<PAGE>
REGISTRATION NO. 333-08393
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 15, 1996
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
VOXWARE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
----------------
DELAWARE 7373 36-3934824
(STATE OR OTHER JURISDICTION (PRIMARY STANDARD (I.R.S. EMPLOYER
OF INCORPORATION OR INDUSTRIAL CLASSIFICATION IDENTIFICATION NO.)
ORGANIZATION) CODE NUMBER)
305 COLLEGE ROAD EAST
PRINCETON, NEW JERSEY 08540
(609) 514-4100
(ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------
MICHAEL GOLDSTEIN
VOXWARE, INC.
305 COLLEGE ROAD EAST
PRINCETON, NEW JERSEY 08540
(609) 514-4100
(NAME, ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
WITH COPIES TO:
PAUL JACOBS, ESQ. GREGORY D. SHEEHAN, ESQ.
FULBRIGHT & JAWORSKI L.L.P. ROPES & GRAY
666 FIFTH AVENUE ONE INTERNATIONAL PLACE
NEW YORK, NEW YORK 10103 BOSTON, MASSACHUSETTS 02110
TEL.: 212-318-3000 TEL.: 617-951-7000
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the
same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
----------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the Company's estimates (other than the SEC
registration fee and the NASD filing fee) of the expenses in connection with
the issuance and distribution of the shares of Common Stock being registered,
other than underwriting discounts and commissions:
<TABLE>
<S> <C>
SEC registration fee............................................... $ 15,466
NASD filing fee.................................................... 4,180
Nasdaq National Market listing fee................................. 50,000
Printing and engraving expenses.................................... 125,000
Legal fees and expenses............................................ 225,000
Accounting fees and expenses....................................... 120,000
Blue sky fees and expenses......................................... 20,000
Transfer agent and registrar fees.................................. 4,000
Directors and officers insurance fees.............................. 180,000
Miscellaneous expenses............................................. 6,354
--------
Total............................................................ $750,000
========
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL") empowers a
Delaware corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of such corporation) by reason of the
fact that such person is or was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. A
corporation may, in advance of the final disposition of any civil, criminal,
administrative or investigative action, suit or proceeding, pay the expenses
(including attorneys' fees) incurred by any officer, director, employee or
agent in defending such action, provided that the director or officer
undertakes to repay such amount if it shall ultimately be determined that he
is not entitled to be indemnified by the corporation. A corporation may
indemnify such person against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
A Delaware corporation may indemnify officers and directors in an action by
or in the right of the corporation to procure a judgment in its favor under
the same conditions, except that no indemnification is permitted without
judicial approval if the officer or director is adjudged to be liable to the
corporation. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the corporation must
indemnify him against the expenses (including attorneys' fees) which he
actually and reasonably incurred in connection therewith. The indemnification
provided is not deemed to be exclusive of any other rights to which an officer
or director may be entitled under any corporation's by-law, agreement, vote or
otherwise.
The Company's Certificate of Incorporation includes a provision that
eliminates the personal liability of its directors to the Company or its
stockholders for monetary damages for breach of their fiduciary duty to the
maximum extent permitted by the DGCL. The DGCL does not permit liability to be
eliminated (i) for any breach of a director's duty of loyalty to the Company
or its stockholders, (ii) for acts or omissions not in good faith or that
involve intentional misconduct or a knowing violation of law, (iii) for
unlawful payments of dividends or unlawful stock repurchases or redemptions,
as provided in Section 174 of the DGCL, or (iv) for any transaction
II-1
<PAGE>
from which the director derived an improper personal benefit. In addition, as
permitted in Section 145 of the DGCL, the Certificate of Incorporation and By-
Laws of the Company provide that the Company shall indemnify its directors and
officers to the fullest extent permitted by the DGCL, including those
circumstances in which indemnification would otherwise be discretionary,
subject to certain exceptions. The By-Laws also provide that the Company shall
advance expenses to directors and officers incurred in connection with an
action or proceeding as to which they may be entitled to indemnification,
subject to certain exceptions.
Each of the Employment Agreements with Messrs. Goldstein, Traub, Aguilar,
Ott and Whittington provides for indemnification to the maximum extent
permitted by applicable law. The Company will enter into indemnification
agreements with each of its directors and executive officers that provide the
maximum indemnification allowed to directors and executive officers by the
DGCL, subject to certain exceptions, as well as certain additional procedural
protections. In addition, the indemnification agreements will provide
generally that the Company will advance expenses incurred by directors and
executive officers in any action or proceeding as to which they may be
entitled to indemnification, subject to certain exceptions.
The indemnification provisions in the Company's Certificate of
Incorporation, By-Laws, the indemnification agreements to be entered into
between the Company and its directors and executive officers and each of the
Employment Agreements with Messrs. Goldstein, Traub, Aguilar, Ott and
Whittington, may permit indemnification for liabilities arising under the
Securities Act. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable.
The Company currently expects to carry director and officer liability
insurance following this offering.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
During the past three years, the following shares were sold by the Company
without registration under the Securities Act of 1933, as amended (the "Act").
All references to shares of the Company's Common Stock give effect to a sixty
thousand for one share stock split effected on December 8, 1993 but do not
give effect to the one-for-two share stock split effected on September 19,
1996.
(a) From August 1993 to January 1994, an aggregate of 6,245,000 shares of
the Company's Common Stock were sold by the Company for an aggregate of
$33,507, as follows:
<TABLE>
<CAPTION>
SHAREHOLDER NUMBER OF SHARES
----------- ----------------
<S> <C>
J. Gerard Aguilar........................................... 3,480,000
Jordan S. and Maria T. Davis ............................... 840,000
Mitchell Davis.............................................. 840,000
Kenneth H. Traub............................................ 840,000
Michael Goldstein........................................... 125,000
Allen Gersho................................................ 120,000
---------
6,245,000
=========
</TABLE>
The Company relied on the exemption from registration set forth in Section
4(2) of the Act. No fees were paid in connection with the foregoing sales of
securities.
II-2
<PAGE>
(b) In March 1994, the Company sold an aggregate of 2,000,000 units, each
unit consisting of one share of Common Stock and one warrant to purchase one
share of Common Stock at a purchase price of $0.75 per share. The Company sold
units to the following persons at a price of $0.25 per unit.
<TABLE>
<CAPTION>
UNITHOLDER NUMBER OF UNITS
---------- ---------------
<S> <C>
Lester Youner................................................. 40,000
Stuart P. Milsten............................................. 35,000
William R. Davis and Sheila Davis............................. 35,000
Igor Stenmark................................................. 40,000
Peter W. Ryan................................................. 30,000
Arie Genger................................................... 100,000
Herbert Goldstein............................................. 60,000
David J. Roux................................................. 80,000
Paul Jacobs................................................... 60,000
Lawrence A. Spector........................................... 20,000
Edward Goldstein.............................................. 60,000
Eric Schreiber................................................ 20,000
Mitchell Napack............................................... 30,000
Peter M. Wood................................................. 100,000
Steven Bier................................................... 30,000
Lois B. Hoffner............................................... 30,000
Voice Tech Ventures........................................... 280,000
Abel Aguilar.................................................. 80,000
Alec Gindis................................................... 200,000
Burton and Elaine Traub....................................... 20,000
George and Lorraine Zimmerman................................. 10,000
Alan Gelband.................................................. 60,000
Alan Gelband Co. Defined Contribution Pension Plan & Trust.... 60,000
Richard W. Kates.............................................. 20,000
John M. McMahon............................................... 40,000
Terrence L. Mealy............................................. 20,000
Dr. Gary S. Traub............................................. 10,000
Paul Traub.................................................... 10,000
Marvin Haas................................................... 110,000
John Bendik................................................... 40,000
Harry Krensky and Linda Krensky............................... 20,000
Michael Bernstein............................................. 10,000
Bohemond Corp................................................. 100,000
David Handler................................................. 20,000
Stanley Davis and Silvia Davis................................ 10,000
Thomas Hardy.................................................. 110,000
---------
2,000,000
=========
</TABLE>
The Company relied on the exemption from registration set forth in Section
4(2) of the Act. No fees were paid in connection with the foregoing sales of
securities.
II-3
<PAGE>
(c) From November 1994 through February 1995, the Company sold an aggregate
of 3,300,000 shares of Common Stock to the following persons at a price of
$0.75 per share:
<TABLE>
<CAPTION>
SHAREHOLDER NUMBER OF SHARES
----------- ----------------
<S> <C>
Diego and Irene Alvarez..................................... 20,000
Hormozan Aprin, M.D. and Mahmaz Aprin....................... 100,000
Robert E. and Debra A. Balducci............................. 10,000
John E. Bendik.............................................. 51,000
Ennius E. Bergsman.......................................... 40,000
Steven J. Bier.............................................. 30,000
Mark A. and Maribeth Brostowski............................. 30,000
Joel A. and Karen Ann Budin................................. 50,000
John F. Burton.............................................. 100,000
Capital Express, L.L.C...................................... 100,000
James A. and JoAnn A. Cohen................................. 100,000
Joseph Coler DC............................................. 14,000
Kevin Collins............................................... 10,000
Smith Barney, Inc. IRA Custodian FBO J. Douglas Cox......... 40,000
Kathryn A. and J. Douglas Cox............................... 34,000
Kathryn A. Cox M.D. PC Retirement Trust..................... 26,000
Keith Eisenstark and Mary Beth Walsh........................ 10,000
Leonard G. Epstein.......................................... 35,000
Sheryl Fischer.............................................. 4,000
Mark H. Folit............................................... 20,000
Wayne J. and Deborah R. Friedman............................ 67,000
Jeffrey Garber.............................................. 10,000
David Gardner............................................... 20,000
Scott M. Gibson............................................. 10,000
Louis M. Gidding............................................ 10,000
Alec Gindis................................................. 100,000
Daniel Paul Goldman......................................... 20,000
Michael Goldman............................................. 20,000
Edward Goldstein............................................ 50,000
Steven J. Golub............................................. 50,000
Ira A. Gomberg.............................................. 40,000
Richard L. Green............................................ 14,000
Harlan T. Greenman.......................................... 7,000
Natalie J. Greenman......................................... 7,000
Steven M. Grossman.......................................... 20,000
Eugene and Joan Gyesky...................................... 20,000
Dhananjay Hajela............................................ 60,000
Thomas Hardy................................................ 70,000
Paul D. Harris.............................................. 70,000
Glenn H. Hutchins........................................... 50,000
Darlynn L. Johnson.......................................... 26,000
Beth Kaplan................................................. 50,000
Richard W. Kates............................................ 67,000
Gary H. and Cindy S. Katz................................... 7,000
Edward Klimerman............................................ 42,000
Joseph Korff................................................ 50,000
Carolyn H. Kornblau......................................... 20,000
Harry F. and Linda M. Krensky............................... 51,000
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SHAREHOLDER NUMBER OF SHARES
----------- ----------------
<S> <C>
Charles T. and Nina A. Langpaul............................. 20,000
Alicia Latkovski............................................ 14,000
David A. Leff, D.O.......................................... 10,000
Lengfeld S.A................................................ 15,000
Marc N. and Pamela Levin.................................... 30,000
Fred and Cindi Brandt Levin................................. 8,000
Mark and Rachel Lipschutz................................... 8,000
Gregory G. Mario............................................ 100,000
Mark Mazzonelli............................................. 50,000
Michael L. and Cynthia G. McEachern......................... 30,000
Terrence L. Mealy........................................... 20,000
Edwin L. Miller............................................. 50,000
Stuart P. Milsten........................................... 10,000
Daniel S. Mintz............................................. 100,000
Richard and Maria Molinsky.................................. 33,000
Mario M. Morino............................................. 100,000
Michael Moskowitz........................................... 50,000
James Mossman............................................... 50,000
William J. Murray........................................... 30,000
Guarantee & Trust Co. TTEEFBO Philip Musicant............... 20,000
Fred T. and Elyce L. Perlstadt.............................. 20,000
Richard E. and Selena Lynn Pickering........................ 15,000
Gabriel Politzer............................................ 10,000
John G. Powers.............................................. 10,000
Renwick Alpha Fund.......................................... 100,000
Michael J. Reilly........................................... 40,000
Chris K. Richey............................................. 16,500
Mark Rosenblatt and Sarah M. Stern.......................... 50,000
Joseph and Sydell Roth...................................... 10,000
Andrea R. Ryan.............................................. 10,000
Robert Schiller............................................. 20,000
Geoffrey G. G. Sharp........................................ 10,000
Meyar Sheik................................................. 10,000
Jesse and Rochelle E. Shereff............................... 20,000
Howard Siegel............................................... 10,000
Simon Family Associates..................................... 10,000
Richard L. Smith............................................ 87,500
Bruce Todd Spector.......................................... 10,000
Robin Lee Steinfeld......................................... 10,000
Alan Stupell................................................ 20,000
Sarah Swiatycki............................................. 10,000
Charles and Roseann Terzano................................. 10,000
Burton H. and Elaine Traub.................................. 10,000
Laurence Usdin.............................................. 20,000
Voice Compression Associates................................ 121,000
Lauren S. Youner............................................ 4,000
Lester W. Youner and Sherry Youner.......................... 26,000
Ronald L. Zander............................................ 10,000
---------
3,300,000
=========
</TABLE>
II-5
<PAGE>
The Company relied on the exemption afforded from registration set forth in
Section 4(2) of the Act and Regulation D promulgated thereunder. No fees were
paid in connection with the foregoing sales of securities.
