EXHIBIT 10.17
AMENDMENT NO. 1
TO PURCHASE, DEVELOPMENT, AND DEPLOYMENT AGREEMENT
This Amendment No. 1 (the "Amendment"), dated May 10, 2001, modifies the
Purchase, Development, and Deployment Agreement (the "Agreement") between BIZ
Interactive Zone ("BIZ") and Wave Systems Corp. ("Wave") dated October 2, 2000.
The parties agree as follows:
1. DEFINITIONS.
The definitions in the Agreement shall apply to this Amendment.
2. THE PROJECT.
Section 2 of the Agreement, describing the development work to be
accomplished by Wave under the Project, is modified to include "porting" or
adapting the Embassy Chip to operate under the Linux operating system in a set
top box or a cable modem. The development work described above shall supercede
and replace that described in Section 2 of the Agreement. The development work
under the Project shall be owned by Wave and BIZ, and BIZ shall continue to have
distribution rights with respect to Embassy-Enabled Product as set forth in the
Agreement. Wave and BIZ agree to establish a timeline, review milestones and
interim delivery schedules ("Milestones") for the Project. Upon reaching the
agreed upon Milestones, Wave shall deliver the required item. BIZ shall then
provide in writing either acceptance or rejection (and the reasons for any
rejection) of the completed Milestone.
3. PAYMENT.
a. Sections 7a and 7b of the Agreement are deleted. For the additional
development work to be accomplished under the Project as described in Section 2,
above, BIZ agrees to pay Wave $277,778 per month (the "Monthly Payment") for
eighteen (18) months beginning June 1, 2001. If Wave and BIZ jointly agree to
accelerate the development delivery time, they will also consider accelerated
payment terms. There shall be a ten (10) business day grace period following the
first of each month for the Monthly Payment (the "Due Date").
b. Simultaneously with the execution of this Amendment, BIZ will place
with Wave an open $5,000,000 purchase order in the form of Exhibit A to this
Amendment.
4. DEFAULT.
a. In the event the $5 million in purchase order is not entirely used by
June 30, 2003, in addition to other available remedies, the rights granted to
BIZ in Sections 4(a)(i) and 4(a)(ii) of the Agreement shall, at Wave's option,
become non-exclusive.
b. If BIZ fails to pay any installment under Section 3(a) in full, when
and as the same shall become due and payable according to the terms of this
Amendment and if said default is not cured within 30 days after written notice
thereof is received by BIZ (each, a "Default," and collectively, the
"Defaults"), the unpaid portion of the installment shall automatically convert
into a right (each, a "Stock Acquisition Right," and collectively, the "Stock
Acquisition Rights"),
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exercisable by Wave upon five (5) business days' prior written notice to BIZ, to
acquire a number of fully paid, nonassessable shares of common stock of BIZ, par
value $0.001 per share ("BIZ Common Stock"). Such number of shares of BIZ Common
Stock to be received by Wave upon exercise of the Stock Acquisition Rights shall
be determined by dividing the Fair Market Value (defined below) of a share of
BIZ Common Stock on the date of exercise of the Stock Acquisition Right into the
aggregate Credit Amount (defined below) related to the Defaults. The "Fair
Market Value" shall mean the following: (i) if BIZ Common Stock is listed on a
national securities exchange or the Nasdaq National Market ("Publicly Traded"),
the fair market value of BIZ Common Stock per share shall be the average of
closing price of BIZ Common Stock for the ten (10) trading-day period prior to
the date of exercise, as reported with respect to such market (or composite of
markets, if more than one) in which BIZ Common Stock is then traded or (ii) if
BIZ Common Stock is not then Publicly Traded, the fair market value of BIZ
Common Stock per share shall be the per share price paid for shares of any class
of BIZ stock in the most recent bona fide, arm's length equity financing
(yielding net proceeds of at least $500,000) consummated before the date of
exercise of the Stock Acquisition Right. The "Credit Amount" with respect to any
Default under Section 3(a) shall be the portion of the installment payment that
is not paid on the Due Date of such installment payment.
c. Wave's Stock Acquisition Right with respect to a Default may be
exercised by Wave at any time within ten years of the date of such Default. The
Stock Acquisition Rights not exercised by Wave shall be automatically exercised
immediately prior to the occurrence of the following events: (i) the closing of
a public offering of BIZ Common Stock pursuant to an effective registration
statement under the Securities Act of 1933, if such Stock Acquisition Right is
acquired at a time when BIZ Common Stock is not Publicly Traded, (ii) the
commencement of voluntary or involuntary proceedings to wind up and dissolve BIZ
or its successor in interest, as the case may be, or (iii) sale of all or
substantially all of the assets of BIZ.
