UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
________________________
SCHEDULE TO
(Rule 13e-4)
________________________
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1)
OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
________________________
Voxware,
Inc.
(Name of Subject Company (Issuer) and Filing
Person (Offeror))
________________________
Options to Purchase Shares of Common Stock,
par value $0.001 per Share
(Title of Class of
Securities)
________________________
92906L501
(CUSIP Number of Class of
Securities)
________________________
Scott J. Yetter
President and Chief Executive
Officer
Voxware, Inc.
300 American Metro Blvd., Suite 155
Hamilton,
New Jersey 08619
Telephone: (609) 514-4100
(Name, address and telephone number of person authorized to receive
notices and communications on behalf of filing
person)
Copy to:
Amy Pocino Kelly, Esq.
Jill Mather,
Esq.
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia,
Pennsylvania 19103
Telephone: 215-963-4000
Fax: 215-963-5001
CALCULATION OF FILING FEE
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Transaction valuation*
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Amount of filing
fee**
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$4,389,224
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$312.96
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*
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The
“transaction valuation” set forth above is based on the Black-Scholes
Option Valuation Model and assumes that all outstanding options eligible
for tender, covering an aggregate of 822,591 shares of Common Stock of
Voxware, Inc., will be exchanged pursuant to this Offer, which may not
occur.
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**
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The amount of
the filing fee, calculated in accordance with Rule 0-11 under the
Securities Exchange Act of 1934, as amended, as modified by Fee Advisory
No. 4 for fiscal year 2010 equals $71.30 per $1,000,000 of transaction
valuation. The transaction valuation set forth above was calculated for
the sole purpose of determining the filing fee, and should not be used or
relied upon for any other purpose.
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o
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Check box if
any part of the fee is offset as provided by Rule 0-11(a)(2) and identify
the filing with which the offsetting fee was previously paid. Identify the
previous filing by registration statement number, or the Form or Schedule
and the date of its filing.
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Amount Previously Paid:
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Not
applicable.
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Form or Registration
No.:
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Not
applicable.
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Filing party:
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Not
applicable.
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Date filed:
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Not
applicable.
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o
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Check the box if the filing relates
solely to preliminary communications made before the commencement of a
tender offer.
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Check the appropriate boxes below to
designate any transactions to which the statement relates:
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third party tender offer subject to Rule
14d-1.
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x
issuer tender offer subject to Rule
13e-4.
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o
going-private transaction subject to Rule
13e-3.
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o
amendment to Schedule 13D under Rule
13d-2.
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Check the following box if the filing is
a final amendment reporting the results of the tender offer.
o
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ITEM 1 SUMMARY TERM
SHEET.
The information set
forth under “Summary Term Sheet” in the Offer to Exchange Certain Outstanding
Options with an Exercise Price per Share of $2.25 or Higher for New Options,
dated January 20, 2010 (the “Offer to Exchange”), attached hereto as Exhibit
(a)(1), is incorporated herein by reference.
ITEM 2 SUBJECT COMPANY
INFORMATION.
(a) The name of the
issuer is Voxware, Inc. (the “Company”); the address of the Company’s principal
executive offices is 300 American Metro Boulevard, Suite 155, Hamilton, New
Jersey 08619; and its telephone number is (609) 514-4100. The information set
forth in the Offer to Exchange under Section 10 (“Information Concerning
Voxware”) is incorporated herein by reference.
(b) This Tender Offer
Statement on Schedule TO relates to an offer (the “Offer”) by the Company to
exchange certain outstanding options to purchase shares of the Company’s common
stock for new nonqualified options to purchase fewer shares of common stock with
an exercise price per share equal to the closing price per share of the
Company’s common stock on the new grant date upon the terms and conditions set
forth in the Offer to Exchange and the related Letter of Transmittal attached
hereto as Exhibit (a)(3) (the “Letter of Transmittal”). An option will be
eligible for exchange in the Offer if it (i) was granted under the Company’s
2003 Stock Incentive Plan, as amended and restated, (ii) has an exercise price
per share equal to or greater than $2.25, (iii) is held by an Eligible Optionee
(as defined below) and (iv) is outstanding on the expiration date of the Offer
(each, an “Eligible Option”).
The Company is making
the Offer to each person who is an active employee of the Company or its
subsidiaries, including its executive officers and non-employee members of its
Board of Directors, but excluding those who have resigned or given or received a
written notice of their termination at any time before the expiration of the
Offer (each, an “Eligible Optionee”). The Company’s consultants and advisors are
not eligible to participate in the Offer. Options that have been transferred to
a former spouse, a family member or to a trust established for family members
are not eligible for exchange in the Offer.
