Exhibit 10.1
SUBSCRIPTION
AGREEMENT
March 13, 2009
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 785,000 shares
of Class A Common Stock (the “ Total Shares
”), par value $0.01 per share (the “ Common
Stock ”) for a purchase price of $0.55 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 392,500
shares of Common Stock at an exercise price of $0.55 per share (the
“ Exercise Price ”).
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 Common
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 transaction for the purchase of
the Investor Shares will to settle via DVP (as defined below)
UNLESS (a) you elect to receive your Investor Shares using the
Deposit Withdrawal Agent Commission (“ DWAC ”)
system of the Depository Trust Company or (b) you have a cash
account with Security Research Associates, Inc. (“
SRA ”) with sufficient cash to fund
the Purchase Price and you elect to settle
through such account by initialing on the following
line:
(Initial Here For Settlement
through account with SRA).
(Initial Here For Settlement
through DWAC)
“DVP” means delivery versus
payment through DTC (i.e., the Company shall deliver Investor
Shares registered in the Investor’s name and address as set
forth below and released by American Stock Transfer Corporation,
the Company’s transfer agent (the “ Transfer
Agent ”), to the Investor at the Closing directly to the
account(s) at Security Research Associates, Inc. through
DTC and simultaneously therewith payment shall be made from such
account(s) by Security Research Associates, Inc. to the
Company).
If you do not have an existing account at
Security Research Associates for settlement by DVP, we will need
the following information to be faxed to us along with your
signature page to this agreement. Please fax your
clearing information to Security Research Associates at (866)
592-8132 (or as a back up 415-925-0264) to establish an account
with our clearing broker Wedbush Morgan Securities. Below is what
we will need to open your account. A “New Account
form” is attached in Exhibit B for your
convenience:
·
The exact registration name of the
account
·
Tax ID or Social Security number of
registered holder
·
Investor’s Clearing firm Prime
Broker and contact information (contact name, phone number, email
address)
·
Internal Account number at Prime
Broker
·
Institutional and Agent
ID
6.
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:
(If no exceptions, write “ none.
” If left blank, response will be deemed to be “
none. ”)
7.
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:
Shares issuable upon exercise of Investor
Warrant:
Price Per Investor Share: $0.55
Investor Warrant Exercise
Price: $0.55
Aggregate Purchase Price: $
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: March 13, 2009
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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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March 13, 2009:
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WAVE SYSTEMS CORP.
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By:
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Name:
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Gerard T. Feeney
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Title:
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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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If you have elected to settle via DWAC, please
include the following additional information:
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1.
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Name of DTC Participant (broker-dealer at which
the account or accounts to be credited with the Shares are
maintained)
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2.
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DTC Participant Number
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3.
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Name of Account at DTC Participant being
credited with the Shares
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4.
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Account Number at DTC Participant being credited
with the Shares
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EXHIBIT B
Institutional DVP/RVP New Account
Form.
If settling via DVP, and the Investor does not
have an existing account with Security Research
Associates, Inc., please fill out the below New Account
Form and fax back to SRA with your signature page to the
Subscription Agreement.
Please Fax to SRA at: (866) 592-8132 (or
as a back up 415-925-0264)
Send “Attention Devon Wygaerts”
Devon can be reached at 415-925-0346.
DVP INSTRUCTIONS:
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DTC #
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INSTITUTION #
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AGENT BANK #
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INTERNAL A/C #
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SHORT NAME:
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ORIGINAL CONFIRMATION:
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DUPLICATE INSTRUCTIONS:
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INSTITUTION OR I/P #
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TRIPLICATE INSTRUCTIONS:
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SENT BY:
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DATE:
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CONTACT INFORMATION :
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Name (Printed):
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Telephone #:
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Email Address:
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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 Warrant 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&rdquo
