Exhibit 4.2
THIS SERIES D WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR
TRANSFERRED UNLESS SUCH SALE OR TRANSFER IS IN ACCORDANCE WITH THE REGISTRATION
REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS OR SOME OTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS IS AVAILABLE WITH
RESPECT THERETO.
SERIES D CONVERTIBLE PREFERRED STOCK PURCHASE WARRANT
Warrant No. PD-18 Number of Shares: 33,333,333
VOXWARE, INC.
Void after December 30, 2013
1. Issuance. This Series D Warrant is issued to Cross Atlantic
Technology Fund II, L.P. by Voxware, Inc., a Delaware corporation (hereinafter
with its successors called the "Company").
2. Purchase Price; Number of Shares. Subject to the terms and
conditions hereinafter set forth, the registered holder of this Series D Warrant
(the "Holder"), commencing on the date hereof, is entitled upon surrender of
this Series D Warrant with the subscription form annexed hereto duly executed,
at the office of the Company, Xxxxxxxxxxxxx Xxxxxx Xxxx, XX Xxx 0000, Xxxxxxxxx,
Xxx Xxxxxx 00000-0000, or such other office as the Company shall notify the
Holder of in writing, to purchase from the Company at a price per share (the
"Purchase Price") of $0.015, up to 33,333,333 fully paid and nonassessable
shares of Series D Convertible Preferred Stock, par value $0.001 per share, of
the Company (the "Series D Preferred Stock"). Until such time as this Series D
Warrant is exercised in full or expires, the Purchase Price and the securities
issuable upon exercise of this Series D Warrant are subject to adjustment as
hereinafter provided.
3. Payment of Purchase Price. The Purchase Price may be paid (i) in
cash or by check, (ii) by the surrender by the Holder to the Company of any
promissory notes or other obligations issued by the Company, with all such notes
and obligations so surrendered being credited against the Purchase Price in an
amount equal to the principal amount thereof plus accrued interest to the date
of surrender, (iii) through delivery by the Holder to the Company of other
securities issued by the Company, with such securities being credited against
the Purchase Price in an amount equal to the fair market value thereof, as
determined in good faith by the Board of Directors of the Company (the "Board"),
or (iv) by any combination of the foregoing. The Board shall promptly respond in
writing to an inquiry by the Holder as to the fair market value of any
securities the Holder may wish to deliver to the Company pursuant to clause
(iii) above.
4. Net Issue Election. The Holder may elect to receive, without the
payment by the Holder of any additional consideration, shares equal to the value
of this Series D Warrant or any portion hereof by the surrender of this Series D
Warrant or such portion to the Company, with the net issue election
-2-
notice annexed hereto duly executed, at the office of the Company. Thereupon,
the Company shall issue to the Holder such number of fully paid and
nonassessable shares of Series D Preferred Stock as is computed using the
following formula:
X = Y (A-B)
-------
A
where
X = the number of shares to be issued to the Holder pursuant to
this Section 4.
Y = the number of shares covered by this Series D Warrant in
respect of which the net issue election is made pursuant to this
Section 4.
A = the fair market value of one share of Series D Preferred
Stock, as determined in good faith by the Board, as at the time
the net issue election is made pursuant to this Section 4.
B = the Purchase Price in effect under this Series D Warrant at
the time the net issue election is made pursuant to this Section
4.
The Board shall promptly respond in writing to an inquiry by the Holder as to
the fair market value of one share of Series D Preferred Stock.
5. Partial Exercise. This Series D Warrant may be exercised in part,
and the Holder shall be entitled to receive a new warrant, which shall be dated
as of the date of this Series D Warrant, covering the number of shares in
respect of which this Series D Warrant shall not have been exercised.
6. Issuance Date. The person or persons in whose name or names any
certificate representing shares of Series D Preferred Stock is issued hereunder
shall be deemed to have become the holder of record of the shares represented
thereby as at the close of business on the date this Series D Warrant is
exercised with respect to such shares, whether or not the transfer books of the
Company shall be closed.
7. Expiration Date; Automatic Exercise. This Series D Warrant shall
expire at the close of business on December 30, 2013, and shall be void
thereafter. Notwithstanding the foregoing, this Series D Warrant, to the extent
then exercisable, shall automatically be deemed to be exercised in full pursuant
to the provisions of Section 4 hereof, without any further action on behalf of
the Holder, immediately prior to the time this Series D Warrant would otherwise
expire pursuant to the preceding sentence.
