EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), is made as of August
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15, 2000, by and among VOXWARE, Inc., a Delaware corporation (the "Company"),
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with principal executive office located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, and the undersigned (the " Purchaser").
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RECITALS
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A. In connection with the Securities Purchase Agreement dated as of
August 10, 2000 by and between the Company and the Purchaser (the "Securities
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Purchase Agreement"), the Company has agreed, upon the terms and subject to the
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conditions contained therein, to issue and sell to the Purchaser (i) an amount
of the Company's Series A Convertible Preferred Stock (the "Preferred Stock")
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which is convertible into shares of the Company's Common Stock, $0.001 par value
(the "Common Stock") and (ii) a warrant (the "Common Stock Warrant") entitling
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the holder thereof to purchase the number of shares (the "Warrant Shares") of
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Common Stock as set forth therein. The shares of Common Stock issuable upon
conversion of or otherwise pursuant to the Preferred Stock are referred to
herein as the "Conversion Shares." The Preferred Stock, the Common Stock
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Warrants, the Conversion Shares and the Warrant Shares are collectively referred
to herein as the "Securities".
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B. To induce the Purchaser to execute and deliver the Securities Purchase
Agreement, the Company has agreed to provide certain registration rights under
the Securities Act of 1933, as amended, and the rules and regulations
thereunder, or any similar successor statute (collectively, the "Securities
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Act"), and applicable state securities laws.
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AGREEMENTS
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NOW THEREFORE, in consideration of the premises and the mutual covenants
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
DEFINITIONS
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1.1 Definitions. As used in this Agreement, the following terms shall
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have the following meanings:
(a) "Holder" means the Purchaser and any transferees or assignees who
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agree to become bound by the provisions of this Agreement in accordance with
Article IX hereof.
(b) "register," "registered," and "registration" refer to a
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registration effected by preparing and filing a Registration Statement or
Statements in compliance with the Securities Act and pursuant to Rule 415 under
the Securities Act or any successor rule providing for offering securities on a
continuous basis ("Rule 415"), and the declaration or ordering of effectiveness
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of such Registration Statement by the United States Securities and Exchange
Commission (the "SEC").
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(c) "Registrable Securities" means the Conversion Shares (including
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any Conversion Shares issuable with respect to dividends or other payments under
the terms of the Preferred Stock and the Securities Purchase Agreement) issued
or issuable with respect to the Preferred Stock, the Warrant Shares (without
regard to any limitations on conversion or exercise) and any shares of capital
stock or other securities issued or issuable, from time to time (with any
adjustments), on or in exchange for or otherwise with respect to the Common
Stock or any other Registrable Securities.
(d) "Registration Statement" means a registration statement of the
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Company under the Securities Act pursuant to the provisions of this Agreement.
1.2 Capitalized Terms. Capitalized terms used herein and not otherwise
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defined herein shall have the respective meanings set forth in the Securities
Purchase Agreement.
ARTICLE II
REGISTRATION
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2.1 Mandatory Registration. The Company shall prepare and file as soon as
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practicable, but in any event on or prior to August 31, 2000 (the "Filing
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Deadline") with the SEC a Registration Statement on Form S-3 covering the resale
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of all of the Registrable Securities issuable upon full conversion of the
Preferred Stock and full exercise of the Common Stock Warrant purchased and sold
at the Closing, without regard to any limitation on any conversion or exercise,
provided that, for purposes of the initial filing of such Registration
Statement, the amount registered shall equal the sum of (i) the number of
shares of Common Stock constituting the Exchange Cap (as defined in the
Certificate of Designations governing the Preferred Stock) and (ii) the number
of shares of Common Stock initially issuable upon exercise of the Common Stock
Warrant (in each case, without regard to any limitations upon exercise or
conversion thereupon). The Registration Statement may also register the resale
of (i) 325,000 shares of Common Stock held by or issuable to Inroad, Inc. in
connection with the Inroad Acquisition (as defined in the Securities Purchase
Agreement) and (ii) 50,000 shares of Common Stock issuable to Stratos Product
Development, LLC pursuant to the Stratos Warrants (as defined in the Securities
Purchase Agreement), to the extent that Inroad, Inc. and Stratos Product
Development, LLC are currently entitled to require the Company to register their
shares of Common Stock pursuant to a registration rights agreement. The
Registration Statement (and each amendment or supplement thereto, and each
request for acceleration of effectiveness
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thereof) shall be provided to the Holders and their counsel for review prior to
filing. If the Holders and their counsel do not approve such documents within
five (5) Business Days, the Registration Deadline (as set forth in Section 2.3)
shall be extended by the number of Business Days that elapse after the fifth
Business Day following the submission of such documents to the Holders and their
counsel for review and before such approval is granted. The Company shall also
prepare and file such amendments to registration statements and such additional
registration statements as may from time to time be required by this Agreement.
If the Registration Statement is not filed by the Filing Deadline, the Company
shall thereafter continue to use its best efforts to cause such Registration
Statement to be filed as promptly as practicable.
2.2 Underwritten Offering. If any offering pursuant to a Registration
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Statement pursuant to Section 2.1 hereof involves an underwritten offering, the
Holders of a majority of the Registrable Shares to be registered pursuant to
such Registration Statement shall have the right to select legal counsel to
represent it and an investment banker or bankers and manager or managers to
administer the offering, which investment banker or bankers or manager or
managers shall be reasonably satisfactory to the Company.
