Exhibit 10.1
RESTRUCTURING
AGREEMENT
THIS RESTRUCTURING
AGREEMENT dated as of
September 23, 2008 (this “ Agreement ”),
among WAVEXPRESS, INC., a Delaware corporation (the “
Company ”), SARNOFF CORPORATION, a New Jersey
corporation (“ Sarnoff ”), and WAVE SYSTEMS
CORP., a Delaware corporation (“ Wave ”).
The parties listed in the preceding sentence shall be referred to
herein, each as a “ Party ” and, collectively,
the “ Parties ”.
WHEREAS, pursuant to that certain Joint Venture Agreement
among the Parties, dated as of October 15, 1999 (the “
Joint Venture Agreement ”), the Company has issued to
Sarnoff 386,666 shares of Common Stock, par value $0.0001 per share
(“ Common Stock ”), of the Company and 2,840,000
shares of Series A Convertible Preferred Stock, par value
$0.0001 per share (“ Series A Preferred Stock
”), of the Company in consideration for the license by
Sarnoff to the Company of certain patents and related intellectual
property pursuant to that certain Technology and Patent License
Agreement, dated October 15, 1999 (the “ Sarnoff
License Agreement ”), among Sarnoff and the Company;
and
WHEREAS, the Parties desire to enter into this Agreement
pursuant to which, among other things, (a) the provisions of
the Joint Venture Agreement and the Sarnoff License Agreement will
be terminated and (b) Sarnoff will convert all of its shares
of Series A Preferred Stock into shares of Common Stock as set
forth herein.
NOW THEREFORE,
in consideration of the mutual
agreements and covenants herein contained and for other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties agree as follows:
ARTICLE I
RESTRUCTURING ARRANGEMENTS
1.1.
Termination of Joint Venture
Agreement . The
Joint Venture Agreement is hereby terminated in its entirety and,
notwithstanding anything to the contrary therein, the Parties shall
have no further rights, obligations or liabilities
thereunder. Any and all rights of the stockholders of the
Company under any of the provisions thereof are hereby waived and
terminated and such provisions shall have no further force or
effect.
1.2.
Termination of Sarnoff
Agreements . The Sarnoff
License Agreement is hereby terminated in its entirety and,
notwithstanding anything to the contrary therein, Wavexpress and
Sarnoff shall have no further rights, obligations or liabilities
thereunder. Further, the parties acknowledge and agree that
that certain Development Agreement, dated October 15, 1999, by
and between Sarnoff and the Company, has terminated and that the
Company and Sarnoff have no further rights, obligations or
liabilities thereunder.
1.3.
Conversion of Sarnoff Preferred
Stock . Pursuant to
Section 3 of the Certificate of Designations of Series A
Convertible Preferred Stock of the Company, Sarnoff hereby elects
to convert all of its shares of Series A Preferred Stock into
Common Stock on the date hereof. In accordance with such
election, Sarnoff hereby tenders to the Company for conversion its
share certificate representing all of the 2,840,000 shares of
Series A Preferred
Stock held by Sarnoff. Promptly following
the execution and delivery of this Agreement by the Parties, and in
full satisfaction of such conversion, the Company shall issue and
deliver to Sarnoff a share certificate representing 946,667 shares
of Common Stock.
1.4.
Amended and Restated Stockholder
Agreement .
Simultaneously with the execution and delivery of this Agreement,
the Parties shall execute and deliver the Amended and Restated
Stockholder Agreement attached hereto as Exhibit A (the
“ Amended and Restated Stockholder Agreement
”).
1.5.
Stockholder Consent
. Simultaneously with the
execution and delivery of this Agreement, Sarnoff and Wave shall
execute and deliver to the Company the Written Consent in lieu of a
special meeting of the stockholders of the Company in the form of
Exhibit B hereto.
ARTICLE II
MUTUAL RELEASE AND WAIVERS
2.1.
Release by Wave and the
Company . Each of
Wave and the Company, on behalf of itself and its respective
agents, representatives, successors and assigns (collectively, the
“ Wave Parties ”) hereby RELEASES AND FOREVER
DISCHARGES Sarnoff and its affiliates, parents, officers,
directors, shareholders, interest holders, members, managers,
employees, consultants, representatives, successors and assigns,
heirs, executors and administrators (collectively, the “
Sarnoff Released Parties ”) from all causes of action,
suits, debts, obligations, claims and demands whatsoever at law, in
equity or otherwise (“ Claims ”), which any of
the Wave Parties ever had or now has or hereafter may have,
including, without limitation, those Claims arising from or
relating in any way to Sarnoff’s status as a stockholder of
the Company and the transactions and matters contemplated by the
Joint Venture Agreement and the other Operative Agreements (as
defined therein) (but excluding any claims arising after the date
hereof in respect of obligations under this Agreement or the
Amended and Restated Stockholder Agreement). The release
contained in this Section 2.1 is effective without regard to
the legal nature of the Claims raised and without regard to whether
any such Claims are based upon tort, equity, implied or express
contract or otherwise.
2.2.
Release by Sarnoff
. Sarnoff, on behalf of itself
and its agents, representatives, successors and assigns
(collectively, the “ Sarnoff Parties ”) hereby
RELEASES AND FOREVER DISCHARGES Wave, the Company and their
respective affiliates, parents, officers, directors, shareholders,
employees, consultants, representatives, successors and assigns
(collectively, the “ Sarnoff Released Parties ”)
from all Claims which any of the Sarnoff Parties ever had or now
has or hereafter may have, including, without limitation, those
Claims arising from or relating in any way to
(a) Sarnoff’s or Wave’s status as a stockholder of
the Company, (b) the transactions and matters contemplated by
the Joint Venture Agreement and the other Operative Agreements (as
defined therein) or (c) the financing, management, operation
and other activities of the Company at any time prior to the date
hereof (including, without limitation, the issuance by the Company
to Wave of convertible promissory notes in an aggregate original
principal amount of approximately $71,600,000) (but excluding any
claims arising after the date hereof in respect of obligations
under this Agreement or the Amended and Restated Stockholder
Agreement). The release
