3.
Notwithstanding the foregoing, if the acquiring or succeeding corporation
(or an affiliate thereof) does not agree to assume, or substitute for, such
Options, then the Board shall, upon written notice to the Participants, provide
that all then unexercised Options will become exercisable in full as of a
specified time prior to the Reorganization Event and will terminate immediately
prior to the consummation of such Reorganization Event, except to the extent
exercised by the Participants before the consummation of such Reorganization
Event; provided, however, that in the event of a Reorganization Event under the
terms of which holders of Common Stock will receive upon consummation thereof a
cash payment for each share of Common Stock surrendered pursuant to such
Reorganization Event (the Acquisition Price), then the Board may instead
provide that all outstanding Options
shall
terminate upon consummation of such Reorganization Event and that each
Participant shall receive, in exchange therefor, a cash payment equal to the
amount (if any) by which (A) the Acquisition Price multiplied by the number of
shares of Common Stock subject to such outstanding Options (whether or not then
exercisable), exceeds (B) the aggregate exercise price of such Options. To the
extent all or any portion of an Option becomes exercisable solely as a result of
the first sentence of this paragraph, upon exercise of such Option the
Participant shall receive shares subject to a right of repurchase by the Company
or its successor at the Option exercise price. Such repurchase right (1) shall
lapse at the same rate as the Option would have become exercisable under its
terms and (2) shall not apply to any shares subject to the Option that were
exercisable under its terms without regard to the first sentence of this
paragraph.
Consequences of a Reorganization Event on Restricted Stock
Awards
. Upon the occurrence of a
Reorganization Event, the repurchase and other rights of the Company under each
outstanding Restricted Stock Award shall inure to the benefit of the Companys
successor and shall apply to the cash, securities or other property which the
Common Stock was converted into or exchanged for pursuant to such Reorganization
Event in the same manner and to the same extent as they applied to the Common
Stock subject to such Restricted Stock Award.
Consequences of a Reorganization Event on Restricted Stock
Unit Awards
. Upon the occurrence of a
Reorganization Event, the Board shall provide that all outstanding Restricted
Stock Unit Awards shall be assumed, or equivalent restricted stock unit awards
shall be substituted, by the acquiring or succeeding corporation (or an
affiliate thereof). For purposes hereof, a Restricted Stock Unit Award shall be
considered to be assumed if, following consummation of the Reorganization Event,
the Restricted Stock Unit Award confers the right to receive, for each share of
Common Stock subject to the Restricted Stock Unit Award immediately prior to the
consummation of the Reorganization Event, and subject to the same vesting
schedule in effect for the Restricted Stock Unit Award immediately prior to such
Reorganization Event, the consideration (whether cash, securities or other
property) received as a result of the Reorganization Event by holders of Common
Stock for each share of Common Stock held immediately prior to the consummation
of the Reorganization Event (and if holders were offered a choice of
consideration, the type of consideration chosen by the holders of a majority of
the outstanding shares of Common Stock). However, if the consideration received
as a result of the Reorganization Event is not solely common stock of the
acquiring or succeeding corporation (or an affiliate thereof), the Company may,
with the consent of the acquiring or succeeding corporation (or affiliate
thereof), provide for the consideration to be received upon the vesting of the
Restricted Stock Unit Awards to consist solely of common stock of the acquiring
or succeeding corporation (or an affiliate thereof) equivalent in fair market
value to the per share consideration received by holders of outstanding shares
of Common Stock as a result of the Reorganization Event.
Notwithstanding the foregoing, if the acquiring or succeeding
corporation (or an affiliate thereof) does not agree to assume, or substitute
for, such Restricted Stock Unit Awards, then the Board shall, upon written
notice to the Participants, provide that all then unvested Restricted Stock Unit
Awards and the underlying shares will vest in full as of a specified time prior
to the Reorganization Event.
General Provisions Applicable to
Awards
.
Transferability of Awards
. Except as
the Board may otherwise determine or provide in an Award, Awards shall not be
sold, assigned, transferred, pledged or otherwise encumbered by the person to
whom they are granted, either voluntarily or by operation of law, except by will
or the laws of descent and distribution, and, during the life of the
Participant, shall be exercisable only by the Participant. References to a
Participant, to the extent relevant in the context, shall include references to
authorized transferees.
Documentation
. Each Award shall be
evidenced in such form (written, electronic or otherwise) as the Board shall
determine. Each Award may contain terms and conditions in addition to those set
forth in the Plan.
