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As Filed With the Securities and Exchange Commission on October 27, 1999
Registration No. 333-_________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NUWAVE TECHNOLOGIES, INC.
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(Exact name of registrant as specified in its charter)
Delaware
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(State or other jurisdiction of incorporation or organization)
22-3387630
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I.R.S. Employer Identification No.)
One Passaic Avenue
Fairfield, New Jersey 07004
(Address of principal executive offices)
1996 Stock Incentive Plan for Employees and Consultants
Non-Employee Director Stock Option Plan
(Full title of the plans)
GERALD ZARIN
President
One Passaic Avenue
Fairfield, New Jersey 07004
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(Name and address of agent for service)
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(973) 882-8810
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Telephone number, including area code, of agent for service
Copy to:
Bruce A. Rich, Esq.
THELEN REID & PRIEST LLP
40 West 57th Street
New York, New York 10019
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------- ---------------------- ------------------------ ----------------------- --------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
BE REGISTERED REGISTERED (1) SHARE (2)(3) PRICE (2)(3) REGISTRATION FEE
- ------------------------- ---------------------- ------------------------ ----------------------- --------------------
<S> <C> <C> <C> <C>
Common Stock, Par Value 1,100,000 $ 2.3125 $2,543,750 $707.16
$.01
- ------------------------- ---------------------- ------------------------ ----------------------- --------------------
</TABLE>
(1) The number of shares stated is the aggregate number of shares of Common
Stock to be issued upon the exercise of additional options granted or
to be granted under the 1996 Performance Incentive Plan (945,000), and
the Non-Employee Director Stock Option Plan (155,000), as amended.
(2) Estimated in accordance with Rule 457(h) under the Securities Act of
1933, as amended (the "Securities Act") solely for the purpose of
calculating the total registration fee. Computation based upon the
exercise price of options to purchase common stock.
<PAGE>
(3) Estimated in accordance with Rule 457(c) under the Securities Act
solely for the purpose of calculating the total registration fee.
Computation based upon the closing price ($ 2.3125) of the Common Stock
as reported on the Nasdaq Stock Market on October 22, 1999, 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 Securities Act, this Registration
Statement also covers an indeterminate amount of interests to be offered or sold
pursuant to the employee benefit plans described herein and shares of Common
Stock of the Company issuable to prevent dilution resulting from stock splits,
stock dividends or similar transactions.
2
<PAGE>
NUWAVE TECHNOLOGIES, INC.
1996 STOCK INCENTIVE PLAN FOR EMPLOYEES AND CONSULTANTS
NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This Registration Statement on Form S-8 is prepared pursuant to General
Instruction E to Form S-8.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The document listed below is hereby incorporated by reference into this
Registration Statement, and all documents subsequently filed by NUWAVE
TECHNOLOGIES, INC. (the "Company"), with the Securities and Exchange Commission
(the "Commission"), pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended (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 date of filing such documents:
(a) The Company's Registration Statement on Form S-8 (File No.
333-39961), as filed with the Securities and Exchange
Commission on November 11, 1997, to register 666,666 shares of
the Common Stock, $.0l par value, underlying the Company's
1996 Performance Incentive Plan (260,000 shares), Non-Employee
Director Stock Option Plan (80,000 shares) and Individual
Options granted under various Employment and Consultant
Agreements (326,666 shares);
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 reverence in this Registration Statement and to be a part hereof
from the respective date of the filing of such documents.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of the Registration
Statement to the extent that a statement contained herein modifies or replaces
such statement. Any such statement shall not be deemed to constitute a part of
this Registration Statement except as so modified or replaced.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the Common Stock offered hereby will be passed upon for the
Company by Thelen Reid & Priest LLP, the Company's General Counsel.
ITEM 6. INDEMNIFICATION OF DIRECTORS
Article Seventh of the registrant's Certificate of Incorporation provides
that "[t]he Corporation shall, to the fullest extent permitted by the provisions
of ss. 145 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
<PAGE>
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."
Section 145 of the DGCL permits a corporation, among other things, 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, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation), by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with 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 corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful.
A corporation also may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit 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
corporation. However, in such an action by or on behalf of a corporation, no
indemnification may be made in respect of any claim, issue or matter as to which
the person is adjudged liable to the corporation unless and only to the extent
that the court determines that, despite the adjudication of liability but in
view of all the circumstances, the person is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper.
In addition, the indemnification and advancement of expenses provided by or
granted pursuant to Section 145 shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses 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.
ITEM 8. EXHIBITS.
Exhibit No. Description
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4.1 1996 Performance Incentive Plan (
incorporated by reference from Exhibit 10.6
to theCompany's Registration Statement on
Form SB-2 filed with the Commission on April
2,1996)Commission File No. 333-03110).
