<PAGE>
Registration No. 33-__________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
TOWER TECH, INC.
(Exact name of registrant as specified in its charter)
Oklahoma 73-1210013
(State or other jurisdiction (I.R.S. Employer
incorporation or organization) Identification No.)
Rural Route 3, Chickasha, Oklahoma 73018
Address of Principal Executive Offices) (Zip Code)
Tower Tech, Inc. 1993 Stock Option Plan
(Full title of the plan)
Charles D. Whitsitt
Chief Financial Officer
P. O. Box 1838
Chickasha, Oklahoma 73023
(Name and address of agent for service)
(405) 222-2876
Telephone number, including area code,
of agent for service)
Copies to:
Mark Dickey
Hartzog Conger & Cason
1600 Bank of Oklahoma Plaza
201 Robert S. Kerr
Oklahoma City, OK 73102
Approximate date of proposed sale to the public: from time to time after the
Registration Statement becomes effective.
Calculation of Registration Fee
________________________________________________________
Title of securities to be registered . . . .Common Stock
Amount to be registered. . . . . . . . . . . 500,000
Proposed maximum offering price per unit (1) $10.125
Proposed maximum aggregate offering price (1)$4,167,140.00
Amount of Registration fee . . . . . . . . . $1,041.78
________________________________________________________
(1) Calculated pursuant to Rule 457(h)(1) as follows: the maximum
offering price per share upon the exercise of (a) options granted and
outstanding as of the date hereof for 221,280 shares at $6.25 per share,
8,000 shares at $7.3125 per share, and 5,600 shares at $7.375 per share, and
(b) options not yet granted for 265,120 shares at $10.125 per share, the
last sales price of the Common Stock as reported by NASDAQ on June ____,
1996, in accordance with Rule 457(c).
Pursuant to Rule 416, this Registration Statement shall be deemed to
cover any additional securities issued to prevent dilution resulting from
stock splits, stock dividends or similar transactions.
<PAGE>
CROSS REFERENCE SHEET
The following shows the location in the Prospectus of information
required to be included in the Section 10(a) Prospectus in response to the
items of Form S-8.
ITEM
FORM S-8 CAPTION
Item 1. PLAN INFORMATION
(a) General Plan Information . . .Front Cover Page;
General Plan
Information
(b) Securities to be Offered . . Front Cover Page;
General Plan
Information
(c) Employees who May
Participate in the
Plan . . . . . . . . . . . . .General Plan
Information
(d) Purchase of Securities
Pursuant to the Plan
and Payment for
Securities Offered . . . . . .Term and Exercise
of Options
(e) Resale Restrictions. . . . . .Resale
Restrictions
(f) Tax Effects of Plan Term and Exercise
Participation . . . . . . . . of Options;
Federal Income
Tax Consequences
(g) Investment of Funds . . . . . Not Applicable
(h) Withdrawal from the Plan;
Assignment of Interest . . . .Term and Exercise
of Options;
Resale
Restrictions
(i) Forfeitures and Penalties . . Term and Exercise
of Options;
Resale
Restrictions
(j) Charges and Deductions
and Liens Therefor . . . . . .Not Applicable
Item 2. Registrant Information
and Employee Plan Annual
Information . . . . . . . . . Inside Front
Cover Page;
Incorporation of
Certain
Documents by
Reference
Item 3. Incorporation of Documents
by Reference . . . . . . . . .Incorporation of
Documents by
Reference
Item 4. Description of Securities . . Not Applicable
Item 5. Interest of Named Experts
and Counsel. . . . . . . . . .Not Applicable
Item 6. Indemnification of Directors
and Officers. . . . . . . . . Not Applicable
Item 7. Exemption from Registration
Claimed. . . . . . . . . . . .Not Applicable
Item 8. Exhibits. . . . . . . . . . . Not Applicable
Item 9. Undertakings. . . . . . . . . Not Applicable
<PAGE>
PART II
Item 3. Incorporation of Documents by Reference
The following documents filed by the Company with the Commission are
hereby incorporated by reference into this Registration Statement and made
a part hereof.
(a) The Company's annual report on Form 10-KSB for
the year ended November 30, 1995, filed with
the Commission pursuant to Section 13 of the
Securities Exchange Act of 1934 (the "Exchange
Act") (including those portions of the
Company's definitive proxy statement for the
annual meeting of stockholders held on May 20,
1996 which are incorporated by reference into
such annual report on Form 10-KSB;
(b) The Company's quarterly report on Form 10-QSB
for the three months ended February 29, 1996,
filed with the Commission pursuant to Section
13 of the Exchange Act;
(c) All documents, reports and definitive proxy
statements filed by the Company pursuant to
Section 13 or 14 of the Exchange Act, which
are filed subsequent to the date hereof and
prior to the termination of the offering made
hereby, shall be deemed to be incorporated
herein by reference and to be a part hereof
from the date of the filing of such documents
with the Commission; and
(d) The description of the Company's Common Stock,
par value $.001 per share, contained in the
Company's Registration Statement on Form 10
(File No. 1-12556) filed with the Commission
pursuant to the Exchange Act, including any
amendment or report filed for the purpose of
updating such description.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
As permitted under Oklahoma law, the Certificate of Incorporation of the
Company provides that directors of the Company generally will not be
personally liable for monetary damages for breach of fiduciary duty,
except for liability in connection with a breach of duty of loyalty, for
acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, for dividend payments or stock redemptions in
violation of Oklahoma law, or for any transaction in which a director derived
an improper personal benefit.
