<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 9, 1996
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
WAVE SYSTEMS CORP.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 13-34772426
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER IDENTIFICATION NO.)
OF INCORPORATION OR ORGANIZATION)
540 MADISON AVENUE 10022
NEW YORK, NEW YORK (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
----------------------
WAVE SYSTEMS CORP.
1994 NON-EMPLOYEE DIRECTORS
STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
JAMES S. HATCH
WAVE SYSTEMS CORP.
540 MADISON AVENUE
NEW YORK, NEW YORK 10022
(NAME AND ADDRESS OF AGENT FOR SERVICE)
TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE:
(212) 755-3282
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================================
Proposed Proposed
Maximum Maximum
Title of Securities to be Amount to be Offering Price Aggregate Amount of
Registered Registered Per Share(1) Offering Price(1) Registration Fee
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock, $.01 par 500,000 Shares(2) $1.76 $880,000 $303.45
value.............................
- ------------------------------------------------------------------------------------------------------------------------
Class B Common Stock, $.01 par 72,000 Shares -- -- --
value.............................
========================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of computing the registration fee, based on
the average of the high and low prices for the Class A Common Stock as
reported on the Nasdaq National Market System on September 3, 1996.
(2) Includes 72,000 shares of Class A Common Stock issuable upon conversion of
Class B Common Stock issuable upon exercise of options granted under the
1994 Non-Employee Directors Stock Option Plan.
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PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1995 (File No. 0-24752).
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 since the end of the fiscal year covered by the
registrant document referred to in (a) above.
(c) The description of the Company's Class A Common Stock contained in
the Company's Registration Statement on Form 8-A (File No. 0-24752), as amended.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated herein by reference and shall be deemed to be a
part hereof, from the date of filing of such documents.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes hereof to the extent
that a statement contained herein (or in any other subsequently filed document
which also is incorporated by reference herein) modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed to
constitute a part hereof except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES.
The description of the Company's Class B Common Stock contained in the
Company's Registration Statement on Form S-1 (Registration No. 33-75286), as
amended, is hereby incorporated herein by reference.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to Section 102(b)(7) of the Delaware General Corporation Law
(the "DGCL"), the Restated Certificate of Incorporation of the Company
eliminates the liability of the Company's directors to the Company or its
stockholders, except for liabilities related to breach of duty of loyalty,
actions not in good faith and certain other liabilities.
Section 145 of the DGCL provides that a corporation may indemnify any
person, including officers and directors, who are, or are threatened to be made,
parties to any threatened, pending or completed legal action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of such corporation), by reason of the fact that
such person was an officer, director, employee or agent of such corporation, or
is or was serving at the request of such corporation as a director, officer,
employee or agent of another corporation. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit, or proceeding, provided such officer, director, employee or agent acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
corporation's best interests and, for criminal proceedings, had no reasonable
cause to believe that his conduct was unlawful. A Delaware corporation may
indemnify officers and directors in an action by or in the right of the
corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the officer or director is adjudged to be
liable to the corporation. Where an officer or director is successful on the
merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses which such officer or
director actually or reasonably incurred. The Restated Bylaws of the Company
provide for indemnification of the officers and directors to the fullest extent
permitted by the DGCL. In addition, the Company maintains officers' and
directors' liability insurance which insures against liabilities that officers
and directors of the Company may incur in such capacities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Index to Exhibits.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
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(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraph (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3 or Form
S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to section
13 or section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on the 5th day of
September, 1996.
WAVE SYSTEMS CORP.
By:/s/ Peter J. Sprague
--------------------------------------------
Name: Peter J. Sprague
Title: Chairman, Chief Executive Officer and
Principal Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Peter J. Sprague Chairman, Chief Executive Officer September 5, 1996
- ---------------------------------------- and Principal Financial Officer
Peter J. Sprague
/s/ David Kopans Controller September 5, 1996
- ----------------------------------------
David Kopans
/s/ John E. Bagalay, Jr. Director September 5, 1996
- ----------------------------------------
John E. Bagalay, Jr.
- ---------------------------------------- Director September __, 1996
Philippe Bertin
/s/ George Gilder Director September 5, 1996
- ----------------------------------------
George Gilder
/s/ John E. McConnaughy, Jr. Director September 5, 1996
- ----------------------------------------
John E. McConnaughy, Jr.
/s/ Gene W. Ray Director September 5, 1996
- ----------------------------------------
Gene W. Ray
</TABLE>
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INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- ------ -----------------------
4.1 Restated Certificate of Incorporation of the Registrant
(Incorporated by reference to Exhibit 3.1 of the Registrant's
Registration Statement on Form S-1, as amended, Registration No.
33-75286)
4.2 By-Laws of the Registrant (Incorporated by reference to Exhibit
3.2 of the Registrant's Registration Statement on Form S-1, as
amended, Registration No. 33-75286)
5 Opinion of Curtis, Mallet-Prevost, Colt & Mosle
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Curtis, Mallet-Prevost, Colt & Mosle (included in
Exhibit 5)
99 Description of Securities of Registrant (Incorporated by reference
from the Registrant's Registration Statement on Form S-1, as
amended, Registration No. 33-75286)
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CURTIS, MALLET-PREVOST, COLT & MOSLE EXHIBIT 5
September 9, 1996
Wave Systems Corp.
540 Madison Avenue
New York, NY 10022
Ladies and Gentlemen:
We have acted as special counsel for Wave Systems Corp., a
Delaware corporation (the "Company"), with respect to the proposed registration
and sale by the Company of (i) up to 72,000 shares of the Company's Class B
Common Stock, $0.01 par value per share (the "Class B Common Stock"), issuable
upon the exercise of options granted under the Company's 1994 Non-Employee
Directors Stock Option Plan (the "Plan"), (ii) up to 72,000 shares of the
Company's Class A Common Stock, $0.01 par value per share (the "Class A Common
Stock") issuable upon the conversion of shares of Class B Common Stock issued
under the Plan, and (iii) up to 428,000 shares of Class A Common Stock issuable
upon the exercise of options granted or to be granted under the Company's Plan,
as amended, covered by a Registration Statement on Form S-8 (the "Registration
Statement") filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended.
In connection herewith, we have examined the Restated
Certificate of Incorporation and the Restated Bylaws of the Company, the
Registration Statement and all exhibits thereto, and such other documents as we
have considered necessary.
<PAGE> 2
Wave Systems Corp.
Page 2 September 9, 1996
Based upon such examination, it is our opinion that the shares
of Class A and Class B Common Stock proposed to be sold by the Company, when
sold pursuant to the Plan, as amended, and resolutions of the Board of Directors
of the Company authorizing the same, will be legally issued, fully paid and
nonassessable. In rendering this opinion, we have assumed that the exercise
price of options will be not less than the par value of the shares subject
thereto.
We hereby consent to the use of this opinion as an exhibit to
the Registration Statement.
We are giving this opinion to the Company, and no person other
than the Company may rely upon it.
Very truly yours,
/s/ Curtis, Mallet-Prevost,
Colt & Mosle
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Curtis, Mallet-Prevost, Colt
& Mosle
<PAGE> 1
Exhibit 23.1
Independent Auditors' Consent
The Board of Directors
Wave Systems Corp.:
We consent to the use of our report incorporated herein by reference.
KPMG Peat Marwick LLP
New York, New York
September 6,1996
