As filed with the Securities and Exchange Commission on March 24, 2014
Registration No. 333-
UNITED STATES
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)
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Delaware
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13-3477246
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(State or Other Jurisdiction of Incorporation
or Organization)
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(I.R.S. Employer
Identification No.)
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480 Pleasant Street, Lee, Massachusetts 01238
(Address of Principal Executive Offices) (Zip Code)
Amended and Restated 1994 Employee Stock Option Plan
(Full Title of the Plan)
William M. Solms
Chief Executive Officer
Wave Systems Corp.
480 Pleasant Street
Lee, Massachusetts 01238
(Name and Address of Agent for Service)
(413) 243-1600
(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Neil W. Townsend, Esq.
Willkie Farr and Gallagher LLP
787 Seventh Avenue
New York, New York 10019
Telephone: (212) 728-8000
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
x
(Do not check if a smaller reporting company)
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Smaller reporting company
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CALCULATION OF REGISTRATION FEE
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Title of Securities to be Registered
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Amount to be
Registered(1)
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Proposed Maximum
Offering Price Per
Share(2)
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Proposed
Maximum
Aggregate Offering
Price(2)
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Amount of
Registration
Fee
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Class A Common Stock, $0.01 par value
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5,000,000
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$
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0.98
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$
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4,900,000
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$
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631.12
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(1)
Represents additional shares of Wave Systems Corp. (the “Registrant”) Class A common stock (the “Class A Common Stock”) which may be issued under the Amended and Restated 1994 Stock Option Plan (the “Plan”). Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers an indeterminate number of additional shares that may be offered and sold under the Plan as a result of certain future corporate transactions or events, including a stock split, stock dividend, merger, recapitalization, reorganization, or similar transaction effected without the receipt of consideration which results in an increase in the number of the Registrant’s outstanding shares of Class A Common Stock.
(2)
Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and (h) under the Securities Act, based upon the average of the high and low sales prices of the Class A Common Stock reported on the Nasdaq Capital Market on March 20, 2014.
EXPLANATORY NOTE
On June 20, 2013, at the 2013 annual meeting of Wave Systems Corp. (the “Registrant”), the Registrant’s stockholders approved an amendment to the Registrant’s Amended and Restated 1994 Employee Stock Option Plan, as amended (the “Plan”), to increase the maximum number of shares of the Class A Common Stock, par value $0.01 per share (the “Common Stock”) of the Registrant available for the grant of awards under the Plan by 5,000,000 shares, which the Registrant’s Board of Directors had previously approved, subject to such stockholder approval.
Pursuant to General Instruction E of Form S-8, the Registrant hereby incorporates by reference the contents of the Registrant’s Registration Statements on Form S-8 (File Nos. 333-178128, 333-164320, 333-144139, 333-69041, 333-11611 and 33-97612), as filed with the Securities and Exchange Commission (the “Commission”) on November 22, 2011, January 13, 2010, June 28, 2007, December 16, 1998, September 9, 1996 and October 2, 1995, respectively (the “Prior Registration Statements”), together with all exhibits filed therewith or incorporated therein by reference to the extent not otherwise amended or superseded by the contents hereof or otherwise, covering an aggregate of 19,000,000 shares of Common Stock that may be issued pursuant to the Plan. This Registration Statement is being filed to register an additional 5,000,000 shares of the Registrant’s Common Stock subject to issuance under the Plan. The additional shares of Common Stock being registered by this Registration Statement are of the same class as those securities registered on the Prior Registration Statements and represent an increase in the total shares of Common Stock available for issuance under the Plan from 19,000,000 to 24,000,000.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
Incorporation of Documents by Reference.
The following documents, which have been previously filed by the Registrant with the Securities and Exchange Commission (the “Commission”), are hereby incorporated by reference in this Registration Statement:
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The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2013, filed with the Commission on March 14, 2014 (the “Annual Report”);
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The Registrant’s definitive proxy statement on Schedule 14A filed with the Commission on April 30, 2013;
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The Registrant’s Current Report on Form 8-K filed with the Commission on March 13, 2014; and
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The description of the Class A Common Stock contained in the Registrant’s registration statement on Form S-3/A filed with the Commission on October 25, 2013.
In addition, all reports and other documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to the filing of a post-effective amendment hereto which indicates that all securities offered hereby have been sold or which 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. Nothing in this Registration Statement shall be deemed to incorporate information furnished but not filed with the Commission pursuant to Item 2.02 or Item 7.01 of Form 8-K.
Any statement contained herein or in a document, all or a portion of which is incorporated or deemed to be incorporated by reference herein, shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or amended, to constitute a part of this Registration Statement.
Item 8.
Exhibits.
Reference is made to the attached Exhibit Index, which is incorporated by reference herein.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Town of Lee, Commonwealth of Massachusetts, on this 24th day of March, 2014.
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WAVE SYSTEMS CORP.
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By:
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/s/ William M. Solms
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William M. Solms,
Chief Executive Officer
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By:
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/s/ Gerard T. Feeney
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Gerard T. Feeney,
Chief Financial Officer and Secretary
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POWER OF ATTORNEY
We, the undersigned officers and directors of the Registrant, hereby severally constitute and appoint William M. Solms and Gerard T. Feeney and each of them singly, our true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution, to sign for us and in our names in the capacities indicated below, this Registration Statement and any and all post-effective amendments to said Registration Statement, and generally to do all such things in our names and on our behalf in our capacities as officers and directors to enable the Registrant to comply with the provisions of the Securities Act, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys-in-fact or any of them, to said Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the date indicated:
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Signature
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Title
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/s/ William M. Solms
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Chief Executive Officer and Director (Principal Executive Officer)
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March 24, 2014
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William M. Solms
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/s/ John E. Bagalay
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Chairman
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March 24, 2014
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John E. Bagalay, Jr., Ph.D.
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/s/ Nolan Bushnell
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Director
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March 24, 2014
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Nolan Bushnell
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/s/ George Gilder
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Director
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March 24, 2014
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George Gilder
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