<PAGE>
As filed with the Securities and Exchange Commission on March 27, 2000
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------
VOXWARE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 36-3934824
(State or other juris- (I.R.S. Employer
diction of incorporation Identification
or organization) 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)
VOXWARE, INC. 1994 STOCK OPTION PLAN, AS AMENDED.
VOXWARE, INC. 1998 STOCK OPTION PLAN FOR OUTSIDE DIRECTORS.
PLAN TO PAY NON-EMPLOYEE DIRECTORS AN ANNUAL RETAINER.
-------------------
BATHSHEBA J. MALSHEEN
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)
-------------------
Copies of all communications, including all communications sent
to the agent for service, should be sent to:
PAUL JACOBS, ESQ.
FULBRIGHT & JAWORSKI L.L.P.
666 FIFTH AVENUE
NEW YORK, NEW YORK 10103
(212) 318-3000
-------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF SECURITIES PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED AMOUNT TO BE REGISTERED PRICE PER UNIT (1) OFFERING PRICE (1) REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.001 par value
per share........ 1,150,000 shares $6.46875 $7,439,063 $1,964
===================================================================================================================================
</TABLE>
(1) The price is estimated in accordance with Rule 457(h)(1) under the
Securities Act of 1933, as amended, solely for the purpose of calculating
the registration fee, based on the average of the high and low prices of the
Common Stock as reported on the Nasdaq National Market on March 22, 2000.
<PAGE>
EXPLANATORY NOTE
Voxware, Inc. is registering (1) 850,000 shares of Common Stock under its
1994 Stock Option Plan, as amended, (2) 250,000 shares of Common Stock under its
1998 Stock Option Plan for Outside Directors and (3) 50,000 shares of Common
Stock under its Plan to Pay Non-Employee Directors an Annual Retainer.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Voxware, Inc. (the "Company") are
incorporated herein by reference:
(a) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended December 31, 1999 filed on February 14, 2000.
(b) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended September 30, 1999 filed on November 15, 1999.
(c) The Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1999 filed on September 28, 1999.
(d) The Company's Amended Annual Report on Form 10-K/A filed on August
12, 1999.
(e) The Company's Amended Quarterly Report on Form 10-Q/A filed on
August 12, 1999.
(f) The Company's Amended Current Report on Form 8-K/A filed on August
12, 1999.
(g) The Company's Current Report on Form 8-K filed on October 6, 1999.
(h) The description of the Company's Common Stock contained in Item 1
of the Company's Registration Statement on Form 8-A dated September 19,
1996.
In addition to the foregoing, all documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-effective amendment
indicating that all of the securities offered hereunder have been sold or
deregistering all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be part
hereof from the date of filing of such documents. Any statement contained
in a document incorporated by reference in this Registration Statement
shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or
in any subsequently filed document that is also incorporated by reference
herein modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
II-1
<PAGE>
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware permits
indemnification of officers, directors and employees of a corporation under
certain conditions subject to certain limitations. The Certificate of
Incorporation and By-laws of the Company provide that the Company shall
indemnify its officers and directors to the fullest extent permitted by Delaware
Law, 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 its directors and officers incurred in
connection with an action or proceeding as to which they may be entitled to
indemnification, subject to certain exceptions. In addition, the Company has
entered into Indemnity Agreements with its directors and officers providing for
the maximum indemnification allowed by Section 145.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
4(a)* Certificate of Incorporation of Voxware, Inc., as amended
(b)* Bylaws of Voxware, Inc.
(c) Voxware, Inc. 1994 Stock Option Plan, as amended
(d) Voxware, Inc. 1998 Stock Option Plan for Outside Directors
(e) Plan to Pay Non-Employee Directors an Annual Retainer
5 Opinion of Fulbright & Jaworski L.L.P.
23(a) Consent of Arthur Andersen LLP
(b) Consent of Fulbright & Jaworski L.L.P. (included in Exhibit 5)
24 Power of Attorney (included in signature page)
- -------------------
* Incorporated by reference to Voxware, Inc.'s Registration Statement on Form
S-1 (File No. 333-08393), initially filed July 18, 1996.
