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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
([X]) ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 1998
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from . . . . . . . . to . . . . . . . .
Commission File Number 0-24752
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)
413-243-1600
(Registrant's telephone number, including area code)
Securities registered pursuant
to Section 12(b) of the Act:
None
Securities registered pursuant
to Section 12(g) of the Act:
Class A Common Stock, $.01 par value
(Title of Class)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. YES |X| NO ___
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ ]
The aggregate market value of the shares of Common Stock of the
registrant held by non-affiliates as of March 5, 1999 was $338,387,574 (For
purposes of this calculation, the market value of a share of Class B Common
Stock was assumed to be the same as a share of Class A Common Stock, into which
it is convertible.)
As of March 5, 1999, there were 29,273,767 shares of the registrant's
Class A Common Stock and 2,770,991 shares of the registrant's Class B Common
Stock outstanding.
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EXCEPT FOR HISTORICAL INFORMATION CONTAINED HEREIN, THIS FORM 10-K CONTAINS
FORWARD-LOOKING STATEMENTS WITHIN THE MEANING OF THE U.S. SECURITIES LITIGATION
REFORM ACT OF 1995. THESE STATEMENTS INVOLVE KNOWN AND UNKNOWN RISKS AND
UNCERTAINTIES THAT MAY CAUSE THE COMPANY'S ACTUAL RESULTS OR OUTCOMES TO BE
MATERIALLY DIFFERENT FROM THOSE ANTICIPATED AND DISCUSSED HEREIN. FURTHER, THE
COMPANY OPERATES IN AN INDUSTRY SECTOR WHERE SECURITIES VALUES MAY BE VOLATILE
AND MAY BE INFLUENCED BY REGULATORY AND OTHER FACTORS BEYOND THE COMPANY'S
CONTROL. IMPORTANT FACTORS THAT THE COMPANY BELIEVES MIGHT CAUSE SUCH
DIFFERENCES ARE DISCUSSED IN THE CAUTIONARY STATEMENTS ACCOMPANYING THE
FORWARD-LOOKING STATEMENTS AND IN THE RISK FACTORS DETAILED IN THE COMPANY'S
OTHER FILINGS WITH THE COMMISSION DURING THE PAST 12 MONTHS. IN ASSESSING
FORWARD-LOOKING STATEMENTS CONTAINED HEREIN, READERS ARE URGED TO READ CAREFULLY
ALL RISK FACTORS AND CAUTIONARY STATEMENTS CONTAINED IN THIS FORM 10-K AND IN
THOSE OTHER FILINGS WITH THE COMMISSION.
<PAGE>
PART I
Item 1. Business
Overview
Wave Systems Corp. ("Wave" or the "Company") is creating a new
electronic commerce model for digital information and services based on
client-side security, transactions and trust. Since its inception in February of
1988, the Company has devoted substantially all of its efforts and resources to
research, feasibility studies, design, development, and market testing of a
distributed trust system that enables client based transactions, including the
metered usage of electronic content and services (the "Wave System"). Electronic
content and services refers to any data, graphic software, video or audio
sequence that can be digitally transmitted and/or stored. As its research and
development activities matured, the Company was able to devote increased
resources to creation of content distribution services, market development and
the application of the Wave System to end-user services.
The Company believes that the Wave System can fundamentally change
today's centralized e-commerce model by creating a distributed trust and
security system, where transactions are executed and recorded in the consumer's
devices, at the consumer's location. This means that electronic content and
services can be consumed with more efficient and flexible pricing, broader
distribution opportunities, greater protection against unauthorized usage and
secure, low-cost, and accurate data on the usage of the products and services.
The Wave System consists of an EMBedded Application Security SYstem
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("EMBASSY") in consumer devices that provide the basis for a multi-party trusted
system using both hardware and software. The EMBASSY is a programmable, low cost
"system within a system" that can perform independent transactions such as meter
content usage, store sensitive information such as identities and account
balances and run secure applications for access to services. The EMBASSY is an
open system based on secure smart card hardware technology that can be
integrated into PCs, peripherals, set top boxes or used as an independent
component. The WaveMeter application running in the EMBASSY allows transactions
to occur without the expense of a real-time network connection for every
transaction. The EMBASSY securely stores electronic funds and transaction
information about the usage of electronic content to be transmitted securely to
a central transaction processing center ("WaveNet") periodically. WaveNet
manages encryption and decryption keys, processes credit and usage charges,
automatically obtains credit authorization, calculates royalty distributions,
and can provide user and usage data to electronic content owners. The Wave
System is designed to be compatible with every existing content delivery system
such as CD-ROM, the Internet, and digital broadcast. PC OEMs, content providers
and services providers such as telecommunications companies have expressed
interest in the Wave System and the Company believes that once there is a broad
installed base of the EMBASSY, electronic content and service providers from
other market segments are likely to be attracted to the Wave System.
In order to achieve broad market acceptance of the Wave System, the
Company pursues strategic relationships with major personal computer
manufacturers and technology suppliers, and promotes the use of the EMBASSY to
electronic content owners, particularly developers and distributors of
entertainment, audio, broadcast and educational software. The Company believes
that the EMBASSY can be the foundation for a "client-side subscriber management
system" that is independent of the content or delivery network. This means that
content can be delivered on CD-ROM, data broadcast, broadband and other forms of
transmission.
The Company believes that the Wave System provides a powerful
merchandising interface for electronic content and services at the point of
purchase. This may increase the interest of consumers to sample electronic
content that they are considering purchasing. The Wave System provides the
consumer with enhanced control of their individual privacy and secure storage of
sensitive information. The Wave System facilitates the payment of royalties to
content providers and service partners while allowing both customized and broad,
inexpensive distribution to customers.
In 1998, the Company enhanced the Wave System to make it acceptable as
an open industry standard for a broad range of security and e-commerce functions
in end user-devices. Wave has been successful in attracting other companies to
port their applications and services to the Wave System and its EMBASSY
platform, which the Company believes will increase the value of the system to
potential deployment partners. These strategic relationships have generated what
the Company believes to be significant joint marketing benefits in our efforts
to promote the Wave System to OEMs and the content industry.
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During 1998 the Company established relationships with RSA Data
Security, NEC Technologies, Inc., Pollex Technology Ltd., Hewlett-Packard
Company's VerSecure division, Sun Microsystems, SMSC, ITE, IGST, Sarnoff Corp.,
Hauppauge Computer Systems and WavePhore. The Company also received a payment of
$4 million pursuant to a joint venture agreement with Internet Technology Group,
PLC ("ITG"), a United Kingdom company.
In 1999 the Company will seek to continue to expand its commitments
from additional hardware manufacturers, including personal computer
manufacturers, peripheral companies and companies involved in the commerce of
electronic content and services both in North America and overseas. The Company
also seeks to expand the role of the Wave System and EMBASSY as a general
security device in networks in order to provide new opportunities for the
creation of virtual private networks and services by telecommunications vendors
and Internet service providers.
Additionally, in 1996 the Company developed a production software
version of the WaveMeter application that offers a subset of the features of the
hardware version and has been implemented as part of the Company's Internet
commerce server (the "WaveMeter server"). The WaveMeter server enables content
owners to secure and sell their intellectual property from a web site. The
e-commerce services offered through the Wave Meter server do not require the
consumer or publisher to install any additional hardware or software.
Significant uncertainty currently exists with respect to the adequacy
of current funds to support the Company's activities. This uncertainty will
continue until a positive cash flow from operations can be achieved.
Additionally, the Company is uncertain as to the availability of financing from
other sources to fund any cash deficiencies.
In order to reduce these uncertainties, the Company is currently
evaluating additional financing options and may therefore elect to raise
capital, from time to time, through equity or debt financings in order to
capitalize on business opportunities and market conditions and to insure the
continued development of the Company's technology, products and services. In
January, 1999, the Company issued a convertible promissory note in aggregate
principal amount of $2 million, which was subsequently converted into Class A
common stock in March, 1999, in addition to and following the Company's
completion of an additional $23 million private placement with institutional,
strategic and accredited investors. There can, however, be no assurance that the
Company can raise additional financing in the future.
As of October 19, 1997, the Company became obligated to redeem for
approximately $465,000 all of the outstanding shares of the Series A Redeemable
Preferred Stock issued to a certain individual pursuant to the terms of the
Restated Certificate of Incorporation. As of December 31, 1998, the Company's
total obligation (principal plus interest) under the Series A redemption was
$493,201, and it continues to accrue dividends and interest. The Company has not
redeemed such shares as of March 30, 1999, nor has any demand for redemption
been made.
The Company presently has no material commitments for capital
expenditures. However, in order to bring the Wave System to market, the Company
anticipates spending additional amounts on contracting for software development,
licensing key technologies, and inventory items such as computer chips and
boards, additional hardware, and related materials. Such spending will vary
based on the Company's performance.
Effective from the close of trading on October 24, 1997 the Company was
delisted from The Nasdaq SmallCap Market. As a result, shares of the Company's
Class A Common Stock are now traded on the OTC Bulletin Board. Until October 3,
1997 the Company had been listed on The Nasdaq National Market. Because the
Company was unable to meet the minimum net tangible assets requirement of The
Nasdaq National Market, the Company was delisted from The Nasdaq National
Market. From October 3, 1997 to October 24, 1997, the Company was temporarily
listed on The Nasdaq SmallCap Market. Continued listing on The Nasdaq SmallCap
Market was dependent upon the Company meeting certain commercial objectives. The
Company was unable to meet these objectives within the prescribed time period.
The Company believes that not being listed on a national exchange or quotation
system will have a material adverse effect on the price and liquidity of its
securities and consequently its ability to raise capital in the future.
On January 29, 1999 the Company filed an application with the Listings
Qualifications Panel of the Nasdaq Stock Market, Inc., seeking to list on the
Nasdaq National Market. There can be no assurances that Nasdaq will approve the
application. As of March 30, 1999, Nasdaq has not issued its decision.
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The Company was incorporated in Delaware under the name Indata Corp. on
August 12, 1988. The Company changed its name to Cryptologics International,
Inc. on December 4, 1989. The Company further changed its name to Wave Systems
Corp. on January 22, 1993. The Company's principal executive offices are located
at 480 Pleasant Street, Lee, Massachusetts 01238 and the telephone number of the
Company is (413) 243-1600.
The Company is a development stage company and has realized minimal
operating revenues since its inception. At December 31, 1998 the Company had an
accumulated deficit of approximately $57.2 million. There can be no assurance
that the Company will be successful in achieving commercial acceptance of the
Wave System.
The Wave System
The Wave System is designed to create new revenue streams for owners of
electronic content by improving upon existing distribution systems for
electronic content. Using existing distribution systems such as CD-ROM and the
Internet, electronic content owners distribute their products to customers in an
encrypted or otherwise secured ("Wave-enabled") form so it can be offered for
sale through the EMBASSY E-Commerce System. Customers are then able to purchase
and access the electronic content on an as-desired basis. The Company believes
that the Wave System allows electronic content owners to deliver their products
to a larger market because the efficient and secure metering technology
facilitates greater flexibility in content distribution and pricing. The Company
believes that greater flexibility in electronic distribution and pricing makes
the Wave System particularly attractive to developers, distributors and
consumers of entertainment and educational software.
In addition, the programmable EMBASSY is able to support multiple
secure applications from a range of service providers, applications vendors, and
security companies. The Company seeks to exploit this multi-application
capability to create new sources of revenue through hosting secure applications
and creating additional services based on the EMBASSY distributed trust model.
The Company believes that its expansion of the EMBASSY has provided a source of
increased interest in Wave's technology as a general-purpose solution for
adoption by a wide range of companies in their platforms and as a secure
delivery mechanism.
The Wave System consists of the EMBASSY E-Commerce System, the
WaveMeter application, a subsystem that records and communicates the usage of
electronic content, and WaveNet, a central transaction processing network. The
EMBASSY controls the loading and execution of multiple secure applications. The
WaveMeter controls and monitors the customer's access to encrypted electronic
information and software. Because the Wave System uses asynchronous
communication, it is well suited to low-cost processing of micro, rental and
rent-to-own transactions. The Company has completed a prototype incorporating
the rental and rent-to-own functionality into the Wave System using Wave's
current chip technology. This is currently being integrated into a WinTV tuner
card from Hauppauge Computer Systems. This product is planned for introduction
into the market in 1999. With this version of the WaveMeter, application
transactions are executed locally against a source of funds stored in the
WaveMeter secure memory. The WaveMeter retains pricing and licensing
information, downloaded from WaveNet, for use in the execution of these
transactions. Transactions are securely stored in the usage log of the WaveMeter
for eventual reporting to WaveNet. The WaveMeters and WaveNet communicate using
Wave's secure communications protocol.
WaveNet is composed of the WaveNet Transaction Processing System
("TXP") and the WaveNet Information Clearing House ("ICH"). TXP acts as the
principal interface with the EMBASSY. Every EMBASSY-equipped device will contact
TXP on a periodic basis. During this secure communication, all stored event
information, such as purchase logs, are uploaded to TXP, additional credit may
be requested, pending events are delivered to the device, and a routine audit
check is performed. There may be a number of TXP systems to distribute access
around the globe. TXP routes all event logs to ICH where they are processed
against Wave's royalty contracts. ICH calculates royalties due to each partner
and handles the billing and reporting services, ensuring that all Wave partners
are properly compensated. WaveNet is presently in operation.
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<PAGE>
The Wave System is installed into the customer's PC or integrated into
an attached peripheral device. It is based on a semiconductor device that uses
secure certified integrated circuit technology to store decryption keys, credit
information, and usage data. Presently, the WaveMeter based on Wave's own
silicon chip is packaged on a half-size ISA board with a battery and a clock and
can be installed in the ISA slot of a PC. In 1999 Wave plans to deliver a new
version of the EMBASSY hardware with a Universal Serial Bus interface (USB)
which should easily integrated into a broad range of products including separate
dongles for portable EMBASSY devices. In 1996 the Company also developed a
production software version of the WaveMeter application which has been
implemented as a component of the WaveMeter server. The use of the software
version of the WaveMeter is compatible with the use of the hardware version of
the WaveMeter application.
The Company believes that the hardware version of the Wave System with
EMBASSY is the most secure form of content licensing management and metering
technology available today. The hardware and software of the EMBASSY contains a
wide range of security features to strengthen the trusted client capabilities in
user devices. Tampering with the EMBASSY or Wave System applications results in
automatically initiated system lockouts, and is readily detected by both the
EMBASSY and WaveNet. The encryption keys are loaded at the time of manufacture
and are unique and specific to each EMBASSY device. Every piece of electronic
content is protected using a unique key. Services are controlled by secure
applications running in the EMBASSY. Wave believes it has designed a security
architecture where the value of breaking an individual system to ascertain the
keys is low since there are no common keys that allow system-wide use.
Wave supplies the tools that developers need to build and successfully
supply applications to end-users. Electronic content must be Wave-enabled to be
available to end users on the Wave System. A data preparation tool kit
structures data packages, which are individual elements of electronic content
that are uniquely identified, encrypted, priced and formatted to use within the
Wave System. Once Wave-enabled, each data package can be delivered to the end
user in many electronic forms. Currently, the two primary mechanisms of delivery
of electronic content to the end user are the Internet and CD-ROM. The Wave
System, however, will work with point-to-multi-point data broadcasting via
satellite, terrestrial TV, FM sideband, magnetic media, cable modem, DVD and
broadband.
Markets and Business Strategy
The Company's long-term strategy is to achieve broad market acceptance
of the Wave System as a distributed trust platform for commerce performed in
user devices. To achieve this goal the Company pursues strategic relationships
with hardware manufacturers and companies involved in the development of
commerce in electronic content and services. In addition, the Company believes
that, since the Wave System permits greater flexibility in pricing and
distribution of electronic content, it is particularly well-suited for
merchandising consumer content, entertainment and educational software.
Therefore the Company is vigorously targeting this market segment as a means of
rapidly achieving the broad installed base of the Wave System. The Company
believes that once there is a broad installed base of the Wave System and
EMBASSY, electronic content owners from other market segments are likely to be
attracted to the Wave System. However, there can be no assurances that the Wave
System will achieve any significant market acceptance.
The Company has focused on forming agreements with strategic partners
that will help the Company promote the broad-based acceptance of the Wave System
as a platform for commerce in electronic content. Wave is currently in
discussion with original equipment manufacturers regarding the incorporation of
the Wave System and EMBASSY into their products. Wave has also focused on
pursuing strategic relationships with companies seeking to distribute electronic
content via the Internet. The compatibility of the Wave System with the Web has
provided the Company with a product that has already attracted the attention of
leaders in the development of electronic commerce solutions and particularly
commerce in electronic content. Wave will continue to focus on developing other
strategic relationships to seek to achieve the broad acceptance of the Wave
System as a platform for electronic commerce.
Wave has focused on promoting the acceptance of the Wave System by
electronic content owners. The initial target market is entertainment and
educational software developers and distributors. Wave believes
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that the Wave System will provide the home consumer with a new way of acquiring
interactive content and can offer electronic content developers and distributors
benefits similar to those provided by video rental in the film industry. The
Company has invested heavily in developing relationships with entertainment and
educational software providers. Wave today has over 50 titles functional for
demonstration and is actively preparing others to be launched in 1999.
Competition
The Company operates in a highly competitive and fragmented environment
that is characterized by rapidly evolving technology. Many of the Company's
competitors and potential competitors have substantially greater financial and
technical resources than the Company. Also, many current and potential
competitors have greater name recognition and more extensive customer bases that
could be leveraged, thereby gaining market share or product acceptance to the
Company's detriment. The Wave System competes with conventional information
delivery systems, such as on-line services, subscription services on CD-ROM, and
services on the Internet. However, the Company believes that its metering
capability is competitive with other electronic content delivery systems in a
number of applications due to its superior protection against unauthorized
usage, accurate and detailed information on content usage, and transparent
operation. Further, the Company believes that it will be competitive with
existing distribution systems, including traditional retail outlets for
entertainment and educational software, due to its ability to offer these
innovative merchandising mechanisms.
The Company is aware of other metering systems that compete directly
with Wave, and other current and evolving technologies that provide some of the
functionality of the Wave System. There are other companies that have developed
or are in the process of developing technologies that are, or in the future may
be, the basis for competitive products in the field of electronic content
distribution. Some of those technologies may have an entirely different approach
or means of accomplishing the desired effects of the products being developed by
the Company. There can be no assurance that either existing or new competitors
will not develop products that are superior to or that otherwise achieve greater
market acceptance than the Company's products.
The Wave System is subject to competition from producers of
hardware-based controllers such as dongles and software unlocking systems. The
Company will compete with well-established producers of dongle-based software
unlocking systems such as Rainbow Technologies, Inc. The Company also competes
with developers of software unlocking systems such as Portland Software. Wave
Systems also provides basic security services that compete with companies such
as QPass and PrivaSeek in providing electronic wallets and certain e-commerce
capabilities. The Company believes that the Wave System is superior to existing
hardware-based and software unlocking systems in several ways. These systems
primarily operate as "on/off switches" to control the use of electronic content
and services, but are very limited in their ability to measure and record usage
information. The Company believes that the Wave System offers superior
protection from unauthorized usage, low operating costs (because it does not
require constant communication with and authorization from a centralized
processor), and fast operation that is convenient and essentially transparent to
the end user. Both hardware controllers and software unlocking systems offer
only part of the functionality of the Wave System. Wave Systems distributed
trust model also provides a superior solution for broadcast and multicasting of
data. Distinct from the existing software unlocking systems, WaveNet provides
centralized back-office support to owners of electronic content.
Many large information industry players are forming alliances and
attempting to capitalize on the information delivery options offered by the
Internet. In electronic content delivery via the Internet, the Wave System
competes with electronic commerce payment technologies developed and offered by
IBM Micropayment Service, Broadvision Inc., Connect, Inc., CyberCash, Inc., and
Open Market, Inc. However, the Company believes that many of the electronic
commerce payment technologies may be used as acceptable currency through the
Wave System and may be complementary to, rather than competitive with, the Wave
System. The Company is also aware of other companies, such as TestDrive
Corporation, Release Software Corporation and InterTrust that provide electronic
content encryption and license management functionality for transmission of
electronic content over the Internet. The Company believes that the Wave System
is superior to currently available electronic content encryption technologies
due to the high level of persistent security and usage reporting capabilities of
the WaveMeter.
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The Company believes that the interoperability of the Wave System with
currently available and developing distribution media makes the Wave System
attractive to both distributors and consumers of electronic content. A consumer
with an installed EMBASSY System will be able to purchase Wave-enabled content
from sources on CD-ROM and/or the Internet, as well as from sources distributing
electronic content on other developing media such as broadband. In addition,
with the incorporation of the rental and rent-to-own functionality, the Wave
System will offer greater merchandising flexibility than is possible using
currently available electronic commerce solutions. There can be no assurance
that the Wave System will achieve the broad-based acceptance necessary to make
the system a viable competitor with currently existing and developing electronic
commerce solutions.
International Market
The Company's technologies are controlled under various United States
export control laws and regulations and will require export licenses for certain
exports outside of the United States and Canada. The Company has received full
export license from the U.S. Department of Commerce for the sale and export of
the Company's single-key DES products. The Company has also received an export
license for its triple-key data encryption standard products under the
provisions of a License Exception KMI, granted by the Bureau of Export
Administration of the U.S. Department of Commerce. There can be no assurance
that the Company will have patent protection or that it will not infringe
patents of third parties in foreign jurisdictions. Because electronic monitoring
and the transmission of audited usage and financial information on end users or
payment instructions may be subject to varying statutory or regulatory controls
in foreign jurisdictions, there can be no assurance that the use of all portions
of the Wave System will be permitted in any particular foreign jurisdiction.
Exportable EMBASSY Systems with Strong Cryptography
Wave Systems formed a strategic alliance in 1998 with HP VerSecure in
the development of the trusted client architecture that is the basis of the
EMBASSY E-Commerce System. HP VerSecure provides a security management framework
for EMBASSY that controls the cryptography functions of the device and
application uses of encryption. The primary function of the VerSecure system is
to provide a policy management system that enables the EMBASSY hardware to have
strong cryptography features that can be selectively enabled or disabled in
order to comply with various nations' strength-of-cryptography regulations. This
capability is intended to allow PC OEMs to build a single, consistent product
which can be shipped worldwide, regardless of local cryptography restrictions.
Proprietary Rights and Licenses and Intellectual Property
The Company's success depends, in part, on its ability to enjoy or
obtain protection for its products and technologies under United States and
foreign patent laws, copyright laws and other intellectual property laws, to
preserve its trade secrets and to operate without infringing the proprietary
rights of third parties. There can be no assurance that any issued patent owned
or licensed by the Company affords adequate protection to the Company or will
not be challenged, invalidated, infringed or circumvented. Furthermore, there
can be no assurance that the Company's activities will not infringe patents
owned by others.
In addition, the Company may be required to obtain licenses to patents
or other proprietary rights of third parties. No assurance can be given that any
licenses required under any such patents or proprietary rights would be made
available on terms acceptable to the Company, if at all. If the Company is
required to and does not obtain such licenses it would be prevented from, or
encounter delays in the development and marketing of, its products and
technologies while it attempted to design around such patents or other rights
and there can be no assurance that such attempts would be successful. Failure to
obtain such licenses or to design around such patents or other rights would have
a material adverse effect on the Company.
The Company holds non-exclusive patent rights relating to the metered
use of encrypted data in local memory under a limited license (the "License
Agreement") from Titan Corporation ("Titan") to a patent (the "Licensed Patent")
jointly held by Titan and a third party. This License Agreement restricts Wave
from metering information produced and used solely by a government entity or
producing products that meter this information. In addition, the License
Agreement is subject to the rights of the joint owner of the Licensed
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Patent, who has the right to exploit, or to license to third parties, the
Licensed Patent, including in a manner competitive with the Company. There can
be no assurance that the joint owner of the Licensed Patent will not compete
with the Company or license the Licensed Patent to a competitor of the Company,
or that the Company's business will not exceed the scope of the License
Agreement. Pursuant to the License Agreement, the Company is obligated to pay
certain royalties to Titan. Pursuant to the License Agreement, the Company has
granted to Titan the exclusive right to use the Company's patents for products
distributed to government entities. On February 28, 1997 the Company and Titan
executed an addendum to the License Agreement whereby the Company received a
sole license to the Licensed Patent to develop and distribute products to the
in-home consumer microcomputer market segment. Under this addendum to the
License Agreement, Titan waived any and all defaults by Wave under the License
Agreement occurring prior to February 28, 1997.
The Company is aware of four United States patents (the "Third Party
Patents") each having some claims that are similar to some of the claims in the
Licensed Patent. Based upon information currently known to the Company, some of
the claims of both the Licensed Patent and the Third Party Patents cover certain
material aspects of the Company's technology. Therefore, the commercialization
of the Company's technology would be subject to the rights of the holder of the
Third Party Patents unless the Company is able to invalidate or license such
claims. Also, the holder of the Third Party Patents or a licensee of the Third
Party Patents could seek to invalidate such claims of the Licensed Patent and
therefore be able to commercialize a technology similar to the Company's
technology. In either case, in order to invalidate the other party's patent
rights, the party claiming invalidity might need to prove that it invented the
claimed subject matter prior to the other party. There can be no assurance that
the Company would be successful in invalidating such claims of the Third Party
Patents or that the holder of the Third Party Patents or a licensee of the Third
Party Patents would not be successful in invalidating such claims of the
Licensed Patent. There also can be no assurance that the Third Party Patents
could be proven to be invalid on any other basis. Any proceeding involving the
validity of the Licensed Patent and the Third Party Patents would be protracted
and costly. In any suit contesting the validity of a patent, the patent being
contested would be entitled to a presumption of validity and the contesting
party would be required to demonstrate invalidity of such patent by clear and
convincing evidence.
If the Third Party Patents are not invalid insofar as their claims
relate to the Company's technology, then the Company would require a license
from the holder of the Third Party Patents to commercialize its technology and
make, use, or sell products or practice methods, or license others to sell
products or use methods, utilizing the technology in the United States. Due to
the uncertainty as to whether the Third Party Patents could be proved to be
invalid, the Company has engaged in preliminary negotiations with the holder of
the Third Party Patents to obtain a license under the Third Party Patents. The
negotiations have so far not produced any agreement and there can be no
assurance that a license will be obtainable on acceptable terms, if at all. The
inability to obtain a license, if needed, on commercially reasonable terms would
have a material adverse effect on the Company's business and its future
operations.