Section 1031 of the Oklahoma General Corporation Act empowers the
Company to indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or
proceeding by reason of the fact that he is or was a director, officer,
employee or agent of the Company, or is or was serving at the request of the
Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses,
th such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe that his conduct was unlawful.
The Bylaws of the Company provide that it shall, to the fullest extent
permitted by law, indemnify each person (including the heirs, executors,
administrators and other personal representatives of such person) against
expenses (including attorneys' fees), judgments, fines, and amounts paid in
settlement, actually and reasonably incurred by such person in connection
with any threatened, pending or actual suit, action or proceeding (whether
civil, criminal, administrative or investigative in nature or otherwise)
in which such person may be involved by reason of the fact that he or she is
ir was a director or officer of the Company.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act, and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred
or paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the Company will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
Item 7: Exemption from Registration Claimed
Not Applicable
Item 8: Exhibits
EXHIBIT NO. DESCRIPTION
3.1-1 Amended and Restated Certificate of
Incorporation of Tower Tech, Inc.
3.2-1 Amended Bylaws of Tower Tech, Inc.
3.3-1 Amendment to Bylaws
4.1-1 Warrant Certificate, dated June 14,
1993, by and between Dan and Juanita
Wiltz issue.
Item 7: Exemption from Registration Claimed
Not Applicable
Item 8: Exhibits
EXHIBIT NO. DESCRIPTION
3.1-1 Amended and Restated Certificate of
Incorporation of Tower Tech, Inc.
3.2-1 Amended Bylaws of Tower Tech, Inc.
3.3-1 Amendment to Bylaws
4.1-1 Warrant Certificate, dated June 14,
1993, by and between Dan and Juanita
Wiltz and Tower Tech, Inc., entitling
Dan and Juanita Wiltz to purchase
15,000 shares of Tower Tech, Inc.'s
common stock, $.001 par value
4.2-1 Warrant Certificate, dated August 31,
1993, between David Bronstad and
Tower Tech, Inc., entitling J. David
Bronstad to purchase 15,000 shares of
Tower Tech, Inc.'s common stock $.001
par value
4.3-1 Form of Stock Certificate
4.4-1 Form of Underwriters' Warrants
4.5-4 Certificate of Designations of Series
A Preferred Stock
4.6-6 Certificate of Designations of Series
B referred Stock
4.7-6 Certificate of Designations of Series
C Preferred Stock
4.8-8 Certificate of Designations of Series
D Preferred Stock
4.9-8 Certificate of Designations of Series
E Preferred Stock
4.10-9 Registration Rights Agreement, dated
February 2, 1996, among Tower Tech,
Inc., Lancer LP, Michael Taglich, and
Robert Taglich
5.1 Form of Opinion of Hartzog Conger &
Cason regarding legality
10.1-1 Lease Agreement between Harold and
Carolyn Curtis and Tower Tech, Inc.,
made effective September 1, 1993
10.2-5 Loan Agreement between Tower Tech,
Inc. and Chickasha Bank & Trust Co.,
dated March 23, 1995
10.2-5 Loan Agreement between Tower Tech,
Inc. and Chickasha Bank & Trust Co.,
dated March 23, 1995
10.3 Omitted
10.4 Omitted
10.5 Omitted
10.6 Omitted
10.7 Omitted
10.8-1 Executive Employment Agreement
between Harold Curtis and Tower Tech,
Inc., dated September 1, 1993
10.9-1 Agreement between Morrison Molded
Fiber Glass Co., and Tower Tech,
Inc., made effective July 26, 1993,
regarding the purchase by Tower Tech,
Inc. of certain pultruded components
from Morrison Molded Fiber Glass
Company
10.10-1 U. S. Patent No. 5,143,657 entitled
FLUID DISTRIBUTOR issued September 1,
1993
10.11-1 U. S. Patent No. 5,152,458 entitled
AUTOMATICALLY ADJUSTABLE FLUID
DISTRIBUTOR issued October 6, 1992
10.12-1 U. S. Patent No. 5,227,095 entitled
MODULAR COOLING TOWER issued July 13,
1993
10.13-1 Exclusive License Agreement by and
between Harold D. Curtis and Tower
Tech, Inc.
10.14-1 Assignment by and between Harold D.
Curtis, as Assignor, and Tower Tech,
Inc., as Assignee
10.15-1 Assignment of Invention Contained in
PCT Application by and between Harold
D. Curtis, as assignor, and Tower
Tech, Inc., as Assignee
10.16-1 Assignment of Patent by and between
Harold D. Curtis, as Assignor, and
Tower Tech, Inc., as Assignee, of
Patent No. 5,227,095
10.17 1993 Stock Option Plan, as amended
10.18-1 Form of Distributorship Agreement
10.19-1 Sales Agreement, dated May 19, 1993,
for purchase of certain modular
fiberglass cooling towers by
Electrical Constructors
10.20-1 Invoice, dated October 5, 1992, and
Conditions of Sale, dated October 13,
1992, for purchase of certain mobile
towers by Rental Tools & Equipment
Company International, Inc.
