Exhibit 10.4
EXCHANGE AGREEMENT
This EXCHANGE AGREEMENT ("Agreement") is entered into as of April 16, 2003,
by and among VOXWARE, INC., a Delaware corporation (the "Company"), with
principal executive office located at 000 Xxxxxxxx Xxxxxx Xxxx, Xxxxx 0,
Xxxxxxxxxxxxx, Xxx Xxxxxx 00000, and the parties set forth on the signature
pages hereto (collectively, the "Purchasers").
RECITALS
A. The Purchasers and the Company desire that the Purchasers (i) exchange
all outstanding 10% Convertible Debentures issued on October 2, 2002 (the
"Debentures") which are due on July 1, 2003, (ii) exchange all interests in the
capital stock of Voxware NV, a corporation organized under the laws of Belgium
("Voxware Europe"), including without limitation the Investor Stock (as defined
in the Creafund Shareholders Agreement noted below) and (iii) terminate all
Exchange Rights (the "Exchange Rights") set forth in Section 3 of that certain
Shareholders Agreement (the "Creafund Shareholders Agreement") dated as of
October 2, 2002, by and among the Company and the Purchasers, in each case held
by the Purchasers 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 of Incorporation (the "Amended and Restated Certificate") in the
form attached hereto as Exhibit "A".
B. Contemporaneously with the Effective Time (as defined below), 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 (the "Common Stock Warrants") to
purchase shares of the Company's common stock, par value $0.001 ("Common
Stock"), and the issuance of warrants to purchase shares of Series D Stock (the
"Series D Warrants" and collectively with the Common Stock Warrants, the "New
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 Purchasers hereby agree as
follows:
ARTICLE I
EXCHANGE AND ISSUANCE OF SECURITIES
1.1 Exchange of Debentures. At the Effective Time without the requirement
of any further action by any party, all Debentures held by each of the
Purchasers shall be deemed cancelled in exchange for an aggregate of 20,000,000
shares of Series D Stock which shall be issued to the Purchasers as set forth on
Schedule 1 hereto. At the Effective Time, the Purchasers shall surrender all
Debentures to the Company and the Company shall (i) issue to the Purchasers as
set forth on Schedule 1 hereto, as of the date on which the Effective Time
occurs, certificates for an aggregate of 20,000,000 shares of Series D Stock and
(ii) pay to the Purchasers cash for accrued and unpaid interest on the
Debentures at the rate of 10% per annum for the period from the date of receipt
of the proceeds under the Debentures ((euro)140.699,32 on July 2, 2002 and
(euro)160,000 on October 9, 2002) through the Effective Date.
1.2 Exchange of Investor Stock and Termination of Exchange Rights. At the
Effective Time, (i) all interests in the capital stock of Voxware Europe,
including without limitation the Investor Stock, shall be exchanged and (ii) all
Exchange Rights shall be terminated for an aggregate of 30,000,000 shares of
Series D Stock, which shares shall be issued to the Purchasers at the Effective
Time.
(a) In the event the Net Sales (as defined in the Creafund
Shareholders Agreement) of Voxware Europe for the year ended December 31, 2003
are at least (euro)3,000,000, the Company shall issue to the Purchasers
2,500,000 additional shares of Series D Stock.
(b) In the event the Net Sales of Voxware Europe for the year ended
December 31, 2003 are more than (euro)3,000,000 but do not exceed
(euro)4,000,000, the number of additional shares of Series D Stock to be issued
to the Purchasers pursuant to this subsection (b) (in addition to the shares of
Series D Stock to be issued pursuant to subsection (a) above) shall be
calculated as follows:
N = 7,500,000 x A minus(euro)3,000,000
----------------------
(euro)1,000,000
where N equals the number of additional shares of Series D Stock to be issued to
the Purchasers and A equals the actual Net Sales of Voxware Europe for the year
ended December 31, 2003.
(c) In the event the Net Sales of Voxware Europe for the year ended
December 31, 2003 are more than (euro)4,000,000, the number of additional shares
of Series D Stock to be issued to the Purchasers pursuant to this subsection (c)
(in addition to the
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shares of Series D Stock to be issued pursuant to subsections (a) and (b) above)
shall be calculated as follows:
N = 5,000,000 x A minus(euro)4,000,000
----------------------
(euro)500,000
where N equals the number of additional shares of Series D Stock to be issued to
the Purchasers and A equals the actual Net Sales of Voxware Europe for the year
ended December 31, 2003; provided, however, that above quotient may not exceed
one (1).
