EXHIBIT 10.45
STOCK PURCHASE AGREEMENT
AGREEMENT, dated as of June __, 2002, by and between NUWAVE
TECHNOLOGIES, INC., a Delaware corporation (the "Company"), and ________________
(the "Purchaser").
WHEREAS, the Company desires to place up to 1,200,000 shares of its
common stock, $.01 par value (the "Common Stock"), to several investors
introduced by Roan/Xxxxxx Associates, L.P. ("Roan/Xxxxxx"); and
WHEREAS, the Purchaser desires to purchase a portion of the shares from
the Company, and the Company desires to sell such shares to the Purchaser, upon
the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
obligations contained herein and other valuable consideration, the receipt and
sufficiency of which being hereby acknowledged, the Company and the Purchaser
hereby agree as follows:
ARTICLE I.
STOCK PURCHASE AND DELIVERY OF THE SHARES
1.1 Purchase of the Shares. Subject to the terms and conditions of
this Agreement, and in reliance upon the representations, warranties and
agreements contained herein, the Purchaser hereby purchases from the Company,
and the Company hereby sells to the Purchaser, _____ shares (the "Shares") of
Common Stock at a purchase price of $0.30 per share, or an aggregate purchase
price of $_____ (the "Purchase Price").
1.2 Payment of Purchase Price. The Purchaser is paying for the Shares
by contemporaneous delivery to the Company of the Purchase Price by certified or
bank check or by wire transfer to an account designated by the Company, and the
Company is delivering to the Purchaser a certificate for the Shares.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
In order to induce the Purchaser to enter into this Agreement and to
consummate the transactions contemplated hereunder, the Company hereby
represents and warrants to the Purchaser as follows:
2.1 Existence. The Company is a corporation duly organized, validly
existing and in good standing under the laws of Delaware, and is in good
standing as a foreign corporation in the State of New Jersey.
2.2 Capitalization. The authorized capital stock of the Company
consists of 40,000,000 shares of Common Stock and 2,000,000 shares of preferred
stock, $.01 par value (the "Preferred Stock"). As of June 6, 2002, 12,216,937
shares of the Company's Common Stock and no shares of the Company's Preferred
Stock were issued and outstanding. In addition, at that date there were
9,349,980 warrants and 1,638,000 options outstanding for the purchase of shares
of Common Stock. The Company is in the process of raising additional capital
through placements of its Common Stock, including the placement in which the
Purchaser is participating, recent placements of an aggregate of _____ shares of
Common Stock to several investors, and possible sales pursuant to an Amended and
Restated Equity Line of Credit Agreement (the "Equity Line of Credit") with
Cornell Capital Partners L.P. The Company has not yet made any sales pursuant to
the Equity Line of Credit, and it will not initiate any sales under the Equity
Line of Credit for a period of at least 30 days beginning from the final closing
date of the placement of the shares.
2.3 Fully Paid and Non-Assessable Shares. The Shares, when issued,
sold and delivered pursuant to the provisions of this Agreement, will be duly
authorized, validly issued, fully paid and non-assessable shares of Common Stock
of the Company.
2.4 Authority. The execution, delivery and performance by the Company
of this Agreement and the issuance of the Shares have been duly authorized by
the Company, and the Company has all necessary power and authority to issue the
Shares and to execute, deliver and perform this Agreement. This Agreement has
been duly and validly executed and delivered by the Company and (assuming the
valid execution and delivery hereof and thereof by the Purchaser) constitutes
the legal, valid and binding agreement of the Company, enforceable against the
Company in accordance with its respective terms, except that such validity,
binding effect and enforceability may be limited by applicable bankruptcy and
other similar laws affecting the enforcement of creditors' rights generally and
except that the availability of equitable remedies is subject to the discretion
of the court before which any proceeding therefor may be brought (whether at law
or in equity).