(d) In December 1995, the Company sold a total of 4,000,000 shares of Series
A Preferred Stock. The Company sold the shares of Series A Preferred Stock to
the following persons at a price of $1.00 per share.
<TABLE>
<CAPTION>
SHARES OF SERIES A
SHAREHOLDER PREFERRED STOCK
----------- ------------------
<S> <C>
Advent International Investors II Limited Partnership.... 5,000
Adtel Limited Partnership................................ 500,000
Advent Crown Fund C.V.................................... 800,000
Adwest Limited Partnership............................... 350,000
Advent Israel (Bermuda) Limited Partnership.............. 27,025
Advent Israel Limited Partnership........................ 222,975
Advent Partners Limited Partnership...................... 95,000
North Bridge Venture Partners, L.P....................... 2,000,000
---------
4,000,000
=========
</TABLE>
The Company relied on the exemption from registration set forth in Section
4(2) of the Act. No fees were paid in connection with the foregoing sales of
securities.
(e) In March 1996, the Company sold 1,000,000 shares of Series A Preferred
Stock to Intel Corporation and 1,000,000 shares of Series A Preferred Stock to
Netscape Communications Corporation at a price of $1.00 per share. The Company
relied on the exemption from registration set forth in Section 4(2) of the
Act. No fees were paid in connection with the foregoing sales of securities.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits.
<TABLE>
<S> <C>
1. Form of Underwriting Agreement.**
3.1 Certificate of Incorporation, as amended.**
3.2 Bylaws.**
4.1 Specimen Common Stock Certificate.**
4.2 Form of Warrant to Purchase Shares of Common Stock.**
5. Opinion of Fulbright & Jaworski L.L.P.
10.1 Voxware, Inc. 1994 Stock Option Plan.**
10.2 Form of Voxware, Inc. Stock Option Agreement.**
10.3 Form of Indemnification Agreement.**
10.4 Series A Preferred Stock Purchase Agreement, dated December 19, 1995, as amended.**
10.5 Employment Agreement dated January 3, 1994, with Michael Goldstein, as amended.**
10.6 Employment Agreement dated February 1, 1995, with Kenneth H. Traub.**
10.7 Employment Agreement dated August 15, 1995, with Kenneth Whittington.**
10.8 Employment Agreement dated February 28, 1994, with J. Gerard Aguilar.**
10.9 Employment Agreement dated August 15, 1994, with Steven J. Ott.**
10.10 Technology Transfer Agreement Effective May 19, 1995, between Suat Yeldener Ph.D.
and Voxware, Inc.**+
10.11 Software License Agreement, dated January 31, 1996, with Netscape Communications
Corporation.**+
10.12 License Agreement, dated June 28, 1996 with America Online, Inc.**+
10.13 License Agreement, dated September 26, 1995 with Microsoft Corporation.**+
10.14 License Agreement, dated June 28, 1996 with USFI, Inc.**+
</TABLE>
II-6
<PAGE>
<TABLE>
<S> <C>
10.15 License Agreement, dated March 29, 1996 with VDOnet Corporation Ltd.**+
10.16 License Agreement, dated June 28, 1996 with Vienna Systems Corporation.**+
10.17 Lease, dated April 10, 1996, between College Road Associates, Limited Partnership and
the Company.**
10.18 Acquisition Agreement, dated January 30, 1996, with K & F Software.**
10.19 Stockholders Agreement, dated December 19, 1995, as amended.**
10.20 License Agreement, dated September 13, 1996 with Lucent Technologies Inc.**+
10.21 1996 Employee Stock Purchase Plan.**
10.22 Letter of Intent with Silicon Valley Bank.**
10.23 License Agreement, dated September 27, 1996 with Disney Online.+
11. Computation of Per Share Earnings.**
16. Letter from Ernst & Young LLP respecting change in certifying accountant.**
23.1 Consent of Arthur Andersen LLP.**
23.2 Consent of Fulbright & Jaworski L.L.P. (contained in Exhibit 5).
24. Power of Attorney.**
27. Financial Data Schedule.**
</TABLE>
- --------
+A request for confidential treatment has been made for portions of such
document.
**Previously filed.
(b) Financial Statement Schedules.
Not Applicable.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes to provide to the Underwriters
at the closing specified in the Underwriting Agreement, certificates in such
denominations and registered in such names as required by the Underwriters to
permit prompt delivery to each purchaser.
The undersigned registrant hereby undertakes that:
(1) Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to directors, officers
and controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(2) For purposes of determining any liability under the Securities Act of
1933, as amended, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of this registration statement as of the time it was declared
effective.
(3) For the purpose of determining any liability under the Securities Act
of 1933, as amended, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-7
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE
REGISTRANT HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS
BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF PRINCETON
AND STATE OF NEW JERSEY ON THE 14TH DAY OF OCTOBER 1996.
Voxware, Inc.
/s/ Michael Goldstein
By: _________________________________
Michael Goldstein
President and Chief Executive
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED:
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Michael Goldstein President and Chief
- ------------------------------------- Executive Officer October 14, 1996
MICHAEL GOLDSTEIN and Director
(principal
executive officer)
/s/ Kenneth H. Traub Executive Vice October 14, 1996
- ------------------------------------- President, Chief
KENNETH H. TRAUB Financial Officer,
Secretary and
Director (principal
financial officer)
/s/ J. Gerard Aguilar* Director October 14, 1996
- -------------------------------------
J. GERARD AGUILAR
/s/ William J. Geary* Director October 14, 1995
- -------------------------------------
WILLIAM J. GEARY
/s/ Jordan S. Davis* Director October 14, 1996
- -------------------------------------
JORDAN S. DAVIS
/s/ Andrew I. Fillat* Director October 14, 1996
- -------------------------------------
ANDREW I. FILLAT
/s/ David Roux* Director October 14, 1996
- -------------------------------------
DAVID ROUX
/s/ Richard M. Schell* Director October 14, 1996
- -------------------------------------
RICHARD M. SCHELL
/s/ Nicholas Narlis* Controller, Chief October 14, 1996
- ------------------------------------- Accounting Officer
NICHOLAS NARLIS and Treasurer
(principal accounting
officer)
</TABLE>
*By /s/ Kenneth H. Traub
------------------------------------
(Kenneth H. Traub as attorney-in-fact for each
ofthe persons indicated)
II-8
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
NUMBER DESCRIPTION OF DOCUMENT NUMBER
------ ----------------------- ------
<S> <C> <C>
1. Form of Underwriting Agreement.**
3.1 Certificate of Incorporation, as amended.**
3.2 Bylaws.**
4.1 Specimen Common Stock Certificate.**
4.2 Form of Warrant to Purchase Shares of Common Stock.**
5. Opinion of Fulbright & Jaworski L.L.P.
10.1 Voxware, Inc. 1994 Stock Option Plan.**
10.2 Form of Voxware, Inc. Stock Option Agreement.**
10.3 Form of Indemnification Agreement.**
10.4 Series A Preferred Stock Purchase Agreement, dated December 19, 1995, as amended.**
10.5 Employment Agreement dated January 3, 1994, with Michael Goldstein, as amended.**
10.6 Employment Agreement dated February 1, 1995, with Kenneth H. Traub.**
10.7 Employment Agreement dated August 15, 1995, with Kenneth Whittington.**
10.8 Employment Agreement dated February 28, 1994, with J. Gerard Aguilar.**
10.9 Employment Agreement dated August 15, 1994, with Steven J. Ott.**
10.10 Technology Transfer Agreement Effective May 19, 1995, between Suat Yeldener Ph.D.
and Voxware, Inc.**+
10.11 Software License Agreement, dated January 31, 1996, with Netscape Communications
Corporation.**+
10.12 License Agreement, dated June 28, 1996 with America Online, Inc.**+
10.13 License Agreement, dated September 26, 1995 with Microsoft Corporation.**+
10.14 License Agreement, dated June 28, 1996 with USFI, Inc.**+
10.15 License Agreement, dated March 29, 1996 with VDOnet Corporation Ltd.**+
10.16 License Agreement, dated June 28, 1996 with Vienna Systems Corporation.**+
10.17 Lease, dated April 10, 1996, between College Road Associates, Limited Partnership and
the Company.**
10.18 Acquisition Agreement, dated January 30, 1996, with K & F Software.**
10.19 Stockholders Agreement, dated December 19, 1995, as amended.**
10.20 License Agreement, dated September 13, 1996 with Lucent Technologies Inc.**+
10.21 1996 Employee Stock Purchase Plan.**
10.22 Letter of Intent with Silicon Valley Bank.**
10.23 License Agreement, dated September 27, 1996 with Disney Online.+
11. Computation of Per Share Earnings.**
16. Letter from Ernst & Young LLP respecting change in certifying accountant.**
23.1 Consent of Arthur Andersen LLP.**
23.2 Consent of Fulbright & Jaworski L.L.P. (contained in Exhibit 5).
24. Power of Attorney.**
27. Financial Data Schedule.**
</TABLE>
- --------
+A request for confidential treatment has been made for portions of such
document.
**Previously filed.
<PAGE>
Exhibit 5
[LETTERHEAD OF FULBRIGHT & JAWORSKI L.L.P. APPEARS HERE]
October 14, 1996
Voxware, Inc.
305 College Road East
Princeton, New Jersey 08540
Dear Sirs:
We have acted as counsel to Voxware, Inc., a Delaware corporation (the
"Company"), in connection with its filing with the Securities and Exchange
Commission of a Registration Statement on Form S-1 (Registration No. 333-08393),
as amended (as so amended, the "Registration Statement"), under the Securities
Act of 1933, as amended. The Registration Statement relates to the proposed
sale by the Company, in a public offering, of 3,000,000 shares of the Company's
Common Stock, par value $.001 per share ("Common Stock"). The Registration
Statement also relates to the proposed sale by the Company of up to an
additional 450,000 shares of Common Stock subject to an option (the "Over-
Allotment Option") from the Company to the underwriters (the "Underwriters") for
the offering, exercisable within thirty (30) days after the effective date of
the Registration Statement, to cover over-allotments.
In connection with this opinion, we have examined the originals, or copies
certified or otherwise identified to our satisfaction, of (i) the Company's
Certificate of Incorporation, as amended, and By-Laws filed as Exhibits 3.1 and
3.2, respectively, to the Registration Statement, (ii) the form of Underwriting
Agreement between the Company and the Underwriters filed as Exhibit 1 to the
Registration Statement (the "Underwriting Agreement"), and (iii) such corporate
records, documents and such questions of law as we have deemed necessary or
appropriate for the purposes of this opinion. In such examinations, we have
assumed the genuineness of signatures and the conformity to original documents
of the documents supplied to us as copies. As to the various questions of fact
material to such opinion, we have relied upon statements and certificates of
officers and representatives of the Company. We have further assumed that all
documents examined by us in the form of drafts will, when executed by the
requisite signatories thereto, conform in substance and form in all material
respects to the drafts that we have examined.
<PAGE>
Voxware, Inc.
October 14, 1996
Page 2
We assume that appropriate action will be taken, prior to the offer and
sale of the shares of Common Stock, to register and qualify such shares for sale
under all applicable state securities or "blue sky" laws.
Based upon the foregoing, and subject to the qualifications hereinafter set
forth, we are of the opinion that the Common Stock (including, without
limitation, the Common Stock subject to the Over-Allotment Option) have been
duly authorized and, when issued and sold in accordance with the terms and
conditions of the Underwriting Agreement, will be validly issued, fully paid and
nonassessable.
We consent to the filing of this opinion as Exhibit 5 to the Registration
Statement and to the reference to this firm under the caption "Legal Matters" in
the Prospectus contained therein. This consent is not to be construed as an
admission that we are a person whose consent is required to be filed with the
Registration Statement under the provisions of the Securities Act of 1933, as
amended.
Very truly yours,
/s/Fulbright & Jaworski L.L.P.
<PAGE>
[Confidential treatment has been requested for portions of this exhibit. The
Confidential Portions has been redacted and are denoted by [***]. The
Confidential Portions have been separately filed with the Commission.]
Exhibit 10.23
SOFTWARE LICENSE AGREEMENT
This Agreement is made and entered into as of this 27 day of
September, 1996 ("Effective Date") by and between Disney Online, a California
corporation ("Disney") and Voxware, Inc., a Delaware corporation, located at 305
College Road East, Princeton, New Jersey 08540 ("Voxware").
WHEREAS, Voxware is the owner of certain proprietary audio streaming,
conferencing and related technology; and
WHEREAS, Disney wishes to obtain a license to integrate, market and
distribute such technology as part of the Internet services and products of
Disney and its affiliated companies on the terms and conditions set forth herein
and Voxware wishes to grant Disney such a license on such terms.
NOW, THEREFORE, for good and valuable consideration, the parties
hereby agree as follows:
1. Definitions. For purposes of this Agreement, the following terms
have the following meanings:
(a) "Licensed Technology" means the proprietary streaming audio
player and audio file conversion technology ("RT24" and "RT29HQ"), multi-point
conferencing technology ("TNT") and music steaming technology ("Midi Transport")
developed by Voxware which is more fully described on Exhibit A attached hereto
---------
and incorporated herein by reference.
(b) "Disney Affiliates" means any one or more of Disney, The Walt
Disney Company or any of its related, affiliated or subsidiary companies or any
joint venture of any of the foregoing.
(c) "Disney Product" means any online product or service
assembled, developed and/or marketed by Disney or any of the Disney Affiliates,
or on their behalf, whether delivered to customers on tangible media or as a
software download.
