Exhibit 10.5


 


RESTRICTED STOCK AWARD AGREEMENT


 


TOWER TECH HOLDINGS INC.


2007 EQUITY INCENTIVE PLAN


 


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


 


RECITALS


 


A.            The 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
restricted stock award to Participant for shares of the Company’s Common Stock
pursuant to the terms and conditions of this Agreement and the Company’s 2007
Equity Incentive Plan (the “Plan”);


 


C.            The Administrator has authorized the
grant of such restricted stock award to Participant.


 


AGREEMENTS


 


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


 


ARTICLE I. GRANT OF RESTRICTED STOCK AWARD


 


The Company
hereby grants to Participant a restricted stock award (the “Award”) for                                                                
(
                                        
) shares of Common Stock on the terms and conditions set forth herein. The
Company may cause to be issued one or more stock certificates representing such
shares of Common Stock in Participant’s name, and may hold each such
certificate or may note in the electronic records that such shares are
restricted until such time as the risk of forfeiture and other transfer
restrictions set forth in this Agreement have lapsed with respect to the shares
represented by the certificate. The Company may also place a legend on such
certificates describing the risks of forfeiture and other transfer restrictions
set forth in this Agreement providing for the cancellation of such certificates
if the shares of Common Stock are forfeited as provided in Article II below. Until
such risks of forfeiture have lapsed or the shares subject to this Award have
been forfeited pursuant to Article II below, Participant shall be entitled
to vote the shares represented by such stock certificates and shall receive all
distributions attributable to shares for which the risks of forfeiture have
lapsed, but Participant shall not have any other rights as a stockholder with
respect to such shares.


 

















 


ARTICLE II. VESTING OF RESTRICTED STOCK


 


A.            General. The shares of Stock
subject to this Award shall remain forfeitable until the risks of forfeiture
lapse according to the following vesting schedule:


 




	
   

  	
   

  	
  Number

  
	
  Vesting Date

  	
   

  	
  of Shares Vested

  
	
   

  	
   

  	
   

  
	
                            ,
  2007

  	
   

  	
                          

  
	
                            ,
  2008

  	
   

  	
                          

  
	
                            ,
  2009

  	
   

  	
                          

  






 


Notwithstanding
the foregoing schedule, the Administrator may delay the vesting of all or any
portion of the Award.


 


B.            Termination of Employment Prior
to Vesting. If, prior to the vesting of all or any portion of the Award,
Participant ceases to be [a key employee or
officer] [a consultant or advisor] [a director] of the Company or
any Affiliate for any reason, the Participant shall forfeit all unvested shares
of Sock subject to this Award for which the risks of forfeiture have not
lapsed; provided, however, that if the Administrator delays the vesting of all
or any portion of the Award, the Participant shall not forfeit any such shares
that otherwise would have vested  prior
to the termination of Participant’s relationship had such vesting not been so
delayed, and, upon such delayed vesting, this Award shall terminate.


 


ARTICLE III. CHANGE OF CONTROL


 


A.            Acceleration. In the event of
a “Change of Control,” the risks of forfeiture on all shares of Stock subject
to this Award shall immediately lapse.


 


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


 


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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.


 


ARTICLE IV. NONTRANSFERABILITY


 


This Award shall not be transferable, in whole or in part, by
Participant, other than by will or by the laws of descent and distribution,
prior to the date the risks of forfeiture described in this Agreement have
lapsed. If Participant shall attempt any transfer of this Award prior to such
date, such transfer shall be void and this Award shall terminate.


 


ARTICLE V. 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 VI. 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 received pursuant to this Award, on which the risks of forfeiture have
lapsed this Award, 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


 


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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.


 


ARTICLE VII. CAPITAL ADJUSTMENTS


 


Except as otherwise specifically provided in any employment, change of
control, severance or similar agreement executed by Participant and the
Company, pursuant and subject to Section 14 of the Plan, certain changes in the
number or character of the Common Stock of the Company (through sale, merger,
consolidation, exchange, reorganization, divestiture (including a spin-off),
liquidation, recapitalization, stock split, stock dividend or otherwise) may
result in an adjustment, reduction or enlargement, as appropriate, in the
number of shares subject to this Award. Any additional shares that are credited
pursuant to such adjustment shall be subject to the same restrictions as are
applicable to the shares with respect to which the adjustment relates.


 


ARTICLE VIII. BINDING EFFECT


 


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


 


ARTICLE IX. 2007 EQUITY INCENTIVE PLAN 


 


The Award 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 X. MISCELLANEOUS


 


A.            Employment or Other Relationship;
Rights as a Stockholder. This Agreement shall not confer on Participant any
right with respect to the continuance of employment by the Company or any of
its Affiliates, nor will it interfere in any way with the right of the Company
to terminate such employment. Until the risks of forfeiture have lapsed or the
shares subject to this Agreement have been forfeited, Participant shall be
entitled to vote the shares of Stock awarded pursuant to this Agreement and
shall receive all dividends attributable to such shares, but Participant shall
not have any other rights as a stockholder with respect to such shares. 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. Participant shall not transfer or otherwise dispose of the
shares of Stock received pursuant to this Agreement until such time as counsel
to the Company shall have determined that such transfer or other disposition
will not violate any state


 


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or federal
securities laws. Participant may be required by the Company, as a condition of
the effectiveness of this Award, to agree in writing that all Stock subject to
this Agreement shall be held, until such time that such Stock is 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 this
Award or any of the underlying shares of Common Stock without the prior written
consent of the 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 Administrator
of the Company shall accelerate the vesting of this restricted stock award,
provided that the Company gives Participant 15 days’ prior written notice of
such acceleration. 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, if a merger, reorganization,
liquidation or other “transaction” (as defined in Article III.B. of this
Agreement) occurs, and Participant is an “affiliate” of the Company or any
Affiliate (as defined in applicable legal and accounting principles) at the
time of such transaction, 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.


 


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


 


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


 


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


 


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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 XI. 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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