Exhibit 10.2
EXECUTION COPY
EXCHANGE AGREEMENT
This EXCHANGE AGREEMENT ("Agreement") is entered into as of April 16, 2003,
by and between VOXWARE, INC., a Delaware corporation (the "Company"), with
principal executive office located at 000 Xxxxxxxx Xxxxxx Xxxx, Xxxxx 0,
Xxxxxxxxxxxxx, Xxx Xxxxxx 00000, and Castle Creek Technology Partners, LLC, a
Delaware limited liability company (the "Purchaser"), with principal offices
located at 000 X. Xxxxxxx Xxxx., Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000.
RECITALS
A. The Purchaser and the Company desire that: (a) the rights, powers and
preferences of the Series B Convertible Preferred Stock, par value $0.001 per
share (the "Series B Stock"), of the Company, be amended as provided in the
Amended and Restated Certificate of Incorporation (the "Amended and Restated
Certificate") in the form attached hereto as Exhibit "A" in exchange for the
consideration set forth herein; and (b) the Purchaser exchange all outstanding
shares of the Company's Series C Convertible Preferred Stock, par value $0.001
per share (the "Series C Stock"), and warrants dated December 12, 2001 (the
"Series C Warrants") to purchase shares of the Company's Common Stock, par value
$0.001 per share (the "Common Stock"), held by the Purchaser as of the Effective
Time (as defined below) for shares of the Company's Series D Convertible
Preferred Stock, par value $0.001 per share (the "Series D Stock"), the terms of
which are set forth in the Amended and Restated Certificate.
B. Contemporaneously with the Effective Time, the Company will be
consummating the transactions contemplated by that certain Series D Convertible
Preferred Stock Purchase Agreement dated as of April 16, 2003 (the "Series D
Purchase Agreement") by and among the Company and the Purchasers named therein
in the form attached hereto as Exhibit "B", including without limitation the
transactions contemplated hereby, the issuance of shares of Series D Stock, the
issuance of warrants to purchase shares of Common Stock ("Common Stock
Warrants") and warrants to purchase shares of Series D Stock") (the "Preferred
Stock Warrants" and together with the Common Stock Warrants, the "Series D
Warrants").
C. As soon as practicable after the date hereof, the Company will be
filing a Proxy Statement (the "Proxy Statement") with the Securities and
Exchange Commission (the "SEC") seeking approval from the Company's stockholders
of the transactions contemplated by the Series D Purchase Agreement, including
the issuance of shares of Series D Stock.
NOW, THEREFORE, in consideration of their respective promises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and the Purchaser hereby agree as
follows:
ARTICLE I
EXCHANGE AND ISSUANCE OF SECURITIES
1.1 Amendment of Series B Stock. At the Effective Time, the rights, powers
and preferences of the Series B Stock shall be as set forth in the Amended and
Restated Certificate, and all dividends accrued and unpaid on the Series B Stock
shall be forgiven. In consideration of such amendment, (i) the Company shall pay
to the Purchaser, by check or wire transfer, $650,000 at the Effective Time and
(ii) Section 4.7 of the Exchange Agreement dated as of August 29, 2001, as
amended, between the Company and the Purchaser is hereby amended to limit
conversions of Series B Stock so that the aggregate number of shares of Common
Stock issued upon such conversions does not exceed an aggregate of 17,250,000.
1.2 Exchange of Series C Stock and Series C Warrants. At the Effective
Time, without the requirement of any further action by any party, all shares of
Series C Stock held by Purchaser, together with all accrued and unpaid dividends
thereon, and all Series C Warrants held by the Purchaser shall be deemed
cancelled and 6,038,127 shares of Series D Stock shall be issued to the
Purchaser. At the Effective Time, the Purchaser shall surrender all certificates
for shares of Series C Stock and Series C Warrants to the Company and the
Company shall issue to the Purchaser, as of the date on which the Effective Time
occurs, certificates for 6,038,127 shares of Series D Stock.
1.3 Reduction in Consideration for Conversion of Stock. The shares of
Series D Stock issuable pursuant to Section 1.2 above shall be proportionately
reduced for any conversions of Series C Stock by the Purchaser between the date
hereof and the Effective Time.