(d) "Disney Service" means any online service or web site
developed by Disney or any of the Disney Affiliates, or on their behalf.
(e) "Intellectual Property Rights" means any and all (by whatever
name or term known or designated) tangible and intangible and now known or
hereafter existing (i) rights associated with works of authorship throughout the
universe, including but not limited to copyrights, moral rights, and mask-works,
(ii) trademark and trade name rights and similar rights, (iii) trade secret
rights, (iv) patents, designs, algorithms and other industrial property rights,
(v) all other intellectual and industrial property and proprietary rights (of
every kind and nature throughout the universe and
<PAGE>
however designated) (including without limitation logos, character rights,
"rental" rights and rights to remuneration), whether arising by operation of
law, contract, license or otherwise, and (vi) all registrations, applications,
renewals, extensions, continuations, divisions or reissues thereof now or
hereafter in force throughout the universe (including without limitation rights
in any of the foregoing).
2. Grant of Rights.
(a) Subject to the terms and conditions of this Agreement, Voxware
hereby grants Disney an irrevocable, perpetual, worldwide, nonexclusive license
to (i) use, reproduce, market perform, display and distribute the Licensed
Technology or portions thereof as part of one or more Disney Products, and (ii)
use, reproduce, market, perform, display and distribute the Licensed Technology
or portions thereof in connection with and as part of one or more Disney
Services on an unlimited number of servers. Disney shall have the right to
sublicense the rights granted in this Agreement to the Disney Affiliates and
third parties acting on Disney's or any of the Disney Affiliates' behalf only in
connection with the Disney Products and Disney Services. The foregoing license
is a license of "intellectual property rights" as defined in Section 365(n) of
the U.S. Bankruptcy Code.
(b) No Obligation to Use. Voxware acknowledges and agrees that
--------------------
Disney is not obligated to use or exploit the Licensed Technology or, if
commenced, to continue the use or exploitation of the Licensed Technology either
alone or as a part of any product or service or in any territory. Nothing in
this Agreement shall prevent Disney from independently developing or licensing
from third parties and using technology or material similar to or competitive
with the Licensed Technology as part of the Disney Products or Disney Services,
either separately or concurrently with the Licensed Technology.
3. Voxware's Obligations.
(a) Delivery of Licensed Technology. On or before the Effective
-------------------------------
Date Voxware shall deliver to Disney the complete final post-beta and operations
object code versions of the Licensed Technology, for Windows 95 on IBM-
Compatible PC and Power Mac platforms. Disney shall have a period of thirty (30)
days in which to review the Licensed Technology and to confirm that it fully
complies with its specifications. In the event that Disney rejects the Licensed
Technology, Disney shall provide Voxware with written notice of the reasons
therefor. Voxware shall have a period of thirty (30) days in which to correct
such defects and the above procedure shall be repeated. If Disney again rejects
the Licensed Technology, Disney shall have the right to terminate this Agreement
immediately upon notice and without further obligation to Voxware and Voxware
shall, within five (5) days, refund to Disney an amount equal to [***]
dollars ($[***]).
-2-
<PAGE>
(b) Additions.
---------
(i) Voxware shall make and deliver to Disney the additions
to the Licensed Technology described in Exhibit B attached hereto and
---------
incorporated herein by reference ("Additions") pursuant to the Schedule set
forth therein. Such Additions shall be delivered in object code form and when
accepted by Disney, shall be deemed part of the Licensed Technology.
(ii) Disney shall have a period of thirty (30) days after
the delivery of each Addition in which to review such Addition and to confirm
that it fully complies with its specifications and Disney's reasonable
expectations of functionality and interface for technology of such kind. In the
event that Disney rejects any Addition, Disney shall provide Voxware with
written notice of the reasons therefor. Voxware shall have a period of fifteen
(15) days in which to correct such defects and the above procedure shall be
repeated. If Disney again rejects one or more Additions, Disney shall have the
right to terminate this Agreement immediately upon notice and without further
obligation to Voxware and Voxware shall, within five (5) days, refund to Disney
an amount equal to [***] dollars ($[***]) for each Addition so rejected. Such
amount shall be reduced by any amounts already refunded to Disney, pursuant to
Section 5(a)(ii) for such Addition.
(c) Escrow. Voxware shall deliver into escrow the source code for
------
the Licensed Technology and the Additions, and documentation therefor, pursuant
to the Escrow Agreement between the parties of even date herewith which is
attached hereto as Exhibit C and incorporated herein by reference. Voxware shall
---------
update the source code for the Licensed Technology and the Additions on a
monthly basis every time the Licensed Technology or the Additions have changed,
including without limitation depositing source code for the Updates and
Compatibility Enhancements (as defined in Section 3(e)(iv)).
(d) Cooperation. For so long as Voxware is obligated to provide
-----------
Maintenance and Support (as defined below) hereunder, Voxware shall cooperate
with and provide reasonable assistance to any other developers Disney or the
Disney Affiliates engage in connection with any of the Disney Products or Disney
Services. Without limitation of the foregoing, Voxware shall work with such
developers to integrate the Licensed Technology with the Disney Products and
Disney Services. Such assistance shall be provided at no additional charge,
except as provided in Section 5(b) below).
(e) Maintenance and Support. For the period beginning on the
-----------------------
Effective Date and ending one (1) year after Disney's acceptance of all the
Additions pursuant to Section 3(d) (but in no circumstances beyond June 1, 1998)
("Initial Support Period"), and thereafter, at Disney's option, Voxware shall
provide the following services ("Maintenance and Support").
-3-
<PAGE>
(i) Voxware shall promptly correct any errors or defects
("Bugs") that cause the Licensed Technology to fail to work strictly in
accordance with its specifications. Disney shall provide Voxware with a written
report of any Bug it discovers, including all of the materials or information
required to reproduce such Bug. Disney shall classify Bugs using the following
definitions:
Fatal: Bugs which prevent the Licensed Technology from being
- -----
accessed by end users.
Severe: Bugs which disable major functions of the Licensed
- ------
Technology.
Degraded: Bugs which disable only certain nonessential functions
- --------
of the Licensed Technology.
Minimal Impact: All other Bugs.
- --------------
Unless Disney agrees otherwise in writing, Voxware shall provide Disney with an
acknowledgment of the Bug and a work around solution according to the following
schedule and a permanent solution as soon as possible thereafter:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Bug Acknowledgment Period of Time for work around
<S> <C> <C>
Fatal Within [***] [***]
- --------------------------------------------------------------------------------
Severe Within [***] [***]
- --------------------------------------------------------------------------------
Degraded Within [***] [***]
Operations
- --------------------------------------------------------------------------------
Minimal Impact [***] [***]
- --------------------------------------------------------------------------------
</TABLE>
(ii) Additionally, Voxware shall provide Disney and the
Disney Affiliates with "Support" upon any such party's reasonable request.
Support shall be provided during the hours of 8:00 a.m. - 8:00 p.m., Eastern
time, or such other hours as mutually agreed. Voxware shall respond to all
requests for Support within [***] or, if the request for Support is received
outside of such hours, by [***]. Disney and the Disney Affiliates may make
requests for Support by telephone, fax, e-mail or any other reasonable means.
"Support" means answering Disney's and the Disney Affiliates' questions and
providing assistance with respect to any aspect of the Licensed Technology, its
format or use.
(iii) Each party shall designate up to three (3) individuals
to act as its "Support Liaisons". Disney shall make all requests for Support
through its Support Liaisons to Voxware's Support Liaisons and Voxware shall
have no obligation to respond to requests for Support received from any party
other than Disney's Support Liaisons. Each party may change its Support Liaisons
upon written notice.
-4-
<PAGE>
(iv) Updates.
-------
A. Voxware shall provide to Disney all updates,
enhancements, Bug fixes and modifications, including without limitation
additions and/or increases in functionality, (collectively "Updates") to the
Licensed Technology or any portion thereof, whether developed by Voxware on its
own behalf or on behalf of any third party, as soon as such items are available,
including without limitation, additions and/or increases in functionality to the
client and/or server component technology.
B. As the market standards for online audio
streaming and multipoint conferencing technology evolve, Voxware shall, [***],
use commercially reasonable efforts to add functionality to and modify the
Licensed Technology and its components so that the Licensed Technology shall be
compatible with protocols such as [***] ("Compatibility Enhancements"). During
the same period, Voxware shall provide to Disney, [***]. Voxware's obligations
under this Section 3(e)(iv)(B) with respect to any version of the Licensed
Technology for a particular Internet browser or operating system shall terminate
(i) for systems which are more than one generation behind the currently
available system; (ii) [***] after the vendor of such operating system ceases to
offer support to end users of such operating system.
C. All Updates and Compatibility Enhancements shall
be deemed part of the Licensed Technology. Notwithstanding anything to the
contrary herein, "Updates" and "Compatibility Enhancements" shall not include
any updates, enhancements, modifications or compatibility enhancements made by
Voxware under any agreement with a third party under which Voxware is expressly
prohibited from licensing such updates, enhancements, modifications or
compatibility enhancements to others.
4. Marketing and Promotion.
(a) Trademarks. Voxware hereby grants Disney a nonexclusive,
----------
worldwide right to use Voxware's name, logos, trademarks and trade names (the
"Trademarks") to identify the fact that the Licensed Technology is incorporated
in Disney Services and Disney Products, including without limitation, in
connection with the use, distribution, marketing and promotion of the Licensed
Technology, Disney Services and Disney Products. Disney shall submit to Voxware
for its reasonable approval of presentation and color all representations of the
Trademarks Disney intends to use. If Disney, in the course of distributing the
Licensed Technology, acquires any goodwill or reputation in any of the
Trademarks, all such goodwill or reputation shall automatically vest in Voxware
when and as, on an on-going basis, such acquisition of goodwill or reputation
occurs, as well as at the expiration or termination of this Agreement, without
any separate payment or other consideration of any kind
-5-
<PAGE>
to Disney and Disney agrees to take all actions necessary to effect such
vesting. Voxware acknowledges and agrees that Disney shall have no obligation
whatsoever to use the Trademarks and Disney shall affix its own labels,
trademarks, and logos, and any required labels and logos of third parties, to
the Disney Services and Disney Products. Disney may sublicense the rights
granted in this Section 4(a) and in Section 4(b) to the Disney Affiliates and
third parties acting on Disney's or any of the Disney Affiliates' behalf in
connection with the Disney Products and Disney Services.
(b) Publicity by Disney. Disney shall have the right, but no
-------------------
obligation whatsoever, to use, publish and permit others to use and publish, in
connection with the promotion and marketing of the Licensed Technology, Disney
Services and Disney Products, the names, likenesses, voices, and biographical
material of Voxware and its employees. Voxware shall from time to time at
Disney's request, subject to Voxware's reasonable availability and consent,
which shall not be unreasonably withheld or delayed: (i) confer and consult with
Disney concerning the promotion of the Licensed Technology, (ii) appear for
interviews which Disney may arrange; (iii) appear for photography and/or artwork
under the direction of Disney; (iv) appear on radio, television and elsewhere;
and (v) record interviews and announcements, all for the purpose of advertising,
promoting, publicizing and exploiting the Licensed Technology, Disney Services
and Disney Products. Disney shall reimburse Voxware for all reasonable expenses
it incurs pursuant to this section which Disney has preapproved in writing.
Disney shall consult with Voxware regarding the use of all photographs and
biographical material with respect to Voxware or its employees not furnished by
Voxware, the use of which is subject to Voxware's approval, which shall not be
unreasonably withheld or delayed. Disney shall have no obligation to accord
Voxware credit within the Disney Products or Disney Services or otherwise.
(c) Publicity by Voxware. Voxware shall not directly or indirectly
--------------------
issue or permit the issuance of any press releases or publicity regarding, or
make any public statements whatsoever concerning, Disney, this Agreement, or the
Disney Services or Disney Products without prior coordination with and approval
by Disney, which approval may be granted or withheld in Disney's sole
discretion. Voxware shall not state or imply, in advertisements, writings, or
otherwise, that Disney endorses Voxware's products or services or any other
product or service. This Section shall not prohibit Voxware from making any
statements concerning this Agreement which are required by the federal
securities laws.
(d) No Right to Use Disney Name. Except and only to the extent
---------------------------
specifically set forth in this Agreement, neither Voxware nor any employee,
officer, director, agent, contractor, parent, subsidiary, affiliate, joint
venturer or partner of Voxware (each a "Voxware Affiliate") or other party shall
acquire any right under this Agreement to use, and Voxware shall not use, and
shall not allow or assist any Voxware Affiliate or other party to use, the name
"Disney", or any other Intellectual Property Right (including without limitation
any fanciful characters or designs) of Disney, or any one or more of the Disney
Affiliates for any purpose whatsoever.
-6-
<PAGE>
5. Fees and Payments.
(a) License Fee.
-----------
(i) Upon execution of this Agreement, and subject to
subsection (d) below, Disney shall pay Voxware a one-time license fee in an
amount equal to [***] dollars ($[***]) (the "License Fee").
(ii) Notwithstanding the foregoing, in the event Voxware
fails to deliver one or more of the Additions by the delivery date set forth for
each such Addition on Exhibit B, Voxware shall refund to Disney an amount equal
---------
to [***] dollars ($[***]) for each Addition which is not delivered by its
applicable delivery date.
(b) Support. In the event that Disney wishes Voxware to continue
-------
to provide cooperation under Section 3(d) and Maintenance and Support under
Section 3(e) after the Initial Support Period, Disney shall pay Voxware a
"Support Fee" equal to [***] dollars ($[***]) for each twelve (12) month period
in which Disney wishes Voxware to provide such cooperation and Maintenance and
Support.