2.3 Payments by the Company. The Company shall use its best efforts to
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cause each Registration Statement required to be filed pursuant to Section 2.1
hereof to become effective as soon as practicable, but in no event later than
the ninetieth (90th) day (one hundred twenty (120) days if reviewed in writing
by the SEC) following the Closing Date. If such Registration Statement is not
effective by the 90th day (or 120th day, if applicable) following the Closing
Date, the Company shall thereafter continue to use its best efforts to cause
such Registration Statement to become effective as soon as practicable. If a
Registration Statement covering the Registrable Securities required to be filed
by the Company pursuant to Section 2.1 hereof is not filed with the SEC on or
before the Filing Deadline or declared effective by the SEC on or before the
applicable Registration Deadline (as defined herein) (a "Registration Failure"),
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or if after such Registration Statement has been declared effective by the SEC,
sales of all the Registrable Securities covered thereby cannot be made pursuant
to such Registration Statement (by reason of a stop order, the Company's failure
to update the registration statement, the failure of any post-effective
amendment to the registration statement to be promptly declared effective or any
other reason outside the control of the Holders) (a "Registration Suspension"),
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then the Company will make payments to the Holders in such amounts and at such
times as shall be determined pursuant to this Section 2.3 as partial relief for
the damages to the Holders by reason of any such delay in or reduction of their
ability to sell the Registrable Securities (which remedy shall not be exclusive
of any other remedies available at law or in equity). For purposes hereof, the
"Registration Deadline" shall mean the ninetieth (90th) day following the
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Closing Date or, if the SEC reviews such Registration Statement, the one hundred
twentieth (120th) day following the Closing Date. In the event of a
Registration Failure occasioned by the failure to file the Registration
Statement (or, if applicable an amendment thereto) required to be filed pursuant
to Section 2.1 or Section 3.2 on or before the Filing Deadline (or, if
applicable, the Additional Filing Deadline) the Company shall pay the Holders an
amount equal to (A) the Multiplier (as defined) times (B) the Funded Amount (as
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defined below) times (C) the number of months (prorated per day for partial
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months) following the Filing Deadline (or, if applicable, the Additional Filing
Deadline) and
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prior to the date the applicable Registration Statement required (or, if
applicable, amendment thereto) is filed with the SEC. In the event of a
Registration Failure occasioned by the failure of the Registration Statement to
be declared effective by the SEC on or before the applicable Registration
Deadline, the Company shall pay to the Holders an amount equal to (D) the
Multiplier times (E) the Funded Amount times (F) the number of months (prorated
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per day for partial months) following the applicable Registration Deadline and
prior to the date the applicable Registration Statement (or, if applicable,
amendment thereto) is declared effective by the SEC. In addition, in the event
of a Registration Suspension, the Company shall pay to the Holders an amount
equal to (G) the Multiplier times (H) the Funded Amount times (i) the number of
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months (prorated per day for partial months) from (x) the date on which sales of
all the Registrable Securities first cannot be made to (y) the date on which
sales of all such Registrable Securities can again be made. Amounts to be paid
pursuant to this Section 2.3 shall be paid pro rata to Holders based upon the
number of Conversion Shares and Warrant Shares owned by them (including, for
these purposes, Conversion Shares issuable upon full conversion of the Preferred
Stock and Warrant Shares issuable upon full exercise of the Warrant by each
Holder, in each case without regard to any limitations upon exercise and
conversion contained therein) and shall be paid in cash. Such payments shall
be made within five (5) days after the end of each period that gives rise to
such obligation, provided that, if any such period extends for more than thirty
(30) days, payments shall be made for each such thirty (30) day period within
five (5) days after the end of such thirty (30) day period. For any given date
the "Multiplier" shall mean, (i) during the first thirty (30) days following the
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Filing Deadline, Additional Filing Deadline and/or the Registration Deadline, as
applicable, during which there is a Registration Failure or Registration
Suspension, one percent (1%),(ii) during the second thirty (30) days following
the applicable Registration Failure, one and one-half per cent (1-1/2 %); and
(iii) after the sixtieth (60) day of a Registration Failure or Registration
Suspension, two percent (2%). With respect to any given Registration Statement,
the "Funded Amount" means the aggregate purchase price of the Preferred Stock
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and the Warrant relating to the Common Stock registered (or to be registered) on
such Registration Statement.
2.4 Piggy-Back Registrations. If at any time prior to the expiration of
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the Registration Period (as hereinafter defined) the Company shall file with the
SEC a Registration Statement relating to an offering for its own account or the
account of others under the Securities Act of any of its equity securities
(other than on Form S-4 or Form S-8 or their then equivalents relating to equity
securities to be issued solely in connection with any acquisition of any entity
or business or equity securities issuable in connection with stock option or
other employee benefit plans), then the Company shall send to the Holders
written notice of such determination and, if within fifteen (15) days after the
date of such notice, the Holders shall so request in writing, the Company shall
include in such Registration Statement all or any part of the Registrable
Securities such Holder requests to be registered, except that if, in connection
with any underwritten public offering for the account of the Company the
managing underwriter(s) thereof shall impose a limitation on the number of
shares of Common Stock which may be included in the Registration Statement
because, in such underwriter(s)' judgment, marketing or other factors dictate
such limitation is necessary to facilitate public distribution, then the Company
shall be obligated to include in such Registration Statement only such limited
portion of the Registrable Securities with respect to which the Holders has
requested inclusion hereunder as the underwriter shall permit. Any exclusion of
Registrable Securities
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shall be made pro rata among the Holders seeking to include Registrable
Securities, in proportion to the number of Registrable Securities sought to be
included by such Holder; provided, however, that the Company shall not exclude
any Registrable Securities unless the Company has first excluded all outstanding
securities, the holders of which are not entitled to inclusion of such
securities in such Registration Statement or are not entitled to pro rata
inclusion with the Registrable Securities; and provided, further, however, that,
after giving effect to the immediately preceding proviso, any exclusion of
Registrable Securities shall be made pro rata with holders of other securities
having the right to include such securities in the Registration Statement. No
right to registration of Registrable Securities under this Section 2.4 shall be
construed to limit any registration required under Section 2.1 or 3.2 hereof. If
an offering in connection with which a Holder is entitled to registration under
this Section 2.4 is an underwritten offering, then each Holder whose Registrable
Securities are included in such Registration Statement shall, unless otherwise
agreed by the Company, offer and sell such Registrable Securities in an
underwritten offering using the same underwriter or underwriters and, subject to
the provisions of this Agreement, on the same terms and conditions as other
shares of Common Stock included in such underwritten offering. So long as any
other Registration Statement is effective and immediately available for use so
that all of the Registrable Securities may be sold in reliance thereon, the
provisions of this Section shall not apply.
