EXHIBIT 10.46
SELLING STOCKHOLDERS AGREEMENT
AGREEMENT, dated as of July ____, 2002, by and among NUWAVE
TECHNOLOGIES, INC., a Delaware corporation (the "Corporation"), and the
stockholders identified on Schedule I attached hereto (each individually, a
"Holder" and, collectively, the "Holders").
WHEREAS, the Corporation plans to file a registration statement on
Form SB-2 (the "Registration Statement") with the Securities and Exchange
Commission (the "SEC") under the Securities Act of 1933, as amended (the
"Securities Act"), registering therein shares of its Common Stock,$.01 par value
(the "Common Stock"). on behalf of persons who have registration rights;
WHEREAS, each Holder beneficially owns an aggregate number of shares of
the Corporation's Common Stock listed below his name on the signature page
hereto;
WHEREAS, the Holders, having previously been granted registration
rights, now wish to include in the Registration Statement the number of shares
(collectively, the "Shares") of Common Stock in the amount set forth opposite
their respective names on Schedule I attached hereto; and
WHEREAS, subject to the terms and conditions herein, the Corporation
has agreed to file the Registration Statement and include the Shares therein
and, as a condition to registering the Shares in the Registration Statement, the
Holders have agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the promises, the mutual covenants
herein set forth and other good and valuable consideration, the parties hereto
agree as follows:
ARTICLE I.
OBLIGATIONS OF THE CORPORATION
1.1 Filing of Registration Statement. The Corporation shall, as
promptly as practicable after the date hereof, prepare and file the Registration
Statement covering the Shares and shall use its best efforts to cause the
Registration Statement to become effective under the Securities Act. The
Corporation's obligation under this Agreement shall be limited to preparing and
filing, in accordance with the preceding sentence, one Registration Statement to
be effective under the Securities Act. The Corporation may include in the
Registration Statement shares of its Common Stock owned by persons in addition
to the Holders.
1.2 Expenses. The Corporation shall bear the entire cost and expense
of the Registration Statement and related expenses, including legal fees,
accountants' fees, printing fees and SEC and "blue sky" filing fees; provided
that each Holder shall bear the cost of his counsel, if any, and the brokerage
fees or commissions incurred in connection with the sale of his portion of the
Shares.
1.3 Prospectus. The Corporation shall furnish the Holders such number
of copies of the prospectus (including each preliminary, amended or supplemental
prospectus, collectively, the "Prospectus") to the Registration Statement as the
Holders may reasonably request in order to facilitate sales of their respective
portion of the Shares.
ARTICLE II.
AGREEMENTS OF THE HOLDERS
Each Holder severally represents and agrees as follows:
2.1 Completeness of Information. The information regarding the Holder
in the excerpt of the Registration Statement, representing the sections of such
Registration Statement entitled "Selling Stockholders" and "Plan of
Distribution," and attached hereto as Exhibit A, is complete and correct. The
Holder agrees to give the Corporation prompt written notice in the event such
information ceases to be complete and correct.
2.2 Furnishing of Information. The Holder shall furnish to the
Corporation, in writing, such appropriate information and covenants regarding
himself, his ownership of the Shares, any other securities of the Corporation,
the proposed methods of sale or other disposition of his portion of the Shares
and any underwriter or any broker-dealer which may be used in connection
therewith, as the Corporation, the SEC or any state or other regulatory
authority may request.
2.3 Necessary Actions. The Holder shall execute, deliver and/or file
with or supply to the Corporation, the SEC and/or any state or other regulatory
authority such information, documents, representations, undertakings and/or
agreements:
(i) necessary to carry out the provisions of this
Agreement;
(ii) necessary to effect the registration or
qualification of the Shares under the Securities
Act and/or any of the laws and regulations of any
jurisdiction; or
(iii) as the Corporation may reasonably require to
ensure the transfer or disposition by him of his
portion of the Shares is not in violation of the
Securities Act or any applicable state securities
laws.