(c) Taxes. Disney shall be responsible for all sales taxes, use
-----
taxes and any other taxes and charges of any kind imposed by any federal, state
or local governmental entity on the transactions contemplated herein, excluding
only taxes based solely upon Voxware's income.
(d) Payment. Payment of the License Fee shall be made within
-------
thirty (30) days after Disney's receipt of Voxware's invoice therefor. Payment
of the yearly Support Fee shall be due within thirty (30) days after the
commencement of each year in which Disney desires Voxware to provide Maintenance
and Support (calculated as commencing the day after the last day of the Initial
Support period). All payments hereunder shall be made in U.S. dollars by company
check payable to Voxware.
(e) [***]
6. [***]
-7-
<PAGE>
7. Representations and Warranties.
(a) By Voxware. Voxware represents and warrants that: (i) it has the
----------
right, power and authority to enter into this Agreement and to fully perform its
obligations hereunder; (ii) the making of this Agreement by it does not violate
any agreement existing between it and any other person or entity; (iii) the
Licensed Technology is delivered free and clear of any liens, charges,
encumbrances, or restrictions, including those of Voxware's suppliers or
licensors; (iv) the Licensed Technology, as delivered by Voxware, is original
and, for a period of three (3) years from the Effective Date, is not in the
public domain; (v) the Licensed Technology, including without limitation, any
images, photographs, or graphics contained therein, does not violate or infringe
any right of privacy or publicity or any other Intellectual Property Right, or
contain any libelous, defamatory, obscene or unlawful material, or otherwise
violate or infringe any other right of any third party; (vi) Voxware possesses
all rights necessary for the production, distribution and exploitation of the
Licensed Technology, both alone and as part of the Disney Products and Disney
Services; and (vii) the Licensed Technology, as delivered, shall operate
substantially in accordance with its specifications and shall be free of any
willfully introduced computer virus or harmful, malicious or hidden program or
data, including without limitation, any hardware or software device or code
which shall prevent Disney or its online customers from accessing or using the
Licensed Technology or any portion thereof. In the event of any failure of the
Licensed Technology to operate as set forth in (vii), Voxware shall promptly
correct such failure pursuant to the procedure set forth in Section 3(e)(i).
(b) By Disney. Disney represents and warrants that (i) it has the
---------
right, power and authority to enter into this Agreement and to fully perform its
obligations under this Agreement; and (ii) the making of this Agreement by it
does not violate any agreement existing between Disney and any other party.
OTHER THAN THE LIMITED WARRANTIES DESCRIBED ABOVE, NEITHER PARTY MAKES ANY
WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE LICENSED
TECHNOLOGY, DISNEY PRODUCTS, DISNEY SERVICES, THIS AGREEMENT, OR ITS PERFORMANCE
HEREUNDER, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OR
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Indemnification; Limitation on Liability.
(a) By Voxware. Voxware agrees to, and shall, indemnify, defend and
----------
hold harmless Disney and the Disney Affiliates and their respective directors,
shareholders, officers, agents, employees, successors and assigns from and
against any and all claims, demands, suits, actions, judgments, damages, costs,
losses, expenses (including reasonable attorneys' fees and expenses) and other
liabilities arising from,
-8-
<PAGE>
in connection with or related in any way to, directly or indirectly, (i) any
breach or alleged breach of any of the representations, warranties or agreements
made by it under this Agreement; (ii) Voxware's activities hereunder; or (iii)
any act or omission of Voxware, its directors, officers, agents, employees or
subcontractors. Disney shall promptly notify Voxware of any such claim.
Voxware shall bear full responsibility for the defense (including any
settlements); provided, however, that (1) Voxware shall keep Disney informed of,
and consult with Disney in connection with the progress of such litigation or
settlement; and (2) Voxware shall not have any right, without Disney's written
consent, to settle any such claim if such settlement arises from or is part of
any criminal action, suit or proceeding or contains a stipulation to or
admission or acknowledgment of, any liability or wrongdoing (whether in
contract, tort or otherwise) on the part of any Disney Affiliate.
(b) By Disney. Disney agrees to, and shall, indemnify, defend and hold
---------
harmless Voxware, and its directors, shareholders, officers, agents, employees,
successors and assigns from and against any and all claims, demands, suits,
actions, judgments, damages, costs, losses, expenses (including reasonable
attorneys' fees and expenses) and other liabilities arising from, in connection
with or related in any way to, directly or indirectly, a breach or alleged
breach of any of the representations and the warranties set forth in Section
7(b) hereof. Voxware shall promptly notify Disney of any such claim. Disney
shall bear full responsibility for the defense (including any settlements);
provided, however, that (1) Disney shall keep Voxware informed of the progress
of such litigation or settlement; and (2) Disney shall not have any right,
without Voxware's written consent, to settle any such claim if such settlement
arises from or is part of any criminal action, suit or proceeding or contains a
stipulation to or admission or acknowledgment of, any liability or wrongdoing
(whether in contract, tort or otherwise) on the part of Voxware.
(c) Cumulative Remedies But No Special Damages. The rights and
------------------------------------------
remedies of either party as set forth in this Agreement are not exclusive and
are in addition to any other rights and remedies provided under this Agreement
or now or hereafter provided by law; [***]
-9-
<PAGE>
9. Confidentiality. The disclosure and use of each party's Confidential
Information by the other shall be governed by the terms of that certain Mutual
Nondisclosure Agreement between the parties dated July 29, 1996, a copy of which
is attached hereto as Exhibit D and incorporated herein by reference.
---------
10. Term and Termination.
(a) Term. This Agreement shall become effective upon the Effective
----
Date and shall remain in effect until terminated as set forth herein. Disney
shall have the right to terminate this Agreement at any time, with or without
cause, upon thirty (30) days written notice. If Disney terminates the Agreement
without cause, Voxware shall have the right to retain all License Fees or
portions thereof previously paid to Voxware or accrued and owing.
(b) Termination for Breach or Insolvency. This Agreement may be
------------------------------------
terminated by Disney upon notice if Voxware breaches any material term or
condition of this Agreement and fails to remedy the breach within thirty (30)
days after being given notice thereof (or within such additional time as
mutually agreed in writing) or becomes insolvent (i.e., unable to pay its debts
in the ordinary course as they come due). A breach of this Agreement by Voxware
shall include without limitation, the Licensed Technology's failure to
substantially perform in accordance with its specifications or Voxware's breach
of any material provision of this Agreement. Disney acknowledges that Voxware's
failure to deliver the Additions does not constitute a material breach for
purposes of this Section. In the event that Voxware fails to perform its
development or maintenance obligations under this Agreement at any time, or
Disney rejects the Additions, Disney shall have the right to obtain the source
code from escrow and perform those obligations or have them performed on its
behalf. Either party may terminate this Agreement in the event the other party
makes any assignment for the benefit of creditors or files a petition in
bankruptcy or is adjudged bankrupt or becomes insolvent or is placed in the
hands of a receiver, or ceases to actively conduct business for a period of
ninety (90) days or if the equivalent of any of the proceedings or acts referred
to in this clause, though known and/or designated by some other name or term,
occurs. Notwithstanding the foregoing, either party may terminate this
Agreement immediately in the event of a breach by the other party of its
obligations under Section 9.
-10-
<PAGE>
(c) [***]
(d) Survival. Upon termination of this Agreement for breach by
--------
Voxware, the licenses granted hereunder shall continue. After termination, the
following sections, and their corresponding exhibits, shall continue to survive
and bind the parties according to their terms: 4(c), 4(d), 6, 7, 8, 9, 10(c),
10(d), and 11. Except as expressly set forth in this Section 10(d), Disney
shall have no obligation or liability to Voxware as a result of Disney's
termination of this Agreement in accordance with its terms.
11. Miscellaneous.
(a) Independent Contractors. The parties are independent contractors
-----------------------
with respect to each other. Each party is not and shall not be deemed to be an
employee, agent, partner or legal representative of the other for any purpose
and shall not have any right, power or authority to create any obligation or
responsibility on behalf of the other.
(b) Notices. All notices which either party is required or may desire
-------
to serve upon any other party shall be in writing and addressed to the party to
be served as follows:
(i) if to Disney:
Disney Online
500 South Buena Vista Street
Burbank, California 91521
Attention: Vice President-Business and Legal Affairs
---------
Telephone: (818) 543-4300
Facsimile: (818) 546-1324
and
(ii) if to Voxware, notice shall be addressed as specified at the
beginning of this Agreement.
Any such notice may be served personally or by mail (postage prepaid), facsimile
(provided oral confirmation of receipt is immediately obtained or a hard copy is
concurrently sent by internationally commercially recognized overnight delivery
service), internationally commercially recognized overnight delivery service
(such as Federal Express or DHL) or courier. Notice shall be deemed served upon
personal delivery or upon the date sent. Either party may change the address to
which notices
-11-
<PAGE>
are to be delivered by written notice to the other party served as provided in
this Section 11(b).
(c) Entire Agreement. This Agreement, together with the Exhibits
----------------
attached hereto and hereby incorporated herein by reference, constitutes the
complete, final and exclusive understanding and agreement between Disney and
Voxware with respect to the transactions contemplated, and supersedes any and
all prior or contemporaneous oral or written representation, understanding,
agreement or communication between Disney and Voxware concerning the subject
matter hereof. Neither party is relying upon any warranties, representations,
assurances or inducements not expressly set forth herein.
(d) Amendments. All amendments or modifications of this Agreement
----------
shall be binding upon the parties so long as the same shall be in writing and
executed by each of the parties hereto. It is expressly understood and agreed
that no usage of trade or other regular practice or method of dealing between
the parties hereto shall be used to modify, interpret, supplement or alter in
any manner the express terms of this Agreement or any part hereof.
(e) Waiver. No waiver of any provision of this Agreement or any rights
------
or obligations of either party hereunder shall be effective, except pursuant to
a written instrument signed by the party waiving compliance, and any such waiver
shall be effective only in the specific instance and for the specific purpose
stated in such writing.
(f) Force Majeure. Neither party shall be deemed in default hereunder,
-------------
nor shall it hold the other party responsible for, any cessation, interruption
or delay in the performance of its obligations hereunder due to causes beyond
its reasonable control including, but not limited to: earthquake, flood, fire,
storm or other natural disaster, act of God, labor controversy or threat
thereof, civil disturbance or commotion, disruption of public markets, war or
armed conflict (whether or not officially declared) or the inability to obtain
sufficient material, supplies, labor, transportation, power or other essential
commodity or service required in the conduct of its business, or any change in
or the adoption of any law, ordinance, rule, regulation, order, judgment or
decree; provided that the party relying upon this Section 11(f) shall (i) have
given the other party written notice thereof promptly and, in any event, within
(5) days of discovery thereof and (ii) take all steps reasonably necessary under
the circumstances to mitigate the effects of the force majeure upon which such
notice is based; provided further, that in the event a force majeure described
in this Section 11(f) extends for a period in excess of thirty (30) days, Disney
may, pursuant to this Section 11(f), immediately terminate this Agreement with
no liability to either party (except for amounts outstanding and owed to
Voxware, if any, prior to the date the force majeure event began).
(g) No Third Party Beneficiaries. Nothing in this Agreement is
----------------------------
intended or shall be construed to give any person, other than the parties
hereto, any legal or
-12-
<PAGE>
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
(h) Assignment. This Agreement and Voxware's rights, duties and
----------
obligations hereunder are personal to Voxware and, for a period of [***] from
the Effective Date, may not be assigned, delegated or otherwise transferred by
Voxware, or by operation of law, without the prior written consent of Disney,
which consent, except in the case of an assignment, delegation or other transfer
to a competitor of Disney, will not be unreasonably withheld. Any attempted
assignment, delegation or other transfer by Voxware without such consent shall
be null and void and shall constitute a material breach of this Agreement.
(i) Further Assurances. Voxware agrees to do and perform all such
------------------
further acts and things and shall execute and deliver such other agreements,
certificates, instruments and documents necessary or that Disney may deem
advisable in order to carry out the intent and accomplish the purposes of this
Agreement and to evidence, perfect or otherwise confirm Disney's rights
hereunder.
(j) Specific Performance. Voxware understands and agrees that Disney
--------------------
may suffer irreparable harm if Voxware fails to comply with any of its
obligations under this Agreement, and that monetary damages would be inadequate
to compensate Disney. Consequently, Voxware agrees that in such event Disney
shall be entitled, in addition to such monetary relief as may be recoverable by
law, to such injunctive or other equitable relief as may be necessary to
restrain any threatened, continuing or further breach by Voxware, without
showing or proving any actual damages sustained, without bond.
(k) Construction. This Agreement shall be fairly interpreted and
------------
construed in accordance with its terms and without strict interpretation or
construction in favor of or against either party. Voxware has had the
opportunity to consult with counsel in the negotiation of this Agreement.
(l) Headings. The section and paragraph headings appearing in this
--------
Agreement are inserted only as a matter of convenience and shall not be given
any legal effect.
(m) Severability. If any restriction, covenant or provision of this
------------
Agreement shall be adjudged by a court of competent jurisdiction to be void as
going beyond what is reasonable in all the circumstances for the protection of
the interests of the party seeking to enforce such restriction, covenant or
provision, such restriction, covenant or provision shall apply with such
modifications as may be necessary to make it valid and effective. In the event
that any provision of this Agreement should be found by a court of competent
jurisdiction to be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
shall not in any way be affected or impaired thereby.
