W-16
THIS WARRANT AND THE WARRANT SHARES HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, NOR REGISTERED OR QUALIFIED UNDER ANY STATE
SECURITIES LAWS, AND MAY NOT BE PLEDGED, HYPOTHECATED,
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS SO
REGISTERED OR AN EXEMPTION THEREFROM IS AVAILABLE.
WARRANT TO PURCHASE COMMON STOCK
OF SCANSOFT, INC.
Date of Approval and Grant: March 15, 2004
In consideration for the payment by Warburg Pincus Private Equity VIII,
L.P. to Scansoft, Inc., a Delaware corporation (the "Company"), of $605,687.50
in cash, by certified check, or by wire transfer (the "Purchase Price"), the
Company agrees to the provisions set forth herein. The Company certifies that
Warburg Pincus Private Equity VIII, L.P. and its permitted assigns (the
"Holder"), is entitled, subject to the terms set forth below, to purchase from
the Company, up to 2,422,750 fully-paid and nonassessable shares of Common Stock
(the "Warrant Shares") at a purchase price per share equal to the Warrant Price
(defined below). The number of shares of Common Stock purchasable upon exercise
of this Warrant and the Warrant Price shall be subject to adjustment from time
to time as provided herein. The initial Warrant Price (the "Warrant Price") per
share of Common Stock shall equal $4.94.
This Warrant is one in a series of warrants approved and granted by the
Board of Directors of the Company on March 15, 2004 (the "Grant Date") with
substantially similar terms and conditions that (x) as of the Grant Date and
subject to the provisions of this Warrant and such other warrants (as
applicable), allow for the purchase of up to an aggregate of 2,500,000 shares of
Common Stock and (y) as of the Grant Date, are represented by warrant
certificate numbers W-16, W-17, W-18 and W-19. Such warrants and any warrants
issued upon assignment or replacement thereof are referred to herein as the
"Warrants," and the holders thereof and their permitted assigns are referred to
herein as the "Holders."
For the purpose of this Warrant, the term "Common Stock" shall mean (i) the
Common Stock, par value $0.001 per share, of the Company as of the Grant Date,
or (ii) any other class or classes of stock resulting from successive changes or
reclassifications of such class of stock, and the term "Business Day" shall mean
any day other than a Saturday or Sunday or a day on which commercial banks in
New York, New York are required or authorized to be closed.
Section 1. Term of Warrant, Exercise of Warrant. (a) Subject to the terms
of this Warrant, the Holder shall have the right, at its option, which may be
exercised in whole or in part, at any time, and from time to time, commencing at
the time immediately following the later to occur of (i) the time the Purchase
Price has been paid and (ii) the Closing (as such time is defined in that
certain Securities Purchase Agreement by and among the Company, Xerox Imaging
Systems, Inc., a Delaware corporation, Warburg Pincus Private Equity VIII, L.P.,
Warburg Pincus Netherlands Private Equity VIII I C.V., Warburg Pincus
Netherlands Private
Equity VIII II C.V., and Warburg Pincus Germany Private Equity VIII, K.G. dated
on or about the Grant Date) has occurred, and until the earlier of (x) 5:00 p.m.
Eastern Time on the six year anniversary of the date Closing occurs and (y) the
closing of a Change of Control (as defined below) (the "Warrant Expiration
Date") to purchase from the Company the Warrant Shares. "Change of Control"
shall mean the sale, conveyance or disposal of all or substantially all of the
Company's property or business or the Company's merger with or into or
consolidation with any other corporation (other than a wholly-owned subsidiary
of the Company) or any other transaction or series of related transactions in
which the stockholders of the Company immediately prior to the transaction or
transactions own less than a majority of the voting power of the surviving
corporation following the transaction or transactions. If the Closing does not
occur by April 30, 2004 or if the Purchase Price is not paid by April 30, 2004,
this Warrant will be void, and any previously paid Purchase Price shall be
refunded. After the Warrant Expiration Date, this Warrant will be void.
(b) The purchase rights evidenced by this Warrant shall be exercised by the
Holder surrendering this Warrant, with the form of subscription at the end
hereof duly executed by the Holder, to the Company at its office in Peabody,
Massachusetts (or, in the event the Company's principal office is no longer in
Peabody, Massachusetts its then principal office in the United States (the
"Principal Office")), accompanied by payment, of an amount (the "Exercise
Payment") equal to the Warrant Price multiplied by the number of Warrant Shares
being purchased pursuant to such exercise, payable as follows: (i) by payment to
the Company in cash, by certified check, or by wire transfer of the Exercise
Payment, (ii) by surrender to the Company for cancellation of securities of the
Company having a Market Price (as hereinafter defined) on the date of exercise
equal to the Exercise Payment; or (iii) by a combination of the methods
described in clauses (i) and (ii) above. In lieu of exercising the Warrant as
set forth in the foregoing sentence, the Holder may elect to perform a net
exercise and receive a payment equal to the difference between (i) the Market
Price on the date of exercise multiplied by the number of Warrant Shares as to
which the payment is then being elected and (ii) the aggregate Warrant Price
with respect to such Warrant Shares, payable by the Company to the Holder only
in shares of Common Stock valued at the Market Price on the date of exercise.
For purposes hereof, the term "Market Price" shall mean, with respect to any
day, the average closing price of a share of Common Stock or other security for
the 5 consecutive trading days preceding such day on the principal national
securities exchange on which the shares of Common Stock or securities are listed
or admitted to trading or, if not listed or admitted to trading on any national
securities exchange, the average of the reported high and low prices during such
5 trading day period on Nasdaq or, if the shares are not listed on Nasdaq, in
the over-the-counter market or, if the shares of Common Stock or securities are
not publicly traded, the Market Price for such day shall be the fair market
value thereof determined in good faith jointly by the Company and the Holders of
a majority in interest of the shares of Common Stock then purchasable pursuant
to outstanding Warrants (a "Holder Majority"); provided, however, that if such
parties are unable to reach agreement within a reasonable period of time, the
Market Price shall be determined in good faith by an independent investment
banking firm selected jointly by the Company and a Holder Majority or, if that
selection cannot be made within 15 days, by an independent investment banking
firm selected by the American Arbitration Association in accordance with its
rules. All costs and expenses of such independent investment banking firm shall
be borne 50% by the Company and 50% by the Holders, pro rata based on the number
of Warrant Shares then held by each. Notwithstanding anything herein to the
contrary, in no event may this Warrant be
2
exercised for fewer than the lesser of 250,000 Warrant Shares (as adjusted for
stock splits, stock dividends, stock combinations and the like) and the total
number of Warrant Shares remaining under this Warrant.
(c) Upon any exercise of this Warrant, the Company shall issue and cause to
be delivered with all reasonable dispatch, but in any event within 10 Business
Days, to or upon the written order of the Holder and, subject to Section 3, in
such name or names as the Holder may designate (provided that such names other
than the Holder may include only affiliates of the Holder), a certificate or
certificates for the number of full Warrant Shares issuable upon such exercise
together with such other property, including cash (if necessary pursuant to
Section 5.3 hereof), which may be deliverable upon such exercise. If fewer than
all of the Warrant Shares represented by this Warrant are purchased, a new
Warrant of the same tenor as this Warrant, evidencing the Warrant Shares not
purchased will be issued and delivered by the Company at the Company's expense,
to the Holder together with the issue of the certificates representing the
Warrant Shares then being purchased. All Warrant certificates surrendered upon
exercise of Warrants shall be canceled by the Company.
Section 2. Warrant Register, Registration of Transfers.
-------------------------------------------
Section 2.1. Warrant Register. The Company shall keep at its Principal
Office, a register (the "Warrant Register") in which the Company shall record
the name and address of the Holder from time to time and all transfers and
exchanges of this Warrant. The Company shall give the Holder prior written
notice of any change of the address at which such register is kept.
Section 2.2. Registration of Transfers, Exchanges or Assignment of
Warrants. The Holder shall be entitled to assign its interest in this Warrant in
whole or in part to any affiliate of Holder upon surrender thereof accompanied
by a written instrument or instruments of transfer in the form of assignment at
the end hereof duly executed by the Holder. Except as set forth in the preceding
sentence, this Warrant may not be assigned by the Holder. This Warrant may also
be exchanged or combined with warrants of like tenor at the option of the Holder
for another Warrant or Warrants of like tenor and representing in the aggregate
the right to purchase a like number of Warrant Shares upon presentation thereof
to the Company as its Principal Office together with a written notice signed by
the Holder specifying the denominations in which the new Warrant is or the new
Warrants are to be issued.
Upon surrender for transfer or exchange of this Warrant to the Company at
its Principal Office for transfer or exchange, in accordance with this Section
2, the Company shall, without charge (subject to Section 3), execute and deliver
a new Warrant or Warrants of like tenor and of a like aggregate amount of
Warrant Shares in the name of the assignee named in such instrument of
assignment and, if the Holder's entire interest is not being assigned, in the
name of the Holder with respect to that portion not transferred, and this
Warrant shall promptly be canceled.
Notwithstanding the foregoing, the Holder acknowledges that this Warrant
and the Warrant Shares have not been registered under the Securities Act of
1933, as amended (the "Act"), and agrees not to sell, pledge, distribute, offer
for sale, transfer or otherwise dispose of this Warrant and Warrant Shares in
the absence of (i) registration or qualification of this Warrant and such
Warrant Shares under any applicable U.S. federal or state securities law then in
effect,
3
or (ii) an opinion of counsel, satisfactory to the Company, that such
registration and qualification are not required.
Section 3. Payment of Taxes. The Company shall pay all documentary stamp
taxes, if any, attributable to the initial issuance of any Warrant Shares upon
the exercise of this Warrant; provided, however, that the Company shall not be
required to pay any tax or taxes which may be payable in respect of any transfer
involved in the issue or delivery of any Warrant or certificate for Warrant
Shares in a name other than that of the Holder as such name is then shown on the
books of the Company.
Section 4. Certain Covenants.
-----------------
Section 4.1. Reservation of Warrant Shares. There have been reserved and
the Company shall at all times keep reserved, out of its authorized but unissued
Common Stock, free from any preemptive rights, rights of first refusal or other
restrictions (other than pursuant to the Act and applicable state securities
laws) a number of shares of Common Stock sufficient to provide for the exercise
of the rights of purchase represented by this Warrant.
Section 4.2. No Impairment. The Company shall not by any action including,
without limitation, amending its Restated Certificate of Incorporation, any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, but shall at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such action, as may be necessary or appropriate to protect the
rights of the Holder against impairment. Without limiting the generality of the
foregoing, the Company shall take all such action as may be necessary or
appropriate in order that the Company may validly issue fully paid and
nonassessable shares of Common Stock upon the exercise of this Warrant at the
then Warrant Price therefor.