10.21-2 Real Estate Purchase Agreement
between Tower Tech, Inc., and Harold
and Carolyn Curtis
10.22-2 Promissory Note between Tower Tech,
Inc. and Harold and Carolyn Curtis
10.23 Omitted
10.24-3 Warrant Certificate, dated July 27,
1994, between Electrical Constructors
and Tower Tech, Inc., entitling
Electrical Constructors to purchase
50,000 shares of Tower Tech, Inc.'s
common stock, $.001 par value
10.25 Omitted
10.26-3 Warrant Certificate, dated August 18,
1994, between J. David Bronstad and
Tower Tech, Inc., entitling J. David
Bronstad to purchase 100,000 shares
of Tower Tech, Inc.'s common stock,
$.001 par value
10.27-5 Security Agreement between Tower
Tech, Inc. and J. David dated August
18, 1994
10.28-4 Assignment and License Agreement
between Tower Tech, Inc. and
Electrical Constructors
10.29-9 Promissory Note between Tower Tech,
Inc. and Chickasha Bank & Trust Co.,
dated October 13, 1995
10.31-6 Warrant Certificate, dated April 25,
1995, between J. David Bronstad and
Tower Tech, Inc. entitling J. David
Bronstad to purchase 40,000 shares of
Tower Tech, Inc. Common Stock
10.32-6 Warrant Certificate, dated April 25,
1995, between James McDonald and
Tower Tech, Inc. entitling James
McDonald to purchase 10,000 shares of
Tower Tech, Inc. Common Stock.
10.33-6 Security Agreement between Tower
Tech, Inc. and J. David Bronstad,
dated April 25, 1995
10.34-6 Security Agreement between Tower
Tech, Inc. and James McDonald, dated
April 25, 1995
10.35-6 Omitted
10.36-6 Promissory Note between Tower Tech,
Inc. and James McDonald, dated May 2,
1995
10.37-6 Promissory Note between Tower Tech,
Inc. and J. David Bronstad, dated May
2, 1995
10.38-6 Promissory Note between Tower Tech,
Inc. and J. David Bronstad, dated
June 14, 1995
10.39-6 Promissory Note between Tower Tech,
Inc. and J. David Bronstad, dated
June 27, 1995
10.40-7 Promissory Note between Tower Tech,
Inc. and Electrical Constructors,
dated September 12, 1995
10.41-9 Promissory Note between Tower Tech,
Inc. and Chickasha Bank & Trust,
dated October 13, 1995
10.42-9 Promissory Note between Tower Tech,
Inc. and Juanita Wiltz, dated
November 22, 1995
23.1 Consent of Price Waterhouse LP
23.2 Consent of Hartzog Conger & Cason
(included in Exhibit 5.1)
24.1 Power of Attorney (included on the
signature page of this Registration
Statement)
____________________________
1 Incorporated by reference from the same numbered
exhibit to Registration Statement No. 33-69574-FW,
as filed with the Commission on September 29, 1993,
and as amended.
2 Incorporated by reference from the same numbered
exhibit to Form 10-KSB for the fiscal year ended
November 30, 1993.
3 Incorporated by reference from the same numbered
exhibit to Form 10-QSB for the quarter ended August
31, 1994.
4 Incorporated by reference from the same numbered
exhibit to Form 8-K, as filed with the Commission
on November 4, 1994.
5 Incorporated by reference from the same numbered
exhibit to Form 10-KSB for the year ended November
30,1994.
6 Incorporated by reference from the same numbered
exhibit to Form 10-QSB for quarter ended May 31,
1995.
7 Incorporated by reference from the same numbered
exhibit to Form 10-QSB for the quarter ended August
31, 1995.
8 Incorporated by reference from the same numbered
exhibit to Amendment No. 1 to Registration
Statement No. 33-95870.
9 Incorporated by reference from the same numbered
exhibit to Form 10-KSB/A for the year ended
November 30, 1995.
Item 9: Undertakings
(a) The undersigned registrant hereby undertakes
as follows:
(1) To file during any period in which
offers or sales are being made, a post-
effective amendment to this Registration
Statement, to include any material
information with respect to the plan of
distribution not previously disclosed in
the Registration Statement or any material
change to such information in the
Registration Statement;
(2) That, for the purpose of determining any
liability under the Securities Act of
1933, each such post-effective amendment
shall be deemed to be a new registration
statement relating to the securities
offered therein, and the offering of such
securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the
securities being registered which remain
unsold at the termination of the offering.
(b) For purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and where
applicable, each filing of an employee benefit plan's annual report pursuant
to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer of controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer of
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be
be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements of filing on Form S-8 and authorized this
registration statement to be signed on its behalf by the undersigned,
in the City of Chickasha, State of Oklahoma, on June 28, 1996.
TOWER TECH, INC.
By: ss/HAROLD CURTIS
_____________________
Harold Curtis, President
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers
and directors of Tower Tech, Inc. hereby constitute and appoint Harold
Curtis or Charles D. Whitsitt, or either of them, his or her true and lawful
attorney-in-fact and agent with full power of substitution and
resubstitution for and in his name, place and stead, in any and all
capacities, to sign all or any amendments (including post-effective
amendments) of and supplements to this Registration Statement on Form S-8
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto such attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be done in
and about the premises, to all intents and purposes and as fully as said
Corporation itself and each said officer or director might or could do in
person, hereby ratifying and confirming all that such attorney-in-fact and
agent, or his substitutes, may lawfully do or cause to be done by
virtue hereof.
In accordance with the requirements of the Securities Act of 1933, this
registration statement was signed by the following persons in the capacities
and on the dates stated.
