Exhibit
10.4


 


NONQUALIFIED
STOCK OPTION AGREEMENT


 


TOWER TECH HOLDINGS INC.


2007 EQUITY INCENTIVE PLAN


 


THIS AGREEMENT is entered into effective as of the        
day of                       ,
20    , by and between Tower Tech Holdings Inc., a Nevada
corporation (the “Company”), and                                   
(“Participant”).


 


RECITALS


 


A.            Participant on the date hereof is a key employee,
officer, or director of, or consultant or advisor to, the Company or one of its
Affiliates; and


 


B.            The
Company wishes to grant a nonqualified stock option to Participant to purchase
shares of the Company’s Common Stock pursuant to this Agreement and the
Company’s 2007 Equity Incentive Plan (the “Plan”); and


 


C.            The
Administrator has authorized the grant of a nonqualified stock option to
Participant and has determined that, as of the effective date of this
Agreement, the fair market value of the Company’s Common Stock is             
Dollars ($       ) per share.


 


AGREEMENTS


 


In consideration of
the premises and of the mutual covenants herein contained, the parties hereto
agree as follows:


 


ARTICLE I. GRANT OF OPTION


 


The Company hereby grants to Participant the right,
privilege, and option (the “Option”) to purchase up to                                                       
(             )
shares of Common Stock at a per share price of                         
Dollars ($                    )
subject to the terms and conditions set forth herein, and set forth in the Plan.
The Option is a nonqualified stock option and will not be treated as an
incentive stock option, as defined under Section 422 of the Internal Revenue
Code of 1986, as amended (the “Code”), and the regulations thereunder.


 


ARTICLE II.
DURATION OF OPTION AND
EXERCISABILITY


 


A.            General.
Except as provided in Articles II.B. and II.C. below, the Option shall become
exercisable according to the following schedule. Once the Option becomes fully
exercisable, Participant may continue to exercise the Option under the terms
and conditions of this Agreement until the termination of the Option as
provided herein. If Participant does not exercise the Option with respect to
the full number of shares which Participant is then entitled, Participant may
purchase upon any subsequent exercise prior to the Option’s termination such
previously unpurchased shares in addition to those Participant is otherwise
entitled to purchase. 


 

















 


Except as provided in Articles II.B. and II.C. below, the term during
which this Option may be exercised will continue until 5:00 p.m. (Central Time)
on                           
        , 20      
(the “Expiration Date”). In no event shall this Option be exercisable after the
Expiration Date.


 


	
  Vesting Date

  	
   

  	
  Number of Option Shares

  Available for Exercise

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


 


B.            Termination
of Employment for Reasons Other Than Death or Disability. Except as
provided in Article III below, in the event Participant ceases to be [a key employee or officer] [a consultant or advisor]
[a director] of the Company or any Affiliate for any reason other
than death or an event that constitutes permanent and total disability within
the meaning of Section 22(e)(3) of the Code (“Disability”), any unexercised
portion of this Option which was exercisable as of the date of such termination
may be exercised, in whole or in part, by Participant before the earlier of (i)
the close of business on the three-month anniversary date of such termination
of employment, and (ii) the Expiration Date. To the extent this Option was not
exercisable upon such termination of employment, or if Participant does not
exercise the unexercised portion of the Option that was exercisable within the
time specified in this Article II.B., all rights of Participant under this
Option shall terminate, and the Option shall thereafter be void.


 


C.            Termination
of Employment Due to Death or Disability. In the event Participant ceases
to be [a key employee or officer] [a
consultant or advisor] [a director] of the Company or any Affiliate
by reason of death or Disability, any unexercised portion of this Option which
was exercisable as of the date of such termination may be exercised, in whole
or in part, by Participant (or by Participant’s heirs or legal
representative(s) in the event of death or Disability) before the earlier of
(i) the close of business on the twelve-month anniversary date of such
termination of employment and (ii) the Expiration Date. To the extent this
Option was not exercisable upon such termination of employment, or if
Participant does not exercise the unexercised portion of the Option that was
exercisable within the time specified in this Article II.C., all rights of
Participant under this Option shall terminate, and the Option shall thereafter
be void.


