AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
August 11, 2005
To each of the Purchasers named in the Common Stock
Purchase Agreement of even date herewith (the
"Investors")
This will confirm that in consideration of the Investors' purchase on
the date hereof of an aggregate of 206,250,000 shares (the "Shares") of Common
Stock, $0.001 par value (the "Common Stock"), of Voxware, Inc., a Delaware
corporation (together with all of its subsidiaries, the "Company"), pursuant to
the Common Stock Purchase Agreement dated as of August 11, 2005 (the "Purchase
Agreement") between the Company and the Investors and as an inducement to the
Investors to consummate the transactions contemplated by the Purchase Agreement,
the parties hereto have agreed as follows herein. All defined terms used but not
defined herein shall have the meaning ascribed to them in the Purchase
Agreement.
WHEREAS, the Company and certain of the Investors are parties to an
Investor Rights Agreement dated as of June 27, 2003 and amended on April 30,
2004 (the "PRIOR AGREEMENT").
WHEREAS, the parties to this Agreement that are parties to the Prior
Agreement wish permanently to waive all rights pursuant to and terminate the
Prior Agreement and to enter into this Agreement, as of the date first written
above.
WHEREAS, the parties acknowledge that the Purchase Agreement contains
certain registration rights provided to the Purchasers as defined therein.
WHEREAS, the parties to this Agreement have agreed to convert the Series
D Preferred Stock (as defined in the Prior Agreement) into shares of the
Company's Common Stock pursuant to the Purchase Agreement and this Agreement.
WHEREAS, the parties to this Agreement represent the holders of a
majority in interest of the Restricted Stock (as that term is defined in the
Prior Agreement), as required for amendment or waiver of the provisions of the
Prior Agreement pursuant to Article 15(d) thereof.
NOW THEREFORE, in consideration of the mutual covenants herein contained
and other valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following
terms shall have the following respective meanings:
"AFFILIATE" means any Person who, directly or indirectly,
controls, is controlled by or is under common control with any other Person.
"BOARD OF DIRECTORS" shall mean the board of directors of the
Company as constituted from time to time.
"COMMISSION" shall mean the Securities and Exchange Commission,
or any other federal agency at the time administering the Securities Act.
"COMMON STOCK WARRANTS" shall mean the warrants to purchase
Common Stock outstanding as of the date of this Agreement.
"CONVERSION SHARES" shall mean shares of Common Stock issued or
issuable upon (i) conversion of the Series D Preferred Stock (including the
Common Stock issued or issuable upon the conversion of Series D Preferred Stock
issued or issuable upon the exercise of the Series D Warrants and (ii) the
exercise of the Common Stock Warrants.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"PERSON" or "PERSONS" shall mean an individual, corporation,
partnership, joint venture, trust, or unincorporated organization, or a
government or any agency or political subdivision thereof.
"REGISTRATION EXPENSES" shall mean the expenses so described in
Section 8.
"RESTRICTED STOCK" shall mean the Conversion Shares now or
hereafter held by the Investors, excluding Conversion Shares which (a) have been
registered under the Securities Act pursuant to an effective registration
statement filed thereunder and disposed of in accordance with the registration
statement covering them, (b) have been publicly sold pursuant to Rule 144 under
the Securities Act or (c) are then eligible for resale to the general public
pursuant to paragraph (k) of Rule 144 under the Securities Act by the Investors
and all partners and affiliates of the Investors to which such Conversion Shares
may be distributed or otherwise transferred.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"SELLING EXPENSES" shall mean the expenses so described in
Section 7.
"SERIES D WARRANTS" shall mean the warrants to purchase Series D
Preferred Stock outstanding as of the date of this Agreement.
"SUBSIDIARY" or "SUBSIDIARIES" shall mean any corporation or
trust of which the Company and/or any of its other Subsidiaries (as herein
defined) directly or indirectly owns at the time outstanding shares of every
class of such corporation or trust other than directors' qualifying shares
comprising at least fifty percent (50%) of the voting power of such corporation
or trust.
2. RESTRICTIVE LEGEND. Each certificate representing Shares or
Restricted Stock shall, except as otherwise provided in this Section 2 or in
Section 3, be stamped or otherwise imprinted with a legend substantially in the
following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE 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."
A certificate shall not bear such legend if in the opinion of counsel
satisfactory to the Company the securities represented thereby may be publicly
sold without registration under the Securities Act and any applicable state
securities laws.