2.5 No Conflicts; Consents. The execution, delivery and performance by
the Company of this Agreement and the consummation of the transactions
contemplated hereby will not (i) violate any provision of the Company's
Certificate of Incorporation or By-Laws, each as amended to date; (ii) require
the Company to obtain any consent, approval, permit or action of or waiver from,
or make any filing with, or give any notice to, any government or political
subdivision thereof, whether federal, state, local or foreign, or any agency or
instrumentality of any such government or political subdivision, or any court or
arbitrator, or any governmental agency or political subdivision (a "Governmental
Body") or any other person; (iii) violate, conflict with or result in a breach
or default under any contract or restriction relating to, or which affects, the
Shares or to which the Company is a party or by which the Company may be bound
or subject; or (iv) violate any law or order of any Governmental Body against,
or binding upon, the Company.
2.6 Securities. The Company's Common Stock is registered under the
Securities Exchange Act of 1934, as amended, and the Company is current in
filing its reports on Forms 10-QSB and 10-KSB thereunder. The Common Stock is
listed on the NASDAQ SmallCap Market, however, NASDAQ has advised the Company
that its Common Stock is subject to be delisted from the NASDAQ Small Cap Market
by reason of not meeting the maintenance requirements. In the event NASDAQ
delists the Common Stock, the Common Stock would be traded on the
Over-the-Counter Bulletin Board.
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2.7 Rule 502(b)(2)(ii) Compliance. The Company has provided the
Purchaser or Roan/Xxxxxx on behalf of the Purchaser with the information
required by Rule 502(b)(2)(ii); specifically, the Company has supplied a copy of
the Prospectus, dated May 31, 2002, to the Company's Registration Statement on
Form SB-2.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
In order to induce the Company to enter into this Agreement and to
consummate the transactions contemplated hereunder, the Purchaser hereby
represents and warrants to the Company as follows:
3.1 Authority and Performance of this Agreement. This Agreement
constitutes the legal, valid and binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms, except that such
validity, binding effect and enforceability may be limited by applicable
bankruptcy and other similar laws affecting the enforcement of creditors' rights
generally and except that the availability of equitable remedies is subject to
the discretion of the court before which any proceeding therefor may be brought
(whether at law or in equity).
3.2 Accredited Investor. The Purchaser is an "accredited investor" as
such term is defined in Rule 501 of Regulation D under the Securities Act of
1933, as amended (the "Securities Act"). The Purchaser has such knowledge, skill
and experience in business, financial and investment matters so that he is
capable of evaluating the merits and risks of an investment in the Shares. The
Purchaser has prior experience in investing in "restricted securities" under
Regulation D. The investment herein is consistent with the Purchaser's
investment objectives.
3.3 Shares Acquired for Investment Purposes. The Purchaser is
acquiring the Shares hereunder solely for his own account, for investment
purposes, and not with a view to the resale, transfer or assignment of any of
the Shares. The Purchaser acknowledges that the delivery to the Purchaser by the
Company of the Shares pursuant to this Agreement has not been registered under
the Securities Act or any state securities law, and that the Shares may be sold
or transferred other than pursuant to an effective registration statement under
the Securities Act or pursuant to an available exemption from such registration,
and he may have to bear the economic risk for a substantial period.
3.4 Access. The Purchaser has received and read the Prospectus, dated
May 31, 2002 to the Company's Registration Statement on Form SB-2 as background
information regarding the Company. The Purchaser or Roan/Xxxxxx on behalf of the
Purchaser has had the opportunity to meet with and to discuss the Company's
operations and financial matters with management of the Company and to have
management answer questions regarding the Company and its public available
information, including its Form 10-KSB for the fiscal year ended December 31,
2001 and Form 10-QSB for the fiscal quarter ended March 31, 2002.
3.5 Knowledge of the Company. The Purchaser is now, or has been within
the past 12 months, the beneficial owner of the Company's Common Stock.
