UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-KSB/A
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(MARK ONE)
[X] ANNUAL REPORT UNDER SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 1998
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ________________ to ___________________
Commission file number 0-28606
NUWAVE TECHNOLOGIES, INC.
(name of small business issuer in its charter)
DELAWARE 22-3387630
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
ONE PASSAIC AVENUE
FAIRFIELD, NEW JERSEY 07004
(Address of principal executive offices)(Zip Code)
(973) 882-8810
(Issuer's telephone number, including area code)
--------------
Securities registered under Section 12(b) of the Exchange Act:
NONE
Securities registered under Section 12(g) of the Exchange Act:
COMMON STOCK, $.01 PAR VALUE
Check whether the issuer (1) filed all reports required to be filed by Section
13 or 15(d) of the Securities Exchange Act of 1934 during the past 12 months (or
for such shorter period that the registrant was required to file such reports)
and (2) has been subject to such filing requirements for the past 90 days. Yes
[XX] No [ ]
Check if there is no disclosure of delinquent filers in response to Item 405 of
Regulation S-B contained herein, and no disclosure will be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference to Part III of this Form 10-KSB or any amendment to
this Form 10-KSB. [XX]
State issuer's revenues for its most recent fiscal year: $12,545
Aggregate market value of the voting stock held by non-affiliates based on the
last sale price for such stock at March 10, 1999: $17,757,327
The number of shares of Common Stock outstanding as of March 10, 1999: 8,356,389
Transitional Small Business Disclosure Format: Yes [ ] No [XX]
<PAGE>
ITEM 13. EXHIBITS AND REPORTS ON FORM 8-K
(a) EXHIBITS
EXHIBIT DESCRIPTION
- ------- -----------
1.1* Form of Underwriting Agreement (See Exhibit 1.1 to Registration
Statement on Form SB-2 filed with the Commission on April 2,
1996).
3.1* Articles of Incorporation of the Company (Delaware) (See Exhibit
3.1(a) to Registration Statement on Form SB-2 filed with the
Commission on April 2, 1996).
3.2* Certificate of Amendment to Articles of Incorporation of the
Company (Delaware) (See Exhibit 3.1(b) to Registration Statement
on Form SB-2 filed with the Commission on April 2, 1996).
3.3* Certificate of Authority (New Jersey) (See Exhibit 3.1(c) to
Registration Statement on Form SB-2 filed with the Commission on
April 2, 1996).
3.4* Amended Certificate of Authority (New Jersey) (See Exhibit 3.1(d)
to Registration Statement on Form SB-2 filed with the Commission
on April 2, 1996).
3.5* Certificate of Amendment to Articles of Incorporation of the
Company (Delaware) (See Exhibit 3.1(e) to Registration Statement
on Form SB-2 filed with the Commission on April 2, 1996).
3.6* By-Laws of the Company (See Exhibit 3.2 to Registration Statement
on Form SB-2 filed with the Commission on April 2, 1996).
4.1* Form of Common Stock Certificate (See Exhibit 4.1 to Amendment
No. 2 to Registration Statement on Form SB-2 filed with the
Commission on July 3, 1996).
4.2* Form of Public Warrant Agreement between the Company, American
Stock Transfer & Trust Company and Rickel & Associates, Inc. (See
Exhibit 4.2 to Amendment No. 1 to Registration Statement on Form
SB-2 filed with the Commission on May 22, 1996).
4.3* Form of Public Warrant Certificate (See Exhibit 4.3 to Amendment
No. 2 to Registration Statement on Form SB-2 filed with the
Commission on July 3, 1996).
4.4* Form of Underwriter's Warrant Agreement (including Warrant
Certificate) between the Company and Rickel & Associates (See
Exhibit 4.4 to Amendment No. 1 to Registration Statement on Form
SB-2 filed with the Commission on May 22, 1996).
4.5* Selected Dealer Agreement among Rickel & Associates, Inc. and
certain underwriters (See Exhibit 4.5 to Amendment No. 2 to
Registration Statement on Form SB-2 filed with the Commission on
July 3, 1996).
5.1* Opinion of counsel to the Company concerning the legality of the
securities offered in the Company's Initial Public Offering (See
Exhibit 5.1 to Amendment No. 2 to Registration Statement on Form
SB-2 filed with the Commission on July 3, 1996).
5.2* Opinion of Greenberg Taurig Hoffman Lipoff Rosen & Quentel, P.A.
(See Exhibit 5.1 to Registration Statement on Form S-8 filed with
the Commission on November 12, 1997).
<PAGE>
5.3* Opinion of counsel to the Company concerning the legality of the
securities being offered (See Exhibit 5 to Registration Statement
on Form S-3 filed with the Commission on March 8, 1998).
10.1* Restated Employment Agreement dated as of July 20, 1995 between
NUWAVE Engineering, Inc. and Gerald Zarin (See Exhibit 10.1 to
Registration Statement on Form SB-2 filed with the Commission on
April 2, 1996).
10.2* Employment Agreement dated as of September 11, 1995 between
NUWAVE Engineering, Inc. and Robert I. Webb (See Exhibit 10.2 to
Registration Statement on Form SB-2 filed with the Commission on
April 2, 1996).
10.3* Consulting Agreement dated as of July 18, 1995 between NUWAVE
Engineering, Inc. and Corporate Builders, L.P. (See Exhibit 10.3
to Registration Statement on Form SB-2 filed with the Commission
on April 2, 1996).
10.4* Letter Agreement dated as of November 22, 1995 between NUWAVE
Technologies, Inc. and Rickel & Associates, Inc. (See Exhibit
10.5 to Registration Statement on Form SB-2 filed with the
Commission on April 2, 1996).
10.5* 1996 Performance Incentive Plan (See Exhibit 10.6 to
Registration Statement on Form SB-2 filed with the Commission on
April 2, 1996).
10.6* Exclusive Worldwide License Agreement dated as of July 21, 1995
between NUWAVE Engineering, Inc. and Rave Engineering Corporation
(See Exhibit 10.7 to Registration Statement on Form SB-2 filed
with the Commission on April 2, 1996).
10.7* Development Agreement dated as of July 21, 1995 between NUWAVE
Engineering, Inc. and Rave Engineering Corporation (See Exhibit
10.8 to Registration Statement on Form SB-2 filed with the
Commission on April 2, 1996).