-13-
<PAGE>
(n) Governing Law, Forum and Jurisdiction. This Agreement shall be
-------------------------------------
governed by the laws of the State of New York applicable to contracts entered
into and to be performed entirely within the State of New York. The parties
hereby consent and submit to the personal jurisdiction of such courts for the
purposes of litigating any such action.
(o) Counterparts. This Agreement may be executed in counterparts, each
------------
of which shall be deemed an original and all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the duly authorized representatives of each of the
parties hereto have executed this Agreement as of the day and year first written
above.
VOXWARE, INC. DISNEY ONLINE
By: By:
------------------------------- -------------------------------
Name: Name:
----------------------------- -----------------------------
Title: Title:
---------------------------- ----------------------------
-14-
<PAGE>
EXHIBIT A
---------
Description of the Licensed Technology
RT24 Basic Codec
Embodied in the Voice Development Kit for Real Time speech compression. It
shall consist of the release version of Voxware's 2,400 bps codec, known as
RT24. Delivery for Intel platform shall be delivered in the form of Windows
dynamic link libraries and delivery for Macintosh platform shall be in the form
of static libraries compiled for the Power PC CPU using the latest Metrowerks
compiler. Disney is licensed hereunder to use the RT24 Basic Codec for speech
compression/decompression and time scaling only. Other features of the RT24
Basic Codec such as pitch shifting, and personality transformation (voice fonts)
are not included.
RT29HQ Basic Codec
Embodied in the Voice Development Kit for Real Time speech compression. It
shall consist of the release version of Voxware's codec, known as RT29HQ which
compresses speech to approximately 2977bps. Delivery for Intel platform shall
be delivered in the form of Windows dynamic link libraries and delivery for
Macintosh platform shall be in the form of static libraries compiled for the
Power PC CPU using the latest Metrowerks compiler. Disney is licensed hereunder
to use the RT29HQ Basic Codec for speech compression/decompression and time
scaling only. Other features of the RT29HQ Basic Codec, such as pitch shifting
and personality transformation (voice fonts) are not included.
Telephony Network Toolkit (TNT)
Provides an application programming interface suitable for development of
applications for transmission of voice over the Internet (i.e., Internet
Telephony). The functionality included in this interface allows session, flow
and error control. Session control functionality includes initiating and
processing incoming and outgoing calls as well as a means for users of Disney or
third party applications based on TNT to locate each other in a phone directory.
Flow and error control seek to manage the Basic Codec bit stream, handling lost
and/or late packets, and packet resequencing.
Midi Transport-Level 0
Provides the ability to stream MIDI over an IP network while simultaneously
streaming speech encoded by either RT24 or RT29HQ. MIDI Level 0 files are
required to be able to stream with the Voxware encoded speech file.
<PAGE>
EXHIBIT B
---------
Additions Schedule
Milestone Date
- ---------------------------------------------------------------------- --------
1. Active controls with Stream Querying capability (Sync Marker). 11/07/97
Stream querying shall be defined as an ActiveX based feature
embodied in the VoxwarePlayer which allows Javascript and
VBSscript programs to query positions scaled in 10ths of a
second throughout a VOX format speech file. Additionally,
programmatic control of the VoxwarePlayer through ActiveX
and/or LiveConcert would allow for the following mechanisms:
. Cueing-dynamically setting the position of the playback head.
. Stopping-pausing playback or aborting current playback
stream.
. Changing source streams-dynamically changing what the vox
source file is.
. Buffering-loading a set amount of the stream ahead of time
before playback.
2. TNT for the Apple Power PC 1/31/97
<PAGE>
EXHIBIT C
---------
Escrow Agreement
This DEPOSITORY ESCROW AGREEMENT AND INSTRUCTIONS (this "Agreement") is
made and entered into this 27th day of September, 1996, by and among Disney
Online, a California corporation ("DOL"), located at 500 South Buena Vista
Street, Burbank, California 91521, Voxware, Inc., a Delaware corporation,
located at 305 College Road East, Princeton, New Jersey 08540 ("Vendor"), and
Data Securities International, Inc. ("Escrow Holder"), located at 9555
Chesapeake Drive, Suite 200, San Diego, California 92123, with reference to the
following facts and circumstances:
(p) DOL has entered into an agreement with Vendor for the license of
computer software products and the purchase of services from Vendor
dated September 27, 1996 (the "License Agreement").
(q) Under the License Agreement, Vendor agreed to deposit in escrow the
Source Materials (as defined below) for the computer software products
licensed by Vendor to DOL thereunder (the "Licensed Products").
(r) Vendor is willing to provide access to the Source Materials to DOL
under the terms and conditions set forth herein.
(s) Escrow Holder is willing to receive and to hold the Source Materials
under the terms and conditions set forth herein.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, and in consideration of the foregoing premises
and the mutual covenants and conditions hereinafter set forth, the parties
hereto agree as follows:
1. Definitions
-----------
1.1 "Source Materials" means all materials necessary for a reasonably
----------------
experienced programmer to maintain and enhance the Licensed Products, including,
but not limited to, (i) a copy of the source code, in machine readable form and
all source code documentation, (ii) all proprietary or special tools and an
identification of other software reasonably necessary to create object code and
executable code from the source code and to modify the source code and related
documentation, and (iii) a description of the development system, hardware,
software, compilers, third-party software and similar materials sufficient for
DOL (or its agents or subcontractors) to continue development, enhancement and
support of the Licensed Products. Source Materials includes all additions,
modifications, new versions, enhancements, changes, supplements and/or
replacements thereto (the "Changes") which are, or are required to be, developed
<PAGE>
and/or delivered at any time by Vendor to DOL under the relevant provisions of
this Agreement or the License Agreement.
1.2 "Delivery Event" means the occurrence of any of the following events:
--------------
(i) Vendor ceases to conduct its operations pertaining to the Licensed Products
or as a whole, (ii) Vendor's legal or equitable insolvency including, without
limitation, its failure or inability to meet its obligations as they mature,
(iii) the bringing by or against Vendor of any proceeding under any bankruptcy
or insolvency law, (iv) the appointment or application for the appointment of a
receiver for Vendor, (v) Vendor entering into or making any arrangement with or
assignment for the benefit of a creditor of Vendor, (vi) Vendor taking advantage
of any law for the benefit of debtors, (vii) [***]
(viii) [***] or (ix) [***].
2. License
-------
2.1 Grant. Subject to the terms and conditions of this Agreement, Vendor
-----
hereby grants to DOL a nonexclusive, irrevocable, perpetual, and royalty-free
license (the "License") to use the Source Materials and all related proprietary
rights (including, without limitation, copyrights, information, patents,
derivative works, trade secrets, technology, ideas, and concepts) owned or
licensed by Vendor (the "Proprietary Rights") to develop, operate and maintain
the Licensed Products, including, without limitation, to copy, manufacture,
maintain, support, enhance, change, replace, develop, and otherwise exploit such
Source Materials and Proprietary Rights in connection with the development,
operation and maintenance of the Licensed Products.
2.2 Termination. This License shall terminate in the event of a final
-----------
judicial determination of its termination or by written agreement of the
parties.
3. Deposit and Acceptance
----------------------
3.1 Delivery. To assure DOL the benefit of the License, and under the
--------
procedures, terms and conditions set forth in this Agreement: Vendor hereby
agrees to deliver to and place in the custody of Escrow Holder (i) the original
deposit of the Source Materials (the "Original Deposit") and Escrow Holder
hereby agrees to examine the delivered Original Deposit in accordance with
Section 3.2 hereof, and, upon
-2-
<PAGE>
successful examination, accept such delivery and custody; and (ii) any and all
Changes (together, the "Later Deposits") which are, or are required to be,
developed and/or delivered at any time after the date hereof under the License
Agreement, including, without limitation, the Later Deposits required by Exhibit
-------
I, and Escrow Holder hereby agrees to accept such delivery, and placement shall
- -
be made either directly by Vendor or indirectly by preliminary delivery to DOL
for verification and testing (as set forth in Sections 4.1.1 and 4.1.2), and
subsequent delivery by DOL to Escrow Holder under Section 4.1.3.
3.2 Deposit Inspection. When Escrow Holder receives the Source
------------------
Materials, Escrow Holder will conduct a deposit inspection by visually matching
the labeling of the tangible media containing the Source Materials to the item
descriptions and quantity listed on Exhibit II hereto. In addition to the
deposit inspection, DOL may elect to cause a verification of the Source
Materials in accordance with Section 4.1.2.
4. Delivery, Custody and Care
--------------------------
4.1 Delivery
--------
4.1.1 Delivery of the Original Deposit shall occur on or before
October 30, 1996. Delivery of all Later Deposits shall occur within ten (10)
days after the date Vendor developed, delivered to DOL or implemented such
Change. Unless otherwise agreed by all parties in writing, prior to the
delivery of the Source Materials to Escrow Holder, Vendor shall deliver the
Source Materials, in an envelope or other container which can be sealed, to DOL
for verification and testing, as described below at Data Securities
International.
4.1.2 At such initial delivery, DOL shall have the right, at DOL's
expense, to cause a verification ("Verification") of the Source Materials in any
reasonable manner to assure that the Source Materials conform to the
requirements of this Agreement. A Verification determines, in different levels
of detail, the accuracy, completeness, sufficiency and quality of the source
Materials. If a Verification is selected after the Source Materials have been
delivered to DSI, then only DSI or at DSI's election, an independent person or
company selected and supervised by DSI, may perform the Verification. Non-
conforming Source Materials and omissions shall be corrected by Vendor
immediately upon notice thereof. Vendor shall have the right to be present at
such initial delivery and testing.
4.1.3 Immediately after DOL has examined the Source Materials, the
Source Materials shall be placed in the container provided by Vendor, the
Appropriate Officers (as defined below) of Vendor and DOL shall cooperate in
writing, signing and dating a memorandum reasonably describing the contents
thereof in the form of Exhibit II hereto, shall attach said memorandum to said
----------
container, and shall sign their names across the seal; and the Source Materials
shall be deliver to and placed in the custody of Escrow Holder either (at DOL's
election) by Vendor or DOL. Within five business days of its receipt thereof,
Escrow Holder shall visually match the listed items on the
-3-
<PAGE>
memorandum that accompanies such Source Materials to the labeling of such Source
Materials ("Deposit Inspection") and shall execute and deliver to DOL and Vendor
an acknowledgment of receipt of the container and memorandum, by returning to
Vendor and DOL a copy of the memorandum signed on behalf of DSI.
Notwithstanding the foregoing, however if Vendor does not sign such memorandum
and seal (or cooperate in preparing this memorandum) within three days after
Vendor's receipt of a copy of such memorandum prepared by DOL, Vendor's
signature and acceptance of the contents thereof shall be deemed to have been
provided in accordance with this Section 4. Escrow Holder shall not be
responsible for verifying the contents or validating the accuracy of the
memorandum. If the seal hinders Escrow Holder from itemizing the Deposit
contents by reading the label on the individual Deposit items, Escrow Holder
will break the seal and reseal the Deposit after Escrow Holder has concluded the
Deposit Inspection is complete. Any envelope or other container which is opened
at any time by any person for any other reason shall be resealed in accordance
with the provisions of this Section 4.1.
4.2 Custody and Care
----------------
4.2.1 Escrow Holder shall establish a receptacle in which it will
place the Source Materials, and shall put the receptacle under the control of
one or more of its Appropriate Officers. Escrow Holder shall exercise the same
high level of care in carrying out the terms of this Agreement and in holding
the Source Materials as Escrow Holder would use to protect items of this nature
which Escrow Holder might own.
4.2.2 To assure the physical integrity, confidentiality and security
of the Source Materials throughout the term of this Agreement, each party agrees
to implement and follow the confidentiality, physical security and care
provisions set forth in Exhibit III, to the extent such provisions are
-----------
applicable to such party.
4.3 Later Deposits. Each Later Deposit shall be delivered to DOL and
--------------
Escrow Holder in accordance with all of the provisions of Section 4.1. Escrow
Holder shall be under no obligation to accept any such Later Deposits unless
accompanied or preceded by a duly executed memorandum, as set forth in Section
4.1.
4.4 Records and Access. Escrow Holder shall keep complete written
------------------
records of the activities undertaken, and materials prepared, pursuant to this
Agreement. DOL shall be entitled at reasonable times during normal business
hours, and upon reasonable notice to Escrow Holder and payment of Escrow
Holder's published fees for such services, to inspect Escrow Holder's records
and facilities pertaining to this Agreement and/or the status and condition of
the deposited Source Materials.
5. Release
-------
5.1 Requests for Release. Subject to the provisions of Sections 5.2 and
--------------------
5.3, Escrow Holder shall release a copy of the Source Materials only to DOL or
the Source
-4-
<PAGE>
Materials to Vendor (in either case, a "Requesting Party"), and only upon the
occurrence of one of the events set forth below:
5.1.1 Escrow Holder shall release a copy of the Source Materials to a
Requesting Party (and provide notice of such release to Vendor) on the delivery
to Escrow Holder of a letter of instructions for delivery from DOL indicating
DOL's exercise of its verification rights in accordance with Section B.2 of
Exhibit III as the reason for the release.
- -----------
5.1.2 Escrow Holder shall release the Source Materials to Vendor on
the delivery to Escrow Holder of (i) an opinion of counsel (an "Opinion") that
the License Agreement between the parties (either directly or indirectly through
subcontract or otherwise) has terminated by agreement of the parties or by its
own terms, and certifying that such counsel is licensed to practice law in the
State of California, and (ii) a letter of instructions for delivery.
