EXHIBIT 4.5
OPTION AGREEMENT
FOR THE PURCHASE OF COMMON STOCK
This Agreement is dated as of _______, 1996 between NUWAVE
TECHNOLOGIES, INC., a Delaware corporation (the "Company") and
______________ ("Optionee").
Preliminary Statement
This Agreement sets forth the terms pursuant to which
Optionee shall have the right to purchase from the Company a
total of ________ shares of common stock of the Company, $.01 par
value (the "Common Stock").
NOW, THEREFORE, for good and valuable consideration, the receipt
of which is hereby acknowledged, the parties to this Agreement
agree as follows:
1. Definitions. As used in this Agreement, the following
terms shall have the following respective meanings:
(a) Expiration Date, with respect to any Optioned
Shares, shall mean 5 p.m. Eastern Standard Time on the fifth
anniversary of the date upon which such shares became Vested
Shares. With respect to Unvested Shares, the Expiration Date
shall also mean the Effective Time of Termination of Employment.
(b) Optioned Stock shall mean the ________ shares of
Common Stock of the Company which Optionee may purchase pursuant
to the terms of this Agreement (the "Shares").
(c) Purchase Price shall mean $_______ for each share
of Common Stock (the "Purchase Price").
(d) Unvested Shares shall mean any shares of Optioned
Stock which are not Vested Shares.
(e) Vested Shares shall mean (i) ________ of the
Shares as of the date of this Agreement, (ii) _______ Shares if
the Optionee is employed by the Company on ______, 1997, and
(iii) _________ if the Optionee is employed by the Company on
__________, 1998.
(f) Effective Time of Termination of Employment. For
purposes of this Agreement, Termination of Employment shall be
effective upon the giving notice of such Termination to the
Employee as provided for in Section 9 of this Agreement.
2. Grant of Option to Optionee. Simultaneously with the
execution and delivery of this Agreement, Optionee is granted the
option (the "Option") to purchase the Vested Shares for the
purchase price of $2.00 per share, upon the terms and conditions
set forth in this Agreement.
3. Exercise of Option. The Option provided for in this
Agreement may be exercised only by Optionee or, in the event of
Optionee's death, any duly qualified representative of his
estate. It may be exercised in whole at any time or in part from
time to time prior to the Expiration Date. No fractional shares
of Common Stock will be issued. Optionee may exercise this
purchase right by giving written notice of such exercise at the
general corporate offices of the Company, (or at such other
agency or office of the Company as it may designate by notice in
writing to Optionee) and by payment to the Company of the
Purchase Price in cash or by check for each share of Optioned
Stock being purchased. In the event of any exercise of any Option
provided for in this Agreement, certificates for the shares of
Common Stock so purchased, registered in the name of the person
entitled to receive the same, shall be delivered to Optionee
within a reasonable time, not exceeding ten days after the Option
shall have been so exercised. The person in whose name any
certificate for shares of Common Stock is issued upon exercise of
all or part of the Option shall for all purposes be deemed to
have become the holder of record of such shares on the date on
which the Option was surrendered and payment of the Purchase
Price made, irrespective of the date of delivery of such
certificate, except that, if the date of such surrender and
payment is a date when the stock transfer books of the Company
are closed, such person shall be deemed to have become the holder
of record of such shares at the close of business on the next
succeeding date on which the stock transfer books are open.
4. Holdback Agreement. In the event the Company sells any
of its stock to the public pursuant to an underwritten offering
registered pursuant to the Securities Act of 1933, as amended
(the "Act"), Optionee agrees that he will not sell any of the
Shares then owned by him or subject to this Agreement for a 12
month period following the date such registration statement
becomes effective under the Act (the "Lock-Up Period"), without
the consent of the underwriter, unless a shorter Lock-Up Period
is agreed to by the underwriter.
5. Adjustment of Number of Option Shares.
(a) If, at any time after the date of this Agreement,
the number of shares of Common Stock outstanding is increased by
a stock dividend payable in shares of Common Stock or by a
subdivision or split-up of shares of Common Stock, then,
following the record date fixed for the determination of holders
of Common Stock entitled to receive such stock dividend,
subdivision or split-up, the Purchase Price shall be
appropriately decreased and the number of shares of Optioned
Stock thereafter issuable on exercise of the Option shall be
increased in proportion to such increase in outstanding shares.
