Exhibit 10.1
Subscription
Agreement
This Subscription Agreement (this
“ Agreement ”) is dated July 21, 2009, by
and between the investor identified on the signature
page hereto (the “ Investor ”) and Wave
Systems Corp., a Delaware corporation (the “ Company
”), whereby the parties agree as follows:
1.
Subscription
.
(a) Investor
agrees to buy and the Company agrees to sell and issue to Investor
(i) such number of shares (the “Shares”) of
Class A common stock, par value $0.01 per share (“Common
Stock”), and (ii) a Warrant, in substantially the form
delivered to the Investor herewith, to purchase such number of
shares of Common Stock (the “ Warrants ”) of the
Company, set forth on the signature page hereto, for an
aggregate purchase price set forth on the signature
page hereto (the “ Purchase Price ”).
The shares of Common Stock issuable upon exercise of the Warrants
are referred to herein as the “ Warrant Shares
”.
(b) The Shares,
Warrants and Warrant Shares have been registered on a Registration
Statement on Form S-3, Registration No. 333-150340, which
registration statement (the “ Registration Statement
”) has been declared effective by the Securities and Exchange
Commission, has remained effective since such date and is effective
on the date hereof.
(c) ON
JULY 22, 2009 (THE “ CLOSING DATE ”), THE
INVESTOR SHALL REMIT BY WIRE TRANSFER THE AMOUNT OF FUNDS EQUAL TO
THE AGGREGATE PURCHASE PRICE FOR THE SHARES AND WARRANTS BEING
PURCHASED BY THE INVESTOR TO THE FOLLOWING ACCOUNT DESIGNATED BY
THE COMPANY:
Account: Wave Systems
Corp
HSBC Bank
452 Fifth Avenue
New York, NY 10018
Bank ABA/Routing #
021001088
US Govt MM Fund:
610185055
Such funds shall be delivered unless
(i) the Placement Agency Agreement (the “ Placement
Agreement ”) between the Company and the placement agent
engaged by the Company in connection with the sale and issuance of
the Shares and Warrants (the “ Placement Agent
”) is terminated pursuant to the terms thereof or
(ii) the conditions to closing in the Placement Agreement have
not been satisfied. The Company’s obligation to issue
the Shares and Warrants to the Investor will be subject to
(i) the receipt by the Company of the aggregate purchase price
for the Shares and Warrant being purchased hereunder as set forth
on the signature page, (ii) the accuracy of the
representations and warranties made by the Investor in this
Agreement, (iii) the Registration Statement remaining in
effect and no stop order proceedings with respect thereto being
pending or threatened, and (iv) there being no objections
raised by the staff of the NASDAQ Stock Market to the consummation
of the sale without the approval of the Company’s
stockholders. The Company proposes to enter into
substantially this same form of Agreement with certain other
investors (collectively with this Agreement, the “
Transaction ”) and the Investor’s obligations
are expressly not conditioned on the purchase by any or all such
other investors of the Shares and Warrants that they have agreed to
purchase from the Company. The Company shall issue a press
release announcing the Transaction prior to 9:30am Eastern Time on
the business day immediately following the date hereof. The
Placement Agent shall have no rights in or to any of the funds,
except in respect of the Company’s obligation to pay the
Placement Agent’s fees.
(d) NO
LATER THAN ONE (1) BUSINESS DAY AFTER THE EXECUTION OF THIS
AGREEMENT BY THE INVESTOR AND THE COMPANY, THE INVESTOR SHALL
DIRECT THE BROKER-DEALER AT WHICH THE ACCOUNT OR ACCOUNTS TO BE
CREDITED WITH THE SHARES ARE MAINTAINED TO SET UP A
DEPOSIT/WITHDRAWAL AT CUSTODIAN (“ DWAC ”)
INSTRUCTING THE TRANSFER AGENT TO CREDIT SUCH ACCOUNT OR ACCOUNTS
WITH THE SHARES ON THE CLOSING DATE.
(e) On
the Closing Date, the Company shall deliver to Investor
(i) the Shares via the Depository Trust Company’s
(“ DTC ”) Deposit or Withdrawal at Custodian
system via the DTC instructions set forth on the signature
page hereto and (ii) the Warrants in physical,
certificated form to the address set forth on the signature
page hereto, such Shares and Warrants to be registered in such
name or names as designated by the Investor on the signature
page hereto. The Shares and Warrants shall be unlegended
and free of any resale restrictions.
2.
Company Representations and
Warranties . The
Company represents and warrants that: (a) it has full right,
power and authority to enter into this Agreement and to perform all
of its obligations hereunder; (b) this Agreement has been duly
authorized and executed by and constitutes a valid and binding
agreement of the Company enforceable in accordance with its terms;
(c) the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby do not
conflict with or result in a breach of (i) the Company’s
Restated Certificate of Incorporation or Restated By-Laws, or
(ii) any material agreement to which the Company is a party or
by which any of its property or assets is bound; (d) the
Shares, Warrants and Warrant Shares have been duly authorized for
sale and issuance, and when the Shares and Warrant Shares are
issued and delivered by the Company against payment therefor
pursuant to this Subscription or the Warrants, as the case may be,
will be validly issued, fully paid and nonassessable;
(e) th
|