Section 4.3. Notice of Certain Corporate Action. In case the Company shall
propose (a) to offer to the holders of its Common Stock rights to subscribe for
or to purchase any shares of Common Stock or shares of stock of any class or any
other securities, rights or options, or (b) to effect any reclassification of
its Common Stock (other than a reclassification involving only the subdivision,
or combination, of outstanding shares of Common Stock), or (c) to effect any
capital reorganization, or (d) to effect any Change of Control, or (e) to effect
the liquidation, dissolution or winding up of the Company or (f) to offer to the
holders of its Common Stock the right to have their shares of Common Stock
repurchased or redeemed or otherwise acquired by the Company, or (g) to take any
other action which would require the adjustment of the Warrant Price and/or the
number of Warrant Shares issuable upon exercise of this Warrant, then in each
such case (but without limiting the provisions of Section 5), the Company shall
give to the Holder, a notice of such proposed action, which shall specify the
date on which a record is to be taken for purposes of such dividend,
distribution of offer of rights, or the date on which such reclassification,
reorganization, Change of Control, liquidation, dissolution, or winding up is to
take place and the date of participation therein by the holders of Common Stock,
if any such date is to be fixed and shall also set forth such facts with respect
thereto as shall be reasonably necessary to indicate the effect of such action
on the Common Stock. Such notice shall be so given at least ten (10) Business
Days prior to the record date for determining holders of the
4
Common Stock for purposes of participating in or voting on such action, or at
least ten (10) Business Days prior to the date of the taking of such proposed
action or the date of participation therein by the holders of Common Stock,
whichever shall be the earlier. Such notice shall specify, in the case of any
subscription or repurchase rights, the date on which the holders of Common Stock
shall be entitled thereto, or the date on which the holders of Common Stock
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon any reorganization, reclassification, Change of
Control or other action, as the case may be. Such notice shall also state
whether the action in question or the record date is subject to the
effectiveness of a registration statement under the Act or to a favorable vote
of security holders, if either is required, and the adjustment in Warrant Price
and/or number of Warrant Shares issuable upon exercise of this Warrant as a
result of such reorganization, reclassification, Change of Control or other
action, to the extent then determinable. No such notice shall be given if the
Company reasonably determines that the giving of such notice would require
disclosure of material information which the Company has a bona fide purpose for
preserving as confidential or the disclosure of which would not be in the best
interests of the Company.
Section 4.4. Purchase Entirely for Own Account. The Holder acknowledges
that this Warrant is given to the Holder in reliance upon the Holder's
representation to the Company, which by its acceptance of this Warrant the
Holder hereby confirms, that the Warrant, the Warrant Shares, and the Common
Stock issuable upon conversion of the Warrant Shares (collectively, the
"Securities") being acquired by the Holder are being acquired for investment for
the Holder's own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof, and that the Holder has no present
intention of selling, granting any participation in, or otherwise distributing
the same. By executing this Warrant, the Holder further represents that the
Holder does not presently have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participations to such
person or to any third person, with respect to any of the Securities. The Holder
represents that it has full power and authority to enter into this Warrant. The
Holder has not been formed for the specific purpose of acquiring any of the
Securities.
Section 4.5. Disclosure of Information. The Holder has had an opportunity
to discuss the Company's business, management, financial affairs and the terms
and conditions of the offering of the Securities with the Company's management
and has had an opportunity to review the Company's facilities, and has had an
opportunity to read all of the Company's filings with the Securities and
Exchange Commission.
Section 4.6. Restricted Securities. The Holder understands that the
Securities have not been, and will not be, registered under the Act, by reason
of a specific exemption from the registration provisions of the Act which
depends upon, among other things, the bona fide nature of the investment intent
and the accuracy of the Holder's representations as expressed herein. The Holder
understands that the Securities are "restricted securities" under applicable
U.S. federal and state securities laws and that, pursuant to these laws, the
Holder must hold the Securities indefinitely unless they are registered with the
Securities and Exchange Commission and qualified by state authorities, or an
exemption from such registration and qualification requirements is available.
The Holder further acknowledges that if an exemption from registration or
qualification is available, it may be conditioned on various requirements
including, but not limited to, the time and manner of sale, the holding period
for the Securities,
5
and on requirements relating to the Company which are outside of the Holder's
control, and which the Company is under no obligation and may not be able to
satisfy.
Section 4.7. Accredited Investor. The Holder is an accredited investor as
defined in Rule 501(a) of Regulation D promulgated under the Act.
Section 5. Adjustment of Warrant Price.
---------------------------
Section 5.1. Subdivision or Combination of Stock. In case the Company shall
at any time (i) issue a dividend payable in Common Stock or any rights to
subscribe for or to purchase, or any options for the purchase of, Common Stock
or (ii) subdivide its outstanding shares of Common Stock into a greater number
of shares or combine its outstanding shares of Common Stock into a smaller
number of shares, then (x) in the case of a dividend or subdivision, the Warrant
Price in effect immediately prior to such dividend or subdivision shall be
proportionately decreased and the number of shares of Common Stock purchasable
upon the exercise of the Warrant immediately prior to such adjustment shall be
proportionately increased, and (y) in the case of a combination, the Warrant
Price in effect immediately prior to such combination shall be proportionately
increased and the number of shares of Common Stock purchasable upon the exercise
of the Warrant immediately prior to such adjustment shall be proportionately
decreased.
Section 5.2. Reorganization, Reclassification, Consolidation, Merger or
Sale. (a) If any capital reorganization or reclassification of the capital stock
of the Company or any consolidation or merger of the Company with another
corporation, other than a Change of Control, shall be effected in such a way
that holders of Common Stock shall be entitled to receive stock, securities or
assets with respect to or in exchange for Common Stock, then, as a condition of
such reorganization, reclassification, consolidation, exercise, merger or sale,
lawful and adequate provision shall be made whereby the Holder shall thereafter
have the right to receive upon the basis and upon the terms and conditions
specified herein and in lieu of the shares of Common Stock immediately
theretofore receivable upon the exercise of this Warrant, that number of shares
of stock, securities or assets (including cash) as may be issued or payable with
respect to or in exchange for a number of outstanding shares of such Common
Stock equal to the number of Warrant Shares for which this Warrant could have
been exercised immediately prior to such reorganization, reclassification,
consolidation, merger or sale, and in any such case appropriate provision shall
be made with respect to the rights and interests of such Holder to the end that
the provisions hereof shall thereafter be applicable, as nearly as may be, in
relation to any shares of stock, securities or assets (including cash)
thereafter deliverable upon the exercise of this Warrant. The Company will not
effect any such consolidation, merger or sale, unless prior to the consummation
thereof the successor corporation (if other than the Company) resulting from
such consolidation or merger or the corporation purchasing such assets shall
assume, by written instrument executed and mailed or delivered to the Holder at
the last address of such Holder appearing on the books of the Company, the
obligation to deliver to such Holder such shares of stock, securities or assets
(including cash) as, in accordance with the foregoing provisions, the Holder may
be entitled to receive.
Section 5.3. Fractional Shares. The Company shall not issue fractions of
shares of Common Stock upon exercise of this Warrant or scrip in lieu thereof.
If any fraction of a share
6
of Common Stock would, except for the provisions of this Section 5.3, be
issuable upon exercise of this Warrant, the Company shall in lieu thereof pay to
the person entitled thereto an amount in cash equal to the current value of such
fraction, calculated to the nearest one-hundredth (1/100) of a share, to be
computed on the basis of the Market Price for a share of Common Stock as of the
date of exercise.
Section 5.4. Notice of Adjustment. Upon any adjustment of the Warrant
Price, and from time to time upon the request of the Holder the Company shall
furnish to the Holder the Warrant Price resulting from such adjustment or
otherwise in effect and the number of Warrant Shares then available for purchase
under this Warrant, setting forth in reasonable detail the method of calculation
and the facts upon which such calculation is based.
Section 5.5. Certain Events. If any event occurs as to which, in the good
faith judgment of the Board of Directors of the Company the other provisions of
this Section 5 are not strictly applicable or if strictly applicable would not
fairly protect the exercise rights of the Holder in accordance with the
essential intent and principles of such provisions, then the Board of Directors
of the Company in the good faith, reasonable exercise of its business judgment
shall make an adjustment in the application of such provisions, in accordance
with such essential intent and principles so as to protect such exercise rights
as aforesaid.
Section 6. No Rights as a Stockholder; Notice to Holder. Nothing contained
in this Warrant shall be construed as conferring upon the Holder the right to
vote or to consent or to receive notice as a stockholder in respect of any
meeting of stockholders for the election of directors of the Company or any
other matter, or any rights whatsoever as a stockholder of the Company.
Section 7. Replacement of Warrant. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and (in the case of loss, theft or destruction) upon delivery of an
indemnity agreement (with, in the case of a Holder which is not a qualified
institutional buyer within the meaning of Rule 144A under the Act, surety) in an
amount reasonably satisfactory to it, or (in the case of mutilation) upon
surrender and cancellation thereof, the Company will issue, in lieu thereof, a
new Warrant of like tenor.
Section 8. Notices. All notices and other written communications provided
for hereunder shall be given in writing and delivered in person or sent by
overnight delivery service (with charges prepaid) or by facsimile transmission,
if the original of such facsimile transmission is sent by overnight delivery
service (with charges prepaid) by the next succeeding Business Day and (i) if to
the Holder addressed to it at the address or fax number specified for such
Holder in the Warrant Register or at such other address or fax number as the
Holder shall have specified to the Company in writing in accordance with this
Section 8, and (ii) if to the Company, addressed to it at 0 Xxxxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxxxxxxx 00000, Attention General Counsel Fax No: (000) 000-0000
or at such other address or fax number as the Company shall have specified to
the Holder in writing in accordance with this Section 8. Notice given in
accordance with this Section 8 shall be effective upon the earlier of the date
of delivery or the second Business Day at the place of delivery after dispatch.
7
Section 9. Applicable Law. This Warrant shall be governed by and construed
in accordance with the laws of the State of New York without giving effect to
principles of conflict of laws.
Section 10. Warrant Share Legend. Each certificate representing Warrant
Shares, until such Warrant Shares have been distributed pursuant to a
registration statement effective under the Act or sold to the public through a
broker, dealer or market maker in compliance with Rule 144 under the Act (or any
similar rule then in force) shall bear one or all of the following legends:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT
WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH
SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933."
Any legend required by the Blue Sky laws of any state to the extent such
laws are applicable to the shares represented by the certificate so legended.
Section 11. Captions. The captions of the Sections and subsections of this
Warrant have been inserted for convenience only and shall have no substantive
effect.
Section 12. Amendment or Waiver. Any term of the Warrants may be amended or
waived only by an instrument in writing signed by the Company and a Holder
Majority, and any such amendment or waiver (and any other action taken or
decision made by a Holder Majority) shall be binding upon all Holders.
8
IN WITNESS WHEREOF, the undersigned have executed this Warrant as of the
15th day of March, 2004.
SCANSOFT, INC.
By: /s/ Xxxx Xxxxx
--------------
Name: Xxxx Xxxxx
Title: Chief Executive Officer
Warburg Pincus Private Equity VIII, L.P.
By: WARBURG PINCUS & CO.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Partner
[To be signed only upon exercise of Warrant]
TO SCANSOFT, INC.:
The undersigned, the holder of the within Warrant (the "Holder"), hereby
irrevocably elects to exercise the purchase right represented by such Warrant
for, and to purchase thereunder, ____ shares of Common Stock of Scansoft, Inc.
and herewith [makes payment of $ ____ therefor in full payment of the Exercise
Payment][tenders securities having a Market Price of $_____ in full payment of
the Exercise Payment] or [elects to receive a payment equal to the difference
between (i) the Market Price (as defined in the Warrant) multiplied by ________
(the number of Warrant Shares as to which the payment is being elected) and (ii)
___________, which is the exercise price with respect to such Warrant Shares, in
full payment of the Exercise Payment, payable by the Company to the Holder only
in shares of Common Stock valued at the Market Price in accordance with the
terms of the Warrant], and requests that the certificates for such shares be
issued in the name of, and be delivered to _____, whose address is __________.
Dated:
-----------------------------
-----------------------------
(Signature must conform in all respects to name of Holder as specified on the
face of the Warrant)
-----------------------------
Address
[To be signed only upon transfer of Warrant]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
_______________ unto the right represented by the within Warrant to purchase
____ shares of the Common Stock of Scansoft, Inc. to which the within Warrant
relates, and appoints __________ attorney to transfer said right on the books of
Scansoft, Inc. with full power of substitution in the premises.