3. LEGENDS WITH RESPECT TO TRANSFERS. Each certificate for Shares
or Restricted Stock transferred as above provided shall bear the legend set
forth in Section 2, except that such certificate shall not bear such legend if
(i) such transfer is in accordance with the provisions of Rule 144 (or any other
rule permitting public sale without registration under the Securities Act) or
(ii) the opinion of counsel referred to above is to the further effect that the
transferee and any subsequent transferee (other than an affiliate of the
Company) would be entitled to transfer such securities in a public sale without
registration under the Securities Act. The restrictions provided for in this
Section 3 shall not apply to securities which are not required to bear the
legend prescribed by Section 2 in accordance with the provisions of that
Section.
4. ACKNOWLEDGEMENT OF REQUIRED REGISTRATION. The parties hereto,
who were also parties to the Prior Agreement, agree and acknowledge that all
shares of Restricted Stock covered by the Prior Agreement have been registered
on Registration Statement on Form S-2 (No. 333-110501) and Registration
Statement on Form S-2 (No. 333-121291) both declared effective by the Commission
on April 8, 2005.
5. INCIDENTAL REGISTRATION. If the registration statements
identified in Section 4 are no longer current or effective, and the Company
(other than pursuant to Section 6) proposes to register any of its securities
under the Securities Act for sale to the public, whether for its own
account or for the account of other security holders or both (except with
respect to registration statements on Forms X-0, X-0 or another form not
available for registering the Restricted Stock for sale to the public), each
such time it will give written notice to all holders of outstanding Restricted
Stock of its intention so to do. Upon the written request of any such holder,
received by the Company within 30 days after the giving of any such notice by
the Company, to register any of its Restricted Stock, the Company will use its
commercially reasonable efforts to cause the Restricted Stock as to which
registration shall have been so requested to be included in the securities to be
covered by the registration statement proposed to be filed by the Company, all
to the extent requisite to permit the sale or other disposition by the holder of
such Restricted Stock so registered. In the event that any registration pursuant
to this Section 5 shall be, in whole or in part, an underwritten public offering
of Common Stock, the number of shares of Restricted Stock to be included in such
an underwriting may be reduced (PRO RATA among the requesting holders based upon
the number of shares of Restricted Stock owned by such holders) if and to the
extent that the managing underwriter shall be of the opinion that such inclusion
would adversely affect the marketing of the securities to be sold by the Company
therein, PROVIDED, HOWEVER, that such number of shares of Restricted Stock shall
not be reduced if any shares are to be included in such underwriting for the
account of any person other than the Company or requesting holders of Restricted
Stock, and PROVIDED, FURTHER, HOWEVER, that in no event may less than twenty
percent (20%) of the total number of shares of Common Stock to be included in
such underwriting be made available for shares of Restricted Stock unless the
managing underwriter shall in good faith advise the holders proposing to
distribute their securities through such underwriting that such level of
participation would, in its opinion, materially adversely affect the offering
price or its ability to complete the offering and shall specify the number of
shares of Restricted Stock which, in its opinion, can be included in the
registration and underwriting without such an effect.
6. REGISTRATION ON FORM S-2 OR FORM S-3.
(a) If the registration statements identified in Section 4
are no longer current or effective and (i) a holder or holders of Restricted
Stock request that the Company file a registration statement on Form S-2 or Form
S-3 or any successors thereto for a public offering of all or any portion of the
shares of Restricted Stock held by such requesting holder or holders, provided
that, the reasonably anticipated aggregate price to the public of such offering
must be at least $500,000 and (ii) the Company is a registrant entitled to use
Form S-2 or Form S-3 or any successors thereto to register such shares, then the
Company shall use its commercially reasonable efforts to register under the
Securities Act on Form S-2 or Form S-3 or any successors thereto, for public
sale in accordance with the method of disposition specified in such notice, the
number of shares of Restricted Stock specified in such notice.
(b) Following receipt of any notice under this Section 6,
the Company shall immediately notify all holders of Restricted Stock and Shares
from whom notice has not been received and such holders shall then be entitled
within 30 days thereafter to request the Company to include in the requested
registration all or any portion of their shares of Restricted Stock. The Company
shall use its commercially reasonable efforts to register under the Securities
Act, for public sale in accordance with the method of disposition described in
paragraph (a) above, the
number of shares of Restricted Stock specified in such notice (and in all
notices received by the Company from other holders within 30 days after the
giving of such notice by the Company).
