EXHIBIT 4.12
[LERNOUT & HAUSPIE LETTERHEAD]
September 16, 2002
To: Xxxxxxx X. Xxxxxx
Re: Lock-up Agreement
Dear Ladies and Gentlemen:
Reference is made to that certain Agreement dated as of the date
hereof (the "Agreement"; capitalized terms used herein and not otherwise defined
shall have the meanings set forth in the Agreement) by and among ScanSoft, Inc.
("ScanSoft"), Lernout & Hauspie Speech Products N.V., a corporation organized
and existing under the laws of the Kingdom of Belgium ("L&H NV"), and L&H
Holdings USA, Inc. a Delaware corporation that is a wholly-owned subsidiary of
L&H NV ("L&H Holdings" and, together with L&H NV, the "Sellers"). Pursuant to
Section 5.08 of the Agreement, ScanSoft agrees to cause certain of its officers
and directors to enter into this Lock-up Agreement (this "Lock-up Agreement").
The undersigned acknowledges and agrees that as part of the consideration for
the Sellers entering into the Agreement, ScanSoft has agreed to cause certain of
its officers and directors, including the undersigned, to deliver this Lock-up
Agreement.
By signing this Lock-up Agreement, the undersigned agrees, on behalf
of himself and his beneficiaries or designees, to not (except in connection with
any offering pursuant to this Agreement), directly or indirectly, take any
action to sell, distribute, assign, pledge, hypothecate or otherwise transfer or
dispose of any securities of ScanSoft, until the earlier of (A) the date upon
which all of the Registrable Securities are disposed of by the Sellers, the
Xxxxx Parties or BSF (on behalf of the Xxxxx Parties), as the case may be, and
(B) January 1, 2004 (collectively, the "Lock-Up Period"). If the undersigned's
employment and position as both an employee and a director with ScanSoft
terminates (and he has no intention of serving during the Lock-Up Period as
either an employee or director of ScanSoft) for any reason (X) on or before
February 15, 2003, he shall then be permitted through and including February 15,
2003, subject to the previous sentence, to sell only that number of shares of
common stock of ScanSoft necessary to pay for (a) the exercise of options that
he holds as of the date of such termination and (b) the tax liability arising
from the exercise of such options and the sale of the foregoing shares, but is
prohibited from selling any other shares prior to February 16, 2003, at which
time the prohibition contained in the previous sentence shall no longer be
applicable to the undersigned and (Y) after
February 15, 2003, the prohibition contained in the previous sentence shall no
longer be applicable after such termination date.
This Lock-up Agreement, the rights and obligations of the parties
hereunder, and any claim or controversy directly or indirectly based upon or
arising out of this Lock-up Agreement or the transactions contemplated hereby
(whether based on contract, tort, or any other theory), including all matters of
construction, validity and performance, shall in all respects be governed by and
interpreted, construed and determined in accordance with, the internal laws of
the state of Delaware (without regard to any conflicts of law provision that
would require the application of the law of any other jurisdiction).
Any suit, action or proceeding seeking to enforce any provision of,
or based on any matter arising out of or in connection with, this Lock-up
Agreement or the transactions contemplated hereby shall be brought, at any time
prior to the closing of the U.S. Bankruptcy Case, in the U.S. Bankruptcy Court,
and thereafter shall be brought in the United States District Court for the
District of Massachusetts or any Massachusetts State court sitting in Suffolk
County, so long as one of such courts shall have subject matter jurisdiction
over such suit, action or proceeding, and that any cause of action arising out
of this Lock-up Agreement or the transactions contemplated hereby shall be
deemed to have arisen from a transaction of business in the Commonwealth of
Massachusetts, and each of the parties hereto irrevocably consents to the
jurisdiction of such courts (and of the appropriate appellate courts therefrom)
in any such suit, action or proceeding and irrevocably waives, to the fullest
extent permitted by law, any objection that it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding in any such court or
that any such suit, action or proceeding which is brought in any such court has
been brought in an inconvenient forum. Process in any such suit, action or
proceeding may be served on any of the undersigned anywhere in the world,
whether within or without the jurisdiction of any such court.
Each of the parties hereto irrevocably and unconditionally waives,
to the fullest extent permitted by applicable law, any right that he or it may
have to trial by jury of any claim or cause of action, or in any legal
proceeding, directly or indirectly based upon or arising out of this Lock- up
Agreement or the transactions contemplated hereby (whether based on contract,
tort, or any other theory). The undersigned (a) certifies that no
representative, agent, or attorney of the Sellers has represented, expressly or
otherwise, that such Sellers would not, in the event of litigation, seek to
enforce the foregoing waiver and (b) acknowledges that it and the Sellers have
been induced to enter into this Lock-up Agreement by, among other things, the
mutual waivers and certifications in this paragraph.
The undersigned acknowledges and agrees that the Sellers would be
damaged irreparably in the event any of the provisions of this Lock-up Agreement
are not performed in accordance with their specific terms or otherwise are
breached. Accordingly, the undersigned agrees that the Sellers shall be entitled
to an injunction or injunctions to prevent breaches of the provisions of this
Lock-up Agreement and to enforce specifically this Lock-up Agreement and the
terms and provisions hereof in any action instituted in the U.S. Bankruptcy
Court or any other court having jurisdiction pursuant to the terms of this
Agreement, in addition to any other remedy to which it may be entitled, at law
or in equity.
2
This Lock-up Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
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If the foregoing correctly sets forth our agreement with respect to
the matters set forth herein, please so indicate by signing two copies of this
Lock-up Agreement and returning one of such signed copies to us, whereupon this
Lock-up Agreement will constitute our binding agreement with respect to the
matters set forth herein.
Sincerely,
LERNOUT & HAUSPIE SPEECH PRODUCTS N.V.
By:___________________________________
Name:
Title:
L&H HOLDINGS USA, INC.
By:___________________________________
Name:
Title:
Acknowledged and Agreed to:
SCANSOFT DIRECTOR OR OFFICER:
____________________________________________
Name: Xxxxxxx X. Xxxxxx
Title: President and Chief Operating Officer
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