10.8* Exclusive Agency Agreement dated as of July 21, 1995 between
NUWAVE Engineering, Inc. and Prime Technology, Inc. (See Exhibit
10.9 to Registration Statement on Form SB-2 filed with the
Commission on April 2, 1996).
10.9* Assignment dated as of July 21, 1995 between NUWAVE Engineering,
Inc., Prime Technology, Inc. and Rave Engineering Corporation
(See Exhibit 10.10 to Registration Statement on Form SB-2 filed
with the Commission on April 2, 1996).
10.10* Shareholders' Agreement dated as of July 21, 1995 (See Exhibit
10.11 to Registration Statement on Form SB-2 filed with the
Commission on April 2, 1996).
10.11* Finder's Agreement dated as of September 1, 1995 among NUWAVE
Technologies, Inc., Prime Technology, Inc. and Harvest
Technologies, Inc. (See Exhibit 10.12 to Registration Statement
on Form SB-2 filed with the Commission on April 2, 1996).
10.12* Finder's Agreement dated as of January 16, 1996 among NUWAVE
Engineering, Inc., Prime Technology, Inc. and Jay Vahl (See
Exhibit 10.13 to Registration Statement on Form SB-2 filed with
the Commission on April 2, 1996).
10.13* Option Agreement for the Purchase of Common Stock dated as of
July 17, 1995 between NUWAVE Engineering, Inc. and Jeremiah F.
O'Brien (See Exhibit 10.14 to Registration Statement on Form SB-2
filed with the Commission on April 2, 1996).
10.14* Option Agreement for the Purchase of Common Stock dated as of
September 11, 1995 between NUWAVE Engineering, Inc. and Robert I.
Webb (See Exhibit 10.15 to Registration Statement on Form SB-2
filed with the Commission on April 2, 1996).
2
<PAGE>
10.15* Option Agreement for the Purchase of Common Stock dated as of
November 9, 1995 between NUWAVE Engineering, Inc. and Lyle E.
Gramley (See Exhibit 10.16 to Registration Statement on Form SB-2
filed with the Commission on April 2, 1996).
10.16* Option Agreement for Purchase of Common Stock dated as of March
1, 1996 between NUWAVE Technologies, Inc. and Jeremiah F. O'Brien
(See Exhibit 10.17 to Registration Statement on Form SB-2 filed
with the Commission on April 2, 1996).
10.17* Option Agreement for Purchase of Common Stock dated as of July
20, 1995 between NUWAVE Technologies, Inc. and Gerald Zarin (See
Exhibit 10.18 to Registration Statement on Form SB-2 filed with
the Commission on April 2, 1996).
10.18* Option Agreement for Purchase of Common Stock dated as of March
1, 1996 between NUWAVE Technologies, Inc. and Joseph A. Sarubbi
(See Exhibit 10.19 to Registration Statement on Form SB-2 filed
with the Commission on April 2, 1996).
10.19* Option Agreement for Purchase of Common Stock dated as of March
1, 1996 between NUWAVE Technologies, Inc. and Ed Bohn (See
Exhibit 10.20 to Registration Statement on Form SB-2 filed with
the Commission on April 2, 1996).
10.20* Shareholder's Agreement dated as of July 17, 1995 between
NUWAVE Engineering, Inc. and its Common Stockholders (See Exhibit
10.21 to Registration Statement on Form SB-2 filed with the
Commission on April 2, 1996).
10.21* Form of Subscription Agreement between NUWAVE Engineering, Inc.
and its Series A Preferred Stockholders through August 1995 (See
Exhibit 10.22 to Registration Statement on Form SB-2 filed with
the Commission on April 2, 1996).
10.22* Loan and Stock Purchase Agreement dated as of December 15, 1995
between NUWAVE Engineering, Inc. and Helen Burgess (See Exhibit
10.23 to Registration Statement on Form SB-2 filed with the
Commission on April 2, 1996).
10.23* Form of Indemnification Agreement between the Company and its
directors, dated as of January 31, 1996 (See Exhibit 10.24 to
Registration Statement on Form SB-2 filed with the Commission on
April 2, 1996).
10.24* Form of Note entered into between the Company and the Initial
Bridge Investor relating to the Initial Bridge Financing (See
Exhibit 10.25 to Registration Statement on Form SB-2 filed with
the Commission on April 2, 1996).
10.25* Form of 10% Promissory Note delivered by the Company in
connection with the private placement of 80 Units (the "Private
Placement Bridge"), each unit consisting of an unsecured 10%
non-negotiable promissory note in the amount of $25,000 and 5,000
shares of Common Stock of the Company, during February and March
of 1996 (See Exhibit 10.26 to Registration Statement on Form SB-2
filed with the Commission on April 2, 1996).
10.26* Form of Securities Registration Rights Agreement entered into
between the Company and the purchasers of Common Stock in the
Private Placement (See Exhibit 10.27 to Registration Statement on
Form SB-2 filed with the Commission on April 2, 1996).
10.27* Form of Registration Rights Agreement entered into between
Company and the purchasers of its Series A Preferred Stock (See
Exhibit 10.28 to Registration Statement on Form SB-2 filed with
the Commission on April 2, 1996).
3
<PAGE>
10.28* Form of Lock-up letter between the Company and certain holders
of its Common Stock (See Exhibit 10.29 to Registration Statement
on Form SB-2 filed with the Commission on April 2, 1996).
10.29* Lease Letter Agreement between the Company and Simon, Sarver &
Rosenberg dated July 28, 1995 (See Exhibit 10.30 to Registration
Statement on Form SB-2 filed with the Commission on April 2,
1996).
10.30* Guaranty executed by the Company as of October 13, 1995 in
connection with Standard Industrial Net Lease between Collins
Tech RB and Rave Engineering, Inc. (See Exhibit 10.31 to
Registration Statement on Form SB-2 filed with the Commission on
April 2, 1996).
10.31* Amendment to Employment Agreement dated as of September 11,
1995 between NUWAVE Engineering, Inc. and Robert I. Webb dated
June 3, 1996 (See Exhibit 10.32 to Amendment No. 2 to
Registration Statement on Form SB-2 filed with the Commission on
July 3, 1996).
10.32* Financial Consulting Agreement between Prime Technology, Inc.
and Ernest Chu dated January 15, 1995 (See Exhibit 10.33 to
Amendment No. 2 to Registration Statement on Form SB-2 filed with
the Commission on July 3, 1996).
10.33* Letter Agreement concerning the Gaming Technology among the
Company, Rave Engineering Corp. and Prime Technology, Inc. dated
March 24, 1997 (See Exhibit 10.34 to Annual Report filed with the
Commission on April 30, 1997).