SIGNATURE TITLE DATE
ss/HAROLD CURTIS Chief Executive June 28, 1996
_________________ Officer/ President
Harold Curtis Director
ss/CHARLES D. WHITSITT Chief Financial June 28, 1996
______________________ Officer (Principal
Charles D. Whitsitt Financial Officer
and Principal
Accounting Officer)
ss/LINCOLN E. WHITAKER Director June 28, 1996
______________________
Lincoln E. Whitaker
ss/RANDAL K. OBERLAG Director June 28, 1996
______________________
Randal K. Oberlag
ss/LEON A. POAG Director June 28, 1996
_______________________
Leon A. Poag
<PAGE>
Exhibit 10.17
TOWER TECH, INC.
1993 STOCK OPTION PLAN
____________________
<PAGE>
TABLE OF CONTENTS
Page No.
1. Purpose. . . . . . . . . . . . . . . . . . 1
2. Definitions . . . . . . . . . . . . . . . 1
3. Eligibility . . . . . . . . . . . . . . . 2
4. Administration of the Plan . . . . . . . . 2
5. Number of Shares Subject to Options. . . . 3
6. Terms and Conditions of Options. . . . . . 3
6.1 Duration of Options and Amount
Exercisable. . . . . . . . . . . . . 3
6.2 Form of Option . . . . . . . . . . . 3
6.3 Exercise Price . . . . . . . . . . . 4
6.4 Restrictions on Transfer . . . . . . 4
6.5 Exercise of Options. . . . . . . . . 4
7. Provisions Applicable to Incentive Stock
Option. . . . . . . . . . . . . . . . . . 5
7.1 Ten Percent Shareholders . . . . . . 5
7.2 Exercise Price . . . . . . . . . . . 5
7.3 Annual Limitation. . . . . . . . . . 5
8. Termination of Employment. . . . . . . . . 5
8.1 Change of Employment Status. . . . . 5
8.2 Termination other than Because of Death
or Disability. . . . . . . . . . . . 5
8.3 Termination Because of Death or
Disability . . . . . . . . . . . . . 6
9. Changes in Capital Structure,
Reorganizations, Merger, Etc. . . . . . 6
9.1 Company's Power to Change Structure,
Reorganize, Merge, etc. . . . . . . . 6
9.2 Effect of Recapitalization or Similar
Transaction . . . . . . . . . . . . . 6
9.3 Effect of Dissolution, Liquidation,
Reorganization or other Transaction in
which the Company is not the Survivor 7
10. Withholding Taxes.. . . . . . . . . . . 7
11. Compliance with Law and Approval of
Regulatory Bodies . . . . . . . . . . . 8
12. Amendment, Suspension or Termination of
Plan . . . . . . . . . . . . . . . . . 8
13. Effective Date and Duration of Plan . . 9
14. Indemnification of Committee. . . . . . 9
<PAGE>
Exhibit 10.17
TOWER TECH, INC.
1993 STOCK OPTION PLAN
1. PURPOSE. The purpose of the Tower Tech, Inc. 1993 Stock Option
Plan (the "Plan") is to further the interests of Tower Tech, Inc.
by providing incentives to employees and directors of the Company and its
Subsidiaries who contribute to the management, growth and protection of the
Company's business, through the granting to such persons of Options to
purchase shares of the Common Stock of the Company, all as hereinafter
provided.
2. DEFINITIONS. As used in this Plan, the following terms shall
have the meaning as specified below:
BOARD OF DIRECTORS shall mean the Board of
Directors of the Company.
CODE shall mean the Internal Revenue Code of 1986,
as amended.
COMMITTEE shall mean the Committee appointed by the
Board of Directors to administer the Plan, as
further described in Section 4.
COMMON STOCK shall mean the Company's presently
authorized common stock, par value $.001 per share,
except as this definition may be modified as
provided in Section 9.
COMPANY shall mean Tower Tech, Inc., an Oklahoma
corporation, and any successor corporation which
adopts this Plan and assumes outstanding Options
and into which Tower Tech, Inc. is merged or which
becomes the "parent corporation" (as defined in
Section 425(c) of the Code) of Tower Tech, Inc.
ELIGIBLE PERSONS shall mean an employee or director
of the Company or a Subsidiary who in the
discretion of the Committee is deserving of
Options.
EXCHANGE ACT shall mean the Securities Exchange Act
of 1934.
EXERCISE PRICE shall mean the price to be paid for
the shares of Common Stock to be purchased pursuant
to the exercise of an Option.
FAIR MARKET VALUE shall mean the value as of the
relevant date determined in good faith by the
Committee utilizing any method of determining such
value which the Committee deems reasonable and
prudent.
OPTION shall mean an incentive stock option, as
described in Section 422 of the Code, or a non-
qualified stock option, as described in Section
422 of the Code, or a non-qualified stock option,
as described in Sections 83 and 421 of the Code,
to purchase shares of Common Stock granted
according to the terms of this Plan.
OPTIONEE shall mean an Eligible Person who is
granted an Option.
STOCK OPTION AGREEMENT shall mean the agreement
entered into between the Company and each
Optionee setting forthe the contractual terms
of the Optionee's Option.
SUBSIDIARY shall mean any corporation which is a
"subsidiary corporation" of the Company, as that
term is defined in Section 425(f) of the Code,
and any partnership, joint venture or other
business entity in which the Company owns at
least a 10 percent equity interest.
3. ELIGIBILITY. Options may be granted only to
Eligible Persons. Nothing in Plan shall be deemed
to give any person the right to participate in the
Plan or to receive an Option hereunder. The
granting of Options pursuant to the Plan shall be
entirely at the discretion of the Committee.