The Company has been issued three United States patents relating to
encryption and to the Company's proprietary WaveMeter(R) and WaveNet(R)
technology. The Company also has one patent pending before the United States
Patent Office and three corresponding foreign patent applications pending before
the European Patent Office (collectively, the "Wave Patents"). The Wave Patents
are material to protecting certain of the Company's technology. The Company's
rights to the Wave Patent derive from a license, amended and restated in
February 1994, from Mr. Peter J. Sprague, Chairman and Chief Executive Officer
of the Company, of his rights in the Wave Patents (the "Amended License
Agreement"), and several agreements with former officers of the Company
regarding their rights in the Wave Patents. The Amended License Agreement
provides for royalty payments to be made to Mr. Peter J. Sprague and Dr. John R.
Michener, a former officer of the Company, in the aggregate amount of two
percent of gross revenues less certain adjustments as defined in the Amended
License Agreement. The royalty payment is to be apportioned 75 percent to Mr.
Peter J. Sprague and 25 percent to Dr. John R. Michener. Payment of royalties is
secured by a security interest in and to the Wave Patents. The Company believes
that the agreements as a whole provide it with exclusive rights under the Wave
Patents. There can be no assurance that the Company will enjoy exclusive rights
to the Wave Patents under such agreements.
-8-
<PAGE>
On January 26, 1996, the Company received notice from E-Data
Corporation (formerly Interactive Gift Express, Inc.), claiming that the
Company's practice of its technology infringes U.S. and foreign patents owned by
E-Data Corporation, and offering to license such patents to the Company. The
Company is currently obtaining information needed to investigate the merits of
this claim. The Company believes that there is a viable argument for
non-infringement. The patents owned by E-Data Corporation are currently being
litigated by third parties. The Company is not involved in these proceedings.
The Company relies on trade secrets and proprietary know-how, which it
protects, in part, by confidentiality agreements with its employees and contract
partners. However, there can be no assurance that the Company's confidentiality
agreements will not be breached or that the Company would have adequate remedies
for any breach. There can be no assurance that the Company's trade secrets will
not otherwise become known or be independently discovered by competitors.
The Company also relies on copyright to prevent the unauthorized
duplication of its software and hardware products. The Company has and will
continue to protect its software and its copyright interest therein through
agreements with its consultants. There can be no assurance that the copyright
laws will adequately protect the Company's technology.
The Company has registered trademark and service mark registrations
with the United States Patent and Trademark Office for the marks WaveMeter(R)
and WaveNet(R), Great Stuff Network, Second Shift (the Wave juggler logo),
WaveCommerce, Wave Interactive Network, WINPublish, WINPurchase and CablePC. The
Company has submitted trademark registrations for EMBASSY, EMBASSY System and
EMBASSY E-Commerce System and intends to apply for additional name and logo
marks in the United States and foreign jurisdictions as appropriate. No
assurance can be given that federal registration of any of these trademarks in
the United States will be granted. The Company has abandoned its prior
applications for DataWave, InfoWave, and WaveTrac.
Research and Development
The Wave System incorporates semiconductor, encryption/decryption,
software transaction processing and other technologies in which the Company has
made a substantial investment in research and development. The Company expects
that it will be required to continue to make substantial investments in the
design of the Wave System including EMBASSY, the WaveMeter, WaveNet and software
interfaces. For the years ended December 31, 1998, 1997, and 1996, the Company
expended approximately $3.5 million, $2.1 million and $3.3 million respectively,
on research and development activities (which amounts include the value of stock
issued). In addition to its ongoing research and development activities, in July
1997 the Company licensed technology and in-process research and development
from Aladdin Knowledge Systems for cash and warrants valued at $3.9 million.
From its inception in February 1988 through December 1998, the Company expended
approximately $18.3 million on research and development activities.
The success of the Wave System depends to a large extent on the
Company's ability to adapt the Wave System for use with various methods for the
distribution of electronic content, the ability of the Wave technology to
interface with various platform environments, and the ability of the Wave System
to work in many application environments. Incorporation of Aladdin's Hasp
technology furthered these efforts and illustrates the adaptive capabilities of
the Wave System. The Company believes that a significant portion of its future
research and development expenditures will be used to adapt the Wave System
accordingly.
The Company will also continue to expend a significant amount of
resources on the development of new iterations of the EMBASSY and the WaveMeter
application. The Company believes that by providing various means of linking the
EMBASSY to the customer's computer or network, the Company will be more likely
to achieve broad acceptance of the Wave System. The Company is currently
developing other forms of the EMBASSY to target other market needs.
Wave is now focusing increased resources on developing the operational
infrastructure of the Company. Greater emphasis is placed on developing internal
production and fulfillment systems and marketing infrastructure to distribute
the Wave System. The Company will also increase the resources available to
WaveNet to adapt to
-9-
<PAGE>
changing market requirements. The Company plans to expand WaveNet to handle more
end users, to implement more sophisticated pricing methodologies and to add
greater financial system flexibility.
Employees
As of December 31, 1998, the Company employed 80 full-time employees,
38 of whom were involved in sales, marketing and administration and 42 of whom
were involved in research and development. As of December 31, 1998, the Company
employed 9 full-time consultants, which are reflected in the foregoing figures.
The Company believes its employee relations are satisfactory.
Item 2. Properties
The Company leases a 10,748 square foot facility for its executive
offices and to house the WaveNet installation, administration, and customer
support operations in Lee, Massachusetts at a monthly rent of $5,598 with a
monthly charge of $2,123 for common costs. The Lee, Massachusetts lease will
expire during February 2001. The Company leases offices in New York, New York,
at a monthly rent of $7,433. The lease is scheduled to expire in June 1999. The
Company leases a 6,400 square foot facility in Princeton, New Jersey at a
monthly base rent of $4,214 with a monthly payment for taxes, insurance and
maintenance reimbursements and improvements which currently totals approximately
$1,653 per month. This lease is scheduled to expire during January 2001. The
Company's principal research and development activities are conducted at the
Princeton facility. The Company leases a 2,728 square foot facility in San Jose,
California for $6,138 per month. The San Jose, California lease will expire
during December 2001.
Item 3. Legal Proceedings
Not applicable.
Item 4. Submission of Matters to a Vote of Security Holders
On November 9, 1998, the Company held its Annual Meeting of
shareholders. At the Annual Meeting, the shareholders voted on the following
matters:
1. The election of six directors to hold office until the next
Annual Meeting and until their successors are duly elected and qualified. The
previous board was re-elected with the following results:
<TABLE>
<CAPTION>
DIRECTOR FOR AGAINST
- - -------- --- -------
<S> <C> <C>
Peter J. Sprague 25,150,986 307,201
John E. Bagalay, Jr. 25,144,086 314,101
Philippe Bertin 24,994,643 463,544
George Gilder 25,151,623 306,364
John E. McConnaughy, Jr. 25,150,886 307,301
Steven Sprague 25,148,686 309.501
</TABLE>
2. A proposal to amend the Restated Certificate of Incorporation of the
Company to increase the number of Class A Common Stock that the Company is
authorized to issue from 50 million to 75 million shares. The proposal passed,
with 24,236,103 votes for, 1,079,758 votes against and 151,326 abstentions.
3. A proposal to amend the Company's 1994 Employee Stock Option Plan to
(i) increase the number of shares of Class A Common Stock reserved for issuance
thereunder by 5,000,000 shares, and (ii) increase the maximum number of shares
of the Company's Class A Common Stock covered by options that may
-10-
<PAGE>
be granted to any single individual in any fiscal year from 100,000 shares to
500,000 shares. The proposal passed, with 7,859,012 votes for, 1,711,250 votes
against and 375,777 abstentions.
4. A proposal to amend the Company's 1994 Non-Employee Directors Stock
Option Plan to (i) increase the number of shares of Class A Common Stock
reserved for issuance thereunder by 500,000 shares, and (ii) provide that
options issued to non-employee directors under such plan vest on the day
following the grant. The proposal passed, with 8,696,127 votes for, 1,571,551
votes against and 447,355 abstentions.
5. A proposal to ratify the appointment of KPMG Peat Marwick LLP as the
Company's independent auditors for the year ending December 31, 1998. The
proposal passed, with 22,532,604 votes for, 44,794 votes against and 502,259
abstentions.
PART II
Item 5. Market for Registrant's Common Equity and Related Stockholder
Matters
The Company made its initial public offering on August 31, 1994 at a
price to the public of $5.00 per share. Until October 3, 1997, the Company's
Class A Common Stock had been traded on The Nasdaq National Market tier of The
Nasdaq Stock Market. From October 3, 1997 to October 24, 1997 the Company's
Class A Common Stock was traded on The Nasdaq SmallCap Market. The Company's
Class A Common Stock now trades on The OTC Bulletin Board under the symbol:
WAVX. Except as provided below, the following table sets forth, for the periods
indicated, the high and low closing sales prices per share for the Company's
Class A Common Stock as reported by The Nasdaq National Market. For the period
from October 24, 1997 to December 31, 1997 the following table sets forth the
high and low bid quotations for the Company's Class A Common Stock obtained from
Bloomberg Information Services, Inc. Such quotations reflect inter-dealer
prices, without retail mark-up, mark-down or commission, and may not necessarily
represent actual transactions. There is no established trading market for the
Company's Class B Common Stock.
<TABLE>
<CAPTION>
High Low
---- ---
<S> <C> <C>
Year Ended December 31, 1998
First Quarter (January 1, 1998-March 31, 1998) $1.68 $0.97
Second Quarter (April 1, 1998-June 30, 1998) 4.75 1.56
Third Quarter (July 1, 1998-September 30, 1998) 4.56 2.25
Fourth Quarter (October 1, 1998-December 31, 1998) 5.63 2.44
High Low
---- ---
Year Ended December 31, 1997
First Quarter (January 1, 1997-March 31, 1997) $3.00 1.56
Second Quarter (April 1, 1997-June 30, 1997) 1.81 1.25
Third Quarter (July 1, 1997-September 30, 1997) 2.00 0.94
Fourth Quarter (October 1, 1997-October 23, 1997) 1.94 1.06
Fourth Quarter (October 24, 1997-December 31, 1997) 2.00 0.63
</TABLE>
As of March 5, 1999, there were approximately 394 holders of the
Company's Class A Common Stock. As of such date, there were 57 holders of the
Company's Class B Common Stock.
The Company has never declared or paid any cash dividends on its
capital stock. The Company currently anticipates that it will retain all future
earnings, if any, to fund the development and growth of its business and does
not anticipate paying any cash dividends on its Common Stock in the foreseeable
future.
Recent Sales of Unregistered Securities
-11-
<PAGE>
On March 30, 1999 the Company sold 181,818 shares of its Class A Common
Stock, at a price of $11.00 per share, in satisfaction of the then outstanding
principal amount of $2,000,000 on a note it had issued to Carriage Partners,
LLC.
On March 23, 1999 the Company sold 2,090,954 shares of it Class A
Common Stock, at a price of $11.00 per share, for an aggregate purchase price of
$23,000,494. The shares were sold to a group of accredited investors pursuant to
Regulation D promulgated under the Act. Pacific Growth Equities, Inc.
acted as sole placement agent for the private placement, receiving a commission
of approximately $1.2 million.
On January 26, 1999 the Company issued warrants to purchase 275,000
shares of its Class A Common Stock at an exercise price of $4.00 per share,
exercisable until January 26, 2004, (the "Warrants") to one (1) accredited
investor. If, over any sixty (60) consecutive day period, the average of the
averaged daily high and low prices of the Class A Common Stock, as reported by
Bloomberg Information Services, Inc., exceeds seven dollars ($7.00), the Company
may force the conversion of the Warrants. The Warrants were issued as
consideration for a $2,000,000 promissory note, bearing no interest, due January
26, 2002.
On March 6, 1998 the Company issued 150,000 shares of newly created
Series G Convertible Preferred Stock, par value $.01 ("Series G Convertible
Preferred Stock") at a price of $20 per share, for an aggregate purchase price
of $3,000,000. The shares were sold to one (1) accredited investor pursuant to
Regulation D promulgated under the Act. The Series G Convertible Preferred Stock
is convertible into Class A Common Stock, par value $.01 ("Class A Common
Stock") at an effective conversion price of the lower of (a) $1.12 and (b) 80%
of the average of the five (5) lowest trading prices of the Class A Common Stock
during (x) a day on which the Class A Common Stock is traded on The Nasdaq
National Market or The Nasdaq SmallCap Market or principal national securities
exchange or market on which the Class A Common Stock has been listed, or (y) if
the Class A Common Stock is not listed on The Nasdaq National Market or The
Nasdaq SmallCap Market or any stock exchange or market, a day on which the Class
A Common Stock is traded in the over-the-counter market, as reported by the OTC
Bulletin Board, or (z) if the Class A Common Stock is not quoted on the OTC
Bulletin Board, a day on which the Class A Common Stock is quoted in the
over-the-counter market as reported by the National Quotation Bureau
Incorporated (or any similar organization or agency succeeding its functions of
reporting prices) ("Trading Days"), as reported by Bloomberg Information
Services, Inc. during the ten (10) Trading Days immediately preceding the
Conversion Date, as defined in the Certificate of Designation of the Series G
Convertible Preferred Stock. In addition to the Series G Convertible Preferred
Stock, the Company also issued warrants to purchase a total of 225,000 shares of
Class A Common Stock at an exercise price of $1.38 per share, exerciseable until
October 9, 2002. As of February 18, 1999, all of the shares of the Series G
Convertible Preferred Stock have been converted into Class A Common Stock.
On October 9, 1997 the Company issued 112,500 shares of newly created
Series F Convertible Preferred Stock, par value $.01 ("Series F Convertible
Preferred Stock"), at a price of $20 per share, for an aggregate purchase price
of $2,250,000. The shares were sold to one (1) accredited investor pursuant to
Regulation D promulgated under the Act. The Series F Convertible Preferred Stock
is convertible into the Class A Common Stock at an effective conversion price of
the lower of (a) $1.05 and (b) 80% of the average of the five (5) lowest trading
prices of the Class A Common Stock during (x) a day on which the Class A Common
Stock is traded on The Nasdaq National Market or The Nasdaq SmallCap Market or
principal national securities exchange or market on which the Class A Common
Stock has been listed, or (y) if the Class A Common Stock is not listed on The
Nasdaq National Market or The Nasdaq SmallCap Market or any stock exchange or
market, a day on which the Class A Common Stock is traded in the
over-the-counter market, as reported by the OTC Bulletin Board, or (z) if the
Class A Common Stock is not quoted on the OTC Bulletin Board, a day on which the
Class A Common Stock is quoted in the over-the-counter market as reported by the
National Quotation Bureau Incorporated (or any similar organization or agency
succeeding its functions of reporting prices) ("Trading Days"), as reported by
Bloomberg Information Services, Inc. during the ten (10) Trading Days
immediately preceding the Conversion Date, as defined in the Certificate of
Designation of the Series F Convertible Preferred Stock. In addition to the
Series F Convertible Preferred Stock, the Company also issued warrants to
purchase a total of 168,750 shares of Class A Common Stock at an exercise price
of $1.26 per share, exerciseable until October 9, 2002. As of December 31, 1997,
all of the shares of the Series F Preferred stock have been converted into Class
A Common Stock
-12-
<PAGE>
On September 16, 1997, the Company issued 800,000 shares of the
Company's Class A Common Stock, and warrants to purchase 160,000 shares of Class
A Common Stock, which may be exercised at an exercise price equal to $1.00, for
an aggregate purchase price of $800,000 pursuant to Regulation D promulgated
under the Securities Act of 1933, as amended (the "Act"), to six (6) accredited
investors.
On May 30, 1997 the Company issued 80,000 shares of newly created
Series D Convertible Preferred Stock, at a price of $20 per share, for an
aggregate of $1,600,000. The shares were sold to one (1) accredited investor
pursuant to Regulation D promulgated under the Act. The Series D Convertible
Preferred Stock is convertible into the Class A Common Stock of the Company at
an effective conversion price of the lower of (i) $1.35, or (ii) 80% of the
average closing bid price on the Nasdaq National Market System of the Company's
Class A Common Stock for the five (5) trading days immediately preceding the
Date of Conversion, defined in the Certificate of Designation of the Series D
Convertible Preferred Stock. In addition to the Series D Convertible Preferred
Stock, the Company also issued warrants to purchase a total of 120,000 shares of
Class A Common Stock at an exercise price of $1.62 per share, exercisable until
May 30, 2002. As of December 31, 1997, all of the shares of the Series D
Preferred Stock have been converted into Class A Common Stock.
-13-
<PAGE>
Item 6. Selected Financial Data
Statement of Operations Data
<PAGE>
<TABLE>
<CAPTION>
Period from
February 12,
1988
(inception)
through
Year ended December 31 December 31
-------------------------------------------------------------------------------- ------------
1998 1997 1996 1995 1994 1998
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C>
Net Revenues $ 10,193 $ 10,712 $ 1,458 $ - $ $ 22,363
------------ ------------ ------------ ------------ ------------ ------------
Operating expenses:
Selling, general and
administrative------ 9,874,166 7,983,151 5,560,620 4,080,185 2,432,283 37,310,672
Write-off of Goodwill - 769,886 - - - 769,886
Aladdin Technology
License Expense----- - 3,889,000 - - - 3,889,000
Research and
development--------- 3,508,968 2,146,127 3,309,022 3,324,735 1,761,366 18,254,781
------------ ------------ ------------ ------------ ------------ ------------
13,383,134 14,788,164 8,869,642 7,404,920 4,193,649 60,224,339
------------ ------------ ------------ ------------ ------------ ------------
Other income (expense):
Technology License
Fee----------------- 2,750,000 1,000,000 - - - 3,750,000
Technology Warrant Cost (1,100,000) - - - - (1,100,000)
Net interest and other
income (expense)---- ( 173,003) 184,369 572,054 (77,852) 331,569
------------ ------------ ------------ ------------ ------------ ------------
(120,342)
Net loss------------- ( 11,895,944 ) (13,897,794) (8,683,815) (6,832,866) (4,271,501) ( 57,220,407)
Accrued dividends on
preferred stock----- 108,863 809,982 199,614 40,600 39,484 1,243,393
------------ ------------ ------------ ------------ ------------ ------------
Assured incremental
yield--------------- 750,000 1,673,000 670,965 - - 3,093,965
------------ ------------ ------------ ------------ ------------ ------------
Net loss to common
stockholders-------- $(12,754,807) $(16,380,776) $(9,554,394) $(6,873,466) $(4,310,985) $(61,557,765)
============= ============= ============ =========== =========== =============
Weighted average
number of common
shares outstanding
during the period--- 29,299,844 20,943,748 14,956,584 13,794,373 10,503,621 11,570,172
Loss per common share
$(.44) $(.78) $(.64) $(.50) $(.41) $(5.32)
============= ============= ============ ============ =========== ============
</TABLE>
-14-
<PAGE>
Balance Sheet Data
<TABLE>
<CAPTION>
Year ended December 31
-------------------------------------------------------------------------------------
1998 1997 1996 1995 1994
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Working capital
(deficiency)--------- $ (3,778,895) $ (669,041) $ 3,197,519 $ 5,458,512 $ 12,463,502
Total assets------------ 2,057,812 1,678,213 6,237,219 7,754,042 13,766,864
Current liabilities----- 4,840,989 1,949,886 937,163 1,210,778 867,145
Long-term liabilities--- - 522,124 465,500 - -
Series A Cumulative
Redeemable Preferred
Stock---------------- 493,201 471,601 432,334 390,534 349,934
Series B Cumulative
Convertible Preferred
Stock---------------- - - 195,520 - -
Series C Cumulative
Convertible Preferred
Stock---------------- - - 2,647,742 - -
Deficit accumulated during
the development stage
(57,220,407) (45,324,463) (31,426,669) (22,742,854) (15,909,988)
------------ ------------ ------------ ------------ ------------
Total stockholders'
equity (deficiency)-- $ (3,276,378) $ (743,274) $ 1,558,960 $ 6,152,730 $ 12,549,785
=============== ============== ============ ============= ============
</TABLE>
Item 7. Management's Discussion and Analysis of Financial Condition
and Results of Operations
Overview
Wave Systems Corp. ("Wave" or the "Company") is creating a new
electronic commerce model for digital information and services based on
client-side security, transactions and trust. Since its inception in February of
1988, the Company has devoted substantially all of its efforts and resources to
research, feasibility studies, design, development, and market testing of a
distributed trust system that enables client based transactions, including the
metered usage of electronic content and services (the "Wave System"). Electronic
content and services refers to any data, graphic software, video or audio
sequence that can be digitally transmitted and/or stored. As its research and
development activities matured, the Company was able to devote increased
resources to creation of content distribution services, market development and
the application of the Wave System to end-user services. During 1998 the Company
established relationships with RSA Data Security, NEC Technologies, Inc., Pollex
Technology Ltd., Hewlett-Packard Company's VerSecure division, Sun Microsystems,
SMSC, ITE, IGST, Sarnoff Corp., Hauppauge Computer Systems and WavePhore. The
Company received payments of $1 million and $4 million pursuant to a joint
venture agreement with Internet Technology Group, PLC ("ITG"), a United Kingdom
company, and has recognized $3.75 million to date as license fees and recorded
the net cost to the Company of $1.1 million for an exchange of warrants between
the Company and ITG for 1,000,000 shares of common stock in each company which
is to occur due to attainment of the final milestones and payment of the final
installment of the license fee. From inception through December 31, 1998, the
Company has realized only minimal
-15-
<PAGE>
operating revenues, and does not anticipate significant revenues in the near
future. There are numerous risks that could adversely affect the Company's
efforts to achieve profitability.
Results of Operations
Years Ended December 31, 1998 and 1997
For the years ended December 31, 1998 and December 31, 1997 the Company
had only minimal operating revenues.
Selling, general and administrative expenses for the year ended
December 31, 1998 were $9,874,166 as compared with $7,983,151 for 1997. The
increase in selling, general and administrative expenses was primarily
attributable to increased headcount, as well as trade-show related expenses.
In the third quarter of 1997 the Company wrote off approximately
$770,000 of Goodwill recorded for the Win acquisition because the Company was
uncertain as to whether the anticipated future operations of the business would
be sufficient to justify the carrying value.
Research and development expenses for the year ended December 31, 1998
were $3,508,968 as compared with $2,146,127 for 1997. The increase in research
and development expenses is attributable to increased headcount and
consulting-related expenses.
License fee income for the year ended December 31, 1998 was $2,750,000,
as compared with $1,000,000 for 1997. The $2,750,000 for the year ended December
31, 1998 is before a charge of $1.1 million related to the net cost to the
Company of a warrant it is obligated to issue to ITG as part of the technology
licensing agreement. The $1.1 million charge includes the estimated fair value
of the ITG warrant that the Company will receive as part of the warrant
exchange. The license fee for both 1998 and 1997 were portions of a $5 million
fee paid by ITG to the Company as part of a joint venture agreement under which
ITG receives the right to market the Wave technology in European and Middle
Eastern markets.
Net interest expense for the year ended December 31, 1998 was $173,003
as compared with net interest expense of $120,342 for 1997. The increase in
interest expense for the year ended December 31, 1998 was primarily attributable
to the restated and amended note for Southeast Interactive Technologies Fund I
(see Note 5), offset by an increase in interest-bearing assets. Interest income
of $55,282 for the year ended December 31, 1997 was attributable to the interest
earned on marketable securities purchased with proceeds from the issuance of
convertible preferred stock of the Company in May 1996. The Company held no
marketable securities at December 31, 1998.
Due to the reasons set forth above, the Company's net loss was
$11,895,944 for the year ended December 31, 1998, as compared with $13,897,794
for 1997.
Years Ended December 31, 1997 and 1996
For the years ended December 31, 1997 and December 31, 1996 the Company
had only minimal operating revenues.
Selling, general and administrative expenses for the year ended
December 31, 1997 were $7,983,151 as compared with $5,560,620 for 1996. The
increase in selling, general and administrative expenses was primarily
attributable to development and marketing of new applications of the Company's
technology as well as accrued expenses related to the ITG Joint Venture
Agreement, and bonuses and salary increases.
In the third quarter of 1997 the Company wrote off approximately
$770,000 of Goodwill recorded for the Win acquisition because the Company was
uncertain as to whether the anticipated future operations of the business would
be sufficient to justify the carrying value.
-16-
<PAGE>
Research and development expenses for the year ended December 31, 1997
were $2,146,127 as compared with $3,309,022 for 1996. The decrease in research
and development expenses is attributable in part to the agreement with Aladdin
whereby Wave licensed Aladdin's Hasp technology for a share in content revenues
as well as cash and warrants totaling $3,889,600. More generally, the decrease
in research and development is attributable to the shift in the focus of the
Company from research and development to commercialization and marketing and
personnel adjustments consequent thereto.
In July of 1997, the Company entered into a joint-venture with Internet
Technology Group, PLC (ITG), a United Kingdom Internet service provider.
Pursuant to the joint venture agreement, the Company will receive a license fee
of up to $5 million in exchange for the joint venture's right to market the Wave
technology in European and Middle Eastern markets. During the third quarter of
1997, the Company received $1.0 million from the joint-venture representing
partial payment of the license fee, with the remaining payment to be made upon
the Company's attaining certain milestones related to the number of Wave Meters
distributed. The amount received was recorded as deferred license fee income in
the third quarter as it was uncertain whether the Company had met the
contractual requirements required in order to have earned the first payment.
During the fourth quarter of 1997, the Company met these requirements and
recorded the $1 million as a license fee. Also, the Company accrued $490,000 in
the fourth quarter for expenses related to the Company's obligation to assist
the joint-venture in setting up the Wave system in the designated markets. These
costs are included in selling, general and administrative expense. Additionally,
upon attainment of the final milestones and final cash payment by ITG, ITG and
Wave will exchange warrants for 1 million shares of each company.
Net interest expense for the year ended December 31, 1997 was $120,342
as compared with net interest income of $184,369 for 1996. Interest income of
$55,282 for the year ended December 31, 1997 was attributable to the interest
earned on proceeds from the issuance of convertible preferred stock of the
Company in May of 1996. Interest income of $194,766 for the year ended December
31, 1996 was attributable to the interest earned on proceeds from the issuance
of convertible preferred stock of the Company in May of 1996. The Company held
no marketable securities at December 31, 1997.
Due to the reasons set forth above, the Company's net loss was
$13,897,794 for the year ended December 31, 1997, as compared with $8,683,815
for 1996.