2.5 Eligibility for Form S-3. The Company represents and warrants that it
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is currently eligible to register the resale of the Conversion Shares, Warrant
Shares and all Registrable Securities by the Holders on a Registration Statement
on Forms S-3 under the Securities Act for the account of Holders (and not for or
on behalf of Company). The Company shall file all reports required to be filed
by the Company with the SEC in a timely manner and take all other actions which
may be required so as to maintain such eligibility for the use of Forms S-3.
ARTICLE III
OBLIGATIONS OF THE COMPANY
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In connection with the registration of the Registrable Securities, the
Company shall have the following obligations, including with respect to each
Registration Statement required to be filed hereunder:
3.1 The Company shall prepare promptly and file with the SEC the
Registration Statement required by Section 2.1, and cause such Registration
Statement relating to Registrable Securities to become effective as soon as
practicable after such filing, and keep the Registration Statement effective
pursuant to Rule 415 and immediately available for use at all times until such
date as is the earlier of (i) the date on which all of the Registrable
Securities have been sold (and no further Registrable Securities may be issued
in the future) and (ii) the date on which all of the Registrable Securities (in
the reasonable opinion of counsel to the Holders) may be immediately sold to the
public without registration and without restriction as to the number of
Registrable Securities to be sold pursuant to Rule 144 (k) or any successor
provision (the "Registration Period"). The Registration Statement (including
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any amendments or supplements thereto and prospectuses contained therein and all
documents incorporated by reference therein) shall not contain any untrue
statement of a material
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fact or omit to state a material fact required to be stated therein, or
necessary to make the statements therein not misleading.
3.2 The Company shall prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to a Registration
Statement and the prospectus used in connection with the Registration Statement
as may be necessary to keep the Registration Statement effective and immediately
available for use at all times during the Registration Period, and, during such
period, comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities of the Company covered by the
Registration Statement until the termination of the Registration Period or, if
earlier, such time as all of such Registrable Securities have been disposed of
in accordance with the intended methods of disposition by the seller or sellers
thereof as set forth in the Registration Statement. In the event the number of
shares available under a Registration Statement filed pursuant to this Agreement
is, at any time, insufficient to cover one hundred seventy-five percent (175%)
of the Registrable Securities issued or issuable upon conversion of the
Preferred Stock and upon exercise of the Warrant (in each case, without giving
effect to any limitation on conversion or exercise thereof) held by any Holder
and required to be covered by such Registration Statement pursuant to Section
2.1 or Section 3.2 hereof, the Company shall amend, if permissible, the
Registration Statement, or file a new Registration Statement (on the short form
available therefor, if applicable), or both, so as to cover two hundred percent
(200%) of the Registrable Securities issued or issuable to such Holder upon such
exercise or conversion (in each case, without giving effect to any limitation on
conversion or exercise thereof), in each case, as soon as practicable, but in
any event within five (5) days (the "Additional Filing Deadline"). The Company
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shall cause such amendment and/or new Registration Statement to become effective
as soon as practicable following the filing thereof, but in any event within ten
(10) Business Days with respect to an amendment and ten (10) Business Days with
respect to a new Registration Statement (or within 75 days after the filing of
such amendment or new Registration Statement, if reviewed in writing by the SEC)
(each such deadline also being a "Registration Deadline").
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3.3 The Company shall furnish to each Holder whose Registrable Securities
are included in the Registration Statement and its legal counsel (a) promptly
after the same is prepared and publicly distributed, filed with the SEC, or
received by the Company, one copy of the Registration Statement and any
amendment thereto, each preliminary prospectus and prospectus and each amendment
or supplement thereto, and, in the case of the Registration Statement referred
to in Section 2.1, each letter written by or on behalf of the Company to the SEC
or the staff of the SEC, and each item of correspondence from the SEC or the
staff of the SEC, in each case relating to such Registration Statement (other
than any portion, if any, thereof which contains information for which the
Company has sought confidential treatment), and (b) such number of copies of a
prospectus, including a preliminary prospectus, and all amendments and
supplements thereto and such other documents as such Holder may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned (or to be owned) by such Holder.
3.4 The Company shall (a) register and qualify the Registrable Securities
covered by the Registration Statement under securities laws of such
jurisdictions in the United States as each Holder
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who holds (or has the right to hold) Registrable Securities being offered
reasonably requests, (b) prepare and file in those jurisdictions such amendments
(including post-effective amendments) and supplements to such registrations and
qualifications as may be necessary to maintain the effectiveness thereof and
availability for use during the Registration Period, (c) take such other actions
as may be necessary to maintain such registrations and qualifications in effect
at all times during the Registration Period, and (d) take all other actions
reasonably necessary or advisable to qualify the Registrable Securities for sale
in such jurisdictions; provided, however, that the Company shall not be required
in connection therewith or as a condition thereto to (i) qualify to do business
in any jurisdiction where it would not otherwise be required to qualify but for
this Section 3.4, (ii) subject itself to general taxation in any such
jurisdiction, (iii) file a general consent to service of process in any such
jurisdiction, (iv) make any change in its charter or by-laws, which in each case
the board of directors of the Company determines to be contrary to the best
interests of the Company and its stockholders.