(c) The Company shall be entitled to include in any
registration statement referred to in this Section 6 shares of Common Stock to
be sold by the Company for its own account, except as and to the extent that, in
the opinion of the managing underwriter, such inclusion would adversely affect
the marketing of the Restricted Stock to be sold. No other shares may be
included in such registration statement. Except for registration statements on
Form X-0, X-0 or any successor thereto, the Company will not file with the
Commission any other registration statement with respect to its Common Stock,
whether for its own account or that of other shareholders, from the date of
receipt of a notice from requesting holders requesting sale pursuant to an
underwritten offering pursuant to this Section 6 until the completion of the
period of distribution of the registration contemplated thereby.
(d) If in the opinion of the managing underwriter the
inclusion of all of the Restricted Stock requested to be registered under this
Section 6 would adversely affect the marketing of such shares, shares to be sold
by the holders of Restricted Stock, if any, shall be excluded only after any
shares to be sold by the Company have been excluded, in such manner that the
shares to be sold shall be allocated among the selling holders PRO RATA based on
their ownership of Restricted Stock.
(e) If at the time of any request to register Restricted
Stock pursuant to this Section 6, the Company is engaged or has plans to engage
in a registered public offering or is engaged in any other activity which, in
the good faith determination of the Board of Directors, would be adversely
affected by the requested registration, then the Company may at its option
direct that such request be delayed for a period not in excess of 60 days from
the date of such request.
7. REGISTRATION PROCEDURES. If and whenever the Company is required
by the provisions of Sections 5 or 6 to use its commercially reasonable efforts
to effect the registration of any shares of Restricted Stock under the
Securities Act, the Company will, as expeditiously as possible:
(a) prepare and file with the Commission a registration
statement with respect to such securities and use its commercially reasonable
efforts to cause such registration statement to become and remain effective for
the period of the distribution contemplated thereby (determined as hereinafter
provided);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
the period specified in paragraph (a) above and comply with the provisions of
the Securities Act with respect to the disposition of all Restricted Stock
covered by such registration statement in accordance with the sellers' intended
method of disposition set forth in such registration statement for such period;
(c) furnish to each seller of Restricted Stock and to each
underwriter such number of copies of the registration statement and the
prospectus included therein (including each preliminary prospectus) as such
persons reasonably may request in order to facilitate the public sale or other
disposition of the Restricted Stock covered by such registration statement;
(d) use its commercially reasonable efforts to register or
qualify the Restricted Stock covered by such registration statement under the
securities or "blue sky" laws of such jurisdictions as the sellers of Restricted
Stock or, in the case of an underwritten public offering, the managing
underwriter reasonably shall request, PROVIDED, HOWEVER, that the Company shall
not for any such purpose be required to qualify generally to transact business
as a foreign corporation in any jurisdiction where it is not so qualified or to
consent to general service of process in any such jurisdiction;
(e) use its commercially reasonable efforts to list the
Restricted Stock covered by such registration statement with any securities
exchange or automated quotation service on which the Common Stock of the Company
is then listed; PROVIDED, HOWEVER, that if the Common Stock of the Company is
not then listed with any securities exchange or automated quotation service,
then the Company shall use its commercially reasonable efforts to list such
Restricted Stock with whatever quotation or reporting service with which the
Common Stock of the Company is then listed;
(f) provide a transfer agent and registrar for all such
Restricted Stock, not later than the effective date of such registration
statement;
(g) immediately notify each seller of Restricted Stock and
each underwriter under such registration statement, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event of which the Company has knowledge as a
result of which the prospectus contained in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing; PROVIDED,
MOREOVER, that the Company shall use its commercially reasonable efforts to
prepare and furnish such amendments or supplements to such prospectus as may be
necessary so that, as thereafter delivered to purchases of such Restricted
Stock, such prospectus shall not include an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing;
(h) if the offering is underwritten and at the request of
any seller of Restricted Stock, use its commercially reasonable efforts to
furnish on the date that Restricted Stock is delivered to the underwriters for
sale pursuant to such registration: (i) an opinion dated such date of counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters and to such seller, and (ii) a letter
dated such date from the independent certified public accountants retained by
the Company, in form and substance as is customarily given to underwriters in an
underwritten public offering, addressed to the underwriters and to such seller;
(i) make available for inspection by each seller of
Restricted Stock, any underwriter participating in any distribution pursuant to
such registration statement, and any attorney, accountant or other agent
retained by such seller or underwriter, all financial and other records,
pertinent corporate documents and properties of the Company, and cause the
Company's officers, directors and employees to supply all information reasonably
requested by any such seller, underwriter, attorney, accountant or agent in
connection with such registration statement. The rights granted pursuant to this
subsection (h) may not be assigned or otherwise conveyed by such person or by
any subsequent transferee of any such rights without the written consent of the
Company, which consent shall not be unreasonably withheld; provided that the
Company may refuse such written consent if the proposed transferee is a
competitor of the Company as determined by the Company's Board of Directors; and
provided further, that no such written consent shall be required if the transfer
is made to a party who is not a competitor of the Company and who is a parent,
subsidiary, affiliate, partner or group member of such person;
(j) advise each selling holder of Restricted Stock, promptly
after it shall receive notice or obtain knowledge thereof, of the issuance of
any stop order by the Commission suspending the effectiveness of such
registration statement or the initiation or threatening of any proceeding for
such purpose and promptly use all reasonable efforts to prevent the issuance of
any stop order or to obtain its withdrawal if such stop order should be issued;
(k) cooperate with the selling holders of Restricted Stock
and the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Restricted Stock to be sold, such
certificates to be in such denominations and registered in such names as such
holders or the managing underwriters may request at least two business days
prior to any sale of Restricted Stock; and
(l) permit any holder of Restricted Stock which holder, in
the sole and exclusive judgment, exercised in good faith, of such holder, might
be deemed to be a controlling person of the Company, to participate in good
faith in the preparation of such registration or comparable statement and to
require the insertion therein of material, furnished to the Company in writing,
which in the reasonable judgment of such holder and its counsel should be
included, subject to review by the Company and its counsel after consultation
with such holder.
