EXHIBIT 10.2
NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS.
THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF
THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR
OTHER LOAN SECURED BY SUCH SECURITIES.
COMMON STOCK PURCHASE WARRANT
To Purchase
Shares of Common Stock of
Wave Systems Corp.
THIS COMMON STOCK PURCHASE WARRANT (the "Warrant") CERTIFIES that, for value
received,
(the "Holder"), is entitled, upon the terms and subject
to the limitations on exercise and the conditions hereinafter set forth, at any
time on or after November
, 2003 (the "Initial Exercise Date") and on or
prior to the close of business on the third anniversary of the Initial Exercise
Date (the "Termination Date") but not thereafter (the "Exercise Period"), to
subscribe for and purchase from Wave Systems Corp., a corporation incorporated
in Delaware (the "Company"), up to
shares (the "Warrant Shares")
of Common Stock, par value $0.01 per share, of the Company (the "Common
Stock").
The purchase price of one share of Common Stock (the "Exercise Price")
under this Warrant shall be $
(1), subject to adjustment
hereunder.
The Exercise Price and the number of Warrant Shares for which the
Warrant is exercisable shall be subject to adjustment as provided herein.
Capitalized terms used and not otherwise defined herein shall have the meanings
set forth in that certain Securities Purchase Agreement (the "Purchase
Agreement"), dated November
, 2003, between the Company and the purchasers
signatory thereto.
(1)
110% of the average of the five VWAPs for the five Trading Days
immediately prior to the Closing Date.
1
1.
TITLE TO WARRANT.
PRIOR TO THE TERMINATION DATE AND SUBJECT TO
COMPLIANCE WITH APPLICABLE LAWS AND SECTION 7 OF THIS WARRANT, THIS WARRANT AND
ALL RIGHTS HEREUNDER ARE TRANSFERABLE, IN WHOLE OR IN PART, AT THE OFFICE OR
AGENCY OF THE COMPANY BY THE HOLDER IN PERSON OR BY DULY AUTHORIZED ATTORNEY,
UPON SURRENDER OF THIS WARRANT TOGETHER WITH THE ASSIGNMENT FORM ANNEXED HERETO
PROPERLY ENDORSED.
THE TRANSFEREE SHALL SIGN AN INVESTMENT LETTER IN FORM AND
SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY.
2.
AUTHORIZATION OF WARRANT SHARES.
THE COMPANY REPRESENTS AND
WARRANTS THAT ALL WARRANT SHARES WHICH MAY BE ISSUED UPON THE EXERCISE OF THE
PURCHASE RIGHTS REPRESENTED BY THIS WARRANT WILL, UPON EXERCISE OF THE PURCHASE
RIGHTS REPRESENTED BY THIS WARRANT, BE DULY AUTHORIZED, VALIDLY ISSUED, FULLY
PAID AND NONASSESSABLE AND FREE FROM ALL TAXES, LIENS AND CHARGES IN RESPECT OF
THE ISSUE THEREOF (OTHER THAN TAXES