Liquidity and Capital Resources
The Company has experienced net losses and negative cash flow from
operations since its inception, and, as of December 31, 1998 had a deficit
accumulated during the development stage of approximately $57.2 million. The
Company has financed its operations through December 31, 1998 principally
through the private placement of Class B Common Stock for an aggregate amount of
$6,201,931 (before deduction of expenses incurred in connection therewith), the
issuance of $2,873,250 in aggregate principal amount of its 10% Convertible
Notes and 15% Notes (of which $2,098,250 was converted into Class B Common
Stock), the sale of 3,728,200 shares of its Class A Common Stock in an initial
public offering raising approximately $15,711,000 after all expenses, the
private placement of 800,000 shares of Class A Common Stock and warrants raising
$800,000 (before deduction of expenses incurred in connection therewith), and
the private placements of convertible preferred stock for an aggregate amount of
$13,350,000 (before deduction of expenses incurred in connection therewith). In
addition, the Company has attempted to reduce cash flow requirements by
compensating key employees, consultants, suppliers and other vendors with Common
Stock and options to purchase Common Stock.
At December 31, 1998, the Company had approximately $1.1 million in
cash and cash equivalents. The Company held no marketable securities at December
31, 1998. At December 31, 1997, the Company had approximately $759,000 in cash
and cash equivalents. The Company held no marketable securities at December 31,
1997. The increase in cash and cash equivalents is attributable to cash proceeds
of approximately $2.8 million from the issuance of Series G Convertible
Preferred Stock, the last two licensing payments of $750,000 and $3.25 million
from ITG, and Aladdin Knowledge System's exercise of its warrant for 1 million
shares for $2.55 million, less cash used for operating expenses. At December 31,
1998, the Company had working capital deficiency of approximately $3.8 million.
In January, 1999 the Company issued a convertible promissory note in aggregate
principal amount of $2 million, which was subsequently converted into Class A
common stock in March, 1999, following the Company's completion of an additional
$23 million private placement with institutional, strategic and accredited
investors.
The Company expects to incur substantial additional expenses resulting
in significant
-17-
<PAGE>
losses at least through the period ending December 31, 1999 due to minimal
revenues associated with initial market entry, continued research and
development costs as well as increased sales and marketing expenses associated
with market testing and roll-out. However, considering the funds received from
the latest common stock offering and the Company's projected operating cash
requirements, the Company anticipates that its existing capital resources will
be adequate to satisfy its capital requirements through the end of the third
quarter of 2000.
However, as the Company has not yet attained commercial acceptance of
its products and has not yet generated any significant operating revenue,
considerable uncertainty currently exists with respect to the adequacy of
current funds to support the Company's activities. This uncertainty will
continue until a positive cash flow from operations can be achieved.
Additionally, the Company is uncertain as to the availability of financing from
other sources to fund any cash deficiencies.
In order to reduce this uncertainty, the Company continues to
evaluate additional financing options and may therefore elect to raise capital,
from time to time, through equity or debt financings in order to capitalize on
business opportunities and market conditions and to insure the continued
development of the Company's technology, products and services. There can,
however, be no assurance that the Company can raise additional financing in the
future.
The Company presently has no material commitments for capital
expenditures.
As of December 31, 1998, the Company had available net operating loss
carryforwards for Federal income tax purposes of approximately $47.6 million.
Because of the "change in ownership" provisions of the Tax Reform Act of 1986,
the Company's net operating loss carryforwards may be subject to an annual
limitation on the utilization of these carryforwards against taxable income in
future periods if a cumulative change in ownership of more than 50 percent of
the Company occurs within any three-year period. The Company has made no
determination concerning whether there has been such a cumulative change in
ownership. However, the Company believes that it is likely that such a change in
ownership occurred prior to or following the completion of its initial public
offering.
Recent Accounting Pronouncements
In June 1997, the FASB issued SFAS 130, "Reporting Comprehensive
Income," which establishes standards for reporting and display of comprehensive
income and its components in a full set of general-purpose financial statements.
Under this concept, all revenues, expenses, gains and losses recognized during
the period are included in income, regardless of whether they are considered to
be results of operations of the period. SFAS 130, which the Company adopted
effective January 1, 1998, did not impact the consolidated financial statements
of the Company.
In June 1997, the FASB issued SFAS 131, "Disclosures about Segments of
an Enterprise and Related Information," which establishes standards for the way
that public business enterprises report selected information about operating
segments in annual financial statements and requires that those enterprises
report selected information about operating segments in interim financial
reports to shareholders. It also establishes standards for related disclosures
about products and services, geographic areas and major customers. SFAS 131,
which the Company adopted effective January 1, 1998, did not impact the
Company's consolidated financial statements and footnote disclosures, as the
Company operates in one segment
The Financial Accounting Standards Board ("FASB") recently issued
Statement of Financial Standards Number 133 ("SFAS 133"), "Accounting for
Derivative Instruments and Hedging Activities." This statement establishes
accounting and reporting standards for derivative instruments and hedging,
requiring recognition of all derivatives as either assets or liabilities in the
statement of financial position measured at fair value. This statement is
effective for all fiscal quarters of fiscal years beginning after June 15, 1999.
The effects of adopting SFAS 133 is not expected to have a material impact on
the Company's financial condition, results of operations or cash flows.
The AICPA Accounting Standards Executive Committee recently issued
Statement of Position ("SOP")98-1, Accounting for the Costs of Computer Software
Developed or Obtained for Internal Use. This
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<PAGE>
statement requires that certain costs related to the development or purchase of
internal-use software be capitalized and amortized over the estimated useful
life of the software, and is effective for fiscal years beginning after December
15, 1998. The statement also requires that costs related to the preliminary
project stage and post implementation/operations stage in an internal-use
computer software development project can be expensed as incurred. The Company
will comply with the provisions of SOP 98-1 in fiscal 1999. The adoption of this
SOP is not expected to have a material impact on the Company's financial
position or results of operations.
The AICPA Accounting Standards Executive Committee recently issued SOP
98-5, Reporting on the Costs of Start-Up Activities. This Statement requires
that costs incurred during start-up activities, including organization costs, be
expensed as incurred, and is effective for fiscal years beginning after December
15, 1998. The Company will comply with the provisions of SOP 98-5 in fiscal
1999. The adoption of this SOP is expected to have no impact on the Company's
financial position or results of operations.
Impact of Year 2000 Issue
The Year 2000 issue results from computer programs written using two
digits rather than four to define the applicable year. Any of the Company's
computer programs that have date-sensitive software may recognize a date using
"00" as the year 1900 rather than the year 2000. This could result in a system
failure or miscalculations causing disruptions of operations, including, among
other things, a temporary inability to process transactions, send invoices or
engage in similar normal business activities.
The Company made an assessment, with regard to whether its own internal
information systems are Year 2000 compliant. Since January 1998, in addition to
updating employee computers and workstations, the Company has upgraded various
accounting, telecommunications, customer care systems and transaction systems at
an aggregate cost of approximately $400,000, with systems that are warranted by
the vendors to be Year 2000 compliant. To the extent the Company purchases
additional systems, the Company requires that such systems are warranted by the
vendors to be Year 2000 compliant. The Company continues to seek assurances from
its existing vendors whose systems are not warranted to be Year 2000 compliant
that such systems will be Year 2000 compliant. The Company employs a manager of
management information systems, whose responsibilities include oversight of Year
2000 compliance. The Company does not separately track the internal costs
incurred for Year 2000 projects, which are principally the related payroll costs
for its information systems personnel. Although the Company does not believe
that any additional Year 2000 compliance-related costs will be significant,
there can be no assurance that costs incurred to address unanticipated issues
would not have a material adverse effect on the Company's business, operating
results and financial conditions. Any failure of third-party equipment or
software comprising any part of the Company's systems to operate properly with
regard to Year 2000 and thereafter could require the Company to incur
unanticipated expenses to address associated problems, which could have a
material adverse effect on the Company's business, operating results and
financial condition.
The Company believes, based on an internal assessment, that the current
versions of its software products are Year 2000 compliant. The Company has no
plan to ascertain whether the internal systems and products of its potential
future customers are Year 2000 compliant. The Company may in the future be
subject to claims based on Year 2000 problems in others' products or issues
arising from the integration of multiple products within an overall system.
Although the Company has not been involved in any litigation or proceeding to
date involving its products or services related to Year 2000 issues, there can
be no assurance that the Company will not in the future be required to defend
its products or services or to negotiate resolutions of claims based on Year
2000 issues. The costs of defending and resolving Year 2000-related disputes,
and any liabilities of the Company for Year 2000-related damages, including
consequential damages, could have a material adverse effect on the Company's
business, operating results and financial condition.
The Company does not have any specific contingency plans if any Year
2000 problems develop with respect to the Company's embedded systems or systems
acquired from vendors. Contingency plans will be developed if the Company
identifies instances of non-compliance and such
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<PAGE>
noncompliance is expected to have a material adverse impact on the Company's
operations. The cost of developing and implementing such plans may itself be
material.
Year 2000 issues may affect the purchasing patterns of customers and
potential customers in a variety of ways. Many companies are expending
significant resources to replace or remedy their current hardware and software
systems for Year 2000 compliance. These expenditures may result in reduced funds
available to purchase products such as those offered by the Company. The Company
does not believe that there is any practical way to ascertain the extent of, and
has no plan to address problems associated with such a reduction in purchasing
resources of its customers. Any such reduction could, however, result in a
material adverse effect on the Company's business, operating results and
financial condition. The Year 2000 problem is pervasive and complex, as
virtually every computer operation will be affected in some way. Consequently,
no assurance can be given that Year 2000 compliance can be achieved without
significant additional costs.
Item 7A. Quantitative and Qualitative Disclosure about Market Risk
Not applicable.
Item 8. Financial Statements and Supplementary Data
The consolidated financial statements, the notes thereto, and the
independent auditors' report thereon are presented beginning at page F-1 of this
Form 10-K and are hereby incorporated by reference into this Item 8.
Item 9. Changes in and Disagreements with Accountant on Accounting and
Financial Disclosure
Not Applicable.
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<PAGE>
PART III
Item 10. Directors and Executive Officers of the Registrant
Directors of the Registrant
<TABLE>
<CAPTION>
Business Experience and Principal Occupation or
Employment During Past 5 Years; Positions held with Director
Name Age Company; Other Directorships Since
- - ---- --- ------------------------------------------------------- --------
<S> <C> <C> <C>
Peter J. Sprague(1)(4) 59 Chairman of the Company since 1988 and Chief Executive 1988
Officer of the Company since July 1991; Chairman of
National Semiconductor Corporation from 1965 until May
1995; Director of EnLighten Software, Inc. and Imagek,
Inc.; Trustee of the Strang Clinic; Member of Academy
of Distinguished Entrepreneurs, Babson College.
John E. Bagalay, Jr., 65 Senior Advisor to Chancellor, Boston University from 1993
Ph.D.(1)(2)(4) January 1998; Managing Director of Community Technology
Fund, a venture capital affiliate of Boston University,
from September 1989 until January 1, 1998; Chief
Operating Officer, Chief Financial Officer and Director
of Eurus Technologies, inc. since January 15, 1999;
General Counsel of Lower Colorado River Authority from
October 1984 to September 1988; former General Counsel
of Texas Commerce Bancshares, Inc. and Houston First
Financial Group; Director of Seragen, Inc., Cytogen,
Inc., AES, Inc. and several privately-held
corporations; President and CEO of Cytogen Corporation
from January 1998, CFO since October 1997; Managing
Director of Boston University Venture Capital Fund from
1989-1997.
Philippe Bertin(3) 49 Manager of Financiere Wagram Poncelet (direct marketing; 1993
media) since December 1991; Manager of Midial S.A.
(consumer goods) from 1984 until 1991; Manager of
FINOVELEC since October 1997.
George Gilder(4) 59 Chairman of the Executive Committee of the Company since 1993
1996; Senior Fellow at the Discovery Institute in
Seattle, Washington; author of nine books, including
Life After Television, Microcosm, The Spirit of
Enterprise and Wealth and Poverty; contributing editor
to Forbes Magazine; Director and President of Gilder
Technology Group, Inc. (publisher of monthly technology
reports); former chairman of the Lehrman Institute
Economic Roundtable; former Program Director for the
Manhattan Institute; recipient of White House award for
Entrepreneurial Excellence from President Reagan.
John E. McConnaughy, 69 Chairman and Chief Executive Officer of JEMC Corporation 1988
Jr. (1)(2)(3)(4) (private investments); Chairman and Chief Executive
Officer of Peabody International Corporation (an
environmental services company) from 1969 through 1985;
Chairman and Chief Executive Officer of GEO
International Corporation (a nondestructive testing,
screen printing and oil field services company which was
spun off from
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<PAGE>
Peabody) from February 1981 to October 1992; Director of
Riddell Sports Inc., Levcor International, Inc.,
Transact International, Inc., De-Vlieg Bullard, Inc. and
Mego Financial Corp. Mr. McConnaughy is also a member of
the Board of Trustees of the Strang Clinic and the
Chairman of the Board of the Harlem School of the Arts.
Steven Sprague 34 President and Chief Operating Officer of the Company 1997
since May 1996; President of Wave Interactive Network
from June 1995 to December 30, 1996; Vice President of
Operations of the Company from April 1994 to June 1995;
employee of the Company in the areas of operations and
strategic planning from November 1992 to April 1994;
consultant to the Company from March 1992 to November
1992; President of Tech Support, Incorporated (hardware
technical support information on CD-ROM) from June 1992
to November 1992; sole proprietor of SKS Environmental
Sales (manufacturers' representative for water treatment
companies) from June 1991 to November 1992.
</TABLE>
- - -------------------
(1) Member of Nominating Committee.
(2) Member of Compensation Committee.
(3) Member of Audit Committee.
(4) Member of Executive Committee.
Involvement in Certain Legal Proceedings
Mr. McConnaughy is the Chairman of the Board of the Excellence Group,
LLC, which filed a petition for bankruptcy under Chapter 11 on January 13, 1999.
The Excellence Group's subsidiaries produced labels for a variety of customers.
Executive Officers of the Registrant
The executive officers of the Company are Mr. Peter J. Sprague,
Chairman and Chief Executive Officer, Mr. Steven Sprague, President and Chief
Operating Officer and Mr. Gerard T. Feeney, Senior Vice President of Finance and
Administration, Chief Financial Officer and Secretary.
All officers are elected annually at the first meeting of the Board of
Directors following the annual meeting of the stockholders, and are subject to
removal at any time by the Board of Directors.
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") requires the Company's directors and executive officers, and
persons owning more than ten percent of a registered class of the Company's
equity securities, to file with the Securities and Exchange Commission reports
of ownership and changes in ownership of equity securities of the Company. Such
persons are also required to furnish the Company with copies of all such forms.
Based solely upon a review of the copies of such forms furnished to the
Company and, in certain cases, written representations that no Form 5 filings
were required, the Company believes that, with respect to the 1998 fiscal year,
all required Section 16(a) filings were made, except that Mr. Gerard T.
Feeney filed his Forms 3 and 5 late.
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<PAGE>
Item 11. Executive Compensation
Summary Compensation Table
The following table sets forth information with respect to the
compensation paid or awarded by the Company to the Chief Executive Officer and
the other executive officers whose cash compensation exceeded $100,000.
(collectively, the "Named Executive Officers") for services rendered in all
capacities during 1996, 1997 and 1998.
<TABLE>
<CAPTION>
Long-Term
Compensation Awards
-------------------
Annual Compensation Number of Shares
-------------------
Name and Principal Position Year Salary($) Bonus($) Underlying Options(#)
- - --------------------------- ---- --------- -------- ---------------------
<S> <C> <C> <C> <C>
Peter J. Sprague(1) 1998 $ 182,917 $ 150,000 895,395
Chairman and Chief 1997 $ 160,000 $ 100,000 10,000
Executive Officer 1996 $ 160,000 $ 50,000 -0-
Steven Sprague(2) 1998 $ 177,500 $ 150,000 954,505
President and 1997 $ 150,000 $ 117,500 -0-
Chief Operating Officer 1996 $ 131,666 $ -0- 150,000
Gerard T. Feeney(3) 1998 $ 90,359 450,000
Senior Vice President, Chief $ 65,000
Financial Officer and
Secretary
</TABLE>
- - -------------------
(1) Mr. Peter Sprague received a bonus of $150,000 for 1998; $75,000 was
received in cash and $75,000 was applied to reduce his debt to the Company
(see Item 13).
(2) Mr. Steven Sprague was elected President and Chief Operating Officer on May
23, 1996 and was not previously an executive officer during 1996. Prior to
that, Mr. Steven Sprague was Vice President of Operations of the Company
from April 1994 to June 1995 and employee of the Company in the areas of
operations and strategic planning from November 1992 to April 1994.
(3) Mr. Gerard T. Feeney was hired as Senior Vice President, Finance and
Administration and Chief Financial Officer on June 8, 1998 and was elected
Secretary on February 25, 1999.
Option Grants Table
The following table sets forth certain information regarding options
granted during the fiscal year ended December 31, 1998 by the Company to the
Named Executive Officers.
<TABLE>
<CAPTION>
Potential Realizable Value
Number of % of Total at Assumed Annual Rates of
Shares Options Stock Price Appreciation For
Underlying Granted to Exercise Option Term (1)
Options Employees Price Expiration -----------------------------
Name Granted (#) Fiscal Year ($/Share) Date 5% ($) 10% ($)
- - ---- ----------- ----------- --------- ------------ ------ -------
<S> <C> <C> <C> <C> <C> <C> <C>
Peter J. Sprague (2) 300,000 5.7% $ 1.15 2/6/08 216,900 548,400
50,005 0.1 1.10 3/11/08 37,854 74,657
545,500 10.4 3.66 5/20/08 1,990,529 4,347,090
Steven Sprague (3) 193,200 3.7 1.15 2/6/08 139,684 353,170
250,005 4.8 1.10 3/11/98 189,254 373,257
511,300 9.7 3.66 5/20/08 1,865,734 4,074,550
Gerard T. Feeney 450,000 8.6 3.50 6/8/08 1,265,400 2,941,200
</TABLE>
- - -------------------
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<PAGE>
(1) The potential realizable value of the options reported above was calculated
by assuming 5% and 10% compounded annual rates of appreciation of the
common stock from the date of grant of the options until the expiration of
the options, based upon the market price on the date of grant. These
assumed annual rates of appreciation were used in compliance with the rules
of the Securities and Exchange Commission and are not intended to forecast
future price appreciation of the common stock.
(2) Includes an aggregate of 300,000 options repriced on February 6, 1998.
(3) Includes an aggregate of 193,200 options repriced on February 6, 1998.
Fiscal Year End Option Value Table
The following table sets forth information regarding the aggregate
number and value of options held by the Named Executive Officers as at December
31, 1998, and the aggregate number and value of options exercised by the Named
Executive Officers during 1998.
<TABLE>
<CAPTION>
Number of Shares Value of Unexercised
Shares Acquired Underlying Unexercised Options In-The-Money Options
on Exercise Value Received at December 31, 1998(#) at December 31, 1998($)(1)
----------- -------------- ------------------------------ ------------------------------
Name Exercisable Unexercisable Exercisable Unexercisable
- - ---- ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Peter J. Sprague - 0 - - 0 - 31,995 895,505 $ 67 ,715 $ 933,848
Steven Sprague - 0 - - 0 - 1,995 954,505 5,245 1,181,261
Gerard T. Feeney - 0 - - 0 - - 0 - 450,000 - 0 - 98,550
</TABLE>
- - -------------------
(1) The last reported bid price for the Company's Class A Common Stock on
the OTC Bulletin Board on December 31, 1998 was $3.719 per share. Value is
calculated on the basis of the difference between the respective option exercise
prices and $3.719, multiplied by the number of shares of common stock underlying
the respective options.
Compensation of Directors
Directors presently receive no cash compensation for serving on the
Board of Directors. Under the Company's Non-Employee Directors Stock Option
Plan, each director who is not an employee of the Company receives an annual
grant of options to purchase 20,000 shares of Class A Common Stock at fair
market value. The options are granted upon re-election after the annual meeting
of the stockholders and vest the day following the grant. Options terminate upon
the earliest to occur of (i) subject to (ii) below, three months after the
optionee ceases to be a director of the Company, (ii) one year after the death
or disability of the optionee, and (iii) ten years after the date of grant. If
there is a change of control of the Company, all outstanding stock options will
become immediately exercisable.
Item 12. Security Ownership of Certain Beneficial Owners and Management
The following table sets forth certain information concerning the
beneficial ownership of the Company's Class A and Class B Common Stock as of
March 5, 1999 (except as otherwise noted) by (i) each stockholder who is known
by the Company to own beneficially more than five percent of the outstanding
Class A or Class B Common Stock, (ii) each director of the Company, (iii) each
of the executive officers of the Company named in the Summary Compensation Table
above, and (iv) all directors and executive officers of the Company as a group.
Holders of Class A Common Stock are entitled to one vote per share on all
matters submitted to a vote of the stockholders of the Company. Holders of Class
B Common Stock are entitled to one vote per share on all matters submitted to a
vote of the stockholders, except that holders of Class B Common Stock will have
five votes per share in cases where one or more directors are nominated for
election by persons other than the Company's Board of Directors and where there
is a vote on any merger, consolidation or other similar transaction which is not
recommended by the Company's Board of Directors. In addition, holders of Class B
Common Stock will have five votes per share on all matters submitted to a vote
of the stockholders in the event that any person or group of persons acquires
beneficial ownership of 20% or more of the outstanding voting securities of the
Company. Shares of Class B Common Stock are convertible into shares of Class A
Common Stock on a one-for-one basis at the option of the holder.
-24-
<PAGE>
<TABLE>
<CAPTION>
Percent
of All
Number of Shares Number of Shares Percent Outstanding
of Class A Common Percent of of Class B Common of Common
Beneficial Owner(1) Stock Owned(2) Class Stock Owned Class Stock(3)
- - ------------------- ----------------- ---------- ----------------- ------- -----------
<S> <C> <C> <C> <C> <C>
Peter J. Sprague(4) 364,486 1.2 1,372,899 49.5 5.4
Steven Sprague(5) 332,163 1.1 189,659 6.8 1.6
John E. Bagalay, Jr.(6) 38,000 * 0 * *
Philippe Bertin(7) 38,000 * 0 * *
George Gilder(8) 67,333 * 2,000 * *
John E. McConnaughy, Jr.(9) 38,000 * 335,000 12.1 1.5
Aladdin Knowledge Sys. (10) 2,531,307 8.0 0 * 7.3
Gerard T. Feeney 0 * 0 * *
All executive officers and
directors as a group
(7 persons)(11) 877,982 2.9 1,899,558 68.6 8.5
</TABLE>
- - -------------------
*Less than one percent.
(1) Each individual or entity has sole voting and investment power, except as
otherwise indicated.
(2) Does not include shares of Class A Common Stock issuable upon the
conversion of Class B Common Stock.
(3) In circumstances where the Class B Common Stock has five votes per share,
the percentages of total voting power would be as follows: Peter J.
Sprague, 16.8%; Steven Sprague, 3.0%; John E. Bagalay, Jr., less than 1%;
Philippe Bertin, less than 1%; George Gilder, less than 1%; John E.
McConnaughy, Jr., 4.0%; Aladdin Knowledge Systems, 5.9%; and all Executive
Officers and Directors as a group, 24.1%.
(4) Includes 330,496 shares which are subject to options presently exercisable
or exercisable within 60 days. Also includes 320,000 shares held in trust
for the benefit of Mr. Sprague's adult children, and for which Mr. Sprague
is a trustee.
(5) Includes 320,163 shares which are subject to options presently exercisable
or exercisable within 60 days. Also includes 37,102 shares held in trust
for the benefit of Mr. Sprague's family, and for which Mr. Sprague is a
trustee.
(6) Includes 34,000 shares which are subject to options presently exercisable
or exercisable within 60 days.
(7) Includes 34,000 shares which are subject to options presently exercisable
or exercisable within 60 days.
(8) Includes 67,333 shares which are subject to options presently exercisable
or exercisable within 60 days.
(9) Includes 34,000 shares which are subject to options presently exercisable
or exercisable within 60 days.
(10) Includes 2,531,307 shares which are subject to warrants presently
exercisable or exercisable within 60 days.
(11) Includes 681,043 shares which are subject to options presently exercisable
or exercisable within 60 days.
Item 13. Certain Relationships and Related Transactions
Note Receivable from Director/Officer
On November 16, 1992, the Company made a personal loan to Mr. Peter J.
Sprague, Chairman and Chief Executive Officer of the Company, as evidenced by a
note for $150,000, which sum was due and payable to the Company on January 16,
1993 and which bore interest at the rate of ten percent (10%) per annum. On the
due date, the note was canceled and the total amount owed was "rolled-over" into
a subsequent note, dated May 12, 1993 for $150,000, plus accrued interest. The
note is due on demand by the Company and accrues interest at the rate of 10% per
annum. On April 22, 1993, the Company made an additional loan to Mr. Peter
Sprague for $23,175 as evidenced by a subsequent note, which is due on demand by
the Company and which bears interest at a rate of 10% per annum. All of these
loans were made to Mr. Sprague for personal reasons. As part of Mr. Sprague's
$150,000 bonus for 1998, $75,000 was applied against his indebtedness to the
Company. As of December 31, 1998, Mr. Sprague's aggregate indebtedness
(including accrued interest) to the Company under the notes totaled $149,342. No
demand has been made as of the date hereof. The notes are secured by a pledge of
67,000 shares of Class B Common Stock.
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<PAGE>
Compensation to Steven Sprague
Steven Sprague received aggregate compensation of $327,500, $267,500
and $131,666 for services rendered to the Company in 1998, 1997 and 1996,
respectively. Steven Sprague is the son of Mr. Peter J. Sprague, the Chairman
and Chief Executive Officer of the Company.
Compensation to Michael Sprague
Michael Sprague received aggregate compensation of $112,500 and $27,500
for services rendered to the Company in 1998 and 1997, respectively. Michael
Sprague is the son of Mr. Peter J. Sprague, the Chairman and Chief Executive
Officer of the Company.
Amended and Restated License Agreement and Assignment
Pursuant to an Amended and Restated License Agreement, dated February
14, 1994, and related Patent Assignment and Security Agreement, Mr. Peter J.