The Offer is currently
set to expire at 11:59 p.m. Eastern Time on February 25, 2010 but may be
extended (the “Expiration Date”). As of January 19, 2010, Eligible Options to
purchase 822,591 shares of the Company’s common stock were outstanding.
The information set
forth in the Offer to Exchange on the introductory pages and under “Summary Term
Sheet,” Section 1 (“Eligible Optionees; Eligible Options; Replacement Options;
Expiration Date”), Section 3 (“Status of Eligible Options Not Tendered”),
Section 6 (“Acceptance of Eligible Options for Exchange and Grant of Replacement
Options”) and Section 9 (“Source and Amount of Consideration; Terms of
Replacement Options”) is incorporated herein by reference.
(c) The information set
forth in the Offer to Exchange under Section 8 (“Price Range of Common Stock”)
is incorporated herein by reference.
ITEM 3 IDENTITY AND
BACKGROUND OF FILING PERSON.
(a) The Company is the
filing person. The information set forth under Item 2(a) above is incorporated
herein by reference. The information set forth in Schedule II to the Offer to
Exchange (“Information Concerning the Directors and Executive Officers of
Voxware, Inc.”) is incorporated herein by reference.
ITEM 4 TERMS OF THE
TRANSACTION.
(a) The information set
forth in the Offer to Exchange on the introductory pages and under “Summary Term
Sheet,” Section 1 (“Eligible Optionees; Eligible Options; Replacement Options;
Expiration Date”), Section 3 (“Status of Eligible Options Not Tendered”),
Section 4 (“Procedures for Tendering Eligible Options”), Section 5 (“Withdrawal
Rights”), Section 6 (“Acceptance of Eligible Options for Exchange and Grant of
Replacement Options”), Section 7 (“Conditions of the Offer”), Section 9 (“Source
and Amount of Consideration; Terms of
Replacement Options”), Section 12 (“Status of Stock Options Acquired by
Us in the Offer; Accounting Consequences of the Offer”), Section 13 (“Legal
Matters; Regulatory Approvals”), Section 14 (“Material U.S. Federal Income Tax
Consequences”) and Section 15 (“Extension of Offer; Termination; Amendment”) is
incorporated herein by reference.
(b) The information set
forth in the Offer to Exchange under Section 11 (“Interests of Directors and
Officers; Transactions and Arrangements Concerning the Options”) is incorporated
herein by reference.
ITEM 5 PAST CONTACTS,
TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.
(e) The information set
forth in the Offer to Exchange under Section 11 (“Interests of Directors and
Officers; Transactions and Arrangements Concerning the Options”) is incorporated
herein by reference. The Voxware, Inc. 2003 Stock Incentive Plan, as amended and
restated, pursuant to which the Eligible Options have been granted, is attached
hereto as Exhibit (d)(1) and contains information regarding the subject
securities.
ITEM 6 PURPOSES OF THE
TRANSACTION AND PLANS OR PROPOSALS.
(a) The information set
forth in the Offer to Exchange under Section 2 (“Purpose of the Offer”) is
incorporated herein by reference.
(b) The information set
forth in the Offer to Exchange under Section 12 (“Status of Stock Options
Acquired by Us in the Offer; Accounting Consequences of the Offer”) is
incorporated herein by reference.
(c) The information set
forth in the Offer to Exchange under Section 1 (“Eligible Optionees; Eligible
Options; Replacement Options; Expiration Date”) is incorporated herein by
reference.
ITEM 7 SOURCE AND AMOUNT
OF FUNDS OR OTHER CONSIDERATION.
(a) The information set
forth in the Offer to Exchange under Section 9 (“Source and Amount of
Consideration; Terms of Replacement Options”) is incorporated herein by
reference.
(b) The information set
forth in the Offer to Exchange under Section 7 (“Conditions of the Offer”) is
incorporated herein by reference.
(d) Not applicable.
ITEM 8 INTEREST IN
SECURITIES OF THE SUBJECT COMPANY.
(a) The information set
forth in the Offer to Exchange under Section 11 (“Interests of Directors and
Officers; Transactions and Arrangements Concerning the Options”) is incorporated
herein by reference.
(b) The information set
forth in the Offer to Exchange under Section 11 (“Interests of Directors and
Officers; Transactions and Arrangements Concerning the Options”) is incorporated
herein by reference.
