AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 8, 1999
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
----------------------
WAVE SYSTEMS CORP.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 13-3477246
(State or Other Jurisdiction of Incorporation (I.R.S. Employer
or Organization) Identification No.)
480 PLEASANT STREET, LEE, MASSACHUSETTS 01238
(Address of Principal Executive Offices) (ZIP Code)
----------------------
1997 N*Able Equity Incentive Plan
(Full title of the Plan)
---------------------
STEVEN K. SPRAGUE
President and Chief Operating Officer
WAVE SYSTEMS CORP.
480 Pleasant Street
Lee, MA 01238
(Name and Address of Agent for Service)
(413) 243-1600
Telephone Number, Including Area Code, of Agent for Service
--------------------
Copies to:
NEIL W. TOWNSEND, ESQ.
BINGHAM DANA LLP
399 Park Avenue
New York, New York 10022-4689
(212) 318-7000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
===============================================================================================
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER SHARE OFFERING FEE
PRICE (1)
- -----------------------------------------------------------------------------------------------
Class A Common Stock,
$.01 par value............. 435,000 $9.56 $4,158,600 $1,156.09
===============================================================================================
</TABLE>
(1) Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, as amended, based on
the average of the high and low prices of the Registrant's Common Stock, $.01
par value per share, as reported on the Nasdaq National Market on October 5,
1999. It is not known how many shares will be purchased under the plan or at
what price such shares will be purchased.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Wave Systems Corp. (the "Registrant")
with the Securities and Exchange Commission (the "SEC") are hereby incorporated
by reference into this Registration Statement: (1) the Registrant's Annual
Report on Form 10-K for the fiscal year ended December 31, 1998; (2) all
reports filed by the Registrant pursuant to Sections 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), since the end
of the Registrant's 1998 fiscal year; and (3) the description of the Common
Stock contained in the Registrant's registration statement on Form 8-A filed
with the SEC under Section 12(g) of the Exchange Act, including any amendment
or report filed for the purpose of updating such description.
In addition, all documents subsequently filed by the Registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing
of a post-effective amendment that indicate that all securities offered hereby
have been sold or that deregisters all of such securities then remaining
unsold, shall be deemed to be incorporated by reference into this Registration
Statement and to be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law empowers a Delaware
corporation to indemnify its officers and directors and certain other persons
to the extent and under the circumstances set forth therein.
The Certificate of Incorporation and By-Laws of the Registrant, copies of
which are filed herein as exhibits, provide for indemnification of officers and
directors of the Registrant and certain other persons against liabilities and
expenses incurred by any of them in certain stated proceedings and under
certain stated conditions.
The Registrant intends to maintain insurance for the benefit of its
directors and officers, insuring such persons against certain liabilities,
including liabilities under the securities laws.
The above discussion of the Registrant's Certificate of Incorporation and
By-Laws and Section 145 of the Delaware General Corporation Law is not
exhaustive, and is qualified in its entirety by the full text of those
documents and law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
<PAGE>
ITEM 8. EXHIBITS.
The following exhibits are filed as part of this Registration Statement:
4.1 Form of Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.1 to the Registrant's Registration
Statement on Form S-1, File No. 33-75286)
4.2 Form of By-laws of the Registrant (incorporated by reference to Exhibit
3.2 to the Registrant's Registration Statement on Form S-1, File No.
32-75296)
5.1 Opinion and Consent of Bingham Dana LLP with respect to the legality of
the shares being registered.
23.1 Consent of Bingham Dana LLP (included in Exhibit 5.1).
23.2 Consent of KPMG LLP.
24 Power of Attorney (included in signature page).
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to include any material
information with respect to the plan of distribution not previously disclosed
in this Registration Statement or any material change to such information in
this Registration Statement;
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering;
(4) That, for purposes of determining any liability under the Securities Act
of 1933, as amended, each filing of the Registrant's annual report pursuant to
Sections 13(a) or 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d)
of the Exchange Act) that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof; and
(5) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the SEC such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York, on this 8th day of
October, 1999.
WAVE SYSTEMS CORP.