1.4 Effective Time. The "Effective Time" of the Exchange shall be the time
at which the transactions contemplated by the Series D Purchase Agreement are
consummated, including without limitation, the execution of the Investor Rights
Agreement (the "Investor Rights Agreement") by the Company and the Investors
named therein (including the Purchaser) in the form attached hereto as Exhibit
"C" and the execution of the Stockholders Agreement(the "Stockholders
Agreement") by the Company and the Holders and Investors named therein
(including the Purchaser) in the form attached hereto as Exhibit "D".
ARTICLE II
PURCHASER'S REPRESENTATIONS AND WARRANTIES
The Purchaser represents and warrants to the Company as follows:
2.1 Purchase for Own Account. The Purchaser is acquiring the shares of
Series D Stock and the shares of Common Stock issued upon conversion of, or as
dividends upon, the Series D Stock (the "Conversion Shares" and collectively
with the Series D Stock, the "Securities") for its own account and not with a
view toward, or in connection with, the public distribution thereof, and will
not resell the Securities except pursuant to sales that are exempt from the
registration requirements of the Securities Act
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of 1933, as amended (the "Securities Act"), and/or sales that are registered
under the Securities Act. The Purchaser further represents that it does not have
any contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participation to any third party with respect to any of the
Securities. The Purchaser understands that it must bear the economic risk of
this investment indefinitely, unless any disposition of the Securities is
registered pursuant to the Securities Act and any applicable state securities
laws or an exemption from such registration is available, and that the Company
has no present intention of disposing of any such Securities other than as
contemplated by the Investor Rights Agreement.
2.2 Transfer or Resale. The Purchaser understands that (i) except as
provided in the Investor Rights Agreement, the Securities have not been and are
not being registered under the Securities Act or any state securities laws, and
may not be transferred unless subsequently registered thereunder or an exemption
from such registration is available; (ii) any sale of such Securities made in
reliance on Rule 144 under the Securities Act (or a successor rule) ("Rule 144")
may be made only in accordance with the terms of said Rule and further, if said
Rule is not applicable, any resale of such Securities without registration under
the Securities Act may require compliance with some other exemption under the
Securities Act or the rules and regulations of the SEC thereunder; and (iii)
neither the Company nor any other person is under any obligation to register
such Securities under the Securities Act or any state securities laws or to
comply with the terms and conditions of any exemption thereunder (in each case,
other than pursuant to the Investor Rights Agreement).
2.3 Legends. The Purchaser further represents that it understands and
agrees that, until registered under the Securities Act, or transferred pursuant
to the provisions of Rule 144 as promulgated by the Commission, all certificates
evidencing any of the Series D Stock or Conversion Shares shall bear a legend,
prominently stamped or printed thereon, reading substantially as follows:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT
AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD,
MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND APPLICABLE STATE SECURITIES
LAWS, OR THE AVAILABILITY OF AN EXEMPTION FROM THE REGISTRATION
PROVISIONS OF THE SECURITIES ACT OF 1933, AS AMENDED, AND APPLICABLE
STATE SECURITIES LAWS."
2.4 Authorization; Enforcement. This Agreement has been duly and validly
authorized, executed and delivered on behalf of the Purchaser and to a valid and
binding agreement of the Purchaser enforceable against the Purchaser in
accordance with its terms, except as enforcement thereof may be limited by (i)
laws of general application
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relating to bankruptcy, insolvency moratorium, reorganization or other similar
laws, both state and federal, affecting the enforcement of creditors' rights in
general, and (ii) rules of law governing specific performance, injunctive relief
and other equitable remedies.
2.5 Ownership of Shares. On the date of this Agreement, the Purchaser
beneficially owns 2,086.616 shares of Series B Stock, 175 shares of Series C
Stock and Series C Warrants to purchase 637,450 shares of Common Stock.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchaser that:
3.1 Organization and Qualification. The Company and each of its
subsidiaries is a corporation duly organized, validity existing and in good
standing under the laws of the jurisdiction in which it is incorporated, and has
the requisite corporate power and authority to own its properties and to carry
on its business as now being conducted. The Company and each of its subsidiaries
is duly qualified as a foreign corporation to do business and is in good
standing in every jurisdiction where the failure to so qualify would have a
Material Adverse Effect.
