Exhibit 10.7
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT made this ___ day of [_________], 2003 by and among
(i) Voxware, Inc., a Delaware corporation (the "Company"), (ii) certain holders
of Common Stock or options or warrants to acquire Common Stock whose names are
set forth under the heading "Holders" on Schedule I hereto and certain Persons
who after the date hereof become a party to this Agreement pursuant to Section
20 below (the Persons described in this clause (ii) being referred to
collectively as the "Holders" and singularly as a "Holder") and (iii) those
Persons whose names are set forth under the heading "Investors" on Schedule I
hereto and certain Persons who after the date hereof become a party to this
Agreement pursuant to Section 20 below (the Persons described in this clause
(iii) being referred to collectively as the "Investors" and singularly as an
"Investor"). As used herein "Person" means an individual, corporation,
partnership, joint venture, trust, or unincorporated organization, or a
government or any agency or political subdivision thereof. All defined terms
used but not defined herein shall have the respective meanings ascribed to them
in the Purchase Agreement.
WITNESSETH:
WHEREAS, the Holders currently own collectively 55,630 shares of the Common
Stock, par value $.001 per share (the "Common Stock"), of the Company;
WHEREAS, certain Holders currently hold warrants or options to purchase
shares of the Common Stock;
WHEREAS, Castle Creek currently holds approximately 2,087 shares of the
Series B Convertible Preferred Stock, par value $0.001 per share (the "Series B
Preferred Stock"); and
WHEREAS, certain Investors are acquiring simultaneously herewith an
aggregate of up to 485,267,267 shares of the Company's Series D Convertible
Preferred Stock, par value $.001 per share (the "Series D Preferred Stock") and
warrants to purchase up to 28,000,000 shares of Common Stock and up to
93,333,333 shares of Series D Preferred Stock, pursuant to a certain Series D
Convertible Preferred Stock Purchase Agreement dated as of April 16, 2003, by
and among certain of the Investors and the Company (the "Purchase Agreement").
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Company, the Holders and the Investors agree as
follows:
1. Prohibited Transfers. In addition to any lock-up agreement set forth in
Section 15(f) of the Investor Rights Agreement, the Investors shall not sell,
assign, transfer, pledge, hypothecate, mortgage or dispose of, by gift or
otherwise, or in any way encumber ("Transfer"), all or any part of the Subject
Shares (as hereinafter defined) owned by them except in compliance with the
terms of this Agreement. For purposes of this Agreement, the term "Subject
Shares" shall mean and include all shares of the Common Stock and the preferred
stock of the Company
Stockholders Agreement - Page 2
owned by the Investors, whether presently held or hereafter acquired. No Holder
shall Transfer any shares of Common Stock without the consent of a majority in
interest of the Series D Preferred Stock then held by Investors, provided that
each Holder shall be permitted to Transfer up to 100,000 shares per quarterly
period (such number to be appropriately adjusted to reflect any stock split,
stock dividend or the like affecting the Common Stock). The Company shall not
transfer on its books any shares of its capital stock which are subject to this
Agreement unless the provisions hereof have been complied with in full. Any
purported Transfer of Stock (as defined in Section 5 below) without full
compliance with the provisions of this Agreement shall be null and void.
2. Right of First Refusal on Dispositions by the Investors. If at any time
any Investor (the "Selling Investor") wishes to sell, assign, transfer or
otherwise dispose of any or all Subject Shares owned by him pursuant to the
terms of a bona fide offer received from a third party, he shall submit a
written offer to sell such Subject Shares to the other Investors, with a copy to
the Company, on terms and conditions, including price, not less favorable to the
other Investors than those on which he proposes to sell such Subject Shares to
such third party (the "Offer"). The Offer shall disclose the identity of the
proposed purchaser or transferee, the Subject Shares proposed to be sold or
transferred, the agreed terms of the sale or transfer, including price, and any
other material facts relating to the sale or transfer. Within twenty (20) days
after receipt of the Offer, each non-selling Investor shall give notice to the
Selling Investor of its intent to purchase all or any portion of the offered
Subject Shares on the same terms and conditions as set forth in the Offer. Each
non-selling Investor shall have the right to purchase that number of the offered
Subject Shares as shall be equal to the aggregate offered Subject Shares
multiplied by a fraction, the numerator of which is the number of shares of
Stock of the Company then owned by such Investor (including any shares of Stock
deemed to be beneficially owned by such Investor pursuant to Rule 13d-3
promulgated under the Securities Exchange Act of 1934 ("Rule 13d-3")) and the
denominator of which is the aggregate number of shares of said Stock then issued
and outstanding and held by (and deemed to be beneficially owned pursuant to
Rule 13d-3 by) all the Investors (other than the Selling Investor). The amount
of Subject Shares each non-selling Investor or Qualified Transferee, as that
term is defined below, is entitled to purchase under this Section 2 shall be
referred to as such Investor's "Pro Rata Fraction." Each non-selling Investor
shall have the right to transfer his right to any Pro Rata Fraction or part
thereof to any Qualified Transferee. In the event a non-selling Investor does
not wish to purchase or to transfer his right to purchase his Pro Rata Fraction,
then any non-selling Investors who so elect shall have the right to purchase, on
a pro rata basis with any other non-selling Investors who so elect, any Pro Rata
Fraction not purchased by a non-selling Investor or Qualified Transferee. Each
non-selling Investor shall have the right to accept the Offer as to all or part
of the Subject Shares offered thereby. In the event that a non-selling Investor
shall elect to purchase all or part of the Subject Shares covered by the Offer,
said Investor shall individually communicate in writing such election to
purchase to the Selling Investor, which communication shall be delivered by hand
or mailed to such Selling Investor at the address set forth in Section 7 below
and shall, when taken in conjunction with the Offer be deemed to constitute a
valid, legally binding and enforceable agreement for the sale and purchase of
the Subject Shares covered thereby.
