Exhibit 10.1


 


PATENT PURCHASE AGREEMENT


 


This Patent Purchase Agreement (“Agreement”) is
entered into by and among Antique Books, Inc., with offices at 2 Queens
Court, Pittsburgh, PA 15238 (“Seller”), and Robert Thibadeau (“Shareholder”),
with offices at 2 Queens Court, Pittsburgh, PA 15238 (collectively, the
“Selling Parties”), and Wave Systems Corp., a Delaware corporation with offices
at 480 Pleasant Street, Lee, MA 01238 (“Purchaser”) effective May 7, 2010
(“Effective Date”).


 


The parties agree as follows:


 


I.                                        DEFINITIONS


 


1.                                      “Docket File”
means information relating to the prosecution or maintenance of the Purchased
Patents, including the names and contact information of prosecution counsel and
agents, and information relating to deadlines, payments, and filings, which
Selling Parties represent to be current as of the Effective Date.  To the extent such information is kept in
electronic form, Seller shall work with Purchaser to deliver the information in
a format reasonably acceptable to the parties.


 


2.                                      “Encumbrances”
means any and all licenses, covenants not to assert and other rights granted to
third parties respecting the Purchased Patents.


 


3.                                      “Purchased
Patents” means those patents and any pending applications set forth in Exhibit 1 to this Agreement,
including all foreign corresponding patents and applications therefore now
pending (in all countries) claiming the priority date of such patents and all
patents (including utility models and certificates of inventorship) resulting
from reissues, continuations, divisions, renewals, reexaminations and
extensions of such patents or patent applications.


 


4.                                      “Purchase
Price” shall have the meaning set forth in Section III.l.


 

















 


II.                                   ASSIGNMENT


 


1.                                      Assignment.  On the Effective Date, Seller shall assign,
convey and transfer to Purchaser the Purchased Patents, free and clear of
Encumbrances, except as set forth in Section IV. 3 below, by delivering to
Purchaser an executed Patent Assignment in the form attached to this Agreement
as Exhibit 2.  In addition, Seller hereby transfers to
Purchaser, and will deliver to Purchaser on the Effective Date, any and all
tangible manifestations of the Purchased Patents, including without limitation
all notes, records, files and tangible items of any sort in Selling Parties’ possession
or under the control of either Selling Party. 
Purchaser shall acquire hereunder all worldwide rights in the Purchased
Patents, including without limitation the right to obtain foreign patents with
respect to the subject matter of the Purchased Patents.  Selling Parties shall execute and deliver
such additional documents, and perform such other acts, as Purchaser may
reasonably request for the purpose of perfecting Purchaser’s title to, or
reducing to Purchaser’s possession, the assets described in this section.


 


2.                                      Fees.  Purchaser shall be and remain solely liable
for the payment of any maintenance and/or annuities and/or other fees due
and/or payable (including any new prosecution fees incurred in the prosecution
of any application), incurred on or after the Effective Date with respect to
each Purchased Patent.


 


III.                              PURCHASE
PRICE AND PAYMENT


 


1.                                      Purchase Price.  In consideration for the assignment of the
Purchased Patents as provided herein, Purchaser shall pay Seller (US)
$1,100,000 (“Purchase Price”) on the Effective Date by wire transfer of the
Purchase Price to Seller’s account as instructed.


 

















 


2.                                      Allocation.  The Purchase Price shall be allocated between
the Purchased Patents in the manner set forth on Exhibit 1.


 


IV.                               SELLING
PARTIES’ REPRESENTATIONS, WARRANTIES AND COVENANTS - Selling Parties
represent and warrant to Purchaser, and covenant and agree, as follows:


 


1.                                      Authority.  Selling Parties have the right to make the
assignments contemplated by this Agreement, and this Agreement is and will be
binding on and enforceable against it in accordance with the terms hereof.


 


2.                                      Validity.  None of the issued Purchased Patents has ever
been found in a post-issuance proceeding to be invalid, unpatentable, or
unenforceable for any reason in any administrative, arbitration, judicial or
other proceeding; Selling Parties are aware of no third party who asserts that
a Purchased Patents is invalid or who is infringing a Purchased Patent; and
Seller has not commenced any enforcement action in any court or other tribunal
with respect to either of the Purchased Patents.


