Stock Warrant

Common Stock Warrant


EXHIBIT 4.13


THIS COMMON STOCK WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR TRANSFERRED UNLESS SUCH SALE OR TRANSFER IS IN ACCORDANCE WITH THE REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS OR SOME OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS IS AVAILABLE WITH RESPECT THERETO.




Warrant No. CS-PA-05
Number of Shares: 2,158,125




Issue Date: August 11, 2005
Void after: August 11, 2010

FOR VALUE RECEIVED Voxware, Inc., a Delaware corporation (the “Company”), with its principal office at 168 Franklin Corner Road, Lawrenceville, NJ 08648, hereby certifies that Duncan J. L. Fitzwilliams (the "Holder") is entitled, subject to the provisions of this Warrant, to purchase from the Company, at any time after August 11, 2005 and continuing for a period of five (5) years through August 11, 2010 (the "Expiration Date"), up to the number of fully paid and non-assessable shares of Common Stock of the Company set forth above, subject to adjustment as hereinafter provided.

The Holder may purchase such number of shares of Common Stock at a purchase price per share of $0.0352 (the "Purchase Price"). The term "Common Stock" shall mean the aforementioned Common Stock of the Company, together with any other equity securities that may be issued by the Company in addition thereto or in substitution therefor as provided herein.

THE NUMBER OF SHARES OF COMMON STOCK TO BE RECEIVED UPON THE EXERCISE OR EXCHANGE OF THIS WARRANT AND THE PRICE TO BE PAID FOR A SHARE OF COMMON STOCK ARE SUBJECT TO ADJUSTMENT FROM TIME TO TIME AS HEREINAFTER SET FORTH. THE SHARES OF COMMON STOCK DELIVERABLE UPON SUCH EXERCISE OR EXCHANGE, AS ADJUSTED FROM TIME TO TIME, ARE HEREINAFTER SOMETIMES REFERRED TO AS "WARRANT SHARES."

1.          Issuance. This Common Stock Warrant is issued to Duncan J. L. Fitzwilliams by the Company.




2.          Purchase Price; Number of Shares. Subject to the terms and conditions hereinafter set forth, the Holder of this Common Stock Warrant, commencing on the date hereof, is entitled upon surrender of this Common Stock Warrant with the subscription form annexed hereto duly executed, at the office of the Company, 168 Franklin Corner Road, Lawrenceville, NJ 08648, or such other office as the Company shall notify the Holder of in writing, to purchase from the Company at the Purchase Price of $0.0352, up to 2,158,125 fully paid and nonassessable shares of Common Stock of the Company. Until such time as this Common Stock Warrant is exercised in full or expires, the Purchase Price and the securities issuable upon exercise of this Common Stock Warrant are subject to adjustment as hereinafter provided.

3.          Payment of Purchase Price. The Purchase Price may be paid (i) in cash or by check, (ii) by the surrender by the Holder to the Company of any promissory notes or other obligations issued by the Company, with all such notes and obligations so surrendered being credited against the Purchase Price in an amount equal to the principal amount thereof plus accrued interest to the date of surrender, (iii) through delivery by the Holder to the Company of other securities issued by the Company, with such securities being credited against the Purchase Price in an amount equal to the fair market value thereof, as determined in good faith by the Board of Directors of the Company (the “Board”), or (iv) by any combination of the foregoing. The Board shall promptly respond in writing to an inquiry by the Holder as to the fair market value of any securities the Holder may wish to deliver to the Company pursuant to clause (iii) above.

4.          Net Issue Election. The Holder may elect to receive, without the payment by the Holder of any additional consideration, shares equal to the value of this Common Stock Warrant or any portion hereof by the surrender of this Common Stock Warrant or such portion to the Company, with the net issue election notice annexed hereto duly executed, at the office of the Company. Thereupon, the Company shall issue to the Holder such number of fully paid and nonassessable shares of Common Stock as is computed using the following formula:

X = Y (A-B)
A

where

X
= the number of shares to be issued to the Holder pursuant to this Section 4.

 
Y =
the number of shares covered by this Common Stock Warrant in respect of which the net issue election is made pursuant to this Section 4.

 
A =
the fair market value of one share of Common Stock, as determined in good faith by the Board, as at the time the net issue election is made pursuant to this Section 4.

 
B =
the Purchase Price in effect under this Common Stock Warrant at the time the net issue election is made pursuant to this Section 4.

The Board shall promptly respond in writing to an inquiry by the Holder as to the fair market value of one share of Common Stock.

5.          Partial Exercise. This Common Stock Warrant may be exercised in part, and the Holder shall be entitled to receive a new warrant, which shall be dated as of the date of this Common Stock Warrant, covering the number of shares in respect of which this Common Stock Warrant shall not have been exercised.
 
6.          Issuance Date. The person or persons in whose name or names any certificate representing shares of Common Stock is issued hereunder shall be deemed to have become the holder of record of the shares represented thereby as at the close of business on the date this Common Stock Warrant is exercised with respect to such shares, whether or not the transfer books of the Company shall be closed.
 