 


ARTICLE III. CHANGE OF CONTROL


 


A.            Acceleration.
Notwithstanding anything in the Plan or this Agreement to the contrary, if,
upon or within one year of a Change of Control (as defined below), the Company
or a succeeding entity terminates Participant’s relationship with the Company,
this Option shall become immediately and fully exercisable upon such Change of
Control and shall remain exercisable until the earlier of (i) the Expiration
Date, and (ii) the date determined by the Administrator in connection with the
terms of the Plan (including, without limitation, upon consummation of the Change
of Control, if so determined by the Administrator). If Participant does not
exercise this Option, as the case may be, within the time specified in this
Article III.A., all rights of Participant under this Option shall be forfeited.
If Participant exercises this Option on a date that is after the three-month
anniversary of the date of his termination of employment, 


 


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this Option shall
be treated as a nonqualified stock option and shall no longer qualify as an
incentive stock option under Code Section 422.


 


B.            Change
of Control Defined. For purposes of this Article III, a “Change of Control”
means:


 


i. The consummation of any merger, consolidation,
exchange, or reorganization to which the Company is a party if the individuals
and entities who were stockholders of the Company immediately prior to the
effective date of such transaction have, immediately following the effective
date of such transaction, beneficial ownership (as defined in Rule 13d-3 under
the Securities Exchange Act of 1934) of less than fifty percent (50%) of the
total combined voting power of all classes of securities issued by the
surviving corporation;


 


ii. The stockholders of the Company approve any plan
or proposal for the liquidation of the Company;


 


iii. A sale, lease or other transfer of all or
substantially all of the assets of the Company to any person or entity which is
not an Affiliate of the Company; or


 


iv. The acquisition, without prior approval by
resolution adopted by the Board, of direct or indirect beneficial ownership (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934) of securities
of the Company representing, in the aggregate, more than fifty percent (50%) or
more of the total combined voting power of all classes of the Company’s
then-issued and outstanding securities by any person or entity or by a group of
associated persons or entities acting in concert; provided, however, that a
Change of Control will not be deemed to occur if such acquisition is initiated
by Participant or an entity in which Participant owns fifty percent (50%) or
more of the total combined voting power of all classes of such entity’s
securities, or if Participant or such entity is a member of the group of
associated persons or entities acting in concert.


 


C. Limitation on Change
of Control Payments. Participant shall not be entitled to receive any
Change of Control Payment, as defined below, which would constitute a
“parachute payment” for purposes of Code Section 280G, or any successor provision,
and the regulations thereunder. In the event any Change of Control Payment
payable to Participant would constitute a “parachute payment,” Participant
shall have the right to designate those Change of Control Payments which would
be reduced or eliminated so that Participant will not receive a “parachute
payment.”  For purposes of this Article
III.C., a “Change of Control Payment” shall mean any payment, benefit or
transfer of property in the nature of compensation paid to or for the benefit
of Participant under any arrangement which is considered contingent on a Change
of Control for purposes of Code Section 280G, including, without limitation,
any and all of the Company’s salary, bonus, incentive, restricted stock, stock
option, equity-based compensation or benefit plans, programs or other
arrangements, and shall include the acceleration of this Option.


 


ARTICLE IV. MANNER OF OPTION
EXERCISE


 


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A.            Notice. This Option may be exercised by
Participant in whole or in part from time to time, subject to the conditions
contained in the Plan and herein, by delivery, in person or by registered mail,
to the Company at its principal executive office, of a written notice of
exercise. Such notice shall be in a form satisfactory to the Administrator,
shall identify the Option, shall specify the number of Option Shares with
respect to which the Option is being exercised, and shall be signed by the
person or persons so exercising the Option. Such notice shall be accompanied by
payment in full of the total purchase price of the Option Shares purchased; the
exercise of the Option shall be deemed effective upon receipt of such notice by
the Company and upon payment that complies with the terms of the Plan and this
Agreement. In the event that the Option is being exercised, as provided by the
Plan and Article II.B., above, by Participant’s heirs or legal
representative(s), the notice shall be accompanied by appropriate proof of
right of such person or persons to exercise the Option. As soon as practicable
after the effective exercise of the Option, Participant (or Participant’s heirs
or legal representative(s) in the event of death or Disability) shall be
recorded on the stock transfer books of the Company as the owner of the Option
Shares purchased, and the Company may deliver to Participant (or Participant’s
heirs or legal representative(s)) one or more duly issued stock certificates
evidencing such ownership. All requisite original issue or transfer documentary
stamp taxes shall be paid by the Company.