10.34* Non-Employee Director Stock Option Plan (See Exhibit 10.1 to
Current Report on Form 8-K filed with the Commission on June 6,
1997).
10.35* Form of Incentive Stock Option Agreement (See Exhibit 4.3 to
Registration Statement on Form S-8 filed with the Commission on
November 12, 1997).
10.36* Form of Non-Employee Director Stock Option Agreement (See
Exhibit 4.4 to Registration Statement on Form S-8 filed with the
Commission on November 12, 1997).
10.37* 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 (See Exhibit 4.5 to
Registration Statement on Form S-8 filed with the Commission on
November 12, 1997).
10.38* Registration Rights Agreement, dated February 6, 1998, between
NuWave Technologies, Inc. and ProFutures Special Equities Fund,
L.P. (See Exhibit 4.1 to Current Report on Form 8-K filed with
the Commission on February 18, 1998).
10.39* Private Securities Subscription Agreement, dated as of February
6, 1998, between NuWave Technologies, Inc. and ProFutures Special
Equities Fund, L.P. (See Exhibit 10.1 to Current Report on Form
8-K filed with the Commission on February 18, 1998).
10.40* Warrant, dated February 6, 1998, executed by NuWave
Technologies, Inc. in favor of ProFutures Special Equities Fund,
L.P., to purchase up to 50,000 shares of Common Stock, par value
$.01 per share, of NuWave Technologies, Inc. (See Exhibit 10.2 to
Current Report on Form 8-K filed with the Commission on February
18, 1998).
4
<PAGE>
10.41* Component Purchase Agreement, dated December 31, 1997, between
Thomson Consumer Electronics, Inc. and NuWave Technologies, Inc.
(See Exhibit 10.41 to Annual Report on Form 10-KSB filed with the
Commission on March 25, 1998).
10.42* Letter Agreement, dated March 3, 1998, between NuWave
Technologies, Inc. and Janssen/Meyers Associates, L.P. (See
Exhibit 10.41 to Annual Report on Form 10-KSB filed with the
Commission on March 25, 1998).
10.43* Warrant, dated March 3, 1998, executed by NuWave Technologies,
Inc. in favor of Janssen/Meyers Associates, L.P., to purchase up
to 400,000 shares of Common Stock, par value $.01 per share, of
NuWave Technologies, Inc. (See Exhibit 10.41 to Annual Report on
Form 10-KSB filed with the Commission on March 25, 1998).
10.44* Letter Agreement, dated December 3, 1997, between NuWave
Technologies, Inc. and Lippert/Heilshorn & Associates, Inc. (See
Exhibit 10.41 to Annual Report on Form 10-KSB filed with the
Commission on March 25, 1998).
10.45* Option Agreement, dated December 9, 1997, between NuWave
Technologies, Inc. and Lippert/Heilshorn & Associates, Inc. (See
Exhibit 10.41 to Annual Report on Form 10-KSB filed with the
Commission on March 25, 1998).
10.46* First Amendment to Restated Employment Agreement, dated
December 9, 1997, between NuWave Technologies, Inc. and Gerald
Zarin (See Exhibit 10.41 to Annual Report on Form 10-KSB filed
with the Commission on March 25, 1998).
10.47* Placement Agency Agreement, dated as of May 11, 1998, between
Janssen-Meyers Associates, L.P. and NuWave Technologies, Inc.
(See Exhibit 10.1 to Current Report on Form 8-K filed with the
Commission on June 11, 1998).
10.48* Escrow Agreement, dated May 11, 1998, between NuWave
Technologies, Inc., Janssen-Meyers Associates, L.P. and Republic
National Bank of New York (See Exhibit 10.2 to Current Report on
Form 8-K filed with the Commission on June 11, 1998).
10.49* Warrant Agreement, dated May 15, 1998, between NuWave
Technologies, Inc. and American Stock Transfer & Trust Company
(See Exhibit 10.3 to Current Report on Form 8-K filed with the
Commission on June 11, 1998).
10.50* Form of Warrant Certificate (See Exhibit 10.4 to Current Report
on Form 8-K filed with the Commission on June 11, 1998).
10.51* Placement Agent Warrant Agreement, dated May 19, 1998, between
NuWave Technologies, Inc. and Janssen-Meyers Associates, L.P.
(See Exhibit 10.5 to Current Report on Form 8-K filed with the
Commission on June 11, 1998).
10.52* Form of Placement Agent Warrant Certificate (See Exhibit 10.6
to Current Report on Form 8-K filed with the Commission on June
11, 1998).
10.53* Form of Subscription Agreement (See Exhibit 10.7 to Current
Report on Form 8-K filed with the Commission on June 11, 1998).
10.54** Agreement, dated February 1, 1999, between NuWave
Technologies, Inc. and Terk Technologies Corp.
16.1* Letter from Coopers & Lybrand L.L.P. to the Commission dated
February 16, 1998 (See Exhibit 16.1 to Current Report on Form 8-K
filed with the Commission on February 18, 1998).
23.1* Consent of Coopers & Lybrand L.L.P. (See Exhibit 23.1 to Annual
Report on Form 10-KSB filed with the Commission on March 25,
1998)
5
<PAGE>
27.1** Financial Data Schedule
99.1* Press release, dated May 21, 1998 (See Exhibit 99.1 to Current
Report on Form 8-K filed with the Commission on June 11, 1998).
* The exhibits thus designated are incorporated herein by reference as
exhibits hereto. Following the description of such exhibits is a reference
to the copy of the exhibit heretofore filed with the Commission, to which
there have been no amendments or changes.
** Filed herewith. Certain portions of Exhibit 10.54 were omitted and filed
separately with the Commission pursuant to a request for confidential
treatment.
(b) REPORTS ON FORM 8-K:
None.
6
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
NUWAVE TECHNOLOGIES, INC.
