Exhibit 10.1
SUBSCRIPTION
AGREEMENT
October 29, 2008
Wave Systems Corp.
480 Pleasant Street
Lee, MA 01238
The undersigned (the “ Investor
”) hereby confirms its agreement with you as
follows:
1.
This Subscription Agreement (this
“ Agreement ”) is made as of the date set forth
below between Wave Systems Corp., a Delaware corporation (the
“ Company ”), and the Investor.
2.
The Company has authorized the sale
and issuance to certain investors of (a) up to 111 shares of
Series J Convertible Preferred Stock (the “ Total
Shares ”), par value $0.01 per share (the “
Series J Preferred Stock ”) for a purchase price
of $6,500 per share (the “ Purchase Price ”) and
(b) warrants, in substantially the form attached hereto as
Annex II (the “ Warrants ” and, collectively,
with the Total Shares, the “ Securities ”), to
purchase up to 2,220,000 shares of Class A Common Stock of the
Company, par value $0.01 per share (the “ Common Stock
”) at an exercise price of $0.40 per share (the “
Exercise Price ”). Investors will be issued
Warrants to purchase 20,000 shares of Common Stock for each share
of Series J Preferred Stock purchased by such Investor.
The terms of the Series J Preferred Stock will be set forth in
the Certificate of Designations substantially in the form attached
hereto as Annex III (the “ Certificate of Designations
”).
3.
The offering and sale of the
Securities (the “ Offering ”) are being made
pursuant to the Company’s registration statement including a
base prospectus (the “ U.S. Base Prospectus ”)
on Form S-3 (Registration No. 333-150340 ) filed
with the United States Securities and Exchange Commission (the
“ Commission ”) (which, together with all
amendments or supplements thereto is referred to herein as the
“ Registration Statement ”) and a Prospectus
Supplement containing certain supplemental information regarding
the Securities and terms of the Offering that will be filed with
the Commission (the “ Prospectus Supplement
”).
4.
The Company and the Investor agree
that the Investor will purchase from the Company and the Company
will issue and sell to the Investor, for the aggregate purchase
price set forth below, (a) the number of shares of
Series J Preferred Stock set forth below (the “
Investor Shares ”) and (b) a Warrant to purchase
the number of shares of Common Stock set forth below (the “
Investor Warrant ” and, collectively with the Investor
Shares, the “ Investor Securities ”). The
Investor Securities shall be purchased pursuant to the Terms and
Conditions for Purchase of Securities attached hereto as Annex I
and incorporated herein by this reference as if fully set forth
herein.
5.
The Investor represents that, except
as set forth below, (a) it has had no position, office or
other material relationship within the past three years with the
Company or any of its affiliates and (b) it has no direct or
indirect affiliation or association with any NASD member.
Exceptions:
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(If no exceptions, write “ none.
” If left blank, response will be deemed to be “
none. ”)
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6.
The Investor acknowledges that,
prior to or in connection with the execution and delivery of this
Agreement, it has reviewed the final U.S. Base Prospectus, dated
June 23, 2008 , which is a part of the Company’s
Registration Statement, and the Prospectus Supplement.
THIS AGREEMENT SHALL NOT CONSTITUTE A BINDING COMMITMENT ON THE
PART OF THE COMPANY UNTIL (A) THE COMPANY HAS TIMELY
RECEIVED AN EXECUTED COPY OF THE COMPLETED SUBSCRIPTION AGREEMENT
FROM THE INVESTOR AND (B) THE COMPANY HAS DELIVERED TO THE
INVESTOR AN EXECUTED COUNTERPART SIGNATURE PAGE HERETO.
THE INVESTOR ACKNOWLEDGES THAT, AT ANY TIME PRIOR TO THE DELIVERY
OF ITS EXECUTED COUNTERPART SIGNATURE PAGE, THE COMPANY
MAY ELECT TO NOT ENTER INTO THIS SUBSCRIPTION AGREEMENT FOR
ANY REASON.
SIGNATURE
PAGE
Number of Investor Shares:
Price Per Investor
Share: $6,500
Aggregate Purchase Price:
Shares of Common Stock issuable upon exercise of
Investor Warrant:
Exercise Price of Investor Warrant:
$0.40
Please confirm that the foregoing
correctly sets forth the agreement between us by signing in the
space provided below for that purpose.
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Dated as of: October 29, 2008
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INVESTOR
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By:
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Print Name:
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Title:
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Address:
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Phone #:
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Email:
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Agreed and Accepted
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October 29, 2008:
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WAVE SYSTEMS CORP.
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By:
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Name: Gerard T. Feeney
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Title: CFO
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EXHIBIT A
WAVE SYSTEMS CORP.
INVESTOR
QUESTIONNAIRE
Pursuant to Section 3 of
Annex I to this Agreement, please provide us with the
following information:
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1.
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The exact name that your Investor Shares and
Warrant are to be registered in. You may use a nominee name if
appropriate:
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2.
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The relationship between the Investor and the
registered holder listed in response to item 1 above:
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3.
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The mailing address of the registered holder
listed in response to item 1 above:
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4.
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The Social Security Number or Tax Identification
Number of the registered holder listed in response to item 1
above:
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5.
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The mailing address to which the Investor Share
certificate and Warrant should be delivered:
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ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF
SECURITIES
All capitalized terms not otherwise defined in
this Annex I shall have the meanings ascribed thereto in the
Subscription Agreement to which this Annex I is
attached.
1.
Authorization and Sale of the
Investor Securities. Subject to the terms and conditions of this
Agreement, the Company has authorized the sale of the Investor
Securities.
2.
Agreement to Sell and Purchase
the Investor Securities; Placement Agent.
2.1.
At the Closing (as defined in
Section 3.1), the Company will sell to the Investor, and the
Investor will purchase from the Company, upon the terms and
conditions set forth herein, the number of Investor Shares and
corresponding Investor Warrants set forth on the last page of
the Subscription Agreement to which these Terms and Conditions for
Purchase of Investor Securities are attached as Annex I (the
“Signature Page”) for the aggregate purchase price
therefor set forth on the Signature Page.
2.2.
The Company proposes to enter into
substantially this same form of Subscription Agreement with certain
other investors (the “Other Investors”) and expects to
complete sales of some or all of the remaining Securities to them
as part of the Offering (subject to
Section 3.2(b) below). The Investor and the Other
Investors are hereinafter sometimes collectively referred to as the
“Investors”. The Company may complete sales of
the remaining Securities in this Offering to certain of the Other
Investors without requiring such Other Investors to enter into a
Subscription Agreement; such sales shall nevertheless be on the
same price terms as the price terms for all of the other sales in
the Offering.
2.3.
The Investor acknowledges that the
Company intends to pay Security Research Associates, Inc. (the
“Placement Agent”) a fee (the “Placement
Fee”) in respect of the sale of the Securities to the
Investor pursuant to a Placement Agency Agreement (the
“Placement Agreement”) with the Placement Agent.
A copy of the Placement Agreement is available to the Investor upon
request.
3.
Closings and Delivery of the
Securities and Funds.
3.1.
Closing
. The completion of the
purchase and sale of the Securities (the “Closing”)
will occur on or before October 31, 2008 (the “Closing
Date”). At the Closing: (a) the Company will
deliver (by overnight courier) a certificate representing the
number of shares of Series J Preferred St