(b) If, at any time after the date of this Agreement,
the number of shares of Common Stock outstanding is decreased by
a combination of the outstanding shares of Common Stock, then,
following the record date for such combination, the Purchase
Price shall be appropriately increased and the number of shares
of Common Stock issuable on exercise of the Option shall be
decreased in proportion to such decrease in outstanding shares.
6. Representations, Warranties and Agreements of Optionee
with respect to registration of the sale of the Optioned Stock
and Continued Applicability of Agreement. Optionee hereby
represents and warrants to the Company that the Optioned Stock
will be acquired for Optionee's own account, for investment
purposes and not with a view to the distribution thereof, nor
with any intention of making such distribution at the time the
Option is exercised. Optionee is a sophisticated individual with
significant experience in commercial affairs and has had full
access to all information requested by him with respect to the
Company's current and proposed operations. Optionee understands
that the sale to Optionee of Optioned Stock has not been
registered under the Act, by reason of its proposed issuance in a
transaction exempt from the registration requirements of the Act
and that the Optioned Stock must be held indefinitely unless a
subsequent disposition thereof is registered under the Act or the
transaction is exempt from registration. In connection with the
foregoing, Optionee also agrees that the issuance of all or any
portion of the Optioned Stock is subject to the receipt by the
Company at the time of its issuance of an opinion of its counsel
reasonably acceptable to the Company that the issuance of such
shares is exempt from registration pursuant to an exemption
provided for in the Act, and that in the absence of such an
opinion, the Option provided for in this Agreement shall be
considered withdrawn and terminated. Optionee agrees that the
Company will not be liable for any damages incurred by Optionee
in the event such an opinion cannot reasonably be obtained. The
Optionee is familiar with the provisions of Section 501 of
Regulation D promulgated by the Securities and Exchange
Commission pursuant to the Act and represents and agrees with the
Company that Optionee is being employed as an executive officer
of the Company within the meaning of subsection (f) of Section
501 simultaneously with the execution of this Agreement.
7. No Right to Employment. This Agreement shall not
entitle Optionee to any right or claim to be employed or retained
by the Company or limit the right of the Company to terminate any
agreement it may have with Optionee or to change the terms of
such employment.
8. Legends. All stock certificates representing Optioned
Stock issued to Optionee shall have affixed thereto a legend
substantially in the following form:
"THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. THESE SECURITIES MAY
NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN EXEMPTION THEREFROM
UNDER SAID ACT."
9. Notices. All notices or other communications which are
required or permitted hereunder shall be in writing and
sufficient if delivered personally or sent by air courier or
first class or certified mail addressed as follows:
If to Optionee:
If to the Company: NUWave Technologies, Inc.
Xxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
With a copy to: Xxxxxxxxx Xxxxxxx
000 X. Xxxxxxx Xxxxx, Xxxxx 000-Xxxx
Xxxx Xxxx Xxxxx, XX, 00000
Attn: Xxxxxx X. Xxxxx
or to such other address as the party to whom notice is to be
given may have furnished to the other party in writing in
accordance herewith. All notices and other communications given
to any party hereto in accordance with the provisions of this
Agreement shall be deemed to have been given on the date of
delivery if personally delivered; on the business day after the
date when sent if sent by air courier; and on the third business
day after the date when sent if sent by mail, in each case
addressed to such party as provided in this Section or in
accordance with the latest unrevoked direction from such party.
10. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New
Jersey applicable to contracts made and to be performed wholly
therein.
11. Entire Agreement. This Agreement contains the entire
agreement between the parties hereto with respect to the
transactions contemplated herein and supersedes all previously
written or oral negotiations, commitments, representations and
agreements.
12. Counterparts. This Agreement may be executed in on or
more counterparts, each of which shall be deemed an original, but
all of which shall constitute one and the same instrument.
13. Amendments. This Agreement, or any provisions hereof,
may not be amended, changed or modified without the prior written
consent of each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered as of the date first above
written.
NUWAVE TECHNOLOGIES, INC.
By: ______________________________________
Xxxxxx Xxxxx, President
ACCEPTED AND AGREED TO:
________________________________
(Name of Employee or Consultant)
Address:
