As filed with the Securities and Exchange Commission on December 15, 1998
Registration No. 333-
================================================================================
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 13-3477246
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
480 Pleasant Street
Lee, Massachusetts 01238
(Address of principal executive offices) (Zip code)
Wave Systems Corp.
1994 Non-Employee Directors
Stock Option Plan
(Full title of the plan)
Steven Sprague
President and Chief Operating Officer
Wave Systems Corp.
480 Pleasant Street
Lee, Massachusetts 01238
(Name and address of agent for service)
(413) 243-1600
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Title of Proposed Maximum Proposed Maximum Proposed Maximum Amount of
Securities to be Amount to be Offering Price Aggregate Registration
Registered Registered Per Share(1) Offering Price(1) Fee
- -------------------- ----------------- ---------------- ------------------ -------------
Class A Common Stock, 500,000
$.01 par value----- Shares $ 3.87 $ 1,935,000 $ 538
- -----------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of computing the registration fee pursuant to Rule
457, based on the average of the bid and ask prices on the Over-the-Counter
Bulletin Board on December 9, 1998.
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INCORPORATION BY REFERENCE
This Registration Statement on Form S-8 relates to the registration of
additional shares reserved for issuance under the registrant's 1994 Non-Employee
Directors Stock Option Plan. Pursuant to General Instruction E of Form S-8, the
contents of the Registration Statement on Form S-8 (Registration No. 333-11609)
filed with the Securities and Exchange Commission and effective on September 9,
1996 are hereby incorporated by reference herein.
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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 15th day of
December, 1998.
Wave Systems Corp.
By: /s/ Peter J. Sprague
-----------------------------------
Name: Peter J. Sprague
Title: Chairman and Chief Executive
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.
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Signature Title Date
/s/ Peter J. Sprague Chairman and Chief Executive December 15, 1998
------------------------------ Officer
Peter J. Sprague
/s/ Gerard T. Feeney Chief Financial Officer and December 15, 1998
------------------------------ Principal Accounting Officer
Gerard T. Feeney
/s/ Steven Sprague President, Chief Operating December 15, 1998
------------------------------ Officer and Director
Steven Sprague
/s/ John E. Bagalay, Jr. Director December 15, 1998
------------------------------
John E. Bagalay, Jr.
/s/ Philippe Bertin Director December 15, 1998
------------------------------
Philippe Bertin
/s/ George Gilder Director December 15, 1998
------------------------------
George Gilder
/s/ John E. McConnaughy, Jr. Director December 15, 1998
------------------------------
John E. McConnaughy, Jr.
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Index to Exhibits
Exhibit No. Description of Exhibit
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)
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EXHIBIT 5
December 15, 1998
Wave Systems Corp.
480 Pleasant Street
Lee, Massachusetts 01238
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 an additional 500,000 shares of Class A Common Stock issuable
upon the exercise of options granted or to be granted under the Company's 1994
Non-Employee Directors Stock Option Plan (the "Plan"), 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.
Based upon such examination, it is our opinion that the shares of Class A
Common Stock proposed to be sold by the Company, when sold pursuant to the Plan
and resolutions of the Board of Directors of the Company (and the Compensation
Committee thereof) authorizing the same, will be legally issued, fully paid and
nonassessable. In rendering this opinion, we have assumed that the exercise
price of the options will not be 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
----------------------------------------
Curtis, Mallet-Prevost, Colt & Mosle
EXHIBIT 23.1
Consent of Independent Auditors
The Board of Directors
Wave Systems Corp.:
We consent to the use of our report incorporated herein by reference. Such
report, dated March 27, 1998, contains an explanatory paragraph that states that
the Company has suffered recurring losses from operations since inception that
raise substantial doubt about its ability to continue as a going concern. The
consolidated financial statements do not include any adjustments that might
result from the outcome of that uncertainty.
/s/ KPMG Peat Marwick LLP
---------------------------
KPMG Peat Marwick LLP
Boston, Massachusetts
December 15, 1998