 


B.            Payment. At the time of exercise of this Option,
Participant may determine whether to pay the total purchase price of the Option
Shares to be purchased solely in cash (including a personal check or a
certified or bank cashier’s check, payable to the order of the Company) or by
transfer from Participant to the Company of previously-owned shares of Common
Stock of the Company with a then current aggregate Fair Market Value equal to
such total purchase price, or by a combination of cash and such
previously-owned shares of Common Stock. The Administrator may reject
Participant’s election to pay all or part of the purchase price under this
Option with previously-owned shares of common stock and may require such
purchase price to be paid entirely in cash if, in the sole discretion of the
Administrator, payment in previously-owned shares would cause the Company to be
required to recognize a charge to earnings in connection therewith. For
purposes of this Agreement, (a) “previously-owned shares” shall mean shares of
Common Stock of the Company that Participant has owned for at least six months
prior to the time of exercise, and (b) “Fair Market Value” will be determined
as set forth in the Plan.


 


C.            Investment Purpose. The Company shall not be
required to issue or deliver any shares of Common Stock under this Option
unless (a)(1) such shares are covered by an effective and current registration
statement under the Securities Act of 1933 and applicable state securities laws
or (2) if the Administrator has determined not to so register such shares,
exemptions from registration under the Securities Act of 1933 and applicable
state securities laws are available for such issuance (as determined by counsel
to the Company) and the Company has received from Participant (or Participant’s
heirs(s) or legal representative(s), in the event of death or Disability) any
representations or agreements requested by the Company in order to permit such
issuance to be made pursuant to such exemptions, and (b) the Company has
obtained any other consent, approval or permit from any state or federal
governmental agency which the Administrator shall, in its sole discretion upon
the advice of counsel, deem necessary or advisable. Unless a registration
statement under the Securities Act of 1933 is in effect with respect to the
issuance or transfer of Option Shares, transfer of such shares shall be
restricted unless the Company receives an opinion of counsel 


 


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satisfactory to the Company to the effect
that registration under the Securities Act of 1933 and applicable state
securities laws is not required with respect to such transfer.


 


ARTICLE V. TRANSFERABILITY


 


This Option shall be
transferable, in whole or in part, by the Participant by will or by the laws of
descent and distribution. In addition, the Administrator may, in its sole
discretion, permit Participant to transfer this Option to any member of
Participant’s “immediate family” as such term is defined in Rule 16a-1(e)
promulgated under the Securities Exchange Act of 1934, or any successor
provision, or to one or more trusts whose beneficiaries are members of such
Participant’s “immediate family” or partnerships in which such family members
are the only partners; provided, however, that Participant cannot receive any
consideration for the transfer and such transferred Option shall continue to be
subject to the same terms and conditions as were applicable to the Option
immediately prior to its transfer.


 


ARTICLE VI. LIMITATION OF
LIABILITY


 


Nothing in this Agreement
shall be construed to (a) limit in any way the right of the Company or any
Affiliate to terminate the status of Participant as an employee of the Company
at any time, or (b) be evidence of any agreement or understanding, express or
implied, that the Company or any Affiliate will employ Participant in any
particular position, at any particular rate of compensation or for any
particular period of time.


 


ARTICLE VII. WITHHOLDING TAXES


 


To permit the Company to comply with all applicable
federal and state income tax laws or regulations, the Company may take such
action as it deems appropriate to ensure that, if necessary, all applicable
federal and state payroll, income or other taxes are withheld from any amounts
payable by the Company to Participant. If the Company is unable to withhold
such federal and state taxes, for whatever reason, Participant hereby agrees to
pay to the Company an amount equal to the amount the Company would otherwise be
required to withhold under federal or state law. Subject to such rules as the Administrator may adopt, the Administrator
may, in its sole discretion, permit Participant to satisfy such withholding tax
obligations, in whole or in part (i) by delivering shares of common stock, or
(ii) by electing to have the Company withhold shares of Common Stock otherwise
issuable to Participant as a result of the exercise of the Option, in either
case having a Fair Market Value, as of the date the amount of tax to be
withheld is determined under applicable tax law, equal to the minimum amount required to be withheld for tax purposes
based on the minimum statutory withholding rates for federal and state tax
purposes, including payroll taxes, that are applicable to the supplemental
income resulting from such exercise. Participant’s request to deliver shares or
to have shares withheld for purposes of such withholding tax obligations shall
be made on or before the date that triggers such obligations or, if later, the
date that the amount of tax to be withheld is determined under applicable tax
law. Participant’s request shall be approved by the Administrator and otherwise
comply with such rules as the Administrator may adopt to assure compliance with
Rule 16b-3 or any successor provision, as then in effect, of the General Rules
and Regulations under the Securities and Exchange Act of 1934, if applicable.