4. ADMINISTRATION OF THE PLAN. The Plan shall
be administered by the Committee, which shall be appointed by the Board
of Directors and shall consist of not less than two members of the Board of
Directors. The members of the Committee shall serve at the pleasure of the
Board of Directors. Members of the Committee shall be ineligible to
receive Options while serving on the Committee, and no member of the Board
of Directors may become a member of the Committee who, during the year
preceding appointment, has been granted or awarded options or equity
securities of the Company under the Plan or any other plan of the Company
which provides for the issuance of equity securities of the Company, options
to acquire equity shares or stock appreciation rights if such grant or award
would result in such person not being a disinterested person as defined in
Rule 16b-3 promulgated under the Exchange Act. The actions approved by a
majority of all members of the Committee at any meeting at which a quorum
is present, or actions approved in writing by all of the members of the
Committee without a meeting, shall be the valid acts of the Committee
hereunder. Subject to the terms, provisions and conditions of This Plan,
the Committee shall have full and final authority in its discretion to,
among other things, determine (a) the Eligible Persons to whom Options
are to be granted; (b) the number of shares subject to each Option; (c)
the time or times at which Options will be granted; (d) the Option Price
of the shares subject to each Option; (e) the time or times at which each
Option becomes exercisable and the duration of the exercise period; (f)
the provisions and forms of any Stock Option Agreement or other
instrument evidencing any Option under this Plan (which shall not be
inconsistent with this Plan but which need not be identical); (g) whether
the shares of Common Stock which are subject to an Option will be subject
to any restrictions upon exercise of such Option; (h) such rules and
regulations as in its opinion may be advisable in the administration of
this Plan; and (i) the procedures and methods for construing and
interpreting this Plan. In selecting the Eligible Persons to whom Options
shall be granted, as well as in determining thenumber of shares subject
to and the terms and provisions of each Option, the Committee shall weigh
such factors as it shall deem relevant to accomplish the purposes of this
Plan. A person who has been granted an Option may, if that person is
otherwise eligible, be granted an additional Option or Options, if the
Committee shall so determine.
5. NUMBER OF SHARES SUBJECT TO OPTIONS. Subject to the provisions
of Section 9 hereof, the maximum aggregate number os shares of Common Stock
which may be issued pursuant to the exercise of Options under this Plan
shall be Five Hundred Thousand (500,000) shares. The shares of Common Stock
to be delivered upon the exercise of Options under this Plan shall be made
available either from the authorized but unissued shares of Common Stock or
from shares of Common Stock held by the Company as Treasury shares. In the
event that any outstanding Option for any reason shall expire or is
terminated or canceled, the shares of Common Stock allocable to the
unexercised portion of such Option may again be subject to an Option under the
Plan.
6. TERMS AND CONDITIONS OF OPTIONS. All Options granted pursuant to
this Plan shall be evidenced by Stock Option Agreements in such form and
containing terms and conditions which shall not be inconsistnet with this
Plan as the Committee shall from time to time approve. No Option shall be
deemed granted until a Stock Option Agreement for such Option has been
executed by the Company. In the event of any conflict between the terms of
a Stock Option Agreement and the Plan, the terms of the Plan shall control
the conflict. Stock Option Agreements need not be identical but shall comply
with or incorporate by reference the following terms, conditions and
definitions from this Plan:
6.1 DURATION OF OPTIONS AND AMOUNT
EXERCISABLE. Subject to Section 7,
no Option shall be exercisable after the
expiration of ten years from the date the Option
is granted. An Option shall expire immediately
following the last day on which such Option is
exercisable. The Committee in its discretion may
provide that an Option shall be exercisable
throughout the entire term of the Option or during
any lesser period of time commencing on or after
the date of grant of the Option and ending on or
before the expiration of the term of the Option.
Each Option may be exercised, so long as it is
valid and outstanding, from time to time in whole
or in part, subject to any limitations with
respect to the number of shares for which the
Option may be exercised at any particular time and
such other conditions as the Committee may in
its discretion specify in a Stock Option Agreement
with respect to any particular Option.
6.2 FORM OF OPTION. Each Stock Option
Agreement shall specify whether the Option
evidenced by such Stock Option Agreement is an
incentive stock option or a non-qualified stock
option. Notwithstanding such designation in a
Stock Option Agreement, in the event an Option
which is designated as an incentive stock option
fails to qualify as an incentive stock option under
Section 422 of the Code, then such Option shall be
deemed to be a non-qualified stock option. Any
Option which is not designated by the Committee as
an incentive stock option shall be a non-qualified
stock option.
6.3 EXERCISE PRICE. The Exercise Price
shall be determined by the Committee at the time an
Option is granted. Except as provided in Section
7, the Exercise Price may be more or less than the
Fair Market Value of the shares subject to the
Option at the time it is granted.
6.4 RESTRICTIONS ON TRANSFER. Options
granted under this Plan shall not be transferable
or assignable or capable of being pledged or
otherwise hypothecated in any way, and shall not be
subject to execution, attachment or similar
process, other than by will or the laws of descent
and distribution as specifically permitted
hereunder or pursuant to a qualified domestic
relations order as defined by the Code or Title I
of the Employee Retirement Income Security Act, or
the rules thereunder. Any attempted assignment,
transfer, pledge, hypothecation or other
disposition of an Option contrary to the provisions
hereof shall be null and void and shall result in
termination of the Option. Shares issued upon
exercise of an Option shall be subject to such
transfer restrictions as may be specified in the
Stock Option Agreement or as may be required to
assure compliance with state and federal laws;
provided, however, that in no event shall shares
be transferable until six months after the date the
Option is granted.
