As filed with the Securities and Exchange Commission on November 11, 1997
Registration No: 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
NUWAVE Technologies, Inc.
(Exact name of registrant as specified in its charter)
Delaware 22-3387630
---------- ------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Passaic Avenue, Fairfield, New Jersey 07004
- ----------------------------------------- -----
(Address of Principal Executive Offices) (Zip Code)
1996 Performance Incentive Plan,
Non-Employee Director Stock Option Plan and
Individual Options granted under Various
Employment and Consultant Agreements
(Full title of the Plan)
Gerald Zarin, President
NUWAVE Technologies, Inc.
One Passaic Avenue
Fairfield, New Jersey 07004
Name and address for agent for service)
(973)-882-8810
(Telephone number, including area code, for agent for service)
Copies to:
Morris C. Brown, Esq.
Greenberg Traurig Hoffman Lipoff Rosen & Quentel, P.A.
777 South Flagler Drive, Suite 310-East Tower
West Palm Beach, Florida 33401
(561)-650-7928
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
securities offering aggregate Amount of
to be Amount to be price offering registration
registered registered (1) per share price(2)(3) fee
- ---------- -------------- --------- ----------- ------------
Common Stock,
Par Value $.01 295,000 $1.50 $442,500.00 $134.09
Common Stock,
Par Value $.01 31,666 $2.00 $63,332.00 $19.19
Common Stock,
Par Value $.01 12,000 $5.75 $69,000.00 $20.91
Common Stock,
Par Value $.01 5,000 $6.375 $31,875.00 $9.66
Common Stock,
Par Value $.01 32,500 $6.75 $219,375.00 $66.48
Common Stock,
Par Value $.01 60,000 $6.875 $412,500.00 $125.00
Common Stock,
Par Value $.01 48,000 $5.03 $241,440.00 $73.16
Common Stock,
Par Value $.01 182,500 $5.03 $917,975.00 $278.18
TOTAL: 666,666 n/a $2,397,997.00 $726.67
(1) The number of shares stated is the aggregate number of
shares of Common Stock to be issued upon the exercise of
options granted or to be granted under the 1996 Performance
Incentive Plan (260,000), the Non-Employee Director Stock
Option Plan (80,000), and individual outstanding options
granted by the Company pursuant to individual employee
benefit plans (in connection with various employment and/or
consultant agreements) (326,666).
(2) Estimated in accordance with Rule 457(h) under the
Securities Act of 1933, as amended (the "Act") solely for
the purpose of calculating the total registration fee.
Computation based upon the exercise price of options to
purchase common stock.
(3) Estimated in accordance with Rule 457(c) under the Act
solely for the purpose of calculating the total registration
fee. Computation based upon the average ($5..0315 or $5.03)
of the high ($5.172) and low ($4.891) prices of the Common
Stock as reported on the Nasdaq Stock Market on November 4,
1997 because the price at which the options to be granted in
the future may be exercised is not currently determinable.
In addition, pursuant to Rule 416(c) under the Act, this
registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit
plan(s) described herein and shares of Common Stock of the
Company issuable to prevent dilution resulting from stock splits,
stock dividends or similar transactions.
</PAGE>
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Information required by Item 1 to be contained in the
Section 10(a) prospectus is omitted from this Registration
Statement in accordance with Rule 428 under the Securities Act of
1933 and the Note to Part I of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information.
Information required by Item 2 to be contained in the
Section 10(a) prospectus is omitted from this Registration
Statement in accordance with Rule 428 under the Securities Act of
1933 and the Note to Part I of Form S-8.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
1. The following documents, which have been filed by the
registrant with the Securities and Exchange Commission (the
"Commission"), File Number 00-28606, pursuant to the Securities
Exchange Act of 1934 (the "Exchange Act"), are incorporated by
reference into this Registration Statement:
(a) The Company's Annual Report on Form 10-KSB for the
fiscal year ended December 31, 1996, filed with the
Commission on March 31, 1997;
(b) The Company's Form 10-QSB for the quarter ended March
31, 1997 filed with the Commission on May 15, 1997;
(c) The Company's Form 10-QSB for the quarter ended June
30, 1997, filed with the Commission on August 14, 1997;
(d) The Company's Proxy Statement on Schedule 14a, filed
with the Commission on May 1, 1997;
(e) The Company's Form 8-K concerning shareholder approval
of the Non-Employee Director Stock Option Plan filed
with the Commission on June 6, 1997; and
(f) The description of the registrant's Common Stock
contained in the registrant's Registration Statement on
Form 8-A/A filed with the Commission on May 6, 1996.
2. All documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act, prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement
and to be a part hereof from the respective date of filing of
such documents. Any statement contained in a document
incorporated by reference herein is modified or superseded for
all purposes to the extent that a statement contained in this
Registration Statement or in any other subsequently filed
document which is incorporated by reference modifies or
supersedes such statement.
Item 4. Description of Securities.
Not applicable.