 


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ARTICLE
VIII. CAPITAL ADJUSTMENTS


 


Pursuant and subject to
Section 14 of the Plan, in the event of an increase or decrease in the number
of shares of common stock resulting from a stock split, reverse stock split,
stock dividend, combination of shares, rights offering, reclassification of the
common stock, or any other change in the corporate structure or shares of the
Company, the Administrator, in order to prevent dilution or enlargement of the
rights of Participant, may make appropriate adjustment as to the number and
kind of securities subject to this Option. Any such adjustment affecting this
Option shall be made without change in the aggregate purchase price applicable
to the unexercised portion of the Option but with an appropriate adjustment in
the price for each share or other unit of any security subject to the Option.


 


ARTICLE IX. BINDING EFFECT


 


This Agreement shall be
binding upon the heirs, executors, administrators and successors of the parties
hereto.


 


ARTICLE X. 2007 EQUITY
INCENTIVE PLAN 


 


The Option represented by
this Agreement has been granted under, and is subject to the terms of, the Plan.
The terms of the Plan are hereby incorporated by reference herein in their
entirety and Participant, by execution hereof, acknowledges having received a
copy of the Plan. Capitalized terms not defined herein shall have the meaning
set forth in the Plan. The provisions of this Agreement shall be interpreted as
to be consistent with the Plan and any ambiguities herein shall be interpreted
by reference to the Plan. In the event that any provision hereof is
inconsistent with the terms of the Plan, the latter shall prevail.


 


ARTICLE XI.
MISCELLANEOUS


 


A.            Employment or Other Relationship; Rights
as Stockholder. This Agreement shall not confer on Participant any right
with respect to the continuance of employment or any other relationship with
the Company or any of its Affiliates, nor will it interfere in any way with the
right of the Company to terminate such employment or relationship. Participant
shall have no rights as a stockholder with respect to shares subject to the
Option until such shares have been issued to Participant upon exercise of the
Option. No adjustment shall be made for dividends (ordinary or extraordinary,
whether in cash, securities or other property), distributions or other rights
for which the record date is prior to the date such shares are issued, except
as provided in Section 14 of the Plan.


 


B.            Securities
Law Compliance. The exercise of all or any parts of this Option shall only
be effective at such time as counsel to the Company shall have determined that
the issuance and delivery of Common Stock pursuant to such exercise will not
violate any state or federal securities or other laws. Participant may be
required by the Company, as a condition of the effectiveness of any exercise of
this Option, to agree in writing that all Common Stock to be acquired pursuant
to such exercise shall be held, until such time that such Common Stock is 


 


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registered and
freely tradable under applicable state and federal securities laws, for Participant’s
own account without a view to any further distribution thereof, that the
certificates for such shares shall bear an appropriate legend to that effect
and that such shares will be not transferred or disposed of except in
compliance with applicable state and federal securities laws.


 


C.            Lockup
Period Limitation. Participant agrees that in the event the Company advises
Participant that it plans an underwritten public offering of its Common Stock
in compliance with the Securities Act of 1933, as amended, and that the
underwriter(s) seek to impose restrictions under which certain stockholders may
not sell or contract to sell or grant any option to buy or otherwise dispose of
part or all of their stock purchase rights of the underlying Common Stock, Participant
hereby agrees that for a period not to exceed 180 days from the prospectus,
Participant will not sell or contract to sell or grant an option to buy or
otherwise dispose of the Option or any of the underlying shares of Common Stock
without the prior written consent of the underwriter(s) or its
representative(s).