II-2
<PAGE>
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this
section do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities and Exchange
Act of 1934 that are incorporated herein by reference;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment 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; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that
is incorporated by reference in the registration statement 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-3
<PAGE>
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Securities Act of 1933
and is, therefore, unenforceable. In the event 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 of the registrant 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
Securities Act of 1933 and will be governed by the final adjudication
of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Princeton, State of New Jersey on March 27, 2000.
VOXWARE, INC.
By: /s/ Bathsheba J. Malsheen
------------------------------------------
Bathsheba J. Malsheen
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints BATHSHEBA J. MALSHEEN and NICHOLAS
NARLIS, or either of them, his true and lawful attorney-in-fact and agent with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same
with all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting said attorney-in-fact and agent,
and each of them, full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises, as fully
to all intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent or any of
them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
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>
President, Chief Executive
/s/ Bathsheba J. Malsheen Officer and Director March 27, 2000
- ----------------------------------- (principal executive officer)
Bathsheba J. Malsheen
Vice President, Chief Financial
/s/ Nicholas Narlis Officer, Treasurer and Secretary March 27, 2000
- ----------------------------------- (principal financial officer and
Nicholas Narlis principal accounting officer)
/s/ David B. Levi Director March 27, 2000
- -----------------------------------
David B. Levi
/s/ Eli Porat Director March 27, 2000
- -----------------------------------
Eli Porat
</TABLE>
II-5
<PAGE>
EXHIBIT 4(C)
<PAGE>
VOXWARE, INC.
1994 STOCK OPTION PLAN, AS AMENDED
1. PURPOSE. The purpose of the Voxware, Inc. 1994 Stock Option Plan (the
--------
"Plan") is to enable Voxware, Inc. (the "Company") and its stockholders to
secure the benefits of common stock ownership by key personnel of the
Company and its subsidiaries. The Board of Directors of the Company (the
"Board") believes that the granting of options under the Plan will foster
the Company's ability to attract, retain and motivate those individuals who
will be largely responsible for the profitability and long-term future
growth of the Company.
2. STOCK SUBJECT TO THE PLAN. The Company may issue and sell a total of
--------------------------
3,200,000 shares of its common stock (the "Common Stock") pursuant to the
Plan. Such shares may be either authorized and unissued or held by the
Company in its treasury. New options may be granted under the Plan with
respect to shares of Common Stock which are covered by the unexercised
portion of an option which has terminated or expired by its terms, by
cancellation or otherwise.
3. ADMINISTRATION. The Plan will be administered by the Board or a committee
---------------
(the "Committee") consisting of at least two directors appointed by and
serving at the pleasure of the Board (or, if there is only one director,
the Committee shall consist of the sole director). Subject to the
provisions of the Plan, the Board or the Committee, as the case may be,
acting in its sole and absolute discretion, will have full power and
authority to grant options under the Plan, to interpret the provisions of
the Plan, to fix and interpret the provisions of option agreements made
under the Plan, to supervise the administration of the Plan, and to take
such other action as may be necessary or desirable in order to carry out
the provisions of the Plan. A majority of the members of the Committee will
constitute a quorum. The Committee may act by the vote of a majority of its
members present at a meeting at which there is a quorum or by unanimous
written consent. The decision of the Board or the Committee, as the case
may be, as to any disputed question, including questions of construction,
interpretation and administration, will be final and conclusive on all
persons. The Committee will keep a record of its proceedings and acts and
will keep or cause to be kept such books and records as may be necessary in
connection with the proper administration of the Plan.
4. ELIGIBILITY. Options may be granted under the Plan to present or future
------------
key employees of the Company or a subsidiary of the Company (a
"Subsidiary") within the meaning of Section 424(f) of the Internal Revenue
Code of 1986 (the "Code"), and to directors of and consultants to the
Company or a Subsidiary who are not employees. Subject to the provisions of
the Plan, the Board or the Committee, as the case may be, may from time to
time select the persons to whom options will be granted, and will fix the
number of shares covered by each such option and establish the terms and
conditions thereof (including, without limitation, the exercise price,
restrictions on exercisability of the option and/or on the disposition of
the shares of Common Stock issued upon exercise thereof, and whether or
<PAGE>
not the option is to be treated as an incentive stock option within the
meaning of Section 422 of the Code (an "Incentive Stock Option").
