Exhibit 10.6


 


PERFORMANCE
AWARD AGREEMENT


 


TOWER TECH
HOLDINGS INC.


2007 EQUITY
INCENTIVE PLAN


 


 


THIS AGREEMENT, is entered into and effective as of this                
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 performance share award to Participant pursuant to the Company’s
2007 Equity Incentive Plan (the “Plan”) to
entitle the Participant to shares of the Company’s Common Stock upon the
achievement of certain specified performance criteria; and


 


C.            The Administrator
has authorized the grant of such performance share 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
PERFORMANCE AWARDS


 


                A.            Grant of Performance Share Award.  The Company hereby grants to Participant on
the date set forth above (the “Date of Grant”) the right to receive up to                   
(                )
Performance Shares payable in shares of Common Stock on the terms and
conditions set forth herein (the “Performance Share Award”).


 


B.            Grant of
Performance Unit Award.  The Company
hereby grants to Participant on the Date of Grant the right to receive up to                       
(               )
Performance Units having a value of $                       
per Unit (the “Per Unit Value”) payable in cash or the terms and conditions set
forth herein (the “Performance Unit Award” and, together with the Performance
Share Award, the “Performance Award”).


 


ARTICLE
II.  PERFORMANCE PERIOD


 


                The Performance Period shall be
the period beginning                                         ,
20         , and ending                            ,
20    .


 


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ARTICLE
III.  PERFORMANCE OBJECTIVES AND VESTING OF 


PERFORMANCE
AWARD


 


A.            General.  Except as otherwise provided herein, the
Performance Shares or Performance Units subject to this Performance Award shall
vest only upon the achievement of all or a portion of certain Performance
Objectives, defined below, which must be achieved within the Performance Period.   The
Performance Objectives and the extent to which achievement of all or a portion
of the Performance Objectives will result in the vesting of the Performance
Shares or Performance Units are as follows:


 




	
  Performance Objective(s)

  	
   

  	
  Achievement

  	
   

  	
  Percentage or Number of

  Shares or Units Vested

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  






 


Notwithstanding
the foregoing schedule, the Administrator may delay the vesting of all or any
portion of the Performance Awards pursuant to Article XII.J. or XII.K. herein;
provided, however, that such delay shall not extend the Performance Period
during which the above Performance Objectives must be achieved.  Subject to such other terms and conditions
set forth in this Agreement, the Participant shall not be entitled to the
issuance of any portion of the Performance Shares or Performance Units subject
to this Performance Award until the Administrator determines the number of
Performance Shares or Performance Units, if any, which have vested.


 


B.            Termination of
Employment Prior to Vesting. 
If, prior to the vesting of any Performance Shares or Performance Units,
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
Performance Shares or Performance Units, and this Performance Award shall
terminate; provided, however, that if the Administrator delays the vesting and
issuance of any Performance Shares or Performance Units pursuant to Article
XII.J., the Participant shall not forfeit any such Performance Shares or
Performance Units that otherwise would have vested  prior to the termination of Participant’s
relationship had such vesting not been so delayed, and, upon the issuance of
such delayed vested Performance Shares or Performance Units, this Performance
Award shall terminate.


 


C.            Termination of
Employment After Vesting But Prior to Issuance.  If Participant ceases to be [a key employee or officer] [a consultant or advisor] [a director]
of the Company or any Affiliate for any reason after Performance Shares or
Performance Units have vested but prior to the date such Shares are issued or
cash is distributed (as described in Article V hereof), then Participant (or
Participant’s estate in the event of his death) shall be entitled to receive
such


 


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vested Performance Shares or Performance
Units as if such termination of employment had not occurred.  Upon the issuance of the vested Performance
Shares or Performance Units, this Performance Award shall terminate.


 


ARTICLE
IV.  CHANGE OF CONTROL


 


A.            Acceleration.  In the event of a “Change of Control,” the
Administrator may suspend, modify or terminate this Agreement or any
Performance Objectives set forth herein.


 


B.            Change of Control Defined.  For purposes of this Article IV, 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.


 


ARTICLE V.  FORM, TIME
OF ISSUANCE


 


The Administrator shall, within         
(     ) days after the end of the Performance Period
or at such earlier times as described in Article III above, determine the
number of Performance Shares and Performance Units that have vested pursuant to
Article III above and shall calculate the amount of cash, if any, payable to
Participant by multiplying the Per Unit Value by such number of vested
Performance Units.  Unless the
Administrator delays the vesting and issuance of such Performance Shares or


 


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Performance Units pursuant to Article XII.J., such Performance Shares
or cash shall be issued in the calendar
year in which the date such Performance Shares or Performance Units
become vested; provided, however, that the Participant shall receive cash equal
to the Fair Market Value of any fractional shares.


 


ARTICLE VI.  NONTRANSFERABILITY


 


This Performance 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 Performance Award prior to such date, such transfer shall be
void and this Performance Award shall terminate.


 


ARTICLE
VII.  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
VIII. 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 grant of Performance Shares, 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 IX.  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 Performance 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  X.  BINDING
EFFECT


 


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


 


ARTICLE XI.  2007 EQUITY INCENTIVE PLAN 


 


The Performance 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
XII.  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.  Participant shall have no
rights as a stockholder with respect to shares issued under this Agreement
until such shares have been issued to Participant.  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 or federal securities laws.  Participant may be required by the Company,
as a condition of the effectiveness of this Performance 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


 


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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
Performance 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 IV.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 XII.


 


G.            Shares Reserved.  The
Company shall at all times during the term of this Performance 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 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


 


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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.


 


J.             Delay of Payment for Section 162(m).  In the event the Administrator reasonably
anticipates that the Company’s income tax deduction with respect to the vesting
and issuance of any shares of Stock or Performance Units required by this
Agreement would be limited or eliminated by Code Section 162(m), the
Administrator may, subject to such terms and conditions as determined by the
Administrator, delay the vesting and issuance of all or a portion of such
Performance Units or shares of Stock until the earlier of (i) the date at which
the Administrator reasonably anticipates that the corresponding income tax
deduction will not be so limited or eliminated, and (ii) the calendar year of
the Participant’s separation from service, as such term is defined in Code
Section 409A and the regulations, notices and other guidance of general
applicability issued thereunder.  In the
event of such delay, this Performance Award shall not terminate until the
delayed vesting and issuance of such Performance Shares or vesting and payment
of such Performance Units has occurred.


 


K.            Delay in Payment for Specified Employee.  In the event this Performance Award is
subject to Code Section 409A and the Administrator determines that the
Participant is a “specified employee” within the meaning of Code Section 409A,
then the issuance of any shares of Stock due to the Participant’s separation
from service shall not be issued earlier than the date that is six months after
such separation from service, but shall be issued during the calendar year
following the year in which the Participant’s separation from service occurs
and within thirty (30) days after the earliest possible date permitted under
Code Section 409A.


 


ARTICLE
XIII.  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.


 


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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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