 


D.            Blue Sky Limitation. Notwithstanding anything in
this Agreement to the contrary, in the event the Company makes any public
offering of its securities and determines in its sole discretion that it is
necessary to reduce the number of issued but unexercised stock purchase rights
so as to comply with any state securities or Blue Sky law limitations with
respect thereto, the Board of Directors of the Company shall have the right (i)
to accelerate the exercisability of this Option and the date on which this
Option must be exercised, provided that the Company gives Participant 15 days’
prior written notice of such acceleration, and (ii) to cancel any portion of
this Option or any other option granted to Participant pursuant to this
Agreement which is not exercised prior to or contemporaneously with such public
offering. Notice shall be deemed given when delivered personally or when
deposited in the United States mail, first class postage prepaid and addressed
to Participant at the address of Participant on file with the Company.


 


E.             Accounting Compliance. Participant agrees that,
in the event a Change of Control occurs and Participant is an “affiliate” of
the Company or any Subsidiary (as defined in applicable legal and accounting
principles) at the time of such Change of Control, Participant will comply with
all requirements of Rule 145 of the Securities Act of 1933, as amended, and the
requirements of such other legal or accounting principles, and will execute any
documents necessary to ensure such compliance. For purposes of this Agreement,
the term “Change of Control” shall have the meaning set forth in Article III
above.


 


F.             Stock
Legend. The Administrator may require that the certificates for any shares
of Common Stock purchased by Participant (or, in the case of death,
Participant’s successors) shall bear an appropriate legend to reflect the
restrictions of this Article XI; provided, however, that failure to so endorse
any of such certificates shall not render invalid or inapplicable this Article
XI.


 


G.            Shares
Reserved. The Company shall at all times during the term of the option
period reserve and keep available such number of shares as will be sufficient
to satisfy the requirements of this Agreement.


 


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H.            Arbitration. Any dispute arising out of or relating to
this Agreement or the alleged breach of it, or the making of this Agreement,
including claims of fraud and inducement, shall be discussed between the
disputing parties in a good faith effort to arrive at a mutual settlement of
any such controversy. If, notwithstanding, such dispute cannot be resolved,
such dispute shall be settled by binding arbitration. Judgment upon the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitrator shall be a retired state or federal judge or an
attorney who has practiced securities or business litigation for at least ten
(10) years. If the parties cannot agree on an arbitrator within twenty (20)
days, any party may request that a judge of the Circuit Court of Manitowoc
County, Wisconsin select an arbitrator. Arbitration will be conducted pursuant
to the provisions of this Agreement and the commercial arbitration rules of the
American Arbitration Association, unless such rules are inconsistent with the
provisions of this Agreement. Limited civil discovery shall be permitted for
the production of documents and taking of depositions. Unresolved discovery
disputes may be brought to the attention of the arbitrator who may dispose of
such disputes. The arbitrator shall have the authority to award any remedy or
relief that a court of this state could order or grant; provided, however, that
punitive or exemplary damages shall not be awarded. The arbitrator may award to
the prevailing party, if any, as determined by the arbitrator, all of its costs
and fees, including the arbitrator’s fee, administrative fees, travel expenses,
out-of-pocket expenses and reasonable attorney’s fees. Unless otherwise agreed
by the parties, the place of any arbitration proceedings shall be Green Bay,
Wisconsin.


 


I.              Right
to Amend. The Company hereby
reserves the right to amend this Agreement without Participant’s consent to the
extent necessary or desirable to comply with the requirements of Code Section
409A and the regulations, notices and other guidance of general application
issued thereunder.


 


ARTICLE XII. GOVERNING LAW


 


This Agreement and all
rights and obligations hereunder shall be construed in accordance with the Plan
and governed by the laws of the State of Wisconsin.


 


[Signature page follows.]


 


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                IN
WITNESS WHEREOF, the parties hereto have executed this Agreement effective the
day and year first above written.


 


 


	
  

  	
  TOWER TECH HOLDINGS INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Its:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PARTICIPANT

  	
   

  
	
  By execution hereof, the

  	
   

  	
   

  
	
  Participant acknowledges
  having

  	
   

  	
   

  
	
  received a copy of the
  Plan.

  	
   

  	
   

  



 


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