Stockholders Agreement - Page 3
In the event that the non-selling Investors do not purchase all of the
Subject Shares offered by the Selling Investor pursuant to and within forty (40)
days after the Offer, each such agreement to purchase the Subject Shares shall
be deemed null and void, and such Subject Shares may be sold by such Selling
Investor at any time within 90 days after the expiration of the Offer, but
subject to the provisions of Section 3 below. Any such sale shall be at not less
than the price and upon other terms and conditions, if any, not more favorable
to the purchaser than those specified in the Offer. Any Subject Shares not sold
within such 90-day period shall continue to be subject to the requirements of a
prior offer and re-sale pursuant to this Section.
For purposes of this Section 2, a "Qualified Transferee" of an Investor
shall mean any Person (i) who is an Investor, (ii) who is an "affiliated person"
of an Investor, as that term is defined in the Investment Company Act of 1940,
or (iii) who is a partner of an Investor.
3. Right of Participation in Sales by Investors. If at any time any Selling
Investor wishes to sell, assign, transfer, or otherwise dispose of any Subject
Shares owned by him to any Person (the "Purchaser") in a transaction which is
subject to the provisions of Section 2 hereof and subject to the exercise of
rights under such Section 2, each other Investor shall have the right to
require, as a condition to such sale or disposition, that the Purchaser purchase
from said Investor at the same price per Subject Share and on the same terms and
conditions as involved in such sale or disposition by the Selling Investor the
same percentage of shares of Stock owned (and deemed to be beneficially owned
under Rule 13d-3) by such Investor as such sale or disposition represents with
respect to said shares of Stock then owned by the Selling Investor. Each
Investor wishing so to participate in any such sale or disposition shall notify
the Selling Investor, with a copy to the Company, of such intention as soon as
practicable after receipt of the Offer made pursuant to Section 2, and in all
events within twenty (20) days after receipt thereof. In the event that an
Investor shall elect to participate in such sale or disposition, said Investor
shall individually communicate such election to the Selling Investor, which
communication shall be delivered by hand or mailed to such Selling Investor at
the address set forth in Section 7 below. The Selling Investor and/or each other
participating Investor shall sell to the Purchaser all, or at the option of the
Purchaser, any part of the Stock proposed to be sold by them at not less than
the price and upon other terms and conditions, if any, not more favorable to the
Purchaser than those originally offered; provided, however, that any purchase of
less than all of such Stock by the Purchaser shall be made from the Selling
Investor and/or each other participating Investor based upon a fraction, the
numerator of which is the number of shares of Stock of the Company then owned by
the Selling Investor or such other participating Investor (including any shares
of Stock deemed to be owned under Rule 13d-3) and the denominator of which is
the aggregate number of shares of Stock held by (and deemed to be held pursuant
to Rule 13d-3 by) the Selling Investor and all of the other participating
Investors. The Selling Investor or other Investor shall use his or its best
efforts to obtain the agreement of the Purchaser to the participation of the
other participating Investors in the contemplated sale, and shall not sell any
Stock to such Purchaser if such Purchaser declines to permit the other
participating Investors to participate pursuant to the terms of this Section 3.
The provisions of this Section 3 shall not apply to the sale of any Subject
Shares by a Selling Investor to another Investor pursuant to an Offer under
Section 2.
Stockholders Agreement - Page 4
4. Permitted Transfers.
(i) Anything herein to the contrary notwithstanding, the provisions of
Sections 1, 2 and 3 shall not apply to: (a) any transfer of Subject Shares by an
Investor by gift or bequest or through inheritance to, or for the benefit of,
any member or members of his or her immediate family (which shall include any
spouse, lineal ancestor or descendant or sibling) or to a trust, partnership or
limited liability company for the benefit of such members; (b) any transfer of
Subject Shares by an Investor to a trust in respect of which he or she serves as
trustee, provided that the trust instrument governing said trust shall provide
that such Investor, as trustee, shall retain sole and exclusive control over the
voting and disposition of said Subject Shares until the termination of this
Agreement; (c) any sale of Common Stock in a public offering pursuant to a
registration statement filed by the Company with the Securities and Exchange
Commission; or (d) any sale of Common Stock that complies with the "manner of
sale" provisions in the first sentence of Rule 144(f) promulgated under the
Securities Exchange Act of 1934.