6.5 EXERCISE OF OPTIONS. The Options
shall be exercisable only by the Optionee or the
Optionee's legal guardian or personal
representative, if any, in the case of exercise
following the death or disability of the Optionee
as provided for in Section 8. Options granted
pursuant to this Plan shall be exercised by
delivery to the Company of a written notification
specifying the number of shares which the Optionee
then desires to purchase together with payment for
such shares. Payment may be made in the form of
either (a) cash, certified check or postal or
express money order to the Company for an amount in
the United States dollars which is equal to the
aggregate Exercise Price for such shares, (b) the
exchange of a number of shares of Common Stock
previously acquired by the Optionee or subject to
Options held by the Optionee, free and clear of all
liens or encumbrances, the Fair Market Value of
which at the time of exercise, in the opinion of
the Committee, is equal to the aggregate Exercise
Price of such shares, accompanied by executed stock
powers and any other documents of transfer
requested by the Committee; or (c) a combination
of (a) and (b). No fractional shares may be issued
or accepted by the Company with respect to the
exercise of an Option. Options may be exercisable
in installments (which may be cumulative or
noncumulative or subject to acceleration) during
the term of an Option as may be determined by the
Committee at the date of grant.
7. PROVISIONS APPLICABLE TO INCENTIVE STOCK OPTIONS.
The following provisions shall apply only to incentive stock options
granted under the Plan:
7.1 TEN PERCENT SHAREHOLDERS.
Notwithstanding any other provision of this Plan,
no incentive stock option shall be granted under
this Plan to an Eligible Person who, at the time
the Option is granted, is the owner of more than 10
percent of the total combined voting power of all
classes of stock of the Company or any Subsidiary,
unless at the time such Option is granted, the
Exercise Price is at least 110 percent of the Fair
Market Value of the Common Stock subject to the
Option, and such Option by its terms is not
exercisable more than five (5) years after the date
it is granted.
7.2 EXERCISE PRICE. Except as provided
in Section 7.1, the Exercise Price shall not be
less than 100 percent of the Fair Market Value (but
in no event less than par value) of the shares
covered thereby at the time the Option is granted.
7.3 ANNUAL LIMITATION. To the extent
that the aggregate Fair Market Value of Common
Stock with respect to which incentive stock options
(without regard to this Section 7.3) are
exercisable for the first time by an Eligible
Person during any calendar year (under all plans
of the Company) exceeds $100,000, such Options
shall be treated as options which are not
incentive stock options. This Section 7.3
shall be applied by taking Options into account in
the order which they were granted. If some but not
all options granted on any one day are subject to
this Section 7.3, then such Options shall be
apportioned between incentive stock options
and non-qualified stock options in such manner as
the Committee shall determine. For purposes of
this Section 7.3, the Fair Market Value of any
Common Stock shall be determined as of the date the
various Options were granted.
8. TERMINATION OF EMPLOYMENT.
8.1 CHANGE OF EMPLOYMENT STATUS. No
Option shall be affected by any change of duties or
position of an Optionee (including transfer to or
from a Subsidiary) so long as such Optionee
continues to be an employee or a director of
the Company or a Subsidiary. Nothing in this Plan
or in any Option granted hereunder shall confer
upon any Optionee any right to continue in the
employ of the Company or any Subsidiary, and the
Company's right to terminate the employment of an
Optionee at any time for any reason shall not be
diminished or affected because an Option was
granted to the Optionee.
8.2 TERMINATION OTHER THAN BECAUSE OF
DEATH OR DISABILITY. Unless a Stock Option
Agreement provides otherwise, if an Optionee ceases
to be an employee of the Company or a Subsidiary
for any reason, other than by reason of the death
or disability of an Optionee, as provided for in
Section 8.3 below, then all Options held by such
Optionee which are not exercisable when the
employee ceases to be an employee shall terminate
and all Options which are exercisable when an
Optionee ceases to be an employee must be exercised
prior to the earlier of (i) the expiration date of
the option period of such exercisable Options, or
(ii) the date occurring 30 days after the date on
which the Optionee ceases to be an employee of the
Company or a Subsidiary.
8.3 TERMINATION BECAUSE OF DEATH OR
DISABILITY. Unless a Stock Option Agreement
provides otherwise, if an Optionee dies or becomes
disabled while he or she is an employee of the
Company or a Subsidiary, Options which are
exercisable on the date of death of disability of
such Optionee may be exercised by the Optionee or
by the Optionee's personal representative or other
lawful successor to the extent that such Options
could have been exercised by the deceased or
disabled Optionee immediately prior to the
Optionee's death or disability. Such Options must
be exercised prior to the earlier of (i) the
expiration date of the option period of the subject
Options, or (ii) the date occurring twelve months
after the date of the Optionee's death or
disability. All options held by such Optionee
which are not exercisable at the time of the
Optionee's death or disability shall terminate.
For purposes of this Plan, the employment of an
Optionee will be deemed to be terminated due to the
Optionee's disability if the Committee determines
that the Optionee suffers from a physical or mental
condition which renders the Optionee unable to
perform his or her duties of employment in a
competent and satisfactory manner on a full-time
basis, and such disability is reasonably likely to
continue for an indefinite period of time, subject,
however, to any written employment agreement that
may be in effect between the Optionee and the
Company.
9. CHANGES IN CAPITAL STRUCTURE,
REORGANIZATIONS, MERGER, ETC.