3.5 In the event the Holders in an offering pursuant to a Registration
Statement or any amendment or supplement thereto under Section 2.1 or Section
3.2 hereof elect underwriters for the offering, as provided in Section 2.2
hereof, the Company shall enter into and perform its obligations under an
underwriting agreement, in usual and customary form, including, without
limitation, customary indemnification and contribution obligations, with the
underwriters of such offering.
3.6 As soon as practicable after becoming aware of such event, the Company
shall notify (by telephone and also by facsimile and reputable overnight
courier) each Holder of the happening of any event, of which the Company has
knowledge, as a result of which the prospectus included in the Registration
Statement, as then in effect, includes an untrue statement of a material fact or
omission to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and use its best efforts as soon as
possible (but in any event within five (5) days) to prepare a supplement or
amendment to the Registration Statement (and make all required filings with the
SEC) to correct such untrue statement or omission, and the Company shall
simultaneously (and thereafter as requested) deliver such number of copies of
such supplement or amendment (or other applicable document) to each Holder as
such Holder may request in writing.
3.7 The Company shall use commercially reasonable efforts to prevent the
issuance of any stop order or other suspension of effectiveness of a
Registration Statement, and, if such an order is issued, to obtain the
withdrawal of such order at the earliest practicable time and the Company shall
immediately notify by facsimile each Holder (at the facsimile number for such
Holder set forth on the signature page hereto) who holds Registrable Securities
being sold (or, in the event of an underwritten offering, the managing
underwriters) of the issuance of such order and the resolution thereof.
3.8 The Company shall make generally available to its security holders as
soon as practical, but not later than ninety (90) days after the close of the
period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 under the Securities Act) covering a twelve-month period
beginning not later than the first day of the Company's fiscal quarter next
following the effective date of the Registration Statement.
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3.9 At the request of any Holder, the Company shall furnish, on the date
of effectiveness of the Registration Statement and thereafter from time to time
on such dates as a Holder may reasonably request (a) an opinion, dated as of
such applicable date, from counsel representing the Company addressed to the
Holder and in form, scope and substance as is customarily given in an
underwritten public offering and (b) a letter, dated as of such applicable date,
from the Company's independent certified public accountants addressed to the
Holder and in form, scope and substance as customarily given to underwriters in
an underwritten public offering.
3.10 The Company shall make available for inspection by (i) any Holder,
(ii) any underwriter participating in any disposition pursuant to the
Registration Statement, (iii) attorneys and accountants retained by any Holder,
and (iv) attorneys retained by such underwriters (collectively, the
"Inspectors") all pertinent financial and other records, and pertinent corporate
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documents and properties of the Company (collectively, the "Records"), as shall
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be reasonably deemed necessary by each Inspector and cause the Company's
officers, directors and employees to supply all information which any Inspector
may reasonably request; provided, however, that each Inspector shall hold in
confidence and shall not make any disclosure (except to a Holder) of any Record
or other information which the Company determines in good faith to be
confidential, and of which determination the Inspectors are so notified in
writing, unless (a) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in any Registration Statement or is otherwise
required to be disclosed in such Registration Statement to permit Holder to sell
under such Registration Statement, (b) the release of such Records is ordered
pursuant to a subpoena or other order from a court or government body of
competent jurisdiction, or is otherwise required by applicable law or legal
process or (c) the information in such Records has been made generally available
to the public other than by disclosure in violation of this or any other
agreement (to the knowledge of the relevant Holder). The Company shall not be
required to disclose any confidential information in such Records to any
Inspector or Holder until and unless such Inspector shall have entered into
confidentiality agreements (in form and reasonable substance satisfactory to the
Company) with the Company with respect thereto, substantially in the form of
this Section 3.11. Each Holder agrees that it shall, upon learning that
disclosure of such Records is sought in or by a court or governmental body of
competent jurisdiction or through other means, give prompt notice to the Company
and allow the Company, at its expense, to undertake appropriate action to
prevent disclosure of, or to obtain a protective order for, the Records deemed
confidential. Nothing herein shall be deemed to limit a Holder's ability to
sell Registrable Securities in a manner which is consistent with applicable laws
and regulations.
3.11 The Company shall hold in confidence and not make any disclosure of
information concerning a Holder provided to the Company unless (a) disclosure of
such information is necessary to comply with federal or state securities laws,
(b) the disclosure of such information is necessary to avoid or correct a
misstatement or omission in any Registration Statement, (c) the release of such
information is ordered pursuant to a subpoena or other order from a court or
governmental body of competent jurisdiction or is otherwise required by
applicable law or legal process, (d) such information has been made generally
available to the public other than by disclosure in violation of this or any
other agreement (to the knowledge of the Company), or (e) such Holder consents
to the
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form and content of any such disclosure. The Company agrees that it shall, upon
learning that disclosure of such information concerning a Holder is sought in or
by a court or governmental body of competent jurisdiction or through other
means, give prompt notice to such Holder prior to making such disclosure, and
allow the Holder, at its expense, to undertake appropriate action to prevent
disclosure of, or to obtain a protective order for, such information.
3.12 From and after Closing, the Company shall cause the listing and the
continuation of listing of all the Registrable Securities on the Nasdaq Market
or the New York Stock Exchange, and cause the Registrable Securities to be
quoted or listed on each additional national securities exchange or quotation
system upon which the Common Stock is then listed or quoted.
