Exhibit 10.2
AMENDMENT NO. 1 TO INVESTOR
RIGHTS AGREEMENT
THIS AMENDMENT NO. 1
(“Amendment”) to the Investor Rights Agreement dated as
of June 27, 2003 (the “Investor Rights Agreement”) is
made and entered into as April 30, 2004, by and among Voxware,
Inc., a Delaware corporation (“the Company”), and the
purchasers set forth on the signature pages hereto (the
“Purchasers”), which Purchasers are the holders of at
least a majority in interest of the Restricted Stock under the
Investor Rights Agreement.
W I T N E S S E T H:
WHEREAS, the Company, the Purchasers
and certain other holders of the Company’s Series D
Convertible Preferred Stock, par value $0.001 per share
(“Series D Preferred Stock”), entered into the Investor
Rights Agreement on June 27, 2003, which Investor Rights Agreement
remains in effect;
WHEREAS, pursuant to a Series D
Convertible Preferred Stock Purchase Agreement dated the date
hereof (the “Purchase Agreement”), the Company is
issuing and selling to the Purchasers on the date hereof
136,730,000 shares (the “Shares”) of Series D Preferred
Stock; and
WHEREAS, the parties wish to modify
the Investor Rights Agreement pursuant to Section 15(d) thereof as
set forth in this Amendment.
NOW, THEREFORE, effective as of the
date hereof, the parties hereto, intending to be legally bound,
hereby agree to amend and modify the Investor Rights Agreement as
follows:
1. The capitalized terms used and
not otherwise defined herein shall have the meanings attributed
thereto in the Investor Rights Agreement.
2. The parties agree that the shares
of Common Stock, $0.001 par value (“Common Stock”),
issuable upon the conversion of the Series D Preferred Stock issued
and sold by the Company pursuant to the Purchase Agreement shall be
deemed to be, for all purposes of the Investor Right Agreement,
Conversion Shares and Restricted Stock.
3. The parties agree that the
Purchasers shall be deemed to be, for all purposes of the Investor
Rights Agreement, Investors under the Investor Rights Agreement,
and shall be entitled to all of the rights and benefits of the
Investor Rights Agreement as an Investor. The parties agree that,
upon the execution of this Amendment, the Purchasers shall become
parties to the Investor Rights Agreement as Investors
thereunder.
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4. Each of the Purchasers who was
previously a party to the Investor Rights Agreement hereby waives
Section 12 of the Investor Rights Agreement (Right of First
Refusal) in connection with the sale of the Shares pursuant to the
Purchase Agreement.
5. The parties agree that Section
4(a) of the Investor Right Agreement is hereby amended to add the
following sentence at the end of such section:
“The Company agrees that the
Common Stock issuable upon conversion of the Series D Preferred
Stock issued pursuant to the Series D Convertible Preferred Stock
Purchase Agreement dated April 30, 2004 shall be registered under
the Securities Act pursuant to the Registration Statement on Form
S-2 filed by the Company with the Commission on November 14, 2003
and the Company further agrees to use its best efforts to have such
Registration Statement declared effective no later than June 30,
2004 and to conduct such registration in accordance with Section 7
hereof.”
6. The parties agree that clause
(vi) of Section 12(f) of the Investor Rights Agreement is amended
to provide in its entirety as follows:
“(vi) any securities issued in
connection with a line of credit or similar bank facility financing
with a traditional commercial lender (provided such securities are
not issued to any holders of Series D Preferred Stock and provided
further that if such securities are issued to any holders of Series
D Preferred Stock, this provision may not be waived pursuant to
Section 12(e) hereof), or a joint venture, licensing, development,
technology, equipment leasing, marketing or similar customer or
strategic relationship provided that each such agreement or
relationship is approved by a majority of the Board of Directors
and such majority includes at least one of the directors nominated
or designated by the holders of Series D Preferred Stock,
and”
7. The parties agree that Section
13(a) of the Investor Rights Agreement is hereby amended to add the
following clause (xviii):
“(xviii) The Company will
permit a representative selected and agreed upon by the Investors
set forth on Exhibit A hereto to attend all meetings of the
Board of Directors of the Company, and shall provide such
representative with such notice and other information with respect
to such meetings as are delivered to the directors of the Company.
The Company shall reimburse such representative for (i) telephone
charges incurred in connection with attending such meetings
telephonically and (ii) reasonable travel and lodging expenses up
to a maximum of $2,500 per meeting incurred by such representative
in attending in person up to two meetings of the Board of Directors
of the Company each calendar year, with such reimbursement to be in
accordance with the Company’s normal reimbursement policies
and procedures. The Company and the Investors agree that this
clause (xviii) may not be waived.”
8. The parties agree that the second
sentence of Section 15(f) of the Investor Rights Agreement is
amended to provide in its entirety as follows:
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“Moreover, each of the
Investors hereby further agrees for a period of two (2) years from
the date of the Closing that it shall (i) limit its sales each
month of any shares of Common Stock issued upon conversion of
Series D Preferred Stock to no more than ten percent (10%) of the
previous month’s trading volume on the principal securities
exchange, automated quotation service or consolidated reporting
system upon which the Company’s Common Stock is then listed
and (ii) not to short sell any shares of Common Stock issued upon
conversion of Series D Preferred Stock.”
9. Each party represents and
warrants that (i) the execution and delivery of this Amendment has
been duly and validly authorized and approved by its Board of
Directors or other governing body, (ii) no other proceedings
(corporate or otherwise) on its part are neces