5. TERMS AND CONDITIONS OF OPTIONS. Each option granted under the Plan will
--------------------------------
be evidenced by a written agreement in a form approved by the Board or the
Committee. Each such option will be subject to the terms and conditions set
forth in this paragraph and such additional terms and conditions not
inconsistent with the Plan as the Board or the Committee deems appropriate.
A. OPTION EXERCISE PRICE. In the case of an option which is not
----------------------
treated as an Incentive Stock Option, the exercise price per share may
not be less than the par value of a share of Common Stock on the date
the option is granted; and, in the case of an Incentive Stock Option,
the exercise price per share may not be less than 100% of the fair
market value of a share of Common Stock on the date the option is
granted (110% in the case of an optionee who, at the time the option is
granted, owns stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company or a Subsidiary (a
"ten percent shareholder")). For purposes hereof, the fair market value
of a share, of Common Stock on any date will be equal to the closing
sale price per share as published by a national securities exchange on
which shares of the Common Stock are traded on such date or, if there
is no sale of Common Stock on such date, the average of the bid and
asked prices on such exchange at the closing of trading on such date
or, if shares of the Common Stock are not listed on a national
securities exchange on such date, the closing price or, if none, the
average of the bid and asked prices in the over the counter market at
the close of trading on such date, or if the Common Stock is not traded
on a national securities exchange or the over the counter market, the
fair market value of a share of the Common Stock on such date as
determined in good faith by the Board or the Committee.
B. OPTION PERIOD. The period during which an option may be
--------------
exercised will be fixed by the Board or the Committee and will not
exceed ten years from the date the option is granted (five years in the
case of an Incentive Stock Option granted to a "ten percent
shareholder").
C. EXERCISE OF OPTIONS. Except as otherwise determined by the Board or
--------------------
the Committee, no option will become exercisable unless the person to
whom the option was granted remains in the continuous employ or service
of the Company or a Subsidiary for at least six months from the date
the option is granted. The Board or the Committee may determine and set
forth in the option agreement any vesting or other restrictions on the
exercisability of an option, subject to earlier termination of the
option as provided herein. All or part of the exercisable portion of an
option may be exercised at any time during the option period. An option
may be exercised by transmitting to the Company (a) a written notice
specifying the number of shares to
2
<PAGE>
be purchased, and (b) payment of the exercise price (or, if applicable,
delivery of a secured obligation therefor), together with the amount,
if any, deemed necessary by the Board or the Committee to enable the
Company to satisfy its income tax withholding obligations with respect
to such exercise (unless other arrangements acceptable to the Company
are made with respect to the satisfaction of such withholding
obligations).
D. PAYMENT OF EXERCISE PRICE. The purchase price of shares of Common
--------------------------
Stock acquired pursuant to the exercise of an option granted under the
Plan may be paid in cash and/or such other form of payment as may be
permitted under the option agreement, including, without limitation,
previously-owned shares of Common Stock. The Board or the Committee may
permit the payment of all or a portion of the purchase price in
installments (together with interest) over a period of not more than
five years.
E. RIGHTS AS A STOCKHOLDER. No shares of Common Stock will be issued in
------------------------
respect of the exercise of an option granted under the Plan until full
payment therefor has been made (and/or provided for where all or a
portion of the purchase price is being paid in installments). The
holder of an option will have no rights as a stockholder with respect
to any shares covered by an option until the date a stock certificate
for such shares is issued to him or her. Except as otherwise provided
herein, no adjustments shall be made for dividends or distributions of
other rights for which the record date is prior to the date such stock
certificate is issued.
F. NONTRANSFERABILITY OF OPTIONS. No option shall be assignable or
------------------------------
transferrable except upon the optionee's death to a beneficiary
designated by the optionee in accordance with procedures established by
the Committee or, if no designated beneficiary shall survive the
optionee, pursuant to the optionee's will or by the laws of descent and
distribution. During an optionee's lifetime, options may be exercised
only by the optionee or the optionee's guardian or legal
representative.