Sprague assigned his interest in a patent for the metering and usage of serial
data information to the Company in exchange for a non-terminable royalty
interest. The Company has agreed to payment of royalties to Mr. Sprague of 2% of
the gross revenues (less actual amounts paid to information, database and
content providers, hardware manufacturers and suppliers, search and retrieval
software suppliers, consolidators of information and network providers) derived
from the Company's technology based on the patent. The royalty payments are
allocated 75% to Mr. Sprague and 25% to a former officer of the Company, and are
secured by a security interest in and to the patent.
License and Cross-License Agreement
On May 1, 1992, the Company entered into a Joint Technology Development
Agreement and License and Cross-License Agreement with The Titan Corporation
whereby Titan granted to the Company license rights to the use of certain
patents which are co-owned by Titan. Dr. Gene W. Ray, a director of the Company,
is a director, President and Chief Executive Officer of Titan. The Company
granted to Titan the exclusive right to make for, sell in, and lease in a
"Retained Market," as defined in the agreement, the subject matter described in
any Company patent. The Retained Market is defined generally as the market for
"Government Information," as defined in the agreement, used solely by a
government entity, and the market for products used to access such information.
On February 28, 1997 the Company and Titan executed an addendum to the License
and Cross-License Agreement whereby the Company received a sole license to the
licensed patent to develop and distribute products to the in-home consumer
microcomputer market segment. Under this addendum to the License and
Cross-License Agreement, Titan waived any and all defaults by the Company under
the License and Cross-License Agreement occurring prior to February 28, 1997.
-26-
<PAGE>
PART IV
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form
8-K
(a) (1) Financial Statements:
Consolidated Financial Statements
December 31, 1998 and 1997
(With Independent Auditors' Report Thereon)
<TABLE>
<CAPTION>
Page(s)
<S> <C>
Index to Consolidated Financial Statements F-1
Independent Auditors' Report F-2
Consolidated Balance Sheets as of December 31, 1998 and 1997 F-3
Consolidated Statements of Operations for each of the years
ended December 31, 1998, 1997 and 1996 and
for the period from February 12, 1988 (inception) through December 31, 1998 F-4
Consolidated Statements of Stockholders' Equity (Deficiency) for
each of the years ended December 31, 1998, 1997 and 1996 and
for the period from February 12, 1988 (inception) through December 31, 1998
F-5 Consolidated Statements of Cash Flows for each of the years ended
December 31, 1998, 1997 and 1996 and for the period from
February 12, 1988 (inception) through December 31, 1998 F-10
Notes to Consolidated Financial Statements F-12
</TABLE>
(a) (2) Financial Statement Schedules:
All schedules have been omitted since they are either not required or not
applicable.
(a) (3) Exhibits:
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
- - ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
3.1 -- Restated Certificate of Incorporation of Registrant (incorporated by reference to Exhibit 3.1 of
the Registrant's Registration Statement on Form S-1, File No. 33-75286)
3.2 -- Bylaws of Registrant (incorporated by reference to Exhibit 3.2 of the Registrant's Registration
Statement on Form S-1, File No. 33-75286)
4.1 -- Form of Stock Certificate of Class A Common Stock (incorporated by reference to Exhibit 4.1 of the
Registrant's Registration Statement on Form S-1, File No. 33-75286)
4.2 -- Form of Representative's Warrant Agreement, including the form of Representative's Warrant
(incorporated by reference to Exhibit 4.2 of the Registrant's Registration Statement on Form S-1,
File No. 33-75286)
4.3 -- Certificate of Designation of Series B Preferred Stock of Wave Systems Corp. as filed with the
Delaware Secretary of State on May 24, 1996 (incorporated by reference to Exhibit 3.1 of the
Registrant's Current Report on Form 8-K filed on May 30, 1996, File No. 0-24752)
4.4 -- Certificate of Designation of Series C Convertible Preferred Stock of Wave Systems Corp. as filed
with the Delaware Secretary of State on December 27, 1996 (incorporated by reference to Exhibit 3.1
of the Registrant's Current Report on Form 8-K filed on January 8, 1997, File No. 0-24752)
4.5 -- Certificate of Designation of Series D Convertible Preferred Stock of Wave Systems Corp. as filed
with the Delaware Secretary of State on December 27, 1996 (incorporated by reference to Exhibit 3.1
of the Registrant's Current Report on Form 8-K filed on June 3, 1997, File No. 0-24752)
-27-
<PAGE>
4.6 -- Certificate of Designation of Series F Convertible Preferred Stock of Wave Systems Corp. as filed
with the Delaware Secretary of State on October 9, 1997 (incorporated by reference to Exhibit 3.1
of the Registrant's Current Report on Form 8-K filed on October 15, 1997, File No. 0-24752)
4.7 -- Certificate of Designation of Series G Convertible Preferred Stock of Wave Systems Corp. as filed
with the Delaware Secretary of State on March 5, 1998 (incorporated by reference to Exhibit 3.1 of
the Registrant's Current Report on Form 8-K filed on March 19, 1998, File No. 0-24752)
+10.1 -- Joint Technology Development Agreement, dated as of May 1, 1992, between The Titan Corporation and
Cryptologics International, Inc. (incorporated by reference to Exhibit 10.2 of the Registrant's
Registration Statement on Form S-1, File No. 33-75286)
+10.2 -- License and Cross-License Agreement, dated as of May 1, 1992, between The Titan Corporation and
Cryptologics International, Inc. (incorporated by reference to Exhibit 10.3 of the Registrant's
Registration Statement on Form S-1, File No. 33-75286)
10.3 -- Amendment to License and Cross-License Agreement, dated as of August 27, 1993, between The Titan
Corporation and Wave Systems Corp. (incorporated by reference to Exhibit 10.4 of the Registrant's
Registration Statement on Form S-1, File No. 33-75286)
10.4 -- Amended and Restated License Agreement, dated February 14, 1994, by and among Wave Systems Corp.,
Peter J. Sprague and John R. Michener (incorporated by reference to Exhibit 10.5 of the
Registrant's Registration Statement on Form S-1, File No. 33-75286)
+10.5 -- Wave Systems Corp. 1994 Stock Option Plan (incorporated by reference to Exhibit 10.6 of the
Registrant's Registration Statement on Form S-1, File No. 33-75286)
+10.6 -- Wave Systems Corp. Non-Employee Directors Stock Option Plan (incorporated by reference to Exhibit
10.7 of the Registrant's Registration Statement on Form S-1, File No. 33-75286)
10.7 -- Regulation S Securities Subscription Agreement, dated as of May 29, 1996 (incorporated by reference
to Exhibit 4.1 of the Registrant's Current Report on Form 8-K filed on May 30, 1996, File No.
0-24752)
10.8 -- Purchase Agreement between Wave Systems Corp. and JNC Opportunity Fund Ltd., dated as of December
27, 1996 (incorporated by reference to Exhibit 4.1 of the Registrant's Current Report on Form 8-K
filed on January 8, 1997, File No. 0-24752)
10.9 -- Registration Rights Agreement between Wave Systems Corp. and JNC Opportunity Fund Ltd., dated as of
December 27, 1996 (incorporated by reference to Exhibit 4.2 of the Registrant's Current Report on
Form 8-K filed on January 8, 1997, File No. 0-24752)
10.10 -- Purchase Agreement between Wave Systems Corp. and JNC Opportunity Fund Ltd., dated as of May 30,
1997 (incorporated by reference to Exhibit 4.1 of the Registrant's Current Report on Form 8-K filed
on June 3, 1997, File No. 0-24752)
10.11 -- Registration Rights Agreement between Wave Systems Corp. and JNC Opportunity Fund Ltd., dated as of
May 30, 1997 (incorporated by reference to Exhibit 4.2 of the Registrant's Current Report on Form
8-K filed on June 30, 1997, File No. 0-24752)
10.12 -- Purchase Agreement between Wave Systems Corp. and Combination, Inc., dated as of October 9, 1997
(incorporated by reference to Exhibit 4.1 of the Registrant's Current Report on Form 8-K filed on
October 15, 1997, File No. 0-24752)
10.13 -- Registration Rights Agreement between Wave Systems Corp. and Combination Inc., dated as of October
9, 1997 (incorporated by reference to Exhibit 4.2 of the Registrant's Current Report on Form 8-K
filed on October 15, 1997, File No. 0-24752)
-28-
<PAGE>
10.14 -- Purchase Agreement between Wave Systems Corp. and Combination Inc., dated as of March 6, 1998
(incorporated by reference to Exhibit 4.1 of the Registrant's Current Report on Form 8-K filed on
March 19, 1998, File No. 0-24752)
10.15 -- Registration Rights Agreement between Wave Systems Corp. and Combination Inc., dated as of March 6,
1998 (incorporated by reference to Exhibit 4.2 of the Registrant's Current Report on Form 8-K filed
on March 19, 1998, File No. 0-24752)
10.16 -- Addendum to License and Cross-License Agreement, dated February 28, 1997, between The Titan
Corporation and Wave Systems Corp. (incorporated by reference to Exhibit 10.10 of the Registrant's
Current Report on Form 10-K filed on March 24, 1997, file No. 0-24752).
10.17 -- Convertible Promissory Note, dated January 26, 1999, between Carriage Partners, LLC and Wave
Systems Corp.
+10.18 -- Employment Contract, dated June 8, 1998, between Gerard T. Feeney and Wave Systems Corp.
+10.19 -- Employment Contract, dated November 10, 1998, between Steven Sprague and Wave Systems Corp.
23.1 -- Consent of Independent Auditors - KPMG Peat Marwick LLP
27 -- Financial Data Schedule
</TABLE>
- - -------------------
+Confidential treatment has been granted as to portions of this exhibit.
+Management contract or compensatory plan.
(b) The Company filed a Form 8-K on March 19, 1998 in connection with the
sale of its Series G Convertible Preferred Stock to Combination Inc.
-29-
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
Dated: March 31, 1999
WAVE SYSTEMS CORP.
By: /s/ Peter J. Sprague
------------------------
Name: Peter J. Sprague
Title: Chairman, Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed by the following persons on behalf of the registrant
and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Peter J. Sprague
- - -----------------------------
Peter J. Sprague Chairman and Chief Executive Officer March 31, 1999
/s/ Steven Sprague
- - -----------------------------
Steven Sprague President, Chief Operating Officer and March 31, 1999
Director
/s/ John E. Bagalay, Jr.
- - -----------------------------
John E. Bagalay, Jr. Director March 31, 1999
/s/ Philippe Bertin
- - -----------------------------
Philippe Bertin Director March 31, 1999
/s/ George Gilder
- - -----------------------------
George Gilder Director March 31, 1999
/s/ John E. McConnaughy, Jr.
- - -----------------------------
John E. McConnaughy, Jr. Director March 31, 1999
/s/ Gerard T. Feeney
- - -----------------------------
Gerard T. Feeney Senior Vice President, Finance March 31, 1999
and Administration, Chief Financial
Officer and Secretary (Principal
Financial Officer and Duly Authorized
Officer of the Registrant
</TABLE>
-30-
<PAGE>
F-1
WAVE SYSTEMS CORP. AND SUBSIDIARIES
(a development stage corporation)
Consolidated Financial Statements
December 31, 1998 and 1997
(With Independent Auditors' Report Thereon)
Index to Consolidated Financial Statements
<TABLE>
<CAPTION>
Page(s)
-------
<S> <C>
Independent Auditors' Report F-2
Consolidated Balance Sheets as of December 31, 1998 and 1997 F-3
Consolidated Statements of Operations for each of the years ended December 31,
1998, 1997 and 1996 and for the period from February 12,
1988 (inception) through December 31, 1998 F-4
Consolidated Statements of Stockholders' Equity (Deficiency) for each of the
years ended December 31, 1998, 1997 and 1996 and for the period from
February 12, 1988 (inception) through December 31, 1998 F-5
Consolidated Statements of Cash Flows for each of the years ended December 31,
1998, 1997 and 1996 and for the period from
February 12, 1988 (inception) through December 31, 1998 F-10
Notes to Consolidated Financial Statements F-12
</TABLE>
<PAGE>
F-2
INDEPENDENT AUDITORS' REPORT
The Board of Directors and Stockholders
Wave Systems Corp.:
We have audited the consolidated financial statements of Wave Systems Corp. and
subsidiaries (a development stage corporation) as listed in the accompanying
index. These consolidated financial statements are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
consolidated financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the financial position of Wave Systems Corp.
and subsidiaries as of December 31, 1998 and 1997, and the results of their
operations and their cash flows for each of the years in the three-year period
ended December 31, 1998 and for the period from February 12, 1988 (date of
inception) to December 31, 1998 in conformity with generally accepted accounting
principles.
/s/ KPMG PEAT MARWICK LLP
Boston, Massachusetts
March 26, 1999
<PAGE>
F-3
WAVE SYSTEMS CORP. AND SUBSIDIARIES
(a development stage corporation)
Consolidated Balance Sheets
December 31, 1998 and 1997
<TABLE>
<CAPTION>
Assets
1998 1997
---- ----
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 1,057,094 $ 758,721
Prepaid expenses and other receivables 5,000 -
------------ ------------
Total current assets 1,062,094 758,721
Property and equipment, net 888,261 849,276
Other assets 107,457 70,216
------------ ------------
2,057,812 1,678,213
============ ============
Liabilities and Stockholders' equity (deficiency)
Current liabilities:
Accounts payable and accrued expenses 3,029,158 1,427,762
Deferred license fee 1,250,000
-
Note payable 561,831 522,124
------------ ------------
Total current liabilities 4,840,989 1,949,886
------------ ------------
Series A Cumulative Redeemable Preferred Stock, $.01 par value.
360 shares issued and outstanding in 1998 and 1997; involuntary
liquidation value, $493,201 493,201 471,601
------- -------
Stockholders' Equity (deficiency):
Series G Convertible Preferred stock, $.01 par value. 150,000 shares
authorized and 20,000 outstanding in 1998 347,812 -
Common stock, $.01 par value. Authorized 75,000,000 shares as Class A;
issued and outstanding 28,402,149 in 1998 and 22,874,639 in 1997 284,022 228,747
Common stock, $.01 par value. Authorized 13,000,000 shares as Class B;
issued and outstanding 3,140,665 in 1998 and 4,421,953 in 1997 31,407 44,220
Capital in excess of par value 53,430,130 44,520,246
Deficit accumulated during the development stage (57,220,407) (45,324,463)
Less: Note receivable from stockholder, including accrued interest
of $101,167 in 1998 and $88,849 in 1997 (149,342) (212,024)
------------- -------------
Total stockholders' deficiency (3,276,378) (743,274)
------------- -------------
Commitments and contingencies
$ 2,057,812 $ 1,678,213
=========== ============
</TABLE>
See accompanying notes to consolidated financial statements.
<PAGE>
F-4
WAVE SYSTEMS CORP. AND SUBSIDIARIES
(a development stage corporation)
Consolidated Statements of Operations
Years ended December 31, 1998, 1997 and 1996 and
period from February 12, 1988 (date of inception)
through December 31, 1998
<TABLE>
<CAPTION>
Period from
February 12, 1988
(date of inception)
through
December 31,
1998 1997 1996 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net revenue $ 10,193 $ 10,712 $ 1,458 $ 22,363
------------ ------------ ------------ -----------
Operating expenses:
Selling, general and administrative 9,874,166 7,983,151 5,560,620 37,310,672
Write-off of goodwill - 769,886 - 769,886
Aladdin license and in process
research and development expense - 3,889,000 - 3,889,000
Research and development 3,508,968 2,146,127 3,309,022 18,254,781
---------- ----------- ----------- ----------
13,383,134 14,788,164 8,869,642 60,224,339
---------- ----------- ----------- ----------
Other income (expense):
License fee 2,750,000 1,000,000 - 3,750,000
License warrant cost (1,100,000) - (1,100,000)
Interest income 111,009 55,282 194,766 1,169,341
Interest expense (284,012) (175,624) (10,397) (850,492)
Other Income - - - 12,720
---------- ------------ ----------- -----------
1,476,997 879,658 184,369 2,981,569
---------- ------------ ----------- -----------
Net loss (11,895,944) (13,897,794) (8,683,815) (57,220,407)
Accrued dividends on preferred stock
(including accretion of assured incremental
yield on preferred stock of $750,000 in
1998, $1,673,000 in 1997 and 620,965 in 1996) 858,863 2,482,982 870,579 4,337,358
--------- ------------ ----------- -----------
Net loss to common stockholders $(12,754,807) $(16,380,776) $(9,554,394) $(61,557,765)
============ ============ =========== ===========
Weighted average number of common
shares outstanding during the period 29,299,844 20,943,748 14,956,584 11,570,172
Loss per common share $ (.44) $ (.78) $ (.64) $ (5.32)
=========== ============ ========== ===========
</TABLE>
See accompanying notes to consolidated financial statements.
<PAGE>
F-5
WAVE SYSTEMS CORP. AND SUBSIDIARIES
(a development stage corporation)
Consolidated Statements of Stockholders' Equity (Deficiency)
Period from February 12, 1988 (date of inception) to December 31, 1998
<TABLE>
<CAPTION>
Class A Class B Capital
common stock common stock in excess of
Shares Amount Shares Amount par value
------ ------ ------ ------ ---------
<S> <C> <C> <C> <C> <C>
Shares issued to founders at $.003 per share - $ - 4,680,000 $ 46,800 $(31,200)
Shares issued at $1.25 per share, net of expenses of
$36,574 from September through November 1988 - - 300,000 3,000 335,426
Net loss for period ended December 31, 1988 - - - - -
--- ---- --------- ------- --------
Balance at December 31, 1988 - - 4,980,000 49,800 304,226
Shares issued at $1.25 per share, net of expenses of
$68,750, from January through December 1989 - - 270,000 2,700 266,050
Shares issued at $1.25 per share in July 1989 as
compensation for services rendered - - 1,920 19 2,400
Shares issued by principal stockholders at $1.25
per share in December 1989 as compensation
for services rendered - - - - 374,000
Net loss for year ended December 31, 1989 - - - - -
--- ---- --------- ------- --------
Balance at December 31, 1989 - - 5,251,920 52,519 946,657
Shares issued by principal stockholder at $1.25
per share in March 1990 as compensation for
services rendered - - - - 56,250
Shares issued by principal stockholder at $.50 per
share in March 1990 as compensation for
services rendered - - - - 60,000
Shares issued at $1.67 per share in May 1990 as
compensation for services rendered - - 6,000 60 10,000
Shares issued at $1.67 per share, net of expenses of
$5,000 in March, April, November and December 1990 - - 390,000 3,900 641,100
Net loss for year ended December 31, 1990 - - - - -
--- ---- --------- ------- --------
Balance at December 31, 1990 - - 5,647,920 56,479 1,713,947
Shares issued at $1.67 per share from March
through November 1991 - - 315,000 3,150 521,850
Shares issued at $1.67 per share in November
1991 as compensation for services rendered - - 19,800 198 32,802
Net loss for year ended December 31, 1991 - - - - -
--- ---- --------- ------- --------
Balance at December 31, 1991 (carried forward) - - 5,982,720 59,827 2,268,599
<CAPTION>
Deficit
accumulated Note
during the receivable
development Deferred from
stage compensation stockholder Total
----- ------------ ----------- -----
<S> <C> <C> <C> <C>
Shares issued to founders at $.003 per share $ - $ - $ - $ 15,600
Shares issued at $1.25 per share, net of expenses of
$36,574 from September through November 1988 - - - 338,426
Net loss for period ended December 31, 1988 (326,832) - - (326,832)
---------- ---- ---- ---------
Balance at December 31, 1988 (326,832) - - 27,194
Shares issued at $1.25 per share, net of expenses of
$68,750, from January through December 1989 - - - 268,750
Shares issued at $1.25 per share in July 1989 as
compensation for services rendered 2,381 - - 2,400
Shares issued by principal stockholders at $1.25
per share in December 1989 as compensation
for services rendered - - - 374,000
Net loss for year ended December 31, 1989 (982,186) - - (982,186)
---------- ---- ---- ---------
Balance at December 31, 1989 (1,309,018) - - (309,842)
Shares issued by principal stockholder at $1.25
per share in March 1990 as compensation for
services rendered - - - 56,250
Shares issued by principal stockholder at $.50 per
share in March 1990 as compensation for
services rendered - - - 60,000
Shares issued at $1.67 per share in May 1990 as
compensation for services rendered 9,940 - - 10,000
Shares issued at $1.67 per share, net of expenses of
$5,000 in March, April, November and December 1990 - - - 645,000
Net loss for year ended December 31, 1990 (1,178,129) - - (1,178,129)
---------- ---- ---- ---------
Balance at December 31, 1990 (2,487,147) - - (716,721)
Shares issued at $1.67 per share from March
through November 1991 - - - 525,000
Shares issued at $1.67 per share in November
1991 as compensation for services rendered - - - 33,000
Net loss for year ended December 31, 1991 (1,009,368) - - (1,009,368)
---------- ---- ---- ---------
Balance at December 31, 1991 (carried forward) (3,496,515) - - (1,168,089)
</TABLE>
<PAGE>
F-6
WAVE SYSTEMS CORP. AND SUBSIDIARIES
(a development stage corporation)
Consolidated Statements of Stockholders' Equity (Deficiency) - (Continued)
<TABLE>
<CAPTION>
Deficit
accumulated
Class A Class B Capital during the
common stock common stock in excess of development
Shares Amount Shares Amount par value stage
------ ------ ------ ------ --------- -----
<S> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1991 (brought forward) - - 5,982,720 59,827 2,268,599 (3,496,515)
Shares issued at $1.67 per share from January through
October 1992 - - 708,000 7,080 1,172,920 -
Shares issued at $1.67 per share in May 1992 in connection
with License and Cross-License Agreement - - 674,976 6,750 1,118,210 -
Shares issued at $1.67 per share in May 1992 as
compensation for services rendered - - 18,000 180 29,820 30,000
Shares issued at $2.50 per share in May and November
1992 as compensation for services rendered - - 771,000 7,710 1,919,790 -
Shares issued at $2.50 per share, net of expenses
of $7,500, in November and December 1992 - - 323,001 3,230 796,773 -
Shares issued by principal stockholder in
December 1992 at $2.50 per share as
compensation for services rendered - - - - 75,000 75,000
Shares canceled in October and December 1992 - - (75,000) (750) 750 -
Issuance of stock options at $.003 exercise price
per share in June 1992 - - - - 798,400 -
Amortization of deferred compensation - - - - - 155,455
Accrued dividends on preferred stock - - - - (6,383) (6,383)
Note received from stockholder and accrual of
interest thereon - - - - - -
Net loss for year ended December 31, 1992 - - - - - (4,182,638)
--- --- --- --- --- ---------
Balance at December 31, 1992 (carried forward) - - 8,402,697 84,027 8,173,879 (7,679,153)
<CAPTION>
Note
receivable
Deferred from
compensation stockholder Total
------------ ----------- -----
<S> <C> <C> <C>
Balance at December 31, 1991 (brought forward) - - (1,168,089)
Shares issued at $1.67 per share from January through
October 1992 - - 1,180,000
Shares issued at $1.67 per share in May 1992 in connection
with License and Cross-License Agreement - - 1,124,960
Shares issued at $1.67 per share in May 1992 as
compensation for services rendered - - 30,000
Shares issued at $2.50 per share in May and November
1992 as compensation for services rendered - - 1,927,500
Shares issued at $2.50 per share, net of expenses
of $7,500, in November and December 1992 - - 800,003
Shares issued by principal stockholder in
December 1992 at $2.50 per share as
compensation for services rendered - - 75,000
Shares canceled in October and December 1992 - - -
Issuance of stock options at $.003 exercise price
per share in June 1992 (398,660) - 399,740
Amortization of deferred compensation - 155,455 155,455
Accrued dividends on preferred stock - - (6,383)
Note received from stockholder and accrual of
interest thereon - (152,974) (152,974)
Net loss for year ended December 31, 1992 - - (4,182,638)
--- --- ---------
Balance at December 31, 1992 (carried forward) (243,205) (152,974) 182,574
</TABLE>
<PAGE>
F-7
WAVE SYSTEMS CORP. AND SUBSIDIARIES
(a development stage corporation)
Consolidated Statements of Stockholders' Equity (Deficiency) - (Continued)
<TABLE>
<CAPTION>
Deficit
accumulated
Class A Class B Capital during the
common stock common stock in excess of development
Shares Amount Shares Amount par value stage
------ ------ ------ ------ --------- -----
<S> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1992 (brought forward) - - 8,402,697 84,027 8,173,879 (7,679,153)
Shares issued at $1.67 per share in February 1993 - - 30,000 300 49,800 -
Shares issued at $3.50 per share, net of expenses of
$82,427, from April through December 1993 - - 550,359 5,504 1,838,294 -
Shares issued at $3.50 per share from May to December
1993 as compensation for services rendered, for the
acquisition of property and equipment and as additional
interest on borrowings - - 73,319 733 255,884 -
Issuance of warrants to purchase Class B common stock
from September to December 1993 in conjunction with
the issuance of convertible debt - - - - 72,893 72,893
Amortization of deferred compensation - - - - - -
Accrued dividends on preferred stock - - - - (38,467) -
Note received from stockholder and accrual of
interest thereon - - - - - -
Net loss for year ended December 31, 1993 - - - - - (3,959,334)
--------- ------ --------- ------ ---------- ----------
Balance at December 31, 1993 - - 9,056,375 90,564 10,352,283 (11,638,487)
Shares issued at $3.50 per share in January and
February 1994 - - 95,715 957 334,046 -
Shares issued at $3.50 per share in February 1994
as additional interest on borrowings - - 5,700 57 19,893 -
Issuance of warrants to purchase Class B common stock
in January and February 1994 in conjunction with
the issuance of convertible debt - - - - 115,234 -
Accrued dividends on preferred stock - - - - (39,484) -
Accrual of interest on note receivable from stockholder - - - - - -
Sale of warrants to underwriter in September 1994 - - - - 4 -
Conversion of notes payable - - 599,507 5,995 2,079,131 -
Shares issued at $5.00 per share in initial public offering
in September 1994, net of expenses of $2,929,835 3,728,200 37,282 - - 15,673,883 -
Net loss for year ended December 31, 1994 - - - - - (4,271,501)
--------- ------ --------- ------ ---------- ----------
Balance at December 31, 1994 (carried forward) 3,728,200 37,282 9,757,297 97,573 28,534,990 (15,909,988)
<CAPTION>
Note
receivable
Deferred from
compensation stockholder Total
------------ ----------- -----
<S> <C> <C> <C>
Balance at December 31, 1992 (brought forward) (243,205) (152,974) 182,574
Shares issued at $1.67 per share in February 1993 - - 50,100
Shares issued at $3.50 per share, net of expenses of
$82,427, from April through December 1993 - - 1,843,798
Shares issued at $3.50 per share from May to December
1993 as compensation for services rendered, for the
acquisition of property and equipment and as additional
interest on borrowings - - 256,617
Issuance of warrants to purchase Class B common stock
from September to December 1993 in conjunction with
the issuance of convertible debt - - 72,893
Amortization of deferred compensation 243,205 - 243,205
Accrued dividends on preferred stock - - (38,467)
Note received from stockholder and accrual of
interest thereon - (39,783) (39,783)
Net loss for year ended December 31, 1993 - - (3,959,334)
------- ------- ----------
Balance at December 31, 1993 - (192,757) (1,388,397)
Shares issued at $3.50 per share in January and
February 1994 - - 335,003
Shares issued at $3.50 per share in February 1994
as additional interest on borrowings - - 19,950
Issuance of warrants to purchase Class B common stock
in January and February 1994 in conjunction with
the issuance of convertible debt - - 115,234
Accrued dividends on preferred stock - - (39,484)
Accrual of interest on note receivable from stockholder - (17,315) (17,315)
Sale of warrants to underwriter in September 1994 - - 4
Conversion of notes payable - - 2,085,126
Shares issued at $5.00 per share in initial public offering
in September 1994, net of expenses of $2,929,835 - - 15,711,165
Net loss for year ended December 31, 1994 - - (4,271,501)
------- ------- ----------
Balance at December 31, 1994 (carried forward) - (210,072) 12,549,785
</TABLE>
<PAGE>
F-8
WAVE SYSTEMS CORP. AND SUBSIDIARIES
(a development stage corporation)
Consolidated Statements of Stockholders' Equity (Deficiency) - (Continued)
<TABLE>
<CAPTION>
Class A Class B Capital
common stock common stock in excess of
Shares Amount Shares Amount par value
------ ------ ------ ------ ---------
<S> <C> <C> <C> <C> <C>
Balance at December 31, 1994 (brought forward) 3,728,200 37,282 9,757,297 97,573 28,534,990
Shares issued at prices ranging from $1.00 per share to
$3.13 per share as compensation for services rendered 31,559 315 - - 57,184
Exercise of options to purchase Class B stock - - 681,700 6,817 429,413
Accrued dividends on preferred stock - - - - (40,600)
Accrual of interest on note receivable from stockholder - - - - -
Exchange of Class B stock for Class A stock 2,855,859 28,559 (2,855,859) (28,559) -
Net loss for the year ended December 31, 1995 - - - - -
---------- ------- --------- ------ ----------
Balance at December 31, 1995 6,615,618 66,156 7,583,138 75,831 28,980,987
Exercise of options to purchase Class A stock 214,091 2,141 - - 420,366
Shares issued at prices ranging from $2.06 per share to
$3.44 per share as compensation for services rendered 42,077 421 - - 123,029
Issuance of unregistered Class B common stock to acquire
Wave Interactive Network valued at approximately
$.98 per share - - 375,000 3,750 364,688
Issuance of warrants to purchase unregistered shares of
Class A common stock in conjunction with the issuance
of convertible debt and preferred stock - - - - 283,455
Conversion of Class B Preferred Stock 2,960,303 29,603 - - 3,078,921
Accrual of interest on note receivable - - - - -
Accrued dividends on preferred stock - - - - (199,014)
Exchange of Class B stock for Class A stock 1,749,997 17,500 (1,749,997) (17,500) -
Net loss for the year ended December 31, 1996 - - - - -
---------- ------- --------- ------ ----------
Balance at December 31, 1996 11,582,086 115,821 6,208,141 62,081 33,052,432
---------- ------- --------- ------ ----------
Exercise of options to purchase Class A and B common stock 70,326 703 10,330 104 139,081
Shares issued at prices ranging from $1.00 per share
to $3.00 per share as compensation for services
rendered 126,885 1,269 - - 304,227
Conversion of preferred stock into common stock 7,998,860 79,989 - - 6,703,028
Issuance of Class A common stock and warrants to
purchase Class A common stock to Aladdin 500,000 5,000 - - 3,834,000
Issuance of Class A common stock and warrants to
purchase Class A common stock 799,964 8,000 - - 792,000
Reduction in note receivable - - - - -
Accrual of interest on note receivable - - - - -
Issuance of warrants to purchase Class A common stock
in conjunction with the issuance of preferred stock - - - - 386,462
Accrued dividend on preferred stock including accretion
of assured incremental yield - - - - (1,372,984)
Assured incremental yield on issuance of Series F
convertible preferred stock and debt - - - - 682,000
Net loss - - - - -
Exchange of Class B stock for Class A stock 1,796,518 17,965 (1,796,518) (17,965) -
---------- ------- --------- ------ ----------
Balance at December 31, 1997 22,874,639 $228,747 4,421,953 $44,220 $44,520,246
<CAPTION>
Deficit
accumulated Note
during the receivable
development Deferred from
stage compensation stockholder Total
----- ------------ ----------- -----
<S> <C> <C> <C> <C>
Balance at December 31, 1994 (brought forward) (15,909,988) - (210,072) 12,549,785
Shares issued at prices ranging from $1.00 per share to
$3.13 per share as compensation for services rendered - - - 57,499
Exercise of options to purchase Class B stock - - - 436,230
Accrued dividends on preferred stock - - - (40,600)
Accrual of interest on note receivable from stockholder - - (17,318) (17,318)
Exchange of Class B stock for Class A stock - - - -
Net loss for the year ended December 31, 1995 (6,832,866) - - (6,832,866)
---------- --- ------- -------
Balance at December 31, 1995 (22,742,854) - (227,390) 6,152,730
Exercise of options to purchase Class A stock - - - 422,507
Shares issued at prices ranging from $2.06 per share to
$3.44 per share as compensation for services rendered - - - 123,450
Issuance of unregistered Class B common stock to acquire
Wave Interactive Network valued at approximately
$.98 per share - - - 368,438
Issuance of warrants to purchase unregistered shares of
Class A common stock in conjunction with the issuance
of convertible debt and preferred stock - - - 283,455
Conversion of Class B Preferred Stock - - - 3,108,524
Accrual of interest on note receivable - - (17,3150 (17,315)
Accrued dividends on preferred stock - - - (199,014)
Exchange of Class B stock for Class A stock - - - -
Net loss for the year ended December 31, 1996 (8,683,815) - - (8,683,815)
---------- --- ------- -------
Balance at December 31, 1996 (31,426,669) - (244,705) 1,558,960
---------- --- ------- -------
Exercise of options to purchase Class A and B common stock - - - 139,888
Shares issued at prices ranging from $1.00 per share
to $3.00 per share as compensation for services
rendered - - - 305,496
Conversion of preferred stock into common stock - - - 6,783,017
Issuance of Class A common stock and warrants to
purchase Class A common stock to Aladdin - - - 3,839,000
Issuance of Class A common stock and warrants to
purchase Class A common stock - - - 800,000
Reduction in note receivable - - 50,000 50,000
Accrual of interest on note receivable - - (17,319) (17,319)
Issuance of warrants to purchase Class A common stock
in conjunction with the issuance of preferred stock - - - 386,462
Accrued dividend on preferred stock including accretion
of assured incremental yield - - - (1,372,984)
Assured incremental yield on issuance of Series F
convertible preferred stock and debt - - - 682,000
Net loss (13,897,794) - - (13,897,794)
Exchange of Class B stock for Class A stock - - - -
---------- --- ------- -------
Balance at December 31, 1997 $(45,324,463) $ - $(212,024) $(743,274)
</TABLE>
See accompanying notes to consolidated financial statements.