5.1.3 Escrow Holder shall release a copy of the Source Materials to
DOL, and grant, transfer and assign to DOL all of its right, title and interest
therein, on the delivery to Escrow Holder of (i) written certification of the
occurrence of a Delivery Event (a "Demand"); and (ii) a letter of instructions
for delivery. [***]
5.1.4 Each Opinion, Demand or letter of instructions delivered
hereunder shall be in a form reasonably acceptable to Escrow Holder; provided
that the non-Requesting Party's (the "Other Party's") consent or approval shall
not be required.
5.2 Notice. Any such Demand or letter shall be signed by an Appropriate
------
Officer of the Requesting Party; and no Opinion, letter or Demand shall be dated
more than thirty (30) days prior to the date it is received by Escrow Holder.
Escrow Holder shall notify the Other Party immediately of its receipt by
delivery of a copy of such Opinion, letter or Demand to such Other Party.
5.3 Delivery. Ten (10) business days after Escrow Holder has notified
--------
the Other Party of its receipt of an Opinion, letter or Demand hereunder, Escrow
Holder is authorized to and shall deliver either the Source Materials or a copy
of the Source Materials to the person specified in the applicable letter of
instructions, unless Escrow Holder has received written notice from the Other
Party stating that such Other Party objects to the sufficiency or accuracy of
such Opinion or Demand (an "Objection") and (i) in the case of an Opinion,
including an opinion of counsel that a good faith, non-frivolous basis exists
for disputing the conclusions of the Opinions, or (ii) in the case
-5-
<PAGE>
of a Demand, specifying the reasons for its objections thereto, in which event
the provisions of Section 5.4 will apply.
5.4 Objections
----------
5.4.1 If Escrow Holder receives an Objection from DOL within such ten
(10) business day period, Escrow Holder shall notify Vendor within five business
days of its receipt by delivery of a copy of the Objection to Vendor; and Escrow
Holder shall thereafter continue to hold the Source Materials until otherwise
directed by Vendor and DOL jointly, or until resolution of the dispute pursuant
to the Arbitration Provisions described in Exhibit IV.
----------
5.4.2 If Escrow Holder receives an Objection from Vendor within such
ten (10) business day period, Escrow Holder shall (i) deliver a copy of the
Source Materials to the person specified in DOL's letter of instructions and
(ii) notify DOL immediately of its receipt of the Objection by delivery of a
copy thereof. [***]
6. Limitation of Liability
-----------------------
Escrow Holder shall have no obligation or responsibility hereunder to any
person or entity whatsoever to determine the existence, relevance, sufficiency,
completeness, accuracy, or any other aspect of the Source Materials, Opinions,
Demands, Objections and/or any other documents or items deposited or delivered
from time to time by Vendor with Escrow Holder. Further, this Agreement shall
constitute notice to any person who shall acquire a right of access to the
Source Materials that Escrow Holder's duty hereunder is limited as set forth
herein, and that Escrow Holder therefore is not liable to any such person or
entity. Escrow Holder's sole responsibility with respect to the Source
Materials shall be to accept delivery and take custody of whatever is given to
it by Vendor and/or DOL, to place such Source Materials in its office safe,
records
-6-
<PAGE>
center, or other storage location as determined by Escrow Holder in accordance
with Section 4.2, and to keep such products in accordance with Section 4 until
release of the Source Materials or a copy of the Source Materials is required
under Section 5.
7. Fees
----
7.1 Fees and Payment. As compensation for the services to be performed
----------------
by Escrow Holder hereunder, DOL agrees to pay to Escrow Holder the service fees
specified in Exhibit V. All fees shall be due in full thirty (30) days after
---------
receipt of invoice. If any fees are not paid within sixty (60) days of receipt
of invoice, Escrow Holder may terminate this Agreement upon thirty (30) days
written notice to DOL provided that such Fees are not paid within such thirty
(30) day period.
7.2 Fee Increases. All service fees and annual renewal fees will be
-------------
those specified in Escrow Holder's fee and service schedule in effect at the
time of renewal or request for service, except as otherwise agreed. For any
increase in Escrow Holder's fees listed on Exhibit V hereto, Escrow Holder shall
---------
notify DOL at least ninety (90) days prior to any renewal of this Agreement.
Escrow Holder agrees that any of the fees listed on Exhibit V will not increase
---------
by more than ten percent (10%) per year. For any service not listed on Exhibit
-------
V, Escrow Holder shall provide a quote, which must be accepted by DOL in
- -
writing, prior to Escrow Holder rendering such service.
8. Term of Agreement; Expiration
-----------------------------
8.1 Term. This Agreement shall have an initial term of one year,
----
renewable automatically for one-year periods upon receipt by Escrow Holder of
the specified renewal fee. Escrow Holder shall provide DOL and Vendor with
written notice ninety (90) days prior to any expiration date. If a renewal fee
is not received within thirty (30) days of any expiration date, Escrow Holder
shall so notify DOL in writing. If such fee is not received within the next
thirty (30) days after delivery of such notice, this Agreement shall expire upon
written notice to Vendor and DOL. This Agreement also shall expire at such time
as Escrow Holder has delivered the Source Materials to either Vendor, pursuant
to Sections 5.1.2, or DOL, pursuant to Section 5.1.3.
8.2 Return of Source Materials. Upon expiration or non-renewal of this
--------------------------
Agreement, all duties and obligations of Escrow Holder to Vendor and DOL
hereunder shall terminate and expire, except that, upon termination and/or
expiration of this Agreement for any reason except the occurrence of a Delivery
Event, Escrow Holder shall, at Vendor's option, either destroy, or, upon receipt
from Vendor of Escrow Holder's published release request fees for such service,
return the Source Materials to Vendor.
8.3 Continuation of License. Notwithstanding the termination or
-----------------------
expiration of this Agreement or any part hereof, the provisions of Sections 2
and 9 shall survive.
-7-
<PAGE>
9. Indemnification
---------------
DOL and Vendor each agree to defend, indemnify and hold harmless Escrow
Holder from and against any and all claims, actions and suits, liabilities,
losses, costs, charges, penalties, counsel fees, and other expenses of any
nature (including, without limitation, settlement costs and attorneys' fees)
("Claims") incurred by Escrow Holder on account of any act or omission of Escrow
Holder in respect of or with regard to this Agreement, except Escrow Holder's
gross negligence or willful misconduct.
10. Appropriate Officers
--------------------
Escrow Holder, Vendor and DOL each shall designate one or more authorized
officers (in the case of Escrow Holder, employees) ("Appropriate Officers") to
receive notices and otherwise to act on its behalf with respect to the
performance of its obligations under this Agreement; and each such party shall
notify the other in writing of the name and title of such Appropriate Officers
and any replacement(s) thereof.
11. General Provisions
------------------
11.1 Reliance. In reliance upon any instruction, instrument, or
--------
signature believed to be genuine, Escrow Holder may assume that any Appropriate
Officer purporting to give any writing, notice, request, advice, or instruction
in connection with or relating to this Agreement has been duly authorized to do
so.
11.2 Attorneys' Fees. As between Vendor and DOL, in the event of any
---------------
dispute or controversy arising out of this Agreement, the prevailing party shall
be entitled to reimbursement of its costs, including court and arbitration costs
and attorneys' and expert witnesses' fees and costs.
11.3 Validity, Forum, Law, and Construction. The legal relations
--------------------------------------
between the parties to this Agreement shall be governed by the laws of the State
of California as applicable to contracts made, executed and to be performed
wholly within the State of California and by the laws of the United States.
Litigation and arbitration of disputes under this Agreement shall be conducted
in Los Angeles County, California and the parties hereto consent to the
jurisdiction of any local, state or federal court in which an action is
commenced and located in Los Angeles, California. The parties further agree
not to disturb such choice of forum, and if not resident in such state, waive
the personal service of any and all process upon them, and consent that such
service of process may be made by certified or registered mail, return receipt
requested, addressed to the parties as set forth in Section 11.12.
11.4 Arbitration. Subject to Section 5.4.2, unless the parties
-----------
otherwise agree in writing, any dispute, controversy or claim arising out of or
with reference to this Agreement (including but not limited to claims for breach
of contract, fraud in the inducement or breach of an implied covenant) shall be
settled by arbitration in
-8-
<PAGE>
accordance with the provisions outlined in Exhibit IV. Each party expressly
----------
waives any right it may have to seek redress in any other forum except as
provided herein.
11.5 Alterations and Waivers. The waiver, amendment or modification
-----------------------
of any provision of this Agreement or any right, power or remedy hereunder,
whether by agreement of the parties or by custom, course of dealing or trade
practice, shall not be effective unless in writing and signed by the party
against whom enforcement of such waiver, amendment or modification is sought.
No failure or delay by either party in exercising any right, power or remedy
with respect to any of the provisions of this Agreement shall operate as a
waiver of such provisions with respect to such occurrences; nor shall any
extension of time or other indulgence granted to a party hereunder otherwise
alter or affect any power, remedy or right of the other party, or the
obligations of the party to whom such extension or indulgence is granted.
11.6 Severability. In the event any provision of this Agreement
------------
shall be prohibited or unenforceable in any jurisdiction, the remaining
provisions of this Agreement shall remain in full force and effect. The parties
shall use their best efforts to replace the provision that is contrary to law
with a legal one approximating to the extent possible the original intent of the
parties.
11.7 Language Interpretation. In the interpretation of this
-----------------------
Agreement, unless the context otherwise requires, (i) words importing the
singular shall be deemed to import the plural and vice versa, (ii) words
denoting gender shall include all genders, (iii) references to persons shall
include corporations or other bodies, and vice versa, (iv) references to
parties, sections, schedules, addenda, paragraphs, and exhibits of and to this
Agreement, and (v) periods of days, weeks or months shall mean calendar days,
weeks or months. Section headings are included solely for convenience, are not
to be considered a part of this Agreement, and are not intended to be full and
accurate descriptions of their contents.
11.8 Copies of Agreement. This Agreement may be executed in any
-------------------
number of copies, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
11.9 Assignability. Except as otherwise expressly provided by the
-------------
terms of this Agreement, this Agreement is not transferable or assignable,
whether in whole or in part, by any party, except to the successor or assignee
of all or substantially all of its business (and in the case of DOL, to one of
its Affiliates, as defined in the License Agreement), which successor or
assignee expressly assumes the obligations of this Agreement. Any assignment in
derogation of the foregoing shall be void.
11.10 Further Assurances. Each party hereto agrees to execute and
------------------
deliver any and all further documents, and to perform such other acts, as may be
necessary or expedient to carry out and make effective this Agreement.
-9-
<PAGE>
11.11 Binding. This Agreement shall be binding upon and inure to the
-------
benefit of each of the parties hereto and, to the extent permitted by Section
11.9, their respective successors and assigns.
11.12 Notices. Any notice or other communication required or
-------
permitted to be given hereunder shall be given in writing and delivered in
person, mailed or delivered by recognized courier service, properly addressed
and stamped with the required postage, to the intended recipient at its address
specified below and shall be deemed effective upon receipt. Either party may
from time to time change its address by giving the other party notice of the
change in accordance with this section.
If to DOL: Disney Online
500 South Buena Vista Street
Burbank, CA 91521
Attention: Vice President, Business and Legal Affairs
Facsimile: (818) 546-1324
If to Vendor: Voxware, Inc.
305 College Road East
Princeton, NJ 08540
Attention: Kenneth Traub
Facsimile: (609) 514-4101
If to
Escrow Holder: Data Securities International Inc.
9555 Chesapeake Drive
Suite 200
San Diego, CA 92123
Attention: Contract Administration
Facsimile: (619) 694-1000
Notwithstanding the foregoing, any notice sent to the last designated
address of the party to whom a notice may be or is required to be delivered
hereunder shall not be deemed ineffective if actual delivery cannot be made due
to a change of address of the party to whom the notice is directed or the
failure or refusal of such party to accept delivery of the notice.
11.13 License Agreement. Vendor and DOL acknowledge that Escrow
-----------------
Holder has no knowledge of the terms and conditions contained in the License
Agreement and that Escrow Holder's only obligations shall be set forth herein or
in any other writing signed by Escrow Holder, Vendor and DOL.
11.14 Complete Agreement; Modifications. This Agreement, and any
---------------------------------
schedules, annexes, exhibits, and other documents referred to herein or executed
contemporaneously herewith, constitutes the entire agreement among the parties
with respect to the subject matter hereof, and may not be amended, altered or
modified
-10-
<PAGE>
except by a writing signed by the parties. This Agreement supersedes all prior
written, and all prior and contemporaneous oral, agreements, representations,
warranties, statements, promises, and understandings with respect to the subject
matter hereof. Al schedules, annexes, exhibits, and other documents attached
hereto or referred to herein are hereby incorporated by reference herein and
made a part hereof.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement on the
date first written above.
DATA SECURITIES INTERNATIONAL, INC. VOXWARE, INC.
By: By:
---------------------------------- ---------------------------
Name: Name:
-------------------------------- -------------------------
Title: Title:
------------------------------- ------------------------
DISNEY ONLINE
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
-11-
<PAGE>
EXHIBIT I
Later Deposits
--------------
Vendor shall update the Source Materials [***] Vendor shall deposit the Source
Materials for any "Updates" and "Compatibility Enhancements" provided to DOL
under the License Agreement (as defined therein) within five (5) days after
delivery of such Updates and Compatibility Enhancements to DOL.
