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[CORPFIN LOGO]
EXHIBIT 10.5
PLACEMENT AGENCY AGREEMENT
THIS AGREEMENT ("AGREEMENT") is made as of the 25th day of May
2004, by
and between Wave Systems Corp., the
("COMPANY"), and, Corpfin Inc., a Georgia
corporation (the "AGENT").
WITNESSETH:
WHEREAS, the Company desires to consider strategic alternatives
available to it which include, but are not
limited to, issuing and selling
equity of the Company in the amount of up
to and including $25,000,000.00.
WHEREAS, the Agent has offered to assist the Company in the
procurement, if necessary, of potential
purchasers of the Company's common
stock, $0.01 par value, per share (the
"Common Stock") or warrants to purchase
shares of Common Stock (the "Equity") and
the Company desires to secure the
services of the Agent on the terms and
conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
promises, conditions and covenants herein
contained, the parties hereto do
hereby agree as follows:
1. ENGAGEMENT
OF AGENT. The Company hereby appoints the Agent as
non-exclusive Agent to procure potential
purchasers of the Company's Equity (the
"AGENT SERVICES"). The Agent, on the basis
of the representations and warranties
herein contained, but subject to the terms
and conditions herein set forth,
accepts such appointment. This appointment
shall be irrevocable for the period
commencing as of the date hereof and ending
upon the termination of the
Agreement in accordance with Section 7
hereof (the "TERM").
2. REPRESENTATIONS AND
WARRANTIES OF THE COMPANY. In order to
induce the Agent to enter into this
Agreement, the Company hereby represents and
warrants to and agrees with the Agent as
follows:
(a) ACCURACY OF
INFORMATION. All information provided by the
Company to the Agent regarding the Company
is true and does not omit any
material fact necessary to make such
information, in light of the circumstances
under which it was delivered, not
misleading. If during the Term, any event
occurs or any event known to the Company
relating to or affecting the Company
and/or the Agent shall occur as a result of
which the information provided to
the
Corpfin.com, Inc. -
555 North Point Center East, 4th Floor - Alpharetta,
GA 30022 678-366-5019 tel - 678-366-4424 fax
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Agent becomes incorrect or misleading, the
Company shall inform the Agent of
such occurrence within a reasonable period
of time.
(b) NO DEFAULTS.
The execution and delivery of this
Agreement, and the consummation of the
transactions herein contemplated, and
compliance with the terms of this Agreement
will not conflict with or result in
a breach of any of the terms, conditions or
provisions of, or constitute a
default under, the Articles of
Incorporation or By-Laws of the Company (in any
respect that is material to the Company),
any material note, indenture,
mortgage, deed of trust, or other agreement
or instrument to which the Company
is a party or by which the Company or any
property of the Company is bound, or
to the Company's knowledge, any existing
law, order, rule, regulation, writ,
injunction or decree of any government,
governmental instrumentality, agency or
body, arbitration tribunal or court,
domestic or foreign, having jurisdiction
over the Company or any property of the
Company.
(c)
INCORPORATION AND AUTHORIZATION. The Company is duly
formed and validly existing in good
standing as a corporation under the laws of
the State of its incorporation. The
execution and delivery by the Company of
this Agreement have been duly authorized by
all necessary action, and this
Agreement is the valid, binding and legally
enforceable obligation of the
Company.
3.
REPRESENTATIONS AND WARRANTIES OF THE AGENT. In order to induce
the Company to enter into this Agreement,
the Agent hereby represents and
warrants to and agrees with the Company as
follows:
(a) NO DEFAULTS.
The execution and delivery of this
Agreement, and the consummation of the
transactions herein contemplated, and
compliance with the terms of this Agreement
will not conflict with or result in
a breach of any of the terms, conditions or
provisions of, or constitute a
default under, the Articles of
Incorporation or By-Laws of the Agent (in any
respect that is material to the Agent), any
material note, indenture, mortgage,
deed of trust, or other agreement or
instrument to which the Agent is a party or
by which the Agent or any property of the
Agent is bound, or to the Agent's
knowledge, any existing law, order, rule,
regulation, writ, injunction or decree
of any government, governmental
instrumentality, agency or body, arbitration
tribunal or court, domestic or foreign,
having jurisdiction over the Agent or
any property of the Agent.
(b)
INCORPORATION AND AUTHORIZATION. The Agent is duly formed
and validly existing in good standing as a
corporation under the laws of the
State of its incorporation. The