(Registrant)
Date: April 15, 1999 By: /s/ Gerald Zarin
------------------------------------
Gerald Zarin
Chairman of the Board, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below 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, Chief Executive April 15, 1999
- --------------------------- Officer and Chairman of
Gerald Zarin the Board (Principal
Executive Officer)
/s/ Jeremiah F. O'Brien Chief Financial Officer and April 15, 1999
- --------------------------- Secretary (Principal
Jeremiah F. O'Brien Financial Officer and
Accounting Officer)
/s/ Ed Bohn Director April 15, 1999
- ---------------------------
Ed Bohn
/s/ Lyle Gramley Director April 15, 1999
- ---------------------------
Lyle Gramley
/s/ Joseph A. Sarubbi Director April 15, 1999
- ---------------------------
Joseph A. Sarubbi
7
<PAGE>
EXHIBIT INDEX
Exhibit Page
Number Description Number
- ------ ----------- ------
1.1* Form of Underwriting Agreement (See Exhibit 1.1 to Registration
Statement on Form SB-2 filed with the Commission on April 2,
1996).
3.1* Articles of Incorporation of the Company (Delaware) (See Exhibit
3.1(a) to Registration Statement on Form SB-2 filed with the
Commission on April 2, 1996).
3.2* Certificate of Amendment to Articles of Incorporation of the
Company (Delaware) (See Exhibit 3.1(b) to Registration Statement
on Form SB-2 filed with the Commission on April 2, 1996).
3.3* Certificate of Authority (New Jersey) (See Exhibit 3.1(c) to
Registration Statement on Form SB-2 filed with the Commission on
April 2, 1996).
3.4* Amended Certificate of Authority (New Jersey) (See Exhibit 3.1(d)
to Registration Statement on Form SB-2 filed with the Commission
on April 2, 1996).
3.5* Certificate of Amendment to Articles of Incorporation of the
Company (Delaware) (See Exhibit 3.1(e) to Registration Statement
on Form SB-2 filed with the Commission on April 2, 1996).
3.6* By-Laws of the Company (See Exhibit 3.2 to Registration Statement
on Form SB-2 filed with the Commission on April 2, 1996).
4.1* Form of Common Stock Certificate (See Exhibit 4.1 to Amendment No.
2 to Registration Statement on Form SB-2 filed with the Commission
on July 3, 1996).
4.2* Form of Public Warrant Agreement between the Company, American
Stock Transfer & Trust Company and Rickel & Associates, Inc. (See
Exhibit 4.2 to Amendment No. 1 to Registration Statement on Form
SB-2 filed with the Commission on May 22, 1996).
4.3* Form of Public Warrant Certificate (See Exhibit 4.3 to Amendment
No. 2 to Registration Statement on Form SB-2 filed with the
Commission on July 3, 1996).
4.4* Form of Underwriter's Warrant Agreement (including Warrant
Certificate) between the Company and Rickel & Associates (See
Exhibit 4.4 to Amendment No. 1 to Registration Statement on Form
SB-2 filed with the Commission on May 22, 1996).
4.5* Selected Dealer Agreement among Rickel & Associates, Inc. and
certain underwriters (See Exhibit 4.5 to Amendment No. 2 to
Registration Statement on Form SB-2 filed with the Commission on
July 3, 1996).
5.1* Opinion of counsel to the Company concerning the legality of the
securities offered in the Company's Initial Public Offering (See
Exhibit 5.1 to Amendment No. 2 to Registration Statement on Form
SB-2 filed with the Commission on July 3, 1996).
8
<PAGE>
Exhibit Page
Number Description Number
- ------ ----------- ------
5.2* Opinion of Greenberg Taurig Hoffman Lipoff Rosen & Quentel, P.A.
(See Exhibit 5.1 to Registration Statement on Form S-8 filed with
the Commission on November 12, 1997).
5.3* Opinion of counsel to the Company concerning the legality of the
securities being offered (See Exhibit 5 to Registration Statement
on Form S-3 filed with the Commission on March 8, 1998).
10.1* Restated Employment Agreement dated as of July 20, 1995 between
NUWAVE Engineering, Inc. and Gerald Zarin (See Exhibit 10.1 to
Registration Statement on Form SB-2 filed with the Commission on
April 2, 1996).
10.2* Employment Agreement dated as of September 11, 1995 between NUWAVE
Engineering, Inc. and Robert I. Webb (See Exhibit 10.2 to
Registration Statement on Form SB-2 filed with the Commission on
April 2, 1996).
10.3* Consulting Agreement dated as of July 18, 1995 between NUWAVE
Engineering, Inc. and Corporate Builders, L.P. (See Exhibit 10.3
to Registration Statement on Form SB-2 filed with the Commission
on April 2, 1996).
10.4* Letter Agreement dated as of November 22, 1995 between NUWAVE
Technologies, Inc. and Rickel & Associates, Inc. (See Exhibit 10.5
to Registration Statement on Form SB-2 filed with the Commission
on April 2, 1996).
10.5* 1996 Performance Incentive Plan (See Exhibit 10.6 to Registration
Statement on Form SB-2 filed with the Commission on April 2,
1996).
10.6* Exclusive Worldwide License Agreement dated as of July 21, 1995
between NUWAVE Engineering, Inc. and Rave Engineering Corporation
(See Exhibit 10.7 to Registration Statement on Form SB-2 filed
with the Commission on April 2, 1996).
10.7* Development Agreement dated as of July 21, 1995 between NUWAVE
Engineering, Inc. and Rave Engineering Corporation (See Exhibit
10.8 to Registration Statement on Form SB-2 filed with the
Commission on April 2, 1996).
10.8* Exclusive Agency Agreement dated as of July 21, 1995 between
NUWAVE Engineering, Inc. and Prime Technology, Inc. (See Exhibit
10.9 to Registration Statement on Form SB-2 filed with the
Commission on April 2, 1996).
10.9* Assignment dated as of July 21, 1995 between NUWAVE Engineering,
Inc., Prime Technology, Inc. and Rave Engineering Corporation (See
Exhibit 10.10 to Registration Statement on Form SB-2 filed with
the Commission on April 2, 1996).
10.10* Shareholders' Agreement dated as of July 21, 1995 (See Exhibit
10.11 to Registration Statement on Form SB-2 filed with the
Commission on April 2, 1996).
9
<PAGE>
Exhibit Page
Number Description Number
- ------ ----------- ------
10.11* Finder's Agreement dated as of September 1, 1995 among NUWAVE
Technologies, Inc., Prime Technology, Inc. and Harvest
Technologies, Inc. (See Exhibit 10.12 to Registration Statement on
Form SB-2 filed with the Commission on April 2, 1996).
10.12* Finder's Agreement dated as of January 16, 1996 among NUWAVE
Engineering, Inc., Prime Technology, Inc. and Jay Vahl (See
Exhibit 10.13 to Registration Statement on Form SB-2 filed with
the Commission on April 2, 1996).