(ii) In the event of any such transfer, other than pursuant to subsections
(i)(c) or (i)(d) of this Section 4, the transferee of the Subject Shares shall
hold the Subject Shares so acquired with all the rights conferred by, and
subject to all the restrictions imposed by this Agreement, and as a condition to
such transfer, each such transferee shall execute and deliver an Instrument of
Accession in the form of Schedule III agreeing to be bound by the provisions of
this Agreement.
5. Election of Directors.
Subject to applicable regulations and except as expressly set forth in this
Section 5, each of the parties hereto agrees to (i) vote all of the Stock (as
hereinafter defined) now owned or hereafter acquired by such party or in which
such party has a direct or indirect interest (whether of record or beneficial)
or which such party directly or indirectly controls and (ii) attend, in person
or by proxy, all meetings of stockholders of the Company called for the purpose
of electing directors, and the Company agrees to take all actions (including,
but not limited to the nomination of specified persons) to cause and maintain
the election to the Board of Directors of the Company of four (4) persons who
shall represent the holders of the Series D Preferred Stock, three (3) of which
persons (the "Edison Directors") shall be nominated by Edison Venture Fund V,
L.P. or one of its affiliated entities ("Edison") and who shall initially be
Xxxxxx X. Allegra, Xxxx Xxxxx and Xxxx X. Xxxxxxxxx or such other individuals as
nominated by Edison, and one (1) of which persons (the "Cross Atlantic
Director") shall be nominated by Cross Atlantic Technology Fund, L.P. or one of
its affiliated entities ("Cross Atlantic") and who shall initially be Xxxxx
Xxxxxx or such other individual as nominated by Cross Atlantic.
Subject to applicable regulations, each of the parties further covenants
and agrees to vote all shares of Stock now owned or hereafter acquired by such
party or in which such party has a direct or indirect interest (whether of
record or beneficial) or which such party directly or indirectly controls so
that the Company's Board of Directors shall consist of no more than seven (7)
members. For the purposes of this Agreement, "Stock" shall mean and include all
shares of the Company's preferred stock, all shares of Common Stock, and all
other securities of the Company which may be exchangeable for, convertible into
or issued in exchange for or in
Stockholders Agreement - Page 5
respect of shares of Common Stock (whether by way of stock split, stock
dividends, combination, reclassification, reorganization or any other means).
Each of the parties hereto agrees that the obligations of the parties
pursuant to the first paragraph above of this Section 5 are subject to the
express limitations set forth in this third paragraph of Section 5. Upon Edison
and Cross Atlantic holding, in the aggregate, less than 40% of the Series D
Preferred Stock initially acquired by them pursuant to the Purchase Agreement,
the aggregate number of board members representing the holders of the Series D
Preferred Stock shall be reduced to three (3) and Edison will lose the right to
nominate one of the Edison Directors. Then, upon Edison and Cross Atlantic
holding, in the aggregate, less than 30% of the Series D Preferred Stock
initially acquired by them pursuant to the Purchase Agreement, the aggregate
number of board members representing the holders of the Series D Preferred Stock
shall be reduced to two (2) and Edison will lose the right to nominate an
additional Edison Director. Next, upon Edison and Cross Atlantic holding, in the
aggregate, less than 20% of the Series D Preferred Stock initially acquired by
them pursuant to the Purchase Agreement, the aggregate number of board members
representing the holders of the Series D Preferred Stock shall be reduced to one
(1) and Cross Atlantic will lose the right to nominate the Cross Atlantic
Director. Finally, upon Edison and Cross Atlantic holding, in the aggregate,
less than 10% of the Series D Preferred Stock initially acquired by them
pursuant to the Purchase Agreement, the aggregate number of board members
representing the holders of the Series D Preferred Stock shall be reduced to
zero (0) and Edison will lose the right to nominate its remaining Edison
Director. Notwithstanding the foregoing, the Company hereby covenants and agrees
that for so long as Edison or Cross Atlantic, respectively, holds 1,000,000
shares of the capital stock of the Company (such number to be appropriately
adjusted to reflect any stock split, stock dividend or the like affecting the
Common Stock), its representatives shall receive notice of and shall be entitled
to attend, as nonvoting observers, all meetings of the Board of Directors or any
committees thereof.
The parties acknowledge and agree that, notwithstanding any of the
percentages noted in the paragraph immediately above, in the event that Edison
or Cross Atlantic, respectively, no longer holds any shares of the Series D
Preferred Stock, such party shall no longer be entitled to nominate any members
of the Board of Directors and the other party, to the extent permitted based on
the percentages noted in the paragraph immediately above, shall have the right
to nominate any remaining board positions provided for under this Section 5.