For purposes of Section 7(a) and 7(b) and of Section 6(c), the period of
distribution of Restricted Stock in a firm commitment underwritten public
offering shall be deemed to extend until each underwriter has completed the
distribution of all securities purchased by it, and the period of distribution
of Restricted Stock in any other registration shall be deemed to extend until
the earlier of the sale of all Restricted Stock covered thereby and 120 days
after the effective date thereof.
In connection with each registration hereunder, the sellers of
Restricted Stock will furnish to the Company in writing such information with
respect to themselves and the proposed distribution by them as reasonably shall
be necessary in order to assure compliance with federal and applicable state
securities laws.
In connection with each registration pursuant to Sections 5 or 6
covering an underwritten public offering, the Company and each seller agree to
enter into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement between such
underwriter and companies of the Company's size and investment stature.
8. EXPENSES. All expenses incurred by the Company in complying with
Sections 5 and 6, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel and independent
public accountants for the Company, fees and expenses (including counsel fees)
incurred in connection with complying with state securities or "blue sky" laws,
fees of the National Association of Securities Dealers, Inc., transfer taxes,
fees of transfer agents and registrars, costs of insurance, and fees and
disbursements of one counsel for the sellers of Restricted Stock, but excluding
any Selling Expenses, are called "REGISTRATION EXPENSES." All underwriting
discounts and selling commissions applicable to the sale of Restricted Stock are
called "SELLING EXPENSES."
The Company will pay all Registration Expenses in connection with each
registration statement under Sections 4, 5 or 6. All Selling Expenses in
connection with each registration statement under Sections 4, 5 or 6 shall be
borne by the participating sellers in proportion to the number of shares sold by
each, or by such participating sellers other than the Company (except to the
extent the Company shall be a seller) as they may agree.
9. INDEMNIFICATION AND CONTRIBUTION.
(a) In the event of a registration of any of the Restricted
Stock under the Securities Act pursuant to Sections 5 or 6, the Company will
indemnify and hold harmless each seller of such Restricted Stock thereunder,
each underwriter of such Restricted Stock thereunder and each other person, if
any, who controls such seller or underwriter within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which such seller, underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such Restricted Stock was
registered under the Securities Act pursuant to Sections 5 or 6, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereof, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each such seller, each
such underwriter and each such controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action, PROVIDED, HOWEVER,
that the Company will not be liable in any such case if and to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission so
made in conformity with information furnished by any such seller, any such
underwriter or any such controlling person in writing specifically for use in
such registration statement or prospectus.
(b) In the event of a registration of any of the Restricted
Stock under the Securities Act pursuant to Sections 5 or 6, each seller of such
Restricted Stock thereunder, severally and not jointly, will indemnify and hold
harmless the Company, each person, if any, who controls the Company within the
meaning of the Securities Act, each officer of the Company who signs the
registration statement, each director of the Company, each underwriter and each
person who controls any underwriter within the meaning of the Securities Act,
against all losses, claims, damages or liabilities, joint or several, to which
the Company or such officer, director, underwriter or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the registration statement under which such Restricted Stock
was registered under the Securities Act pursuant to Sections 5 or 6, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse the
Company and each such officer, director, underwriter and controlling person for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action,
PROVIDED, HOWEVER, that such seller will be liable hereunder in any such case if
and only to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in reliance upon and in conformity with information
pertaining to such seller, as such, furnished in writing to the Company by such
seller specifically for use in such registration statement or prospectus, and
PROVIDED, FURTHER, HOWEVER, that the liability of each seller hereunder shall be
limited to the proportion of any such loss, claim, damage, liability or expense
which is equal to the proportion that the public offering price of the shares
sold by such seller under such registration statement bears to the total public
offering price of all securities sold thereunder, but not in any event to exceed
the net proceeds received by such seller from the sale of Restricted Stock
covered by such registration statement.