</PAGE>
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Item 5. Interests of Named Experts and Counsel.
The legality of the Common Stock offered hereby will be
passed upon for the Company by Greenberg Traurig Hoffman Lipoff
Rosen & Quentel, PA., the Company's general counsel.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of
Delaware provides for the indemnification of officers and
directors under certain circumstances against expenses incurred
in successfully defending against a claim and authorizes Delaware
corporations to indemnify their officers and directors under
certain circumstances against expenses and liabilities incurred
in legal proceedings involving such persons because of their
being or having been an officer or director.
Section 102(b) of the Delaware General Corporation Law
permits a corporation, by so providing in its certificate of
incorporation, to eliminate or limit director's liability to the
corporation and its stockholders for monetary damages arising out
of certain alleged breaches of their fiduciary duty. Section
102(b)(7) provides that no such limitation of liability may
affect a director's liability with respect to any of the
following: (i) breaches of the director's duty of loyalty to the
corporation or its stockholders; (ii) acts or omissions not made
in good faith or which involve intentional misconduct or knowing
violations of law; (iii) liability for dividends paid or stock
repurchased or redeemed in violation of Section 174 of the
Delaware General Corporation Law; or (iv) transactions from which
directors derived an improper personal benefit. Section
102(b)(7) does not authorize any limitation on the ability of the
corporation or its stockholders to obtain injunctive relief,
specific performance or other equitable relief against directors.
Article Seventh of the registrant's Certificate of
Incorporation provides that "the Corporation shall, to the
fullest extent permitted by the provisions of s145 of the General
Corporation Law of the State of Delaware, as the same may be
amended and supplemented, indemnify any and all persons whom it
shall have the power to indemnify under said section from and
against any and all of the expenses, liabilities, or other
matters referred to in or covered by said section, and the
indemnification provided for herein shall not be deemed exclusive
of any other rights to which those indemnified may be entitled
under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a
director, officer, employee, or agent and shall inure to the
benefit of the heirs, executors, and administrators of such a
person."
Item 7. Exemption from Registration Claimed.
The Company granted certain of its employees, consultants,
advisors and directors options under the Plans and as provided in
individual employment and consultant agreements pursuant to the
exemption from registration under the Securities Act of 1933
provided by Section 4(2) thereof.
Item 8. Exhibits.
4.1 1996 Performance Incentive Plan (incorporated by reference
from Exhibit 10.6 to the Company's Registration Statement on
Form SB-2 filed with the Commission on April 2, 1996).
4.2 Non-Employee Director Stock Option Plan (incorporated by
reference from Exhibit 10.1 to the Company's Current Report
on Form 8-K filed with the Commission on June 6, 1997).
4.3* Form of Incentive Stock Option Agreement.
4.4* Form of Non-Employee Director Stock Option Agreement.
4.5* Form of Non-Qualified Stock Option Agreement covering
options not granted under either the 1996 Performance
Incentive Plan or the Non-Employee Director Stock Option
Plan.
5.1* Opinion of Greenberg Traurig Hoffman Lipoff Rosen & Quentel, P.A.
23.1* Consent of Coopers & Lybrand
23.2* Consent of Greenberg Traurig Hoffman Lipoff Rosen & Quentel, P.A.
(contained in Exhibit 5.1).
</PAGE>
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<PAGE>
24.1* Powers of Attorney (included in the signature page of
this Registration Statement).
*Filed with this Registration Statement.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(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 this
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) The undersigned registrant hereby undertakes that, 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 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 Exchange Act) 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) The undersigned registrant hereby undertakes to deliver
or cause to be delivered with the prospectus, to each person
to whom the prospectus is sent or given, the latest annual
report to security holders that is incorporated by reference
in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the
Securities Exchange Act of 1934; and, where interim
financial information required to be presented by Article 3
of Regulation S-X are not set forth in the prospectus, to
deliver, or cause to be delivered to each person to whom the
prospectus is sent or given, the latest quarterly report
that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
(d) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 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 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 registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant 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
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 Securities Act of 1933 and will be governed
by the final adjudication of such issue.
</PAGE>
5
<PAGE>
SIGNATURES
Pursuant to 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 for filing on Form
S-8 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the City of Fairfield, State of New Jersey, on this 10th day of
November 1997.
NUWAVE TECHNOLOGIES, INC. (Registrant)
By: /s/ Gerald Zarin
------------------
Gerald Zarin
Chairman of the Board, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints GERALD ZARIN his
true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution for him and in his name, place
and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
registration statement, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said 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, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent or his substitute may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following
persons on behalf of the registrant and in the capacities and on
the dates indicated.