Moreover, the parties acknowledge and agree that in determining the percentages
and the number of shares of Series D Preferred Stock set forth in this Section 5
that (i) any shares of the Common Stock issued upon the conversion of the Series
D Preferred Stock and (ii) any shares transferred by Edison or Cross Atlantic to
any Person (a) who is an "affiliated person" of Edison or Cross Atlantic, as
that term is defined in the Investment Company Act of 1940, or (b) who is a
partner of Edison or Cross Atlantic, shall be included in such determinations.
In the absence of any designation from the Persons or groups so designating
directors as specified above, the director previously designated by them and
then serving shall be reelected if still eligible to serve as provided herein.
Stockholders Agreement - Page 6
No party hereto shall vote to remove any member of the Board of Directors
designated in accordance with the aforesaid procedure unless the Persons or
groups so designating directors as specified above so vote, and, if such Persons
or groups so vote then the non-designating party or parties shall likewise so
vote.
Any vacancy on the Board of Directors created by the resignation, removal,
incapacity or death of any person nominated or designated by the holders of
Series D Preferred Stock shall be filled by another person so nominated or
designated by the holders of a majority in interest of the Series D Preferred
Stock.
6. Termination. This Agreement, and the respective rights and obligations
of the parties hereto, shall terminate upon the sale of the Company, whether by
merger, sale, or transfer of more than eighty percent (80%) of its capital
stock, or sale of substantially all of its assets; provided, however, that each
of the parties hereto expressly acknowledges and agrees that the provisions of
Section 22 hereof shall survive any such termination and shall only terminate
upon the earliest to occur of (a) redemption, repurchase or cancellation of all
the shares of Series B Preferred Stock, (b) the conversion of all shares of
Series B Preferred Stock into shares of Common Stock in accordance with the
terms of the Amended and Restated Certificate of Incorporation of the Company,
and (c) such other exchange of the Series B Preferred Stock with the Company
pursuant to which no shares of the Series B Preferred Stock shall remain issued
and outstanding.
7. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given when delivered or mailed by first
class, registered or certified mail (air mail if to or from outside the United
States), return receipt requested, postage prepaid, if to each Holder at his
respective address set forth on the signature pages hereto or on the Instrument
of Accession pursuant to which he became a party to this Agreement, and if to
the Investors, at their respective addresses set forth on the signature pages
hereto or on the Instrument of Accession pursuant to which he became a party to
this Agreement, or to such other address as the addressee shall have furnished
to the other parties hereto in the manner prescribed by this Section 7.
8. Lock-up Agreement. Each of the Holders and the Investors hereby agrees
in connection with an underwritten public offering of the Company's securities
by the Company, upon the request of the principal underwriter managing such
public offering of the Company, not to sell publicly any Stock now owned or
hereafter acquired by him and subject to this Agreement without the prior
written consent of such underwriter for a period of time (not to exceed one
hundred eighty (180) days) from the consummation of such public offering as the
underwriter may specify, in all events subject to the provisions of Section
15(g) of a certain Investor Rights Agreement dated as of the date hereof.
9. Failure to Deliver Shares. If a Selling Investor becomes obligated to
sell any Subject Shares owned by, or held for the benefit of, such Selling
Investor to another Investor or a Qualified Transferee under this Agreement and
fails to deliver such shares in accordance with the terms of this Agreement,
such other Investor may, at its option, in addition to all other remedies
Stockholders Agreement - Page 7
it may have, send to the Company for the benefit of such Selling Investor the
purchase price for such Subject Shares as is herein specified. Thereupon, the
Company or its transfer agent upon written notice to said Selling Investor, (a)
shall cancel on its books the certificate(s) representing the Subject Shares to
be sold and (b) shall issue, in lieu thereof, in the name of such other
Investor, a new certificate(s) representing such Subject Shares, and thereupon
all of said Selling Investor's rights in and to such shares shall terminate. If
a Selling Investor transfers any shares to a Purchaser in violation of this
Agreement, the Company or its transfer agent may, at the election of a majority
of the disinterested members of the Board of Directors, cancel on the books of
the Company any shares of capital stock then held by such Selling Investor, and
any such breaching Selling Investor agrees to purchase from the Purchasers and
any transferee a number of shares of capital stock equal to the amount so
transferred in violation of this Agreement.
10. Specific Performance. The rights of the parties under this Agreement
are unique and, accordingly, the parties shall, in addition to such other
remedies as may be available to any of them at law or in equity, have the right
to enforce their rights hereunder by actions for specific performance to the
extent permitted by law.
11. Legend. The certificates representing the shares of Stock held by the
parties hereto shall bear on their face a legend indicating the existence of the
restrictions imposed hereby.
12. Entire Agreement. This Agreement and the Purchase Agreement (including
any and all exhibits, schedules and other instruments contemplated thereby)
constitute the entire agreement among the parties with respect to the subject
matter hereof and supersede all prior agreements and understandings between them
or any of them as to such subject matter.