Board
Discretion
. Except as otherwise provided by
the Plan, each Award may be made alone or in addition or in relation to any
other Award. The terms of each Award need not be identical, and the Board need
not treat Participants uniformly.
Termination of Status
. The Board shall
determine the effect on an Award of the disability, death, retirement,
authorized leave of absence or other change in the employment or other status of
a Participant and the extent to which, and the period during which, the
Participant, the Participants legal representative, conservator, guardian or
Designated Beneficiary may exercise rights under the Award.
B-5
Withholding
. Each Participant shall
pay to the Company, or make provision satisfactory to the Board for payment of,
any taxes required by law to be withheld in connection with Awards to such
Participant no later than the date of the event creating the tax liability. To
the extent the Board provides in an Award, Participants may satisfy such tax
obligations in whole or in part by delivery of shares of Common Stock, including
shares retained from the Award creating the tax obligation, valued at their Fair
Market Value; provided, however, that the total tax withholding where stock is
being used to satisfy such tax obligations cannot exceed the Companys minimum
statutory withholding obligations (based on minimum statutory withholding rates
for federal and state tax purposes, including payroll taxes, that are applicable
to such supplemental taxable income). The Company may, to the extent permitted
by law, deduct any such tax obligations from any payment of any kind otherwise
due to a Participant.
Amendment of Award
. The Board may
amend, modify or terminate any outstanding Award, including but not limited to,
substituting therefor another Award of the same or a different type, changing
the date of exercise or realization, and converting an Incentive Stock Option to
a Nonstatutory Stock Option, provided that the Participants consent to such
action shall be required unless the Board determines that the action, taking
into account any related action, would not materially and adversely affect the
Participant.
Conditions on Delivery of Stock
. The
Company will not be obligated to deliver any shares of Common Stock pursuant to
the Plan or to remove restrictions from shares previously delivered under the
Plan until (i) all conditions of the Award have been met or removed to the
satisfaction of the Company, (ii) in the opinion of the Companys counsel, all
other legal matters in connection with the issuance and delivery of such shares
have been satisfied, including any applicable securities laws and any applicable
stock exchange or stock market rules and regulations, and (iii) the Participant
has executed and delivered to the Company such representations or agreements as
the Company may consider appropriate to satisfy the requirements of any
applicable laws, rules or regulations.
Acceleration
. The Board may at any
time provide that any Award shall become immediately vested in full or in part,
free of some or all restrictions or conditions, or otherwise realizable in full
or in part, as the case may be.
Miscellaneous
.
No
Right To Employment or Other Status
. No
person shall have any claim or right to be granted an Award, and the grant of an
Award shall not be construed as giving a Participant the right to continued
employment or any other relationship with the Company. The Company expressly
reserves the right at any time to dismiss or otherwise terminate its
relationship with a Participant free from any liability or claim under the Plan,
except as expressly provided in the applicable Award.
No
Rights As Stockholder
. Subject to the
provisions of the applicable Award, no Participant or transferee of an Award
shall have any rights as a stockholder with respect to any shares of Common
Stock to be distributed with respect to an Award until becoming the record
holder of such shares.
Effective Date and Term of Plan
. The
Plan became effective on the date on which it was initially adopted by the
Board. No Awards shall be granted under the Plan after the completion of ten
years from the earlier of (i) the date on which the Plan was adopted by the
Board or (ii) the date the Plan was approved by the Companys stockholders, but
Awards previously granted may extend beyond that date.
Amendment of Plan
. The Board may
amend, suspend or terminate the Plan or any portion thereof at any time.
However, amendments to the Plan will be subject to stockholder approval to the
extent required under applicable law or regulation or pursuant to the listing
standards of the stock exchange on which the Common Stock is at the time
primarily traded.
Notwithstanding any other provision of the Plan to the contrary, upon
approval of this amendment by the Company's stockholders in accordance with the
terms of this Plan, our Board of Directors or Compensation Committee may provide
for, and the Company may implement, a one-time-only option exchange offer,
pursuant to which certain outstanding Options could, at the election of the
person holding such Option, be tendered to the Company for cancellation in
exchange for the issuance of stock options, provided that such one-time-only
option exchange offer is commenced within 12 months of the date of such
stockholder approval.
Governing Law
. The provisions of the
Plan and all Awards made hereunder shall be governed by and interpreted in
accordance with the laws of the State of Delaware, without regard to any
applicable conflicts of law.