8. Reserved Shares; Valid Issuance. The Company covenants that it
will at all times from and after the date hereof reserve and keep available such
number of its authorized shares of Series D Preferred Stock and Common Stock,
par value $0.001 per share (the "Common Stock"), free from all preemptive or
similar rights therein, as will be sufficient to permit, respectively, the
exercise of this Series D Warrant in full and the conversion into shares of
Common Stock of all shares of Series D Preferred Stock receivable upon such
exercise. The Company further covenants that such shares as may be issued
pursuant to such exercise and conversion will, upon issuance, be duly and
validly issued, fully paid and nonassessable and free from all taxes, liens and
charges with respect to the issuance thereof.
9. Stock Dividends. If after December 30, 2003 (the "Original Issue
Date") the Company shall subdivide the Series D Preferred Stock, by split-up or
otherwise, or combine the Series D Preferred
-3-
Stock, or issue additional shares of Series D Preferred Stock in payment of a
stock dividend on the Series D Preferred Stock, the number of shares issuable on
the exercise of this Series D Warrant shall forthwith be proportionately
increased in the case of a subdivision or stock dividend, or proportionately
decreased in the case of a combination, and the Purchase Price shall forthwith
be proportionately decreased in the case of a subdivision or stock dividend, or
proportionately increased in the case of a combination.
10. Mergers and Reclassifications. If after the Original Issue Date
there shall be any reclassification, capital reorganization or change of the
Series D Preferred Stock (other than as a result of a subdivision, combination
or stock dividend provided for in Section 9 hereof), or any consolidation of the
Company with, or merger of the Company into, another corporation or other
business organization (other than a consolidation or merger in which the Company
is the continuing corporation and which does not result in any reclassification
or change of the outstanding Series D Preferred Stock), or any sale or
conveyance to another corporation or other business organization of all or
substantially all of the assets of the Company, then, as a condition of such
reclassification, reorganization, change, consolidation, merger, sale or
conveyance, lawful provisions shall be made, and duly executed documents
evidencing the same from the Company or its successor shall be delivered to the
Holder, so that the Holder shall thereafter have the right to purchase, at a
total price not to exceed that payable upon the exercise of this Series D
Warrant in full, the kind and amount of shares of stock and other securities and
property receivable upon such reclassification, reorganization, change,
consolidation, merger, sale or conveyance by a holder of the number of shares of
Series D Preferred Stock which might have been purchased by the Holder
immediately prior to such reclassification, reorganization, change,
consolidation, merger, sale or conveyance (or, if there are no holders of Series
D Preferred Stock at such time, by a holder of the number of shares of Common
Stock which might have been acquired by the Holder immediately prior to such
reclassification, reorganization, change, consolidation, merger, sale or
conveyance upon the exercise of this Series D Warrant in full and the conversion
into shares of Common Stock of all shares of Series D Preferred Stock receivable
upon such exercise), and in any such case appropriate provisions shall be made
with respect to the rights and interest of the Holder to the end that the
provisions hereof (including without limitation, provisions for the adjustment
of the Purchase Price and the number of shares issuable hereunder) shall
thereafter be applicable in relation to any shares of stock or other securities
and property thereafter deliverable upon exercise hereof.
11. Fractional Shares. In no event shall any fractional share of
Series D Preferred Stock be issued upon any exercise of this Series D Warrant.
If, upon exercise of this Series D Warrant as an entirety, the Holder would,
except as provided in this Section 11, be entitled to receive a fractional share
of Series D Preferred Stock, then the Company shall issue the next higher number
of full shares of Series D Preferred Stock, issuing a full share with respect to
such fractional share.
12. Certificate of Adjustment. Whenever the Purchase Price is
adjusted, as herein provided, the Company shall promptly deliver to the Holder a
certificate of a firm of independent public accountants setting forth the
Purchase Price after such adjustment and setting forth a brief statement of the
facts requiring such adjustment.
13. Notices of Record Date, Etc. In the event of:
(a) any taking by the Company of a record of the holders of any
class of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right,
-4-
(b) any reclassification of the capital stock of the Company,
capital reorganization of the Company, consolidation or merger involving the
Company, or sale or conveyance of all or substantially all of its assets, or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
then and in each such event the Company will mail or cause to be mailed to the
Holder a notice specifying (i) the date on which any such record is to be taken
for the purpose of such dividend, distribution or right, and stating the amount
and character of such dividend, distribution or right, or (ii) the date on which
any such reclassification, reorganization, consolidation, merger, sale or
conveyance, dissolution, liquidation or winding-up is to take place, and the
time, if any is to be fixed, as of which the holders of record in respect of
such event are to be determined. Such notice shall be mailed at least 20 days
prior to the date specified in such notice on which any such action is to be
taken.
14. Reserved.
15. Amendment. The terms of this Series D Warrant may be amended,
modified or waived only with the written consent of the Company and the Holder.