For the purpose of this agreement "Material Adverse Effect" means any
material adverse effect on (a) the business, operations, properties, financial
condition or operating results of the Company and its subsidiaries, taken as a
whole on a consolidated basis or (b) the ability of the Company to perform its
obligations under this Agreement, and the Investor Rights Agreement
(collectively, the "Investment Agreements").
3.2 Authorization; Enforcement. (a) The Company has the requisite
corporate power and authority to (i) enter into, and perform its obligations
under the Investment Agreements, (ii) issue and perform its obligations with
respect to the Series D Stock in accordance with the terms hereof and thereof,
and (iii) issue the Conversion Shares in accordance with the terms and
conditions of the Series D Stock; (b) the execution, delivery and performance of
this Agreement and the consummation by the Company of the transactions
contemplated hereby (including without limitation the issuance of the Series D
Stock, the reservation for issuance and issuance of the number of the Conversion
Shares initially issuable pursuant to the conversion of the Series D Stock) have
been duly authorized by all necessary corporate action and no further consent or
authorization of the Company, its Board of Directors or stockholders or any
other person, body or agency is required with respect to any of the transactions
contemplated hereby or thereby (other than actions of (i) the SEC and the
Company's Board of Directors in connection with the registration of the
Conversion Shares in accordance with the Investor Rights Agreement and (ii) the
SEC and the Company's stockholders in connection with the Proxy Statement and
the approval of the matters set forth therein); (c) this Agreement has been duly
executed and delivered by the Company; and (d) this Agreement constitutes a
legal, valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except as enforcement thereof may be
limited by (i) laws of general application relating to bankruptcy, insolvency,
moratorium, reorganization or other similar laws, both state and federal,
affecting the enforcement of
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creditors, rights in general, and (ii) rules of law governing specific
performance, injunctive relief and other equitable remedies.
3.3 Issuance of Shares, etc. The Series D Stock and the Conversion Shares
have been duly authorized and when issued and delivered in accordance with the
terms hereof (and, as to the Conversion Shares, in accordance with the terms of
the Series D Stock) will be validly issued, fully paid and non-assessable, free
from all taxes, liens, claims and encumbrances and are not and will not be
subject to preemptive rights or other similar rights and will not trigger any
anti-dilution or similar provisions in any securities of the Company or any
other agreements to which the Company is party which rights or provisions have
not been waived.
3.4 No Conflicts. The execution, delivery and performance of each of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby (including the issuance of the Series D Stock and the
reservation for issuance of the Conversion Shares) do not and will not (a)
result in a violation of the Amended and Restated Certificate or By-laws of the
Company or any of its subsidiaries, (b) conflict with, or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the Company or
any of its subsidiaries is a party (except for such conflicts, defaults,
terminations, amendments, accelerations, and cancellations as would not,
individually or in the aggregate, have a Material Adverse Effect), or (c)
assuming the accuracy of the Purchaser's representations and warranties set
forth in Article II hereof, result in a violation of any law, rule, regulation,
order, judgment or decree (including, without limitation, U.S. federal and state
securities laws and regulations) applicable to the Company or any of its
subsidiaries, or by which any property or asset of the Company or any of its
subsidiaries, is bound or affected. The Company is not required to obtain any
consent, authorization or order of, or make any filing or registration with, any
court or governmental agency or any regulatory or self-regulatory agency or
entity or authority in order for it to execute, deliver or perform any of its
obligations under this Agreement or to perform its obligations in accordance
with the terms hereof.
3.5 Acknowledgment Regarding Purchaser's Acquisition of the Securities.
The Company acknowledges and agrees that the Purchaser is acting independently
and is not acting as a financial advisor or fiduciary of the Company (or in any
similar capacity) with respect to this Agreement or the transactions
contemplated hereby, that this Agreement and the transactions contemplated
hereby, and the relationship between the Purchaser and the Company is
"arms-length", and that any statement made by the Purchaser, or any of its
representatives or agents, in connection with this Agreement or the transactions
contemplated hereby, other than the representations and warranties of the
Purchaser contained herein, is not advice or a recommendation, is merely
incidental to the Purchaser's acquisition of the Securities and has not been
relied upon in any way by the Company, its officers, directors or other
representatives. The Company further represents to the Purchaser that the
Company's decision to enter into this Agreement and the transactions
contemplated hereby has been based solely on an independent evaluation by the
Company and its representatives.