SIGNATURE TITLE DATE
/s/ Gerald Zarin President, November 11th, 1997
Gerald Zarin Chief Executive Officer,
and Chairman of the Board
(Principal Executive Officer)
/s/ Jeremiah F. O'Brien Vice President and Chief November 11th, 1997
Jeremiah F. O'Brien Financial Officer
/s/ Edward Bohn Director November 11th, 1997
Edward Bohn
/s/ Lyle E. Gramley Director November 11th, 1997
Lyle E. Gramley
/s/ David Kwong Director November 11th, 1997
David Kwong
/s/ Joseph A. Sarubbi Director November 11th, 1997
Joseph A. Sarubbi
</PAGE>
6
EXHIBIT 4.3
OPTION AGREEMENT
FOR THE PURCHASE OF COMMON STOCK
This Option Agreement (this "Agreement") is dated as of
______,1997 between NUWAVE TECHNOLOGIES, INC., a Delaware
corporation (the "Company") and _____________ ("Optionee").
Preliminary Statement
This Agreement sets forth the terms pursuant to which
Optionee shall have the right to purchase from the Company a
total of ______ shares of common stock of the Company, $.01
par value (the "Common Stock").
NOW, THEREFORE, for good and valuable consideration, the
receipt of which is hereby acknowledged, the parties to this
Agreement agree as follows:
1. Definitions. As used in this Agreement, the following
terms shall have the following respective meanings:
(a) Expiration Date, with respect to any Optioned
Shares, shall mean 5 p.m. Eastern Standard Time on the fifth
anniversary of the date upon which such shares became Vested
Shares. With respect to Unvested Shares, the Expiration Date
shall also mean the Effective Time of Termination of Employment.
(b) Optioned Stock shall mean the _______ shares of
Common Stock of the Company which Optionee may purchase pursuant
to the terms of this Agreement (the "Shares").
(c) Purchase Price shall mean $______ for each share
of Common Stock (the "Purchase Price").
(d) Unvested Shares shall mean any shares of Optioned
Stock which are not Vested Shares.
(e) Vested Shares shall mean (i) _____ of the Shares
as of the date of this Agreement, (ii) ______ Shares if the
Optionee is employed by the Company on ______, 1998, and (iii)
______ Shares if the Optionee is employed by the Company on
_______, 1999.
[Alternative Paragraph (e)] (e) Vested Shares shall mean (i)
________ Shares as of ________, 1998, (ii) ________ Shares as of
________, 1999, (iii) ________ Shares as of ________, 2000, (iv)
_______ Shares as of _______, 2001, and (v) ______ Shares as of
________, 2002.
(f) Effective Time of Termination of Employment. For
purposes of this Agreement, Termination of Employment shall be
effective upon the giving notice of such Termination to the
Employee as provided for in Section 9 of this Agreement.
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2. Grant of Option to Optionee. Simultaneously with the
execution and delivery of this Agreement, Optionee is granted the
option (the "Option") to purchase the Vested Shares for the
Purchase Price of $________ per share, upon the terms and
conditions set forth in this Agreement.
3. Exercise of Option. The Option provided for in this
Agreement may be exercised only by Optionee or, in the event of
Optionee's death, any duly qualified representative of his
estate. It may be exercised in whole at any time or in part from
time to time prior to the Expiration Date. No fractional shares
of Common Stock will be issued. Optionee may exercise this
purchase right by giving written notice of such exercise at the
general corporate offices of the Company, (or at such other
agency or office of the Company as it may designate by notice in
writing to Optionee) and by payment to the Company of the
Purchase Price in cash or by check for each share of Optioned
Stock being purchased. In the event of any exercise of any Option
provided for in this Agreement, certificates for the shares of
Common Stock so purchased, registered in the name of the person
entitled to receive the same, shall be delivered to Optionee
within a reasonable time, not exceeding ten days after the Option
shall have been so exercised. The person in whose name any
certificate for shares of Common Stock is issued upon exercise of
all or part of the Option shall for all purposes be deemed to
have become the holder of record of such shares on the date on
which the Option was surrendered and payment of the Purchase
Price made, irrespective of the date of delivery of such
certificate, except that, if the date of such surrender and
payment is a date when the stock transfer books of the Company
are closed, such person shall be deemed to have become the holder
of record of such shares at the close of business on the next
succeeding date on which the stock transfer books are open.
4. Holdback Agreement. In the event the Company sells any
of its stock to the public pursuant to an underwritten offering
registered pursuant to the Securities Act of 1933, as amended
(the "Act"), Optionee agrees that he will not sell any of the
Shares then owned by him or subject to this Agreement for a 12
month period following the date such registration statement
becomes effective under the Act (the "Lock-Up Period"), without
the consent of the underwriter, unless a shorter Lock-Up Period
is agreed to by the underwriter.
5. Adjustment of Number of Option Shares.
(a) If, at any time after the date of this Agreement,
the number of shares of Common Stock outstanding is increased by
a stock dividend payable in shares of Common Stock or by a
subdivision or split-up of shares of Common Stock, then,
following the record date fixed for the determination of holders
of Common Stock entitled to receive such stock dividend,
subdivision or split-up, the Purchase Price shall be
appropriately decreased and the number of shares of Optioned
Stock thereafter issuable on exercise of the Option shall be
increased in proportion to such increase in outstanding shares.