10.13* Option Agreement for the Purchase of Common Stock dated as of July
17, 1995 between NUWAVE Engineering, Inc. and Jeremiah F. O'Brien
(See Exhibit 10.14 to Registration Statement on Form SB-2 filed
with the Commission on April 2, 1996).
10.14* Option Agreement for the Purchase of Common Stock dated as of
September 11, 1995 between NUWAVE Engineering, Inc. and Robert I.
Webb (See Exhibit 10.15 to Registration Statement on Form SB-2
filed with the Commission on April 2, 1996).
10.15* Option Agreement for the Purchase of Common Stock dated as of
November 9, 1995 between NUWAVE Engineering, Inc. and Lyle E.
Gramley (See Exhibit 10.16 to Registration Statement on Form SB-2
filed with the Commission on April 2, 1996).
10.16* Option Agreement for Purchase of Common Stock dated as of March 1,
1996 between NUWAVE Technologies, Inc. and Jeremiah F. O'Brien
(See Exhibit 10.17 to Registration Statement on Form SB-2 filed
with the Commission on April 2, 1996).
10.17* Option Agreement for Purchase of Common Stock dated as of July 20,
1995 between NUWAVE Technologies, Inc. and Gerald Zarin (See
Exhibit 10.18 to Registration Statement on Form SB-2 filed with
the Commission on April 2, 1996).
10.18* Option Agreement for Purchase of Common Stock dated as of March 1,
1996 between NUWAVE Technologies, Inc. and Joseph A. Sarubbi (See
Exhibit 10.19 to Registration Statement on Form SB-2 filed with
the Commission on April 2, 1996).
10.19* Option Agreement for Purchase of Common Stock dated as of March 1,
1996 between NUWAVE Technologies, Inc. and Ed Bohn (See Exhibit
10.20 to Registration Statement on Form SB-2 filed with the
Commission on April 2, 1996).
10.20* Shareholder's Agreement dated as of July 17, 1995 between NUWAVE
Engineering, Inc. and its Common Stockholders (See Exhibit 10.21
to Registration Statement on Form SB-2 filed with the Commission
on April 2, 1996).
10.21* Form of Subscription Agreement between NUWAVE Engineering, Inc.
and its Series A Preferred Stockholders through August 1995 (See
Exhibit 10.22 to Registration Statement on Form SB-2 filed with
the Commission on April 2, 1996).
10
<PAGE>
Exhibit Page
Number Description Number
- ------ ----------- ------
10.22* Loan and Stock Purchase Agreement dated as of December 15, 1995
between NUWAVE Engineering, Inc. and Helen Burgess (See Exhibit
10.23 to Registration Statement on Form SB-2 filed with the
Commission on April 2, 1996).
10.23* Form of Indemnification Agreement between the Company and its
directors, dated as of January 31, 1996 (See Exhibit 10.24 to
Registration Statement on Form SB-2 filed with the Commission on
April 2, 1996).
10.24* Form of Note entered into between the Company and the Initial
Bridge Investor relating to the Initial Bridge Financing (See
Exhibit 10.25 to Registration Statement on Form SB-2 filed with
the Commission on April 2, 1996).
10.25* Form of 10% Promissory Note delivered by the Company in connection
with the private placement of 80 Units (the "Private Placement
Bridge"), each unit consisting of an unsecured 10% non-negotiable
promissory note in the amount of $25,000 and 5,000 shares of
Common Stock of the Company, during February and March of 1996
(See Exhibit 10.26 to Registration Statement on Form SB-2 filed
with the Commission on April 2, 1996).
10.26* Form of Securities Registration Rights Agreement entered into
between the Company and the purchasers of Common Stock in the
Private Placement (See Exhibit 10.27 to Registration Statement on
Form SB-2 filed with the Commission on April 2, 1996).
10.27* Form of Registration Rights Agreement entered into between Company
and the purchasers of its Series A Preferred Stock (See Exhibit
10.28 to Registration Statement on Form SB-2 filed with the
Commission on April 2, 1996).
10.28* Form of Lock-up letter between the Company and certain holders of
its Common Stock (See Exhibit 10.29 to Registration Statement on
Form SB-2 filed with the Commission on April 2, 1996).
10.29* Lease Letter Agreement between the Company and Simon, Sarver &
Rosenberg dated July 28, 1995 (See Exhibit 10.30 to Registration
Statement on Form SB-2 filed with the Commission on April 2,
1996).
10.30* Guaranty executed by the Company as of October 13, 1995 in
connection with Standard Industrial Net Lease between Collins Tech
RB and Rave Engineering, Inc. (See Exhibit 10.31 to Registration
Statement on Form SB-2 filed with the Commission on April 2,
1996).
10.31* Amendment to Employment Agreement dated as of September 11, 1995
between NUWAVE Engineering, Inc. and Robert I. Webb dated June 3,
1996 (See Exhibit 10.32 to Amendment No. 2 to Registration
Statement on Form SB-2 filed with the Commission on July 3, 1996).
11
<PAGE>
Exhibit Page
Number Description Number
- ------ ----------- ------
10.32* Financial Consulting Agreement between Prime Technology, Inc. and
Ernest Chu dated January 15, 1995 (See Exhibit 10.33 to Amendment
No. 2 to Registration Statement on Form SB-2 filed with the
Commission on July 3, 1996).
10.33* Letter Agreement concerning the Gaming Technology among the
Company, Rave Engineering Corp. and Prime Technology, Inc. dated
March 24, 1997 (See Exhibit 10.34 to Annual Report filed with the
Commission on April 30, 1997).
10.34* Non-Employee Director Stock Option Plan (See Exhibit 10.1 to
Current Report on Form 8-K filed with the Commission on June 6,
1997).
10.35* Form of Incentive Stock Option Agreement (See Exhibit 4.3 to
Registration Statement on Form S-8 filed with the Commission on
November 12, 1997).
10.36* Form of Non-Employee Director Stock Option Agreement (See Exhibit
4.4 to Registration Statement on Form S-8 filed with the
Commission on November 12, 1997).
10.37* 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 (See Exhibit 4.5 to
Registration Statement on Form S-8 filed with the Commission on
November 12, 1997).
10.38* Registration Rights Agreement, dated February 6, 1998, between
NuWave Technologies, Inc. and ProFutures Special Equities Fund,
L.P. (See Exhibit 4.1 to Current Report on Form 8-K filed with the
Commission on February 18, 1998).