<PAGE>
EXHIBIT II
Description of Deposit Materials
- --------------------------------
Deposit Account Number
---------------------------------------------------------
Account Name
-------------------------------------------------------------------
Disney Online and Voxware, Inc., pursuant to a specific Depository Escrow
Agreement and Instruction dated as of _______________, 199__, between and among
the parties and Data Securities International, hereby deposit the below
described materials into the above referenced Deposit Account by transferring
them to Data Securities International, Inc. The Deposit type is: (check the
space that applies)
_____ Initial Deposit _____ Supplemental Deposit _____ Replacement Deposit
If Replacement then destroy Deposit _____ or return Deposit _____
If no Deposit type has been checked the materials will be deemed to be an
Initial or Supplemental Deposit.
DEPOSIT MATERIALS
Name Version
------------------------------ -------------------------------------
Date CPU/OS Compiler
-------------- ----------- ----------------------------------
Application
---------------------------------------------------------------------
Utilities needed
----------------------------------------------------------------
Special operating instructions
--------------------------------------------------
- --------------------------------------------------------------------------------
Item Description Media Quantity
- --------------------------------------------------
I certify that the above-described materials were delivered/sent to Data
Securities International, Inc.
Disney Online
By
--------------------------------
Name
------------------------------
Title
-----------------------------
Date
------------------------------
Vendor: Voxware, Inc.
By
--------------------------------
Name
------------------------------
<PAGE>
Title
-----------------------------
Date
------------------------------
Data Securities International certifies that it has received the materials
subject to the terms and conditions of the above-referenced escrow agreement.
Data Securities International
By
--------------------------------
Name
------------------------------
Title
-----------------------------
Date
------------------------------
-2-
<PAGE>
EXHIBIT III
Confidentiality and Security Provisions
---------------------------------------
A. PROPRIETARY RIGHTS
------------------
1. Ownership. Vendor represents that all Source Materials which are to
---------
be provided by Vendor to Escrow Holder and/or DOL are owned by Vendor and
constitute valuable proprietary products containing trade secrets and
confidential information of Vendor. Vendor shall at all times retain all right,
title and interest in and to any and all copyrights, patents, inventions, mask
works, trade secrets, or other proprietary rights embodied in the Source
Materials.
2. Confidentiality.
---------------
(a) Escrow Holder agrees to use reasonable efforts to observe
confidentiality with respect to the Source Materials. Without limiting the
generality of the foregoing, Escrow Holder specifically agrees to use reasonable
efforts: (i) not in any manner to disclose or otherwise permit any person or
entity access to the Source Materials or any part thereof, except as such access
shall be required by its employee or independent contractor in the course of his
employment or agency; (ii) to assure that its employees, agents,
representatives, independent contractors, and guests are advised of the
confidential nature of the Source Materials and (by agreement or otherwise)
prohibited from copying or revealing the Source Materials or any part thereof,
or from taking any action otherwise prohibited under this Exhibit III, except in
-----------
the course of their employment or agency; (iii) to notify Vendor promptly and in
writing of the circumstances known to Escrow Holder surrounding any possession,
use or knowledge of the Source materials by any person or entity other than
those authorized by this Section 2; (iv) immediately upon its receipt of any
legal process (whether initiated by private parties or governmental agencies)
requesting access to Source Materials under its control, to transmit such
request to Vendor, and not to divulge such Source Materials in response to such
legal process without Vendor's written consent, so long as Vendor is
successfully opposing such legal process in such a manner that Escrow Holder
cannot be held in contempt of court or subject to other legal sanction; (v) not
to use, provide, make available or permit the use of the Source Materials or any
part thereof in any form whatsoever, whether gratuitously or for valuable
consideration, to or for the benefit of any person or entity except Vendor and
DOL; and (vi) to take any and all other reasonable actions deemed necessary or
appropriate to assure the continued confidentiality and protection of the Source
Materials and to prevent access to the Source Materials by any person or entity
not authorized under this Exhibit III.
-----------
(b) Escrow Holder shall institute appropriate measures (including,
without limitation, passwords and other security measures) to assure the privacy
of the Source Materials through the segregation and separation of the Source
Materials from (i) the products, files and computer programs of Escrow Holder
and its customers other
<PAGE>
than Vendor and DOL, and (ii) from any other person (including, without
limitation, employees of Escrow Holder) not authorized by this Agreement to have
access to such Source Materials. Upon the request of DOL, Escrow Holder shall
provide Vendor and DOL with a detailed description of the segregation procedures
it has adopted pursuant to this Exhibit III. The parties agree that such
-----------
segregation procedures, together with the requirements of this Section 2, shall
constitute at least a minimum standard for determining Escrow Holder's
compliance with its obligations hereunder to do all things necessary to assure
the privacy and confidentiality of the Source Materials.
(c) The obligations of paragraphs (a) and (b) above shall not apply to
the extent (i) disclosure is reasonably necessary to carry out and make
effective the terms of this Agreement, (ii) a party is required by law to
respond to any demand for information from any court, governmental entity, or
governmental agency, or as may be required by federal or state securities laws,
(iii) disclosure is necessary to be made to a party's independent accountants
for tax or audit purposes, or (iv) the parties may mutually agree in writing;
provided that, in any case, reasonable prior written notice thereof and
opportunity to object thereto is provided to Vendor.
3. Survival of Provisions. The term of the provisions of this Part A of
----------------------
Exhibit III shall survive termination or expiration of the Agreement or any
- -----------
determination that this Agreement or any portion hereof is void or voidable.
B. PHYSICAL SECURITY AND BACK-UP
-----------------------------
1. Update and Back-up Procedures. Vendor agrees to maintain adequate
-----------------------------
update procedures to provide DOL and Escrow Holder at all times with the most
recent versions of the Source Materials, so that DOL may continue operating and
supporting the Licensed Products in case of a Delivery Event, regardless of the
nature of such event. Without limiting the generality of the foregoing, in
particular, Vendor agrees to supplement and update the Original Deposit
(including design specifications, maintenance manuals, operating manuals, user
manuals, source and object code versions of the Licensed Products and any
changes or modifications thereto and annotated source listings), as necessary
within 10 days after the development, delivery to DOL or implementation of any
Change.
2. Physical Security and Care. Escrow Holder is solely responsible for
--------------------------
the physical security and case of the Source Materials delivered to it
hereunder, and shall maintain a comprehensive plan for their security and care.
Nothing in this Exhibit III shall relieve Escrow Holder or Vendor of their
-----------
general obligations to provide adequate and appropriate storage and ventilation,
and sufficient update and backup plans and procedures to permit DOL to continue
supporting its business operations with respect to the Licensed Products despite
any Delivery Event.
3. Verification. At least once during each year of this Agreement, at
------------
the option of DOL and at a date and time to be agreed upon by the parties (but,
if the parties cannot agree, then at 10:00 a.m. on the then nearest anniversary
hereof), DOL
-2-
<PAGE>
and Vendor shall meet at either DOL's or Vendor's offices for the purposes of
testing and inspecting the physical condition of the Source Materials. A
personal computer with the vendor's software shall be installed and operational
at such site, and the Source Materials shall be inspected in accordance with
such procedures as may be reasonably requested by either party as desirable for
demonstrating the Source Materials' physical condition. Any Source Materials
shown to be deteriorating, deteriorated, defective, or non-conforming in any way
shall be replaced immediately by Vendor at no additional cost to DOL, in
accordance with the procedures set forth in Section 4.3 for the Agreement.
4. Transfer of Rights. With respect to Source Materials that are not
------------------
proprietary to Vendor or DOL, Vendor shall obtain rights and/or licenses
adequate to allow it to transfer or assign such rights and/or licenses to DOL in
accordance with this Agreement.
5. Notice. Vendor and DOL each must approve in writing any procedures or
------
any proposed changes in procedures for accomplishing the purposes addressed by
this Exhibit III.
-----------
-3-
<PAGE>
EXHIBIT IV
Arbitration Provisions
----------------------
Subject to Section 5.4.2 of the Agreement, except as otherwise expressly stated
herein, in the event of any dispute, controversy or claim (a "Disputed Matter")
between the parties to the Agreement arising out of or relating to the
Agreement, the Disputed Matter shall be submitted to final and binding
arbitration in accordance with the following provisions:
1. Any Disputed Matter shall be settled by arbitration in the City of Los
Angeles and, except as herein specifically stated, in accordance with the
Commercial Arbitration Rules of the American Arbitration Association ("AAA
Rules") then in effect, subject to the provisions of this Exhibit IV. Any
----------
judgment upon the award rendered by the arbitrators may be entered in any court
having jurisdiction over the subject matter thereof. The arbitrators shall have
the authority to grant any equitable and legal remedies that would be available
in any judicial proceeding instituted to resolve a disputed matter. The parties
hereby submit to the in personam jurisdiction of the courts of the State of
-- --------
California and the Federal District Court for the Central District, for purposes
of confirming any such award and entering judgment thereon.
2. Any such arbitration shall be conducted before a panel of three
arbitrators, who shall be compensated for their services at a rate to be
determined by the parties or by the American Arbitration Association in the
event the parties are not able to agree upon their rate of compensation.
3. Within five calendar days of notice by a party seeking arbitration under
this provision, the party requesting arbitration shall appoint one arbitrator,
and within 10 calendar days after the aforesaid notice the other party shall
appoint the second arbitrator. Each of the two arbitrators shall be a member of
the Bar of the State of California. Within 10 business days after the
appointment of the second arbitrator, the two arbitrators so chosen shall
mutually agree upon the selection of the third impartial and neutral arbitrator,
who shall be a member of a nationally recognized firm of independent certified
public accountants from the management advisory services (or comparable)
department or group, provided that such firm cannot be the firm then auditing
the books and records of either party.
In the event the chosen arbitrators cannot agree upon the selection of the third
arbitrator, the AAA Rules for the selection of such an arbitrator shall be
followed, except that the selection shall be from such persons as are described
in the immediately preceding paragraph. If the other party shall fail to
designate the second arbitrator, the sole arbitrator appointed shall have the
power to appoint, in his sole discretion, both the second and third arbitrators.
If a party fails to appoint a successor to its appointed arbitrator within 10
business days of the death, resignation or other incapacity of such arbitrator,
the remaining two arbitrators shall appoint such
<PAGE>
successor. The majority decision of the arbitrators will be final and
conclusive upon the parties hereto.
4. Each party hereby agrees to pay one-half (1/2) of the compensation to be
paid to the arbitrators in any such arbitration and one-half (1/2) of the costs
of transcripts and other expenses of the arbitration proceedings including costs
of Escrow Holder, if any; provided, however, that the prevailing party in any
arbitration shall be entitled to an award of attorneys' fees and costs,
arbitrators' fees and costs and all other costs of arbitration.
5. All testimony of witnesses at any arbitration proceeding held pursuant to
these provisions shall be taken under oath, and the rules of evidence of the
Evidence Code of the State of California and judicial interpretations
thereunder shall be strictly followed. The actual arbitration hearing or
hearings shall be transcribed by a reporter, and, subject to the provisions of
Paragraph 4, the costs thereof shall be borne equally by the parties.
6. The parties shall be entitled to conduct discovery proceedings, but by the
following methods only: requests for production of documents and depositions of
no more than five (5) individuals. The arbitrators will supervise discovery and
may, at the request of either party, limit discovery by the other or award
payment of the costs and expenses of discovery (including reasonable attorneys'
fees) to the requesting party for good cause shown. All discovery will be
completed and the arbitration hearing will commence, within 30 days after
appointment of all of the arbitrators, and the arbitrators will enforce this
requirement strictly. In the event the Commercial Arbitration Rules of the
American Arbitration Association or the law of the State of California herein
made applicable do not for any reason supply a rule of procedure or decision, or
control any matter in any arbitration proceeding, the parties agree that the
arbitration provisions of Title 9 of the Code of Civil Procedure of the State of
California shall apply.
7. For any claim submitted to arbitration, the burden of proof shall be as it
would be if the claim were litigated in a judicial proceeding.
8. Upon the conclusion of any arbitration proceedings hereunder, the
arbitrators shall render findings of fact and conclusions of law and a written
opinion setting forth the basis and reasons for any decision reached by them,
and shall deliver such documents to each party to the Agreement, together with a
signed copy of the award.
9. The arbitrators chosen in accordance with these provisions shall not have
the power to alter, amend or otherwise affect the terms of these arbitration
provisions or the provision of the Agreement.
10. Except as herein specifically provided, arbitration shall be the sole and
exclusive remedy of the parties for a Disputed Matter.
-2-
<PAGE>
11. The parties acknowledge that the existence, progress and results of any
arbitration, and any arbitration award (collectively "Arbitration Information")
are to remain private. Each party agrees not to publish or advertise any
Arbitration Information by any means and further agrees to take reasonable care,
but in no event less care than it takes to protect its own confidential business
information generally to prevent disclosure and dissemination of any Arbitration
Information.
-3-
<PAGE>
EXHIBIT V
Fee Schedule
------------
<TABLE>
<CAPTION>
ESCROW ANNUAL FEES
ACCOUNT ADDITIONAL
RENEWAL BENEFICIARY
PROTECTION SYSTEM YEAR FIRST YEAR YEARS OR DEPOSITOR
<S> <C> <C> <C>
PREFERRED $2,300 $1,300 n/a
MASTER PREFERRED - DEPOSITOR 3,300 1,300 650
MASTER PREFERRED - BENEFICIARY 3,300 1,300 1,300
COMPREHENSIVE PREFERRED 3,100 2,100 n/a
FLEXSAFE 1,500 1,200 200
SAFE 1,500 1,200 50
TECHNOLOGY PROTECTION (POST) 650 650 n/a
</TABLE>
1. Included Services
Administrative services and protection vary depending on the system selected.