4.2 Non-Employee Director Stock Option Plan
(incorporated by reference from Exhibit 10.1
to the Company's Report on Form 8-K filed
with the Commission on June 6, 1997)
(Commission File No. 0-28606).
II-2
<PAGE>
4.3 Proxy Statement (incorporated by reference
to the Company's Schedule 14A filed with the
Commission on June 8, 1998) (Commission File
No. 000-28606).
5* Opinion of Thelen Reid & Priest LLP.
23.1* Consent of Richard A. Eisner & Company, LLP.
23.2* Consent of PricewaterhouseCoopers LLP.
23.3* Consent of Thelen Reid & Priest LLP
(included in Exhibit 5).
24.1* Special Power of Attorney for Edward Bohn.
24.2* Special Power of Attorney for Richard E.
Ekstract.
24.3* Special Power of Attorney for Lyle E.
Gramley.
24.4* Special Power of Attorney for Joseph A.
Sarubbi.
* Filed herewith.
ITEM 9. UNDERTAKINGS.
The Company hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement;
(b) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(c) To reflect in the prospectus any facts or events arising after
effective date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement;
(d) 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;
provided, however, that paragraphs (b) and (c) do not apply if the Registration
Statement is on Form S-3, Form S-8 or Form F-3, and the information required to
be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement;
II-3
<PAGE>
(e) That, for the purpose of determining any liability under the Securities
Act, 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;
(f) To remove from registration by means of a post-effective amendment any
of the securities that remain unsold at the end of the offering;
(g) That, for purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (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; and
(h) 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 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 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 and will be governed by the final
adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended
(the "Securities Act"), 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 the 25th day of October, 1999.
NUWAVE TECHNOLOGIES, INC.
By: /s/ Gerald Zarin
---------------------------------
Gerald Zarin, President
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
--------- ----- ----
/s/ Gerald Zarin President, Chief October 25, 1999
- ------------------------------ Executive Officer
Gerald Zarin and Chairman of the Board
(Principal Executive Officer)
/s/ Jeremiah F. O' Brien Vice President October 25, 1999
- ------------------------------ and Chief Financial Officer
Jeremiah F. O'Brien
* Director October 25, 1999
- ------------------------------
Edward Bohn
Director October, ___ 1999
- ------------------------------
Richard E. Ekstract
* Director October 25, 1999
- ------------------------------
Lyle E. Gramley
* Director October 25, 1999
- ------------------------------
Joseph A. Sarubbi
* By: /s/ Gerald Zarin
---------------------------------
Gerald Zarin
Attorney-in-Fact
II-5
<PAGE>
INDEX TO EXHIBITS
NUWAVE TECHNOLOGIES, INC.
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Sequentially
Exhibit Numbered
No. Description Page
---- ----------- ------
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5 Opinion of Thelen Reid & Priest LLP III-2
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23.1 Consent of Richard A. Eisner & Company, LLP III-3
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23.2 Consent of PricewaterhouseCoopers LLP III-4
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23.3 Consent of Thelen Reid & Priest LLP (included
in Exhibit 5) III-2
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24.1 Special Power of Attorney for Edward Bohn III-5
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24.2 Special Power of Attorney for Richard E.
Ekstract III-6
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24.3 Special Power of Attorney for Lyle E.
Gramley III-7
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24.4 Special Power of Attorney for Richard A.
Sarubbi III-8
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EXHIBIT 5
OPINION OF THELEN REID & PRIEST LLP
THELEN REID & PRIEST LLP
ATTORNEYS AT LAW
40 WEST 57TH STREET
NEW YORK, N.Y. 10019-4097
October 25, 1999
NUWAVE Technologies, Inc.
One Passaic Avenue
Fairfield, New Jersey 07004
Re: Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have acted as counsel to NUWAVE Technologies, Inc., a Delaware
corporation (the "Registrant"), in connection with the preparation and filing of
a Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission (the "Commission"), with respect to the
registration under the Securities Act of 1933, as amended (the "Securities
Act"), of 1,100,000 shares (the "Shares") of the Registrant's Common Stock, $.01
par value, issuable upon the exercise of options (the "Options") granted or to
be granted under the Registrant's amended 1996 Stock Incentive Plan for
Employees and Consultants, and the Non-Employee Director Stock Option Plan (the
"Plans").
For purposes of this opinion we have examined the Registration
Statement, the Certificate of Incorporation, as amended, and the By-Laws of the
Registrant, and such documents, records, agreements, proceedings and legal
matters as we have deemed necessary to examine. With respect to any documents or
other corporate records which we have examined, we have assumed the genuineness
of all signatures on, and the authenticity of, all documents submitted to us as
originals, and the conformity to the original documents submitted to us as
certified or photostatic copies.