Dated:
-----------------------------
(Signature must conform in all respects to name of Holder as specified on the
face of the Warrant)
-----------------------------
Address
In the presence of:
-----------------------------
-2-
W-17
THIS WARRANT AND THE WARRANT SHARES HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, NOR REGISTERED OR QUALIFIED UNDER ANY STATE
SECURITIES LAWS, AND MAY NOT BE PLEDGED, HYPOTHECATED,
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS SO
REGISTERED OR AN EXEMPTION THEREFROM IS AVAILABLE.
WARRANT TO PURCHASE COMMON STOCK
OF SCANSOFT, INC.
Date of Approval and Grant: March 15, 2004
In consideration for the payment by Warburg Pincus Netherlands Private
Equity VIII I C.V. to Scansoft, Inc., a Delaware corporation (the "Company"), of
$10,300.00 in cash, by certified check, or by wire transfer (the "Purchase
Price"), the Company agrees to the provisions set forth herein. The Company
certifies that Warburg Pincus Netherlands Private Equity VIII I C.V. and its
permitted assigns (the "Holder"), is entitled, subject to the terms set forth
below, to purchase from the Company, up to 41,200 fully-paid and nonassessable
shares of Common Stock (the "Warrant Shares") at a purchase price per share
equal to the Warrant Price (defined below). The number of shares of Common Stock
purchasable upon exercise of this Warrant and the Warrant Price shall be subject
to adjustment from time to time as provided herein. The initial Warrant Price
(the "Warrant Price") per share of Common Stock shall equal $4.94.
This Warrant is one in a series of warrants approved and granted by the
Board of Directors of the Company on March 15, 2004 (the "Grant Date") with
substantially similar terms and conditions that (x) as of the Grant Date and
subject to the provisions of this Warrant and such other warrants (as
applicable), allow for the purchase of up to an aggregate of 2,500,000 shares of
Common Stock and (y) as of the Grant Date, are represented by warrant
certificate numbers W-16, W-17, W-18 and W-19. Such warrants and any warrants
issued upon assignment or replacement thereof are referred to herein as the
"Warrants," and the holders thereof and their permitted assigns are referred to
herein as the "Holders."
For the purpose of this Warrant, the term "Common Stock" shall mean (i) the
Common Stock, par value $0.001 per share, of the Company as of the Grant Date,
or (ii) any other class or classes of stock resulting from successive changes or
reclassifications of such class of stock, and the term "Business Day" shall mean
any day other than a Saturday or Sunday or a day on which commercial banks in
New York, New York are required or authorized to be closed.
Section 1. Term of Warrant, Exercise of Warrant. (a) Subject to the terms
of this Warrant, the Holder shall have the right, at its option, which may be
exercised in whole or in part, at any time, and from time to time, commencing at
the time immediately following the later to occur of (i) the time the Purchase
Price has been paid and (ii) the Closing (as such time is defined in that
certain Securities Purchase Agreement by and among the Company, Xerox Imaging
Systems, Inc., a Delaware corporation, Warburg Pincus Private Equity VIII, L.P.,
Warburg Pincus Netherlands Private Equity VIII I C.V., Warburg Pincus
Netherlands Private
Equity VIII II C.V., and Warburg Pincus Germany Private Equity VIII, K.G. dated
on or about the Grant Date) has occurred, and until the earlier of (x) 5:00 p.m.
Eastern Time on the six year anniversary of the date Closing occurs and (y) the
closing of a Change of Control (as defined below) (the "Warrant Expiration
Date") to purchase from the Company the Warrant Shares. "Change of Control"
shall mean the sale, conveyance or disposal of all or substantially all of the
Company's property or business or the Company's merger with or into or
consolidation with any other corporation (other than a wholly-owned subsidiary
of the Company) or any other transaction or series of related transactions in
which the stockholders of the Company immediately prior to the transaction or
transactions own less than a majority of the voting power of the surviving
corporation following the transaction or transactions. If the Closing does not
occur by April 30, 2004 or if the Purchase Price is not paid by April 30, 2004,
this Warrant will be void, and any previously paid Purchase Price shall be
refunded. After the Warrant Expiration Date, this Warrant will be void.
(b) The purchase rights evidenced by this Warrant shall be exercised by the
Holder surrendering this Warrant, with the form of subscription at the end
hereof duly executed by the Holder, to the Company at its office in Peabody,
Massachusetts (or, in the event the Company's principal office is no longer in
Peabody, Massachusetts its then principal office in the United States (the
"Principal Office")), accompanied by payment, of an amount (the "Exercise
Payment") equal to the Warrant Price multiplied by the number of Warrant Shares
being purchased pursuant to such exercise, payable as follows: (i) by payment to
the Company in cash, by certified check, or by wire transfer of the Exercise
Payment, (ii) by surrender to the Company for cancellation of securities of the
Company having a Market Price (as hereinafter defined) on the date of exercise
equal to the Exercise Payment; or (iii) by a combination of the methods
described in clauses (i) and (ii) above. In lieu of exercising the Warrant as
set forth in the foregoing sentence, the Holder may elect to perform a net
exercise and receive a payment equal to the difference between (i) the Market
Price on the date of exercise multiplied by the number of Warrant Shares as to
which the payment is then being elected and (ii) the aggregate Warrant Price
with respect to such Warrant Shares, payable by the Company to the Holder only
in shares of Common Stock valued at the Market Price on the date of exercise.
For purposes hereof, the term "Market Price" shall mean, with respect to any
day, the average closing price of a share of Common Stock or other security for
the 5 consecutive trading days preceding such day on the principal national
securities exchange on which the shares of Common Stock or securities are listed
or admitted to trading or, if not listed or admitted to trading on any national
securities exchange, the average of the reported high and low prices during such
5 trading day period on Nasdaq or, if the shares are not listed on Nasdaq, in
the over-the-counter market or, if the shares of Common Stock or securities are
not publicly traded, the Market Price for such day shall be the fair market
value thereof determined in good faith jointly by the Company and the Holders of
a majority in interest of the shares of Common Stock then purchasable pursuant
to outstanding Warrants (a "Holder Majority"); provided, however, that if such
parties are unable to reach agreement within a reasonable period of time, the
Market Price shall be determined in good faith by an independent investment
banking firm selected jointly by the Company and a Holder Majority or, if that
selection cannot be made within 15 days, by an independent investment banking
firm selected by the American Arbitration Association in accordance with its
rules. All costs and expenses of such independent investment banking firm shall
be borne 50% by the Company and 50% by the Holders, pro rata based on the number
of Warrant Shares then held by each.
2
(c) Upon any exercise of this Warrant, the Company shall issue and cause to
be delivered with all reasonable dispatch, but in any event within 10 Business
Days, to or upon the written order of the Holder and, subject to Section 3, in
such name or names as the Holder may designate (provided that such names other
than the Holder may include only affiliates of the Holder), a certificate or
certificates for the number of full Warrant Shares issuable upon such exercise
together with such other property, including cash (if necessary pursuant to
Section 5.3 hereof), which may be deliverable upon such exercise. If fewer than
all of the Warrant Shares represented by this Warrant are purchased, a new
Warrant of the same tenor as this Warrant, evidencing the Warrant Shares not
purchased will be issued and delivered by the Company at the Company's expense,
to the Holder together with the issue of the certificates representing the
Warrant Shares then being purchased. All Warrant certificates surrendered upon
exercise of Warrants shall be canceled by the Company.
Section 2. Warrant Register, Registration of Transfers.
-------------------------------------------
Section 2.1. Warrant Register. The Company shall keep at its Principal
Office, a register (the "Warrant Register") in which the Company shall record
the name and address of the Holder from time to time and all transfers and
exchanges of this Warrant. The Company shall give the Holder prior written
notice of any change of the address at which such register is kept.
Section 2.2. Registration of Transfers, Exchanges or Assignment of
Warrants. The Holder shall be entitled to assign its interest in this Warrant in
whole or in part to any affiliate of Holder upon surrender thereof accompanied
by a written instrument or instruments of transfer in the form of assignment at
the end hereof duly executed by the Holder. Except as set forth in the preceding
sentence, this Warrant may not be assigned by the Holder. This Warrant may also
be exchanged or combined with warrants of like tenor at the option of the Holder
for another Warrant or Warrants of like tenor and representing in the aggregate
the right to purchase a like number of Warrant Shares upon presentation thereof
to the Company as its Principal Office together with a written notice signed by
the Holder specifying the denominations in which the new Warrant is or the new
Warrants are to be issued.
Upon surrender for transfer or exchange of this Warrant to the Company at
its Principal Office for transfer or exchange, in accordance with this Section
2, the Company shall, without charge (subject to Section 3), execute and deliver
a new Warrant or Warrants of like tenor and of a like aggregate amount of
Warrant Shares in the name of the assignee named in such instrument of
assignment and, if the Holder's entire interest is not being assigned, in the
name of the Holder with respect to that portion not transferred, and this
Warrant shall promptly be canceled.
Notwithstanding the foregoing, the Holder acknowledges that this Warrant
and the Warrant Shares have not been registered under the Securities Act of
1933, as amended (the "Act"), and agrees not to sell, pledge, distribute, offer
for sale, transfer or otherwise dispose of this Warrant and Warrant Shares in
the absence of (i) registration or qualification of this Warrant and such
Warrant Shares under any applicable U.S. federal or state securities law then in
effect, or (ii) an opinion of counsel, satisfactory to the Company, that such
registration and qualification are not required.
3
Section 3. Payment of Taxes. The Company shall pay all documentary stamp
taxes, if any, attributable to the initial issuance of any Warrant Shares upon
the exercise of this Warrant; provided, however, that the Company shall not be
required to pay any tax or taxes which may be payable in respect of any transfer
involved in the issue or delivery of any Warrant or certificate for Warrant
Shares in a name other than that of the Holder as such name is then shown on the
books of the Company.
Section 4. Certain Covenants.
-----------------
Section 4.1. Reservation of Warrant Shares. There have been reserved and
the Company shall at all times keep reserved, out of its authorized but unissued
Common Stock, free from any preemptive rights, rights of first refusal or other
restrictions (other than pursuant to the Act and applicable state securities
laws) a number of shares of Common Stock sufficient to provide for the exercise
of the rights of purchase represented by this Warrant.
Section 4.2. No Impairment. The Company shall not by any action including,
without limitation, amending its Restated Certificate of Incorporation, any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, but shall at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such action, as may be necessary or appropriate to protect the
rights of the Holder against impairment. Without limiting the generality of the
foregoing, the Company shall take all such action as may be necessary or
appropriate in order that the Company may validly issue fully paid and
nonassessable shares of Common Stock upon the exercise of this Warrant at the
then Warrant Price therefor.