16. Series D Warrant Register; Transfers, Etc.
A. The Company will maintain a register containing the names
and addresses of the registered holders of all issued and outstanding Series D
Warrants. The Holder may change its address as shown on the warrant register by
written notice to the Company requesting such change. Any notice or written
communication required or permitted to be given to the Holder may be given by
certified mail or delivered to the Holder at its address as shown on the warrant
register.
B. Subject to compliance with applicable federal and state
securities laws, this Series D Warrant may be transferred by the Holder with
respect to any or all of the shares purchasable hereunder. Upon surrender of
this Series D Warrant to the Company, together with the assignment hereof
properly endorsed, for transfer of this Series D Warrant as an entirety by the
Holder, the Company shall issue a new warrant of the same denomination to the
assignee. Upon surrender of this Series D Warrant to the Company, together with
the assignment hereof properly endorsed, by the Holder for transfer with respect
to a portion of the shares of Series D Preferred Stock purchasable hereunder,
the Company shall issue a new warrant to the assignee, in such denomination as
shall be requested by the Holder hereof, and shall issue to such Holder a new
warrant covering the number of shares in respect of which this Series D Warrant
shall not have been transferred.
C. In case this Series D Warrant shall be mutilated, lost,
stolen or destroyed, the Company shall issue a new warrant of like tenor and
denomination and deliver the same (i) in exchange and substitution for and upon
surrender and cancellation of any mutilated Series D Warrant, or (ii) in lieu of
any Series D Warrant lost, stolen or destroyed, upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft or destruction of such
Series D Warrant (including a reasonably detailed affidavit with respect to the
circumstances of any loss, theft or destruction) and of indemnity reasonably
satisfactory to the Company, provided, however, that so long as Cross Atlantic
Technology Fund II, L.P. is the registered holder of this Series D Warrant, no
indemnity shall be required other than its written agreement to indemnify the
Company against any loss arising from the issuance of such new warrant.
17. No Impairment. The Company will not, by amendment of its Amended
and Restated Certificate of Incorporation or through any reclassification,
capital reorganization, consolidation, merger,
-5-
sale or conveyance of assets, dissolution, liquidation, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms of this Series D Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such action as may be necessary or appropriate in order to protect
the rights of the Holder.
18. Governing Law. The provisions and terms of this Series D Warrant
shall be construed and enforced in accordance with and governed by the laws of
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.
19. Successors and Assigns. This Series D Warrant shall be binding
upon the Company's successors and assigns and shall inure to the benefit of the
Holder's successors, legal representatives and permitted assigns.
20. Business Days. If the last or appointed day for the taking of any
action required or the expiration of any right granted herein shall be a
Saturday or Sunday or a legal holiday in the State of New Jersey, then such
action may be taken or right may be exercised on the next succeeding day which
is not a Saturday or Sunday or such a legal holiday.
Dated: December ___, 2003 VOXWARE, INC.
____________________________________
(Corporate Seal) By:_________________________________
Attest: Title:______________________________
____________________________
-6-
Subscription
To:____________________ Date:______________________
The undersigned hereby subscribes for __________ shares of Series D
Preferred Stock covered by this Series D Warrant. The certificate(s) for such
shares shall be issued in the name of the undersigned or as otherwise indicated
below:
_________________________________
Signature
_________________________________
Name for Registration
_________________________________
Mailing Address
Net Issue Election Notice
To:____________________ Date:_______________________
The undersigned hereby elects under Section 4 to surrender the right to
purchase ______________ shares of Series D Preferred Stock pursuant to this
Series D Warrant. The certificate(s) for the shares issuable upon such net issue
election shall be issued in the name of the undersigned or as otherwise
indicated below.
_________________________________
Signature
_________________________________
Name for Registration
_________________________________
Mailing Address
-7-
Assignment
For value received, the undersigned hereby sells, assigns and transfers
unto ____________________________,/1/ the right represented by the within Series
D Warrant to purchase __________ shares of Series D Preferred Stock of Voxware,
Inc. (the "Company") to which the within Series D Warrant relates, and does
hereby irrevocably constitute and appoint the Company as its attorney to
transfer such right to the within Series D Warrant on the books of the Company
with full power of substitution on the premises.
Dated:_______________________
Signature:______________________________
Assignor Name:__________________________
By:
Its:
(Name must conform to name of Holder as
specified on the face of the Series D
Warrant)
In the Presence of:
_____________________________
Assignee Information
Name:___________________________
Address:________________________
________________________
Telephone:______________________
Facsimile:______________________
--------
/1/ (full name of assignee)