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3.6 No Brokers. Except as set forth in the Series D Purchase Agreement,
the Company has taken no action that would give rise to any claim by any person
for brokerage commissions, finder's fees or similar payments by the Purchaser
relating to this Agreement or the transactions contemplated hereby.
ARTICLE IV
AGREEMENTS, WAIVERS AND CONSENTS
4.1 Extension of Maturity Date. The Purchaser and the Company agree that
the Maturity Date of the Series B Stock set forth in Section IX.A of the
Certificate of Designations, Preferences and Rights of Series B Convertible
Preferred Stock of the Company filed with the Secretary of State of the State of
Delaware on August 29, 2001 (the "Series B Designation") shall be extended
through and until the earlier of (i) June 30, 2003 and (ii) the date on which
either the Series D Purchase Agreement or the Settlement Agreement (as defined
below) is terminated in accordance with their respective terms, and the
Purchaser waives any failure by the Company to redeem the Series B Stock prior
to or on either such date.
4.2 Current Litigation. The parties agree that the civil action filed by
the Purchaser against the Company in the United States District for the District
of Delaware (the "Court"), Civil Action No. 03-196 (the "Lawsuit"), with respect
to the failure to redeem the Series B Stock shall be stayed by order of the
Court, upon application by the Purchaser to the Court, on or before the date the
Company's response to the complaint is due, for a period through the earlier of
(i) June 30, 2003 and (ii) the date on which either the Series D Purchase
Agreement or the Settlement Agreement is terminated in accordance with their
respective terms, and the Purchaser agrees to extend the time for the Company to
reply to the summons and complaint for the Lawsuit until the earlier of (i) July
1, 2003 or (ii) the date immediately following the date on which either the
Series D Purchase Agreement or the Settlement Agreement is terminated in
accordance with their respective terms. The Purchaser agrees that, at the
Effective Time, the Purchaser shall take such actions as necessary to obtain
from the Court an order of dismissal of the Lawsuit with prejudice.
Simultaneously with the execution of this Agreement, the Company and the
Purchaser are executing a Settlement Agreement and Mutual Release dated the date
hereof with respect to the Lawsuit (the "Settlement Agreement").
4.3 Approval of Amended and Restated Certificate. The Purchaser hereby
approves, adopts and consents to the Amended and Restated Certificate in all
respects.
4.4 Anti-Dilution Waiver. The Purchaser hereby waives the application of
each of Section VIII of the Series B Designation and Section VIII of the
Certificate of Designations, Preferences and Rights of Series C Convertible
Preferred Stock of the Company filed with the Secretary of State of the State of
Delaware on December 7, 2001 (the "Series C Designation") to (i) the issuance of
the 10% Convertible Debentures dated October 2, 2002 (collectively, the
"Creafund Debentures") to Creafund NV, Avvision BVBA, Eurl Val D'Ausa, BVBA
Com(2)Wizards and Xxx Xxxxxxxx (collectively, the "Creafund Group") and (ii) the
issuance of shares of Series D Stock and Series D Warrants contemplated by the
terms of the Series D Purchase Agreement and this Agreement.
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4.5 Waiver of Protective Provisions. The Purchaser hereby waives the
provisions of each of Section XI of the Series B Designation and Section XI of
the Series C Designation with respect to (i) the issuance of the Creafund
Debentures and the granting of security interests to the Creafund Group pursuant
to that certain Security Agreement dated as of October 22, 2002 and (ii) the
issuance of shares of Series D Stock and Series D Warrants contemplated by the
terms of the Series D Purchase Agreement and this Agreement.
4.6 Waiver of Rights to Additional Shares. To the extent such rights
remain in existence, the Purchaser waives any rights under Section 4.15 of the
Securities Purchase Agreement dated as of April 19, 2001 between the Company and
the Purchaser with respect to Additional Shares or Additional Share Warrants
(each as defined therein) that would otherwise result from (i) the issuance of
the Creafund Debentures and (ii) the issuance of the Series D Stock contemplated
by the terms of the Series D Purchase Agreement and this Agreement. The
Purchaser also waives any right of first refusal or pre-emptive right it may
have with respect to (i) the issuance of the Creafund Debentures and (ii) the
issuance of the Series D Stock and Series D Warrants contemplated by the Series
D Purchase Agreement and this Agreement.