13. Waivers and Further Agreements. Any of the provisions of this Agreement
may be waived by an instrument in writing executed and delivered by the parties
hereto holding at least a majority in interest of the Common Stock (including
shares of Common Stock into which any shares of preferred stock are convertible)
then held or deemed to be held by all parties hereto. Any waiver by any party of
a breach of any provision of this Agreement shall not operate or be construed as
a waiver of any subsequent breach of that provision or of any other provision
hereof. Each of the parties hereto agrees to execute all such further
instruments and documents and to take all such further action as any other party
may reasonably require in order to effectuate the terms and purposes of this
Agreement. Notwithstanding the foregoing, no waiver approved in accordance
herewith shall be effective if and to the extent that such waiver grants to any
one or more parties hereto any rights more favorable than any rights granted to
all other parties hereto or otherwise treats any one or more parties hereto
differently than all other parties hereto, unless such waiver is approved by all
of the parties hereto that are adversely or differently affected by such waiver.
14. Amendments. Except as otherwise expressly provided herein, this
Agreement may not be amended except by an instrument in writing executed by (i)
the Company, (ii) Investors holding at least a majority in interest of the
shares of Common Stock issued or issuable to the Investors (including shares of
Common Stock into which any shares of preferred stock are convertible) and (iii)
Holders holding a majority of the shares of Common Stock
Stockholders Agreement - Page 8
subject to this Agreement; provided, however, that the provisions of Sections 1,
2, and 3 may be amended without the consent or approval of the Holders to the
extent such amendments do not directly affect the shares of the capital stock of
the Company held by such Holders.
15. Assignment; Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
heirs, executors, legal representatives, successors and permitted transferees,
except as may be expressly provided otherwise herein.
16. Severability. In case any one or more of the provisions contained in
this Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement and such invalid, illegal
and unenforceable provision shall be reformed and construed so that it will be
valid, legal, and enforceable to the maximum extent permitted by law.
17. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
18. Section Headings. The headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
19. Governing Law. This Agreement shall be construed and enforced in
accordance with and governed by the General Corporation Law of the State of
Delaware as to matters within the scope thereof, and as to all other matters
shall be construed and enforced in accordance with and governed by the internal
laws of the State of New Jersey, without regard to its principles of conflicts
of laws.
20. Additional Parties. Any purchaser of Series D Preferred Stock pursuant
to the Purchase Agreement shall become a party to this Agreement by executing
and delivering to the Company a counterpart to this Agreement. Upon such
execution and delivery, such purchaser shall be deemed to be an "Investor"
hereunder with all of the rights and obligations thereof. The Company shall use
best efforts to cause (i) each Person or "group" of Persons (as such term is
defined in Rule 13d-5(b)(1) promulgated under the Securities Exchange Act of
1934) who shall, after the date hereof, acquire or receive the right to acquire
in one or more transactions, 250,000 or more shares of Common Stock
(appropriately adjusted to reflect any stock split, stock dividend or the like
affecting the Common Stock), to become a party to this Agreement as a Holder by
executing an Instrument of Accession in the form of Schedule II hereto, in which
event such Person shall become bound by and shall enjoy the benefits conferred
on Holders hereby and (ii) each Person who shall, after the date hereof, acquire
or receive the right to acquire any shares of the preferred stock of the
Company, to become a party to this Agreement as an Investor by executing an
instrument of accession in the form of Schedule III hereto, in which event such
Person shall become bound by and shall enjoy the benefits conferred upon
Investors hereby. No Holder or Investor shall transfer Stock to any other Person
unless (i) the transferee of the Stock shall execute and deliver an appropriate
Instrument of Accession agreeing to be bound by the
Stockholders Agreement - Page 9
provisions of this Agreement or (ii) such Transfer is a permitted transfer
pursuant to subsections (i)(c) or (i)(d) of Section 4. No Holder or Investor
shall Transfer all or any part of the Stock owned by such Holder or Investor
except in compliance with the terms of this Section 20.