Based upon the foregoing and subject to the qualifications stated
herein we are of the opinion that:
1. The Registrant is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware.
2. The Shares included in the Registration Statement to be issued upon the
exercise of the Options will be duly authorized and validly issued, and fully
paid and non-assessable when the Options shall have been properly exercised and
the exercise price shall have been paid for the Shares in accordance with the
terms of the respective Plans.
<PAGE>
We are members of the Bar of the State of New York and do not hold
ourselves out as experts concerning, or qualified to render opinions with
respect to any laws other than the laws of the State of New York, the Federal
laws of the United States and the General Corporation Law of the State of
Delaware.
We hereby consent to the filing of this opinion with the Commission
as Exhibit 5 to the Registration Statement. In giving the foregoing consent, we
do not thereby admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act or the rules and regulations of
the Commission thereunder.
Very truly yours,
/s/ Thelen Reid & Priest LLP
THELEN REID & PRIEST LLP
II-2
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement on Form S-8 pertaining to the NUWAVE Technologies, Inc. 1996
Stock Incentive Plan for Employees and Consultants and the Non-Employee
Director Stock Option Plan of our report dated March 10, 1999, with respect
to the financial statements of NUWAVE Technologies, Inc. as of December 31, 1998
and for each of the years in the two-year period ended December 31, 1998 and
the amounts for such years included in the cumulative amounts for the period
from July 17, 1995 (inception) to December 31, 1998.
/s/ Richard A. Eisner & Company, LLP
------------------------------------
Richard A. Eisner & Company, LLP
Florham Park, New Jersey
October 27, 1999
III-3
PRICEWATERHOUSECOOPERS [LOGO]
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PricewaterhouseCoopers LLP
1301 Avenue of the Americas
New York, NY 10019-6013
Telephone (212) 259-1000
Facsimile (212) 259-1301
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 26, 1997 on our audit of
the statement of operations, cash flows of NUWAVE TECHNOLOGIES, INC. (a
development stage enterprise) for the period from July 17, 1995 (inception)
to December 31, 1998 included in the cumulative amounts for the period from
July 17, 1995 (inception) to December 31, 1998 (not presented separately
herein), and the related statement of stockholders' equity for the period
from July 17, 1995 (inception) to December 31, 1995 and the year ended
December 31, 1996, which appears in NUWAVE TECHNOLOGIES, INC'S Form 10KSB
for the year ended December 31, 1998.
New York, New York
October 26, 1999
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
III-4
EXHIBIT 24.1
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, a Director of NUWAVE
Technologies, Inc., a Delaware corporation (the "Company"), constitutes and
appoints Gerald Zarin and Jeremiah F. O'Brien, and each of them, 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 a Form S-8 registration statement for filing with the
Securities and Exchange Commission respecting the registration of shares of
Common Stock, par value $.01 per share, of the Company. Together with any and
all amendments (including post-effective amendments) to such registration
statement, and to file the same with all exhibits thereto, and all documents in
connection therewith, with the Securities and Exchange Commission, granting such
attorneys-in-fact and agents 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 and to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that such attorneys-in-fact and
agents may lawfully do or cause to be done in virtue hereof.
Dated: October 19, 1999
/s/ Edward Bohn
-----------------------------
Edward Bohn
III-5
EXHIBIT 24.2
SPECIAL POWER OF ATTORNEY FOR RICHARD E. EKSTRACT
III-6
EXHIBIT 24.3
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, a Director of NUWAVE
Technologies, Inc., a Delaware corporation (the "Company"), constitutes and
appoints Gerald Zarin and Jeremiah F. O'Brien, and each of them, 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 a Form S-8 registration statement for filing with the
Securities and Exchange Commission respecting the registration of shares of
Common Stock, par value $.01 per share, of the Company. Together with any and
all amendments (including post-effective amendments) to such registration
statement, and to file the same with all exhibits thereto, and all documents in
connection therewith, with the Securities and Exchange Commission, granting such
attorneys-in-fact and agents 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 and to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that such attorneys-in-fact and
agents may lawfully do or cause to be done in virtue hereof.
Dated: October 19, 1999
/s/ Lyle E. Gramley
_________________________________
Lyle E. Gramley
EXHIBIT 24.4
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, a Director of NUWAVE
Technologies, Inc., a Delaware corporation (the "Company"), constitutes and
appoints Gerald Zarin and Jeremiah F. O'Brien, and each of them, 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 a Form S-8 registration statement for filing with the
Securities and Exchange Commission respecting the registration of shares of
Common Stock, par value $.01 per share, of the Company. Together with any and
all amendments (including post-effective amendments) to such registration
statement, and to file the same with all exhibits thereto, and all documents in
connection therewith, with the Securities and Exchange Commission, granting such
attorneys-in-fact and agents 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 and to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that such attorneys-in-fact and
agents may lawfully do or cause to be done in virtue hereof.
Dated: October 19, 1999
/s/ Joseph A. Sarubbi
_______________________________
Joseph A. Sarubbi