(d) Any shares of Series D Stock to be issued to the Purchasers
pursuant to this Section 1.2 shall be allocated among the Purchasers in
accordance with Schedule 2 hereto, taking into consideration the exercise of the
call option as set forth in Section 4.11 hereof. Any additional shares of Series
D Stock to be issued to the Purchasers pursuant to subsections (a), (b) or (c)
above shall be issued on or before March 31, 2004.
1.3 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 Purchasers) 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 Purchasers) in the form attached hereto as Exhibit "D".
ARTICLE II
PURCHASERS' REPRESENTATIONS AND WARRANTIES
Each of the Purchasers represents and warrants to the Company as follows:
2.1 Purchase for Own Account. Such 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 of 1933, as amended (the
"Securities Act"), and/or sales that are registered under the Securities Act.
Such 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, except
for a call option granted to Avvision BVBA by Creafund NV with respect to
certain Investor Stock held by Creafund NV, which call option has been
irrevocably exercised, effective and contingent upon the Effective Time. Such
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
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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. Such 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. Such 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 such Purchaser and constitutes a
valid and binding agreement of such Purchaser enforceable against such Purchaser
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 creditors' rights in general, and (ii) rules of law governing
specific performance, injunctive relief and other equitable remedies.
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2.5 Ownership of Debentures. On the date of this Agreement, such Purchaser
owns such Debentures as set forth Schedule 1 hereto, free and clear of all
claims, rights, liens, security interests and encumbrances.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to each of the Purchasers 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 Purchasers' Acquisition of the Securities. The
Company acknowledges and agrees that each 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 each Purchaser and the Company is
"arms-length", and that any statement made by any 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
Purchasers contained herein, is not advice or a recommendation, is merely
incidental to such 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 Purchasers that the
Company's decision to enter into this Agreement and
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the transactions contemplated hereby has been based solely on an independent
evaluation by the Company and its representatives.
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 any of the
Purchasers relating to this Agreement or the transactions contemplated hereby.
ARTICLE IV
AGREEMENTS, WAIVERS AND CONSENTS
4.1 Qualifying Fundraising. Each of the Purchasers hereby agrees that the
issuance of the shares of Series D Stock and the New Warrants at the Effective
Time constitutes a Qualified Fundraising under each of the Debentures and the
Creafund Shareholders Agreement. Each of the Purchasers hereby permanently and
irrevocably waives its right to have any of the Debentures redeemed on or before
the Effective Time. Each of the Purchasers agrees that it will not convert any
of the Debentures, pursuant to Section 4 thereof, on or before the Effective
Time. Each of the Purchasers agrees that it will not exchange any of the
Investor Stock pursuant to Section 3 of the Creafund Shareholders Agreement, on
or before the Effective Time. Each of the Purchasers hereby waives any default
that currently exists under the Debentures through the Effective Time.
4.2 Waiver of Rights to Additional Shares. To the extent such rights exist,
each of the Purchasers hereby permanently and irrevocably waives any right of
first refusal or pre-emptive right it may have with respect to the issuance of
the Series D Stock and the New Warrants contemplated by the Series D Purchase
Agreement and this Agreement.
4.3 Termination of Security Agreement; Grant of Power of Attorney. Each of
the Purchasers agrees that, at the Effective Time, the Security Agreement dated
as of October 2, 2002 by and among the Company and the Purchasers shall be
terminated and have no further force or effect. Each of the Purchasers
authorizes the Company to file, at the Effective Time, one or more termination
statements pursuant to the Uniform Commercial Code, terminating the security
interest granted to the Purchasers, without the signature of any of the
Purchasers. In furtherance of the foregoing, each of the Purchasers hereby
irrevocably constitutes and appoints the Company and any officer thereof, with
full power of substitution, as its true and lawful attorneys-in-fact, with full
irrevocable power and authority in the place and stead of such Purchaser or in
the Purchaser's own name, to take any and all appropriate action and to execute
any and all documents and instruments that may be necessary or desirable to
accomplish the termination of the Security Agreement and the termination of
security interest granted to the Purchasers.