ITEM 9 PERSONS/ASSETS,
RETAINED, EMPLOYED, COMPENSATED OR USED.
(a) Not
applicable.
ITEM 10 FINANCIAL
STATEMENTS.
(a) The information set
forth in the Offer to Exchange under Section 10 (“Information Concerning
Voxware”) and Schedule I to the Offer to Exchange (“Summary Consolidated
Financial Information of Voxware, Inc.”) is incorporated herein by reference.
Item 8 (“Financial Statements and Supplementary Data”) of the Company’s Annual
Report on Form 10-K for its fiscal year ended June 30, 2009 is incorporated
herein by reference. Item 1
(“Financial
Statements”) of the Company’s Quarterly Report on Form 10-Q for its fiscal
quarter ended September 30, 2009 is incorporated herein by
reference.
(b) Not applicable.
(c) The information set
forth in the Offer to Exchange under Section 10 (“Information Concerning
Voxware”) is incorporated herein by reference.
ITEM 11 ADDITIONAL
INFORMATION.
(a) The information set
forth in the Offer to Exchange under Section 11 (“Interests of Directors and
Officers; Transactions and Arrangements Concerning the Options”) and Section 13
(“Legal Matters; Regulatory Approvals”) is incorporated herein by reference.
(b) Not applicable.
ITEM 12 EXHIBITS.
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(a)(1)
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Offer to Exchange Certain Outstanding Options with an Exercise
Price per Share of $2.25 or Higher for New Options, dated January 20,
2010.
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(a)(2)
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Announcement of Offer to Exchange, dated January 20,
2010.
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(a)(3)
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Letter of Transmittal.
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(a)(4)
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Letter of Transmittal for Eligible Optionees Located Outside of the
United States.
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(a)(5)
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Withdrawal Form.
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(a)(6)
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Forms of Acknowledgement of Receipt of Letter of
Transmittal/Withdrawal Form.
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(a)(7)
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Form of Reminder of Expiration Date.
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(a)(8)
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Form of Nonqualified Stock Option Agreement.
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(a)(9)
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Material Income Tax Consequences for Eligible Optionees Resident in
the United Kingdom.
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(a)(10)
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Voxware, Inc. Annual Report on Form 10-K for the fiscal year ended
June 30, 2009 is incorporated herein by reference.
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(a)(11)
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Voxware, Inc. Quarterly Report on Form 10-Q for the quarterly
period ended September 30, 2009 is incorporated herein by
reference.
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(b)
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Not applicable.
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(d)(1)
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Voxware, Inc. 2003 Stock Incentive Plan, as amended and
restated.
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(g)
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Not applicable.
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(h)
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Not applicable.
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ITEM 13 INFORMATION
REQUIRED BY SCHEDULE 13E-3.
Not applicable.
SIGNATURES
After due inquiry and to
the best of my knowledge and belief, I certify that the information set forth in
this Schedule TO is true, complete and correct.
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Date:
January 20, 2010
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Voxware, Inc.
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By:
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/s/
Scott J. Yetter
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Name:
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Scott
J. Yetter
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Title:
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President and Chief Executive
Officer
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LIST OF EXHIBITS
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(a)(1)
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Offer to Exchange Certain Outstanding Options with an Exercise
Price per Share of $2.25 or Higher for New Options, dated January 20,
2010.
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(a)(2)
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Announcement of Offer to Exchange, dated January 20,
2010.
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(a)(3)
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Letter of Transmittal.
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(a)(4)
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Letter of Transmittal for Eligible Optionees Located Outside of the
United States.
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(a)(5)
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Withdrawal Form.
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(a)(6)
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Forms of Acknowledgement of Receipt of Letter of
Transmittal/Withdrawal Form.
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(a)(7)
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Form of Reminder of Expiration Date.
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(a)(8)
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Form of Nonqualified Stock Option Agreement.
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(a)(9)
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Material Income Tax Consequences for Eligible Optionees Resident in
the United Kingdom.
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(a)(10)
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Voxware, Inc. Annual Report on Form 10-K for the fiscal year ended
June 30, 2009 is incorporated herein by reference.
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(a)(11)
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Voxware, Inc. Quarterly Report on Form 10-Q for the quarterly
period ended September 30, 2009 is incorporated herein by
reference.
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(b)
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Not applicable.
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(d)(1)
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Voxware, Inc. 2003 Stock Incentive Plan, as amended.
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(g)
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Not applicable.
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(h)
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Not applicable.
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