55402

  	
   

  
	
   

  	
  Facsimile No.: (605) 272-5402

  	
   

  
				



 


Each party shall provide notice to the other
party of any change in address.


 


5.7                                 Governing Law.  This Agreement shall be governed by and
construed in accordance with the laws of the State of Wisconsin, without regard
to the conflicts of laws rules or provisions.


 


5.8                                 Forum; Service
of Process.  Any legal
suit, action or proceeding brought by the Company, Purchasers, any other
Holders, any Person entitled to indemnification or contribution hereunder, or
any of their respective Affiliates arising out of or based upon this Agreement
shall be instituted exclusively in any federal or state court in the State of
Wisconsin, and each such Person irrevocably waives any objection which it may
now or hereafter have to the laying of venue or any such proceeding, and
irrevocably submits to the jurisdiction of such courts in any such suit, action
or proceeding.


 


5.9                                 Captions.  The captions, headings and arrangements used
in this Agreement are for convenience only and do not in any way limit or
amplify the terms and provisions hereof.


 


5.10                           No Prejudice.  The terms of this Agreement shall not be
construed in favor of or against any party on account of its participation in
the preparation hereof.


 


5.11                           Words in
Singular and Plural Form. 
Words used in the singular form in this Agreement shall be deemed to
import the plural, and vice versa, as the sense may require.


 


5.12                           Remedy for
Breach.  The Company hereby
acknowledges that in the event of any breach or threatened breach by the
Company of any of the provisions of this Agreement, the Holders would have no
adequate remedy at law and could suffer substantial and irreparable
damage.  Accordingly, the Company hereby
agrees that, in such event, the Holders shall be entitled, and notwithstanding
any election by any Holder to claim damages, to obtain a temporary and/or
permanent injunction to restrain any such breach or threatened breach or to 


 


19





















 


obtain
specific performance of any such provisions, all without prejudice to any and
all other remedies which any Holders may have at law or in equity.


 


5.13                           Successors and
Assigns, Third Party Beneficiaries.  This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto,
each assignee of the Holders pursuant to Article 3 and their
respective successors and assigns and executors, administrators and heirs.  Holders are intended third party
beneficiaries of this Agreement and this Agreement may be enforced by such
Holders.


 


5.14                           Entire
Agreement.  This
Agreement sets forth the entire agreement and understanding between the parties
as to the subject matter hereof and merges and supersedes all prior
discussions, agreements and understandings of any and every nature among them.


 


5.15                           Attorneys’ Fees.  In the event of any action or suit based upon
or arising out of any actual or alleged breach by any party of any
representation, warranty, covenant or agreement in this Agreement, the
prevailing party shall be entitled to recover its reasonable attorneys’ fees
and expenses of such action or suit from the other party in addition to any other
relief ordered by any court.


 


5.16                           Termination of
Rights.  All rights under this
Agreement will terminate as to a Holder when that Holders no longer holds any
Registrable Securities.


 


20

















 


IN WITNESS WHEREOF, the parties
hereto have caused this Registration Rights Agreement to be duly executed as of
the date and year first written above.


 


	
   

  	
  COMPANY:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TOWER TECH HOLDINGS INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven A. Huntington

  	
   

  
	
   

  	
  Name:  Steven A. Huntington

  	
   

  
	
   

  	
  Title:    Chief
  Financial Officer

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PURCHASERS:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  EMS, Inc.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Joseph A. Kolbach

  	
   

  
	
   

  	
  By:

  	
  Joseph A. Kolbach

  	
   

  
	
   

  	
  Its:

  	
  President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Fagen, Inc.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Roland Fagen

  	
   

  
	
   

  	
  Roland “Ron” Fagen

  	
   

  
	
   

  	
  Its: President and Chief  Executive Officer

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Joseph A. Kolbach

  	
   

  
	
   

  	
  Joseph A. Kolbach

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Daniel A. Yarano

  	
   

  
	
   

  	
  Daniel A. Yarano

  	
   

  
					



 


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