3.6 Risks. The Purchaser understands the fundamental aspects of and
risks involved in an investment in the Company, including (i) the speculative
nature of the investment, (ii) the financial hazards involved, including the
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risk of losing the entire investment, (iii) the lack of liquidity, (iv) the
restrictions on transferability of the Shares and (v) the inherent risks
relating to the business of the Company, and the other risks as set forth in the
"Risk Factors" section of the May 31, 2002 prospectus.
3.7 Legend; Stop Transfer. The Purchaser acknowledges that the
certificate or certificates representing the Shares and the certificate
representing the Warrants the Purchaser is purchasing hereby shall bear the
following restrictive legends on the reverse side thereof:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND ARE BEING
OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH STATE
LAWS. THE SECURITIES MAY NOT BE TRANSFERRED OR RESOLD WITHOUT
REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS, UNLESS (IN THE OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY) AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT AND SUCH STATE LAWS IS THEN
AVAILABLE.
The Purchaser is aware that the Company will instruct its transfer agent to make
a stop transfer notation in its appropriate records with respect to the
restrictions on the transferability of the Shares.
3.8 Commissions. The Purchaser is aware that Roan/Xxxxxx has acted as
finder in connection with his purchase of the Shares for which such firm is to
receive a cash commission in the amount equal to 10% of the Purchase Price and
an nonaccountable reimbursement allowance in an amount equal to 1% of the
Purchase Price. The Purchaser is relying on Roan/Xxxxxx to contact the Company
on his behalf, and to provide him with information about the Company.
ARTICLE IV.
REGISTRATION RIGHTS
4.1 "Piggyback" Registration. If the Company, at any time from the
date hereof until August 31, 2002, proposes to register any shares of its Common
Stock under the Securities Act (other than registrations (i) solely for the
registration of shares in connection with an employee benefit plan or a merger
or consolidation, (ii) pursuant to Section 4.2, (iii) pursuant to a Registration
Rights Agreement entered into in connection with an Amended and Restated Equity
Line of Credit Agreement, or (iv) for the registration of Common Stock
underlying warrants or other rights issued and outstanding as of the date
hereof), whether or not for sale of its own account, and the registration form
to be used may be used for the registration of the Shares (a "Piggyback
Registration"), the Company will give prompt written notice to the Purchaser of
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its intention to do so and of the Purchaser's rights under this Section 4.1).
Upon the written request of the Purchaser made within fifteen (15) days after
the receipt of any such notice (which request shall specify the number of Shares
(the "Registrable Shares") intended to be disposed of by the Purchaser and the
intended method of distribution thereof), the Company will use its best efforts
to effect the registration under the Securities Act of Registrable Shares which
the Company has been so requested to register by the Purchaser. If, at any time
after giving written notice of its intention to register any securities and
prior to the effective date of the registration statement filed in connection
with such registration, the Company shall determine for any reason not to
register or to delay registration of such securities, the Company may, at its
election, give written notice of such determination to the Purchaser and,
thereupon, (i) in the case of a determination not to register, shall be relieved
of its obligation to register any Registrable Shares in connection with such
registration (but not from its obligation to pay the expenses in connection
therewith), and (ii) in the case of a determination to delay registering or to
delay the sale of the Registrable Shares thereunder, shall be permitted to delay
registering any Registrable Shares or the sale thereunder, for the same period
as the delay in registering such other securities or as requested by any
underwriter of other securities being included therein (provided that all
sellers of included securities (other than the Company) are similarly treated).
4.2 "Demand" Registration. The Purchaser shall have the right,
beginning ninety (90) days after the issuance of the Shares to demand by written
notice to the Company ("Notice of Demand") that the Company use its best efforts
to effect the registration of the Shares under the Securities Act on Form S-3 or
such applicable form as properly designated by the Company, if the Shares are
not then included in a registration statement filed pursuant to Section 4.1
hereof. The Company shall as expeditiously as practicable, but in no event later
than one hundred fifty (150) days after the delivery of such Notice of Demand,
prepare and file with the SEC a registration statement (the "Demand
Registration") under the Securities Act and use its best efforts to cause such
Demand Registration to become effective. The Company shall use its best efforts
to maintain the Registration Statement current under the Securities Act from its
effective date until the date which is two (2) years from the date of this
Agreement or until all Shares included therein have been sold, if earlier.