(b) If, at any time after the date of this Agreement,
the number of shares of Common Stock outstanding is decreased by
a combination of the outstanding shares of Common Stock, then,
following the record date for such combination, the Purchase
Price shall be appropriately increased and the number of shares
of Common Stock issuable on exercise of the Option shall be
decreased in proportion to such decrease in outstanding shares.
</PAGE>
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6. Representations, Warranties and Agreements of Optionee
with respect to registration of the sale of the Optioned Stock
and Continued Applicability of Agreement. Optionee hereby
represents and warrants to the Company that the Optioned Stock
will be acquired for Optionee's own account, for investment
purposes and not with a view to the distribution thereof, nor
with any intention of making such distribution at the time the
Option is exercised. Optionee is a sophisticated individual with
significant experience in commercial affairs and has had full
access to all information requested by him with respect to the
Company's current and proposed operations. Optionee understands
that the sale to Optionee of Optioned Stock has not been
registered under the Act, by reason of its proposed issuance in a
transaction exempt from the registration requirements of the Act
and that the Optioned Stock must be held indefinitely unless a
subsequent disposition thereof is registered under the Act or the
transaction is exempt from registration. In connection with the
foregoing, Optionee also agrees that the issuance of all or any
portion of the Optioned Stock is subject to the receipt by the
Company at the time of its issuance of an opinion of its counsel
reasonably acceptable to the Company that the issuance of such
shares is exempt from registration pursuant to an exemption
provided for in the Act, and that in the absence of such an
opinion, the Option provided for in this Agreement shall be
considered withdrawn and terminated. Optionee agrees that the
Company will not be liable for any damages incurred by Optionee
in the event such an opinion cannot reasonably be obtained. The
Optionee is familiar with the provisions of Section 501 of
Regulation D promulgated by the Securities and Exchange
Commission pursuant to the Act and represents and agrees with the
Company that Optionee is being employed as an executive officer
of the Company within the meaning of subsection (f) of Section
501 simultaneously with the execution of this Agreement.
7. No Right to Employment. This Agreement shall not
entitle Optionee to any right or claim to be employed or retained
by the Company or limit the right of the Company to terminate any
agreement it may have with Optionee or to change the terms of
such employment.
8. Legends. All stock certificates representing Optioned
Stock issued to Optionee shall have affixed thereto a legend
substantially in the following form:
"THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. THESE SECURITIES MAY
NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN EXEMPTION THEREFROM
UNDER SAID ACT."
9. Notices. All notices or other communications which are
required or permitted hereunder shall be in writing and
sufficient if delivered personally or sent by air courier or
first class or certified mail addressed as follows:
If to Optionee:
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If to the Company: NUWave Technologies, Inc.
One Passaic Avenue
Fairfield, New Jersey 07004
With a copy to: Greenberg Traurig Hoffman
Lipoff Rosen & Quentel, P.A.
777 South Flagler Drive, Suite 310 East
West Palm Beach, FL, 33401
Attn: Morris C. Brown
or to such other address as the party to whom notice is to be
given may have furnished to the other party in writing in
accordance herewith. All notices and other communications given
to any party hereto in accordance with the provisions of this
Agreement shall be deemed to have been given on the date of
delivery if personally delivered; on the business day after the
date when sent if sent by air courier; and on the third business
day after the date when sent if sent by mail, in each case
addressed to such party as provided in this Section or in
accordance with the latest unrevoked direction from such party.
10. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New
Jersey applicable to contracts made and to be performed wholly
therein.
11. Entire Agreement. This Agreement contains the entire
agreement between the parties hereto with respect to the
transactions contemplated herein and supersedes all previously
written or oral negotiations, commitments, representations and
agreements.
12. Counterparts. This Agreement may be executed in on or
more counterparts, each of which shall be deemed an original, but
all of which shall constitute one and the same instrument.
13. Amendments. This Agreement, or any provisions hereof,
may not be amended, changed or modified without the prior written
consent of each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered as of the date first above
written.
NUWAVE TECHNOLOGIES, INC.
By: ______________________________________
Gerald Zarin, President
ACCEPTED AND AGREED TO:
_______________________________
Signature of Optionee
Name:
Address:
</PAGE>
4
EXHIBIT 4.4
OPTION AGREEMENT FOR THE PURCHASE
OF RESTRICTED STOCK BY NON-EMPLOYEE DIRECTOR
This Option Agreement (this "Agreement") dated as of
___________, 1997, between NUWAVE Technologies, Inc., a Delaware
corporation (the "Company") and the Non-Employee Director
executing this Agreement (the "Director").
Preliminary Statement
This Agreement sets forth the terms pursuant to which the
Director shall have the right to purchase from the Company a
total of _______ shares of common stock of the Company, $.01 par
value (the "Common Stock"), and the terms pursuant to which the
Company has the right to repurchase such Common Stock, or a
portion of it, under certain circumstances.