3.13 The Company shall provide a transfer agent and registrar, which may
be a single entity, for the Registrable Securities not later than the effective
date of the Registration Statement.
3.14 The Company shall cooperate with the Holders who hold Registrable
Securities being offered and the managing underwriter or underwriters, if any,
to facilitate the timely preparation and delivery of certificates (not bearing
any restrictive legends) representing Registrable Securities to be offered
pursuant to the Registration Statement and enable such certificates to be in
such denominations or amounts, as the case may be, as the managing underwriter
or underwriters, if any, or the Holder may reasonably request and registered in
such names as the managing underwriter or underwriters, if any, or the Holder
may request, and, within one (1) business day after a Registration Statement
which includes Registrable Securities is ordered effective by the SEC, the
Company shall cause legal counsel selected by the Company to deliver, to the
transfer agent for the Registrable Securities (with copies to the Holders whose
Registrable Securities are included in such Registration Statement) an opinion
of such counsel in the form attached hereto as Exhibit 1.
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3.15 At the request of any Holder, the Company shall promptly prepare and
file with the SEC such amendments (including post-effective amendments) and
supplements to a Registration Statement and the prospectus used in connection
with the Registration Statement as may be necessary in order to change the plan
of distribution set forth in such Registration Statement.
3.16 The Company shall comply with all applicable laws related to a
Registration Statement and offering and sale of securities covered by the
Registration Statement and all applicable rules and regulations of governmental
authorities in connection therewith (including, without limitation, the
Securities Act and the Exchange Act and the rules and regulations promulgated by
the Commission).
3.17 The Company shall take all such other actions as any Holder or the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities.
3.18 From and after the date of this Agreement, the Company shall not,
and shall not agree to, allow the holders of any securities of the Company
(other than Holders with respect to Registrable Securities and except as
otherwise as provided in Section 2.1 hereof,) to include any of their securities
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in any Registration Statement or any amendment or supplement thereto under
Section 2.1 or 3.2 hereof without the consent of the Holders of a majority of
the outstanding Registrable Securities.
3.19 The Registration Statement shall state that it covers such
indeterminate number of additional shares as may be issuable upon conversion of
the Preferred Stock or exercise of the Common Stock Warrant to prevent dilution
resulting from stock splits, stock dividends and other similar transactions.
ARTICLE IV
OBLIGATIONS OF THE HOLDER(S)
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In connection with the registration of the Registrable Securities, each
Holder shall have the following obligations:
4.1 Each Holder shall furnish to the Company such information regarding
itself, the Registrable Securities held by it and the intended method of
disposition of the Registrable Securities held by it as shall be required to
effect the registration of such Registrable Securities. At least five (5)
business days prior to the first anticipated filing date of the Registration
Statement, the Company shall notify each Holder of the information the Company
requires from each such Holder.
4.2 Each Holder, by such Holder's acceptance of the Registrable
Securities, agrees to cooperate with the Company as reasonably requested by the
Company in connection with the preparation and filing of the Registration
Statements hereunder, unless such Holder has notified the Company in writing of
such Holder's election to exclude all of such Holder's Registrable Securities
from the Registration Statement.
4.3 Each Holder whose Registrable Securities are included in a
Registration Statement understands that the Securities Act may require delivery
of a prospectus relating thereto in connection with any sale thereof pursuant to
such Registration Statement, and each such Holder shall use its reasonable
efforts to comply with the applicable prospectus delivery requirements of the
Securities Act in connection with any such sale.
4.4 Each Holder agrees that, upon receipt of written notice from the
Company of the happening of any event of the kind described in Section 3.6, such
Holder will immediately discontinue disposition of Registrable Securities
pursuant to the Registration Statement covering such Registrable Securities
until such Holder's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 3.6 or advice that a supplement or amendment
is not required and, if so directed by the Company, such Holder shall deliver to
the Company (at the expense of the Company) or destroy (and deliver to the
Company a certificate of destruction) all copies in such Holder's possession
(other than a limited number of permanent file copies), of the prospectus
covering such Registrable Securities current at the time of receipt of such
notice. Holder's obligations under this paragraph shall in no way limit the
Company's obligations under this Agreement or Holder's rights or
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remedies against the Company with respect to any breach or threatened breach by
the Company of any such obligations.
4.5 Without limiting a Holder's rights under Section 2.1 or 3.2 hereof, no
Holder may participate in any underwritten distribution hereunder unless such
Holder (a) agrees to sell such Holder's Registrable Securities on the basis
provided in any underwriting agreements in usual and customary form entered into
by the Company pursuant to Section 3.5 hereof, (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements, and (c) agrees to pay its pro rata share of all underwriting
discounts and commissions and any expenses in excess of those payable by the
Company pursuant to Article V. Without implication that the contrary would
otherwise be true, it is expressly understood and agreed that no Holder shall be
required to participate in any such underwritten distribution.
ARTICLE V
EXPENSES OF REGISTRATION
------------------------
All expenses, other than underwriting discounts and commissions, incurred
in connection with registrations, filings or qualifications pursuant to Articles
II and III, including, without limitation, all registration, listing and
qualification fees, printers and accounting fees, the fees and disbursements of
counsel for the Company and of one counsel for the Holders.