<PAGE>
F-9
WAVE SYSTEMS CORP. AND SUBSIDIARIES
(a development stage corporation)
Consolidated Statements of Stockholders' Equity (Deficiency) - (Continued)
<TABLE>
<CAPTION>
Class A Class B Capital
common stock common stock in excess of
Shares Amount Shares Amount par value
------ ------ ------ ------ ---------
<S> <C> <C> <C> <C> <C>
Balance at December 31, 1997 22,874,639 $228,747 4,421,953 $44,220 $44,520,246
---------- ------- ----------- -------- ---------
Exercise of options to purchase Class A common stock 77,558 775 151,180
Options issued to employees below fair market-value - - - - 234,723
Exercise of warrants to purchase Class A common stock 1,652,770 16,528 - - 3,945,740
Warrants to purchase Class A common stock
to be issued as part of technology licensing
agreement and issued to consultants for services - - - - 1,546,824
Shares issued at prices ranging from $1.00 per share
to $5.00 per share as compensation for services
rendered 121,400 1,214 - - 647,274
Reduction in note receivable - - - - -
Issuance of Series G Convertible Preferred stock and
Common stock warrants, net of issuance costs of $222,500 - - - - 218,250
Assured incremental yield on issuance of Series G
convertible preferred stock and debt - - - - 750,000
Accrual of interest on note receivable - - - - -
Accrued dividend on preferred stock including accretion
of assured incremental yield - - - - (858,863)
Conversion of Series G Preferred Stock 2,394,494 23,945 - - 2,274,756
Net loss - - - - -
Exchange of Class B stock for Class A stock 1,281,288 12,813 (1,281,288) (12,813) -
---------- ------- ----------- -------- ---------
Balance at December 31, 1998 28,402,149 $284,022 3,140,665 $31,407 $53,430,130
========== ======= ========= ====== ==========
<CAPTION>
Deficit
accumulated Series G Note
during the Convertible receivable
development Preferred from
stage Stock stockholder Total
----- ----- ----------- -----
<S> <C> <C> <C> <C>
Balance at December 31, 1997 $(45,324,463) - $(212,024) $(743,274)
---------- ------- ------- ----------
Exercise of options to purchase Class A common stock - - - 151,955
Options issued to employees below fair market-value - - - 234,723
Exercise of warrants to purchase Class A common stock - - - 3,962,268
Warrants to purchase Class A common stock
to be issued to ITG as part of technology licensing
agreement and issued to consultants for services - - - 1,546,824
Shares issued at prices ranging from $1.00 per share
to $5.00 per share as compensation for services
rendered - - - 648,488
Reduction in note receivable - - 75,000 75,000
Conversion of Series G Preferred Stock - (2,298,701) - -
Issuance of Series G Convertible Preferred stock and
Common stock warrants, net of issuance costs of $222,500 - 1,809,250 - 2,027,500
Accrual of interest on note receivable - - (12,318) (12,318)
Accrued dividend on preferred stock including accretion
of assured incremental yield - 837,263 - (21,600)
Assured incremental yield on issuance of Series G
convertible preferred stock and debt - - - 750,000
Net loss (11,895,944) - - (11,895,944)
Exchange of Class B stock for Class A stock - - - -
---------- ------- ------- ----------
Balance at December 31, 1998 $(57,220,407) $ 347,812 $(149,342) $(3,276,378)
============= ========= ========== ============
</TABLE>
See accompanying notes to consolidated financial statements.
<PAGE>
F-10
WAVE SYSTEMS CORP. AND SUBSIDIARIES
(a development stage corporation)
Consolidated Statements of Cash Flows
Years ended December 31, 1998, 1997, 1996 and the Period
From February 12, 1988 (Date of Inception) through December 31, 1998
<TABLE>
<CAPTION>
Period from
February 12, 1988
(date of inception)
through
December 31,
1998 1997 1996 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Cash flows from operating activities:
Net loss $(11,895,944) $(13,897,794) $(8,683,815) $(57,220,407)
Adjustments to reconcile net loss to net cash
used in operating activities:
Write-off of goodwill - 769,886 - 769,886
Depreciation and amortization 332,741 486,693 316,829 1,520,109
Reserve for note from affiliate - - 1,004,934 1,672,934
Accrued interest on marketable securities - 48,617 (106,962)
Noncash expenses:
Accretion of assured incremental yield on
convertible debt - 119,000 - 119,000
Common stock issued in connection with
License and Cross-License Agreement - - - 1,124,960
Common stock issued for services rendered
and additional interest on borrowings 648,488 305,496 40,938 3,325,546
Warrants to be issued to ITG and warrants
issued as compensation for services 1,546,824 - - 1,546,824
Issuance of warrants to Aladdin - 2,939,000 - 2,939,000
Accrued interest on note payable 39,707 56,624 9,500 105,831
Preferred stock issued for services rendered - - - 265,600
Compensation associated with issuance of
stock options 234,723 - - 634,463
Amortization of deferred compensation - - - 398,660
Amortization of discount on notes payable - - - 166,253
Common stock issued by principal stockholder
for services rendered - - - 565,250
Changes in assets and liabilities:
Increase in Deferred License fee 1,250,000 - - 1,250,000
Increase in accrued interest on note receivable (12,318) (17,319) (17,315) (101,168)
(Increase) decrease in prepaid expenses and
other receivables (5,000) 70,358 64,413 (5,000)
(Increase) decrease in other assets (37,241) 184,771 (53,346) (122,373)
(Decrease) increase in accounts payable and
accrued expenses 1,601,396 490,599 (191,103) 3,166,670
----------- --------- ------------- -----------
Net cash used in operating activities (6,296,624) (8,492,686) (7,460,348) (37,984,924)
----------- ----------- ----------- ----------
</TABLE>
(Continued)
<PAGE>
F-11
WAVE SYSTEMS CORP. AND SUBSIDIARIES
(a development stage corporation)
Consolidated Statements of Cash Flows, Continued
<TABLE>
<CAPTION>
Period from
February 12, 1988
(date of inception)
through
December 31,
1998 1997 1996 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Cash flows from investing activities:
Acquisition of property and equipment (371,726) (256,306) (252,439) (2,178,844)
Short-term loans to affiliate - - (1,004,934) (1,672,934)
Organizational costs - - - (14,966)
Purchase of marketable securities-held to maturity - - (2,945,458) (27,546,769)
Maturity of marketable securities-held to maturity - - 6,843,041 27,653,731
---------- ---------- ---------- -----------
Net cash provided by (used in) investing
activities (371,726) (256,306) 2,640,210 (3,759,782)
---------- ---------- ---------- -----------
Cash flows from financing activities:
Net proceeds from issuance of common stock 4,114,223 1,837,889 422,507 28,523,694
Net proceeds from issuance of preferred stock
and warrants 2,777,500 3,555,500 5,950,027 12,283,027
Sale of warrants - - - 4
Note receivable from stockholder 75,000 50,000 - (48,175)
Proceeds from notes payable and warrants to
stockholders - - - 2,083,972
Repayments of notes payable to stockholders - - - (1,069,972)
Proceeds from notes payable and warrants - - - 1,284,250
Repayments of note payable - - - (255,000)
Advances from stockholder - - - 227,598
Repayments of advances from stockholder - - - (227,598)
Increase in deferred offering costs - - - -
--------- --------- ----------- ----------
Net cash provided by financing activities 6,966,723 5,443,389 6,372,534 42,801,800
--------- --------- ----------- ----------
Net increase (decrease) in cash and cash equivalents 298,373 (3,305,603) 1,552,396 1,057,094
Cash and cash equivalents at beginning of period 758,721 4,064,324 2,511,928 -
--------- --------- ----------- ----------
Cash and cash equivalents at end of period $ 1,057,094 $ 758,721 $ 4,064,324 $ 1,057,094
=========== =========== ========= ============
</TABLE>
See accompanying notes to consolidated financial statements.
<PAGE>
F-12
WAVE SYSTEMS CORP. AND SUBSIDIARIES
(a development stage corporation)
Notes to Consolidated Financial Statements
December 31, 1998, 1997, 1996 and The Period From February 12, 1988
(Date of Inception) Through December 31, 1998
(1) Organization and Basis of Preparation
Wave Systems Corp. (the "Company" or "Wave") is engaged in the research and
development of a proprietary system (the "Wave System") for use with a
computer, that measures, controls, and records the use of electronic
content. The Company is also engaged in various research, development and
marketing efforts to commercialize the Wave System to provide more
efficient and flexible pricing (e.g., pay per use or rent-to-own) and
greater security on the usage of the electronic content. The Company is in
the development stage and, accordingly, the accompanying consolidated
financial statements are presented in a format prescribed for a development
stage enterprise.
The Company has incurred significant losses in current and prior periods.
Management intends to continue to devote resources toward the research,
development and marketing of its products in order to generate future
revenues from licensing and product sales. In addition, the Company is
actively pursuing additional short- and long-term financing sources,
including debt and equity financing and on March 23, 1999 completed an
offering of common stock for net proceeds of approximately $23 million, as
discussed in Note 13. Management anticipates that the proceeds of this
offering will be sufficient to fund operations through the end of the third
quarter of 2000. However, while management believes that it can
successfully research, develop and market its products and obtain
additional financing to fund operations beyond 2000, there can be no
assurance that it will be able to do so.
(2) Significant Accounting Policies
(a) Principles of Consolidation
The consolidated financial statements include the financial statements of
Wave; a wholly owned subsidiary, Harvard International Medical Library,
Inc., doing business as MedWave; a majority owned inactive subsidiary,
Network News Corp. ("NNC"); and a wholly owned inactive subsidiary. All
significant intercompany balances and transactions have been eliminated
in consolidation.
(b) Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities
and disclosure of contingent assets and liabilities at the date of the
financial statements and the reported amounts of expenses during the
reporting period. Actual results could differ from those estimates.
(c) Cash Equivalents
For purposes of the consolidated statements of cash flows, the Company
considers all highly liquid instruments with a maturity of three months
or less to be cash equivalents.
(d) Property and Equipment
Property and equipment, including computer software, are stated at cost.
Depreciation is computed using the straight-line method over estimated
useful lives of five years.
<PAGE>
F-13
WAVE SYSTEMS CORP. AND SUBSIDIARIES
(a development stage corporation)
Notes to Consolidated Financial Statements - (Continued)
(e) Goodwill
Goodwill, which represents the excess of purchase price over the fair value
of net assets acquired, is amortized on a straight-line basis over the
period expected to be benefited of five years. The Company assesses the
recoverability of this intangible asset by determining whether the
amortization of the goodwill balance over its remaining life can be
recovered through undiscounted future operating cash flows of the related
acquired operation. The amount of goodwill impairment, if any, is
measured based on projected discounted future operating cash flows using
a discount rate reflecting the Company's average cost of funds. The
assessment of the recoverability of goodwill is impacted if estimated
future operating cash flows are not achieved. During the third quarter of
1997, the Company wrote-off goodwill related to the WIN acquisition as it
was uncertain whether the current and expected future results of
operations of WIN would be sufficient to support its carrying value.
(f) Income Taxes
The Company accounts for income taxes under the asset and liability method.
As such, deferred tax assets and liabilities are recognized for the
future tax consequences attributable to differences between the financial
statement carrying amounts of existing assets and liabilities and their
respective tax bases and operating loss and tax credit carryforwards.
Deferred tax assets and liabilities are measured using enacted tax rates
expected to apply to taxable income in the years in which those temporary
differences are expected to be recovered or settled. The effect on
deferred tax assets and liabilities of a change in tax rates is
recognized in income in the period that includes the enactment date.
(g) Stock Option Plan
The Company accounts for its stock option plans in accordance with the
provisions of Accounting Principles Board ("APB") Opinion No. 25,
Accounting for Stock Issued to Employees, and related interpretations. As
such, compensation expense is recorded on the date of grant only if the
current market price of the underlying stock exceeds the exercise price.
On January 1, 1996, the Company adopted the disclosure provisions of
Statement of Financial Accounting Standards ("SFAS") No. 123, Accounting
for Stock Based Compensation and accordingly, provides pro forma net
income and pro forma earnings per share footnote disclosures for employee
stock options as if the fair value-based method defined in SFAS No. 123
had been applied.
(h) Research and Development
Research and development costs are expensed as incurred.
<PAGE>
F-14
WAVE SYSTEMS CORP. AND SUBSIDIARIES
(a development stage corporation)
Notes to Consolidated Financial Statements - (Continued)
(i) Loss Per Share
Basic net loss per common share has been calculated based upon the weighted
average number of shares of common stock outstanding during the period. No
effect has been given to common stock equivalents or convertible preferred
stock, warrants or debt in the diluted loss per common share as they are
all anti-dilutive. Included in net loss to common stockholders is the
accretion of the assured incremental yield related to the ability of the
Series B, C, D, F and G preferred stockholders to acquire common stock upon
conversion at a discount. The assured incremental yield is being accreted
as a dividend over the periods from the dates of issuance of the preferred
stock to the earliest eligible dates for conversion.
(j) Impairment of Long-Lived Assets and Long-Lived Assets to Be Disposed Of
The Company reviews its long-lived assets and certain identifiable
intangibles for impairment whenever events or changes in circumstances
indicate that the carrying amount of an asset may not be recoverable.
Recoverability of assets to be held and used is measured by a comparison
of the carrying amount of an asset to future net cash flows expected to
be generated by the asset. If such assets are considered to be impaired,
the impairment to be recognized is measured by the amount by which the
carrying amount of the assets exceed the fair value of the assets. Assets
to be disposed of are reported at the lower of the carrying amount or
fair value less costs to sell.
(k) Reclassifications
Certain reclassifications have been made to the 1996 and 1997 consolidated
financial statements to conform to the 1998 presentation.
(3) Related Party Transactions
(a) Note Receivable from Stockholder
A stockholder, the Chairman and Chief Executive Officer of the Company, was
indebted to the Company at December 31, 1998 and 1997 under two
promissory notes totaling $149,342, including accrued interest, due on
demand. During 1998 and 1997, $75,000 and $50,000, respectively, of the
Chairman and Chief Executive Officer's bonus was used to reduce the
principal owed.
The notes are secured by a pledge of 67,000 shares of Class B common stock
held by the stockholder and officer. The notes bear interest at 10% per
annum. The notes and accrued interest thereon have been shown as a
deduction from stockholders' equity in the accompanying consolidated
financial statements.
(b) Payment to Related Party
In 1997, the Company paid $182,209 to Enterprise Engineering Associates
("EEA"), during which time Mr. Michael Sprague was an employee of EEA. On
August 1, 1997, Michael Sprague became an employee of Wave, at an annual
salary of $110,000. Michael Sprague is the son of the Chairman and Chief
Executive Officer of the Company.
In 1998, the Company paid $25,000 to Studio 2, during which time Mr. Kevin
Sprague was an employee of Studio 2. Kevin Sprague is the son of the
Chairman and CEO of the Company.
(Continued)
<PAGE>
F-15
WAVE SYSTEMS CORP. AND SUBSIDIARIES
(a development stage corporation)
Notes to Consolidated Financial Statements, (Continued)
(c) Acquisition and Dispositions
In November 1995, the Company entered into a transaction with certain
individuals whereby shares in its newly-formed subsidiary, Wave
Interactive Network, Inc. ("WIN"), were transferred in exchange for a
demand note. The amount of the demand note was based on the level of
funding provided to WIN by the Company during 1995. The demand note from
WIN accrued interest at a rate of Prime plus 1% and, subject to certain
limitations associated with WIN's ability to raise additional capital,
was convertible into an undiluted 20% of the common shares of WIN at the
option of Wave. The Company retained a 1% ownership in WIN and
transferred the remaining ownership to certain individuals, including
former employees. Approximately 65% of the ownership was transferred to
Steven Sprague, President and CEO of WIN, and three other children of Mr.
Peter J. Sprague, Chairman and CEO of Wave. The note was fully reserved
as its collectibility was dependent upon WIN's ability to raise
additional capital. In addition, the Company entered into a separate
commercial agreement that, among other things, granted certain
distribution rights to WIN in exchange for royalties and other
consideration.
During 1996, the Company continued to finance the operations of WIN through
additional demand notes with terms similar to the original demand note.
The additional notes amounting to $1,004,000 were also fully reserved. On
December 30, 1996, effective as of October 18, 1996, the Company entered
into a merger agreement with WIN whereby the Company exchanged, for all
of the outstanding WIN common stock that it did not own, 375,000 shares
of Class B common stock. These Class B shares are restricted securities
within the meaning of Rule 144 of the Securities Act of 1933, as amended
(the "Act"). Additionally, based on the attainment of a specified
milestone, the shareholders of WIN are entitled to receive an additional
325,000 shares of the Company's Class B common stock. The Company also
issued a 10% convertible note and a warrant to refinance a convertible
note obligation of WIN amounting to approximately $456,000, which
included accrued interest to October 18, 1996, and an outstanding
warrant. Included in the results of operations are WIN's operations from
October 18, 1996. The acquisition was accounted for by the purchase
method.
The purchase price of $952,438 was determined based on the estimated fair
value of the consideration given to the WIN shareholders and noteholders
and was allocated to goodwill as WIN had no net tangible assets.
Subsequently, in 1997, the Company determined it was uncertain whether
the current and expected future results of operations of WIN would be
adequate to support the goodwill capitalization, and wrote-off the
goodwill as impaired. If the contingent consideration of an additional
325,000 shares is issued, the value ascribed to such consideration will
be expensed.
<PAGE>
F-16
WAVE SYSTEMS CORP. AND SUBSIDIARIES
(a development stage corporation)
Notes to Consolidated Financial Statements, (Continued)
(4) Property and Equipment
Property and equipment as of December 31 consisted of the following:
<TABLE>
<CAPTION>
1998 1997
---- ----
<S> <C> <C>
Equipment $ 1,554,001 $ 1,297,702
Furniture, fixtures and improvements 459,822 389,530
Computer software 171,363 128,228
---------- ----------
2,185,186 1,815,460
Less: Accumulated depreciation 1,296,925 966,184
---------- ----------
Total $ 888,261 $ 849,276
========== ==========
</TABLE>
Depreciation expense on property and equipment amounted to approximately
$333,000, $344,000, $272,000 and $1,297,000 for the years ended December
31, 1998, 1997, and 1996 and for the period from inception through December
31, 1998, respectively.
(5) Notes Payable
Inconnection with the acquisition of WIN, the Company issued a 10%
convertible note amounting to $456,000 and a warrant to refinance WIN's
obligation to a WIN noteholder. The note was convertible any time after
April 1, 1997 and became due, including accrued interest of $66,125, on
April 18, 1998. The note was convertible into a number of the Company's
unregistered Class A common stock for a period beginning on April 1, 1997
and ending April 18, 1998 calculated as the greater of (a) the number of
shares that would be acquired at 80% of the fair market value of the Class
A common stock or (b) 250,000 shares plus 2,000 shares for each month the
note is outstanding.