NOW, THEREFORE, for good and valuable consideration, the
receipt of which is hereby acknowledged, the parties to this
Agreement agree as follows:
1. Definitions. As used in this Agreement, the following
terms shall have the following respective meanings:
(a) Effective Time of Termination of Service. For
purposes of this Agreement, Termination of Service shall be
effective upon (1) the receipt by the Company of the Director's
written notice of resignation or at a later time set forth in the
notice of resignation; (2) removal of Director based upon a vote
of the holders of a majority of the shares entitled to vote at an
election of Directors cast at a meeting of the stockholders
called for that purpose; (3) death; or (4) disability requiring
termination of membership on the Board of Directors.
(b) Expiration Date, with respect to any Optioned
Shares, shall mean 5 p.m. Eastern Standard Time on the fifth
anniversary of the date upon which the right to purchase such
Optioned Shares was granted. With respect to Unvested Shares,
the Expiration Date shall also mean (i) the Effective Time of
Termination of Service or (ii) the date of death of the Director.
With respect to Vested Shares, the Expiration Date shall also
mean (i) 5 p.m. Eastern Standard Time on the 60th day following
the Effective Time of Termination of Service or (ii) 5 p.m.
Eastern Standard Time on the last day of the twelfth month
following the death or disability of the Director.
(c) Optioned Stock or Option Shares shall mean the
Shares of Common Stock of the Company which the Director may
purchase pursuant to the terms of this Agreement.
(d) Purchase Price shall mean $______ for each share
of Common Stock, which price is the price of the Company's Common
Stock at the close of trading on _______, 1997.
(e) Termination of Service shall mean the voluntary
termination of membership on the Board of Directors by the
Director for any reason whatsoever or termination of service due
to removal by stockholder vote, death or disability.
(f) Unvested Shares shall mean any shares of Optioned
Stock which are not Vested Shares.
(g) Vested Shares shall mean (i) ________ shares on
______, 1997; (ii) _______ shares on _______, 1998; (iii) _____
shares on _____, 1999; (iv) _____ shares on _______, 2000 and (v)
______ shares on _______, 2001.
2. Grant of Option to Director. Simultaneously with the
execution and delivery of this Agreement, the Director is granted
the option (the "Option") to purchase the Optioned Stock for a
Purchase Price of $______ per share, upon the terms and
conditions set forth in this Agreement.
3. Exercise of Option. The Option provided for in this
Agreement may be exercised only by the Director or, in the event
of the Director's death, any duly qualified representative of his
estate, and only with respect to any Vested Shares. It may be
exercised in whole at any time or in part from time to time prior
to the Expiration Date. No fractional shares of Common Stock
will be issued. The Director may exercise this purchase right by
giving written notice of such exercise at the general corporate
offices of the Company located at One Passaic Avenue, Fairfield,
New Jersey 07004 (or at such other agency or office of the
Company as it may designate by notice in writing to the Director)
and by payment to the Company of the Purchase Price in cash or by
check for each Vested Share being purchased. In the event of any
exercise of the Options provided for in this Agreement,
certificates for the shares of Common Stock so purchased,
registered in the name of the person entitled to receive the
same, shall be delivered to the Director within a reasonable
time, not exceeding ten days after the Option shall have been so
exercised. The person in whose name any certificates for shares
of Common Stock is issued upon exercise of any Option shall for
all purposes be deemed to have become the holder of record of
such shares on the date on which the Option was surrendered and
payment of the Purchase Price made, irrespective of the date of
delivery of such certificate, except that, if the date of such
surrender and payment is a date when the stock transfer books of
the Company are closed, such person shall be deemed to have
become the holder of record of such shares at the close of
business on the next succeeding date on which the stock transfer
books are open.
4. Adjustment of Number of Option Shares.
(a) If, at any time after the date of this Agreement,
the number of shares of Common Stock outstanding is increased by
a stock dividend payable in shares of Common Stock or by a
subdivision or split-up of shares of Common Stock, then,
following the record date fixed for the determination of holders
of Common Stock entitled to receive such stock dividend,
subdivision or split-up, the Purchase Price shall be
appropriately decreased and the number of shares of Optioned
Stock thereafter issuable on exercise of the Option shall be
increased in proportion to such increase in outstanding shares.
(b) If, at any time after the date of this Agreement,
the number of shares of Common Stock outstanding is decreased by
a combination of the outstanding shares of Common Stock, then,
following the record date for such combination, the Purchase
Price shall be appropriately increased and the number of shares
of Common Stock issuable on exercise of this Option shall be
decreased in proportion to such decrease in outstanding shares.