4.7 Consent to Other Agreements. By execution of this Agreement, the
Purchaser hereby agrees to the terms of each of the Investor Rights Agreement
and the Stockholders Agreement and agrees to execute such agreements upon the
consummation of the Series D Purchase Agreement.
4.8 [Intentionally Omitted.]
4.9 Report on Form 8-K. The Company agrees to file a Current Report on
Form 8-K disclosing this Agreement and the transactions contemplated hereby with
the SEC within two (2) business days following the date hereof. Such Form 8-K
shall contain this Agreement as an Exhibit. In addition, the Company agrees to
issue a press release describing the material terms of the transaction prior to
the opening of the stock market on the next business day following the receipt
of all signatures on the Series D Purchase Agreement.
4.10 Restrictions on Transfers. During the period from the date hereof
through the Effective Time, the Purchaser shall sell, transfer, or grant any
interest in, any of the shares of Series B Stock, Series C Stock or Series C
Warrants; provided, however, nothing contained herein shall prohibit the
Purchaser from converting any shares of Series B Stock or Series C Stock into
shares of Common Stock.
4.11 Accounts Receivable Financing. The Company and the Purchaser agree
that it shall not be a breach of this Agreement, the Settlement Agreement or any
other agreement between the Company and the Purchaser if, prior to the earlier
of (i) the Effective Time and (ii) the date on which either the Series D
Purchase Agreement or the Settlement Agreement is terminated in accordance with
their respective terms, the Company enters into an accounts receivable-based
financing facility granting a security interest in the Company's accounts
receivable and inventory; provided that the amount of
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such financing facility shall not exceed $250,000 and, provided, further, that
the Company shall not avail itself of such financing in any amount above the
minimum amount absolutely necessary to operate the business of the Company in
the period after the date hereof and up to the earlier of (i) the Effective Time
and (ii) the date on which either the Series D Purchase Agreement or the
Settlement Agreement is terminated in accordance with their respective terms.
ARTICLE V
MISCELLANEOUS
5.1 Governing Law; Jurisdiction. This Agreement 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. The parties hereto irrevocably consent to the
jurisdiction of the United States federal courts located in the State of
Delaware and the state courts in the State of Delaware in any suit or proceeding
based on or arising under this Agreement or the transactions contemplated hereby
and irrevocably agree that all claims in respect of such suit or proceeding may
be determined in such courts. The Company irrevocably waives the defense of an
inconvenient forum to the maintenance of such suit or proceeding. The Company
further agrees that service of process upon the Company mailed by the first
class mail shall be deemed in every respect effective service of process upon
the Company in any suit or proceeding arising hereunder. Nothing herein shall
affect the Purchaser's right to serve process in any other manner permitted by
law. The parties hereto agree that a final non-appealable judgment in any such
suit or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on such judgment or in any other lawful manner.
5.2 Counterparts. This Agreement may be executed in two or more
counterparts, including, without limitation, by facsimile transmission, all of
which counterparts shall be considered one and the same agreement and shall
become effective when counterparts have been signed by each party and delivered
to the other party. In the event any signature page is delivered by facsimile
transmission, the party using such means of delivery shall cause additional
original executed signature pages to be promptly delivered to the other parties.
5.3 Headings. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
5.4 Severability. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement or the
validity or enforceability of this Agreement in any other jurisdiction.
5.5 Scope of Agreement; Amendments. This Agreement and the documents and
instruments referenced herein contain the entire understanding of the parties
with respect to the matters covered herein and therein. No provision of this
Agreement may be waived other than by an instrument in writing signed by the
party to be charged with
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enforcement and no provision of this Agreement may be amended other than by an
instrument in writing signed by the Company and the Purchaser.
5.6 Notice. Any notice herein required or permitted to be given under the
terms of this Agreement shall be in writing and may be personally served or
delivered by courier or by facsimile-machine confirmed telecopy, and shall be
deemed delivered at the time and date of receipt (which shall include telephone
line facsimile transmission). The addresses for such communications shall be:
If to the Company:
VOXWARE, INC.