2.4 Restrictions. Until such time as the Holder shall have completed
the distribution of his portion of the Shares covered by the Registration
Statement or until the remaining portion of such Shares shall have been
de-registered, the Holder agrees:
(i) to abide by the anti-manipulative rules under the
Securities Exchange Act of 1934, as amended (the
"Exchange Act"), including provisions of
Regulation M ("Regulation M"), as presently in
effect or as hereinafter amended, promulgated
under the Exchange Act; and
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(ii) to effect no transaction for the purpose of
stabilizing the price of share of Common Stock;
"stabilizing" is defined in Regulation M.
2.5 Revisions. Upon written notification from the Corporation that the
Prospectus to the Registration Statement is in need of revision, or upon advice
of counsel that no offers or sales should then be made under the Registration
Statement, each Holder agrees:
(i) to cease to offer or sell any Shares which must be
accompanied by such Prospectus;
(ii) to return all such Prospectuses to the
Corporation, if requested; and
(iii) not to offer or sell any Shares until provided
with a current Prospectus and notification from
the Corporation to permit the Holders to resume
offers and sales.
Notwithstanding the foregoing, the Corporation shall use its best efforts to
amend or supplement or to reinstate the Registration Statement, as appropriate,
as promptly as practicable, and to provide the Holder with amended or
supplemented Prospectuses so offers and sales of the Shares may be resumed.
2.6 Reports. At the request of the Corporation, the Holder shall
furnish to the Corporation, not later than five (5) days after the receipt of
the request, a written report of the number of Shares sold under the
Registration Statement, showing the dates of sale, amount of Shares sold and the
method of distribution.
2.7 Information to Broker. The Holder shall supply a reasonable number
of Prospectuses to any broker through whom the Holder makes sales and he shall
inform such broker that such Shares may be part of a distribution and, if so,
that such broker may be subject to the provisions of Regulation M until such
time as such broker has completed the sale of all such Shares.
2.8 Entire Obligation. The Holder acknowledges that the inclusion of
his Shares in the Registration Statement constitutes the Corporation's entire
obligation to him to register such Shares, whether pursuant to a Stock Purchase
Agreement, Warrant Agreement, or otherwise, between him and the Corporation.
2.9 Violations of Law. The Holder shall cancel any orders to sell
and/or to reverse any sales of Shares as to which, in the reasonable belief of
the Corporation and its counsel, such orders and/or sales were effected in
violation of the Securities Act, the Exchange Act or any applicable state
securities laws.
ARTICLE III.
BLUE SKY
3.1 Qualification. The Corporation shall use its best efforts to
register or qualify the Shares covered by the Registration Statement under the
securities or "blue sky" laws of such jurisdictions as the Holder may reasonably
request.
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3.2 Reservation. Notwithstanding the foregoing, the Corporation
reserves the right, in its sole discretion, not to register or qualify such
Shares in any jurisdiction where:
(i) any of such Shares do not meet with the
requirements of such jurisdiction;
(ii) the Corporation would be required to qualify as a
foreign corporation to do business in such
jurisdiction and is not otherwise required to be
qualified therein;
(iii) the Corporation would be required to file any
general consent to service of process; or
(iv) the fees of registration or qualification are
deemed by the Corporation to be disproportionate
to the number of Shares covered thereby.
ARTICLE IV.
INDEMNIFICATION
4.1 Indemnification by Corporation. To the extent permitted by law,
the Corporation will indemnify and hold harmless each Holder, against any
losses, claims, damages, liabilities (including reasonable attorneys' fees) or
expenses (joint or several) incurred (collectively, "Claims") to which he may
become subject under the Securities Act, the Exchange Act or otherwise, insofar
as such Claims (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon any of the following statements,
omissions or violations in the Registration Statement, or any post-effective
amendment thereof, or any prospectus included therein:
(i) any untrue statement or alleged untrue statement
of a material fact contained in the Registration
Statement or any post-effective amendment thereof
or the omission or alleged omission to state
therein a material fact required to be stated
therein or necessary to make the statements
therein not misleading;
(ii) any untrue statement or alleged untrue statement
of a material fact contained in the final
prospectus (as amended or supplemented, if the
Corporation files any amendment thereof or
supplement thereto with the SEC or the omission or
alleged omission to state therein any material
fact necessary to make the statements made
therein, in light of the circumstances under which
the statements therein were made, not misleading;
or
(iii) any violation or alleged violation by the
Corporation of the Securities Act, the Exchange
Act, any state securities law or any rule or
regulation under the Securities Act, the Exchange
Act or any state securities law (the matters in
the foregoing clauses (i) through (iii) being,
collectively, "Violations").