G. TERMINATION OF EMPLOYMENT OR OTHER SERVICE. Unless otherwise
-------------------------------------------
determined by the Board or the Committee, if an optionee ceases to be
employed by or to perform services for the Company and any Subsidiary
for any reason other than death or disability (defined below), then
each outstanding option granted to him or her under the Plan will
terminate on the date three months after the date of such termination
of employment or service, provided, however, that, if the optionee's
employment or service is terminated by the Company for cause (defined
below), then the option will terminate upon the date of such
termination of employment or service. If an optionee's employment or
service is terminated by reason of the optionee's death or disability
(or if the optionee's employment or service is terminated by reason of
his or her disability and the optionee dies within one year after such
termination of employment or service), then each outstanding option
granted to the optionee under
3
<PAGE>
the Plan will terminate on the date one year after the date of such
termination of employment or service (or one year after the later death
of a disabled optionee) or, if earlier, the date specified in the
option agreement. For purposes hereof, unless otherwise agreed by the
Board or the Committee in an option agreement, the term "disability"
means the inability of an optionee to perform the customary duties of
his or her employment or other service for the Company or a Subsidiary
by reason of a physical or mental incapacity which is expected to
result in death or be of indefinite duration; and, unless otherwise
agreed by the Board or the Committee in an option agreement, the term
"cause" means (1) failure or refusal by optionee to perform the duties
of his or her employment with the Company, (2) commission by the
optionee of a crime involving moral turpitude, or (3) the optionee's
dishonesty or willful engagement in conduct which is injurious to the
business or reputation of the Company, all as determined by the Board
in its sole discretion.
H. OTHER PROVISIONS. The Board or the Committee may impose such other
-----------------
conditions with respect to the exercise of options, including, without
limitation, any conditions relating to the application of federal or
state securities laws, as it may deem necessary or advisable.
6. CHANGE IN CONTROL; CAPITAL CHANGES.
- -- -----------------------------------
a. Unless otherwise determined by the Board in an option agreement with
respect to any particular option, if any event constituting a "Change
in Control of the Company" shall occur, all options granted under the
Plan which are outstanding at the time a Change of Control of the
Company shall occur shall immediately become exercisable. Unless
otherwise determined by the Board in an option agreement with respect
to any particular option, a "Change in Control of the Company" shall be
deemed to occur if (i) there shall be consummated (x) any consolidation
or merger of the Company in which the Company is not the continuing or
surviving corporation or pursuant to which shares of the Company's
Common Stock would be converted into cash, securities or other
property, other than a merger of the Company in which the holders of
the Company's Common Stock immediately prior to the merger have the
same proportionate ownership of common stock of the surviving
corporation immediately after the merger, or (y) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the
Company, or (ii) the stockholders of the Company shall approve any plan
or proposal for liquidation or dissolution of the Company, or (iii) any
person (as such term is used in Section 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")),
shall become the beneficial owner (within the meaning of Rule 13d-3
under the Exchange Act) of more than 50% of the Company's outstanding
Common Stock other than pursuant to a plan or arrangement entered into
by such person and the Company, or (iv) during any period of two
consecutive years, individuals who at the beginning of such period
constitute the entire Board of
4
<PAGE>
Directors shall cease for any reason to constitute a majority thereof
unless the election, or the nomination for election by the Company's
stockholders, of each new director was approved by a vote of at least
two-thirds of the directors then still in office who were directors at
the beginning of the period; provided, however, that stock ownership
changes and changes in the composition of the Board will not constitute
a "change in control" for purposes hereunder if and to the extent any
such change occurs as a result of or in connection with a public
offering of the Company's stock.
b. In the event of any stock split, stock dividend or similar transaction
which increases or decreases the number of outstanding shares of Common
Stock, appropriate adjustment shall be made by the Board to the number
and option exercise price per share of Common Stock which may be
purchased under any outstanding options. In the case of a merger,
consolidation or similar transaction which results in a replacement of
the Company's Common Stock with stock of another corporation but does
not constitute Change in Control of the Company, the Company will make
a reasonable effort, but shall not be required, to replace any
outstanding options granted under the Plan with comparable options to
purchase the stock of such other corporation, or will, unless otherwise
determined by the Committee or the Board in an option agreement with
respect to any particular option, the Company will provide for
immediate maturity of all outstanding options, with all options not
being exercised within the time period specified by the Board being
terminated.
c. In the event of any adjustment in the number of shares covered by any
option pursuant to the provisions hereof, any fractional shares
resulting from such adjustment will be disregarded and each such option
will cover only the number of full shares resulting from the
adjustment.
d. All adjustments under this paragraph 6 shall be made by the Board, and
its determination as to what adjustments shall be made, and the extent
thereof, shall be final, binding and conclusive.