Section 4.3. Notice of Certain Corporate Action. In case the Company shall
propose (a) to offer to the holders of its Common Stock rights to subscribe for
or to purchase any shares of Common Stock or shares of stock of any class or any
other securities, rights or options, or (b) to effect any reclassification of
its Common Stock (other than a reclassification involving only the subdivision,
or combination, of outstanding shares of Common Stock), or (c) to effect any
capital reorganization, or (d) to effect any Change of Control, or (e) to effect
the liquidation, dissolution or winding up of the Company or (f) to offer to the
holders of its Common Stock the right to have their shares of Common Stock
repurchased or redeemed or otherwise acquired by the Company, or (g) to take any
other action which would require the adjustment of the Warrant Price and/or the
number of Warrant Shares issuable upon exercise of this Warrant, then in each
such case (but without limiting the provisions of Section 5), the Company shall
give to the Holder, a notice of such proposed action, which shall specify the
date on which a record is to be taken for purposes of such dividend,
distribution of offer of rights, or the date on which such reclassification,
reorganization, Change of Control, liquidation, dissolution, or winding up is to
take place and the date of participation therein by the holders of Common Stock,
if any such date is to be fixed and shall also set forth such facts with respect
thereto as shall be reasonably necessary to indicate the effect of such action
on the Common Stock. Such notice shall be so given at least ten (10) Business
Days prior to the record date for determining holders of the Common Stock for
purposes of participating in or voting on such action, or at least ten (10)
Business Days prior to the date of the taking of such proposed action or the
date of participation therein by the holders of Common Stock, whichever shall be
the earlier. Such notice shall
4
specify, in the case of any subscription or repurchase rights, the date on which
the holders of Common Stock shall be entitled thereto, or the date on which the
holders of Common Stock shall be entitled to exchange their Common Stock for
securities or other property deliverable upon any reorganization,
reclassification, Change of Control or other action, as the case may be. Such
notice shall also state whether the action in question or the record date is
subject to the effectiveness of a registration statement under the Act or to a
favorable vote of security holders, if either is required, and the adjustment in
Warrant Price and/or number of Warrant Shares issuable upon exercise of this
Warrant as a result of such reorganization, reclassification, Change of Control
or other action, to the extent then determinable. No such notice shall be given
if the Company reasonably determines that the giving of such notice would
require disclosure of material information which the Company has a bona fide
purpose for preserving as confidential or the disclosure of which would not be
in the best interests of the Company.
Section 4.4. Purchase Entirely for Own Account. The Holder acknowledges
that this Warrant is given to the Holder in reliance upon the Holder's
representation to the Company, which by its acceptance of this Warrant the
Holder hereby confirms, that the Warrant, the Warrant Shares, and the Common
Stock issuable upon conversion of the Warrant Shares (collectively, the
"Securities") being acquired by the Holder are being acquired for investment for
the Holder's own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof, and that the Holder has no present
intention of selling, granting any participation in, or otherwise distributing
the same. By executing this Warrant, the Holder further represents that the
Holder does not presently have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participations to such
person or to any third person, with respect to any of the Securities. The Holder
represents that it has full power and authority to enter into this Warrant. The
Holder has not been formed for the specific purpose of acquiring any of the
Securities.
Section 4.5. Disclosure of Information. The Holder has had an opportunity
to discuss the Company's business, management, financial affairs and the terms
and conditions of the offering of the Securities with the Company's management
and has had an opportunity to review the Company's facilities, and has had an
opportunity to read all of the Company's filings with the Securities and
Exchange Commission.
Section 4.6. Restricted Securities. The Holder understands that the
Securities have not been, and will not be, registered under the Act, by reason
of a specific exemption from the registration provisions of the Act which
depends upon, among other things, the bona fide nature of the investment intent
and the accuracy of the Holder's representations as expressed herein. The Holder
understands that the Securities are "restricted securities" under applicable
U.S. federal and state securities laws and that, pursuant to these laws, the
Holder must hold the Securities indefinitely unless they are registered with the
Securities and Exchange Commission and qualified by state authorities, or an
exemption from such registration and qualification requirements is available.
The Holder further acknowledges that if an exemption from registration or
qualification is available, it may be conditioned on various requirements
including, but not limited to, the time and manner of sale, the holding period
for the Securities, and on requirements relating to the Company which are
outside of the Holder's control, and which the Company is under no obligation
and may not be able to satisfy.
5
Section 4.7. Accredited Investor. The Holder is an accredited investor as
defined in Rule 501(a) of Regulation D promulgated under the Act.
Section 5. Adjustment of Warrant Price.
---------------------------
Section 5.1. Subdivision or Combination of Stock. In case the Company shall
at any time (i) issue a dividend payable in Common Stock or any rights to
subscribe for or to purchase, or any options for the purchase of, Common Stock
or (ii) subdivide its outstanding shares of Common Stock into a greater number
of shares or combine its outstanding shares of Common Stock into a smaller
number of shares, then (x) in the case of a dividend or subdivision, the Warrant
Price in effect immediately prior to such dividend or subdivision shall be
proportionately decreased and the number of shares of Common Stock purchasable
upon the exercise of the Warrant immediately prior to such adjustment shall be
proportionately increased, and (y) in the case of a combination, the Warrant
Price in effect immediately prior to such combination shall be proportionately
increased and the number of shares of Common Stock purchasable upon the exercise
of the Warrant immediately prior to such adjustment shall be proportionately
decreased.
Section 5.2. Reorganization, Reclassification, Consolidation, Merger or
Sale. (a) If any capital reorganization or reclassification of the capital stock
of the Company or any consolidation or merger of the Company with another
corporation, other than a Change of Control, shall be effected in such a way
that holders of Common Stock shall be entitled to receive stock, securities or
assets with respect to or in exchange for Common Stock, then, as a condition of
such reorganization, reclassification, consolidation, exercise, merger or sale,
lawful and adequate provision shall be made whereby the Holder shall thereafter
have the right to receive upon the basis and upon the terms and conditions
specified herein and in lieu of the shares of Common Stock immediately
theretofore receivable upon the exercise of this Warrant, that number of shares
of stock, securities or assets (including cash) as may be issued or payable with
respect to or in exchange for a number of outstanding shares of such Common
Stock equal to the number of Warrant Shares for which this Warrant could have
been exercised immediately prior to such reorganization, reclassification,
consolidation, merger or sale, and in any such case appropriate provision shall
be made with respect to the rights and interests of such Holder to the end that
the provisions hereof shall thereafter be applicable, as nearly as may be, in
relation to any shares of stock, securities or assets (including cash)
thereafter deliverable upon the exercise of this Warrant. The Company will not
effect any such consolidation, merger or sale, unless prior to the consummation
thereof the successor corporation (if other than the Company) resulting from
such consolidation or merger or the corporation purchasing such assets shall
assume, by written instrument executed and mailed or delivered to the Holder at
the last address of such Holder appearing on the books of the Company, the
obligation to deliver to such Holder such shares of stock, securities or assets
(including cash) as, in accordance with the foregoing provisions, the Holder may
be entitled to receive.
Section 5.3. Fractional Shares. The Company shall not issue fractions of
shares of Common Stock upon exercise of this Warrant or scrip in lieu thereof.
If any fraction of a share of Common Stock would, except for the provisions of
this Section 5.3, be issuable upon exercise of this Warrant, the Company shall
in lieu thereof pay to the person entitled thereto an amount in cash equal to
the current value of such fraction, calculated to the nearest one-hundredth
(1/100)
6
of a share, to be computed on the basis of the Market Price for a share
of Common Stock as of the date of exercise.
Section 5.4. Notice of Adjustment. Upon any adjustment of the Warrant
Price, and from time to time upon the request of the Holder the Company shall
furnish to the Holder the Warrant Price resulting from such adjustment or
otherwise in effect and the number of Warrant Shares then available for purchase
under this Warrant, setting forth in reasonable detail the method of calculation
and the facts upon which such calculation is based.
Section 5.5. Certain Events. If any event occurs as to which, in the good
faith judgment of the Board of Directors of the Company the other provisions of
this Section 5 are not strictly applicable or if strictly applicable would not
fairly protect the exercise rights of the Holder in accordance with the
essential intent and principles of such provisions, then the Board of Directors
of the Company in the good faith, reasonable exercise of its business judgment
shall make an adjustment in the application of such provisions, in accordance
with such essential intent and principles so as to protect such exercise rights
as aforesaid.
Section 6. No Rights as a Stockholder; Notice to Holder. Nothing contained
in this Warrant shall be construed as conferring upon the Holder the right to
vote or to consent or to receive notice as a stockholder in respect of any
meeting of stockholders for the election of directors of the Company or any
other matter, or any rights whatsoever as a stockholder of the Company.
Section 7. Replacement of Warrant. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and (in the case of loss, theft or destruction) upon delivery of an
indemnity agreement (with, in the case of a Holder which is not a qualified
institutional buyer within the meaning of Rule 144A under the Act, surety) in an
amount reasonably satisfactory to it, or (in the case of mutilation) upon
surrender and cancellation thereof, the Company will issue, in lieu thereof, a
new Warrant of like tenor.
Section 8. Notices. All notices and other written communications provided
for hereunder shall be given in writing and delivered in person or sent by
overnight delivery service (with charges prepaid) or by facsimile transmission,
if the original of such facsimile transmission is sent by overnight delivery
service (with charges prepaid) by the next succeeding Business Day and (i) if to
the Holder addressed to it at the address or fax number specified for such
Holder in the Warrant Register or at such other address or fax number as the
Holder shall have specified to the Company in writing in accordance with this
Section 8, and (ii) if to the Company, addressed to it at 0 Xxxxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxxxxxxx 00000, Attention General Counsel Fax No: (000) 000-0000
or at such other address or fax number as the Company shall have specified to
the Holder in writing in accordance with this Section 8. Notice given in
accordance with this Section 8 shall be effective upon the earlier of the date
of delivery or the second Business Day at the place of delivery after dispatch.
Section 9. Applicable Law. This Warrant shall be governed by and construed
in accordance with the laws of the State of New York without giving effect to
principles of conflict of laws.
7
Section 10. Warrant Share Legend. Each certificate representing Warrant
Shares, until such Warrant Shares have been distributed pursuant to a
registration statement effective under the Act or sold to the public through a
broker, dealer or market maker in compliance with Rule 144 under the Act (or any
similar rule then in force) shall bear one or all of the following legends:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT
WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH
SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933."
Any legend required by the Blue Sky laws of any state to the extent such
laws are applicable to the shares represented by the certificate so legended.
Section 11. Captions. The captions of the Sections and subsections of this
Warrant have been inserted for convenience only and shall have no substantive
effect.
Section 12. Amendment or Waiver. Any term of the Warrants may be amended or
waived only by an instrument in writing signed by the Company and a Holder
Majority, and any such amendment or waiver (and any other action taken or
decision made by a Holder Majority) shall be binding upon all Holders.
8
IN WITNESS WHEREOF, the undersigned have executed this Warrant as of the
15th day of March, 2004.
SCANSOFT, INC.
By: /s/ Xxxx Xxxxx
--------------
Name: Xxxx Xxxxx
Title: Chief Executive Officer
Warburg Pincus Netherlands Private Equity
VIII I C.V.
By: WARBURG PINCUS & CO.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Partner
[To be signed only upon exercise of Warrant]
TO SCANSOFT, INC.:
The undersigned, the holder of the within Warrant (the "Holder"), hereby
irrevocably elects to exercise the purchase right represented by such Warrant
for, and to purchase thereunder, ____shares of Common Stock of Scansoft, Inc.
and herewith [makes payment of $____ therefor in full payment of the Exercise
Payment][tenders securities having a Market Price of $_____ in full payment of
the Exercise Payment] or [elects to receive a payment equal to the difference
between (i) the Market Price (as defined in the Warrant) multiplied by ________
(the number of Warrant Shares as to which the payment is being elected) and (ii)
___________, which is the exercise price with respect to such Warrant Shares, in
full payment of the Exercise Payment, payable by the Company to the Holder only
in shares of Common Stock valued at the Market Price in accordance with the
terms of the Warrant], and requests that the certificates for such shares be
issued in the name of, and be delivered to __________, whose address is
_______________.
Dated:
-----------------------------
-----------------------------
(Signature must conform in all respects to name of Holder as specified on the
face of the Warrant)
-----------------------------
Address
[To be signed only upon transfer of Warrant]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto __________ the right represented by the within Warrant to purchase ____
shares of the Common Stock of Scansoft, Inc. to which the within Warrant
relates, and appoints __________ attorney to transfer said right on the books of
Scansoft, Inc. with full power of substitution in the premises.