21. Transfers to Competitors. During the term of this Agreement, each of
the Investors and Holders agrees that it shall not knowingly Transfer any
interest it may now or hereafter hold in the capital stock of the Company to any
"Competitor of the Company" (as defined below) without the written consent of a
majority of the disinterested members of the Board of Directors. The parties
hereby acknowledge that a director shall not be deemed to be "interested" for
the purposes of any determination made pursuant to this Section 21 by the mere
fact that he or she is affiliated with an entity that holds shares of the same
or a different class or series of the capital stock of the Company as those
proposed to be Transferred. For the purposes of this Section 21, "Competitor of
the Company" shall mean any Person listed on Schedule IV hereto immediately
prior to the time that the Board of Directors is notified of the proposed
Transfer. The parties hereto acknowledge and agree that Schedule IV may be
amended from time to time by the written consent of a majority of the Board of
Directors, such majority to include at least one of the directors nominated by
the holders of the Series D Preferred Stock; provided, however, that any
director that is deemed to be then "interested" in the substance of such
amendment to Schedule IV shall not be included in the determination of such
majority. Moreover, the parties hereto acknowledge and agree that the
restrictions set forth in this Section 21 shall not apply in connection with any
"Sale of the Company" (as defined below) that is approved by a majority of the
Board of Directors, such majority to include at least one of the directors
nominated by the holders of the Series D Preferred Stock. For the purposes of
this Section 21, a "Sale of the Company" shall mean any (i) consolidation or
merger of the Company into or with any other Person or Persons which results in
the exchange of outstanding shares of the Company for securities or other
consideration issued or paid or caused to be issued or paid by any such Person
or affiliate thereof (except a consolidation or merger into a Subsidiary or
merger in which the Company is the surviving corporation and the holders of the
Company's voting stock outstanding immediately prior to the transaction hold a
majority of the voting stock of the Company outstanding immediately following
the transaction), (ii) sale or transfer by the Company of a substantial portion
of its assets, or (iii) sale of a majority of the outstanding capital stock in a
single transaction or a series of related transactions (such that after giving
effect to such sale or series of sales less than a majority of outstanding
voting power of the Company would be held by stockholders of the Company
immediately prior to such event or the first of such series of events);
provided, however, that for the purposes of item (iii) above, in no event shall
a Transfer of shares of Series D Preferred Stock (or the Common Stock issuable
upon conversion thereof) that is not in connection with corporate reorganization
or sale of the Company approved by the Board of Directors be deemed to a Sale of
the Company within the meaning of the provisions of this Section 21 unless a
majority of the Board of Directors, including at least one (1) director that was
not elected solely by the holders of Series D Preferred Stock pursuant to
paragraph B.1C of Article FOURTH of the Company's Amended and Restated
Certificate of Incorporation, shall determine in good faith that such Transfer
should, based on the facts and circumstances, be deemed a Sale of the Company.
Stockholders Agreement - Page 10
22. Agreement as to Voting of Series B Preferred Stock. Each of the parties
hereto acknowledges and agrees that the holders of Series B Preferred Stock
shall have no voting rights or power except as required by law and that any such
voting rights or power required by law, to the extent that they exist, shall be
referred to herein as "Series B Voting Rights". With respect to such Series B
Voting Rights and any other voting rights that may in any way exist now or in
the future with respect to the Series B Preferred Stock, each party hereto that
is or may become a holder of Series B Preferred Stock irrevocably covenants and
agrees, in perpetuity, to vote all shares of Series B Preferred Stock now owned
or hereafter acquired by such party or in which such party has a direct or
indirect interest (whether of record or beneficial) or which such party directly
or indirectly controls in the same manner as a majority in interest of the
Series D Preferred Stock shall vote with respect to such matter or matters;
provided moreover, that to the extent the Series D Preferred Stock does not
expressly vote on any matter with respect to which the Series B Preferred Stock
has Series B Voting Rights or any other voting rights that may in any way exist
now or in the future, then each holder of Series B Preferred Stock irrevocably
covenants and agrees, in perpetuity, to vote all of its shares of Series B
Preferred Stock as directed in writing by the holders of a majority in interest
of the Series D Preferred Stock. Each of the parties hereto agrees to execute
all such further instruments and documents and to take all such further action
as any other party may reasonably require in order to effectuate the terms and
purposes of this Section 22. No holder of Series B Preferred Stock shall
transfer any of its shares of Series B Preferred Stock (or any voting or other
rights with respect thereto) to any other Person unless the transferee of such
shares (or the recipient of such rights) shall execute and deliver an
appropriate Instrument of Accession agreeing to be bound by the provisions of
this Agreement, including without limitation this Section 22.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Stockholders Agreement - Signature Page
IN WITNESS WHEREOF, the undersigned have executed this Stockholders
Agreement as a sealed instrument as of the day and year first above written.
THE COMPANY: INVESTORS:
VOXWARE, INC. EDISON VENTURE FUND V, L.P.
By: By: EDISON PARTNERS V, L.P.,
------------------------------- its General Partner
Name:
-------------------------
Title:
------------------------
By:
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Lawrenceville Office Park Name:
XX Xxx 0000 --------------------------------
Xxxxxxxxx, XX 00000-0000 Title:
Telephone: 000-000-0000 -------------------------------
Fax: 000-000-0000
0000 Xxxxx Xxxxx #0
Xxxxxxxxxxxxx, Xxx Xxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
HOLDERS:
CROSS ATLANTIC TECHNOLOGY FUND II, L.P.
By: CROSS ATLANTIC CAPITAL PARTNERS, INC.,
its General Partner
-----------------------------------
XXXXXXXXX X. XXXXXXXX, PH.D. By:
--------------------------------------
Name:
--------------------------------
Address: Title:
-------------------------- -------------------------------
Address:
-------------------------- Five Xxxxxx Xxxxxxxxx Xxxxxx, Xxxxx 000
Telephone: 000 Xxxxxxxxxx Xxxx
------------------------ Xxxxxx, XX 00000
Fax: Telephone: (000) 000-0000
------------------------------ Fax: (000) 000-0000
-----------------------------------
XXX XXXXX
------------------------------------------
Address: XXXXXX XXXXXXX
--------------------------
Address:
-------------------------- Address:
Telephone: ---------------------------------
------------------------ Address:
Fax: ---------------------------------
------------------------------ Telephone:
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Fax:
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Stockholders Agreement - Signature Page
RIDGECREST CAPITAL PARTNERS
By:
------------------------------- ------------------------------------------
Name: XXXXXXXX XXXXXXXX
-------------------------
Title:
------------------------
Address: Address:
-------------------------- ---------------------------------
Address: Address:
-------------------------- ---------------------------------
Telephone: Telephone:
------------------------ -------------------------------
Fax: Fax:
------------------------------ -------------------------------------
BURNBRAE LTD.