7. AMENDMENT AND TERMINATION OF THE PLAN. The Board may amend or terminate
- -- --------------------------------------
the Plan. Except as otherwise provided in the Plan with respect to equity
changes, any amendment which would increase the aggregate number of shares
of Common Stock as to which options may be granted under the Plan, change
the minimum option price for options, materially increase the benefits
under the Plan, or modify the class of persons eligible to receive options
under the Plan shall be subject to the approval of the Company's
stockholders. No amendment or termination may affect adversely any
outstanding option without the written consent of the optionee.
5
<PAGE>
8. NO RIGHTS CONFERRED. Nothing contained herein will be deemed to give any
- -- --------------------
individual any right to receive an option under the Plan or to be retained
in the employ or service of the Company or any Subsidiary.
9. GOVERNING LAW. The Plan and each option agreement shall be governed by the
- -- --------------
laws of the State of Delaware.
10. DECISIONS AND DETERMINATIONS OF COMMITTEE TO BE FINAL. Except to the
- --- ------------------------------------------------------
extent rights or powers under this Plan are reserved specifically to the
discretion of the Board, all decisions and determinations of the Committee
are final and binding.
11. TERM OF THE PLAN. The Plan shall be effective as of the date on which it
- --- -----------------
is adopted by the Board, subject to the approval of the stockholders of the
Company within one year from the date of adoption by the Board. The Plan
will terminate on the date ten years after the date of adoption by the
Board, unless sooner terminated by the Board. The rights of optionees under
options outstanding at the time of the termination of the Plan shall not be
affected solely by reason of the termination and shall continue in
accordance with the terms of the option (as then in effect or thereafter
amended).
6
<PAGE>
EXHIBIT 4(D)
<PAGE>
VOXWARE, INC.
1998 STOCK OPTION PLAN FOR OUTSIDE DIRECTORS
1. PURPOSE.
The purpose of this 1998 Stock Option Plan for Outside Directors
(the "Plan") of Voxware, Inc. (the "Corporation") is to enable the Corporation
to compensate eligible directors of the Corporation and to encourage the highest
level of performance by providing such persons with a proprietary interest in
the Corporation's success and progress by granting them shares of the
Corporation's Common Stock, par value $.001 per share ("Common Stock").
2. ADMINISTRATION OF THE PLAN
The Plan will be administered by the Board or a committee (the "Committee")
consisting of at least two directors appointed by and serving at the pleasure of
the Board (or, if there is only one director, the Committee shall consist of the
sole director). Subject to the provisions of the Plan, the Board or the
Committee, as the case may be, acting in its sole and absolute discretion, will
have full power and authority to interpret the provisions of the Plan, to fix
and interpret the provisions of option agreements made under the Plan, to
supervise the administration of the Plan, and to take such other action as may
be necessary or desirable in order to carry out the provisions of the Plan. A
majority of the members of the Committee will constitute a quorum. The Committee
may act by the vote of a majority of its members present at a meeting at which
there is a quorum or by unanimous written consent. The decision of the Board or
the Committee, as the case may be, as to any disputed question, including
questions of construction, interpretation and administration, will be final and
conclusive on all persons. The Committee will keep a record of its proceedings
and acts and will keep or cause to be kept such books and records as may be
necessary in connection with the proper administration of the Plan.
3. ELIGIBILITY AND ISSUANCES.
(a) Eligibility. Directors of the Corporation who (i) are neither officers
nor employees nor consultants of the Corporation or any of its subsidiaries
(other than the Chairman of the Board of Directors of the Corporation, if any,
who shall be eligible if he is not otherwise an officer, employee or consultant
of the Corporation) and (ii) are not affiliated with any person referred to in
(i) above ("outside directors") shall be eligible to receive options to purchase
Common Stock under the Plan.