Dated:
-----------------------------
(Signature must conform in all respects to name of Holder as specified on the
face of the Warrant)
-----------------------------
Address
In the presence of:
-----------------------------
-2-
W-18
THIS WARRANT AND THE WARRANT SHARES HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, NOR REGISTERED OR QUALIFIED UNDER ANY STATE
SECURITIES LAWS, AND MAY NOT BE PLEDGED, HYPOTHECATED,
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS SO
REGISTERED OR AN EXEMPTION THEREFROM IS AVAILABLE.
WARRANT TO PURCHASE COMMON STOCK
OF SCANSOFT, INC.
Date of Approval and Grant: March 15, 2004
In consideration for the payment by Warburg Pincus Netherlands Private
Equity VIII II C.V. to Scansoft, Inc., a Delaware corporation (the "Company"),
of $7,256.25 in cash, by certified check, or by wire transfer (the "Purchase
Price"), the Company agrees to the provisions set forth herein. The Company
certifies that Warburg Pincus Netherlands Private Equity VIII II C.V. and its
permitted assigns (the "Holder"), is entitled, subject to the terms set forth
below, to purchase from the Company, up to 29,025 fully-paid and nonassessable
shares of Common Stock (the "Warrant Shares") at a purchase price per share
equal to the Warrant Price (defined below). The number of shares of Common Stock
purchasable upon exercise of this Warrant and the Warrant Price shall be subject
to adjustment from time to time as provided herein. The initial Warrant Price
(the "Warrant Price") per share of Common Stock shall equal $4.94.
This Warrant is one in a series of warrants approved and granted by the
Board of Directors of the Company on March 15, 2004 (the "Grant Date") with
substantially similar terms and conditions that (x) as of the Grant Date and
subject to the provisions of this Warrant and such other warrants (as
applicable), allow for the purchase of up to an aggregate of 2,500,000 shares of
Common Stock and (y) as of the Grant Date, are represented by warrant
certificate numbers W-16, W-17, W-18 and W-19. Such warrants and any warrants
issued upon assignment or replacement thereof are referred to herein as the
"Warrants," and the holders thereof and their permitted assigns are referred to
herein as the "Holders."
For the purpose of this Warrant, the term "Common Stock" shall mean (i) the
Common Stock, par value $0.001 per share, of the Company as of the Grant Date,
or (ii) any other class or classes of stock resulting from successive changes or
reclassifications of such class of stock, and the term "Business Day" shall mean
any day other than a Saturday or Sunday or a day on which commercial banks in
New York, New York are required or authorized to be closed.
Section 1. Term of Warrant, Exercise of Warrant. (a) Subject to the terms
of this Warrant, the Holder shall have the right, at its option, which may be
exercised in whole or in part, at any time, and from time to time, commencing at
the time immediately following the later to occur of (i) the time the Purchase
Price has been paid and (ii) the Closing (as such time is defined in that
certain Securities Purchase Agreement by and among the Company, Xerox Imaging
Systems, Inc., a Delaware corporation, Warburg Pincus Private Equity VIII, L.P.,
Warburg Pincus Netherlands Private Equity VIII I C.V., Warburg Pincus
Netherlands Private
Equity VIII II C.V., and Warburg Pincus Germany Private Equity VIII, K.G. dated
on or about the Grant Date) has occurred, and until the earlier of (x) 5:00 p.m.
Eastern Time on the six year anniversary of the date Closing occurs and (y) the
closing of a Change of Control (as defined below) (the "Warrant Expiration
Date") to purchase from the Company the Warrant Shares. "Change of Control"
shall mean the sale, conveyance or disposal of all or substantially all of the
Company's property or business or the Company's merger with or into or
consolidation with any other corporation (other than a wholly-owned subsidiary
of the Company) or any other transaction or series of related transactions in
which the stockholders of the Company immediately prior to the transaction or
transactions own less than a majority of the voting power of the surviving
corporation following the transaction or transactions. If the Closing does not
occur by April 30, 2004 or if the Purchase Price is not paid by April 30, 2004,
this Warrant will be void, and any previously paid Purchase Price shall be
refunded. After the Warrant Expiration Date, this Warrant will be void.
(b) The purchase rights evidenced by this Warrant shall be exercised by the
Holder surrendering this Warrant, with the form of subscription at the end
hereof duly executed by the Holder, to the Company at its office in Peabody,
Massachusetts (or, in the event the Company's principal office is no longer in
Peabody, Massachusetts its then principal office in the United States (the
"Principal Office")), accompanied by payment, of an amount (the "Exercise
Payment") equal to the Warrant Price multiplied by the number of Warrant Shares
being purchased pursuant to such exercise, payable as follows: (i) by payment to
the Company in cash, by certified check, or by wire transfer of the Exercise
Payment, (ii) by surrender to the Company for cancellation of securities of the
Company having a Market Price (as hereinafter defined) on the date of exercise
equal to the Exercise Payment; or (iii) by a combination of the methods
described in clauses (i) and (ii) above. In lieu of exercising the Warrant as
set forth in the foregoing sentence, the Holder may elect to perform a net
exercise and receive a payment equal to the difference between (i) the Market
Price on the date of exercise multiplied by the number of Warrant Shares as to
which the payment is then being elected and (ii) the aggregate Warrant Price
with respect to such Warrant Shares, payable by the Company to the Holder only
in shares of Common Stock valued at the Market Price on the date of exercise.
For purposes hereof, the term "Market Price" shall mean, with respect to any
day, the average closing price of a share of Common Stock or other security for
the 5 consecutive trading days preceding such day on the principal national
securities exchange on which the shares of Common Stock or securities are listed
or admitted to trading or, if not listed or admitted to trading on any national
securities exchange, the average of the reported high and low prices during such
5 trading day period on Nasdaq or, if the shares are not listed on Nasdaq, in
the over-the-counter market or, if the shares of Common Stock or securities are
not publicly traded, the Market Price for such day shall be the fair market
value thereof determined in good faith jointly by the Company and the Holders of
a majority in interest of the shares of Common Stock then purchasable pursuant
to outstanding Warrants (a "Holder Majority"); provided, however, that if such
parties are unable to reach agreement within a reasonable period of time, the
Market Price shall be determined in good faith by an independent investment
banking firm selected jointly by the Company and a Holder Majority or, if that
selection cannot be made within 15 days, by an independent investment banking
firm selected by the American Arbitration Association in accordance with its
rules. All costs and expenses of such independent investment banking firm shall
be borne 50% by the Company and 50% by the Holders, pro rata based on the number
of Warrant Shares then held by each.
2
(c) Upon any exercise of this Warrant, the Company shall issue and cause to
be delivered with all reasonable dispatch, but in any event within 10 Business
Days, to or upon the written order of the Holder and, subject to Section 3, in
such name or names as the Holder may designate (provided that such names other
than the Holder may include only affiliates of the Holder), a certificate or
certificates for the number of full Warrant Shares issuable upon such exercise
together with such other property, including cash (if necessary pursuant to
Section 5.3 hereof), which may be deliverable upon such exercise. If fewer than
all of the Warrant Shares represented by this Warrant are purchased, a new
Warrant of the same tenor as this Warrant, evidencing the Warrant Shares not
purchased will be issued and delivered by the Company at the Company's expense,
to the Holder together with the issue of the certificates representing the
Warrant Shares then being purchased. All Warrant certificates surrendered upon
exercise of Warrants shall be canceled by the Company.
Section 2. Warrant Register, Registration of Transfers
-------------------------------------------
Section 2.1. Warrant Register. The Company shall keep at its Principal
Office, a register (the "Warrant Register") in which the Company shall record
the name and address of the Holder from time to time and all transfers and
exchanges of this Warrant. The Company shall give the Holder prior written
notice of any change of the address at which such register is kept.
Section 2.2. Registration of Transfers, Exchanges or Assignment of
Warrants. The Holder shall be entitled to assign its interest in this Warrant in
whole or in part to any affiliate of Holder upon surrender thereof accompanied
by a written instrument or instruments of transfer in the form of assignment at
the end hereof duly executed by the Holder. Except as set forth in the preceding
sentence, this Warrant may not be assigned by the Holder. This Warrant may also
be exchanged or combined with warrants of like tenor at the option of the Holder
for another Warrant or Warrants of like tenor and representing in the aggregate
the right to purchase a like number of Warrant Shares upon presentation thereof
to the Company as its Principal Office together with a written notice signed by
the Holder specifying the denominations in which the new Warrant is or the new
Warrants are to be issued.
Upon surrender for transfer or exchange of this Warrant to the Company at
its Principal Office for transfer or exchange, in accordance with this Section
2, the Company shall, without charge (subject to Section 3), execute and deliver
a new Warrant or Warrants of like tenor and of a like aggregate amount of
Warrant Shares in the name of the assignee named in such instrument of
assignment and, if the Holder's entire interest is not being assigned, in the
name of the Holder with respect to that portion not transferred, and this
Warrant shall promptly be canceled.
Notwithstanding the foregoing, the Holder acknowledges that this Warrant
and the Warrant Shares have not been registered under the Securities Act of
1933, as amended (the "Act"), and agrees not to sell, pledge, distribute, offer
for sale, transfer or otherwise dispose of this Warrant and Warrant Shares in
the absence of (i) registration or qualification of this Warrant and such
Warrant Shares under any applicable U.S. federal or state securities law then in
effect, or (ii) an opinion of counsel, satisfactory to the Company, that such
registration and qualification are not required.
3
Section 3. Payment of Taxes. The Company shall pay all documentary stamp
taxes, if any, attributable to the initial issuance of any Warrant Shares upon
the exercise of this Warrant; provided, however, that the Company shall not be
required to pay any tax or taxes which may be payable in respect of any transfer
involved in the issue or delivery of any Warrant or certificate for Warrant
Shares in a name other than that of the Holder as such name is then shown on the
books of the Company.
Section 4. Certain Covenants.
-----------------
Section 4.1. Reservation of Warrant Shares. There have been reserved and
the Company shall at all times keep reserved, out of its authorized but unissued
Common Stock, free from any preemptive rights, rights of first refusal or other
restrictions (other than pursuant to the Act and applicable state securities
laws) a number of shares of Common Stock sufficient to provide for the exercise
of the rights of purchase represented by this Warrant.
Section 4.2. No Impairment. The Company shall not by any action including,
without limitation, amending its Restated Certificate of Incorporation, any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, but shall at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such action, as may be necessary or appropriate to protect the
rights of the Holder against impairment. Without limiting the generality of the
foregoing, the Company shall take all such action as may be necessary or
appropriate in order that the Company may validly issue fully paid and
nonassessable shares of Common Stock upon the exercise of this Warrant at the
then Warrant Price therefor.