By:
--------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Address:
---------------------------------
Address:
---------------------------------
Telephone:
-------------------------------
Fax:
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DIATHERMI INVESTMENT LTD.
By:
--------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Address:
---------------------------------
Address:
---------------------------------
Telephone:
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Fax:
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XXXXXXX XXXXXXXX
Address:
---------------------------------
Address:
---------------------------------
Telephone:
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Fax:
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Stockholders Agreement - Signature Page
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XXXX XXXXXXXXX XXXXXX-XXXXX
Address:
---------------------------------
Address:
---------------------------------
Telephone:
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Fax:
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XXXXXXX X. X. XXXXXX
Address:
---------------------------------
Address:
---------------------------------
Telephone:
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Fax:
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X X XXXXXXXX LLC
By:
--------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Address:
---------------------------------
Address:
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Telephone:
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Fax:
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JUERGEN X. X. XXXXXXXXXX
Address:
---------------------------------
Address:
---------------------------------
Telephone:
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Fax:
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Stockholders Agreement - Signature Page
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XXXXX X. XXXX
Address:
---------------------------------
Address:
---------------------------------
Telephone:
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Fax:
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XXXXXX X. XXXXX
Address:
---------------------------------
Address:
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Telephone:
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Fax:
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XXXXXXXX XXXXXX
Address:
---------------------------------
Address:
---------------------------------
Telephone:
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Fax:
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PICTET PRIVATE EQUITY INVESTORS SA
By:
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Name:
--------------------------------
Title:
-------------------------------
Address:
---------------------------------
Address:
---------------------------------
Telephone:
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Fax:
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Stockholders Agreement - Signature Page
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XXXXXX X. XXXXXXXX
Address:
---------------------------------
Address:
---------------------------------
Telephone:
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Fax:
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SCORPION NOMINEES LIMITED
By:
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Name:
--------------------------------
Title:
-------------------------------
Address:
---------------------------------
Address:
---------------------------------
Telephone:
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Fax:
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XXXXXX X. XXXXXX
Address:
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Address:
---------------------------------
Telephone:
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Fax:
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XXXXXXX X. XXXXXXXX
Address:
---------------------------------
Address:
---------------------------------
Telephone:
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Fax:
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Stockholders Agreement - Signature Page
CASTLE CREEK TECHNOLOGY PARTNERS LLC
By:
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Name:
--------------------------------
Title:
-------------------------------
Address:
---------------------------------
Address:
---------------------------------
Telephone:
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Fax:
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XXXXXXX X XXXXXX
Address:
---------------------------------
Address:
---------------------------------
Telephone:
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Fax:
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XXXXX X.TURBAN
Address:
---------------------------------
Address:
---------------------------------
Telephone:
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Fax:
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CREAFUND NV
By:
--------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Address:
---------------------------------
Address:
---------------------------------
Telephone:
-------------------------------
Fax:
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Stockholders Agreement - Signature Page
AVVISION BVBA
By:
--------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Address:
---------------------------------
Address:
---------------------------------
Telephone:
-------------------------------
Fax:
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BVBA COM/2/WIZARDS
By:
--------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Address:
---------------------------------
Address:
---------------------------------
Telephone:
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Fax:
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XXX XXXXXXXX
Address:
---------------------------------
Address:
---------------------------------
Telephone:
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Fax:
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EURL VAL D'AUSO
By:
--------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Address:
---------------------------------
Address:
---------------------------------
Telephone:
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Fax:
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Stockholders Agreement - Signature Page
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XXXX XXXXXXX XXXXXX VAN CUTSEM
Address:
---------------------------------
Address:
---------------------------------
Telephone:
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Fax:
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SCHEDULE I
VOXWARE, INC.