 


3.                                      No Encumbrances.  The Purchased Patents are subject to no
Encumbrances other than a patent license (“Seagate License”) between Seller as
licensor and Seagate Technology LLC, a Delaware limited liability company
(“Seagate”).  The Seagate License has not
been amended.  Neither Seagate nor Seller
is in default with respect to its obligations under the Seagate License, and no
circumstances exist that, with notice or the passage of time, will cause Seller
to be in default.  Seller hereby assigns
its rights under the Seagate License to Purchaser but retains and agrees to
timely perform all of its duties under the Seagate License  except those
that Purchaser may hereafter agree in writing to assume and perform.


 


4.                                      Authorization.  All corporate action on the part of Seller
and its directors and shareholders necessary for the authorization, execution,
delivery and performance by 


 

















 


Seller
of this Agreement and the performance of all of Seller’s obligations hereunder
has been taken.


 


5.                                      Compliance with
Other Instruments.  The
execution, delivery and performance of and compliance with this Agreement have
not resulted and will not result in a material violation of, conflict with, or
constitute a material default under any agreement or other instrument to which
a Selling Party is a party or by which it is bound, including without
limitation the Seagate License.


 


6.                                      Governmental
Consent.  No consent, approval or
authorization of or designation, declaration or filing with any governmental
authority on the part of Seller is required in connection with the valid
execution, delivery and performance of this Agreement.


 


7.                                      Brokers or
Finders.  Purchaser has not incurred and
will not incur, directly or indirectly, as a result of any action taken by a
Selling Party (assuming that no unilateral action is taken by Purchaser), any
liability for brokerage or finder’s fees, agents’ commissions or any similar
charges in connection with this Agreement.


 


V.                                    PURCHASER’S REPRESENTATIONS, WARRANTIES  AND COVENANTS - Purchaser represents and warrants to Seller
and covenants and agrees as follows:


 


1.                                         Authority.   This Agreement is and will be binding on and
enforceable against it in accordance with the terms hereof.


 


2.                                         Organization
and Standing; Articles and Bylaws.  Purchaser is a corporation duly organized and
existing under, and by virtue of, the laws of the State of Delaware and is in
good standing under such laws.  Purchaser
has the requisite corporate power and 


 

















 


authority
to own and operate its properties and to carry on its business as presently
conducted.


 


3.                                         Authorization.  All corporate action on the part of Purchaser
and its directors necessary for the authorization, execution, delivery and
performance by Purchaser of this Agreement have been taken.


 


4.                                         Compliance with
Other Instruments.  The
execution, delivery and performance of and compliance with this Agreement by
Purchaser have not resulted and will not result in a material violation of,
conflict with, or constitute a material default under any agreement or other
instrument to which Purchaser is a party or by which it is bound.


 


5.                                         Governmental
Consent.  No consent, approval or
authorization of or designation, declaration or filing with any governmental
authority on the part of Purchaser is required in connection with the valid
execution, delivery and performance of this Agreement.


 


6.                                         Brokers or
Finders.  No Selling Party has incurred
or will incur, directly or indirectly, as a result of any action taken by Purchaser
(assuming that no unilateral action is taken by the Selling Party), any
liability for brokerage or finder’s fees, agents’ commissions or any similar
charges in connection with this Agreement.


 


VI.                                  INDEMNITY


 


1.                                         By Selling
Parties.  Selling Parties jointly and
severally agree to indemnify Purchaser and its officers and directors with
respect to, and hold them harmless and defend them from, all claims and causes
of action (and related attorney fees and expenses) arising from or related to
the breach by a Selling Party of a representation, warranty or covenant under
this Agreement.


 

















 


2.                                         By Purchaser.  Purchaser agrees to indemnify Seller and its
officers and directors with respect to, and hold them harmless and defend them
from, all claims and causes of action (and related attorney fees and expenses)
arising from or related to the breach by Purchaser of a representation,
warranty or covenant under this Agreement.