Please consult with your DSI representative to ensure that you are utilizing
the agreement that is best suited to your needs.
2. Custom Agreements
A $500 customization fee will be added to the first year when contract
changes increase DSI's risk or modify our release, termination or update
processes.
3. Preferred Discounts
Preferred fees will be discounted $650/year - when the deposit materials are
held in an existing DSI escrow account.
4. Additional Protection Systems
New systems may be added for a fee equal to the set-up fee for the new
system. The set-up fee is the difference between the first year and renewal
year fees. POST systems may be upgraded to the new systems. Contract your DSI
representative for information.
<TABLE>
<CAPTION>
SERVICE OPTION
<S> <C>
Unlimited deposit updates/replacements + one additional storage unit
$300/year
Individual deposit updates/replacements $200/ea.
DeposiTrack updates $300/ea.
Remote vaulting $500/year
Release filing fee *no fee
Additional storage units $100/ea.
Technical verification (estimates based on $150/hr.)
Verification Level I $300-600
Verification Level II (includes Level I) $500-1200
Verification Level III (includes Level I and II) $2,400-
4,600
</TABLE>
*direct expenses in excess of $300 will be chargeable.
-2-
<PAGE>
EXHIBIT D
---------
MUTUAL NONDISCLOSURE AGREEMENT
THIS MUTUAL NONDISCLOSURE AGREEMENT (this "Agreement") is entered into as of
July 29, 1996 by and between DISNEY ONLINE, a California corporation ("DISNEY"),
and VOXWARE, INC., a Delaware corporation ("VOXWARE").
WHEREAS, DISNEY and VOXWARE wish to disclose to and receive from each
other, from time to time during the term of this Agreement, certain information
and ideas they consider to be confidential regarding their respective current
and future technology and projects and/or business plans and opportunities, for
the specific purpose of discussing and/or pursuing a possible business
relationship in connection with the development of electronic multimedia and
interactive products, services or applications (the "Purpose").
THEREFORE, in consideration of such disclosures and the premises, agreements and
covenants herein contained, each of DISNEY and VOXWARE agrees as follows:
1. "Confidential Information" means the information and documentation
described on Exhibit A attached hereto and any other information, regardless of
form, proprietary to or maintained in confidence by either party, including,
without limitation, any information, technical data or know-how relating to
discoveries, ideas, inventions, concepts, software, equipment, designs,
drawings, specifications, techniques, processes, systems, models, data, source
code, object code, documentation, diagrams, flow charts, research, development,
business plans or opportunities, business strategies, marketing plans or
opportunities, marketing strategies, future projects or products, projects or
products under consideration, procedures, and information related to finances,
costs, prices, suppliers, vendors, customers and employees which is disclosed by
either party or on its behalf whether before, on or after the date hereof,
directly or indirectly, in writing, orally or by drawings or inspection of
equipment or software, to the other party or any of its employees or agents.
Confidential information also includes (a) the terms of this Agreement and the
-
fact of its existence and (b) any information obtained from a third party that
-
either party hereto treats as proprietary or confidential. Any document or
other material provided by either party to the other which is labeled
"Confidential" shall be presumed to be Confidential Information.
2. The parties agree that their respective organizations shall hold in
confidence any Confidential Information received pursuant to this Agreement and
not use such information for any purpose other than for the Purpose nor, without
the prior written approval of the disclosing party, reproduce in any media any
Confidential Information of such party received pursuant to this Agreement. In
particular, VOXWARE understands that DISNEY's Confidential Information may be
considered material, non-public information under federal and state securities
laws and VOXWARE could be found to be in violation thereof if it takes advantage
of such information by (a) trading in DISNEY's or any other party's stock, or
-
(b) furnishing information to others in connection with the trading of such
-
stock.
<PAGE>
3. Each party further agrees to limit disclosure of Confidential
Information received pursuant to this Agreement to those of its employees and
agents and, in DISNEY's case, to those of DISNEY's employees, agents and
contractors, in each case who have a need to know the information to affect the
Purpose. Each party shall cause each such employee, agent and contractor to
sign an employment or nondisclosure agreement that contains provisions in
substance similar to those included in this Agreement prohibiting the further
disclosure and use by such person or entity of any Confidential Information.
Each party agrees to protect the Confidential Information of the other party
with the same degree of care normally used to protect its own similar
Confidential Information, but no less than a reasonable degree of care, and to
take all steps as may be reasonably necessary to prevent any Confidential
Information from being revealed to any person or entity other than those to whom
the disclosing party has authorized disclosure pursuant to this Agreement or in
a writing delivered to the other party. In the event that either party receives
any request from any third party for any Confidential Information of the other
party hereto, or is directed to disclose any portion of any Confidential
Information received from the other party hereto by operation of law or in
conjunction with a judicial or governmental proceeding or arbitration, the party
requested or directed to make such disclosure shall immediately notify the
other party both orally and in writing. Each party agrees to provide the other
party with reasonable cooperation and assistance in obtaining a suitable
protective order, and in taking any other steps reasonably necessary, to
preserve the confidentiality of any such Confidential Information.
4. Notwithstanding any other term or provision of this Agreement,
"Confidential Information" shall not include information which: (a) is or
-
becomes publicly known through no act or failure to act on the part of the
recipient; (b) was rightfully in the recipient's possession prior to disclosure
-
by the disclosing party; (c) becomes rightfully known to the recipient from a
-
third party not subject to any independent confidential or proprietary
restriction; (d) is approved by the disclosing party for disclosure without
-
restriction, in a written document that is signed by a duly authorized officer
of that party; (e) is disclosed after the termination of the recipient's duty of
-
confidentiality as specified herein; or (f) is or was developed independently by
-
the recipient without use of or reference to any of the Confidential Information
and without violation of any confidentiality restriction.
5. The nondisclosure obligations imposed by this Agreement shall
terminate two (2) years from the delivery of the particular Confidential
Information in question. Each party agrees that, promptly following the
disclosing party's written request therefor or at the completion of such use by
the recipient as is permitted herein, whichever is earlier (but in no event
later than thirty (30) days following the termination of this Agreement), all
documents and other materials embodying Confidential Information provided by the
disclosing party and all copies thereof shall be either returned to the
disclosing party or destroyed, and all copies of Confidential Information shall
be purged from the recipient's electronic or magnetic media or storage devices.
6. All rights in and title to the Confidential Information supplied by
each party shall remain in that party. Neither the execution and delivery of
this Agreement,
-2-
<PAGE>
nor the furnishing of any Confidential Information by either party shall be
construed as granting to the other party either expressly, by implication,
estoppel or otherwise, any license under any invention, copyright, trade secret
or patent now or hereafter owned or controlled by the party furnishing the same,
nor any right to use on a royalty-free basis the information made available to
the recipient, except to fulfill the Purpose. Nothing in this Agreement shall
be deemed or construed to grant to any party a license to sell, develop, exploit
or further develop any Confidential Information of the disclosing party. The
disclosing party understands that the receiving party may currently or in the
future be developing information internally, or receiving information from other
parties, that may be similar to the disclosing party's Confidential Information.
In particular, each party understands and agrees that all information, ideas,
suggestions and concepts of a general nature or commonly known in the industry
related to the exploitation of information and entertainment through electronic
multimedia and interactive products and services which may be offered in
meetings or consultations between the parties shall not be deemed included in
the Confidential Information of either party and neither party shall be under
any obligation to the other with respect to its own use thereof. In addition,
provided that each party complies with the confidentiality obligations contained
herein, this Agreement shall not in any manner affect or limit such party's
present or future business activities of any nature, including business
activities which could be competitive with those of the other party.
7. VOXWARE shall acquire no right under this Agreement to use, and
VOXWARE shall not use, and shall not, directly or indirectly, assist any other
party to use, the name "Disney" (either alone, in conjunction with or as a part
of any other word, name or phrase), or any fanciful characters or designs of
Disney Enterprises, Inc. (formerly known as The Walt Disney Company) or any of
its related, affiliated or subsidiary companies (a) in any advertising,
-
publicity or promotion or other disclosure, (b) in any in-house publication, (c)
- -
to express or imply any endorsement of any product or service, or (d) in any
-
other manner or for any purpose whatsoever (whether or not similar to any of the
foregoing).
8. Each party agrees not to export, directly or indirectly, any technical
data acquired hereunder from the other party or any product utilizing any such
data to any country for which the government of the United States of America or
any agency thereof at the time of export requires an export license or other
government approval without first obtaining such license or approval.
9. This Agreement is not assignable except by DISNEY to any of its
related, affiliated or subsidiary companies. Any other attempt by either party
to assign or transfer this Agreement or any interest herein (including, without
limitation, rights and duties of performance) without the prior written consent
of the other party is void and without effect. Subject to the foregoing, this
Agreement and each and every provision hereof shall be binding upon and shall
inure to the benefit of the parties and their permitted successors and assigns.
10. In the event either party becomes aware of any misappropriation or
misuse of any Confidential Information by any person or entity, such party shall
immediately advise the other party in writing and, in the event of legal action
brought
-3-
<PAGE>
by the other in connection therewith, such party agrees that it will, at the
other party's expense, cooperate and provide such assistance as may be
reasonably necessary to enable such other party to successfully prosecute such
legal action.
11. This Agreement shall continue until terminated. Either party may
terminate this Agreement with or without cause upon written notice to the other
party, which notice shall be deemed effective when received if sent to the
respective addresses indicated below. Notwithstanding the preceding sentence,
the provisions of Sections 2, 3, 5, 6, 7 and 8 hereof shall survive termination
of this Agreement.
12. For purposes of this Agreement other than identifying the parties
hereto, "DISNEY" shall mean Disney Online, Disney Interactive, Inc., Disney
Enterprises, Inc., The Walt Disney Company, and every related, affiliated and
subsidiary company thereof; provided that in the event of any claim by VOXWARE
under or in connection with this Agreement, VOXWARE agrees to seek any remedy to
which it may be entitled from Disney Online exclusively. This Agreement and the
exhibit attached hereto contain the full and complete understanding of the
parties with respect to the subject matter hereof and supersedes all prior or
contemporaneous representations and understandings, whether oral or written.
This Agreement may not be amended, waived or modified except by an instrument in
writing executed by duly authorized representatives of the parties. In the
event that any provision hereof or any obligation hereunder is found invalid or
unenforceable pursuant to judicial decree or decision, any such provision or
obligation shall be deemed and construed to extend only to the maximum permitted
by law, and the remainder of this Agreement shall remain valid and enforceable
according to its terms. This Agreement shall be governed by California law
without giving effect to principles of conflict of laws. The parties expressly
agree that any action at law or in equity arising out of or relating to this
Agreement shall be filed only in the state or federal courts located in the
County of Los Angeles. The parties hereby consent and submit to the personal
jurisdiction of such courts for the purposes of litigating any such action.
This Agreement may be executed by manual or facsimile signatures and in
counterparts, each of which shall be deemed an original and all which together
shall constitute one and the same instrument.
-4-
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the date first written above.
DISNEY ONLINE VOXWARE, INC.
By: By:
---------------------- --------------------------
Name: Name:
-------------------- ------------------------
Title: Title:
------------------- -----------------------
Notice Address: Notice Address:
- -------------- --------------
Disney Online Voxware, Inc.
500 South Buena Vista Street 305 College Road East
Burbank, California 91521-8463 Princeton, New Jersey 08540
Attention: Vice President-Business and Attention: Robert Field
- --------- ---------
Legal Affairs
Telephone: (818) 543-4300 Telephone: (609) 514-4118
Telecopy: (818) 546-1324 Telecopy: (609) 514-4101
-5-
<PAGE>
EXHIBIT A
Confidential Information and Documentation
1. DISNEY's confidential Information includes the following:
a. Any nonpublic information or knowledge regarding any electronic
multimedia and interactive systems, technology, services, products and
applications used, under review or in development by DISNEY.
b. Any nonpublic information regarding DISNEY's business planned or
potential use of electronic multimedia and interactive systems,
technology and applications in future projects.
c. Any information regarding any of DISNEY's business practices and
relationships with developers, licensees and content providers,
including but not limited to, information relating to costs, budgets,
schedules, contracts, warranties, commitments, liabilities, hardware
and software specifications, asset delivery methods and relationship
management, and negotiations, communications and consultations with
any such party.
d. Any nonpublic information regarding ideas, plans, budgets, schedules,
developments, strategies and philosophies for product and services
design, marketing and distribution.
e. Any nonpublic information regarding creative concepts and ideas
(including without limitation designs, graphic art, characters, plots,
stories, interfaces, navigational metaphors, gameplay, multimedia and
interactive elements and functionality and animation techniques)
presently existing, under consideration, planned or in development by
or for DISNEY.
f. Any information related to the creative and business affairs of
DISNEY, including but not limited to knowledge regarding finances,
products, costs, prices, vendors, customers or employees that is not
otherwise known to the general public or by VOXWARE prior to the date
of this Agreement.
2. VOXWARE's Confidential Information includes the following:
a. Any nonpublic information or knowledge regarding VOXWARE's digital
speech coding and compression technology used, under review or in
development by VOXWARE in the Licensed Technology, Additions and
Updates, as defined in that certain Software License Agreement between
the parties dated as of September 27, 1996.
b. Any nonpublic information regarding VOXWARE's planned or potential use
in future projects of digital speech coding and compression
technology.
[End of Exhibit A]