d. BIZ may, at anytime as long as any of the Stock Acquisition Rights is
outstanding and not exercised, elect to redeem any of the Stock Acquisition
Rights and convert the aggregate Credit Amount, all or in part, into BIZ Common
Stock, or common stock of its successor in interest, provided that the shares
issued have been previously registered.
e. Within 30 calendar days of the date of this Amendment, BIZ shall take
all necessary corporate action to reserve 1,150,000 shares of its authorized but
unissued common stock for issuance to Wave pursuant to paragraph b above and
shall provide Wave with evidence of such action in a form which is reasonably
satisfactory to Wave. BIZ shall keep such reservation of shares in effect until
all sums payable by BIZ under section 3(a) have been paid in full or until all
Stock Acquisition Rights received by Wave have been exercised or deemed
exercised.
f. Upon exercise of the Stock Acquisition Right for a particular Credit
Amount and issuance of shares of BIZ Common Stock for such Credit Amount, BIZ
shall not be obligated to pay and Wave shall have no further right to claim such
Credit Amount, and the number of reserved shares shall be reduced by the number
of shares issued in such exercise.
g. In consideration of said reserved shares, Wave shall complete and
deliver to BIZ no later than December 31, 2002 the "development work to be
accomplished under the Project"
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as stated in Section 2. BIZ shall have the right to test the delivered product
for 60 calendar days following the delivery date, and report any corrections
required within the aforesaid 60 calendar day period. Wave shall have an
additional 120 calendar days to make the appropriate corrections, and in the
event that Wave cannot deliver the development work in proper working order, any
stock reserved under this Agreement shall release from encumbrance under this
Amendment No. 1, and Wave shall refund to BIZ all cash payments made and Credit
Amounts claimed during the period following the last completed Milestone
signed-off by BIZ. If the "development work to be accomplished under the
Project" is not delivered to BIZ by December 31, 2002, in addition to other
available remedies, the rights granted to BIZ in Sections 4(a)(i) and 4(a)(ii)
of the Agreement shall, at BIZ's option remain exclusive, and Section 4(a) of
this Amendment No. 1 shall be automatically terminated.
h. If, prior to the payment in full of all amounts payable by BIZ pursuant
to Section 3(a), BIZ or its successor in interest is eligible to use Securities
and Exchange Commission ("SEC") Form S-3 or any successor form adopted by the
SEC for substantially the same purpose, BIZ or such successor, as the case may
be, shall, within 90 calendar days of its receipt of a written request therefor
from Wave, at its sole cost, prepare and file all necessary documents with the
SEC to effect a shelf registration and all Blue Sky qualifications and evidences
of compliance as would permit or facilitate the public sale of Wave's
Registrable Securities (defined below). "Registrable Securities" are securities
received or receivable by Wave pursuant to the exercise, deemed exercise or
redemption of a Stock Acquisition Right and any other securities issued as a
dividend or other distribution with respect to or in exchange for such
securities. Wave may make no more than two (2) requests for registration in any
one (1) calendar year.
i. If, following the exercise or deemed exercise by Wave at least one
Stock Acquisition Right, Wave notifies BIZ or its successor in interest of its
election to cause its Registrable Securities to be registered, BIZ or its
successor in interest as the case may be shall, at its expense, use its diligent
best efforts to effect all such registrations, qualifications and compliances as
would permit or facilitate the public sale of Wave's Registrable Securities.
5. MERGER.
In the event of a merger or combination, all the references in Section 4
of this Amendment to BIZ's securities shall, from the effective date of the
merger or combination, be deemed to refer to the securities of BIZ's successor
in interest.
6. EFFECT OF AMENDMENT.
This Amendment shall be effective as of its date written above. All other
terms and conditions of the Agreement shall remain in full force and effect
except as modified by this Amendment. To the extent there is any conflict
between this Amendment and the Agreement, this Amendment shall prevail. This
Amendment shall be binding upon and shall inure to the benefit of the parties
and their successors and assigns.
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IN WITNESS HEREOF, the parties hereto have executed the Amendment as of
the date first written above.
BIZ INTERACTIVE ZONE WAVE SYSTEMS CORP.
By: /s/ XXXXXX X. XXXXXX By: /s/ XXXXXX XXXXXXX
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Authorized Officer Authorized Officer
XXXXXX X. XXXXXX President & COO XXXXXX XXXXXXX CEO
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Print Name and Title Print Name and Title
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