EXHIBIT 4.4
OPTION AGREEMENT FOR THE PURCHASE
OF RESTRICTED STOCK BY NON-EMPLOYEE DIRECTOR
This Option Agreement (this "Agreement") dated as of
___________, 1997, between NUWAVE Technologies, Inc., a Delaware
corporation (the "Company") and the Non-Employee Director
executing this Agreement (the "Director").
Preliminary Statement
This Agreement sets forth the terms pursuant to which the
Director 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"), and the terms pursuant to which the
Company has the right to repurchase such Common Stock, or a
portion of it, under certain circumstances.
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) Effective Time of Termination of Service. For
purposes of this Agreement, Termination of Service shall be
effective upon (1) the receipt by the Company of the Director's
written notice of resignation or at a later time set forth in the
notice of resignation; (2) removal of Director based upon a vote
of the holders of a majority of the shares entitled to vote at an
election of Directors cast at a meeting of the stockholders
called for that purpose; (3) death; or (4) disability requiring
termination of membership on the Board of Directors.
(b) 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 the right to purchase such
Optioned Shares was granted. With respect to Unvested Shares,
the Expiration Date shall also mean (i) the Effective Time of
Termination of Service or (ii) the date of death of the Director.
With respect to Vested Shares, the Expiration Date shall also
mean (i) 5 p.m. Eastern Standard Time on the 60th day following
the Effective Time of Termination of Service or (ii) 5 p.m.
Eastern Standard Time on the last day of the twelfth month
following the death or disability of the Director.
(c) Optioned Stock or Option Shares shall mean the
Shares of Common Stock of the Company which the Director may
purchase pursuant to the terms of this Agreement.
(d) Purchase Price shall mean $______ for each share
of Common Stock, which price is the price of the Company's Common
Stock at the close of trading on _______, 1997.
(e) Termination of Service shall mean the voluntary
termination of membership on the Board of Directors by the
Director for any reason whatsoever or termination of service due
to removal by stockholder vote, death or disability.
(f) Unvested Shares shall mean any shares of Optioned
Stock which are not Vested Shares.
(g) Vested Shares shall mean (i) ________ shares on
______, 1997; (ii) _______ shares on _______, 1998; (iii) _____
shares on _____, 1999; (iv) _____ shares on _______, 2000 and (v)
______ shares on _______, 2001.
2. Grant of Option to Director. Simultaneously with the
execution and delivery of this Agreement, the Director is granted
the option (the "Option") to purchase the Optioned Stock for a
Purchase Price of $______ 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 the Director or, in the event
of the Director's death, any duly qualified representative of his
estate, and only with respect to any Vested Shares. 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. The Director 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 the Director)
and by payment to the Company of the Purchase Price in cash or by
check for each Vested Share being purchased. In the event of any
exercise of the Options 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 the Director within a reasonable
time, not exceeding ten days after the Option shall have been so
exercised. The person 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 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. 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 this Option shall be
decreased in proportion to such decrease in outstanding shares.
5. Representations, Warranties and Agreements of the
Director with Respect to Registration of the Sale of the Optioned
Stock and Continued Applicability of Agreement. The Director
hereby represents and warrants to the Company that the Optioned
Stock will be acquired for the Director'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. The Director understands that
the sale by the Director of Optioned Stock has not been
registered under the Securities Act of 1933, as amended (the
"Securities Act"), by reason of its proposed issuance in a
transaction exempt from the registration requirements of the
Securities Act and that the Optioned Stock must be held
indefinitely unless a subsequent disposition thereof is
registered under the Securities Act or the transaction is exempt
from registration. In connection with the foregoing, the
Director 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 that the
issuance of such shares is exempt from registration pursuant to
an exemption provided for in the Securities Act, and that the
Company will not be liable for any damages incurred by Director
in the event such an opinion cannot reasonably be obtained.
6. Legends. Unless issued pursuant to an effective
Registration Statement filed pursuant to the provisions of the
Securities Act of 1933, all stock certificates representing
Optioned Stock issued to the Director shall have affixed thereto
a legend substantially in the following for:
"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 ONE OF ITS DIRECTORS. 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."
7. No Right to Employment. This Agreement shall not
entitle the Director to any right or claim to be employed as an
employee of the Company.
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 the Director: At the address specified at the
foot of this Agreement
If to the Company: NUWAVE Technologies, Inc.
Xxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: President
With a copy to: Greenberg, Traurig, Hoffman, Lipoff,
Xxxxx & Xxxxxxx, P.A.
777 X. Xxxxxxx Drive, Suite 000
Xxxx Xxxxx
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.
9. Governing Law. This 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 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 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 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:_______________________________________
Authorized Signatory
ACCEPTED AND AGREED TO:
______________________________
Signature
Name of Director
Address of Director