ARTICLE VI
INDEMNIFICATION
---------------
In the event any Registrable Securities are included in a Registration
Statement under this Agreement:
6.1 To the extent permitted by law, the Company will indemnify, hold
harmless and defend (a) each Holder who holds such Registrable Securities, (b)
each underwriter of Registrable Securities and (c) the directors, officers,
partners, members, employees, agents and persons who control any Holder within
the meaning of Section 15 of the Securities "ct or Section 20 of the Exchange
Act, if any, (each, an "Indemnified Person"), against any losses, claims,
------------------
damages, liabilities or expenses (collectively, together with actions,
proceedings or inquiries whether or not in any court, before any administrative
body or by any regulatory or self-regulatory organization, whether commenced or
threatened, in respect thereof, "Claims") to which any of them may become
------
subject insofar as such Claims arise out of or are based upon: (i) any untrue
statement or alleged untrue statement of a material fact in a Registration
Statement or the omission or alleged omission to state therein a material fact
required to be stated or necessary to make the statements therein not
misleading, (ii) any untrue statement or alleged untrue statement of a material
fact contained in any preliminary prospectus if used prior to the effective date
of such Registration Statement, or contained in the final prospectus (as amended
or supplemented, if the Company files any amendment thereof or supplement
thereto with the SEC) or the omission or alleged omission to state therein any
material fact necessary
11
to make the statements made therein, in light of the circumstances under which
the statements therein were made, not misleading, or (iii) any violation or
alleged violation by the Company of the Securities Act, the Exchange Act, any
other law, including, without limitation, any state securities law, or any rule
or regulation thereunder relating to the offer or sale of the Registrable
Securities (the matters in the foregoing clauses (i) through (iii) being,
collectively, "Violations"). The Company shall reimburse each such Indemnified
----------
Person, promptly as such expenses are incurred and are due and payable, for any
reasonable legal fees or other reasonable expenses incurred by them in
connection with investigating or defending any such Claim. Notwithstanding
anything to the contrary contained herein, the indemnification agreement
contained in this Section 6.1: (x) shall not apply to an Indemnified Person with
respect to a Claim arising out of or based upon a Violation which occurs in
reliance upon and in conformity with information furnished in writing to the
Company by such Indemnified Person expressly for use in the Registration
Statement or any such amendment thereof or supplement thereto; (y) shall not
apply to amounts paid in settlement of any Claim if such settlement is effected
without the prior written consent of the Company, which consent shall not be
unreasonably withheld; and (z) with respect to any preliminary prospectus, shall
not inure to the benefit of any Indemnified Person if the untrue statement or
omission of material fact contained in the preliminary prospectus was corrected
on a timely basis in the prospectus, as then amended or supplemented, if such
corrected prospectus was timely made available by the Company pursuant to
Section 3.3 hereof, and the Indemnified Person was promptly advised in writing
not to use the incorrect prospectus prior to the use giving rise to a Violation
and such Indemnified Person, notwithstanding such advice, used it. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of the Indemnified Person and shall survive the transfer of
the Registrable Securities by a Holder pursuant to Article IX.
6.2 In connection with any Registration Statement in which a Holder is
participating, each such Holder agrees to indemnify, hold harmless and defend,
to the same extent and in the same manner set forth in Section 6.1, the Company,
each of its directors, each of its officers who signs the Registration
Statement, its employees, underwriters, agents and persons, if any, who control
the Company within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, and any other stockholder selling securities pursuant to
the Registration Statement, together with its directors, officers and members,
and any person who controls such stockholder or underwriter within the meaning
of the Securities Act or the Exchange Act (such an "Indemnified Party"), against
-----------------
any Claim to which any of them may become subject, under the Securities Act, the
Exchange Act or otherwise, insofar as such Claim arises out of or is based upon
any Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished to the Company by such Holder expressly for use in connection with
such Registration Statement; and such Holder will reimburse any legal or other
expenses (promptly as such expenses are incurred and are due and payable)
reasonably incurred by them in connection with investigating or defending any
such Claim; provided, however, that the indemnity agreement contained in this
Section 6.2 shall not apply to amounts paid in settlement of any Claim if such
settlement is effected without the prior written consent of such Holder, which
consent shall not be unreasonably withheld; provided, further, however, that a
Holder shall be liable under this Agreement (including this Section 6.2 and
Article VII) for only that amount as does not exceed the net proceeds
12
actually received by such Holder as a result of the sale of Registrable
Securities pursuant to such Registration Statement. Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf of
such Indemnified Party and shall survive the transfer of the Registrable
Securities by a Holder pursuant to Article IX. Notwithstanding anything to the
contrary contained herein, the indemnification agreement contained in this
Section 6.2 with respect to any preliminary prospectus shall not inure to the
benefit of any Indemnified Party if the untrue statement or omission of material
fact contained in the preliminary prospectus was corrected on a timely basis in
the prospectus, as then amended or supplemented, and the Indemnified Party
failed to utilize such corrected prospectus.