<PAGE>
(b) Issuances
(i) Each outside director shall be issued an option to purchase 30,000
shares of the Corporation's Common Stock (the "Initial Option") on the date of
his initial election or appointment to the Board of Directors (the "Initial
Grant Date"); provided that, all outside directors elected at the 1998 Annual
Meeting of Stockholders of the Corporation shall receive the Initial Option on
the date of such meeting whether or not such persons served on the Board of
Directors prior to such Meeting, on the following terms:
(a) The option exercise price per share of Common Stock shall be the Fair
Market Value (as defined below) of the Common Stock covered by such Initial
Option on the Initial Grant Date.
(b) Except as provided herein, the term of an Initial Option shall be for
a period of ten (10) years from the Initial Grant Date.
(ii) In addition, each outside director shall, on the date of his re-
election to the Board of Directors by the stockholders of the Corporation (the
"Additional Grant Date"), if he is still an outside director on such date and
has been an outside director for at least six months and has attended, either in
person or by telephone, at least seventy-five percent (75%) of the meetings of
the Board of Directors that were held while he was a director in the just
completed calendar year, be granted an option to purchase 10,000 shares of
Common Stock (the "Additional Option" and, together with the Initial Option, an
"Option") on the following terms:
(a) The option exercise price per share of Common Stock shall be the Fair
Market Value (as defined below) of the Common Stock covered by such
Additional Option on the Additional Grant Date.
(b) Except as provided herein, the term of an Additional Option shall be
for a period of ten (10) years from the Additional Grant Date.
(iii) "Fair Market Value" shall mean, for each Initial Grant Date or
Additional Grant Date (collectively, a "Grant Date"), (A) if the Common Stock is
listed or admitted to trading on the New York Stock Exchange (the "NYSE") or the
American Stock Exchange (the "ASE"), the last reported sale price of the Common
Stock on such date or, if no sale takes place on such date, the closing asked
prices of the Common Stock on such exchange as of such date, in each case as
officially reported on the NYSE or the ASE, or (B) if no shares of Common Stock
are then listed or admitted to trading on the NYSE or the ASE, the last reported
sales price of the Common Stock on such date on the NASDAQ National Market
System ("NASDAQ") or, if no shares of Common Stock are then quoted on NASDAQ,
the average of the closing bid and the highest asked prices of the Common Stock
on such date on NASDAQ, or, if no shares of Common Stock are then quoted on
NASDAQ, the average of the highest bid and the lowest asked prices of the Common
Stock
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on such date as reported on the over-the-counter system. If no closing bid and
lowest asked prices thereof are then so quoted or published in the over-the-
counter market, "Fair Market Value" shall mean the fair value per share of
Common Stock determined in good faith by the Board.
(iv) Options granted hereunder shall not be "incentive stock options"
within the meaning of Section 422A of the Internal Revenue Code of 1986, as
amended.
4. REGULATORY COMPLIANCE AND LISTING.
The issuance or delivery of any Option may be postponed by the Corporation,
for such period as may be required to comply with the Federal securities laws,
state "blue sky" laws, any applicable listing requirements of any applicable
securities exchange and any other law or regulation applicable to the issuance
or delivery of such Options and the Corporation shall not be obligated to issue
or deliver any Options if the issuance or delivery of such Options would
constitute a violation of any law or any regulation of any governmental
authority or applicable securities exchange.
5. RESTRICTIONS ON EXERCISABILITY.
(c) Except as provided in Section 5(b) below, each Option granted under the
Plan may be exercisable as to one-twelfth of the shares issuable under such
Option on the last day of each of the next 12 three-month periods following the
Grant Date of such Option.