B-6
VOXWARE, INC.
PROXY SOLICITED ON BEHALF OF THE
BOARD OF DIRECTORS
OF THE COMPANY FOR THE ANNUAL MEETING OF STOCKHOLDERS
The undersigned hereby constitutes and
appoints Scott J. Yetter and William G. Levering III, and each of them, true and
lawful agent and proxy with full power of substitution in each, to represent and
to vote on behalf of the undersigned all of the shares of Common Stock of
Voxware, Inc. (the Company) which the undersigned is entitled to vote at the
Annual Meeting of Stockholders of the Company to be held at the offices of
Morgan, Lewis & Bockius LLP, 502 Carnegie Center, Princeton, New Jersey at
9:00 a.m. (local time) on December 10, 2009 and at any adjournment or
adjournments thereof, upon the proposals set forth on the reverse side and more
fully described in the Notice of Annual Meeting of Stockholders and Proxy
Statement for the Meeting (receipt of which is hereby acknowledged).
This proxy, when properly executed,
will be voted in the manner directed herein by the undersigned shareholder. If
no direction is made, this proxy will be voted FOR proposals 1, 2 and
5.
(continued and to be signed on
reverse side)
THIS PROXY CARD IS VALID ONLY WHEN
SIGNED AND DATED
VOXWARE, INC.
Please mark your votes as in this
example.
x
1.
|
ELECTION OF
DIRECTORS.
|
|
|
|
|
|
|
Nominees:
|
01) Joseph A.
Allegra
|
FOR
o
|
WITHHOLD
o
|
|
|
02) James L.
Alexandre
|
FOR
o
|
WITHHOLD
o
|
|
|
03) Donald R.
Caldwell
|
FOR
o
|
WITHHOLD
o
|
|
|
04) Don Cohen
|
FOR
o
|
WITHHOLD
o
|
|
|
05) Robert
Olanoff
|
FOR
o
|
WITHHOLD
o
|
|
|
06) David J.
Simbari
|
FOR
o
|
WITHHOLD
o
|
|
|
07) Scott J.
Yetter
|
FOR
o
|
WITHHOLD
o
|
|
|
|
|
|
2.
|
To amend our Amended and Restated
Certificate of Incorporation, as amended to increase the number of shares
of Common Stock authorized for issuance from 12,000,000 shares to
15,000,000 shares.
|
|
|
|
|
|
|
|
FOR
o
|
AGAINST
o
|
ABSTAIN
o
|
|
|
|
|
|
3.
|
To amend our 2003 Stock Incentive
Plan to increase the maximum number of shares of common stock reserved for
issuance thereunder by an additional 250,000 shares of common stock from
1,534,734 to 1,784,734 shares.
|
|
|
|
|
|
|
|
FOR
o
|
AGAINST
o
|
ABSTAIN
o
|
|
|
|
|
|
4.
|
To approve an amendment to our
2003 Stock Incentive Plan to allow for a one-time stock option exchange
program under which eligible employees and directors would be able to
elect to exchange outstanding stock options with an exercise price of
$2.25 or greater issued under our 2003 Stock Incentive Plan for new
options at an exchange rate of 1.15 to 1.00.
|
|
|
|
|
|
|
|
FOR
o
|
AGAINST
o
|
ABSTAIN
o
|
|
|
|
|
|
5.
|
To ratify the appointment of BDO
Seidman, LLP as the independent registered public accountant of the
Company for the year ending June 30, 2010
.
|
|
|
|
|
|
|
|
FOR
o
|
AGAINST
o
|
ABSTAIN
o
|
|
|
|
|
|
6.
|
In his discretion, the proxy is
authorized to vote upon such other matters as may properly come before the
Meeting
.
|
PLEASE MARK, SIGN, DATE AND RETURN
THE PROXY CARD PROMPTLY USING THE ENCLOSED ENVELOPE.
NOTE:
|
This proxy must be signed
exactly as the name appears hereon. When shares are held by joint tenants,
both should sign. If the signer is a corporation, please sign full
corporate name by duly authorized officer, giving full title as such. If
the signer is a partnership, please sign in partnership name by authorized
person.
|
If you would like to attend the Annual
Meeting, please check the box to the right.
o
|
|
|
|
|
Signature (PLEASE SIGN WITHIN
BOX)
|
Date
|
|
Signature (Joint
Owners)
|
Date
|
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