Section 4.3. Notice of Certain Corporate Action. In case the Company shall
propose (a) to offer to the holders of its Common Stock rights to subscribe for
or to purchase any shares of Common Stock or shares of stock of any class or any
other securities, rights or options, or (b) to effect any reclassification of
its Common Stock (other than a reclassification involving only the subdivision,
or combination, of outstanding shares of Common Stock), or (c) to effect any
capital reorganization, or (d) to effect any Change of Control, or (e) to effect
the liquidation, dissolution or winding up of the Company or (f) to offer to the
holders of its Common Stock the right to have their shares of Common Stock
repurchased or redeemed or otherwise acquired by the Company, or (g) to take any
other action which would require the adjustment of the Warrant Price and/or the
number of Warrant Shares issuable upon exercise of this Warrant, then in each
such case (but without limiting the provisions of Section 5), the Company shall
give to the Holder, a notice of such proposed action, which shall specify the
date on which a record is to be taken for purposes of such dividend,
distribution of offer of rights, or the date on which such reclassification,
reorganization, Change of Control, liquidation, dissolution, or winding up is to
take place and the date of participation therein by the holders of Common Stock,
if any such date is to be fixed and shall also set forth such facts with respect
thereto as shall be reasonably necessary to indicate the effect of such action
on the Common Stock. Such notice shall be so given at least ten (10) Business
Days prior to the record date for determining holders of the Common Stock for
purposes of participating in or voting on such action, or at least ten (10)
Business Days prior to the date of the taking of such proposed action or the
date of participation therein by the holders of Common Stock, whichever shall be
the earlier. Such notice shall
4
specify, in the case of any subscription or repurchase rights, the date on which
the holders of Common Stock shall be entitled thereto, or the date on which the
holders of Common Stock shall be entitled to exchange their Common Stock for
securities or other property deliverable upon any reorganization,
reclassification, Change of Control or other action, as the case may be. Such
notice shall also state whether the action in question or the record date is
subject to the effectiveness of a registration statement under the Act or to a
favorable vote of security holders, if either is required, and the adjustment in
Warrant Price and/or number of Warrant Shares issuable upon exercise of this
Warrant as a result of such reorganization, reclassification, Change of Control
or other action, to the extent then determinable. No such notice shall be given
if the Company reasonably determines that the giving of such notice would
require disclosure of material information which the Company has a bona fide
purpose for preserving as confidential or the disclosure of which would not be
in the best interests of the Company.
Section 4.4. Purchase Entirely for Own Account. The Holder acknowledges
that this Warrant is given to the Holder in reliance upon the Holder's
representation to the Company, which by its acceptance of this Warrant the
Holder hereby confirms, that the Warrant, the Warrant Shares, and the Common
Stock issuable upon conversion of the Warrant Shares (collectively, the
"Securities") being acquired by the Holder are being acquired for investment for
the Holder's own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof, and that the Holder has no present
intention of selling, granting any participation in, or otherwise distributing
the same. By executing this Warrant, the Holder further represents that the
Holder does not presently have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participations to such
person or to any third person, with respect to any of the Securities. The Holder
represents that it has full power and authority to enter into this Warrant. The
Holder has not been formed for the specific purpose of acquiring any of the
Securities.
Section 4.5. Disclosure of Information. The Holder has had an opportunity
to discuss the Company's business, management, financial affairs and the terms
and conditions of the offering of the Securities with the Company's management
and has had an opportunity to review the Company's facilities, and has had an
opportunity to read all of the Company's filings with the Securities and
Exchange Commission.
Section 4.6. Restricted Securities. The Holder understands that the
Securities have not been, and will not be, registered under the Act, by reason
of a specific exemption from the registration provisions of the Act which
depends upon, among other things, the bona fide nature of the investment intent
and the accuracy of the Holder's representations as expressed herein. The Holder
understands that the Securities are "restricted securities" under applicable
U.S. federal and state securities laws and that, pursuant to these laws, the
Holder must hold the Securities indefinitely unless they are registered with the
Securities and Exchange Commission and qualified by state authorities, or an
exemption from such registration and qualification requirements is available.
The Holder further acknowledges that if an exemption from registration or
qualification is available, it may be conditioned on various requirements
including, but not limited to, the time and manner of sale, the holding period
for the Securities, and on requirements relating to the Company which are
outside of the Holder's control, and which the Company is under no obligation
and may not be able to satisfy.
5
Section 4.7. Accredited Investor. The Holder is an accredited investor as
defined in Rule 501(a) of Regulation D promulgated under the Act.
Section 5. Adjustment of Warrant Price.
---------------------------
Section 5.1. Subdivision or Combination of Stock. In case the Company shall
at any time (i) issue a dividend payable in Common Stock or any rights to
subscribe for or to purchase, or any options for the purchase of, Common Stock
or (ii) subdivide its outstanding shares of Common Stock into a greater number
of shares or combine its outstanding shares of Common Stock into a smaller
number of shares, then (x) in the case of a dividend or subdivision, the Warrant
Price in effect immediately prior to such dividend or subdivision shall be
proportionately decreased and the number of shares of Common Stock purchasable
upon the exercise of the Warrant immediately prior to such adjustment shall be
proportionately increased, and (y) in the case of a combination, the Warrant
Price in effect immediately prior to such combination shall be proportionately
increased and the number of shares of Common Stock purchasable upon the exercise
of the Warrant immediately prior to such adjustment shall be proportionately
decreased.
Section 5.2. Reorganization, Reclassification, Consolidation, Merger or
Sale. (a) If any capital reorganization or reclassification of the capital stock
of the Company or any consolidation or merger of the Company with another
corporation, other than a Change of Control, shall be effected in such a way
that holders of Common Stock shall be entitled to receive stock, securities or
assets with respect to or in exchange for Common Stock, then, as a condition of
such reorganization, reclassification, consolidation, exercise, merger or sale,
lawful and adequate provision shall be made whereby the Holder shall thereafter
have the right to receive upon the basis and upon the terms and conditions
specified herein and in lieu of the shares of Common Stock immediately
theretofore receivable upon the exercise of this Warrant, that number of shares
of stock, securities or assets (including cash) as may be issued or payable with
respect to or in exchange for a number of outstanding shares of such Common
Stock equal to the number of Warrant Shares for which this Warrant could have
been exercised immediately prior to such reorganization, reclassification,
consolidation, merger or sale, and in any such case appropriate provision shall
be made with respect to the rights and interests of such Holder to the end that
the provisions hereof shall thereafter be applicable, as nearly as may be, in
relation to any shares of stock, securities or assets (including cash)
thereafter deliverable upon the exercise of this Warrant. The Company will not
effect any such consolidation, merger or sale, unless prior to the consummation
thereof the successor corporation (if other than the Company) resulting from
such consolidation or merger or the corporation purchasing such assets shall
assume, by written instrument executed and mailed or delivered to the Holder at
the last address of such Holder appearing on the books of the Company, the
obligation to deliver to such Holder such shares of stock, securities or assets
(including cash) as, in accordance with the foregoing provisions, the Holder may
be entitled to receive.
Section 5.3. Fractional Shares. The Company shall not issue fractions of
shares of Common Stock upon exercise of this Warrant or scrip in lieu thereof.
If any fraction of a share of Common Stock would, except for the provisions of
this Section 5.3, be issuable upon exercise of this Warrant, the Company shall
in lieu thereof pay to the person entitled thereto an amount in cash equal to
the current value of such fraction, calculated to the nearest one-hundredth
(1/100)
6
of a share, to be computed on the basis of the Market Price for a share of
Common Stock as of the date of exercise.
Section 5.4. Notice of Adjustment. Upon any adjustment of the Warrant
Price, and from time to time upon the request of the Holder the Company shall
furnish to the Holder the Warrant Price resulting from such adjustment or
otherwise in effect and the number of Warrant Shares then available for purchase
under this Warrant, setting forth in reasonable detail the method of calculation
and the facts upon which such calculation is based.
Section 5.5. Certain Events. If any event occurs as to which, in the good
faith judgment of the Board of Directors of the Company the other provisions of
this Section 5 are not strictly applicable or if strictly applicable would not
fairly protect the exercise rights of the Holder in accordance with the
essential intent and principles of such provisions, then the Board of Directors
of the Company in the good faith, reasonable exercise of its business judgment
shall make an adjustment in the application of such provisions, in accordance
with such essential intent and principles so as to protect such exercise rights
as aforesaid.
Section 6. No Rights as a Stockholder; Notice to Holder. Nothing contained
in this Warrant shall be construed as conferring upon the Holder the right to
vote or to consent or to receive notice as a stockholder in respect of any
meeting of stockholders for the election of directors of the Company or any
other matter, or any rights whatsoever as a stockholder of the Company.
Section 7. Replacement of Warrant. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and (in the case of loss, theft or destruction) upon delivery of an
indemnity agreement (with, in the case of a Holder which is not a qualified
institutional buyer within the meaning of Rule 144A under the Act, surety) in an
amount reasonably satisfactory to it, or (in the case of mutilation) upon
surrender and cancellation thereof, the Company will issue, in lieu thereof, a
new Warrant of like tenor.
Section 8. Notices. All notices and other written communications provided
for hereunder shall be given in writing and delivered in person or sent by
overnight delivery service (with charges prepaid) or by facsimile transmission,
if the original of such facsimile transmission is sent by overnight delivery
service (with charges prepaid) by the next succeeding Business Day and (i) if to
the Holder addressed to it at the address or fax number specified for such
Holder in the Warrant Register or at such other address or fax number as the
Holder shall have specified to the Company in writing in accordance with this
Section 8, and (ii) if to the Company, addressed to it at 0 Xxxxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxxxxxxx 00000, Attention General Counsel Fax No: (000) 000-0000
or at such other address or fax number as the Company shall have specified to
the Holder in writing in accordance with this Section 8. Notice given in
accordance with this Section 8 shall be effective upon the earlier of the date
of delivery or the second Business Day at the place of delivery after dispatch.
Section 9. Applicable Law. This Warrant shall be governed by and construed
in accordance with the laws of the State of New York without giving effect to
principles of conflict of laws.
7
Section 10. Warrant Share Legend. Each certificate representing Warrant
Shares, until such Warrant Shares have been distributed pursuant to a
registration statement effective under the Act or sold to the public through a
broker, dealer or market maker in compliance with Rule 144 under the Act (or any
similar rule then in force) shall bear one or all of the following legends:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT
WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH
SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933."
Any legend required by the Blue Sky laws of any state to the extent such
laws are applicable to the shares represented by the certificate so legended.
Section 11. Captions. The captions of the Sections and subsections of this
Warrant have been inserted for convenience only and shall have no substantive
effect.
Section 12. Amendment or Waiver. Any term of the Warrants may be amended or
waived only by an instrument in writing signed by the Company and a Holder
Majority, and any such amendment or waiver (and any other action taken or
decision made by a Holder Majority) shall be binding upon all Holders.
8
IN WITNESS WHEREOF, the undersigned have executed this Warrant as of the
15th day of March, 2004.
SCANSOFT, INC.
By: /s/ Xxxx Xxxxx
--------------
Name: Xxxx Xxxxx
Title: Chief Executive Officer
Warburg Pincus Netherlands Private Equity
VIII II C.V.
By: WARBURG PINCUS & CO.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Partner
[To be signed only upon exercise of Warrant]
TO SCANSOFT, INC.:
The undersigned, the holder of the within Warrant (the "Holder"), hereby
irrevocably elects to exercise the purchase right represented by such Warrant
for, and to purchase thereunder, ____ shares of Common Stock of Scansoft, Inc.
and herewith [makes payment of $ ____ therefor in full payment of the Exercise
Payment][tenders securities having a Market Price of $_____ in full payment of
the Exercise Payment] or [elects to receive a payment equal to the difference
between (i) the Market Price (as defined in the Warrant) multiplied by ________
(the number of Warrant Shares as to which the payment is being elected) and (ii)
___________, which is the exercise price with respect to such Warrant Shares, in
full payment of the Exercise Payment, payable by the Company to the Holder only
in shares of Common Stock valued at the Market Price in accordance with the
terms of the Warrant], and requests that the certificates for such shares be
issued in the name of, and be delivered to _____, whose address is __________.