(c) Promptly after receipt by an indemnified party hereunder
of notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to such indemnified party other than under this Section 9 and shall only relieve
it from any liability which it may have to such indemnified party under this
Section 9 if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel reasonably
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 9 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected, PROVIDED,
HOWEVER, that, if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be reasonable defenses available to it which are different from
or additional to those available to the indemnifying party or if the interests
of the indemnified party reasonably may be deemed to conflict with the interests
of the indemnifying party, the indemnified party shall have the right to select
a separate counsel and to assume such legal defenses and otherwise to
participate in the defense of such action, with the expenses and fees of such
separate counsel and other expenses related to such participation to be
reimbursed by the indemnifying party as incurred.
(d) In order to provide for just and equitable contribution
to joint liability under the Securities Act in any case in which either (i) any
holder of Restricted Stock exercising rights under this Agreement, or any
controlling person of any such holder, makes a claim for indemnification
pursuant to this Section 9 but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and the expiration
of time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this Section 9 provides for indemnification in such case, or (ii) contribution
under the Securities Act may be required on the part of any such selling holder
or any such controlling person in circumstances for which indemnification is
provided under this Section 9; then, and in each such case, the Company and such
holder will contribute to the aggregate losses, claims, damages or liabilities
to which they may be subject (after contribution from others) in such proportion
so that such holder is responsible for the portion represented by the percentage
that the public offering price of its Restricted Stock offered by the
registration statement bears to the public offering price of all securities
offered by such registration statement, and the Company is responsible for the
remaining portion; PROVIDED, HOWEVER, that, in any such case, (A) no such holder
will be required to contribute any amount in excess of the public offering price
of all such Restricted Stock offered by it pursuant to such registration
statement; and (B) no person or entity guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person or entity who was not guilty of such fraudulent
misrepresentation.
10. CHANGES IN COMMON STOCK. If, and as often as, there is any
change in the Common Stock by way of a conversion, including but not limited to
(as contemplated by the Purchase Agreement), stock split, stock dividend,
combination or reclassification, or through a merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions hereof so that the rights and
privileges granted hereby shall continue with respect to the Common Stock as so
changed.
11. RULE 144 REPORTING. With a view to making available the benefits
of certain rules and regulations of the Commission which, among other benefits,
may at any time permit the sale of the Restricted Stock to the public without
registration, at all times after 90 days after any registration statement
covering a public offering of securities of the Company under the Securities Act
shall have become effective, the Company agrees to:
(a) make and keep public information available, as those
terms are understood and defined in Rule 144 under the Securities Act;
(b) use its commercially reasonable efforts to file with the
Commission in a timely manner all reports and other documents required of the
Company under the Securities Act and the Exchange Act; and
(c) furnish to each holder of Restricted Stock forthwith
upon request a written statement by the Company as to its compliance with the
reporting requirements of such Rule 144 and of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed by the Company as such
holder may reasonably request in availing itself of any rule or regulation of
the Commission allowing such holder to sell any Restricted Stock without
registration.
12. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to you as follows:
(a) The execution, delivery and performance of this
Agreement by the Company have been duly authorized by all requisite corporate
action and will not violate any material provision of law, any order of any
court or other agency of government, the Amended and Restated Certificate of
Incorporation or Bylaws, as amended, of the Company or any provision of any
material indenture, agreement or other instrument to which it or any or its
properties or assets is bound, conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument or result in the creation or imposition
of any lien, charge or encumbrance of any nature whatsoever upon any of the
properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by
the Company and constitutes the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally or by general equitable principles.
13. MISCELLANEOUS.
(a) All covenants and agreements contained in this Agreement
by or on behalf of any of the parties hereto shall bind and inure to the benefit
of the respective successors and assigns of the parties hereto (including
without limitation transferees of any Shares or Restricted Stock), whether so
expressed or not, PROVIDED, HOWEVER, that registration rights conferred herein
on the holders of Conversion Shares or Restricted Stock shall only inure to the
benefit of a transferee of Shares, Conversion Shares or Restricted Stock if (i)
there is transferred to such transferee at least 25,000,000 shares of Restricted
Stock originally issued pursuant to the Purchase Agreement to the direct or
indirect transferor of such transferee or (ii) such transferee is a partner,
shareholder or affiliate of a party hereto.