On October 18, 1998 the Company restated and amended the note. The note is
now convertible any time after April 1, 1999 and up to April 18, 1999. The
conversion price was reduced to $0.95 per share of common stock. An
additional 75,000 warrants were issued as part of this amended note and the
fair value of these warrants was $106,000. Additionally, the fair value of
the reduced conversion price was $274,000. Such amounts will be amortized
as additional interest expense from the date the note was amended and
warrant issued through the earliest conversion date of April 1, 1999.
During 1998, approximately $123,000 of the value of the reduced conversion
rate and warrant was recorded as interest expense.
(6) Accounts Payable and Accrued Expenses
Accounts payable and accrued expenses as of December 31 consisted of the
following:
<TABLE>
<CAPTION>
1998 1997
---- ----
<S> <C> <C>
Accrual of costs related to the ITG agreement $ 490,000 $ 490,000
Accounts payable 755,521 298,486
Accrued consulting and professional fees 155,000 264,495
Legal Settlement (note 13 602,000 -
Accrued payroll and related costs 816,269 318,403
Lease payable 60,169 -
Other accrued liabilities 150,199 56,378
--------- ---------
Total $ 3,029,158 $ 1,427,762
========= =========
</TABLE>
<PAGE>
F-17
WAVE SYSTEMS CORP. AND SUBSIDIARIES
(a development stage corporation)
Notes to Consolidated Financial Statements, (Continued)
(7) Capital Stock
(a) Redeemable Preferred Stock
The Company has authorized 2,000,000 shares of preferred stock having a par
value of $.01 per share. On October 19, 1992, the Board of Directors
designated and issued 360 shares of this preferred stock of the Company
as "Series A Cumulative Redeemable Preferred Stock" ("Series A Preferred
Stock").
The Series A Preferred Stock was issued in settlement of compensation owed
to a former officer of the Company for services provided to the Company.
The holder of the Series A Preferred Stock is entitled to receive a
dividend at the rate of $60 per share per annum, when and as declared by
the Board of Directors of the Company. Dividends are cumulative from the
date of original issue, and payable upon redemption.
N dividends may be declared upon the common stock of the Company unless
full cumulative dividends on the Series A Preferred Stock have been
declared and a sum sufficient for the payment thereof has been set apart
for such payment. The stock is non-voting and redeemable at $1,000 per
share, plus accumulated dividends, at any time at the option of the
Company. The stock is subject to mandatory redemption five years from the
date of issuance, or October 1997. Because the dividend rate on the
Preferred Stock was below market rates, the stock was discounted to yield
a market rate of 12% at the time of issuance, resulting in a discount of
$94,400. Dividends of $21,600, $39,267, and $41,800 have been accrued for
the years ended December 31, 1998, 1997 and 1996, respectively. The
holder has not notified the Company of his intention to redeem the stock.
The Company continues to accrue dividends until receipt of such
intention.
In May of 1996, the Company raised $3,214,026, net of issuance costs of
$285,974, through the placement of 350 shares of Series B Preferred Stock
("Series B Preferred Stock") pursuant to Regulation S of the Securities
Act of 1933 ("the Act"). The Series B Preferred Stock has a stated value
of $10,000 per share, which accrues dividends for liquidation and
conversion purposes at 6% per annum, and ranks senior to the Company's
common stock and Series C Convertible Preferred Stock ("Series C
Preferred Stock") and junior to the Series A Preferred Stock. Series B
Preferred Stock was convertible by the holder, in increments, into the
Company's Class A common stock. The Series B Preferred Stock was
convertible at the lesser of 110% of the average closing bid price for
the five days immediately preceding the issue date or 85% of the average
closing bid price for the five days immediately preceding the conversion
date. During 1996, 330 shares of the Company's Series B Preferred Stock
were converted into 2,960,303 shares of the Company's Class A common
stock and the remaining 20 shares of Series B preferred were converted in
1997 into 117,240 shares of the Company's Class A common stock.
In December of 1996, the Company raised $2,634,037 net of issuance costs of
$365,963 ($101,964 of which related to the value ascribed to warrants
issued) through the placement of 150,000 shares of Series C Preferred
Stock pursuant to Regulation D of the Act. The Series C Preferred Stock
has a stated value of $20 per share, which accrues dividends payable
quarterly in cash at 6% per annum.
(Continued)
<PAGE>
F-18
WAVE SYSTEMS CORP. AND SUBSIDIARIES
(a development stage corporation)
Notes to Consolidated Financial Statements, (Continued)
The Series C Preferred Stock ranks senior to the Company's common stock and
junior to the Series A and B Preferred Stock. Series C Preferred Stock
was convertible by the holder, in increments, into the Company's Class A
common stock based on the market price of the Company's Class A common
stock at the time of conversion.
The Series C Preferred Stock was convertible at the lesser of $2.31 per
share or 80%, as adjusted, of the average of the fair value of the Class
A common stock for the five days prior to the conversion date. During
1997 all of the Series C preferred stock was converted into 2,850,439
shares of the Company's Class A common stock.
In May of 1997 the Company raised approximately $1,316,000, net of issuance
costs of $272,000 ($162,000 of which related to the value ascribed to
warrants issued), through the placement of 80,000 shares of newly created
Series D Convertible Preferred Stock. The Series D Preferred Stock had a
stated value of $20 per share, which accrued dividends payable quarterly
in cash at 6%.
The Series D Convertible Preferred Stock was convertible into the Class A
Common Stock of the Company at an effective conversion price of the lower
of (i) $1.35, or (ii) 80% of the average closing bid price on the NASDAQ
National Market System of the Company's Class A Common Stock for the five
(5) trading days immediately preceding the date of conversion. During
1997 all of the Series D Convertible Preferred Stock was converted into
2,070,095 shares of the Company's Class A Common Stock.
(b) Convertible Preferred Stock
In October 1997 the Company raised approximately $1,850,000, net of
issuance costs of $397,000 ($224,000 of which related to the value
ascribed to warrants issued), though the private placement 112,500 shares
of newly created Series F Convertible Preferred Stock. The Series F
Convertible Preferred Stock has a stated value of $20 per share, which
accrued dividends payable quarterly in cash at 6%.
The Series F Convertible Preferred Stock was convertible into the Class A
Common Stock at an effective conversion price of the lower of (a) $1.05
and (b) 80% of the average of the five (5) lowest trading prices of Class
A Common Stock. During 1997 all of the Series F Convertible Preferred
Stock was converted into 2,961,086 shares of the Company's Class A Common
Stock.
During March of 1998, the Company issued 150,000 shares of newly created
Series G Convertible Preferred stock for an aggregate purchase price of
$3,000,000. The Series G Convertible preferred stock is senior to the
Company's classes of common stock, and is junior to the Company' Series A
Redeemable Preferred in liquidation rights. The Series G Convertible
Preferred Stock accrues dividends at the rate of 6% per annum. The Series
G Convertible Preferred stock is convertible into the Company's
unregistered Class A Common stock at the lower of $1.12 or 80% of the
average of the five lowest closing bids for the 25 calendar days prior to
conversion. In addition, the Company issued warrants to the purchaser and
placement agent for 225,000 shares of the Company's Class A common stock
at an exercise price of $1.38. As of December 31, 1998, 20,000 shares
remained outstanding.
(Continued)
<PAGE>
F-19
WAVE SYSTEMS CORP. AND SUBSIDIARIES
(a development stage corporation)
Notes to Consolidated Financial Statements, (Continued)
(c) Common Stock
In December 1989, March through October 1990, and November 1991,
substantially all stockholders as of December 29, 1989 were offered the
right to acquire a number of shares equivalent to their pre-offering
holdings at a price of $.003 per share. Substantially all stockholders
that received the offer accepted this opportunity. This was accounted for
essentially as a stock split effected in the form of a rights offering,
and all shares issued in conjunction with this offering were reflected in
the accompanying consolidated financial statements retroactively.
Two principal stockholders did not acquire the full amount of shares to
which they were entitled. Most of the additional proportionate shares
that these stockholders would have been credited with were offered
instead to certain officers, employees and stockholders for $.003 per
share. To the extent that these rights were offered to the individuals in
compensation for services rendered to the Company, compensation expense
equal to the difference between the estimated fair value as of the date
of issuance and the purchase price of the stock was recorded. The
estimated fair value of the common stock was determined based on sales to
third parties near the date of issuance. Compensation expense associated
with the issuance of these shares of $430,250 is included in the
accompanying consolidated statement of operations for the period from
inception to December 31, 1998.
In May and November, 1992, the Company issued 770,000 shares of Class B
restricted common stock to certain employees, officers and stockholders
of the Company for a purchase price of $.003 per share, payable in the
form of services to the Company.
As these shares were issued for services rendered, compensation expense of
$1,927,500 was recorded representing the estimated fair value of $2.50
per share at the date of issuance, the price at which common stock was
sold to third parties near the time of issuance.
In February 1995, the Company agreed to grant 36,000 shares of Class A
common stock, 12,000 of which were issued in 1995 with the remainder
issued in 1996, to two consultants and six non-employee directors as
compensation for services rendered. Expenses of $112,500 were recorded in
1995 representing the stock's fair value of $3.13 per share at the time
of the agreement to grant.
In July 1995, the Company issued 19,559 shares to two vendors in payment
for services rendered. Costs of $20,000 were recorded representing the
stock's fair value of approximately $1.00 per share at the time the
services were rendered.
In July and August 1996, the Company issued 15,000 and 3,077 shares of
Class A common stock to two consultants as compensation for services
rendered. Expenses of $40,938 have been recorded representing the stock's
fair value of $2.06 and $3.44 per share, respectively, at their dates of
issuance.
During 1997 the Company issued 126,885 shares of the Company's Class A
common stock to vendors or for the settlement of liabilities. Expenses of
$305,496 have been recorded representing the stocks' fair value at the
date of issuance.
(Continued)
<PAGE>
F-20
WAVE SYSTEMS CORP. AND SUBSIDIARIES
(a development stage corporation)
Notes to Consolidated Financial Statements, (Continued)
During 1997 the Company sold approximately 800,000 shares of the Company's
Class A common stock and warrants to purchase 160,000 shares of the
Company's Class A common stock, which may be exercised at an exercise
price of $1.00, for an aggregate purchase price of $800,000. As of
December 31, 1998, 600,000 of the shares had been exercised.
During 1997 the Company issued 500,000 shares of the Company's Class A
common stock in connection with a license agreement with Aladdin
Knowledge Systems, Ltd. for its proprietary persistent encryption
technology. The shares were issued at their fair value on the date of
issuance.
(d) Recapitalization
In January 1994, the Board of Directors authorized the Company to amend and
restate the Company's Certificate of Incorporation to reflect the
authorization of 25,000,000 shares of a newly created Class A common
stock, which stock has voting rights of one vote per share, and the
reclassification of the then current outstanding shares of common stock
into Class B common stock. In June 1994, the Board of Directors
authorized that the Class B common stock will have one vote per share,
except that Class B common stock will have five votes per share in cases
where one or more directors are nominated for election by persons other
than the Company's Board of Directors and where there is a vote on any
merger, consolidation or other similar transaction, which is not
recommended by the Company's Board of Directors. In addition, the Class B
common stock will have five votes per share on all matters submitted to a
vote of the stockholders in the event that any person or group of persons
acquires beneficial ownership of 20% or more of the outstanding voting
securities of the Company. The Class B common stock is convertible into
shares of Class A common stock at any time.
The classes of common stock are alike in all other respects.
(8) Options and Warrants
1991 Plan
In September 1991, the Board of Directors authorized the establishment of a
stock option plan (the "1991 Plan"). The total number of shares of Class B
common stock subject to the Plan is 2,700,000. Options terminate upon the
earlier of the date of the expiration of the option or upon termination of
the employment relationship between the Company or a subsidiary and the
optionee for any reason other than death, disability or retirement.
Employees are entitled to exercise their options on dates determined by the
Compensation Committee of the Board of Directors. Vesting provisions for
options granted generally range from immediate vesting to pro rata vesting
over a three-year period. Options granted under the 1991 Plan may, in the
discretion of the Compensation Committee, include the right to acquire a
reload option. A reload option provides for the automatic grant of a new
option at the then-current market price in exchange for each previously
owned share tendered by an employee in a stock-for-stock exercise.
Subsequent to January 1994 no further options, other than reload options,
may be granted under the 1991 Plan. All options outstanding under the 1991
Plan continue in full force and effect subject to their original terms.
(Continued)
<PAGE>
F-20
WAVE SYSTEMS CORP. AND SUBSIDIARIES
(a development stage corporation)
Notes to Consolidated Financial Statements, (Continued)
Other Options
In 1993, in connection with an investment banking agreement, the Company
granted options to purchase 30,000 shares of Class B common stock at an
exercise price of $1.67 per share, and options to purchase 14,286 shares of
Class B common stock at an exercise price of $3.50 per share. The options
vested immediately and are exercisable for a period of seven years from the
date of issuance.
1994 Plans
In January 1994, the Board of Directors authorized the establishment of the
1994 Employee Stock Option Plan (the "1994 Plan"). The initial number of
shares of Class A common stock subject to the 1994 Plan was 1,000,000. The
terms of the 1994 Plan are similar to those of the 1991 Plan. Options are
granted with exercise prices that approximate fair market value at the date
of grant. In May 1996, July 1997, and November 1998 the Board of Directors
approved an amendment to the Company's 1994 Plan to increase the number of
shares of Class A common stock reserved for issuance thereunder by
1,000,000, 1,000,000 and 5,000,000, respectively. Therefore, the 1994 Plan
number of shares of Class A common stock reserved for issuance is 8,000,000
shares.
In January 1994, the Board of Directors authorized the establishment of the
Non-Employee Directors Stock Option Plan (the "Directors' Plan"). The total
number of shares of Class A common stock subject to the Directors' Plan was
200,000. Pursuant to the Directors' Plan, each director who was not an
employee of the Company received an initial grant of options to purchase
12,000 shares of Class A common stock at an exercise price of $3.50 per
share.
Any person subsequently elected as a director who is not an employee of the
Company will receive an initial grant of options to purchase 12,000 shares
of Class A common stock on the day he or she is elected a director. In
addition, on the day immediately following each of the dates on which an
incumbent director is reelected, he or she received an additional grant of
options to purchase 2,000 shares of Class A common stock.
In February 1995, the Board of Directors authorized certain changes to the
Directors' Plan. The annual option grant for directors was increased from a
total of 2,000 shares of Class A common stock to 10,000 shares of Class A
common stock. In July 1995, the stockholders of the Company authorized an
increase to the total number of shares subject to the Directors' Plan from
200,000 shares to 500,000 shares. Options to purchase a total of 110,000
and 100,000 shares of Class A common stock at $1.94 to $3.09 and $3.09 per
share, were issued in 1997 and 1996, respectively, to nonemployee
directors. In November 1998, the stockholders of the Company authorized an
increase to the total number of shares subject to the Directors' Plan from
500,000 shares to 1,000,000 shares. The stockholders also amended the
Directors' Plan to provide that options issued to non-employee directors
under such plan vest on the day following the grant.
Initial option grants under the Directors' Plan vest one-third upon grant,
and one-third on each of the first and second anniversaries. Annual option
grants vest 25% after each three-month period following grant.
(Continued)
<PAGE>
F-22
WAVE SYSTEMS CORP. AND SUBSIDIARIES
(a development stage corporation)
Notes to Consolidated Financial Statements, (Continued)
Options under the Directors' Plan are exercisable for a period of ten years
from the date of grant. Options may not be exercised after the option
holder ceases to be a director of the Company, except that in the event of
death or disability of the option holder, the option may be exercised for a
period of one year after the date of death or disability, and, in the event
of retirement of the option holder, the option may be exercised for a
period of three months after the date of retirement.
In September 1996, the Board of Directors authorized the establishment of the
1996 Performance Stock Option Plan ( the "1996 Plan"). The initial number
of shares of Class A common stock subject to the 1996 Plan was 800,000. The
terms of the 1996 Plan are similar to those of the 1994 and 1991 Plans.
Options are granted with exercise prices that approximate fair market value
at the date of grant.
At December 31, 1998, there were approximately 3,360,000 additional shares
available for grant under the 1994 Plan. The per share weighted-average
fair value of stock options granted during 1998, 1997 and 1996 was $2.48,
$1.58 and $2.65 on the dates of grant using the Black Scholes
option-pricing model with the following weighted-average assumptions:
<TABLE>
<CAPTION>
1998 1997 1996
---- ---- ----
<S> <C> <C> <C>
Expected Life (Years) 10 10 10
Interest Rate 6.0% 6.5% 6.4%
Volatility 105% 111% 124%
Dividend Yield 0% 0% 0%
</TABLE>
The Company applies APB Opinion No. 25 in accounting for its Plans and,
accordingly, no compensation cost has been recognized for stock options
granted to employees at fair market value in the financial statements,
except for $234,723 of expense recorded in 1998 for options issued at
exercise prices below the fair market value of the Company's stock.
Had the Company determined compensation cost based on the fair value at the
grant dates for its stock options under SFAS No. 123, the Company's net
loss would have been increased to the pro forma amounts indicated below:
<TABLE>
<CAPTION>
1998 1997 1996
---- ---- ----
<S> <C> <C> <C>
Net loss - as reported $ (11,895,944) $ (13,897,794) $ ( 8,683,815)
Net loss - pro forma (17,596,312) (15,300,187) (10,025,517)
Net loss to common stockholders - as reported (12,754,807) (16,380,776) (9,554,394)
Net loss to common shareholders - pro forma (18,455,175) (17,783,169) (10,896,096)
Loss per common share - as reported ( .44) (.78) (.64)
Loss per common share - pro forma ( .63) (.85) (.73)
</TABLE>
Pro forma net loss reflects only options granted since 1995. Therefore, the
full impact of calculating compensation cost for stock options under SFAS
No. 123 is not reflected in the pro forma net loss amounts presented above
because compensation cost is reflected over the options' vesting periods
and compensation cost for options granted prior to January 1, 1995 are not
considered.
(Continued)
<PAGE>
F-23
WAVE SYSTEMS CORP. AND SUBSIDIARIES
(a development stage corporation)
Notes to Consolidated Financial Statements, (Continued)
Summary of Option Activity
A summary of option activity through December 31, 1998 follows:
<TABLE>
<CAPTION>
Class A and B shares Weighted average
subject to option exercise price
----------------- --------------
<S> <C> <C>
Balance at January 1, 1991 - $ -
Options granted 30,000 1.67
-----------
Balance at December 31, 1991 30,000 1.67
Options granted 816,750 1.18
----------
Balance at December 31, 1992 846,750 1.20
Options granted 949,186 3.10
----------
Balance at December 31, 1993 1,795,936 2.20
Options granted 310,200 3.05
Options canceled (108,500) 3.38
----------
Balance at December 31, 1994 1,997,636 2.27
Options granted 777,850 2.22
Options canceled (349,205) 2.11
Options exercised (681,700) .64
----------
Balance at December 31, 1995 1,744,581 2.92
Options granted 1,342,075 2.65
Options canceled (503,879) 3.20
Options exercised (214,091) 1.97
----------
Balance at December 31, 1996 2,368,686 2.79
Options granted 316,010 1.58
Options canceled (669,580) 1.58
Options exercised (70,326) 1.90
-----------
Balance at December 31, 1997 1,944,790 2.73
Options granted 5,665,278 2.48
Options canceled (701,267) 2.49
Options exercised ( 77,558) 1.95
-------------
Balance at December 31, 1998 6,831,243 $2.48
</TABLE>
At December 31, 1998, there were approximately 1,760,568 options exercisable
at prices ranging from $1.06 to $7.06.
(Continued)
F-24
<PAGE>
WAVE SYSTEMS CORP. AND SUBSIDIARIES
(a development stage corporation)
Notes to Consolidated Financial Statements, (Continued)
The following table summarizes information about stock options outstanding at
December 31, 1998:
<TABLE>
<CAPTION>
Weighted
Weighted average
average remaining
Range of Number Number exercise contractual
exercise prices outstanding exercisable price life
- - --------------- ----------- ----------- ----- ----
<S> <C> <C> <C> <C>
$1.06 131,250 50,167 $1.06 8.6 years
1.07 - 1.69 3,009,675 350,209 1.30 8.5 years
1.70 - 2.31 174,634 44,536 2.10 8.8 years
2.32 - 2.97 89,243 72,707 2.62 5.7 years
2.98 - 3.50 870,767 291,669 3.32 8.2 years
3.51 - 3.81 2,254,894 878,500 3.66 9.4 years
3.82 - 7.06 300,780 72,780 7.06 8.6 years
</TABLE>
Warrants
In 1993 and 1994, the Company issued warrants to acquire a total of 151,600
shares of Class B common stock at $3.50 per share in conjunction with sales
of Class B common stock to individuals and institutions. All warrants are
exercisable for a period of five years from the date of issuance.
In 1993 and 1994, the Company issued warrants to acquire a total of 376,253
shares of Class B common stock at $3.50 per share in conjunction with the
issuance of its 10% Convertible Notes which have since been repaid and in
1994, the Company issued warrants to acquire a total of 46,799 shares of
Class B common stock at $6.00 per share in conjunction with the issuance of
its 15% Notes, also which have since been repaid. All warrants are
exercisable for a period of five years from their dates of issuance.
Under the terms of the Company's initial public offering, the underwriter
acquired warrants to purchase 360,000 Class A common shares at a price of
$6.50 per share for nominal consideration. These warrants are exercisable
for four years commencing in September 1995.
Asa result of the successful placement of 350 shares of Series B Preferred
Stock, a consultant from Digital Media Group, Inc. was issued warrants by
the Company to purchase 30,000 Class A common shares at a price of $3.09
per share. These warrants are exercisable for ten years commencing in March
1996.
(Continued)
F-25
<PAGE>
WAVE SYSTEMS CORP. AND SUBSIDIARIES
(a development stage corporation)
Notes to Consolidated Financial Statements, (Continued)
Due to the successful placement of 150,000 shares of the Company's Series C
Convertible Stock, Wharton Capital Partners Ltd. and The Shemano Group,
Inc., two financial consulting firms, were issued warrants by the Company
to purchase 37,500 Class A common shares each at a price of $2.54 per
share. These warrants expire on December 27, 1999.
In connection with the acquisition of WIN, the Company issued a warrant that
allows the holder the ability to purchase unregistered shares of the
Company's Class A common stock at a price of $1.25 per share at the earlier
of the conversion of a note or April 18, 1998 for a period of five years.
The number of shares able to be purchased under this warrant is based on a
formula of $170,000 divided by 80% of the fair market value of the Class A
common stock at the time of conversion.
As a result of the successful placement of 80,000 shares of the Company's
Series D Preferred Stock, JNC Opportunity Fund, the acquirer of the
placement, received 80,000 warrants to purchase the Company's unregistered
Class A Common Stock, and financial consultants, primarily Wharton Capital
Partners, received a total of 40,000 warrants. The warrants have an
exercise price of $1.62, and expire on May 30, 2002.
Asa result of the successful placement of 112,500 shares of the Company's
Series F Preferred Stock, Combination Inc., the acquirer of the placement,
received 112,500 warrants to purchase the Company's unregistered Class A
Common Stock, and Wharton Capital Partners received 56,250 warrants. The
warrants have an exercise price of $1.26, and expire on October 9, 2002.
In connection with the private placement of approximately 800,000 shares of
the Company's Class A Common Stock, the Company issued 160,000 warrants to
purchase shares of the Company's unregistered Class A Common Stock at an
exercise price of $1.00. The warrants expire on September 16, 2000.
In connection with a technology license agreement with Aladdin, the Company
issued two warrants on July 18, 1997 to purchase the Company's Class A
Common Stock. The first warrant is exercisable in 100,000 share lots, and
provides the holder with the right to acquire 1,216,136 shares of the
Company's unregistered Class A Common Stock at an exercise price of $1.70
per share. The first warrant has a life of two years. The second warrant
provides the holder with the right to acquire 7% of the Company's Class A
Common Stock on a fully diluted basis for the average closing price for the
15 trading days prior to exercise. During June of 1998, Aladdin exercised a
portion of the second warrant to purchase 1,000,000 shares of common stock
and still has the right to acquire shares approximating 3.45% of the
Company's Class A common stock.
(Continued)
F-26
<PAGE>
WAVE SYSTEMS CORP. AND SUBSIDIARIES
(a development stage corporation)
Notes to Consolidated Financial Statements, (Continued)
A summary of warrants outstanding at December 31, 1998, based upon a year end
price of the Class A common stock of $3.718 per share, follows:
<TABLE>
<CAPTION>
Range of
Class A and B shares exercise Expiration
Year of issuance subject to warrants prices Term
---------------- ------------------- ------ ----
<S> <C> <C> <C> <C>
1994 542,800 $ 3.50 - 6.50 5 years
1996 191,905 1.25 - 3.09 5-10 years
1997 1,080,000 1.00 - 1.75 5 years
1997 1,216,136 1.70 2 years
1998 225,000 1.38 - 1.49 5 years
120,000 1.10 - 4.05 5 years
34,680 1.83 10 years
---------
3,410,521
=========
</TABLE>
At December 31, 1998, warrants to acquire approximately 3.4 million shares of
Class A and Class B common stock were exercisable.
The above information table does not include the Aladdin warrant to purchase
3.45% of the Company due to its variable nature.
(9) Licensing Agreements
(a) Licensed Patents
In February 1994, the Company entered into an Amended and Restated License
Agreement (the "Agreement") with Mr. Peter J. Sprague, the Chairman and
Chief Executive Officer of the Company, and Mr. John Michener, then a
shareholder and officer of the Company, whereby the Company was granted an
exclusive license to make, have made, use, lease, sell or otherwise perform
services covered by certain licensed patents (the "Licensed Patents") which
are a fundamental part of the Company's product. The Agreement amends and
restates certain license agreements entered into by the Company prior to
February 1994.
The Agreement provides for royalty payments to be made to the licensors in
the aggregate amount of two percent of the total gross revenues derived by
the Company and any sublicensee of the Company from the exploitation of the
Licensed Patents, less any amounts paid, if any to (i) information and
database providers for information distributed to or through the Company or
its sublicensees, and to (ii) the Company's sublicensees for manufacturing
the product or performing the services covered by the Licensed Patents.
Royalty payments are payable quarterly and are to be apportioned 75% to Mr.
Sprague and 25% to Mr. Michener.