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7.          Expiration Date; Automatic Exercise. This Common Stock Warrant shall expire at the close of business on August 11, 2010, and shall be void thereafter. Notwithstanding the foregoing, this Common Stock Warrant, to the extent then exercisable, shall automatically be deemed to be exercised in full pursuant to the provisions of Section 4 hereof, without any further action on behalf of the Holder, immediately prior to the time this Common Stock Warrant would otherwise expire pursuant to the preceding sentence.

8.          Reserved Shares; Valid Issuance. The Company covenants that it will at all times from and after the date hereof reserve and keep available such number of its authorized shares of Common Stock and Common Stock, par value $0.001 per share (the “Common Stock”), free from all preemptive or similar rights therein, as will be sufficient to permit, respectively, the exercise of this Common Stock Warrant in full and the conversion into shares of Common Stock of all shares of Common Stock receivable upon such exercise. The Company further covenants that such shares as may be issued pursuant to such exercise and conversion will, upon issuance, be duly and validly issued, fully paid and nonassessable and free from all taxes, liens and charges with respect to the issuance thereof.

9.          Stock Dividends. If after August 11, 2005 (the “Original Issue Date”) the Company shall subdivide the Common Stock, by split-up or otherwise, or combine the Common Stock (pursuant to a reverse stock split or otherwise), or issue additional shares of Common Stock in payment of a stock dividend on the Common Stock, the number of shares issuable on the exercise of this Common Stock Warrant shall forthwith be proportionately increased in the case of a subdivision or stock dividend, or proportionately decreased in the case of a combination or reverse stock split, and the Purchase Price shall forthwith be proportionately decreased in the case of a subdivision or stock dividend, or proportionately increased in the case of a combination.

10.          Mergers and Reclassifications. If after the Original Issue Date there shall be any reclassification, capital reorganization or change of the Common Stock (other than as a result of a subdivision, combination or stock dividend provided for in Section 9 hereof), or any consolidation of the Company with, or merger of the Company into, another corporation or other business organization (other than a consolidation or merger in which the Company is the continuing corporation and which does not result in any reclassification or change of the outstanding Common Stock), or any sale or conveyance to another corporation or other business organization of all or substantially all of the assets of the Company, then, as a condition of such reclassification, reorganization, change, consolidation, merger, sale or conveyance, lawful provisions shall be made, and duly executed documents evidencing the same from the Company or its successor shall be delivered to the Holder, so that the Holder shall thereafter have the right to purchase, at a total price not to exceed that payable upon the exercise of this Common Stock Warrant in full, the kind and amount of shares of stock and other securities and property receivable upon such reclassification, reorganization, change, consolidation, merger, sale or conveyance by a holder of the number of shares of Common Stock which might have been purchased by the Holder immediately prior to such reclassification, reorganization, change, consolidation, merger, sale or conveyance (or, if there are no holders of Common Stock at such time, by a holder of the number of shares of Common Stock which might have been acquired by the Holder immediately prior to such reclassification, reorganization, change, consolidation, merger, sale or conveyance upon the exercise of this Common Stock Warrant in full and the  conversion into shares of Common Stock of all shares of Common Stock receivable upon such exercise), and in any such case appropriate provisions shall be made with respect to the rights and interest of the Holder to the end that the provisions hereof (including without limitation, provisions for the adjustment of the Purchase Price and the number of shares issuable hereunder) shall thereafter be applicable in relation to any shares of stock or other securities and property thereafter deliverable upon exercise hereof.

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11.          Fractional Shares. In no event shall any fractional share of Common Stock be issued upon any exercise of this Common Stock Warrant. If, upon exercise of this Common Stock Warrant as an entirety, the Holder would, except as provided in this Section 11, be entitled to receive a fractional share of Common Stock, then the Company shall issue the next higher number of full shares of Common Stock, issuing a full share with respect to such fractional share.

12.          Certificate of Adjustment. Whenever the Purchase Price is adjusted, as herein provided, the Company shall promptly deliver to the Holder a certificate of a firm of independent public accountants setting forth the Purchase Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment.

13.          Notices of Record Date, Etc. In the event of:

(a)          any taking by the Company of a record of the holders of any class of securities for the purpose of determining the holders thereof who are entitled to receive any dividend or other distribution, or any right to subscribe for, purchase or otherwise acquire any shares of stock of any class or any other securities or property, or to receive any other right,

(b)          any reclassification of the capital stock of the Company, capital reorganization of the Company, consolidation or merger involving the Company, or sale or conveyance of all or substantially all of its assets, or

(c)          any voluntary or involuntary dissolution, liquidation or winding-up of the Company,

then and in each such event the Company will mail or cause to be mailed to the Holder a notice specifying (i) the date on which any such record is to be taken for the purpose of such dividend, distribution or right, and stating the amount and character of such dividend, distribution or right, or (ii) the date on which any such reclassification, reorganization, consolidation, merger, sale or conveyance, dissolution, liquidation or winding-up is to take place, and the time, if any is to be fixed, as of which the holders of record in respect of such event are to be determined. Such notice shall be mailed at least 20 days prior to the date specified in such notice on which any such action is to be taken.