(b) All notices, requests, consents and other communications
hereunder shall be in writing and shall be delivered in person, mailed by
certified or registered mail, return receipt requested, or sent by telecopier or
telex, addressed as follows:
if to the Company or any other party hereto, at the address of
such party set forth in the Purchase Agreement;
if to any subsequent holder of Conversion Shares or Restricted
Stock, to it at such address as may have been furnished to the Company in
writing by such holder;
or, in any case, at such other address or addresses as shall have been furnished
in writing to the Company (in the case of a holder of Conversion Shares or
Restricted Stock) or to the holders of Conversion Shares or Restricted Stock (in
the case of the Company) in accordance with the provisions of this paragraph.
(c) This Agreement shall be governed by and construed in
accordance with the General Corporation Law of the State of Delaware as to
matters within the scope thereof, and as to all other matters shall be governed
by and construed in accordance with the internal laws of the State of New
Jersey, without regard to its principles of conflicts of laws.
(d) This Agreement may not be amended or modified, and no
provision hereof may be waived, without the written consent of the Company and
the holders of at least a majority in interest of the Restricted Stock.
(e) 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.
(f) If requested in writing by the underwriters for an
underwritten public offering of securities of the Company, each holder of
Restricted Stock who is a party to this Agreement shall agree not to sell
publicly any shares of Restricted Stock or any other shares of Common Stock
(other than shares of Restricted Stock or other shares of Common Stock being
registered in such offering), without the consent of such underwriters, for a
period not to exceed 180 days following the effective date of the registration
statement relating to such offering; PROVIDED, HOWEVER, that all persons
entitled to registration rights with respect to shares of Common Stock who are
not parties to this Agreement, all other persons selling shares of Common Stock
in such offering, all persons holding in excess of 1% of the capital stock of
the Company on a fully diluted basis and all executive officers and directors of
the Company shall also have agreed not to sell publicly their Common Stock under
the circumstances and pursuant to the terms set forth in this Section 13(g); and
PROVIDED, FURTHER, HOWEVER, that any such lock-up agreement shall provide that
if the managing underwriter releases any shares from the lock-up with respect to
such offering prior to the scheduled expiration date, the managing underwriter
shall contemporaneously release a PRO RATA portion of the Restricted Stock from
such lock-up.
(g) Notwithstanding the provisions of Section 7(a), the
Company's obligation to file a registration statement, or cause such
registration statement to become and remain effective, shall be suspended for a
period not to exceed 90 days in any 12-month period if there exists at the time
material non-public information relating to the Company which, in the reasonable
opinion of the Company, should not be disclosed.
(h) The Company shall not grant to any third party any
registration rights more favorable than or inconsistent with any of those
contained herein, so long as any of the registration rights under this Agreement
remains in effect; PROVIDED, HOWEVER, that the Company may grant to a third
party piggy-back registration rights upon the approval of such grant by the
unanimous consent of the Board of Directors of the Company.
(i) If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
(j) The parties hereto agree and acknowledge that the terms
and provisions of the Prior Agreement are hereby terminated and shall have no
further force or effect and are superseded in their entirety by this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
Please indicate your acceptance of the foregoing by signing and
returning the enclosed counterpart of this letter, whereupon this Agreement
shall be a binding agreement between the Company and you.
Very truly yours,
THE COMPANY:
Voxware, Inc.
By:________________________________
Name:__________________________
Title:_________________________
000 Xxxxxxxx Xxxxxx Xxxx
Xxxxxxxxxxxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
AGREED TO AND ACCEPTED as of the date first above written.
EDISON VENTURE FUND V, L.P. CROSS ATLANTIC TECHNOLOGY FUND II, L.P.
By: EDISON PARTNERS V, L.P., By: XATF Management II, LP, its General
its General Partner Partner,
By: Cross Atlantic Capital Partners II,
Inc., its General Partner
By:________________________________
Name:__________________________ By:________________________________
Title:_________________________ Name:__________________________
Title:_________________________
0000 Xxxxx Xxxxx #0
Xxxxxxxxxxxxx, Xxx Xxxxxx 00000 Five Xxxxxx Xxxxxxxxx Xxxxxx, Xxxxx 000
Telephone: (000) 000-0000 000 Xxxxxxxxxx Xxxx
Fax: (000) 000-0000 Xxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
--------------------------------------- --------------------------------------
Xxxxxxxx Xxxxxxxx Xxxxxx Xxxxxxx
Address: 00 Xxxxxxx Xxxx Xxxx Address: 00 Xxxxx Xxx
------------------------------ -----------------------------
Address: Xxxxxx, XX 00000 Address: Xxxxxx, XX 00000
------------------------------ -----------------------------
Telephone: (000) 000-0000 Telephone: (000) 000-0000
---------------------------- ---------------------------
Fax: Fax: [(000) 000-0000]
---------------------------------- ----------------------------------
---------------------------------------
XXXXXXX X XXXXXXXX BURNBRAE LTD.
