EXHIBIT 10.45
OPTION AGREEMENT
Agreement dated as of December 9, 1997 between NUWAVE Technologies,
Inc., a Delaware corporation (the "Company"), and Xxxxxxx/Xxxxxxxxx &
Associates, Inc. ("LHA") (the "Option Agreement").
Preliminary Statement
This Option Agreement sets forth the terms pursuant to which LHA shall
have the right to purchase from the Company (the "Option") a total of 30,000
shares of common stock of the Company, $.01 par value (the "Common Stock"). This
Option Agreement is entered into pursuant to the NUWAVE Technologies, Inc. 1996
Stock Incentive Plan For Employees and Consultants (the "Plan"), a copy of which
has previously been delivered to LHA. The Option is a Non-qualified Option as
defined in the Plan.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the parties to this Option Agreement agree as
follows:
1. Definitions. As used in this Option Agreement, the following terms
shall have the following respective meanings:
(a) Act shall mean the Securities Act of 1933, as amended.
(b) Exercise Period shall mean the period between June 9, 1998 and
December 9, 2000.
(c) Expiration Date, with respect to any Optioned Shares, shall
mean 5 p.m. Eastern Standard Time on December 9, 2000.
(d) Optioned Stock or Optioned Shares shall mean the shares of
Common Stock of the Company which LHA may purchase pursuant to the terms of this
Option Agreement.
(e) Purchase Price shall mean $5.61 for each share of Common
Stock.
(f) SEC shall mean the Securities and Exchange Commission.
2. Grant of Option to LHA. Simultaneously with the execution and
delivery of this Option Agreement, LHA is granted the Option to purchase the
Optioned Stock for the Purchase Price, upon the terms and conditions set forth
in this Option Agreement.
3. Exercise of Option. The Option provided for in this Option Agreement
may be exercised in accordance with its terms, but only by LHA and only with
respect to any Optioned Shares. It may be exercised in whole or in part from
time to time during the Exercise Period. No fractional shares of Common Stock
will be issued. LHA may exercise this purchase right by giving written notice of
such exercise at the general corporate offices of the Company located at Xxx
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 (or at such other agency or office
of the Company as it may designate by notice in writing to LHA) and by payment
to the Company of the Purchase Price in cash or by check for each Optioned Share
being purchased. In the event of any exercise of the Options provided for in
this Option 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 LHA within a reasonable time, not exceeding ten days after the
Option shall have been so exercised. The entity 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 exercised and payment of the Purchase Price made,
irrespective of the date of delivery of such certificate, except that, if the
date of such exercise and payment is a date when the stock transfer books of the
Company are closed, such entity 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 Optioned Shares.
(a) If, at any time after the date of this Option 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 Option 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 LHA with respect to
registration of the sale of the Optioned Stock. If at the time LHA elects to
exercise this Option, the issuance of the underlying shares of Optioned Stock
has not been registered under the Act, LHA agrees that such Optioned Stock may
only be issued if such issuance is 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. If the transaction is not exempt from
the provisions of the Act, in connection with any such sale, LHA also agrees
that the issuance of all or any portion of the
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Optioned Stock or its transfer, as the case may be, is subject to the receipt by
the Company at the time of its issuance or transfer of an opinion of its counsel
that the issuance of such shares is exempt from registration pursuant to an
exemption provided for in the Act, and that the Company will not be liable for
any damages incurred by LHA in the event such an opinion cannot reasonably be
obtained.
6. This Option Agreement shall not entitle LHA to any voting rights or
other rights as a stockholder of the Company.
7. Legends. Unless issued pursuant to an effective registration
statement filed pursuant to the provisions of the Act, all stock certificates
representing Optioned Stock issued to LHA 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. 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
XXXXXXX/XXXXXXXXX & ASSOCIATES, INC. 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."
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 LHA: Xxxxxxx/Heilshorn & Associates
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
If to the Company: NUWAVE Technologies, Inc.
Xxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: President
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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 Option 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 Option 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 Option 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 Option 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 Option Agreement, or any provisions hereof, may
not be amended, changed or modified without the prior written consent of each of
the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Option
Agreement to be executed and delivered as of the date first above written.
NUWAVE TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxxx
----------------------------
Name: Xxxxxx Xxxxx
Title: President
ACCEPTED AND AGREED TO:
XXXXXXX/XXXXXXXXX & ASSOCIATES, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