 


VII.                             NOTICES


 


1.                                         Notices.  Notices are deemed given on the date of
receipt if delivered personally or by express courier.  Notice given in any other manner will be
deemed to have been given only if and when received at the address of the
person to be notified as set forth above. 
Each party may from time to time change its address for notices under
this Agreement by giving the other party written notice of such change in
accordance with this paragraph.


 


VIII.                     GENERAL


 


1.                                      Assignment.  No party may assign its rights or delegate
its duties under this Agreement without the prior written consent of the other
parties.


 


2.                                      Waiver.  Failure or delay of a party to exercise any
right or remedy under this Agreement or to require strict performance by
another party of any provision of this Agreement shall not be construed to be a
waiver of any such right or remedy or any other right or remedy hereunder.  All of the rights of each party under this
Agreement shall be cumulative and may be exercised separately or concurrently.


 


3.                                      Severability.  This Agreement is intended to be valid and
effective throughout the world and, to the extent permissible under applicable
law, shall be construed in a manner to avoid violation of or invalidity under
any applicable law.  Should any provision
hereof nevertheless be or become invalid, illegal or unenforceable under any
applicable law, the other provisions hereof shall not be affected, and to the
extent permissible under 


 

















 


applicable
law, any such invalid, illegal or unenforceable provision shall be deemed
amended lawfully to conform to the intent of the parties.


 


4.                                      No Third Party
Beneficiaries.  The parties
agree there shall be no third party beneficiaries of this Agreement.


 


5.                                      Governing Law.  The validity, construction, and performance
of this Agreement and any dispute between the parties relating thereto shall be
governed by and interpreted and determined in accordance with the laws of the
State of Massachusetts (excluding its conflicts of laws provisions).  The parties specifically agree that the 1980
United Nations Convention on Contracts for the International Sale of Goods, as
such may be amended from time to time, shall not apply to this Agreement.  Each party hereby waives any right to, and
agrees not to seek, a trial by jury in connection with any matter arising out
of or otherwise relating to this Agreement or the subject matter hereof.


 


6.                                      Jurisdiction.  Any action to interpret or enforce this
Agreement shall be brought and maintained in federal or state court in Boston,
Massachusetts.


 


7.                                      Specific
Performance.  The parties
agree that a breach of Section II. 1 cannot be adequately compensated by
monetary damages and that specific performance of the Selling Parties’
obligations under such section is the proper remedy for any breach thereof.


 


8.                                      Entire
Agreement.  This
Agreement, together with the Exhibits, embodies the entire understanding
between the parties as to the subject matter of this Agreement and supersedes
all previous discussions and documents respecting such subject matter.  No amendment or modification to this Agreement
shall be effective or binding on any party unless the same has been reduced to
writing and signed by an authorized representative of 


 

















 


such
party.  The governing language of this
Agreement is the English language, which shall control with respect to its
interpretation.


 


9.                                      Counterparts.  This Agreement may be executed in any number
of counterparts, each of which, when executed and delivered, shall be an
original, but all such counterparts shall constitute one and the same
instrument.  As used herein, the term
“counterparts” shall include full copies of this Agreement signed and delivered
by facsimile transmission, as well as photocopies of such facsimile
transmissions.  Each party represents
that the signature of the individual noted in the signature block below is
sufficient to bind it to and under the terms of this Agreement.


 


10.                               Survival of
Representations and Warranties.  The representations and warranties in this
Agreement shall survive the consummation of the purchase and sale of the
Purchased Patents and related assets.


 


11.                               Exhibits.  The following Exhibits are included in the
terms of the Agreement:


 


Exhibit 1:                                        Purchased
Patents


 


Exhibit 2:                                        Patent
Assignment


 


 


	
  SELLER:

  	
   

  	
  PURCHASER:

  
	
   

  	
   

  	
   

  
	
  ANTIQUE BOOKS, INC.