10.39* Private Securities Subscription Agreement, dated as of February 6,
1998, between NuWave Technologies, Inc. and ProFutures Special
Equities Fund, L.P. (See Exhibit 10.1 to Current Report on Form
8-K filed with the Commission on February 18, 1998).
10.40* Warrant, dated February 6, 1998, executed by NuWave Technologies,
Inc. in favor of ProFutures Special Equities Fund, L.P., to
purchase up to 50,000 shares of Common Stock, par value $.01 per
share, of NuWave Technologies, Inc. (See Exhibit 10.2 to Current
Report on Form 8-K filed with the Commission on February 18,
1998).
10.41* Component Purchase Agreement, dated December 31, 1997, between
Thomson Consumer Electronics, Inc. and NuWave Technologies, Inc.
(See Exhibit 10.41 to Annual Report on Form 10-KSB filed with the
Commission on March 25, 1998).
10.42* Letter Agreement, dated March 3, 1998, between NuWave
Technologies, Inc. and Janssen/Meyers Associates, L.P. (See
Exhibit 10.42 to Annual Report on Form 10-KSB filed with the
Commission on March 25, 1998).
12
<PAGE>
Exhibit Page
Number Description Number
- ------ ----------- ------
10.43* Warrant, dated March 3, 1998, executed by NuWave Technologies,
Inc. in favor of Janssen/Meyers Associates, L.P., to purchase up
to 400,000 shares of Common Stock, par value $.01 per share, of
NuWave Technologies, Inc. (See Exhibit 10.43 to Annual Report on
Form 10-KSB filed with the Commission on March 25, 1998).
10.44* Letter Agreement, dated December 3, 1997, between NuWave
Technologies, Inc. and Lippert/Heilshorn & Associates, Inc. (See
Exhibit 10.44 to Annual Report on Form 10-KSB filed with the
Commission on March 25, 1998).
10.45* Option Agreement, dated December 9, 1997, between NuWave
Technologies, Inc. and Lippert/Heilshorn & Associates, Inc. (See
Exhibit 10.45 to Annual Report on Form 10-KSB filed with the
Commission on March 25, 1998).
10.46* First Amendment to Restated Employment Agreement, dated December
9, 1997, between NuWave Technologies, Inc. and Gerald Zarin (See
Exhibit 10.46 to Annual Report on Form 10-KSB filed with the
Commission on March 25, 1998).
10.47* Placement Agency Agreement, dated as of May 11, 1998, between
Janssen-Meyers Associates, L.P. and NuWave Technologies, Inc. (See
Exhibit 10.1 to Current Report on Form 8-K filed with the
Commission on June 11, 1998).
10.48* Escrow Agreement, dated May 11, 1998, between NuWave Technologies,
Inc., Janssen-Meyers Associates, L.P. and Republic National Bank
of New York (See Exhibit 10.2 to Current Report on Form 8-K filed
with the Commission on June 11, 1998).
10.49* Warrant Agreement, dated May 15, 1998, between NuWave
Technologies, Inc. and American Stock Transfer & Trust Company
(See Exhibit 10.3 to Current Report on Form 8-K filed with the
Commission on June 11, 1998).
10.50* Form of Warrant Certificate (See Exhibit 10.4 to Current Report on
Form 8-K filed with the Commission on June 11, 1998).
10.51* Placement Agent Warrant Agreement, dated May 19, 1998, between
NuWave Technologies, Inc. and Janssen-Meyers Associates, L.P. (See
Exhibit 10.5 to Current Report on Form 8-K filed with the
Commission on June 11, 1998).
10.52* Form of Placement Agent Warrant Certificate (See Exhibit 10.6 to
Current Report on Form 8-K filed with the Commission on June 11,
1998).
10.53* Form of Subscription Agreement (See Exhibit 10.7 to Current Report
on Form 8-K filed with the Commission on June 11, 1998).
10.54**Agreement, dated February 1, 1999, between NuWave Technologies,
Inc. and Terk Technologies Corp.
13
<PAGE>
Exhibit Page
Number Description Number
- ------ ----------- ------
16.1* Letter from Coopers & Lybrand L.L.P. to the Commission dated
February 16, 1998 (See Exhibit 16.1 to Current Report on Form 8-K
filed with the Commission on February 18, 1998).
23.1* Consent of Coopers & Lybrand L.L.P. (See Exhibit 23.1 to Annual
Report on Form 10-KSB filed with the Commission on March 25, 1998)
27.1** Financial Data Schedule
99.1* Press release, dated May 21, 1998 (See Exhibit 99.1 to Current
Report on Form 8-K filed with the Commission on June 11, 1998).
* The exhibits thus designated are incorporated herein by reference as
exhibits hereto. Following the description of such exhibits is a reference
to the copy of the exhibit heretofore filed with the Commission, to which
there have been no amendments or changes.
** Filed herewith. Certain portions of Exhibit 10.54 were omitted and filed
separately with the Commission pursuant to a request for confidential
treatment.
14
AGREEMENT dated as of February 1, 1999 between NUWAVE TECHNOLOGIES,
INC. ("Company"), a Delaware corporation having offices at One Passaic Avenue,
Fairfield, New Jersey 07004, and TERK TECHNOLOGIES CORP. ("Terk"), a New York
corporation having offices at 63 Mall Drive, Commack, New York 11725.
WHEREAS:
A. The Company is in the business of developing and selling or
licensing, among other things, certain technical information for enhancing video
("Intellectual Property") (i) as embodied in the Company's NVP 103-ASIC Chip
("ASIC Chip") which includes the processes referred to in U. S. Patent
Applications Nos. 09/040.200, 09/040.232 and 09/040-233, including presets and
device drivers, and which ASIC Chip substantially conforms to the Technical Data
Sheet attached as Exhibit A to this Agreement and (ii) certain technical
information concerning the ASIC Chip.
B. Terk is in the business of developing and selling electronic
products and would like to develop, with the use of the Intellectual Property,
certain Consumer Video Enhancement Products (as hereinafter defined in
subsection C of the WHEREAS clause of this Agreement).
C. For purposes of this Agreement, consumer Video Enhancement Products
shall mean stand-alone products (which stand-alone products may include user
selectable video-related features developed by the Company) designed to go
between a television receiver and a video source whose sole function would be
video enhancement but also may include functions (i) that provide switching of
multiple video and audio signal inputs; (ii) that provide video and audio signal
output distribution to multiple destinations; (iii) that provide transmission of
signals over twisted pair wire utilizing technology described in U.S. Patent No.