4.4 Termination of Rights under Debentures. Each of the Purchasers agrees
that, as of the Effective Time, it shall have no further rights under the
Debentures, except as set forth in Section 1.1 above.
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4.5. Amendment of Creafund Shareholders Agreement. Each of the Purchasers
agrees that, effective on the date hereof (except for clause e. below which
shall be effective at the Effective Time), the Creafund Shareholders Agreement
shall be amended as follows:
a. Section 2 is hereby amended to provide that Voxware, Inc. shall
have no obligation to subscribe for additional capital stock of
Voxware Europe, except for the obligation of Voxware, Inc. to
purchase additional common shares of Voxware Europe in order to
reinstall the minimum required capital of Voxware Europe
of(euro)364,245 as of the fiscal year end date of June 30, 2003
according to Articles 633 and 634 of the Corporation Law of
Belgium. Such amounts will be paid by Voxware, Inc. by a
reduction of the inter-company loan account currently owed by
Voxware Europe to Voxware, Inc. As of March 31, 2003, the
intercompany account balance was(euro)723,492.
b. Section 2A is hereby amended to provide that the license granted
therein shall be royalty free at all times.
c. Section 3 is hereby amended to provide that none of the
Purchasers shall have any right to exchange Investor Stock,
except as set forth in Section 1.2 above.
d. Section 5 is hereby amended to the extent set forth in the last
paragraph of this Section 4.5.
e. Section 6 is amended to provide that all three (3) members of the
Voxware Europe Board of Directors shall be designated by Voxware,
Inc.
f. Section 6.4 is added to the Creafund Shareholders Agreement to
provide in its entirety as follows:
6.4 Each of the Investors and Voxware Europe agree that, through
the Effective Time, none of them shall take any action materially
adverse to (i) the interests of Voxware, Inc. or (ii) the business of
Voxware Europe.
Each of the Purchasers agrees that, upon the issuance of the shares as set
forth in Section 1.2 above in connection with the Net Sales of Voxware Europe
for the year ended December 31, 2003, if any, the Creafund Shareholders
Agreement shall be terminated and have no further force or effect.
4.6 Consent to Other Agreements. By execution of this Agreement, each of
the Purchasers hereby agrees to the terms of each of the Investor Rights
Agreement and
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the Stockholders Agreement and agrees to execute such agreements in connection
with the consummation of the transactions contemplated by the Series D Purchase
Agreement.
4.7 Voting Agreement. Each of the Purchasers agrees to vote any shares of
Common Stock beneficially held by such Purchaser on the record date set forth in
the Proxy Statement in favor of the proposals recommended by the Board of
Directors of the Company.
4.8 Board Observer Rights. So long as the Purchasers hold at least 40% of
the shares of Series D Stock acquired by the Purchasers pursuant to the exchange
of the Debenture pursuant to Section 1.1 above and the conversion of the
Exchange Rights pursuant to Section 1.2 above, Creafund NV shall be entitled to
send one representative to attend and participate (including by means of
telephonic conference call), in a nonvoting observer capacity, all meetings of
the Board of Directors of the Company and, in this respect, the Company shall
provide such representative copies of all notices, minutes, consents and other
materials that the Company provides to its Board of Directors.
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.
4.10 Restrictions on Transfers. During the period from the date hereof
through the Effective Date, none of the Purchasers shall sell, transfer, or
grant any interest in, any of the Debentures. During the period from the date
hereof through the Effective Time, none of the Purchasers shall sell, transfer,
or grant any interest in, any of the shares of Investor Stock or any of the
Exchange Rights, except for a call option granted to Avvision BVBA by Creafund
NV with respect to certain Investor Stock held by Creafund NV, which call option
has been irrevocably exercised, effective and contingent upon the Effective
Time.
4.11 Exercise of Call Option. Conditional upon the capital increase
provided for in Section 4.5.a., Avvision BVBA hereby irrevocably exercises,
effective and contingent upon the Effective Time, that certain "call option"
with respect to 301 of the shares of Investor Stock of Voxware Europe currently
held by Creafund NV.
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
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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 any 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 enforcement and no provision of this Agreement may be
amended other than by an instrument in writing signed by the Company and the
Purchasers.