By: /s/ Peter J. Sprague
Peter J. Sprague
Chairman of the Board and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby appoints Peter J. Sprague, Steven K. Sprague, Gerard T. Feeney,
each of them severally, acting alone and without the other, his true and lawful
attorney-in-fact with the authority to execute in the name of each such person,
and to file with the Securities and Exchange Commission, together with any
exhibits thereto and other documents therewith, any and all amendments
(including without limitation post-effective amendments) to this Registration
Statement on Form S-8 necessary or advisable to enable the Registrant to comply
with the Securities Act of 1933, as amended, and any rules, regulations, and
requirements of the Securities and Exchange Commission in respect thereof,
which amendments may make such other changes in the Registration Statement as
the aforesaid attorney-in-fact executing the same deems appropriate.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated:
SIGNATURE TITLE DATE
/s/ Peter J. Sprague Chairman and Chief Executive October 8, 1999
- ---------------------- Officer
Peter J. Sprague
/s/ Steven Sprague President and Chief Operating Officer October 8, 1999
- ---------------------- and Director
Steven Sprague
/s/ John E. Bagalay, Jr. Director October 8, 1999
- ----------------------
John E. Bagalay, Jr.
/s/ Philippe Bertin Director October 8, 1999
- ----------------------
Philippe Bertin
/s/ George Gilder Director October 8, 1999
- ----------------------
George Gilder
/s/ John E. McConnaughy, Jr. Director October 8, 1999
- ----------------------
John E. McConnaughy, Jr.
/s/ Gerard T. Feeney Senior Vice President, Finance October 8, 1999
---------------------- and Administration, Chief Financial
Gerard T. Feeney Officer and Secretary (Principal
Accounting Officer)
<PAGE>
INDEX TO EXHIBITS
EXHiBIT
NUMBER DESCRIPTION
4.1 Form of Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.1 to the Registrant's Registration
Statement on Form S-1, File No. 33-75286)
4.2 Form of By-laws of the Registrant (incorporated by reference to Exhibit
3.2 to the Registrant's Registration Statement on Form S-1, File No.
33-75286)
5.1 Opinion and Consent of Bingham Dana LLP with respect to the legality of
the shares being registered.
23.1 Consent of Bingham Dana LLP (included in Exhibit 5.1).
23.2 Consent of KPMG LLP.
24 Power of Attorney (included in signature page to Registration Statement).
Exhibit 5.1
BINGHAM DANA LLP
150 Federal Street
Boston, MA 02110
October 8, 1999
Wave Systems Corp.
480 Pleasant Street
Lee, Massachusetts 01238
Re: FORM S-8 REGISTRATION STATEMENT
Ladies and Gentlemen:
We have acted as counsel for Wave Systems Corp., a Delaware corporation
(the "Company"), in connection with the Company's Registration Statement on
Form S-8, to be filed with the Securities and Exchange Commission on October 8,
1999 (the "Registration Statement").
The Registration Statement effects the registration of 435,000 shares of
the Class A Common Stock, $.01 par value per share, of the Company (the
"Shares"), which are to be issued by the Company pursuant to the 1997 N*Able
Equity Incentive Plan (the "Plan").
We have reviewed the corporate proceedings of the Company with respect to
the authorization of the Plan and the issuance of the Shares thereunder. We
have also examined and relied upon originals or copies of such agreements,
instruments, corporate records, certificates and other documents as we have
deemed necessary or appropriate as a basis for the opinions hereinafter
expressed. In our examination, we have assumed the genuineness of all
signatures, the conformity to the originals of all documents reviewed by us as
copies, the authenticity and completeness of all original documents reviewed by
us in original or copy form, and the legal competence of each individual
executing any document.
We further assume, without investigation, that all Shares issued pursuant
to the Plan will be issued in accordance with the terms of such Plan and that
the purchase price of each of the Shares will be at least equal to the par
value of such Shares. Without prejudice to the generality of the foregoing, we
assume that in connection with each award of shares of restricted stock under
the Plan, the Company will require the recipient of the award upon issuance of
such shares to pay a cash purchase price at least equal to the par value of
such shares.
Subject to the limitations set forth below, we have made such examination
of law as we have deemed necessary for the purposes of this opinion. This
opinion is limited solely to the Delaware General Corporation Law as applied by
courts located in Delaware.
Based upon and subject to the foregoing, we are of the opinion that the
Shares, when issued and delivered upon the exercise of options or grant of
restricted stock awards pursuant to the Plan and against the payment of the
purchase price therefor, will be validly issued, fully paid, and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Bingham Dana LLP
BINGHAM DANA LLP
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement on Form S-8 of Wave Systems Corp. of our report dated March 26, 1999
relating to the balance sheets of Wave Systems Corp. as of December 31, 1998
and 1997 and the related statements of operations, stockholders' equity 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 (date of inception) to December
31, 1998, which report appears in the December 31, 1998 annual report on Form
10-K of Wave Systems Corp.
/s/ KPMG LLP
KPMG LLP
Boston, Massachusetts
October 7, 1999