Address:
------------------------------ By:
Address: --------------------------------
------------------------------ Name:
Telephone: ---------------------------
---------------------------- Title:
Fax: --------------------------
----------------------------------
Address: Xxxxx Xxxx, 00 Xxxxx Xxxxxxxx
-----------------------------
Address: Xxxxxxx Xxxx xx Xxx, 0X0 0XX
-----------------------------
Telephone: (00) 0000 000 000
---------------------------
Fax: (00) 0000 000 000
----------------------------------
--------------------------------------- --------------------------------------
Xxxxxxx X. X. Xxxxxx Xxxxxxx Xxxxxxxx
Address: 00 Xxxxxxx Xxxxxx #500 Address: 0000 Xxxxxxx Xxxxxx
------------------------------ -----------------------------
Address: Xxxxxxxxx, X.X. 00000 Address: Xxxxxxxx, XX 00000
------------------------------ -----------------------------
Telephone: (000) 000-0000 Telephone: (000) 000-0000
---------------------------- ---------------------------
Fax: (000) 000-0000 Fax: (000) 000-0000
---------------------------------- ----------------------------------
--------------------------------------- INTERCONTINENTAL SERVICES LTD.
JUERGEN X. X. XXXXXXXXXX
Address: 000 Xxxxx Xxxxxx
------------------------------ By:
Address: Xxxxxxxx, XX 00000 --------------------------------
------------------------------ Name:
Telephone: (000) 000-0000 ---------------------------
---------------------------- Title:
Fax: --------------------------
----------------------------------
Address: X.X. Xxx 000, 00 Xxxxxxxxx
Xxxxx
-----------------------------
Address: Bath Street
-----------------------------
Address: St. Helier Jersey UK JE2 4 SU
-----------------------------
Telephone: (44) 000-000 0000
---------------------------
Fax: (00) 000-000-0000
----------------------------------
--------------------------------------- X X XXXXXXXX LLC
XXXXXX X. XXXXX
Address: 000 Xxxxxxx Xxxx
------------------------------ By:
Address: Xxxxx, XX 00000 --------------------------------
------------------------------ Name: Xxxx X. Xxxxxxxx
Telephone: (000) 000-0000 ---------------------------
---------------------------- Title: Mgr
Fax: --------------------------
----------------------------------
Address: XX XXX 00000
-----------------------------
Address: Xxxxxxx, XX 00000
-----------------------------
Telephone: (000) 000-0000
---------------------------
Fax: (000) 000-0000
----------------------------------
PICTET PRIVATE EQUITY INVESTORS SA
---------------------------------------
XXXXX X. XXXX
By:
-------------------------------- Address: 000 Xxxxxxxxxxxxx Xxxxxx
Name: ------------------------------
--------------------------- Address: Xxxxxxxxx, XX 00000
Title: ------------------------------
-------------------------- Telephone: (000) 000-0000
----------------------------
Fax: (000) 000-0000
Address: Pictet & Cie ----------------------------------
-----------------------------
Address: Xxx Xxxxxxx-Xxxxxx, 0
-----------------------------
Xxxxxxx: XX 0000 Xxxxxx, Xxxxxxxxxxx
-----------------------------
Telephone: (41) 00-000 0000
---------------------------
Fax: (41) 58 -323 2050
----------------------------------
---------------------------------------
XXXXXXXX M. N. BINDER
--------------------------------------
Address: XXXXXXXX XXXXXX
------------------------------
Address: Address: 00 Xxxxxxx Xxxxxx Xxx
------------------------------ -----------------------------
Telephone: Address: Xxxxxxxxxx, XX 00000
---------------------------- -----------------------------
Fax: Telephone: (000) 000-0000
---------------------------------- ---------------------------
Fax:
----------------------------------
--------------------------------------- --------------------------------------
XXXXXX XXXXXX XXXXXX X. XXXXXXXX
Address: 00 Xxxxxxxxxx Xxxx Address: 4 Block Court
------------------------------ -----------------------------
Address: Xxxxxxxxx, XX 00000 Address: Xxxxxxxx, XX 00000
------------------------------ -----------------------------
Telephone: (000) 000-0000 Telephone: (000) 000-0000
---------------------------- ---------------------------
Fax: (000) 000-0000 Fax:
---------------------------------- ----------------------------------
--------------------------------------- --------------------------------------
XXXXXXX X XXXXXX XXXXXX X. XXXXXX
Address: 0000 Xxxxxxx Xxx Address: 000 Xxxxxxxx Xxxx
------------------------------ -----------------------------
Address: Xxxxxxxx, XX 00000 Address: Xxxxx, XX 00000
------------------------------ -----------------------------
Telephone: (000) 000-0000 Telephone: (000) 000-0000
---------------------------- ---------------------------
Fax: (000) 000-0000 Fax:
---------------------------------- ----------------------------------
CREAFUND MANAGEMENT NV CASTLE CREEK TECHNOLOGY PARTNERS LLC
By:
---------------------------------
Name:
By: ----------------------------
--------------------------------- Title:
Name: ---------------------------
----------------------------
Title: Address: 000 X. Xxxxxxx Xxxx., Xxx.