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:
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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 Purchasers:
To the address set forth on Schedule 1 hereto
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 assign this Agreement or any rights or obligations hereunder without
the prior written consent of the Purchasers.
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 Purchasers.
5.10 Public Filings; Publicity. On the same day as the Company files the
Form 8-K required pursuant to Section 4.9, the Company shall issue a press
release with respect to the transactions contemplated hereby. The Company and
the Purchasers shall have the
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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 Purchasers with respect thereto shall be implemented;
provided, however, that the Company shall be entitled, without the prior
approval of the Purchasers, 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 Purchasers 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 Purchasers 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 June 30, 2003, unless the parties agree otherwise, this
Agreement shall terminate at the close of business on such date and all of the
agreements of the parties contained herein shall be null and void, except for
this Section 5.14. In the event of the termination of this Agreement, each of
the Debentures, the Creafund Shareholders Agreement and the Security Agreement
shall remain in full force and effect. 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
12
mutual intent and no rule of strict construction shall be applied against any
party to this Agreement.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
13
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
PURCHASERS:
Creafund NV
By: /s/ Dirk Haernick
-------------------------------------
Name: Dirk Haernick
Title: Managing Director
Avvision BVBA
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
/s/ Xxxxxxx Xxxxxxx, attorney-in-fact
-----------------------------------------
Eurl Val D'Ausa
/s/ Xxx Xxxxxxxx
-----------------------------------------
Xxx Xxxxxxxx
BVBA Com/2/Wizards
By: /s/ Xxx Xxxxxxxxx
-------------------------------------
Name: Xxx Xxxxxxxxx
Title: President
SCHEDULE 1
-------------------------------------------------------------
Number of
Shares of
Name and Address of Amount of Series D Stock
Purchasers Debentures Held to be Received
-------------------------------------------------------------
Creafund, NV
Xxxxxxxxxxxxxxxx 00 xxxx X
0000 Xxxxxxxxx
Xxxxxxx $213,855.93 14,679,070
-------------------------------------------------------------
Avvision XXXX
Xxxxx Xxxxxxxxxxx00,
0000 Xxxxxx
Xxxxxxx $ 38,759.69 2,660,465
-------------------------------------------------------------
BVBA Com2Wizards
Hoeve Ter Xxxxxxxx 00,
0000 Xxxxxxx
Xxxxxxx $ 7,267.44 498,837
-------------------------------------------------------------
Xxxxxxxx, Xxx
Xxxxxxxxx 00
0000 Xxxxxxxx
Xxxxxxx $ 4,844.96 332,558
-------------------------------------------------------------
Eurl Val D'Auso
4 Xxxxxx xxx Xxxxxxxxxx,
00000 Xxxxxxx Xxx
Xxxxxx $ 26,647.29 1,829,070
-------------------------------------------------------------
SCHEDULE 2
Name and Address of Purchaser: Creafund NV, Xxxxxxxxxxxxxxxx 00/X, 0000
Xxxxxxxxx, Xxxxxxx
Amount of Investor Stock held at the Effective Time : 365
Number of Shares of Series D Stock to be received :
. At the Effective Time : 16,418,912 shares;
. If Net Sales = 3,000,000 (euro) : 895,272 additional shares;
. If 3,000,000(euro)< Net Sales <= 4,000,000: max. 2,685,816 additional
shares according to formula as set forth in Section 1.2.(b); and
. If Net Sales > 4,000,000 : max. 3,986,486 additional shares according
to formula as set forth in Section 1.2.(c).
Name and Address of Purchaser: Avvision BVBA, Xxxxx Xxxxxxxxxxx 00, 0000 Xxxxxx,
Xxxxxxx
Amount of Investor Stock held at the Effective Time : 301
Number of Shares of Series D Stock to be received :
. At the Effective Time : 13,581,088 shares;
. If Net Sales = 3,000,000 (euro) : 1,604,728 additional shares;
. If 3,000,000(euro)< Net Sales <= 4,000,000: max. 4,814,184 additional
shares according to formula as set forth in Section 1.2.(b); and
. If Net Sales > 4,000,000 : max. 1,013,514 additional shares according
to formula as set forth in Section 1.2.(c).