5,010,399 and
<PAGE>
Canadian Patent No. 2,020,841, or (iv) that may be approved in writing by the
Company. Notwithstanding the foregoing, Consumer Video Enhancement Products
shall not include any products (a) which have functions for audio or video
transmitting or receiving; or (b) which have functions for security or
surveillance.
NOW, THEREFORE, IT IS AGREED:
1. The Company hereby agrees to sell the ASIC Chip exclusively to Terk
solely for inclusion in Consumer Video Enhancement Products for sale to end-user
consumers through retail outlets ("retail trade") in the United States and
Canada ("Territory"). Terk hereby agrees to purchase all of its requirements for
ASIC Chips from the Company for use in Consumer Video Enhancement Products to be
sold in the Territory. The Company reserves the right to sell or license ASIC
Chips to others for use in connection with all products and in all parts of the
world except for Consumer Video Enhancement Products to be sold to the retail
trade in the Territory during the term of this Agreement. During the term of
this Agreement, if the Company makes any improvements or enhancements in the
Intellectual Property as embodied in the ASIC Chip which (a) do not increase the
cost of the ASIC Chip to the Company, those improvements or enhancements shall
be included in the ASIC Chip delivered to Terk at no additional charge to Terk
or (b) do increase the cost of the ASIC Chip to the Company, the Company shall
offer to include the improvements and enhancements to Terk at an additional
charge.
2. Each of the Company and Terk is an independent contractor and each
is not an agent or employee of the other, and each has no authority to bind the
other.
3. The term of this Agreement shall be for five years and shall
commence as of July 1, 1999 and shall terminate on June 30, 2004 ("original date
of termination"), provided, however, that if Terk purchased and paid for at
least [ * ] ASIC Chips in the 12 months
2
<PAGE>
immediately preceding the original date of termination, this Agreement shall
continue in force and effect, as a non-exclusive agreement, subsequent to the
original date of termination for consecutive 12-month periods as long as Terk
purchases and pays for at least [ * ] ASIC Chips in each 12-month period
subsequent to the original date of termination. Notwithstanding the foregoing
(i) if, during the first six months of this Agreement (July 1, 1999
through December 31, 1999), Terk does not purchase and pay for at least [ * ]
ASIC Chips pursuant to the terms of this Agreement, the Company may, upon at
least 30 days' notice, convert this Agreement to a non-exclusive agreement in
the Territory;
(ii) if, during the 7th through 18th months of this Agreement (January
1, 2000 through December 31, 2000), Terk does not purchase and pay for at least
[ * ] ASIC Chips pursuant to the terms of this Agreement, the Company may, upon
at least 30 days' notice, convert this Agreement to a nonexclusive agreement in
the Territory;
(iii) if, during any 12-month period during the term of this Agreement
subsequent to the 18th month of this Agreement (December 31, 2000), Terk does
not purchase and pay for at least [ * ] ASIC Chips pursuant to the terms of this
Agreement, (A) the Company may, upon at least 30 days' notice, either (a)
terminate this Agreement or (b) convert this Agreement to a non-exclusive
agreement in the Territory and (B) Terk may, upon at least 180 days' notice,
terminate this Agreement.
(iv) if the ASIC Chip is not available by July 1, 1999, (a) the term
of this Agreement shall be for five years and shall commence as of the first day
of the month after the Company notifies Terk that the ASIC Chip is available
("revised commencement date") and shall terminate on the fifth anniversary of
the revised commencement date; (b) the first six months of
3
<PAGE>
this Agreement, as set forth in clause (i) above, shall commence on the revised
commencement date and shall terminate on a date six months after the revised
commencement date; (c) the references to the 7th through 18th months of this
Agreement, as set forth in clause (ii) above, shall mean the 7th through 18th
months after the revised commencement date, and (d) the reference to any
12-month period during the term of this Agreement subsequent to the 18th month
of this Agreement, as set forth in clause (iii) above, shall mean any 12-month
period during the term of this Agreement subsequent to the 18th month after the
revised commencement date;
(v) if the ASIC Chip is not available by October 1, 1999, Terk may
terminate this Agreement by notice to that effect to the Company on or before
November 1, 1999 and, in that event, this Agreement shall terminate as of
November 1, 1999 with no liability of either party to the other;
(vi) Terk shall not be subject to any minimum purchase requirements
set forth in any of the above clauses of this paragraph 3 if, and to the extent
that, the Company is not able to fill Terk's orders for ASIC Chips until the
Company can fill Terk's orders.
If the Company gives a 30-day notice to Terk, as set forth in the
immediately preceding clauses, Terk may avoid the termination of this Agreement
or the conversion of this Agreement to a non-exclusive basis in the Territory,
as the case may be, by purchasing and paying for, before the end of the 30-day
period, a sufficient number of ASIC Chips so that the number of ASIC Chips
purchased and paid for in the period in question and the number of ASIC Chips
purchased and paid for before the end of the 30-day period total at least [ * ]
in the first six months of this Agreement, [ * ] during the 7th through 18th
months of this Agreement, or [ * ] during any 12-month period subsequent to the
18th month of this Agreement, as the case may be.
4
<PAGE>
4. The purchase price that Terk shall pay to the Company for each ASIC
Chip shall be [ * ] and all ASIC Chips shall be paid for, without setoff or
deduction, within 30 days after delivery.
5. Terk shall develop Consumer Video Enhancement Products utilizing
the Intellectual Property and, to this end, will develop and contribute all
necessary industrial design and also will provide all marketing and distribution
for the Consumer Video Enhancement Products.
6. The Company will assist Terk, if requested (a) in developing
Consumer Video Enhancement Products utilizing the Intellectual Property and, to
this end, will supply engineering and other technical support upon receipt of
payment therefor on a mutually agreed basis; (b) in sourcing of parts and in
selecting manufacturers; (c) in identifying additional sales representatives to
supplement Terk's sales force; and (d) in assisting in the development of sales,
marketing and advertising programs and strategies.
7. (a) Terk acknowledges that it may acquire (i) information and
materials from the company and (ii) knowledge about the Intellectual Property
and the business, products, processing, know-how, experimental work, customers,
clients and suppliers of the Company, and that all such information, materials
and knowledge are and will be the trade secrets and confidential and proprietary
information of the company (collectively "Confidential Information").