5. Representations, Warranties and Agreements of the
Director with Respect to Registration of the Sale of the Optioned
Stock and Continued Applicability of Agreement. The Director
hereby represents and warrants to the Company that the Optioned
Stock will be acquired for the Director's own account, for
investment purposes and not with a view to the distribution
thereof, nor with any intention of making such distribution at
the time the Option is exercised. The Director understands that
the sale by the Director of Optioned Stock has not been
registered under the Securities Act of 1933, as amended (the
"Securities Act"), by reason of its proposed issuance in a
transaction exempt from the registration requirements of the
Securities Act and that the Optioned Stock must be held
indefinitely unless a subsequent disposition thereof is
registered under the Securities Act or the transaction is exempt
from registration. In connection with the foregoing, the
Director also agrees that the issuance of all or any portion of
the Optioned Stock is subject to the receipt by the Company at
the time of its issuance of an opinion of its counsel that the
issuance of such shares is exempt from registration pursuant to
an exemption provided for in the Securities Act, and that the
Company will not be liable for any damages incurred by Director
in the event such an opinion cannot reasonably be obtained.
6. Legends. Unless issued pursuant to an effective
Registration Statement filed pursuant to the provisions of the
Securities Act of 1933, all stock certificates representing
Optioned Stock issued to the Director shall have affixed thereto
a legend substantially in the following for:
"THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. THESE SECURITIES MAY
NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN EXEMPTION THEREFROM
UNDER SAID ACT. THE SALE, TRANSFER,
ASSIGNMENT, PLEDGE OR ENCUMBRANCE OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE
ARE SUBJECT TO THE TERMS AND CONDITIONS OF AN
OPTION AGREEMENT FOR THE PURCHASE OF
RESTRICTED STOCK BETWEEN NUWAVE TECHNOLOGIES,
INC. AND ONE OF ITS DIRECTORS. COPIES OF
SUCH AGREEMENT MAY BE OBTAINED AT NO COST BY
WRITTEN REQUEST MADE BY THE HOLDER OF RECORD
OF THIS CERTIFICATE TO THE SECRETARY OF
NUWAVE TECHNOLOGIES, INC."
7. No Right to Employment. This Agreement shall not
entitle the Director to any right or claim to be employed as an
employee of the Company.
8. Notices. All notices or other communications which are
required or permitted hereunder shall be in writing and
sufficient if delivered personally or sent by air courier or
first class or certified mail addressed as follows:
If to the Director: At the address specified at the
foot of this Agreement
If to the Company: NUWAVE Technologies, Inc.
One Passaic Avenue
Fairfield, NJ 07004
Attn: President
With a copy to: Greenberg, Traurig, Hoffman, Lipoff,
Rosen & Quentel, P.A.
777 S. Flagler Drive, Suite 310
East Tower
West Palm Beach, FL 33401
Attn: Morris C. Brown
or to such other address as the party to whom notice is to be
given may have furnished to the other party in writing in
accordance herewith. All notices and other communications given
to any party hereto in accordance with the provisions of this
Agreement shall be deemed to have been given on the date of
delivery if personally delivered; on the business day after the
date when sent if sent by air courier; and on the third business
day after the date when sent if sent by mail, in each case
addressed to such party as provided in this Section or in
accordance with the latest unrevoked direction from such party.
9. Governing Law. This Agreement shall be governed by,
and construed in accordance with, (a) the laws of the State of
New Jersey applicable to contracts made and to be performed
wholly therein and (b) the laws of the State of Delaware
applicable to corporations organized under the laws of such
state.
10. Entire Agreement. This Agreement contains the entire
agreement between the parties hereto with respect to the
transactions contemplated herein and supersedes all previously
written or oral negotiations, commitments, representations and
agreements.
11. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but
all of which shall constitute one and the same instrument.
12. Amendments. This Agreement, or any provisions hereof,
may not be amended, changed or modified without the prior written
consent of each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered as of the date first above
written.
NUWAVE TECHNOLOGIES, INC.
By:_______________________________________
Authorized Signatory
ACCEPTED AND AGREED TO:
______________________________
Signature
Name of Director
Address of Director
EXHIBIT 4.5
OPTION AGREEMENT
FOR THE PURCHASE OF COMMON STOCK
This Agreement is dated as of _______, 1996 between NUWAVE
TECHNOLOGIES, INC., a Delaware corporation (the "Company") and
______________ ("Optionee").
Preliminary Statement
This Agreement sets forth the terms pursuant to which
Optionee shall have the right to purchase from the Company a
total of ________ shares of common stock of the Company, $.01 par
value (the "Common Stock").
NOW, THEREFORE, for good and valuable consideration, the receipt
of which is hereby acknowledged, the parties to this Agreement
agree as follows:
1. Definitions. As used in this Agreement, the following
terms shall have the following respective meanings:
(a) Expiration Date, with respect to any Optioned
Shares, shall mean 5 p.m. Eastern Standard Time on the fifth
anniversary of the date upon which such shares became Vested
Shares. With respect to Unvested Shares, the Expiration Date
shall also mean the Effective Time of Termination of Employment.
(b) Optioned Stock shall mean the ________ shares of
Common Stock of the Company which Optionee may purchase pursuant
to the terms of this Agreement (the "Shares").
(c) Purchase Price shall mean $_______ for each share
of Common Stock (the "Purchase Price").