6.3 Promptly after receipt by an Indemnified Person or Indemnified Party
under this Article VI of notice of the commencement of any action (including any
governmental action), such Indemnified Person or Indemnified Party shall, if a
Claim in respect thereof is to be made against any indemnifying party under this
Article VI, deliver to the indemnifying party a written notice of the
commencement thereof, and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume control of the
defense thereof with counsel mutually satisfactory to the indemnifying party and
the Indemnified Person or the Indemnified Party, as the case may be; provided,
however, that such indemnifying party shall diligently pursue such defense and
that such indemnifying party shall not be entitled to assume such defense and an
Indemnified Person or Indemnified Party shall have the right to retain its own
counsel with the fees and expenses to be paid by the indemnifying party, if the
representation by such counsel of the Indemnified Person or Indemnified Party
and the indemnifying party would be inappropriate due to actual or potential
conflicts of interest between such Indemnified Person or Indemnified Party and
any other party represented by such counsel in such proceeding or the actual or
potential defendants in, or targets of, any such action include both the
Indemnified Person or the Indemnified Party and any such Indemnified Person or
Indemnified Party reasonably determines that there may be legal defenses
available to such Indemnified Person or Indemnified Party which are different
from or in addition to those available to such indemnifying party. The
indemnifying party shall pay for only one separate legal counsel for the
Indemnified Persons or the Indemnified Parties, as applicable, and such legal
counsel shall be selected by Holder holding a majority-in-interest of the
Registrable Securities included in the Registration Statement to which the Claim
relates (with the approval of each Holder which holds Registrable Securities
included in such Registration Statement), if the Holder is entitled to
indemnification hereunder, or by the Company, if the Company is entitled to
indemnification hereunder, as applicable. The failure to deliver written notice
to the indemnifying party within a reasonable time of the commencement of any
such action shall not relieve such indemnifying party of any liability to the
Indemnified Person or Indemnified Party under this Article VI, except to the
extent that the indemnifying party is actually prejudiced in its ability to
defend such action. The indemnification required by this Article VI shall be
made by periodic payments of the amount thereof during the course of the
investigation or defense, as such expense, loss, damage or liability is incurred
and is due and payable.
13
ARTICLE VII
CONTRIBUTION
------------
To the extent any indemnification by an indemnifying party is prohibited or
limited by law, the indemnifying party agrees to make the maximum contribution
with respect to any amounts for which it would otherwise be liable under Article
VI to the fullest extent permitted by law; provided, however, that (i) no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person of
Registrable Securities who was not guilty of such fraudulent misrepresentation,
and (ii) contribution (together with any indemnification or other obligations
under this Agreement) by any seller of Registrable Securities shall be limited
in amount to the net amount of proceeds received by such seller from the sale of
such Registrable Securities.
ARTICLE VIII
REPORTS UNDER THE EXCHANGE ACT
------------------------------
With a view to making available to the Holders the benefits of Rule 144
promulgated under the Securities Act or any other similar rule or regulation of
the SEC that may at any time permit the Holders to sell securities of the
Company to the public without registration ("Rule 144"), the Company agrees to:
--------
8.1 File with the SEC in a timely manner and make and keep available all
reports and other documents required of the Company under the Securities Act and
the Exchange Act so long as the Company remains subject to such requirements (it
being understood that nothing herein shall limit the Company's obligations under
Section 4.3 of the Securities Purchase Agreement) and the filing and
availability of such reports and other documents is required for the applicable
provisions of Rule 144; and
8.2 Furnish to each Holder so long as such Holder holds Preferred Stock,
the Common Stock Warrant or Registrable Securities, promptly upon request, (i) a
written statement by the Company that it has complied with the reporting
requirements of Rule 144, the Securities Act and the Exchange Act, (ii) a copy
of the most recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company, and (iii) such other information
as may be reasonably requested to permit the Holder to sell such securities
pursuant to Rule 144 without registration.
ARTICLE IX
ASSIGNMENT OF REGISTRATION RIGHTS
---------------------------------
The rights of the Holders hereunder, including the right to have the
Company register Registrable Securities pursuant to this Agreement, shall be
automatically assigned by such Holder to any transferee of all or any portion of
the Preferred Stock, the Common Stock Warrant or the
14
Registrable Securities if: (a) the Holders agrees in writing with the transferee
or assignee to assign such rights, and a copy of such agreement is furnished to
the Company within a reasonable time after such assignment, (b) the Company is,
within a reasonable time after such transfer or assignment, furnished with
written notice of (i) the name and address of such transferee or assignee, and
(ii) the securities with respect to which such registration rights are being
transferred or assigned, (c) following such transfer or assignment, the further
disposition of such securities by the transferee or assignee is restricted under
the Securities Act or applicable state securities laws, and (d) at or before the
time the Company receives the written notice contemplated by clause (ii) of this
sentence, the transferee or assignee agrees in writing for the benefit of the
Company to be bound by all of the provisions contained herein. The rights of a
Holder hereunder with respect to any Registrable Securities not transferred (and
not represented by Preferred Stock or the Warrant transferred) shall not be
assigned by virtue of the transfer of other Registrable Securities or
transferred Preferred Stock or the Common Stock Warrant representing other
Registrable Securities. Any such transferee who succeeds to rights hereunder
shall be deemed to have a separate agreement with the Company independent of
this Agreement.
ARTICLE X
AMENDMENT OF REGISTRATION RIGHTS
--------------------------------
Provisions of this Agreement may be amended and the observance thereof may
be waived (either generally or in a particular instance and either retroactively
or prospectively), only with written consent of the Company and the Holders of a
majority of the outstanding Registrable Securities. In the event of the
assignment of rights hereunder pursuant to Article IX, the Company shall not
take any action pursuant to such assignment rights that would adversely affect a
Holder's rights hereunder without such Holders' consent.
ARTICLE XI
MISCELLANEOUS
-------------
11.1 A person or entity is deemed to be a holder (or a holder in interest)
of Registrable Securities whenever such person or entity owns of record such
Registrable Securities (or the Preferred Stock or the Common Stock Warrant which
may be converted into or exercised for Registrable Securities). If the Company
receives conflicting instructions, notices or elections from two or more persons
or entities with respect to the same Registrable Securities, the Company shall
act upon the basis of instructions, notice or election received from the
registered owner of such Registrable Securities (or Preferred Stock or the
Common Stock Warrant, as the case may be).
11.2 Any notices herein required or permitted to be given shall be in
writing and may be personally served or delivered by courier or by machine-
generated 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:
15
If to the Company:
Voxware, Inc.
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
or
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
Fulbright & ▇▇▇▇▇▇▇▇ L.L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Esq.