Confidential Information will not include, however, any information which is or
becomes part of the public domain through no fault of Terk or that the Company
regularly gives to third parties without restrictions on use or disclosure. Terk
agrees to hold all such Confidential Information that it has acquired or may
hereafter acquire in strict confidence, not to disclose it, directly or
indirectly, to others, or use it in any way, commercially or otherwise, except
with respect to the
5
<PAGE>
Consumer Video Enhancement Products contemplated by this Agreement, to disclose
it to Terk's employees and associates only on a need-to-know basis and only to
employe6s and associates who have signed a confidentiality agreement which
adequately protects the Company's interest therein, and not to allow any
unauthorized person access to it, either before or after the expiration or
termination of this Agreement.
(b) The Company acknowledges that it may acquire (i) information from
Terk, and (ii) knowledge about Terk's business, products, processes, know-how,
experimental work, customers, clients, and suppliers, and that all such
information and knowledge are and will be the trade secrets and confidential and
proprietary information of Terk (collectively "Terk Confidential Information").
Terk Confidential Information will not include, however, any information which
is or becomes part of the public domain through no fault of the Company or that
Terk regularly gives to third parties without restriction on use or disclosure.
The Company agrees to hold all such Terk Confidential Information that it has
acquired or may hereafter acquire in strict confidence, not to disclose it,
directly or indirectly, to others, or use it in any way, commercially or
otherwise, to disclose it to the Company's employees and associates only on a
need-to-know basis and only to employees and associates who have signed a
confidentiality agreement which adequately protects Terk's interest therein, and
not to allow any unauthorized person access to it, either before or after the
expiration or termination of this Agreement. Notwithstanding the foregoing, the
Company may use Terk Confidential Information to assist Terk or in connection
with Consumer Video Enhancement Products.
8. Terk will use and prominently display trademarks designated by the
Company on all of the Consumer Video Enhancement Products and related packaging
and written materials utilizing the Intellectual Property. Terk will not use,
authorize or permit the use of, any
6
<PAGE>
of the Company's trademarks or trade names or any trademark or trade name used
by the Company which is not owned by third parties or by Terk except to
designate the Consumer Video Enhancement Products. Terk shall not contest the
right of the Company to the exclusive use of any trademark or trade name used or
claimed by the Company except as to those trademarks or trade names owned by
third parties or Terk. Upon termination of this Agreement, for any reason
whatsoever, Terk immediately shall cease, directly and indirectly, from using
any trademark or trade name of the Company or used by the Company except as to
those trademarks or trade names owned by third parties or Terk.
9. The Company represents to Terk that, to the best of its knowledge
(a) it is the owner of, and has the right to grant, rights to the Intellectual
Property and to the trade names and trademarks designated by the Company for use
on Consumer Video Enhancement Products and (b) the Intellectual Property and the
trade names and trademarks designated by the company for use on Consumer Video
Enhancement Products are not the subject of any lawsuit or claim of infringement
by any third party. The Company hereby indemnifies and holds Terk harmless from
and against any and all claims, demands, actions, proceedings, costs and
expenses which shall arise by virtue of any claim that the Intellectual Property
and the trade names and trademarks designated by the Company for use on Consumer
Video Enhancement Products infringe on any valid patent or patent application or
valid trademark or trade name copyright, as the case may be. Terk shall promptly
notify the Company of any such claim, demand, action, proceeding, cost or
expense. The Company shall promptly make payment to Terk for any costs or
expenses incurred by Terk at any time or from time to tine for which
indemnification is due to Terk pursuant to this section. The Company will (i)
furnish Terk with a certificate of insurance certifying that the
7
<PAGE>
Company has product liability insurance and (ii) require the insurance company
to name Terk as an entity to be notified in the event of the cancellation of the
product liability insurance.
10. The Company shall have the sole right, in the first instance, to
take appropriate measures, including instituting or defending litigation, to
prevent or stop infringement or misappropriation by third parties in making,
using or selling products using the Intellectual Property ("third party
infringement"). If, after six months from the date of notice from Terk that
there is third party infringement, the Company fails or refuses either (a) to
take or initiate appropriate measures against the third party infringement or
(b) to offer to permit Terk to take or initiate appropriate measures against
third party infringement, Terk nay terminate this Agreement upon 60 days'
notice.
11. The Company shall notify Terk if the patent applications referred
to in WHEREAS clause A(i) of this Agreement are accepted or rejected by the
United States Patent Office.
12. If this Agreement is continued in force and effect as a
non-exclusive agreement after the original date of termination, as contemplated
by paragraph 3 of this Agreement, the parties, upon request by Terk, shall
attempt to arrive at new minimum amounts of purchases of ASIC Chips by Terk in
order to restore the Agreement as an exclusive Agreement in the Territory.
13. During the period that this is an exclusive Agreement, the Company
will not sell or license any Intellectual Property to third parties for use in
any Consumer Video Enhancement Products which permits the resale to the retail
trade of the Consumer Video Enhancement Products in the Territory.
8
<PAGE>
14. Terk shall have full title to all patent applications, Letters
Patent, know-how, designs, and trade secrets ("Terk Technology") for any
inventions or products developed solely by Terk. The company acknowledges and
agrees that Terk is and shall be the sole and exclusive owner of the Terk
Technology. Terk also shall own all of its own trademarks and trade names and
may display those trademarks and trade names on all of the Consumer Video
Enhancement Products and related packaging and written material. This Agreement
shall not be considered a license for the Company to use the Terk Technology.
15. In no event shall the Company or Terk be liable for any special,
incidental, indirect or consequential damages of any kind in connection with
this Agreement, even if the Company or Terk has been informed in advance of the
possibility of such damages.
16. This Agreement shall be governed by and construed in accordance
with the laws of the State of New Jersey.
17. All notices, reports, requests, acceptances and other
communications required or permitted under this Agreement shall be in writing,
sent to the receiving party's address as set forth on the first page of this
Agreement (or to such other address that the receiving party may have provided
for purpose of notice as provided in this paragraph), and will be deemed given
when (i) delivered personally, (ii) sent by confirmed facsimile machine, (iii)
sent by commercial overnight courier with written verification of receipt, or
(iv) sent by registered or certified mail, return receipt requested, postage
prepaid.
- -------------------------
* These portions of the Agreement were omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
9
<PAGE>
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as
of the date first above written.
TERK TECHNOLOGIES CORP. NUWAVE TECHNOLOGIES, INC.
By: /s/ Neil Terk By: /s/ Jeremiah F. O'Brien
-------------------------- --------------------------
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