Dated:
-----------------------------
-----------------------------
(Signature must conform in all respects to name of Holder as specified on the
face of the Warrant)
-----------------------------
Address
[To be signed only upon transfer of Warrant]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _______________ the right represented by the within Warrant to purchase
____ shares of the Common Stock of Scansoft, Inc. to which the within Warrant
relates, and appoints ________ attorney to transfer said right on the books of
Scansoft, Inc. with full power of substitution in the premises.
Dated:
-----------------------------
(Signature must conform in all respects to name of Holder as specified on the
face of the Warrant)
-----------------------------
Address
In the presence of:
-----------------------------
-2-
W-19
THIS WARRANT AND THE WARRANT SHARES HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, NOR REGISTERED OR QUALIFIED UNDER ANY STATE
SECURITIES LAWS, AND MAY NOT BE PLEDGED, HYPOTHECATED,
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS SO
REGISTERED OR AN EXEMPTION THEREFROM IS AVAILABLE.
WARRANT TO PURCHASE COMMON STOCK
OF SCANSOFT, INC.
Date of Approval and Grant: March 15, 2004
In consideration for the payment by Warburg Pincus Germany Private Equity
VIII, K.G. to Scansoft, Inc., a Delaware corporation (the "Company"), of
$1,756.25 in cash, by certified check, or by wire transfer (the "Purchase
Price"), the Company agrees to the provisions set forth herein. The Company
certifies that Warburg Pincus Germany Private Equity VIII, K.G. and its
permitted assigns (the "Holder"), is entitled, subject to the terms set forth
below, to purchase from the Company, up to 7,025 fully-paid and nonassessable
shares of Common Stock (the "Warrant Shares") at a purchase price per share
equal to the Warrant Price (defined below). The number of shares of Common Stock
purchasable upon exercise of this Warrant and the Warrant Price shall be subject
to adjustment from time to time as provided herein. The initial Warrant Price
(the "Warrant Price") per share of Common Stock shall equal $4.94.
This Warrant is one in a series of warrants approved and granted by the
Board of Directors of the Company on March 15, 2004 (the "Grant Date") with
substantially similar terms and conditions that (x) as of the Grant Date and
subject to the provisions of this Warrant and such other warrants (as
applicable), allow for the purchase of up to an aggregate of 2,500,000 shares of
Common Stock and (y) as of the Grant Date, are represented by warrant
certificate numbers W-16, W-17, W-18 and W-19. Such warrants and any warrants
issued upon assignment or replacement thereof are referred to herein as the
"Warrants," and the holders thereof and their permitted assigns are referred to
herein as the "Holders."
For the purpose of this Warrant, the term "Common Stock" shall mean (i) the
Common Stock, par value $0.001 per share, of the Company as of the Grant Date,
or (ii) any other class or classes of stock resulting from successive changes or
reclassifications of such class of stock, and the term "Business Day" shall mean
any day other than a Saturday or Sunday or a day on which commercial banks in
New York, New York are required or authorized to be closed.
Section 1. Term of Warrant, Exercise of Warrant. (a) Subject to the terms
of this Warrant, the Holder shall have the right, at its option, which may be
exercised in whole or in part, at any time, and from time to time, commencing at
the time immediately following the later to occur of (i) the time the Purchase
Price has been paid and (ii) the Closing (as such time is defined in that
certain Securities Purchase Agreement by and among the Company, Xerox Imaging
Systems, Inc., a Delaware corporation, Warburg Pincus Private Equity VIII, L.P.,
Warburg Pincus Netherlands Private Equity VIII I C.V., Warburg Pincus
Netherlands Private
Equity VIII II C.V., and Warburg Pincus Germany Private Equity VIII, K.G. dated
on or about the Grant Date) has occurred, and until the earlier of (x) 5:00 p.m.
Eastern Time on the six year anniversary of the date Closing occurs and (y) the
closing of a Change of Control (as defined below) (the "Warrant Expiration
Date") to purchase from the Company the Warrant Shares. "Change of Control"
shall mean the sale, conveyance or disposal of all or substantially all of the
Company's property or business or the Company's merger with or into or
consolidation with any other corporation (other than a wholly-owned subsidiary
of the Company) or any other transaction or series of related transactions in
which the stockholders of the Company immediately prior to the transaction or
transactions own less than a majority of the voting power of the surviving
corporation following the transaction or transactions. If the Closing does not
occur by April 30, 2004 or if the Purchase Price is not paid by April 30, 2004,
this Warrant will be void, and any previously paid Purchase Price shall be
refunded. After the Warrant Expiration Date, this Warrant will be void.
(b) The purchase rights evidenced by this Warrant shall be exercised by the
Holder surrendering this Warrant, with the form of subscription at the end
hereof duly executed by the Holder, to the Company at its office in Peabody,
Massachusetts (or, in the event the Company's principal office is no longer in
Peabody, Massachusetts its then principal office in the United States (the
"Principal Office")), accompanied by payment, of an amount (the "Exercise
Payment") equal to the Warrant Price multiplied by the number of Warrant Shares
being purchased pursuant to such exercise, payable as follows: (i) by payment to
the Company in cash, by certified check, or by wire transfer of the Exercise
Payment, (ii) by surrender to the Company for cancellation of securities of the
Company having a Market Price (as hereinafter defined) on the date of exercise
equal to the Exercise Payment; or (iii) by a combination of the methods
described in clauses (i) and (ii) above. In lieu of exercising the Warrant as
set forth in the foregoing sentence, the Holder may elect to perform a net
exercise and receive a payment equal to the difference between (i) the Market
Price on the date of exercise multiplied by the number of Warrant Shares as to
which the payment is then being elected and (ii) the aggregate Warrant Price
with respect to such Warrant Shares, payable by the Company to the Holder only
in shares of Common Stock valued at the Market Price on the date of exercise.
For purposes hereof, the term "Market Price" shall mean, with respect to any
day, the average closing price of a share of Common Stock or other security for
the 5 consecutive trading days preceding such day on the principal national
securities exchange on which the shares of Common Stock or securities are listed
or admitted to trading or, if not listed or admitted to trading on any national
securities exchange, the average of the reported high and low prices during such
5 trading day period on Nasdaq or, if the shares are not listed on Nasdaq, in
the over-the-counter market or, if the shares of Common Stock or securities are
not publicly traded, the Market Price for such day shall be the fair market
value thereof determined in good faith jointly by the Company and the Holders of
a majority in interest of the shares of Common Stock then purchasable pursuant
to outstanding Warrants (a "Holder Majority"); provided, however, that if such
parties are unable to reach agreement within a reasonable period of time, the
Market Price shall be determined in good faith by an independent investment
banking firm selected jointly by the Company and a Holder Majority or, if that
selection cannot be made within 15 days, by an independent investment banking
firm selected by the American Arbitration Association in accordance with its
rules. All costs and expenses of such independent investment banking firm shall
be borne 50% by the Company and 50% by the Holders, pro rata based on the number
of Warrant Shares then held by each.
2
(c) Upon any exercise of this Warrant, the Company shall issue and cause to
be delivered with all reasonable dispatch, but in any event within 10 Business
Days, to or upon the written order of the Holder and, subject to Section 3, in
such name or names as the Holder may designate (provided that such names other
than the Holder may include only affiliates of the Holder), a certificate or
certificates for the number of full Warrant Shares issuable upon such exercise
together with such other property, including cash (if necessary pursuant to
Section 5.3 hereof), which may be deliverable upon such exercise. If fewer than
all of the Warrant Shares represented by this Warrant are purchased, a new
Warrant of the same tenor as this Warrant, evidencing the Warrant Shares not
purchased will be issued and delivered by the Company at the Company's expense,
to the Holder together with the issue of the certificates representing the
Warrant Shares then being purchased. All Warrant certificates surrendered upon
exercise of Warrants shall be canceled by the Company.
Section 2. Warrant Register, Registration of Transfers
-------------------------------------------
Section 2.1. Warrant Register. The Company shall keep at its Principal
Office, a register (the "Warrant Register") in which the Company shall record
the name and address of the Holder from time to time and all transfers and
exchanges of this Warrant. The Company shall give the Holder prior written
notice of any change of the address at which such register is kept.
Section 2.2. Registration of Transfers, Exchanges or Assignment of
Warrants. The Holder shall be entitled to assign its interest in this Warrant in
whole or in part to any affiliate of Holder upon surrender thereof accompanied
by a written instrument or instruments of transfer in the form of assignment at
the end hereof duly executed by the Holder. Except as set forth in the preceding
sentence, this Warrant may not be assigned by the Holder. This Warrant may also
be exchanged or combined with warrants of like tenor at the option of the Holder
for another Warrant or Warrants of like tenor and representing in the aggregate
the right to purchase a like number of Warrant Shares upon presentation thereof
to the Company as its Principal Office together with a written notice signed by
the Holder specifying the denominations in which the new Warrant is or the new
Warrants are to be issued.
Upon surrender for transfer or exchange of this Warrant to the Company at
its Principal Office for transfer or exchange, in accordance with this Section
2, the Company shall, without charge (subject to Section 3), execute and deliver
a new Warrant or Warrants of like tenor and of a like aggregate amount of
Warrant Shares in the name of the assignee named in such instrument of
assignment and, if the Holder's entire interest is not being assigned, in the
name of the Holder with respect to that portion not transferred, and this
Warrant shall promptly be canceled.
Notwithstanding the foregoing, the Holder acknowledges that this Warrant
and the Warrant Shares have not been registered under the Securities Act of
1933, as amended (the "Act"), and agrees not to sell, pledge, distribute, offer
for sale, transfer or otherwise dispose of this Warrant and Warrant Shares in
the absence of (i) registration or qualification of this Warrant and such
Warrant Shares under any applicable U.S. federal or state securities law then in
effect, or (ii) an opinion of counsel, satisfactory to the Company, that such
registration and qualification are not required.
3
Section 3. Payment of Taxes. The Company shall pay all documentary stamp
taxes, if any, attributable to the initial issuance of any Warrant Shares upon
the exercise of this Warrant; provided, however, that the Company shall not be
required to pay any tax or taxes which may be payable in respect of any transfer
involved in the issue or delivery of any Warrant or certificate for Warrant
Shares in a name other than that of the Holder as such name is then shown on the
books of the Company.
Section 4. Certain Covenants.
-----------------
Section 4.1. Reservation of Warrant Shares. There have been reserved and
the Company shall at all times keep reserved, out of its authorized but unissued
Common Stock, free from any preemptive rights, rights of first refusal or other
restrictions (other than pursuant to the Act and applicable state securities
laws) a number of shares of Common Stock sufficient to provide for the exercise
of the rights of purchase represented by this Warrant.
Section 4.2. No Impairment. The Company shall not by any action including,
without limitation, amending its Restated Certificate of Incorporation, any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, but shall at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such action, as may be necessary or appropriate to protect the
rights of the Holder against impairment. Without limiting the generality of the
foregoing, the Company shall take all such action as may be necessary or
appropriate in order that the Company may validly issue fully paid and
nonassessable shares of Common Stock upon the exercise of this Warrant at the
then Warrant Price therefor.