  	
   

  	
  WAVE
  SYSTEMS CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Robert Thibadeau

  	
   

  	
  By:

  	
  /s/
  Steven Sprague

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Robert
  Thibadeau

  	
   

  	
  Name:

  	
  Steven
  Sprague

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  President

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  May 4,
  2010

  	
   

  	
  Date:

  	
  May 7,
  2010

  



 

















 


SHAREHOLDER:


 


	
  /s/
  Robert Thibadeau

  	
   

  
	
   

  	
   

  
	
  Robert
  Thibadeau, individually

  	
   

  
	
   

  	
   

  
	
  Date:

  	
  May 4,
  2010

  	
   

  
			



 
















 


EXHIBIT 1


 


PURCHASED PATENTS


 


	
  PATENT

  NUMBER/

  APPLICATION

  NUMBER

  	
   

  	
  JURISDICTION

  	
   

  	
  TITLE

  	
   

  	
  PRICE

  	
   

  
	
  7,426,747

  	
   

  	
  United States

  	
   

  	
  Methods and systems for
  promoting security in a computer employing attached storage devices

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  1,100,000

  	
   

  
	
  7,036,020

  	
   

  	
  United States

  	
   

  	
  Methods and systems for
  promoting security in a computer employing storage devices

  	
   

  	
   

  	
   

  
									



 

















 


EXHIBIT 2


 


PATENT ASSIGNMENT


 


WHEREAS,
Antique Books, Inc., a Pennsylvania corporation with offices at 2 Queens
Court, Pittsburgh, PA 15238 ( “Antique Books”) is the sole and exclusive owner
of those certain patents and applications set forth on Attachment A hereto (referred to as the
“Patents”); and


 


WHEREAS,
Wave Systems Corp., a Delaware corporation with offices at 480 Pleasant Street,
Lee, MA 01238 (“Purchaser”), is desirous of acquiring the right, title and
interest in, to and under the said Patents;


 


NOW,
THEREFORE, for good and valuable consideration the sufficiency of which is
acknowledged by the parties:


 


Antique
Books does hereby sell, assign and transfer to Purchaser, the Patents, all of
which are to be held and enjoyed by Purchaser for its own use and enjoyment,
and for the use and enjoyment of its successors, assigns or other legal
representatives, to the end of the term or terms for which said Patents are or
may be granted, reissued or extended as fully and entirely as the same would
have been held and enjoyed by Antique Books, if this assignment and sale had
not been made; together with all causes of action (whether known or unknown or
whether currently pending, filed, or otherwise) and other enforcement rights
under, or on account of, any of the Patents, including, without limitation, all
causes of action and other enforcement rights for (i) damages, (ii) injunctive
relief, and (iii) any other remedies of any kind for past, current and
future infringement, and all rights to collect royalties or other payments
under or on account of any of the Patents, all for Purchaser’s own use and
behalf, and for the use and behalf of its successors, assigns or other legal
representatives.


 


Antique
Books hereby authorizes and requests the Commissioner of Patents and
Trademarks, or an equivalent officer in any jurisdiction in which a Patent may
have issued, to issue any and all Letters Patent on said inventions to Purchaser
as assignee of the entire interest, and hereby covenants that Antique Books has
full right to convey the entire interest herein assigned, and that, except as
otherwise explicitly agreed and acknowledged in writing between the parties,
Antique Books has not executed, and will not execute, any agreements in
conflict therewith.


 




ANTIQUE BOOKS, INC.


 


 


	
  By:

  	
  /s/
  Robert Thibadeau

  	
   

  
	
  Name:

  	
  Robert
  Thibadeau

  	
   

  
	
  Title:

  	
  President

  	
   

  
	
  Date:

  	
  May 6,
  2010

  	
   

  



 

















 


ATTACHMENT A


 


TO PATENT ASSIGNMENT


 


	
  PATENT

  NUMBER/

  APPLICATION

  NUMBER

  	
   

  	
  JURISDICTION

  	
   

  	
  TITLE

  
	
  7,426,747

  	
   

  	
  United States

  	
   

  	
  Methods and systems for
  promoting security in a computer employing attached storage devices

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7,036,020

  	
   

  	
  United States

  	
   

  	
  Methods and systems for
  promoting security in a computer employing storage devices