(d) If any event constituting a "Change in Control of the Corporation"
shall occur, all Options granted under the Plan, which are outstanding at the
time a Change of Control of the Corporation shall occur, shall immediately
become exercisable. A "Change in Control of the Corporation" shall be deemed to
occur if (i) there shall be consummated (x) any consolidation or merger of the
Corporation in which the Corporation is not the continuing or surviving
corporation or pursuant to which shares of the Corporation's Common Stock would
be converted into cash, securities or other property, other than a merger of the
Corporation in which the holders of the Corporation's Common Stock immediately
prior to the merger have the same proportionate ownership of common stock of the
surviving corporation immediately after the merger, or (y) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the Corporation, or
(ii) the stockholders of the Corporation shall approve any plan or proposal for
liquidation or dissolution of the Corporation, or (iii) any person (as such term
is used in Section 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), shall become the beneficial owner (within the
meaning of Rule 13d-3 under the Exchange Act) of more than 50% of the
Corporation's outstanding Common Stock other than pursuant to a plan or
arrangement entered into by such person and the Corporation, or (iv) during any
period of two consecutive years, individuals who at the beginning of such period
constitute the entire
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Board of Directors shall cease for any reason to constitute a majority thereof
unless the election, or the nomination for election by the Corporation's
stockholders, of each new director was approved by a vote of at least two-thirds
of the directors then still in office who were directors at the beginning of the
period.
12. CESSATION AS DIRECTOR.
In the event that the holder of an Option granted pursuant to the Plan
shall cease to be a director of the Corporation for any reason, such holder may
exercise any portion of such Option that is exercisable by him at the time he
ceases to be a director of the Corporation, but only to the extent such Option
is exercisable as of such date, within six months after the date he ceases to be
a director of the Corporation.
13. DEATH.
In the event that a holder of an Option granted pursuant to the Plan shall
die, his beneficiary may exercise any portion of such Option that was
exercisable by the deceased Optionee at the time of his death, but only to the
extent such Option is exercisable as of such date, within twelve months after
the date of his death.
14. STOCK SPLITS, MERGERS, ETC.
In the event of any stock split, stock dividend or similar transaction
which increases or decreases the number of outstanding shares of Common Stock,
appropriate adjustment shall be made by the Board, whose determination shall be
final, to the number and option exercise price per share of Common Stock which
may be purchased under any outstanding Options. In the case of a merger,
consolidation or similar transaction which results in a replacement of the
Corporation's Common Stock and stock of another corporation but does not
constitute a Change in Control of the Corporation, the Corporation will make a
reasonable effort, but shall not be required, to replace any outstanding Options
granted under the Plan with comparable options to purchase the stock of such
other corporation, or will provide for immediate maturity of all outstanding
Options, with all Options not being exercised within the time period specified
by the Board of Directors being terminated.
15. TRANSFERABILITY.
Options are not assignable or transferable, except by will or the laws of
descent and distribution to the extent set forth in Section 7 and during a
director's lifetime may be exercised only by him.
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16. EXERCISE OF OPTIONS.
An optionholder electing to exercise an Option shall give written notice to
the Corporation of such election and of the number of shares of Common Stock
that he has elected to acquire. An optionholder shall have no rights of a
stockholder with respect to shares of Common Stock covered by his Option until
after the date of issuance of a stock certificate to him upon partial or
complete exercise of his option.
17. PAYMENT.
The Option exercise price shall be payable in cash, check or in shares of
Common Stock upon the exercise of the Option. If the shares of Common Stock are
tendered as payment of the Option exercise price, the value of such shares shall
be the Fair Market Value as of the date of exercise. If such tender would
result in the issuance of fractional shares of Common Stock, the Corporation
shall instead return the difference in cash or by check to the employee.
18. TERM OF PLAN.
The Plan shall be effective as of the date on which it is approved by the
stockholders of the Corporation. The Plan shall terminate 10 years from such
date, and no Option shall be granted pursuant to the Plan after that date.
19. OBLIGATION TO EXERCISE OPTION.
The granting of an Option shall impose no obligation on the director to
exercise such Option.
20. CONTINUANCE AS DIRECTOR.
Nothing in the Plan shall be deemed to create any obligation on the part of
the Board to nominate any director for reelection by the Corporation's
stockholders.
21. AMENDMENT OF THE PLAN.
The Board may at any time and from time to time alter, amend, suspend or
terminate the Plan in whole or in part, provided, however, that any amendment
which must be approved by the stockholders of the Corporation under any
applicable law, rule or regulation (including NASDAQ
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requirements) shall not be effective unless and until such stockholder approval
has been obtained in compliance with such rule or law.
22. WITHHOLDING OF TAXES.
The Corporation shall have the right, prior to the delivery of any
certificate evidencing shares of Common Stock to be issued pursuant to an
Option, to require the exercising outside director to remit to the Corporation
an amount in cash sufficient to satisfy any Federal, state, or local tax
withholding requirements.