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4.2 Limitation on Indemnification. Notwithstanding anything to the
contrary contained herein, the indemnification agreement contained in Section
4.1 hereof shall not:
(i) apply to a Claim arising out of or based upon a
Violation which occurs in reliance upon and in
conformity with information furnished in writing
to the Corporation by or on behalf of the Holder
expressly for use in connection with the
preparation of the Registration Statement or any
such amendment thereof or supplement thereto;
(ii) be available to the extent such Claim is based on
a failure of the Holder to deliver or cause to be
delivered the prospectus made available by the
Corporation; or
(iii) apply to amounts paid in settlement of any Claim
if such settlement is effected without the prior
written consent of the Corporation, which consent
shall not be unreasonably withheld.
4.3 Indemnification by Holders. Each Holder will indemnify the
Corporation and its officers, directors, attorneys and agents against any Claims
arising out of or based upon a Violation which occurs in reliance upon and in
conformity with information furnished in writing to the Corporation, by or on
behalf of such Holder, expressly for use in connection with the preparation of
the Registration Statement, subject to such limitations and conditions as are
applicable to the Indemnification provided by the Corporation pursuant to
Section 4.1.
4.4 Actions to be Taken.
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(a) Promptly after receipt by the Holder or by the Corporation (an
"Indemnified Person") under this Article IV of notice of the commencement of any
action (including any governmental action), such Indemnified Person shall, if a
Claim in respect thereof is to be made against any indemnifying party under this
Article IV (the "Indemnifying Party"), deliver to the Indemnifying Party a
written notice of the commencement thereof.
(b) The Indemnifying Party shall have the right to participate in, and,
to the extent the Indemnifying Party so desires, jointly with any other
Indemnifying Party similarly noticed, to assume control of the defense thereof
with counsel mutually satisfactory to the Indemnified Person; provided, however,
that an Indemnified Person shall have the right to retain its own counsel, with
the reasonable fees and expenses to be paid by the Indemnifying Party, if, in
the reasonable opinion of counsel retained by the Indemnifying Party, the
representation by such counsel of both the Indemnified Person and the
Indemnifying Party would be inappropriate due to actual or potential differing
interests between such Indemnified Person and the Indemnifying Party in such
proceeding.
(c) In such event, the Indemnifying Party shall pay for only one
separate legal counsel for the Indemnified Party; such legal counsel to be
selected by the Indemnified Person, (i) subject to the consent of the
Indemnifying Party (which consent shall not be unreasonably withheld or
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delayed), and (ii) if the Indemnified Persons are Holders, by the Holders
holding a majority in interests of the Shares included in the Registration
Statement.
(d) Except as provided in the immediately preceding clauses, in case
any such action is brought against any Indemnified Person, and such Indemnified
Person notifies the Indemnifying Party of the commencement thereof, after notice
from the Indemnifying Party to such Indemnified Person of the Indemnifying
Party's election so to assume (alone or with other Indemnifying Parties) the
defense thereof, the Indemnifying Party will not be liable to such Indemnified
Person under this Article IV for any legal or other reasonable out-of-pocket
expenses subsequently incurred by such Indemnified Person in connection with the
defense thereof other than reasonable costs of investigation, unless the
Indemnifying Party shall not defend such action to its final conclusion.