(Continued)
F-27
<PAGE>
WAVE SYSTEMS CORP. AND SUBSIDIARIES
(a development stage corporation)
Notes to Consolidated Financial Statements, (Continued)
Payment of royalties is secured by a security interest in and to the
Licensed Patents. Mr. Sprague assigned all of his right, title, and
interest in the Licensed Patents to the Company.
The Company believes that the agreements as a whole provide it with exclusive
rights under the Wave Patents. There can be no assurance that the Company
will enjoy exclusive rights to the Licensed patents under these agreements.
(b) Aladdin License Agreement
During the third quarter of 1997 the Company entered into a license agreement
with Aladdin Knowledge Systems, Ltd. ("Aladdin"), an Israeli company, for
technology and in-process research and development related to Aladdin's
proprietary persistent encryption system. Under the terms of the Aladdin
license agreement, the Company is prohibited from using any other
encryption technology for the first five years. This technology will be
incorporated into the Wave System to facilitate pay-per-view content
distribution.
The Company acquired the license for this technology in exchange for $950,000
plus two warrants to purchase the Company's Class A common stock valued at
approximately $2.9 million (see note 8). The cost of this license was
expensed as research and development costs. Aladdin also is provided a
royalty payment of 5% to 9% of the Company's net content revenues.
Inconnection with this agreement, Aladdin acquired an equity position in the
Company by purchasing 500,000 shares of the Company's Class A common stock
for $900,000, which approximated the fair market value of the shares on the
date of purchase (see note 7).
(10) License and Cross-License Agreements
On May 1, 1992, the Company entered into a Joint Technology Development
Agreement and License and Cross-License Agreement ("License and
Cross-License Agreement") with The Titan Corporation ("Titan") whereby
Titan granted to the Company license rights to the use of certain patents
which are co-owned or licensed by Titan. The Company granted to Titan the
exclusive right to make for, sell in, and lease in a "Retained Market," as
defined in the agreement, the subject matter described in any Company
patent. The Retained Market is defined generally as the market for
"Government Information," as defined in the agreement, used solely by a
government entity, and the market for products used to access such
information. The Company issued to Titan 674,976 shares of Class B common
stock in return for the license to Titan's patents. These shares were
valued at $1.67 per share (total $1,124,960), the estimated fair value of
the shares at the time of issuance (based on the price at which shares were
sold to third parties near the time of issuance), and were included in
research and development expense in the accompanying consolidated statement
of operations for the period from February 12, 1988 through December 31,
1996.
The License and Cross-License Agreement provides for royalties to be paid by
the Company to Titan based upon the Company's "Net Revenues," as defined in
the agreement. Net Revenues are defined generally as gross product revenues
less amounts paid to information providers and data base providers for
information provided to the Company for use in its products and services.
Royalties are payable on a quarterly basis.
(Continued)
F-28
<PAGE>
WAVE SYSTEMS CORP. AND SUBSIDIARIES
(a development stage corporation)
Notes to Consolidated Financial Statements, (Continued)
The License and Cross-License Agreement also provides for royalties to be
paid to the Company by Titan based upon Titan's "Allocable Net Revenues,"
as defined in the agreement. Allocable Net Revenues are generally defined
as that portion that a Company patent or information adds to Titan's gross
amounts invoiced to purchasers for all products or information services
making use of a Company patent or know-how and information. Royalties are
payable on a quarterly basis.
The License and Cross-License Agreement specifies certain events of
termination, some of which have already occurred but which have been waived
or extended by Titan.
A director of the Company, who resigned from the Board at the end of 1997, is
also the President, Chief Executive Officer, and a director of Titan.
Pursuant to the terms of a related stockholders agreement, Titan has the
right to designate a member of the Company's Board of Directors for as long
as Titan continues to own at least 50% of the shares originally issued to
Titan. As of December 31, 1998, no royalties have been earned by Titan. On
February 28, 1997, the Company and Titan executed an addendum to the
License Agreement whereby the Company received a sole license to Titan's
patent to develop and distribute products to the in-home consumer
microcomputers market segment. Under this addendum, Titan waived all
defaults previously incurred by Wave as well as extended the license
agreement to expire at the time the patents expire.
(11) Revenue Sharing Agreements With Partners
The Company has, and intends to continue to, enter into revenue sharing
arrangements with information providers, software developers, and hardware
and systems manufacturers such as IBM discussed below. These revenue
sharing arrangements will be negotiated between each of the partners and
the Company. It is anticipated that revenue sharing arrangements will vary
according to the market in which the Wave system is adopted and from which
revenues are derived. Generally, a significant portion of the revenue
collected by the Company will be paid directly to the information provider
or software developer. Once these payments are made the remainder of
revenues will be shared between the Company and other partners. There can
be no assurance that the Company will be successful in entering into
definitive agreements with these parties, or that the terms of such
agreements will be favorable to the Company.
In December 1997, the Company entered into a series of agreements ("the
agreements") with IBM pursuant to which the Company and IBM agreed to
explore ways to incorporate the Company's WaveMeter chip into PC products
and to support each other in achieving industry-wide adoption of the
WaveMeter technology. Pursuant to the agreements, the Company must
subsidize the incremental cost of using the Wave technology in IBM
products. The total subsidy is capped at $30 million. The Company must also
share varying percentages of its usage and advertising fee income that
results from usage of any Wave technology distributed by IBM. In addition,
the Company must provide user and technical service and support to IBM
customers for the end-user application of Wave technology. Finally, the
agreements provide for cash payments upon the attainment of certain
milestones. The amount of such cash payments is based upon the appreciation
of the Company's stock. To date, none of these milestones have been
achieved; therefore, no costs have been recognized in the financial
statements.
F-29
<PAGE>
WAVE SYSTEMS CORP. AND SUBSIDIARIES
(a development stage corporation)
Notes to Consolidated Financial Statements, (Continued)
(12) Joint Venture
In July of 1997, the Company entered into a joint venture with Internet
Technology Group, PLC ("ITG"), a United Kingdom Internet service provider.
The joint venture is owned 25% by the Company and 75% by ITG. The Company
contributed its technical expertise and ITG contributed initial working
capital and the commitment to fund all future working capital requirements
of the joint venture. The objective of the joint venture company, Global
Wave, Ltd., is to promote and commercialize the Wave technology in certain
European and Middle Eastern markets. Pursuant to the joint venture
agreement, the Company received a license fee of up to $5 million in
exchange for the joint venture's right to market the Wave technology in
European and Middle Eastern markets. The license fee was paid by ITG as
part of its commitment to fund the joint venture. During the third quarter
of 1997, the Company received $1.0 million from the joint venture
representing partial payment of the license fee, with the remaining
payments to be made upon the Company's attaining certain milestones related
to the number of Wave Meters distributed. The amount received was recorded
as deferred license fee income in the third quarter of 1997 as it was
uncertain whether the Company had met the contractual requirements required
in order to have earned the first payment. During the fourth quarter of
1997, the Company met these requirements and began recognizing the license
fee ratably over the contractual refund and recorded the $1 million as a
license fee. Also the Company accrued $490,000 in the fourth quarter of
1997 for expenses related to the Company's obligation to assist the joint
venture in setting up the Wave system in the designated markets. In January
1998, the joint venture agreement was modified to extend the milestone
dates and provide for the payment of an additional $750,000 of the $5
million license fee to the Company. The payment of $750,000 was received in
January 1998. The Company also received the final payment of $3.25 million
in June 1998 pursuant to the licensing and joint venture agreement ("the
Agreement") with Internet Technology Group, PLC, a United Kingdom company.
This payment and the $750,000 received in January 1998 total $4 million
received in 1998. As part of the Agreement, after the final license fee is
paid, the Company and Internet Technology Group, PLC are to issue a
significant warrant to each other for approximately one million shares of
each others common stock. The exercise price of the Wave warrants is $1.75
per share. The exercise price of the ITG warrant is approximately .995
British pound per share. On June 5, 1998, the final milestone for the last
payment on the license fee was attained and the Company became obligated to
issue its warrant to ITG pending approval by the shareholders of ITG for it
to issue its reciprocal warrant. On this date the net fair market value of
the exchange of warrants represented a net cost to the Company of
approximately $1.1 million. The Company, upon determining this cost, has
recorded the total amount as ITG net warrant cost in the Consolidated
Statement of Operations.
The joint venture is entirely funded through advances from ITG and the
Company has no commitment to fund the operations of the joint venture.
The Company accounts for its 25% interest in the joint venture pursuant to
the equity method of accounting. At December 31, 1998 and 1997, the
Company's investment in the joint venture was $0 for financial reporting
purposes.
F-30
<PAGE>
WAVE SYSTEMS CORP. AND SUBSIDIARIES
(a development stage corporation)
Notes to Consolidated Financial Statements, (Continued)
(13) Commitments and Contingencies
Litigation
The Company is party to legal proceedings generally incidental to its
business. Management believes that the outcome of such litigation will not
have a material adverse effect on the consolidated financial position or
results of operations of the Company.
On June 27, 1997 a complaint alleging breach of contract, among other
related claims, was filed against the Company by Carl A. Artopeous and
Artopeous Capital Management (collectively, "Artopeous") with the
Sacramento Superior Court in Sacramento, California in connection with the
engagement of Artopeous by the Company to arrange financing. The action has
been removed to the Federal Court, Eastern District of California. Wave
filed its answer in December 1997 and agreed to a settlement on January 25,
1999. The settlement cost of approximately, $602,000 and has been accrued
in the December 31, 1998 financial statements.
Leases
In December 1994, the Company entered into an operating lease beginning March
1995 for its offices in New York, New York, which expired on February 28,
1998. The lease provided for minimum annual rent of $200,000 plus
applicable increases. The Company has subsequently terminated this lease
and entered into a new lease in the same facility. The minimum annual rent
for the new lease is approximately $81,000 and its expiration is June 1999.
The Company also leases premises in Princeton, New Jersey; San Jose,
California; and Lee, Massachusetts, under operating leases, which expire on
various dates through January 14, 2001.
The Company is obligated under a capital lease for a phone system in the Lee,
Massachusetts office. At December 31, 1998 the gross amount of plant and
equipment and related accumulated amortization recorded under capital
leases were as follows:
<TABLE>
<CAPTION>
1998 1997
---- ----
<S> <C> <C>
Phone Equipment $111,291 $111,291
Less: Accumulated Amortization 33,387 11,129
------ -------
Ending Balance $77,904 $100,162
====== =======
</TABLE>
Amortization of assets held under capital leases is included with
depreciation expense.
(Continued)
F-31
<PAGE>
WAVE SYSTEMS CORP. AND SUBSIDIARIES
(a development stage corporation)
Notes to Consolidated Financial Statements, (Continued)
Future minimum lease payments under noncancelable operating leases (with initial
or remaining lease terms in excess of one year) and future minimum capital
lease payments as of December 31, 1998 are as follows:
<TABLE>
<CAPTION>
Year ending December 31, Capital Lease Operating Lease
<S> <C> <C>
1999 $ 42,372 $203,937
2000 21,186 162,604
2001 - 119,382
-------
Total minimum lease payments 63,558 $485,923
=======
Less: interest 3,389
------
Present Value of net minimum
lease payments 60,169
Less: current installment of obligations
under capital lease 39,409
------
Obligation under capital lease
excluding current installments $20,760
======
</TABLE>
Rent expense for the years ended December 31, 1998, 1997, 1996 and for
the period from inception through December 31, 1998 amounted to
approximately $307,000, $383,000, $341,000 and $1,800,000, respectively.
(14) Income Taxes
The Company has net operating loss carryforwards for tax return purposes of
approximately $47.6 million which expire beginning in 2003 through 2014.
Pursuant to the Tax Reform Act of 1986, annual utilization of the Company's
net operating loss carryforwards may be limited if a cumulative change in
ownership of more than 50% occurs within a three year period. The Company
has not determined whether there has been such a cumulative change in
ownership or the impact on the utilization of the loss carryforwards if
such change has occurred.
The tax effects of temporary differences that give rise to the deferred tax
asset at December 31, 1998 and 1997 are as follows:
<TABLE>
<CAPTION>
1998 1997
---- ----
<S> <C> <C>
Deferred tax assets:
Net operating loss carryforwards $ 19,978,000 $15,493,000
License rights 980,000 1,307,000
---------- ----------
Total gross deferred tax assets 20,958,000 16,800,000
Less valuation allowance (20,958,000) (16,800,000)
----------- ----------
Net deferred tax asset $ - $ -
=== ===
</TABLE>
The valuation allowance increased by approximately $4.2 million and $5.2
million, during the years ended December 31, 1998 and 1997, respectively.
F-32
<PAGE>
WAVE SYSTEMS CORP. AND SUBSIDIARIES
(a development stage corporation)
Notes to Consolidated Financial Statements, (Continued)
(15) Defined Contribution Plan
The Company adopted the Wave Systems Corp. 401(k) Savings and Investment
Plan, a defined contribution plan, to which substantially all employees can
contribute on January 1, 1995. Employees of the Company become eligible
immediately on employment. The Company has the option to make discretionary
matching contributions; no contributions were made in 1998, 1997 or 1996.
(16) Disclosures about the Fair Value of Financial Instruments
Cash and Cash Equivalents, Accounts Receivable, Accounts Payable and Accrued
Expenses, and Note Payable
The carrying amounts of these instruments, other than the note, approximate
fair value because of their short maturities. The note payable approximates
its estimated fair value based on the timing of its issue.
Limitations
Fair value estimates are made at a specific point in time, based on relevant
market information and information about the financial instrument. These
estimates are subjective in nature and involve uncertainties and matters of
significant judgment and therefore cannot be determined with precision.
Changes in assumptions could significantly affect the estimates.
(17) Subsequent Events
During March of 1999, the Company raised approximately $23,000,000 through
the private placement to institutional, strategic and accredited individual
investors of approximately 2.1 million shares of Class A common stock at
$11.00 per share.
During January of 1999, the Company issued a non-interest bearing convertible
promissory note for $2,000,000 to one (1) accredited investor. The note
shall be due and payable on January 26, 2002 unless the company raises
financing of at least $5,000,000, whereby the Company must repay the
principal of the note within five business days of such financing, unless
converted into Class A common stock of the Company. The note holder is
entitled to 275,000 warrants to purchase Class A common stock at an
exercise price of $4.00, and the warrants expire on January 26, 2004. If,
over any sixty (60) consecutive day period, the average of the averaged
daily high and low prices of the Class A Common Stock, as reported by
Bloomberg Information Services, Inc., exceeds seven dollars ($7.00), the
Company has the option to force the conversion of the Warrants. The fair
value of such warrant will be recorded as interest expense through the
earliest available conversion date of the note. In March 1999, subsequent
to and in addition to the Company's completion of the $23 million private
placement, the $2 million note was converted into 181,818 shares of the
Company's Class A common stock at a conversion price of $11.00 a share.
EXHIBIT 10.17
THE SECURITIES REPRESENTED BY THIS NOTE AND ANY SECURITIES ISSUABLE UPON
CONVERSION THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD,
ASSIGNED, PLEDGED, HYPOTHECATED, ENCUMBERED OR IN ANY OTHER MANNER TRANSFERRED
OR DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SECURITIES UNDER THE SECURITIES ACT, OR AN OPINION OF COUNSEL IN FORM, SUBSTANCE
AND SCOPE REASONABLY ACCEPTABLE TO THE MAKER THAT REGISTRATION IS NOT REQUIRED
UNDER THE SECURITIES ACT.
WAVE SYSTEMS CORP.
CONVERTIBLE PROMISSORY NOTE
I. Principal. FOR VALUE RECEIVED, the undersigned, Wave Systems Corp., a
Delaware corporation (the "Maker"), hereby unconditionally promises to pay to
Carriage Partners, LLC, a Delaware limited liability company (the "Payee"), the
aggregate principal sum of US$2,000,000.00.
II. Interest. This Note will accrue no interest.
III. Time of Payment. Payment of the unpaid principal amount of this Note
shall be due and payable on January 26, 2002.
IV. Place of Payment. The principal of this Note shall be payable at such
bank account as may be designated by the Payee by written notice to the Maker.
V. Payment Without Setoff. The principal of this Note shall be paid without
setoff or counterclaim and free and clear of and exempt from, and without
deduction for or on account of, any present or future taxes, levies, imposts,
duties, deductions, withholdings or other charges of whatsoever nature imposed,
levied, collected, withheld or assessed by any government or any political
subdivision or taxing authority thereof. In the event that, subject to the
provisions of the preceding sentence, any payments made under this Note on
account of principal shall not be made free and clear and exempt from and
without deduction for, or on account of, any such taxes, then in any such event
the Maker shall pay such additional amounts as may be necessary in order that
each net payment made hereunder, after payment or deduction or withholding for,
or on account of, any such taxes will not be less than the amount otherwise
provided in this Note to be then due and payable.
VI. Mandatory Prepayment. If the Maker closes a financing or financings in
the aggregate amount of at least $5 million through public or private sale of
its debt or equity securities before July 26, 1999, the Maker will repay any
unpaid principal of this Note within five (5) business days of such closing.
<PAGE>
VII. Optional Prepayments. Until 5:00 P.M., New York Time, on July 26,
1999, the Maker shall have the right, on two (2) days' prior written notice to
the Payee, to prepay this Note in whole or in part without premium or penalty.
VIII. Optional Conversion. If, at 5:00 P.M., New York Time, on July 26,
1999, there remains unpaid principal on this Note, the Payee shall have the
option to convert such unpaid principal into a convertible preferred security of
the Maker on substantially the same terms and conditions as the Maker's Series G
Convertible Preferred Stock (such Convertible Preferred Stock and the shares of
Common Stock underlying the Convertible Preferred Stock, collectively
"Conversion Shares").
IX. Registration Rights. The Maker shall use its best efforts to file, at
its own expense, a "shelf" registration statement under Rule 415 of the
Securities Act for the shares underlying the Convertible Preferred Stock within
thirty (30) days of the execution of the Convertible Preferred Stock agreements
(the "Filing Date"). The Maker shall further use its best efforts to cause such
registration statement to become effective as soon as possible after the Filing
Date, and in any event to have such registration statement effective within
ninety (90) days of the Filing Date.
X. Payee Trading Restrictions. The Payee covenants that, while principal
remains outstanding on this Note, it will not sell a number of shares in excess
of the greater of (i) 20% of the weekly volume (calculated based on the five (5)
trading day period immediately prior to the date of any given sale) in any given
five (5) day trading period, and (ii) on any given day, 20% of the volume on
such day. Unintentional violations of the limitation set forth in the
immediately preceding sentence shall not be a breach of this covenant to the
extent such violations occur infrequently and are not substantially in excess of
such limitation. In order for the Maker to monitor the Payee's compliance with
this Section 9, the Payee shall provide the Maker with notice of its daily sales
of Common Stock within ten (10) business days of the end of each month in which
any such restricted sales occur.
XI. Investment Purpose. The Payee represents and warrants to the Maker that
it:
(i) is purchasing this Note (and will accede to any Conversion Shares)
for its own account for investment only and not with a present view towards
the public sale or distribution thereof, except pursuant to sales
registered under the Securities Act of 1933; and
(ii) is an "accredited investor" as that term is defined in Rule
501(a) of Regulation D.
XII. Governing Law. This Note shall be construed in accordance with and
governed by the laws of the State of New York.
XIII. No Waiver. No course of dealings between the Maker and the Payee or
any delay on the part of the Payee in exercising any rights hereunder shall
operate as a waiver of any rights of the Payee, except to the extent expressly
waived in writing by the Payee.
XIV. Loss, Theft, Destruction or Mutilation of Note. Upon receipt by the
Maker of evidence reasonably satisfactory to the Maker of the loss, theft,
destruction or mutilation of this Note, and, in case of loss, theft or
destruction, upon receipt of indemnity or security reasonably satisfactory to
the Maker or, in case of mutilation, upon surrendering of this
<PAGE>
Note for cancellation, and upon reimbursement to the Maker of all reasonable
expenses incidental thereto, the Maker will make and deliver a new note of like
tenor in lieu of this Note.
XV. Legal Holidays. In any case where the date of maturity of the principal
of this Note or the date fixed for payment or prepayment of this Note shall be,
at any place of payment, a Sunday, a legal holiday or a day on which banking
institutions are authorized or obligated by law or regulation to close, then
payment of principal need not be made on such date at such place but may be made
on the next succeeding day that is not at such place of payment a Sunday, a
legal holiday or a day on which banking institutions are authorized or obligated
by law or regulation to close, with the same force and effect as if made on the
date of maturity or the date fixed for payment or prepayment.
XVI. Waiver of Presentment, etc. The Maker hereby waives presentment,
demand for payment, notice of dishonor, notice of protest and protest, and all
other notices or demands in connection with the delivery, acceptance,
performance or default of this Note, except as herein set forth.
XVII. Headings. The headings of the paragraphs and subparagraphs of this
Note are for convenience only and shall not be deemed to constitute a part
hereof.
XVIII. Assignment. The Payee may assign this note at any time, provided
that it only assign this note (i) to no more than two (2) transferees, and (ii)
in accordance with Section 19 hereof. The Maker may not assign this Note without
the prior written consent of the Payee. The obligations of this Note shall bind
the successors and assigns of the Maker and the Payee.
XIX. Concerning this Note and Conversion Shares. This Note and the
Conversion Shares may not be sold or transferred unless (i) they first shall
have been registered under the Securities Act and applicable state securities
laws; or (ii) the Maker has been furnished with an opinion of legal counsel to
the effect that such sale or transfer is exempt from the registration
requirements of the Securities Act.
Any Conversion Shares not subject to an effective registration statement
issued upon conversion of this Note shall bear a legend in substantially the
following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED. THE SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT, OR
AN OPINION OF COUNSEL IN FORM, SUBSTANCE AND SCOPE REASONABLY ACCEPTABLE TO THE
MAKER THAT REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT. ANY SUCH SALE,
ASSIGNMENT OR TRANSFER MUST ALSO COMPLY WITH STATE SECURITIES LAWS.
Upon the request of a holder of certificates representing Conversion
Shares, the Maker shall remove the foregoing legend from the certificate or
issue a new certificate to such holder free of any transfer legend if (i) with
such request, the Maker shall have received either (A) an opinion of counsel,
reasonably satisfactory to the Maker in form, substance and scope, to the effect
that the legend may be removed from such certificate, or (B) satisfactory
representations
<PAGE>
from the holder that such holder is eligible immediately to sell all of the
Conversion Shares pursuant to Rule 144 (or a successor rule) or (ii) a
registration statement under the Securities Act covering such securities is in
effect. Nothing in this Note shall affect in any way the Payee's obligations to
comply with applicable securities laws upon the any resale of this Note or the
Conversion Shares.
XX. Portfolio Debt Exception. The Maker has registered this Note, and it
can therefore be transferred only through a book entry maintained in the Maker's
records. A transfer of ownership of this Note will only be recorded in the
Maker's records, through a book entry, upon the Maker's receipt of a Department
of the Treasury, Internal Revenue Service Form W-8BEN or Form W-9, as the case
may be, properly executed by either the transferee of this Note or a securities
clearing organization, a bank, or other financial institution that will hold the
Note in the ordinary course of its business for the benefit of the transferee.
After the Maker has completed the proper book entry, a replacement Note will be
issued to the transferee and this Note will be canceled. This Note may be
assigned by the Payee in accordance with its terms.
XXI. Proof of Citizenship. Concurrent with the execution and delivery of
this Note, the Payee shall deliver to the Maker a Department of Treasury,
Internal Revenue Service Form W-9 properly executed by either (i) the Payee (or
by the beneficial owner(s) if Payee is not the beneficial owner(s)) or (ii) a
securities clearing organization, a bank, or other financial institution that
holds customers' securities in the ordinary course of its trade or business. If
any change occurs in the information previously provided to the Maker on the
Form W-8BEN or Form W-9, as the case may be, Payee (or the beneficial owner(s)
if Payee is not the beneficial owner(s)) must file with the Maker a replacement
Form W-8BEN or Form W-9, as the case may be, within thirty (30) days of such
change.
IN WITNESS WHEREOF, the Maker and Payee have duly executed this Note on the
26th day of January, 1999.
CARRIAGE PARTNERS, LLC WAVE SYSTEMS CORP.
By: /s/ Jules Nordlicht By: /s/ Steven Sprague
--------------------------- ---------------------------
Name: Jules Nordlicht Name: Steven Sprague
--------------------------- ---------------------------
Title: President Title: President and Chief Operating Officer
--------------------------- ---------------------------
EXHIBIT 10.18
EMPLOYMENT AGREEMENT
AGREEMENT made this eighth day of June, 1998, effective as of June 8,
1998 (this "Agreement"), by and between WAVE SYSTEMS CORP., a Delaware
corporation, with a principal place of business at 480 Pleasant St., Lee, MA.
(hereinafter referred to as "Employer"), and Gerard T. Feeney, an individual
residing at 9 Heritage Lane, Andover, MA (hereinafter referred to as
"Executive").
WHEREAS, Employer wishes to retain Executive's skill, knowledge and
experience for the management of its operations and Executive wishes to make
such skills, knowledge and experience available to Employer;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Employer and Executive hereby agree
as follows:
Section 1. Employment.
1.1 Term. Employer shall employ Executive, and Executive shall serve
Employer as Senior Vice President, Finance and Administration and Chief
Financial Officer, for a term beginning on June 8, 1998 and ending on June 7,
1999, as such date may be extended to the terms of this paragraph (the "Term of
Employment"), unless earlier terminated pursuant to the provisions of Section 5
of this Agreement. The Term of Employment shall be automatically extended for
consecutive additional periods of one (1) year each unless either Employer or
Executive provides written notice to the other of its/his intention not to renew
not less than sixty (60) days prior to the expiration of the then current term.
1.2 Duties.
(a) Capacity. During the Term of Employment, Executive shall
assume and perform such executive, operational and financial duties and
responsibilities commensurate with his position, and Executive shall
further assume and perform such other reasonable executive and
managerial responsibilities and duties as may be assigned to him
hereafter from time to time by the Board of Directors of Employer.
Executive shall comply with all applicable employment policies of
Employer.
(b) Schedule. During the Term of Employment, Executive shall
be employed on a full-time basis. Executive's working schedule during
the Term of Employment shall correspond with the reasonable
requirements of his position.