If to any Holder, at such address as such Holder, shall have provided in writing
to the Company, or at such other address as each such party furnishes by notice
given in accordance with this Section 11.2.
11.3 Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or remedy,
shall not operate as a waiver thereof.
11.4 This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to contracts made and to be
performed in the State of New York without regard to conflict of laws principles
thereof. The Company irrevocably consents to the jurisdiction of the federal
courts located in the State of New York and the state courts of the State of New
York located in the County of New York in the State of New York in any suit or
proceeding based on or arising under this Agreement and irrevocably agrees 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 parties hereto further agree
that service of process upon the parties hereto mailed by first class mail shall
be deemed in every respect effective service of process upon each such party in
any such suit or proceeding.
16
Nothing herein shall affect either party'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.
11.5 This Agreement, the Preferred Stock, the Warrant and the Securities
Purchase Agreement (including all schedules and exhibits thereto and all
certificates and opinions required thereby) constitute the entire agreement
among the parties hereto with respect to the subject matter hereof and thereof.
There are no restrictions, promises, warranties or undertakings, other than
those set forth or referred to herein and therein. This Agreement, the
Preferred Stock, the Common Stock Warrant and the Securities Purchase Agreement
supersede all prior agreements and understandings among the parties hereto with
respect to the subject matter hereof and thereof.
11.6 Subject to the requirements of Article IX hereof, this Agreement
shall inure to the benefit of and be binding upon the successors and assigns of
each of the parties hereto. Notwithstanding anything to the contrary contained
herein, including, without limitation, Article IX, the rights of a Holder
hereunder shall be assignable to and exercisable by a bona fide pledgee of the
Registrable Securities in connection with a Holder's margin or brokerage
accounts.
11.7 The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
11.8 This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which shall constitute one and the
same agreement. This Agreement, once executed by a party, may be delivered to
the other party hereto, by facsimile transmission of a copy of this Agreement
bearing the signature of the party so delivering this Agreement.
11.9 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.
11.10 In the event Holder shall sell or otherwise transfer any of such
Holder's Registrable Securities, each transferee shall be allocated a pro rata
portion of the number of Registrable Securities included on a Registration
Statement for such transferor. Any shares of Common Stock included on a
Registration Statement and which remain allocated to any person or entity which
does not hold any Registrable Securities shall be allocated to the remaining
participant, in such Registration Statement, pro rata based on the number of
shares of Registrable Securities then held by such participant. Without
implication that the contrary would otherwise be true, for purposes of this
paragraph, all Preferred Stock and the Warrant then outstanding shall be assumed
converted into and exercised for Registrable Securities (without giving effect
to any limitations on conversion or exercise).
17
11.11 If any provision of this Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement.
11.12 In the event any actions or approvals hereunder are required to be
taken by the Holders, except as otherwise specifically provided herein, such
actions may be taken or approvals given or refused to be given by a majority of
the Holders of the then outstanding Registrable Securities.
* * *
18
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
COMPANY:
VOXWARE, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President and Chief Executive
Officer
19
Holder:
CASTLE CREEK TECHNOLOGY PARTNERS LLC
By: Castle Creek Partners, L.L.C.
Its: Investment Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
Address: ▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇)▇▇▇-▇▇▇▇
Copy to:
▇▇▇▇▇, Block, ▇▇▇▇▇▇ and ▇▇▇▇▇-▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
JURISDICTION: Delaware limited liability company
AGGREGATE NUMBER OF SHARES OF SERIES A PREFERRED STOCK PURCHASED AT CLOSING:
4,000 shares
----------------
AGGREGATE NUMBER OF WARRANT SHARES REPRESENTED BY COMMON STOCK WARRANT
________________
PURCHASE PRICE: $ 4,000,000
-------------------
20
EXHIBIT 1
to Registration Rights Agreement
[Date]
[Name and address
of transfer agent]
RE: VOXWARE, INC.
Ladies and Gentlemen:
We are counsel to Voxware, Inc., a Delaware corporation (the "Company"),
-------
and we understand that [Name of Holder] (the "Holder") has purchased from the
------
Company an amount of the Company's Series A Preferred Stock (the "Preferred
---------
Stock") convertible into shares of the Company's common stock, $0.01 per share
-----
(the "Common Stock"), and warrants to purchase shares of the Common Stock of the
------------
Company's Common Stock (the "Common Stock Warrant"). The Preferred Stock and
--------------------
the Common Stock Warrants were purchased by the Holders pursuant to a Securities
Purchase Agreement, dated as of August 10, 2000, by and among the Company and
the signatories thereto (the "Agreement"). Pursuant to a Registration Rights
---------
Agreement, dated as of August 15, 2000, by and among the Company and the
signatories thereto (the "Registration Rights Agreement"), the Company agreed
-----------------------------
with the Holders, among other things, to register the Registrable Securities (as
that term is defined in the Registration Rights Agreement) under the Securities
Act of 1933, as amended (the "Securities Act"), upon the terms provided in the
--------------
Registration Rights Agreement. In connection with the Company's obligations
under the Registration Rights Agreement, on August, __, 2000, the Company filed
a Registration Statement on Form S-3 (File No. 333- __________) (the
"Registration Statement") with the Securities and Exchange Commission (the
----------------------
"SEC") relating to the Registrable Securities, which names the Holders as a
---
selling stockholder thereunder.
[Other customary introductory and scope of examination language to be inserted]
Based on the foregoing, we are of the opinion that the Registrable
Securities have been registered under the Securities Act.
[Other appropriate customary language reasonably acceptable to holder to be
included.]
Very truly yours,
cc: [Name of Holder]
21