9.1 COMPANY'S POWER TO CHANGE STRUCTURE,
REORGANIZE, MERGE, ETC. The
existence of outstanding Options shall not affect
in any way the right or power of the Company or its
stockholders to declare or distribute any stock
dividend or to make or authorize any
recapitalization, reorganization, merger, split-up,
combination or other change in the Company's
capital structure or its business, or the
dissolution or liquidation of the Company or any
sale or transfer of all or any part of its assets
or business, or any other corporate act or
proceeding whether of a similar character or
otherwise. Except as expressly provided herein, no
such corporate act or the issuance of securities by
the Company shall affect any Options outstanding
under the Plan.
9.2 EFFECT OF RECAPITALIZATION OR
SIMILAR TRANSACTION. In the event
of any change in the total number of outstanding
shares of equity securities of the Company by
reason of any stock dividend, stock split,
recapitalization, or similar transaction in which
there is a distribution of equity securities of the
Company for substantially below Fair Market Value,
then (a) the number, class and per share price of
shares of Common Stock subject to outstanding
Options shall be appropriately adjusted in such
manner as to entitle an Optionee to receive upon
exercise of an Option, for the same aggregate
Exercise Price, the same total number and class of
equity securities as he would have received had he
exercised his Option in full issuance under the
Plan shall be adjusted by substitution for the
total number and class of shares of Common Stock
then reserved that number and class of shares of
equity securities that would have been received by
the owner of an equal number of outstanding shares
of Common Stock as a result of the event requiring
the adjustment.
9.3 EFFECT OF DISSOLUTION, LIQUIDATION,
REORGANIZATION OR OTHER TRANSACTION
IN WHICH THE COMPANY IS NOT THE
SURVIVOR. Upon the dissolution or
liquidation of the Company, the sale of all or
substantially all of the Company's assets, or the
occurrence of any merger, consolidation,
reorganization, or other transaction in which the
Company is not the surviving corporation, then in
the absolute discretion of the Committee, (a) all
Options outstanding under the Plan shall be assumed
by the successor, remaining, or surviving
corporation, or new options shall be substituted
for such Options, all as provided in Section 425(a)
of the Code and to the extent permitted by the
Code, in which event such assumption shall be made
on a full and equivalent basis in accordance with
Section 425 of the Code in order to preclude any
"modification" of such Options which would be
considered as the grant of new options, or (b) all
Options which are then exercisable, or all Options
outstanding under the Plan regardless of whether
they are then exercisable, shall be exercisable for
a period of 15 days immediately prior to such event
and, after the Optionee has been afforded the
opportunity to exercise his then remaining Options
as aforesaid and to the extent that such Options
are not timely exercised during such period, the
terms and provisions of this Plan and any Stock
Option Agreement granted hereunder will no longer
continue in effect, and the Options shall
terminate.
10. WITHHOLDING TAXES.
The Company may require, as a condition to any grant under the Plan or
to the delivery of certificates for Common Stock issued hereunder, that the
Optionee pay to the Company, in cash, any federal, state or local taxes of
any kind required by law to be withheld with respect to any grant of an
Option or any delivery of Common Stock upon exercise of an Option. The
Company, to the extent permitted or required by law, shall have the right
to deduct from any payment of any kind (including salary or bonus)
with respect to any grant of an Option or to the delivery of Common Stock
upon exercise of an Option under the Plan.
Subject to Committee approval, an Optionee may elect to deliver shares
of Common Stock (or have the Company withhold shares acquired upon exercise
of an Option) to satisfy, in whole or in part, the amount the Company is
required to withhold for taxes in connection with a grant under the Plan.
Such election must be made on or before the date the amount of tax to be
withheld is determined and, if applicable, subject to rules, regulations
and interpretations of the Securities and Exchange Commission under
Section 16(b) of the Exchange Act. Once made, the election shall be
irrevocable. The withholding tax obligation that may be paid by the
withholding or delivery of shares may not exceed the Optionee's minimum
federal, state and local income tax obligations in connection with the
grant. The fair market value of the Shares to be withheld or delivered
will be the Fair Market Value on the date last preceding the date the
amount of tax to be determined.
11. COMPLIANCE WITH LAW AND APPROVAL OF
REGULATORY BODIES. Notwithstanding any other provision of this
Plan or of any Stock Option Agreement, the Company shall be under no
obligation and shall not issue shares under this Plan, except in compliance
with all applicable federal and state laws and regulations and in compliance
with rules of any stock exchanges or listing organizations with which the
Company's shares may be listed. The determination as to whether the
issuance of shares under this Plan are in compliance with applicable federal
and state laws and regulations and rules of stock exchanges and listing
organizations shall be made solely by the Committee.
11.1 USE OF RESTRICTIVE LEGENDS. Any
certificate issued to evidence shares as to which
an Option is exercised may bear such legends and
statements as the Committee shall deem advisable to
assure compliance with federal and state laws and
regulations.
11.2 REPRESENTATION OF INVESTMENT
INTENT. Any person receiving an
Option and any person or estate exercising an
Option may be required by the Committee to give
a written representation that the shares subject to
the Option will be acquired for investment and not
with a view to public distribution; provided,
however, that the Committee, in its sole
discretion, may release any person receiving an
Option from any such representations either prior
to or subsequent to the exercise of an Option
granted pursuant to this Plan.