14.          Amendment. The terms of this Common Stock Warrant may be amended, modified or waived only with the written consent of the Company and the Holder.

15.          Common Stock Warrant Register; Transfers, Etc. 

A.          The Company will maintain a register containing the names and addresses of the registered holders of all issued and outstanding Common Stock Warrants. The Holder may change its address as shown on the warrant register by written notice to the Company requesting such change. Any notice or written communication required or permitted to be given to the Holder may be given by certified mail or delivered to the Holder at its address as shown on the warrant register.
 
B.          Subject to compliance with applicable federal and state securities laws, this Common Stock Warrant may be transferred by the Holder with respect to any or all of the shares purchasable hereunder. Upon surrender of this Common Stock Warrant to the Company, together with the assignment hereof properly endorsed, for transfer of this Common Stock Warrant as an entirety by the Holder, the Company shall issue a new warrant of the same denomination to the assignee. Upon surrender of this Common Stock Warrant to the Company, together with the assignment hereof properly endorsed, by the Holder for transfer with respect to a portion of the shares of Common Stock purchasable hereunder, the Company shall issue a new warrant to the assignee, in such denomination as shall be requested by the Holder hereof, and shall issue to such Holder a new warrant covering the number of shares in respect of which this Common Stock Warrant shall not have been transferred.

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C.          In case this Common Stock Warrant shall be mutilated, lost, stolen or destroyed, the Company shall issue a new warrant of like tenor and denomination and deliver the same (i) in exchange and substitution for and upon surrender and cancellation of any mutilated Common Stock Warrant, or (ii) in lieu of any Common Stock Warrant lost, stolen or destroyed, upon receipt of evidence reasonably satisfactory to the Company of the loss, theft or destruction of such Common Stock Warrant (including a reasonably detailed affidavit with respect to the circumstances of any loss, theft or destruction) and of indemnity reasonably satisfactory to the Company.

16.          No Impairment. The Company will not, by amendment of its Amended and Restated Certificate of Incorporation or through any reclassification, capital reorganization, consolidation, merger, sale or conveyance of assets, dissolution, liquidation, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Common Stock Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holder.

17.          Governing Law. The provisions and terms of this Common Stock Warrant shall be construed and enforced in accordance with and governed by the laws of the General Corporation Law of the State of Delaware as to matters within the scope thereof, and as to all other matters shall be construed and enforced in accordance with and governed by the internal laws of the State of New Jersey, without regard to its principles of conflicts of laws.

18.          Successors and Assigns. This Common Stock Warrant shall be binding upon the Company’s successors and assigns and shall inure to the benefit of the Holder’s successors, legal representatives and permitted assigns.

19.          Business Days. If the last or appointed day for the taking of any action required or the expiration of any right granted herein shall be a Saturday or Sunday or a legal holiday in the State of New Jersey, then such action may be taken or right may be exercised on the next succeeding day which is not a Saturday or Sunday or such a legal holiday.

 
Dated: August 11, 2005 VOXWARE, INC.
   
(Corporate Seal) By:_______________________
   
Attest: Title:______________________
   
___________________________  



 
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Subscription
 
 

 
To:____________________  Date:_________________________

 


The undersigned hereby subscribes for __________ shares of Common Stock covered by this Common Stock Warrant. The certificate(s) for such shares shall be issued in the name of the undersigned or as otherwise indicated below:


   
 

Signature
   
   
 

 Name for Registration
   
   
 

Mailing Address
   


Net Issue Election Notice


To:____________________
Date:_________________________


The undersigned hereby elects under Section 4 to surrender the right to purchase ______________ shares of Common Stock pursuant to this Common Stock Warrant. The certificate(s) for the shares issuable upon such net issue election shall be issued in the name of the undersigned or as otherwise indicated below.


   
 

Signature
   
   
 

Name for Registration
   
   
 

Mailing Address
   

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Assignment


For value received, the undersigned hereby sells, assigns and transfers unto ____________________________,1 the right represented by the within Common Stock Warrant to purchase __________ shares of Common Stock of Voxware, Inc. (the “Company”) to which the within Common Stock Warrant relates, and does hereby irrevocably constitute and appoint the Company as its attorney to transfer such right to the within Common Stock Warrant on the books of the Company with full power of substitution on the premises.


Dated:_______________________
 
   
 
Signature: _____________________________________
 
Assignor Name: ________________________________
 
By:
 
Its:
 
(Name must conform to name of Holder as specified on the face of the Common Stock Warrant)


In the Presence of:

_____________________________


Assignee Information

Name: ________________________________
Address: ______________________________
             __________________________
Telephone: ____________________________
Facsimile:______________________________
 




1 (full name of assignee)
 
 
 
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