0000
--------------------------- -----------------------------
Address: Xxxxxxx, XX 00000
Address: Xxxxxxxx Xxxxxxxxxxxxxx 00 B ------------------------------
------------------------------ Telephone: (000) 000-0000
Address: X-0000 Xxxx-Xxxxxxx-Xxxxx ----------------------------
------------------------------ Fax:
Address: Belgium -----------------------------------
------------------------------
Telephone: (32) 00-000 000
---------------------------
Fax:
----------------------------------
--------------------------------------- --------------------------------------
XXX XXXXXXXX EMILIE ELISE XXXXXXXXX VAN CUTSEM
Address: Xxxxxxxxx 00 Address: Hilborough House
------------------------------ -----------------------------
Address: X-0000 Xxxxxxxx, Xxxxxxx Address: Thetford, Norfolk 1P26 5BQ
------------------------------ -----------------------------
Telephone: (32) 00-00 0000 Address: England
---------------------------- -----------------------------
Fax: Telephone: (00) 0000-000 586
---------------------------------- ---------------------------
Fax: (00) 0000-000 587
----------------------------------
WILLBRO NOMINEES LIMITED
AVVISION BVBA By:
----------------------------------
By: Name:
--------------------------------- ----------------------------
Name: Title:
---------------------------- ---------------------------
Title:
--------------------------- Address: P O Box 515, 6 Broadgate
------------------------------
Address: Xxxxxx XX0X 0XX Xxxxxxx
Address: Xxxxx Xxxxxxxxxxx 00 -----------------------------
------------------------------ Telephone: (44) 000-000 0000
Address: 8210 Loppem, Belgium ----------------------------
------------------------------ Fax: (44) 000-000 0000
Telephone: (32) 000-00 0000 -----------------------------------
----------------------------
Fax: (32) 00-000 000
-----------------------------------
SCORPION NOMINEES (BVI) LIMITED
---------------------------------------
XXXX XXXXXXX XXXXXX VAN CUTSEM By:
----------------------------------
Address: Hilborough House Name:
------------------------------ ----------------------------
Address: Thetford, Norfolk 1P26 5BQ Title:
------------------------------ ---------------------------
Address: England
------------------------------ Address: 00 Xxxx Xx., Xxxxxx Xxxxxxxx
Telephone: (00) 0000-000 586 ------------------------------
---------------------------- Address: Xxxxxxxx, XX00, Bermuda
Fax: (00) 0000-000 587 ------------------------------
---------------------------------- Telephone: (000) 000 0000
-----------------------------
Fax: (000) 000 0000
-----------------------------------
---------------------------------------
XXXXXX XXXX XXXXX XXXXXXXXXXXX
Address: 00 Xxx Xxxx Xxxx
------------------------------
Address: Xxxxxxx Xxxxxx Xx0 0XX Englad
------------------------------
Telephone:
----------------------------
Fax:
----------------------------------
---------------------------------------
XXXX XXXX
Address: 00 Xxx Xxxxxxxxxx Xxxxxx
------------------------------
Address: Xxxxxx X0X 0XX, XX
------------------------------
Telephone:
----------------------------
Fax:
----------------------------------
PRODUCTIVE NOMINEES LIMITED
By:
----------------------------------
Name:
----------------------------
Title:
---------------------------
Address:
------------------------------
Address:
-----------------------------
Telephone:
----------------------------
Fax:
-----------------------------------