(e) The Indemnified Person shall have the right to employ separate
counsel in any such action and to participate in the defense thereof, but,
except as provided above, the fees and reasonable out-of-pocket expenses
subsequently incurred by such Indemnified Person in connection with the defense
thereof other than reasonable costs of investigation, unless the Indemnifying
Party shall not pursue the action of its final conclusion.
(f) The failure to deliver written notice to the Indemnifying Party
within a reasonable time of the commencement of any such action shall not
relieve such Indemnifying Party of any liability to the Indemnified Person under
this Article IV, except to the extent that the Indemnifying Party is prejudiced
in its ability to defend such action.
4.5 Contribution.
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(a) To the extent any indemnification by an Indemnifying Party is
prohibited or limited by law, the Indemnifying Party agrees to make the maximum
contribution with respect to any amounts for which it would otherwise be liable
under this Article IV to the fullest extent permitted by law.
(b) Notwithstanding the foregoing:
(i) no contribution shall be made under circumstances
where the maker would not have been liable for
indemnification under the fault standards set
forth in this Article IV;
(ii) no seller of Shares guilty of fraudulent
misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to
contribution from any seller of Shares who was not
guilty of such fraudulent misrepresentation; and
(iii) contribution by any seller of Shares shall be
limited in amount to the net amount of proceeds
received by such seller from the sale of such
Shares.
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ARTICLE V.
MISCELLANEOUS
5.1 Survival. All agreements and representations and warranties made
herein shall survive the delivery of this Agreement and the consummation of the
transactions contemplated herein.
5.2 Binding. This Agreement sets forth the entire agreement among the
Corporation and the Holders relating to the registration of the Shares, and
supersedes any prior agreements among the Corporation and the Holders. Should
there be any conflict between the terms and provision of this Agreement and the
terms and provisions of any other Agreement between the parties to this
Agreement with respect to the matters herein, the terms and provisions of this
Agreement shall govern. This Agreement shall be binding upon and shall inure to
the benefit of the Corporation and the Holders and their respective heirs,
representatives, successors and assigns. This Agreement cannot be modified,
changed, discharged, or terminated except by an instrument in writing signed by
the party sought to be charged.
5.3 Governing Law. This Agreement shall be governed by, and shall be
construed and interpreted in accordance with, the laws of the State of Delaware,
without giving effect to conflicts of law.
5.4 Captions. The titles of the Articles and Sections of this
Agreement are for the convenience of reference only and are not to be considered
in construing this Agreement. Whenever used herein, the singular member includes
the plural, the plural includes the singular, and the use of any gender shall
include all genders.
5.5 Notices. Any notice, request, instruction or other document to be
given hereunder shall be in writing and shall be delivered personally, or sent
by registered or certified mail, as follows:
If to the Corporation:
NUWAVE Technologies, Inc.
Xxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx Xxxxx
President and Chief Executive Officer
If to a Holder, to the address on the signature page or such other
address as any party hereto may hereinafter designate in writing to the other
parties hereto in accordance with the terms hereof.
5.6 Severability. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision shall be excluded from
this Agreement, and the balance of the Agreement shall be interpreted as if such
provision were excluded and shall be enforceable in accordance with its terms.
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5.7 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
NUWAVE TECHNOLOGIES, INC.
By:_____________________________
Name: Xxxxxx Xxxxx
Title: President and Chief Executive
Officer
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Signature of Holder:
___________________________ Name:
Address of Holder
--------------------------- ---------------------------
Signature of Joint Holder, if any:
___________________________ Name:
Address of Joint Holder
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Direct Indirect
Shares of Common Stock(1): ________________ ________________
Shares underlying options or warrants(2): ________________ ________________
(1) Include all shares of Common Stock directly owned by you. In addition, list
all shares owned by any member of your immediate family or any affiliate of
yours, including the nature of the indirect ownership.
(2) Include all options and warrants, including the exercise price and the
termination date thereof, directly owned by you. In addition, list all
options and warrants owned by any member of your immediate family or any
affiliate of yours, including the nature of the indirect ownership.
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