SCHEDULE OF HOLDERS AND INVESTORS
Names No. of Shares
------------------------------------ -----------------------------------------------------
HOLDERS
Xxx Xxxxx 46,630 shares of Common Stock
Xxxxxxxxx X. Xxxxxxxx, Ph.D. 9,000 shares of Common Stock
Ridgecrest Capital Partners Warrants to Purchase 9,333,333 shares of Common Stock
INVESTORS
Edison Venture Fund V, L.P. 250,000,000 shares of Series D Preferred Stock
Cross Atlantic Technology Fund, L.P. 83,333,334 shares of Series D Preferred Stock
Agarwal, Mukesh 2,246,810 shares of Series D Preferred Stock
Albayrak, Yildiray 690,072 shares of Series D Preferred Stock
Burnbrae Ltd. 2,587,769 shares of Series D Preferred Stock
Diathermi Investment Ltd. 862,590 shares of Series D Preferred Stock
Xxxxxxxx, Xxxxxxx 392,110 shares of Series D Preferred Stock
Xxxxxx-Xxxxx, Xxxx Xxxxxxxxx 8,650,358 shares of Series D Preferred Stock
Xxxxxx, Xxxxxxx H. B. 2,791,846 shares of Series D Preferred Stock
X X Xxxxxxxx LLC 5,650,358 shares of Series D Preferred Stock
Xxxxxxxxxx, Xxxxxxx C. H. 305,851 shares of Series D Preferred Stock
Xxxx, Xxxxx X. 11,234,050 shares of Series D Preferred Stock
Xxxxx, Xxxxxx X. 345,036 shares of Series D Preferred Stock
Xxxxxx, Xxxxxxxx 305,851 shares of Series D Preferred Stock
Pictet Private Equity Investors SA 8,442,204 shares of Series D Preferred Stock
Xxxxxxxx, Xxxxxx X. 392,110 shares of Series D Preferred Stock
Scorpion Nominees Limited 39,285,842 shares of Series D Preferred Stock
Xxxxxx, Xxxxxx X. 545,036 shares of Series D Preferred Stock
Xxxxxxxx, Xxxxxxx X. 1,395,923 shares of Series D Preferred Stock
van Cutsem, Xxxx Xxxxxxx Xxxxxx 6,666,667 shares of Series D Preferred Stock
Castle Creek Technology Partners LLC 6,038,127 shares of Series D Preferred Stock
Xxxxxx, Xxxxxxx M 345,036 shares of Series D Preferred Stock
Turban, Xxxxx X. 2,760,287 shares of Series D Preferred Stock
Creafund NV 31,097,982 shares of Series D Preferred Stock
Avvision BVBA 16,241,553 shares of Series D Preferred Stock
BVBA Com/2/Wizards 498,837 shares of Series D Preferred Stock
Xxxxxxxx, Xxx 332,558 shares of Series D Preferred Stock
Eurl Val D'Auso 1,829,070 shares of Series D Preferred Stock
SCHEDULE II
VOXWARE, INC.
INSTRUMENT OF ACCESSION
The undersigned, , as a condition precedent to becoming
-----------------
the owner or holder of record of (______) shares of the
-------------------
stock, par value $ per share, of Voxware, Inc., a Delaware
----------- ----
corporation (the "Company"), hereby agrees to become a Holder under that certain
Stockholders Agreement dated as of [_______] , 2003 by and among the Company
--
and other stockholders of the Company. This Instrument of Accession shall take
effect and shall become an integral part of, and the undersigned shall become a
party to and bound by, said Stockholders Agreement immediately upon execution
and delivery to the Company of this Instrument.
IN WITNESS WHEREOF, this INSTRUMENT OF ACCESSION has been duly executed by
or on behalf of the undersigned, as a sealed instrument under the laws of the
State of Delaware, as of the date below written.
Signature:
---------------------------------
(Print Name)
---------------------
Address:
---------------------------------
---------------------------------
Date:
----------------------------
Accepted:
VOXWARE, INC.
By:
------------------------------
Name:
Title:
Date:
----------------------------
SCHEDULE III
VOXWARE, INC.
INSTRUMENT OF ACCESSION
The undersigned, , as a condition precedent to becoming
-----------------
the owner or holder of record of (______) shares of the
-------------------
stock, par value $ per share, of Voxware, Inc., a Delaware
----------- -----
corporation (the "Company"), hereby agrees to become an Investor under that
certain Stockholders Agreement dated as of [_________] [__], 2003 by and among
the Company and other stockholders of the Company. This Instrument of Accession
shall take effect and shall become an integral part of, and the undersigned
shall become a party to and bound by, said Stockholders Agreement immediately
upon execution and delivery to the Company of this Instrument.
IN WITNESS WHEREOF, this INSTRUMENT OF ACCESSION has been duly executed by
or on behalf of the undersigned, as a sealed instrument under the laws of the
State of Delaware, as of the date below written.
Signature:
---------------------------------
(Print Name)
--------------------
Address:
---------------------------------
---------------------------------
Date:
---------------------------
Accepted:
VOXWARE, INC.
By:
-----------------------------
Name:
Title:
Date:
---------------------------
SCHEDULE IV
COMPETITORS OF THE COMPANY
U.S.
Vocollect
000 Xxxx Xxxx #000
Xxxxxxxxxx, XX 00000
Xxxxx Systems, Inc.
000 Xxxxxxx Xxxxx Xxxx #000
Xxxxxxx, XX 00000
Europe
Vocognition BV
Xxxxxxxxxxxxxxx 0
0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx
Voiteq Ltd.
Keystone House
Avroe Crescent, Avroe Court
Xxxxxxx Gate Business Park
Blackpool, Lancs FY4 2DP, UK
Xetes
Da Vinci Science Xxxx
0 Xxxxxxxxxxxxxxxx
0000 Xxxxxxx, Xxxxxxx