(d) Unvested Shares shall mean any shares of Optioned
Stock which are not Vested Shares.
(e) Vested Shares shall mean (i) ________ of the
Shares as of the date of this Agreement, (ii) _______ Shares if
the Optionee is employed by the Company on ______, 1997, and
(iii) _________ if the Optionee is employed by the Company on
__________, 1998.
(f) Effective Time of Termination of Employment. For
purposes of this Agreement, Termination of Employment shall be
effective upon the giving notice of such Termination to the
Employee as provided for in Section 9 of this Agreement.
2. Grant of Option to Optionee. Simultaneously with the
execution and delivery of this Agreement, Optionee is granted the
option (the "Option") to purchase the Vested Shares for the
purchase price of $2.00 per share, upon the terms and conditions
set forth in this Agreement.
3. Exercise of Option. The Option provided for in this
Agreement may be exercised only by Optionee or, in the event of
Optionee's death, any duly qualified representative of his
estate. It may be exercised in whole at any time or in part from
time to time prior to the Expiration Date. No fractional shares
of Common Stock will be issued. Optionee may exercise this
purchase right by giving written notice of such exercise at the
general corporate offices of the Company, (or at such other
agency or office of the Company as it may designate by notice in
writing to Optionee) and by payment to the Company of the
Purchase Price in cash or by check for each share of Optioned
Stock being purchased. In the event of any exercise of any Option
provided for in this Agreement, certificates for the shares of
Common Stock so purchased, registered in the name of the person
entitled to receive the same, shall be delivered to Optionee
within a reasonable time, not exceeding ten days after the Option
shall have been so exercised. The person in whose name any
certificate for shares of Common Stock is issued upon exercise of
all or part of the Option shall for all purposes be deemed to
have become the holder of record of such shares on the date on
which the Option was surrendered and payment of the Purchase
Price made, irrespective of the date of delivery of such
certificate, except that, if the date of such surrender and
payment is a date when the stock transfer books of the Company
are closed, such person shall be deemed to have become the holder
of record of such shares at the close of business on the next
succeeding date on which the stock transfer books are open.
4. Holdback Agreement. In the event the Company sells any
of its stock to the public pursuant to an underwritten offering
registered pursuant to the Securities Act of 1933, as amended
(the "Act"), Optionee agrees that he will not sell any of the
Shares then owned by him or subject to this Agreement for a 12
month period following the date such registration statement
becomes effective under the Act (the "Lock-Up Period"), without
the consent of the underwriter, unless a shorter Lock-Up Period
is agreed to by the underwriter.
5. Adjustment of Number of Option Shares.
(a) If, at any time after the date of this Agreement,
the number of shares of Common Stock outstanding is increased by
a stock dividend payable in shares of Common Stock or by a
subdivision or split-up of shares of Common Stock, then,
following the record date fixed for the determination of holders
of Common Stock entitled to receive such stock dividend,
subdivision or split-up, the Purchase Price shall be
appropriately decreased and the number of shares of Optioned
Stock thereafter issuable on exercise of the Option shall be
increased in proportion to such increase in outstanding shares.
(b) If, at any time after the date of this Agreement,
the number of shares of Common Stock outstanding is decreased by
a combination of the outstanding shares of Common Stock, then,
following the record date for such combination, the Purchase
Price shall be appropriately increased and the number of shares
of Common Stock issuable on exercise of the Option shall be
decreased in proportion to such decrease in outstanding shares.
6. Representations, Warranties and Agreements of Optionee
with respect to registration of the sale of the Optioned Stock
and Continued Applicability of Agreement. Optionee hereby
represents and warrants to the Company that the Optioned Stock
will be acquired for Optionee's own account, for investment
purposes and not with a view to the distribution thereof, nor
with any intention of making such distribution at the time the
Option is exercised. Optionee is a sophisticated individual with
significant experience in commercial affairs and has had full
access to all information requested by him with respect to the
Company's current and proposed operations. Optionee understands
that the sale to Optionee of Optioned Stock has not been
registered under the Act, by reason of its proposed issuance in a
transaction exempt from the registration requirements of the Act
and that the Optioned Stock must be held indefinitely unless a
subsequent disposition thereof is registered under the Act or the
transaction is exempt from registration. In connection with the
foregoing, Optionee also agrees that the issuance of all or any
portion of the Optioned Stock is subject to the receipt by the
Company at the time of its issuance of an opinion of its counsel
reasonably acceptable to the Company that the issuance of such
shares is exempt from registration pursuant to an exemption
provided for in the Act, and that in the absence of such an
opinion, the Option provided for in this Agreement shall be
considered withdrawn and terminated. Optionee agrees that the
Company will not be liable for any damages incurred by Optionee
in the event such an opinion cannot reasonably be obtained. The
Optionee is familiar with the provisions of Section 501 of
Regulation D promulgated by the Securities and Exchange
Commission pursuant to the Act and represents and agrees with the
Company that Optionee is being employed as an executive officer
of the Company within the meaning of subsection (f) of Section
501 simultaneously with the execution of this Agreement.
