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:
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Number
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Vesting Date
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of Shares Vested
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,
2007
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,
2008
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,
2009
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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
2
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 satis
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