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EXHIBIT 4(E)
<PAGE>
RESOLVED, that, subject to stockholder approval if required by applicable
Nasdaq rules, the Corporation shall pay, (i) on and as of the last day of the
month in which the annual meeting of stockholders is held in each calendar year
commencing 1998, to each non-employee director of the Corporation elected at
such meeting, an annual retainer equal to a number of shares of Common Stock
with a fair market value on such date (determined in a manner consistent with
the provisions of the Corporation's 1994 Stock Option Plan) of $10,000, (ii) on
and as of the last day of the month in which the 1998 Annual Meeting of
Stockholders is held (the "1998 Issue Date"), to each person who served as a
non-employee director of the Corporation from the time of the Corporation's
initial public offering through the date of the 1998 Annual Meeting of
Stockholders, a retainer equal to the number of shares of Common Stock with a
fair market value of $10,000 (determined in a manner consistent with the
provisions of the Corporation's 1994 Stock Option Plan) based on the higher of
(A) the fair market value per share of Common Stock on September 19, 1997 and
(B) the fair market value per share of Common Stock on the 1998 Issue Date, and
(iii) on and as of the last day of the month in which any newly appointed non-
employee director is appointed after the annual meeting of stockholders in any
year (provided that such director is appointed to serve for a period of at least
six months prior to the next annual meeting of stockholders), to such newly
appointed director, a retainer equal to a number of shares of Common Stock with
a fair market value on such date (determined in a manner consistent with the
provisions of the Corporation's 1994 Stock Option Plan) of $10,000; and it was
further
RESOLVED, that, commencing on the date of the 1998 Annual Meeting of
Stockholders, the Corporation pay to each non-employee director attending
(either in person or via conference telephone call) any regular or special
meeting of the Board of Directors of the Corporation, a cash fee of $1,000; and
it was further
RESOLVED, that, commencing on the date of the 1998 Annual Meeting of
Stockholders, the Corporation pay to each non-employee director attending
(either in person or via conference telephone call) any regular or special
meeting of any Committee of the Board of Directors of the Corporation of which
such director is a member, a cash fee of $500; provided, that no such fee shall
be payable with respect to any Committee meeting if such meeting takes place on
the same day as a regular or special meeting of the Board of Directors; and it
was further
RESOLVED, that the proper officers of the Corporation be, and each of them
hereby is, authorized and empowered, in the name and on behalf of the
Corporation, to execute all such documents or instruments, in order to carry out
each of the foregoing resolutions and to effectuate the purposes and intents
thereof.
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EXHIBIT 5
<PAGE>
[Fulbright & Jaworski L.L.P. Letterhead]
March 27, 2000
Voxware, Inc.
305 College Road East
Princeton, NJ 08540
Ladies and Gentleman:
We refer to the Registration Statement on Form S-8 (the "Registration
Statement") to be filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Act"), on behalf of Voxware, Inc. (the
"Company"), relating to 1,150,000 shares of the Company's Common Stock, $.001
par value per share (the "Shares"), to be issued under the Company's 1994 Stock
Option Plan, as amended, the Company's 1998 Stock Option Plan for Outside
Directors and the Company's Plan to Pay Non-Employee Directors an Annual
Retainer (the "Plans").
As counsel for the Company, we have examined such corporate records, other
documents, and such questions of law as we have considered necessary or
appropriate for the purposes of this opinion and, upon the basis of such
examination, advise you that in our opinion, all necessary corporate proceedings
by the Company have been duly taken to authorize the issuance of the Shares
pursuant to the Plans and that the Shares being registered pursuant to the
Registration Statement, when issued and paid for under the Plans in accordance
with the terms of the Plans, will be duly authorized, validly issued, fully paid
and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. This consent is not 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 Act.
Very truly yours,
/s/ Fulbright and Jaworski L.L.P.
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EXHIBIT 23(A)
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement of our report dated September 24,
1999 included in Voxware, Inc.'s Form 10-K for the fiscal year ended June 30,
1999 and to all references to our Firm included in this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
March 20, 2000
Roseland, New Jersey