7. No Right to Employment. This Agreement shall not
entitle Optionee to any right or claim to be employed or retained
by the Company or limit the right of the Company to terminate any
agreement it may have with Optionee or to change the terms of
such employment.
8. Legends. All stock certificates representing Optioned
Stock issued to Optionee shall have affixed thereto a legend
substantially in the following form:
"THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. THESE SECURITIES MAY
NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN EXEMPTION THEREFROM
UNDER SAID ACT."
9. Notices. All notices or other communications which are
required or permitted hereunder shall be in writing and
sufficient if delivered personally or sent by air courier or
first class or certified mail addressed as follows:
If to Optionee:
If to the Company: NUWave Technologies, Inc.
One Passaic Avenue
Fairfield, New Jersey 07004
With a copy to: Greenberg Traurig
777 S. Flagler Drive, Suite 310-East
West Palm Beach, FL, 33401
Attn: Morris C. Brown
or to such other address as the party to whom notice is to be
given may have furnished to the other party in writing in
accordance herewith. All notices and other communications given
to any party hereto in accordance with the provisions of this
Agreement shall be deemed to have been given on the date of
delivery if personally delivered; on the business day after the
date when sent if sent by air courier; and on the third business
day after the date when sent if sent by mail, in each case
addressed to such party as provided in this Section or in
accordance with the latest unrevoked direction from such party.
10. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New
Jersey applicable to contracts made and to be performed wholly
therein.
11. Entire Agreement. This Agreement contains the entire
agreement between the parties hereto with respect to the
transactions contemplated herein and supersedes all previously
written or oral negotiations, commitments, representations and
agreements.
12. Counterparts. This Agreement may be executed in on or
more counterparts, each of which shall be deemed an original, but
all of which shall constitute one and the same instrument.
13. Amendments. This Agreement, or any provisions hereof,
may not be amended, changed or modified without the prior written
consent of each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered as of the date first above
written.
NUWAVE TECHNOLOGIES, INC.
By: ______________________________________
Gerald Zarin, President
ACCEPTED AND AGREED TO:
________________________________
(Name of Employee or Consultant)
Address:
EXHIBIT 5.1
<GREENBERG TRAURIG LETTERHEAD>
November 10, 1997
NUWAVE Technologies, Inc.
One Passaic Avenue
Fairfield, New Jersey 07004
Gentlemen:
You have requested our opinion with respect to the
offering by you, NUWAVE Technologies, Inc., a Delaware
corporation (the "Company"), of up to 666,666 shares (the
"Option Shares") of the Company's Common Stock, par value
$.01 per share, pursuant to the provisions of the Company's
1996 Performance Incentive Plan, the Non-Employee Director
Stock Option Plan, and certain options to purchase the
Company's Common Stock granted pursuant to individual
employee benefit plans prior to the adoption of the 1996
Performance Incentive Plan (the "Plans"). The Option Shares
are being offered and sold pursuant to a Registration
Statement (the "Registration Statement") on Form S-8 under
the Securities Act of 1933, as amended (the "Act").
We have examined a copy of the Certificate of
Incorporation, as amended, and the By-Laws of the Company,
the minutes of various meetings of the Company's Board of
Directors and Stockholders, the Registration Statement
prepared by the Company and filed with the Securities and
Exchange Commission and the original or certified copies of
such agreements, certificates of public officials,
certificates of officers and representatives of the Company
and others, opinions of counsel, documents, papers, statutes
and authorities as we deemed necessary as a basis for the
opinions hereinafter set forth. In such examinations, we
have assumed the genuineness of all signatures and the
conformity to original documents of all copies. As to
various questions of fact material to such opinions, we have
relied upon statements and certificates of officers and
representatives of the Company and others.
Based upon the foregoing, we are of the opinion that
the Option Shares have been duly and validly authorized and,
when sold, paid for and issued as contemplated by the Plans
and the Registration Statement, will be duly and validly
issued, fully paid and non-assessable.
We hereby consent to the use of this opinion as an
exhibit to the Registration Statement, and to the use of our
name as your counsel in connection with the Registration
Statement and in the Prospectus forming a part thereof. In
giving this consent, we do not thereby concede that we come
within the categories of persons who consent is required by
the Act or the General Rules and Regulations promulgated
thereunder.
Very truly yours,
GREENBERG TRAURIG HOFFMAN
LIPOFF ROSEN & QUENTEL, P.A.
Exhibit 23.1
<Coopers & Lybrand letterhead>
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this registration statement on Form S-8 of
our report dated March 26, 1997 on our audit of the financial statements
of NUWAVE TECHNOLOGIES,INC.(a development stage enterprise ) as of December
31, 1995 and 1996, and for the period from July 17, 1995 (inception) to
December 31, 1995 and for the year ended December 31, 1996. We also consent
to the reference to our firm under the caption "Experts".
/s/Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
New York, New York
November 11, 1997