Subject to Section 4.1 hereof, the Company may include the Shares in a
registration statement being filed by the Company with respect to other
securities of the Company.
4.3 Costs; Prospectuses; Qualification for Sale. The Company shall
bear the entire cost and expense of registering the Registrable Shares under any
Registration Statement filed by it under this Article. The Company shall supply
prospectuses and such other documents as the Purchaser may request and shall
qualify the Registrable Shares for sale in such jurisdictions as requested;
provided, however, that the Company reserves the right, in its sole discretion,
not to qualify the Registrable Shares in any jurisdiction where the Company
would be required to qualify as a foreign corporation and is not otherwise
required to be qualified therein. The obligation of the Company under this
Article shall be limited to one Registration Statement which is declared
effective under the Securities Act.
4.4 Indemnification; Selling Stockholder Agreement. As a condition to
the Company filing a registration under this Article, the Purchaser agrees to
provide to the Company the usual and customary indemnifications and to enter
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into a customary selling shareholder agreement with the Company in connection
with the Registrable Shares, as may be reasonably requested by the Company.
ARTICLE V.
INDEMNIFICATION
5.1 The Purchaser acknowledges that he understands the meaning and
legal consequences of the representations and warranties contained in Article 3.
The Purchaser hereby agrees to indemnify and hold harmless the Company, and the
Company's officers and directors, from and against any and all loss, damage or
liability due to or arising out of a breach of any representation or warranty
made by it in this Agreement.
ARTICLE VI.
MISCELLANEOUS.
6.1 Entire Agreement. This Agreement contains the entire agreement
between the Purchaser and the Company with respect to the matters set forth
herein, and this Agreement supersedes all prior agreements and understandings
between them as to the subject matter hereof.
6.2 Benefits. All of the terms and provisions of this Agreement shall
bind and inure to the benefit of the Company and the Purchaser and their
respective successors and assigns. The Purchaser may not transfer or assign this
Agreement without the prior written consent of the Company.
6.3 Governing Law. This Agreement shall be construed in accordance
with and governed by the laws of Delaware, without giving effect to the
principles of conflicts of law.
6.4 Severability. If any provision of this Agreement shall be held
invalid or unenforceable, such invalidity or unenforceability shall attach only
to such provision and shall not in any manner affect or render invalid or
unenforceable any other provision of this Agreement, and this Agreement shall be
carried out as if any such invalid or unenforceable provision were not contained
herein.
6.5 Modification, Waivers, Etc. Neither this Agreement nor any
provision hereof may be changed, waived, discharged or terminated orally but
only by an instrument in writing signed by the party against whom enforcement of
the change, waiver, discharge or termination is sought.
6.6 Notices. All notices or other communications hereunder shall be in
writing and shall be deemed to have been duly given and shall be effective upon
receipt if delivered by hand, or sent by certified or registered United States
mail, postage prepaid and return receipt requested, or by prepaid overnight
express service or facsimile transmission (with receipt confirmed). Notices
shall be sent to the parties at the following addresses (or at such other
addresses for a party as shall be specified by like notice; provided that such
notice shall be effective only upon receipt thereof):
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If to the Company:
NUWAVE Technologies, Inc.
Xxx Xxxxxxx Xxx.
Xxxxxxxxx, XX 00000
Attn: Chief Financial Officer
Fax: (000) 000-0000
If to the Purchaser:
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------------------------
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Fax: ___________________
6.7 Captions. The captions of articles and sections of this Agreement
are for convenience of reference only and are not to be considered in construing
this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first written above.
NUWAVE TECHNOLOGIES, INC.
By: ___________________________
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