1.3 Compensation and Benefits. During the Term of Employment, as
compensation for the services to be rendered during such period and the other
obligations undertaken by Executive hereunder, Executive shall be entitled to
the following compensation:
(a) Salary. Employer shall pay to Executive an annual minimum
Base Salary of One Hundred and Eighty Five Thousand ($160,000.00)
Dollars, payable in accordance with Employer's normal payroll
procedures. Said annual minimum Base Salary may be increased from time
to time by Employer in the sole and absolute discretion of the Board of
Directors of Employer, but shall in no event be reduced by Employer
without the prior consent of Executive.
(b) Bonuses. Executive shall be entitled to operational
bonuses based upon performance. The bonus structure for the initial
Term of Employment is set forth on Schedule A attached hereto and
incorporated herein. The bonus structure for all future periods shall
be subject to determination of Employer, based on similar methods and
methodologies to those set forth on Schedule A.
<PAGE>
(c) Expenses. During the Term of Employment, Employer shall
pay or reimburse Executive for all reasonable and necessary business
expenses incurred or paid by him in the performance of his duties and
responsibilities hereunder, subject to such reasonable substantiation
or documentation as may be required by the Board of Directors from time
to time.
(d) Benefits. During the Term of Employment, Executive shall
be entitled to four (4) weeks vacation and other such fringe benefits,
including paid holidays, health, life and disability insurances, sick
days, personal days, etc. in accordance with such executive benefit
plans and policies as have been or may be established by Employer from
time to time or which Employer is required to maintain by law.
(e) Additional Benefits. In addition to all other benefits
provided hereunder, Employer shall pay to Executive the benefits set
forth on Schedule B.
Section 2. Development of Inventions, Improvements or Know-How.
2.1 Information. During the Term of Employment, Executive shall keep
Employer informed of any and all promotional and advertising materials,
catalogs, brochures, plans, customer lists, supplier lists, candidate lists,
manuals, handbooks, inventions, discoveries, improvements, trade secrets, secret
processes and any technology, know-how or intellectual property made or
developed by him, in whole or in part, or conceived of by him, alone or with
others, which results from any work he may do for, or at the request of
Employer, or which relates in any way to the business operations, activities,
research, investigations or obligations of Employer (collectively, the
"Confidential Information").
2.2 Assignment of Rights. Executive, and his heirs, assigns and
representatives shall assign, transfer and set over, and do hereby assign,
transfer and set over, to Employer, and its successors and assigns, all of his
and their right, title and interest in and to any and all Information, and any
patents, patent applications, copyrights, trademarks, tradenames or other
intellectual property rights relating thereto, provided or conceived by
Executive during the Term of Employment.
Section 3. Non-Disclosure. The Executive shall keep secret and retain
in strictest confidence, and shall not use for the Executive's benefit or the
benefit of others, except in connection with the business and affairs of the
Employer (the "Business"), all Confidential Information and shall not disclose
any Confidential Information to anyone outside of the Employer, except for
Confidential Information which is at the time of receipt by the Executive, or
thereafter becomes, publicly known through no wrongful act of the Executive. The
obligations of Executive under this Section 3 shall survive any termination of
this Agreement for a period of five (5) years.
Section 4. Covenant Not To Compete. In consideration of the Employer's
obligations hereunder, during the Term of Employment and during the Designated
Period (as defined herein), the Executive will not (i) anywhere within North
America, engage, directly or indirectly, alone or as a shareholder (other than
as a holder of less than five percent (5%) of the common stock of any publicly
traded corporation), partner, officer, director, executive or consultant in any
other business identified as a direct competitor in the Company's annual Form
10-K; (ii) divert to any competitor of the Employer any customer of the
Employer; or (iii) solicit or encourage any officer, executive, employee or
consultant of the Employer to leave its employ for employment by or with any
competitor of the Employer. If at any time the provisions of this Section 4
shall be determined to be invalid or unenforceable, by reason of being vague or
unreasonable as to area, duration or scope of activity, this Section 4 shall be
considered divisible and shall become and be immediately amended to only such
area, duration and scope of activity as shall be determined to be reasonable and
enforceable by the court or other body having jurisdiction over the matter, and
the Executive agrees that this Section 4 as so amended shall be valid and
binding as though any invalid or unenforceable provision had not been included
herein. The term "Designated Period" shall mean a period of two (2) years
immediately following any termination of this Agreement and/or Executive's
employment hereunder, whether voluntary or involuntary and regardless of the
reason for termination.
Section 5. Termination of Agreement.
<PAGE>
5.1. Right to Terminate.
(a) Death. This Agreement shall terminate immediately upon
Executive's death.
(b) Disability. In the event that Executive, because of
accident, disability or physical or mental illness, is incapable of
performing his duties hereunder, unless otherwise prohibited by
applicable law, Employer shall have the right to terminate Executive's
employment hereunder upon thirty (30) days prior written notice to
Executive. For purposes of this Section 5.1(b), Executive shall be
deemed to have become incapable of performing his duties hereunder if
he shall have been incapable of so doing for (i) a continuous period of
one hundred eighty (180) days and remains so incapable at the end of
such one hundred eighty (180) day period; or (ii) periods amounting in
the aggregate to one hundred eighty (180) days within any one period of
three hundred sixty-five (365) days and remains so incapable at the end
of such aggregate period of one hundred eighty (180) days.
(c) Cause. Employer shall have the right to terminate
Executive's employment hereunder for cause immediately without prior
notice to Executive. The term "cause" shall mean (i) misappropriation
of material business opportunity, (ii) fraud, embezzlement, or
misappropriation of funds involving assets of Employer or any of their
customers, (iii) commission of or conviction with respect to any
criminal activity which materially affects Executive's ability to
perform his duties or materially harms the reputation of Employer or
(iv) final written determination by the Board of Directors of Employer
after thirty (30) days notice to Executive and the opportunity for
Executive to be heard by the Board of Directors of (A) Executive's
willful failure or refusal to comply with material and reasonable Board
of Directors directives or to render the services required under this
Agreement (except in the case of an accident, disability or physical or
mental illness) or (B) Executive's material breach of this Agreement.
(d) Deemed Termination. Executive shall have the right to
terminate this Agreement and resign from his employment with Employer
by written notice to Executive within thirty (30) days of the effective
date of any material adverse change by Employer in Executive's
compensation, responsibility, location of employment, or other material
terms of employment except as specifically contemplated herein or
within thirty (30) days of the occurrence of a material breach by
Employer of the terms and conditions of this Agreement.
(e) Other. Employer and Executive shall each have the right to
terminate this Agreement and Executive's employment hereunder for any
other reason not specified in this Section 5.1, with or without cause,
upon thirty (30) days prior written notice to the other party.
(f) Rights and Obligations of Executive Upon Termination.
(i) Upon the termination of Executive's employment
pursuant to Sections 5.1(a), (b), (c), (d), or (e), of this
Agreement, Employer shall not have any further obligation to
Executive under this Agreement except (other than as provided
in Section 5.1(f)(ii) below) to distribute to Executive his
Base Salary due pursuant to Section 1.3(a) hereof (and accrued
vacation pay) up to the date of termination.
(ii) In the event of a Deemed Termination as provided for in Section 5.1(d)
above or in the event that Executive shall terminate this Agreement and
Executive's employment hereunder without cause pursuant to Section 5.1(e)
above, Employer agrees (i) to pay to Executive as severance, on the date of
such termination, a lump sum payment in an amount equal to one (1) year of
the Executive's annual Base Salary then in effect, (ii) and guaranteed
portion of bonus, benefits and similar relocation package. However, should
you secure employment elsewhere during said period, your severance (other
than relocation costs) will stop once work has begun with your new
employer. Similar relocation costs will be reimbursed unless you are able
to negotiate reimbursement from your new employer. Regardless of securing
employment elsewhere, options will continue to vest for at least one year
from the termination date and for the portion of time greater than one year
and up to your next anniversary vesting period is reached. Vested Options
are to be exercised within 90
<PAGE>
days after final vesting date, and (iii) continue the Executive's health
insurance and other benefits set forth or on Schedule B for a period
equal to the remaining Term of Employment then in effect.
(iii) Upon the termination of this Agreement and Executive's
employment hereunder, whether voluntary or involuntary, and
regardless of the reason for or manner of termination, all of the
obligations of Executive under Sections 2.2,3, and 4 shall remain
in full force and effect and shall survive the termination of
this Agreement to the extent set forth herein.
Section 6. Miscellaneous.
6.1 Remedies.
(a) Injunctions. Inasmuch as any breach of, or failure to comply with,
this Agreement will cause serious and substantial damage to Employer, if
Executive should in any way breach or fail to comply with the terms of this
Agreement, Employer shall be entitled to an injunction restraining
Executive from such breach or failure.
(b) Cumulative Remedies. All remedies of Employer expressly provided
for herein are cumulative of any and all other remedies now existing at law
or in equity. Employer shall, in addition to the remedies herein provided,
be entitled to avail itself of all such other remedies as may now or
hereafter exist at law or in equity for compensation, and for the specific
enforcement of the covenants contained herein. Resort to any remedy
provided for hereunder or provided by law shall not prevent the concurrent
or subsequent employment of any other appropriate remedy or remedies, or
preclude the recovery by Employer of monetary damages.
6.2 Amendment. This Agreement may be amended only by a writing duly
executed by the parties hereto.
6.3 Entire Agreement. This Agreement and any other agreements expressly
referred to herein set forth the entire understanding of the parties hereto
regarding the subject matter hereof and supersede all prior contracts,
agreements, arrangements, communications, discussions, representations and
warranties, whether oral or written, between the parties regarding the subject
matter hereof.
6.4 Notice. For purposes of this Agreement, notices and communications
provided or permitted to be given hereunder shall be deemed to have been given
when (i) made by telex, telecopy or facsimile transmission; or (ii) sent by
overnight courier or mailed by United States registered or certified mail,
return receipt requested, postage prepaid to the parties at their addresses set
forth below their signature to this Agreement, or at such other addresses as
either may designate in writing as aforesaid from time to time.
6.5 Assignment. This Agreement is personal as to Executive and shall not be
assignable by Executive. Employer may assign its rights under this Agreement to
any affiliate or to any other person, firm, corporation, or other entity which
may acquire all or substantially all of the business which is now or hereafter
conducted by Employer, provided, that any such assignment shall be subject to
the express terms and conditions hereof.
6.6 Governing Law. This Agreement shall in all respects be governed by, and
construed in accordance with, the laws of the State of New York.
6.7 Severability. Each section and subsection of this Agreement constitutes
a separate and distinct provision hereof. It is the intent of the parties hereto
that the provisions of this Agreement be enforced to the fullest extent
permissible under the laws and public policies applicable in each jurisdiction
in which enforcement is sought. Accordingly, if any provision of this Agreement
shall be adjudicated to be invalid, ineffective or unenforceable, the remaining
provisions shall not be affected thereby. The invalid, ineffective or
unenforceable provisions shall, without further action by the parties, be
automatically amended to affect the original purpose and intent of the invalid,
ineffective and
<PAGE>
unenforceable provision; provided, however, that such amendment shall apply only
with respect to the operation of such provision in the particular jurisdiction
with respect to which such adjudication is made.
6.8 Waiver. The failure of Employer to insist upon strict adherence to
any term of this Agreement on any occasion shall not be construed as a waiver of
or deprive Employer of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver by Employer must be in
writing and signed by a duly authorized representative of Employer other than
Executive.
6.9 Headings. The headings of this Agreement are solely for convenience
of reference and shall not be given any effect in the construction or
interpretation of this Agreement.
6.10 Binding Effect. Subject to the foregoing, this Agreement shall be
binding upon and inure to the benefit of the respective parties hereto and their
heirs, personal representatives, successors and permitted assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
EMPLOYER:
WAVE SYSTEMS CORP.
By: /s/ Steven Sprague
Steven K. Sprague, President & COO
Address for Notices:
Wave Systems Corp.
480 Pleasant St.
Lee, MA 01238
EXECUTIVE / Employee
By: /s/ Gerard T. Feeney
Name: Gerard T. Feeney
Title: Senior VP, CFO
Address for Notices:
Gerard T. Feeney
Nine Heritage Lane
Andover, MA 01810
EXHIBIT 10.19
EMPLOYMENT AGREEMENT
AGREEMENT made this tenth day of November, 1998, effective as of
November 15, 1998 (this "Agreement"), by and between WAVE SYSTEMS CORP., a
Delaware corporation, with a principal place of business at 480 Pleasant St.,
Lee, MA. (hereinafter referred to as "Employer"), and Steven K. Sprague, an
individual residing at 147 Reservoir Road, Lenox, MA (hereinafter referred to as
"Executive").
WHEREAS, Employer wishes to retain Executive's skill, knowledge and
experience for the management of its operations and Executive wishes to make
such skills, knowledge and experience available to Employer;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Employer and Executive hereby agree
as follows:
Section 1. Employment.
1.1 Term. Employer shall employ Executive, and Executive shall serve
Employer as President and Chief Operating Officer, for a term beginning on
December 1, 1998 and ending on December 1, 1999, as such date may be extended to
the terms of this paragraph (the "Term of Employment"), unless earlier
terminated pursuant to the provisions of Section 5 of this Agreement. The Term
of Employment shall be automatically extended for consecutive additional periods
of one (1) year each unless either Employer or Executive provides written notice
to the other of its/his intention not to renew not less than sixty (60) days
prior to the expiration of the then current term.
1.2 Duties.
(a) Capacity. During the Term of Employment, Executive shall
assume and perform such executive, operational and financial duties and
responsibilities commensurate with his position, and Executive shall
further assume and perform such other reasonable executive and
managerial responsibilities and duties as may be assigned to him
hereafter from time to time by the Board of Directors of Employer.
Executive shall comply with all applicable employment policies of
Employer.
(b) Schedule. During the Term of Employment, Executive shall
be employed on a full-time basis. Executive's working schedule during
the Term of Employment shall correspond with the reasonable
requirements of his position.
1.3 Compensation and Benefits. During the Term of Employment, as
compensation for the services to be rendered during such period and the other
obligations undertaken by Executive hereunder, Executive shall be entitled to
the following compensation:
(a) Salary. Employer shall pay to Executive an annual minimum
Base Salary of One Hundred and Eighty Five Thousand ($185,000.00)
Dollars, payable in accordance with Employer's normal payroll
procedures. Said annual minimum Base Salary may be increased from time
to time by Employer in the sole and absolute discretion of the Board of
Directors of Employer, but shall in no event be reduced by Employer
without the prior consent of Executive.
(b) Bonuses. Executive shall be entitled to operational
bonuses based upon performance. The bonus structure for the initial
Term of Employment is set forth on Schedule A attached hereto and
incorporated herein. The bonus structure for all future periods shall
be subject to determination of Employer, based on similar methods and
methodologies to those set forth on Schedule A.
(c) Expenses. During the Term of Employment, Employer shall
pay or reimburse Executive for all reasonable and necessary business
expenses incurred or paid by him in the
<PAGE>
performance of his duties and responsibilities hereunder, subject to
such reasonable substantiation or documentation as may be required by
the Board of Directors from time to time.
(d) Benefits. During the Term of Employment, Executive shall be
entitled to four (4) weeks vacation and other such fringe benefits,
including paid holidays, health, life and disability insurances, sick
days, personal days, etc. in accordance with such executive benefit
plans and policies as have been or may be established by Employer from
time to time or which Employer is required to maintain by law.
(e) Additional Benefits. In addition to all other benefits
provided hereunder, Employer shall pay to Executive the benefits set
forth on Schedule B.
Section 2. Development of Inventions, Improvements or Know-How.
2.1 Information. During the Term of Employment, Executive shall keep
Employer informed of any and all promotional and advertising materials,
catalogs, brochures, plans, customer lists, supplier lists, candidate lists,
manuals, handbooks, inventions, discoveries, improvements, trade secrets, secret
processes and any technology, know-how or intellectual property made or
developed by him, in whole or in part, or conceived of by him, alone or with
others, which results from any work he may do for, or at the request of
Employer, or which relates in any way to the business operations, activities,
research, investigations or obligations of Employer (collectively, the
"Confidential Information").
2.2 Assignment of Rights. Executive, and his heirs, assigns and
representatives shall assign, transfer and set over, and do hereby assign,
transfer and set over, to Employer, and its successors and assigns, all of his
and their right, title and interest in and to any and all Information, and any
patents, patent applications, copyrights, trademarks, tradenames or other
intellectual property rights relating thereto, provided or conceived by
Executive during the Term of Employment.
Section 3. Non-Disclosure. The Executive shall keep secret and retain
in strictest confidence, and shall not use for the Executive's benefit or the
benefit of others, except in connection with the business and affairs of the
Employer (the "Business"), all Confidential Information and shall not disclose
any Confidential Information to anyone outside of the Employer, except for
Confidential Information which is at the time of receipt by the Executive, or
thereafter becomes, publicly known through no wrongful act of the Executive. The
obligations of Executive under this Section 3 shall survive any termination of
this Agreement for a period of five (5) years.
Section 4. Covenant Not To Compete. In consideration of the Employer's
obligations hereunder, during the Term of Employment and during the Designated
Period (as defined herein), the Executive will not (i) anywhere within North
America, engage, directly or indirectly, alone or as a shareholder (other than
as a holder of less than five percent (5%) of the common stock of any publicly
traded corporation), partner, officer, director, executive or consultant in any
other business identified as a direct competitor in the Company's annual Form
10-K; (ii) divert to any competitor of the Employer any customer of the
Employer; or (iii) solicit or encourage any officer, executive, employee or
consultant of the Employer to leave its employ for employment by or with any
competitor of the Employer. If at any time the provisions of this Section 4
shall be determined to be invalid or unenforceable, by reason of being vague or
unreasonable as to area, duration or scope of activity, this Section 4 shall be
considered divisible and shall become and be immediately amended to only such
area, duration and scope of activity as shall be determined to be reasonable and
enforceable by the court or other body having jurisdiction over the matter, and
the Executive agrees that this Section 4 as so amended shall be valid and
binding as though any invalid or unenforceable provision had not been included
herein. The term "Designated Period" shall mean a period of two (2) years
immediately following any termination of this Agreement and/or Executive's
employment hereunder, whether voluntary or involuntary and regardless of the
reason for termination.
Section 5. Termination of Agreement.
5.1. Right to Terminate.
<PAGE>
(a) Death. This Agreement shall terminate immediately upon
Executive's death.
(b) Disability. In the event that Executive, because of
accident, disability or physical or mental illness, is incapable of
performing his duties hereunder, unless otherwise prohibited by
applicable law, Employer shall have the right to terminate Executive's
employment hereunder upon thirty (30) days prior written notice to
Executive. For purposes of this Section 5.1(b), Executive shall be
deemed to have become incapable of performing his duties hereunder if
he shall have been incapable of so doing for (i) a continuous period of
one hundred eighty (180) days and remains so incapable at the end of
such one hundred eighty (180) day period; or (ii) periods amounting in
the aggregate to one hundred eighty (180) days within any one period of
three hundred sixty-five (365) days and remains so incapable at the end
of such aggregate period of one hundred eighty (180) days.
(c) Cause. Employer shall have the right to terminate
Executive's employment hereunder for cause immediately without prior
notice to Executive. The term "cause" shall mean (i) misappropriation
of material business opportunity, (ii) fraud, embezzlement, or
misappropriation of funds involving assets of Employer or any of their
customers, (iii) commission of or conviction with respect to any
criminal activity which materially affects Executive's ability to
perform his duties or materially harms the reputation of Employer or
(iv) final written determination by the Board of Directors of Employer
after thirty (30) days notice to Executive and the opportunity for
Executive to be heard by the Board of Directors of (A) Executive's
willful failure or refusal to comply with material and reasonable Board
of Directors directives or to render the services required under this
Agreement (except in the case of an accident, disability or physical or
mental illness) or (B) Executive's material breach of this Agreement.
(d) Deemed Termination. Executive shall have the right to
terminate this Agreement and resign from his employment with Employer
by written notice to Executive within thirty (30) days of the effective
date of any material adverse change by Employer in Executive's
compensation, responsibility, location of employment, or other material
terms of employment except as specifically contemplated herein or
within thirty (30) days of the occurrence of a material breach by
Employer of the terms and conditions of this Agreement.
(e) Other. Employer and Executive shall each have the right to
terminate this Agreement and Executive's employment hereunder for any
other reason not specified in this Section 5.1, with or without cause,
upon thirty (30) days prior written notice to the other party.
(f) Rights and Obligations of Executive Upon Termination.
(i) Upon the termination of Executive's employment
pursuant to Sections 5.1(a), (b), (c), (d), or (e), of this
Agreement, Employer shall not have any further obligation to
Executive under this Agreement except (other than as provided
in Section 5.1(f)(ii) below) to distribute to Executive his
Base Salary due pursuant to Section 1.3(a) hereof (and accrued
vacation pay) up to the date of termination.
(ii) In the event of a Deemed Termination as provided for in Section 5.1(d)
above or in the event that Executive shall terminate this Agreement and
Executive's employment hereunder without cause pursuant to Section 5.1(e)
above, Employer agrees (i) to pay to Executive as severance, on the date of
such termination, a lump sum payment in an amount equal to three (3) years
of the Executive's annual Base Salary then in effect, and (ii) continue the
Executive's health insurance and other benefits set forth on Schedule B for
a period equal to the remaining Term of Employment then in effect.
(iii) Upon the termination of this Agreement and
Executive's employment hereunder, whether voluntary or
involuntary, and regardless of the reason for or manner of
termination, all of the obligations of Executive under
Sections 2.2,3, and 4 shall remain in full force and effect
and shall survive the termination of this Agreement to the
extent set forth herein.
<PAGE>
Section 6. Miscellaneous.
6.1 Remedies.
(a) Injunctions. Inasmuch as any breach of, or failure to
comply with, this Agreement will cause serious and substantial damage
to Employer, if Executive should in any way breach or fail to comply
with the terms of this Agreement, Employer shall be entitled to an
injunction restraining Executive from such breach or failure.
(b) Cumulative Remedies. All remedies of Employer expressly provided for
herein are cumulative of any and all other remedies now existing at law
or in equity. Employer shall, in addition to the remedies herein
provided, be entitled to avail itself of all such other remedies as may
now or hereafter exist at law or in equity for compensation, and for
the specific enforcement of the covenants contained herein. Resort to
any remedy provided for hereunder or provided by law shall not prevent
the concurrent or subsequent employment of any other appropriate remedy
or remedies, or preclude the recovery by Employer of monetary damages.
6.2 Amendment. This Agreement may be amended only by a writing duly
executed by the parties hereto.
6.3 Entire Agreement. This Agreement and any other agreements expressly
referred to herein set forth the entire understanding of the parties hereto
regarding the subject matter hereof and supersede all prior contracts,
agreements, arrangements, communications, discussions, representations and
warranties, whether oral or written, between the parties regarding the subject
matter hereof.
6.4 Notice. For purposes of this Agreement, notices and communications
provided or permitted to be given hereunder shall be deemed to have been given
when (i) made by telex, telecopy or facsimile transmission; or (ii) sent by
overnight courier or mailed by United States registered or certified mail,
return receipt requested, postage prepaid to the parties at their addresses set
forth below their signature to this Agreement, or at such other addresses as
either may designate in writing as aforesaid from time to time.
6.5 Assignment. This Agreement is personal as to Executive and shall
not be assignable by Executive. Employer may assign its rights under this
Agreement to any affiliate or to any other person, firm, corporation, or other
entity which may acquire all or substantially all of the business which is now
or hereafter conducted by Employer, provided, that any such assignment shall be
subject to the express terms and conditions hereof.
6.6 Governing Law. This Agreement shall in all respects be governed by,
and construed in accordance with, the laws of the State of New York.
6.7 Severability. Each section and subsection of this Agreement
constitutes a separate and distinct provision hereof. It is the intent of the
parties hereto that the provisions of this Agreement be enforced to the fullest
extent permissible under the laws and public policies applicable in each
jurisdiction in which enforcement is sought. Accordingly, if any provision of
this Agreement shall be adjudicated to be invalid, ineffective or unenforceable,
the remaining provisions shall not be affected thereby. The invalid, ineffective
or unenforceable provisions shall, without further action by the parties, be
automatically amended to affect the original purpose and intent of the invalid,
ineffective and unenforceable provision; provided, however, that such amendment
shall apply only with respect to the operation of such provision in the
particular jurisdiction with respect to which such adjudication is made.
6.8 Waiver. The failure of Employer to insist upon strict adherence to
any term of this Agreement on any occasion shall not be construed as a waiver of
or deprive Employer of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver by Employer must be in
writing and signed by a duly authorized representative of Employer other than
Executive.
<PAGE>
6.9 Headings. The headings of this Agreement are solely for convenience
of reference and shall not be given any effect in the construction or
interpretation of this Agreement.
6.10 Binding Effect. Subject to the foregoing, this Agreement shall be
binding upon and inure to the benefit of the respective parties hereto and their
heirs, personal representatives, successors and permitted assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
EMPLOYER:
WAVE SYSTEMS CORP.
By: /s/ Gerard T. Feeney
Name: Gerard T. Feeney
Title: SVP Finance & Admin, CFO
Address for Notices:
Wave Systems Corp.
480 Pleasant St.
Lee, MA 01238
EXECUTIVE / Employee:
/s/ Steven Sprague
Steven K. Sprague, President & COO
Address for Notices:
Steven Sprague
147 Reservoir Road
Lenox, MA
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Wave Systems Corp.
We consent to the incorporation by reference in the registration statements
Nos. 333-38265, 333-28819, and 333-20017 on Form S-3 and Nos. 333-68911,
333-69041, 33-97612, 333-11611 and 333-11609 on Form S-8, of our report
dated March 26, 1999, relating to the consolidated balance sheets of Wave
Systems Corp. and subsidiaries as of December 31, 1998 and 1997, and the
related consolidated statements of operations, stockholders' equity
(deficiency), and cash flows for each of the years in the three-year period
ended December 31, 1998 and for the period from February 12, 1988
(inception) through December 31, 1998 which report appears in the December
31, 1998 annual report on Form 10-K of Wave Systems Corp.
KPMG Peat Marwick LLP
/s/ KPMG Peat Marwick LLP
Boston, Massachusetts
March 30, 1999
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<NAME> Wave Systems Corp.
<CURRENCY> U.S. Dollars
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> DEC-31-1998
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<SECURITIES> 0
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493,201
347,812
<COMMON> 315,429
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<TOTAL-LIABILITY-AND-EQUITY> 2,057,812
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<TOTAL-REVENUES> 0
<CGS> 0
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<OTHER-EXPENSES> 0
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