Xxxxxxxxxxxxx Xxxxxx Xxxx
X.X. Xxx 0000
Xxxxxxxxx, Xxx Xxxxxx 00000
or
000 Xxxxxxxx Xxxxxx Xxxx
Xxxxx 0
Xxxxxxxxxxxxx, XX 00000
Attn: Xxxxxxxx Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with copies to:
Xxxx and Xxxx LLP
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to the Purchaser:
CASTLE CREEK TECHNOLOGY PARTNERS LLC
c/o Castle Creek Partners, LLC, Investment Manager
000 X. Xxxxxxx Xxxx.
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxx
Managing Director
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
Each party shall provide notice to the other party of any change in
address.
5.7 Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties and their successors and assigns. The Company
shall not
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assign this Agreement or any rights or obligations hereunder without the prior
written consent of the Purchaser.
5.8 Third Party Beneficiaries. This Agreement is intended for the benefit
of the parties hereto and their respective permitted successors and assigns and
is not for the benefit of, nor may any provision hereof be enforced by, any
other person.
5.9 Survival. The representations and warranties, covenants and
agreements in this Agreement shall survive the execution and delivery of this
Agreement and the Securities, notwithstanding any due diligence investigation
conducted by or on behalf of the Purchaser.
5.10 Public Filings; Publicity. The Company and the Purchaser shall have
the right to review reasonably in advance of the issuance any press releases
(including the foregoing press release), SEC or other filings, or any other
public statements, with respect to the transactions contemplated hereby and all
reasonable comments by the Purchaser with respect thereto shall be implemented;
provided, however, that the Company shall be entitled, without the prior
approval of the Purchaser, to make any press release or SEC, Nasdaq, NASD or
exchange filings with respect to such transactions as is required by applicable
law and regulations (although the Purchaser shall (to the extent time permits)
be consulted by the Company in connection with any such press release prior to
its release and shall be provided with a copy thereof).
5.11 Further Assurances. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
5.12 Remedies, Characterizations, Other Obligations, Breaches and
Injunctive Relief. The remedies provided in this Agreement shall be cumulative
and in addition to all other remedies available under this Agreement, at law or
in equity (including a decree of specific performance and/or other injunctive
relief), no remedy contained herein shall be deemed a waiver of compliance with
the provisions giving rise to such remedy and nothing herein shall limit a
Purchaser's right to actual damages for any failure by the Company to comply
with the terms of this Agreement. Amounts set forth or provided for herein with
respect to payments and the like (and the computation thereof) shall be the
amounts to be received by the Purchaser and shall not, except as expressly
provided herein, be subject to any other obligation of the Company (or the
performance thereof).
5.13 Failure or Indulgence Not Waiver. No failure or delay on the part of
a Purchaser in the exercise of any power, right or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power, right or privilege preclude other or further exercise thereof or of
any other right, power or privilege.
5.14 Termination. In the event that the Effective Time shall not have
occurred on or before the earlier of (i) June 30, 2003 and (ii) the date on
which either the Series D
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Purchase Agreement or the Settlement Agreement is terminated in accordance with
their respective terms, unless the parties agree otherwise, this Agreement shall
terminate at the close of business on such date. Notwithstanding any termination
of this Agreement, any party not in breach of this Agreement shall preserve all
rights and remedies it may have against the other party hereto for a breach of
this Agreement prior to or relating to the termination.
5.15 Joint Participation in Drafting. Each party to this Agreement has
participated in the drafting of this Agreement. As such, the language used
herein and therein shall be deemed to be the language chosen by the parties
hereto to express their mutual intent and no rule of strict construction shall
be applied against any party to this Agreement.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the undersigned Purchaser and the Company have
caused this Agreement to be duly executed as of the date first above written.
COMPANY:
VOXWARE, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxxx
---------------------------------------------------
Xxxxxxxxx X. Xxxxxxxx
President and Chief Executive Officer
PURCHASER:
CASTLE CREEK TECHNOLOGY PARTNERS LLC
By: Castle Creek Partners, L.L.C.
Its: Investment Manager
By: /s/ Xxxxxx X. Xxxx
---------------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Managing Director
Address: 000 X. Xxxxxxx Xxxx.
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
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