11.3 REPRESENTATION OF OWNERSHIP. In
the case of the exercise of an Option by a person
or estate acquiring the right to exercise such
Option by bequest or inheritance or by reason of
the death of the optionee, the Committee may
require reasonable evidence as to the ownership of
such Option and may require such consents and
releases of taxing authorities as the Committee may
deem advisable.
12. AMENDMENT, SUSPENSION OR TERMINATION OF PLAN. The Board of
Directors may at any time terminate or from time to time amend or suspend
this Plan; provided, however, that (i) no such amendment shall alter or
impair any of the rights or obligations under any Option theretofore granted
to an Optionee under this Plan without the consent of the affected Optionee,
and (ii) the Board of Directors may not amend Section 3 more often than once
every six months, other than to comport with changes in the Code, the
Employee Retirement Income Security Act or the rules thereunder.
Notwithstanding the foregoing, the Board of Directors may not, without
further approval of the shareholders of the Company, amend the Plan to:
(a) materially increase the total number of
shares of Common Stock which may be made the
subject of Options to be granted under the Plan,
either in the aggregate or to an individual
Eligible Person;
(b) change the manner of determination of
the Option Price as set forth in Section 5.2
hereof;
(c) extend the maximum period during which
Options may be granted or exercised; or
(d) materially modify the requirements as
to eligibility for participation in the Plan.
13. EFFECTIVE DATE AND DURATION OF PLAN. This Plan was adopted by
the Board of Directors and approved by the stockholders on September 23,
1993, and certain amendments to the Plan were adopted by the Board of
Directors on December 1, 1995 and approved by stockholders on May 20, 1996,
which amendments were effective December 1, 1995. No Options may be granted
under this Plan subsequent to ten years after the date (i) this Plan is
adopted by the Board of Directors of the Company or (ii) this Plan is
approved by the stockholders of the Company, whichever is earlier.
14. INDEMNIFICATION OF COMMITTEE. In addition to such other rights
of indemnification as they may have as directors, the members of the
Committee shall be indemnified by the Company against the reasonable
expenses, including attorney's fees actually and necessarily incurred in
connection with the defense of any action, suit or proceeding, or in
connection with any appeal therein, to which they or any of them may be a
party by reason of any action taken or failure to act under or in connection
with the Plan or any Option granted thereunder, and against all amounts
paid by them in settlement thereof (provided such settlement is approved
by independent legal counsel selected by the Company) or paid by them in
satisfaction of a judgement in any such action, suit or proceeding, except
in relation to matters as to which it shall be adjudged in such action,
suit or proceeding that such Committee member is liable for negligence or
misconduct in the performance of his duties; provided that within 10 days
after institution of any such action, suit or proceeding, such Committee
member shall in writing notify the Company of thesame and allow the
Company, at its own expense, to manage the defense of such action, suit or
proceeding.
<PAGE>
CERTIFICATE
The undersigned Secretary of the Company does hereby certify that the
foregoing is a complete copy of the Tower Tech, Inc. 1993 Stock Option Plan,
as amended through May 20, 1996.
/ss/ LANA MORGAN
_________________
Lana Morgan
Secretary
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 6, 1996 appearing on
page F-2 of Tower Tech, Inc.'s Annual Report on Form 10-KSB for the year
ended November 30, 1995.
ss/PRICE WATERHOUSE LLP
_______________________
Price Waterhouse LLP
Oklahoma City, Oklahoma
June 25, 1996
<PAGE>
Exhibit 5.1
Hartzog Conger & Cason
1600 Bank of Oklahoma Plaza
201 Robert S. Kerr
Oklahoma City, Oklahoma 73102
June 28, 1996
Tower Tech, Inc.
P. O. Box 1838
Chickasha, Oklahoma 73023
Re: 1993 Stock Option Plan
Gentlemen:
We have acted as counsel for Tower Tech, Inc., an Oklahoma
corporation (the "Company"), in connection with the Company's
registration of Form S-8 of up to 500,000 shares (the "Shares")
of Common Stock of the Company, which Shares are to be issued in
accordance with and pursuant to the terms of the Tower Tech, Inc.
1993 Stock Option Plan (the "Plan"). This opinion is being
rendered pursuant to the requirements of the Registration
Statement on Form S-8 to be filed by the Company with the
Securities and Exchange Commission.
In rendering our opinion, we have examined originals or
copies, certified or otherwise identified, of certain corporate
records of the Company which have been provided to us by the
Company, and the following documents:
1. The Plan;
2. The Registration Statement on Form 8-S; and
3. The Prospectus to be delivered by the Company to
participants of the Plan.
Based on the foregoing and subject to the assumptions,
qualifications and limitations set forth in this letter, it is our
opinion that all of the Shares to be issued under the terms of the
Plan will be, when issued, duly authorized, validly issued, fully
paid and non-assessable.
We have assumed the authenticity and accuracy of all documents
submitted to us as originals, the genuineness of all signatures
theron, the legal capacity of natural persons executing such
documents, the conformity to originals fo all documents submitted
to us as copies and the information provided to us by the Company's
stock transfer agent. This opinion is being furnished to you
solely in connection with the Company's registration of the Shares
and may be relied upon by you soley for such purpose. This
opinion is not to be quoted in whole or in part or otherwise
referred to, noris it to be filed with any governmental agency
other than the Securities and Exchange Commission or any other
person without our prior written consent. This opinion is given
to you as of the date hereof, and we assume no obligation to advise
you of changes, facts or circumstances that may hereafter come to
our attention or any changes in laws which may hereafter occur.
Very truly yours,
HARTZOG CONGER & CASON