Section 4.3. Notice of Certain Corporate Action. In case the Company shall
propose (a) to offer to the holders of its Common Stock rights to subscribe for
or to purchase any shares of Common Stock or shares of stock of any class or any
other securities, rights or options, or (b) to effect any reclassification of
its Common Stock (other than a reclassification involving only the subdivision,
or combination, of outstanding shares of Common Stock), or (c) to effect any
capital reorganization, or (d) to effect any Change of Control, or (e) to effect
the liquidation, dissolution or winding up of the Company or (f) to offer to the
holders of its Common Stock the right to have their shares of Common Stock
repurchased or redeemed or otherwise acquired by the Company, or (g) to take any
other action which would require the adjustment of the Warrant Price and/or the
number of Warrant Shares issuable upon exercise of this Warrant, then in each
such case (but without limiting the provisions of Section 5), the Company shall
give to the Holder, a notice of such proposed action, which shall specify the
date on which a record is to be taken for purposes of such dividend,
distribution of offer of rights, or the date on which such reclassification,
reorganization, Change of Control, liquidation, dissolution, or winding up is to
take place and the date of participation therein by the holders of Common Stock,
if any such date is to be fixed and shall also set forth such facts with respect
thereto as shall be reasonably necessary to indicate the effect of such action
on the Common Stock. Such notice shall be so given at least ten (10) Business
Days prior to the record date for determining holders of the Common Stock for
purposes of participating in or voting on such action, or at least ten (10)
Business Days prior to the date of the taking of such proposed action or the
date of participation therein by the holders of Common Stock, whichever shall be
the earlier. Such notice shall
4
specify, in the case of any subscription or repurchase rights, the date on which
the holders of Common Stock shall be entitled thereto, or the date on which the
holders of Common Stock shall be entitled to exchange their Common Stock for
securities or other property deliverable upon any reorganization,
reclassification, Change of Control or other action, as the case may be. Such
notice shall also state whether the action in question or the record date is
subject to the effectiveness of a registration statement under the Act or to a
favorable vote of security holders, if either is required, and the adjustment in
Warrant Price and/or number of Warrant Shares issuable upon exercise of this
Warrant as a result of such reorganization, reclassification, Change of Control
or other action, to the extent then determinable. No such notice shall be given
if the Company reasonably determines that the giving of such notice would
require disclosure of material information which the Company has a bona fide
purpose for preserving as confidential or the disclosure of which would not be
in the best interests of the Company.
Section 4.4. Purchase Entirely for Own Account. The Holder acknowledges
that this Warrant is given to the Holder in reliance upon the Holder's
representation to the Company, which by its acceptance of this Warrant the
Holder hereby confirms, that the Warrant, the Warrant Shares, and the Common
Stock issuable upon conversion of the Warrant Shares (collectively, the
"Securities") being acquired by the Holder are being acquired for investment for
the Holder's own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof, and that the Holder has no present
intention of selling, granting any participation in, or otherwise distributing
the same. By executing this Warrant, the Holder further represents that the
Holder does not presently have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participations to such
person or to any third person, with respect to any of the Securities. The Holder
represents that it has full power and authority to enter into this Warrant. The
Holder has not been formed for the specific purpose of acquiring any of the
Securities.
Section 4.5. Disclosure of Information. The Holder has had an opportunity
to discuss the Company's business, management, financial affairs and the terms
and conditions of the offering of the Securities with the Company's management
and has had an opportunity to review the Company's facilities, and has had an
opportunity to read all of the Company's filings with the Securities and
Exchange Commission.
Section 4.6. Restricted Securities. The Holder understands that the
Securities have not been, and will not be, registered under the Act, by reason
of a specific exemption from the registration provisions of the Act which
depends upon, among other things, the bona fide nature of the investment intent
and the accuracy of the Holder's representations as expressed herein. The Holder
understands that the Securities are "restricted securities" under applicable
U.S. federal and state securities laws and that, pursuant to these laws, the
Holder must hold the Securities indefinitely unless they are registered with the
Securities and Exchange Commission and qualified by state authorities, or an
exemption from such registration and qualification requirements is available.
The Holder further acknowledges that if an exemption from registration or
qualification is available, it may be conditioned on various requirements
including, but not limited to, the time and manner of sale, the holding period
for the Securities, and on requirements relating to the Company which are
outside of the Holder's control, and which the Company is under no obligation
and may not be able to satisfy.
5
Section 4.7. Accredited Investor. The Holder is an accredited investor as
defined in Rule 501(a) of Regulation D promulgated under the Act.
Section 5. Adjustment of Warrant Price.
---------------------------
Section 5.1. Subdivision or Combination of Stock. In case the Company shall
at any time (i) issue a dividend payable in Common Stock or any rights to
subscribe for or to purchase, or any options for the purchase of, Common Stock
or (ii) subdivide its outstanding shares of Common Stock into a greater number
of shares or combine its outstanding shares of Common Stock into a smaller
number of shares, then (x) in the case of a dividend or subdivision, the Warrant
Price in effect immediately prior to such dividend or subdivision shall be
proportionately decreased and the number of shares of Common Stock purchasable
upon the exercise of the Warrant immediately prior to such adjustment shall be
proportionately increased, and (y) in the case of a combination, the Warrant
Price in effect immediately prior to such combination shall be proportionately
increased and the number of shares of Common Stock purchasable upon the exercise
of the Warrant immediately prior to such adjustment shall be proportionately
decreased.
Section 5.2. Reorganization, Reclassification, Consolidation, Merger or
Sale. (a) If any capital reorganization or reclassification of the capital stock
of the Company or any consolidation or merger of the Company with another
corporation, other than a Change of Control, shall be effected in such a way
that holders of Common Stock shall be entitled to receive stock, securities or
assets with respect to or in exchange for Common Stock, then, as a condition of
such reorganization, reclassification, consolidation, exercise, merger or sale,
lawful and adequate provision shall be made whereby the Holder shall thereafter
have the right to receive upon the basis and upon the terms and conditions
specified herein and in lieu of the shares of Common Stock immediately
theretofore receivable upon the exercise of this Warrant, that number of shares
of stock, securities or assets (including cash) as may be issued or payable with
respect to or in exchange for a number of outstanding shares of such Common
Stock equal to the number of Warrant Shares for which this Warrant could have
been exercised immediately prior to such reorganization, reclassification,
consolidation, merger or sale, and in any such case appropriate provision shall
be made with respect to the rights and interests of such Holder to the end that
the provisions hereof shall thereafter be applicable, as nearly as may be, in
relation to any shares of stock, securities or assets (including cash)
thereafter deliverable upon the exercise of this Warrant. The Company will not
effect any such consolidation, merger or sale, unless prior to the consummation
thereof the successor corporation (if other than the Company) resulting from
such consolidation or merger or the corporation purchasing such assets shall
assume, by written instrument executed and mailed or delivered to the Holder at
the last address of such Holder appearing on the books of the Company, the
obligation to deliver to such Holder such shares of stock, securities or assets
(including cash) as, in accordance with the foregoing provisions, the Holder may
be entitled to receive.
Section 5.3. Fractional Shares. The Company shall not issue fractions of
shares of Common Stock upon exercise of this Warrant or scrip in lieu thereof.
If any fraction of a share of Common Stock would, except for the provisions of
this Section 5.3, be issuable upon exercise of this Warrant, the Company shall
in lieu thereof pay to the person entitled thereto an amount in cash equal to
the current value of such fraction, calculated to the nearest one-hundredth
(1/100)
6
of a share, to be computed on the basis of the Market Price for a share of
Common Stock as of the date of exercise.
Section 5.4. Notice of Adjustment. Upon any adjustment of the Warrant
Price, and from time to time upon the request of the Holder the Company shall
furnish to the Holder the Warrant Price resulting from such adjustment or
otherwise in effect and the number of Warrant Shares then available for purchase
under this Warrant, setting forth in reasonable detail the method of calculation
and the facts upon which such calculation is based.
Section 5.5. Certain Events. If any event occurs as to which, in the good
faith judgment of the Board of Directors of the Company the other provisions of
this Section 5 are not strictly applicable or if strictly applicable would not
fairly protect the exercise rights of the Holder in accordance with the
essential intent and principles of such provisions, then the Board of Directors
of the Company in the good faith, reasonable exercise of its business judgment
shall make an adjustment in the application of such provisions, in accordance
with such essential intent and principles so as to protect such exercise rights
as aforesaid.
Section 6. No Rights as a Stockholder; Notice to Holder. Nothing contained
in this Warrant shall be construed as conferring upon the Holder the right to
vote or to consent or to receive notice as a stockholder in respect of any
meeting of stockholders for the election of directors of the Company or any
other matter, or any rights whatsoever as a stockholder of the Company.
Section 7. Replacement of Warrant. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and (in the case of loss, theft or destruction) upon delivery of an
indemnity agreement (with, in the case of a Holder which is not a qualified
institutional buyer within the meaning of Rule 144A under the Act, surety) in an
amount reasonably satisfactory to it, or (in the case of mutilation) upon
surrender and cancellation thereof, the Company will issue, in lieu thereof, a
new Warrant of like tenor.
Section 8. Notices. All notices and other written communications provided
for hereunder shall be given in writing and delivered in person or sent by
overnight delivery service (with charges prepaid) or by facsimile transmission,
if the original of such facsimile transmission is sent by overnight delivery
service (with charges prepaid) by the next succeeding Business Day and (i) if to
the Holder addressed to it at the address or fax number specified for such
Holder in the Warrant Register or at such other address or fax number as the
Holder shall have specified to the Company in writing in accordance with this
Section 8, and (ii) if to the Company, addressed to it at 0 Xxxxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxxxxxxx 00000, Attention General Counsel Fax No: (000) 000-0000
or at such other address or fax number as the Company shall have specified to
the Holder in writing in accordance with this Section 8. Notice given in
accordance with this Section 8 shall be effective upon the earlier of the date
of delivery or the second Business Day at the place of delivery after dispatch.
Section 9. Applicable Law. This Warrant shall be governed by and construed
in accordance with the laws of the State of New York without giving effect to
principles of conflict of laws.
7
Section 10. Warrant Share Legend. Each certificate representing Warrant
Shares, until such Warrant Shares have been distributed pursuant to a
registration statement effective under the Act or sold to the public through a
broker, dealer or market maker in compliance with Rule 144 under the Act (or any
similar rule then in force) shall bear one or all of the following legends:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT
WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH
SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933."
Any legend required by the Blue Sky laws of any state to the extent such
laws are applicable to the shares represented by the certificate so legended.
Section 11. Captions. The captions of the Sections and subsections of this
Warrant have been inserted for convenience only and shall have no substantive
effect.
Section 12. Amendment or Waiver. Any term of the Warrants may be amended or
waived only by an instrument in writing signed by the Company and a Holder
Majority, and any such amendment or waiver (and any other action taken or
decision made by a Holder Majority) shall be binding upon all Holders.
8
IN WITNESS WHEREOF, the undersigned have executed this Warrant as of the
15th day of March, 2004.
SCANSOFT, INC.
By: /s/ Xxxx Xxxxx
--------------
Name: Xxxx Xxxxx
Title: Chief Executive Officer
Warburg Pincus Germany Private Equity
VIII, K.G.
By: WARBURG PINCUS & CO.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Partner
[To be signed only upon exercise of Warrant]
TO SCANSOFT, INC.:
The undersigned, the holder of the within Warrant (the "Holder"), hereby
irrevocably elects to exercise the purchase right represented by such Warrant
for, and to purchase thereunder, ____ shares of Common Stock of Scansoft, Inc.
and herewith [makes payment of $____ therefor in full payment of the Exercise
Payment][tenders securities having a Market Price of $_____ in full payment of
the Exercise Payment] or [elects to receive a payment equal to the difference
between (i) the Market Price (as defined in the Warrant) multiplied by ________
(the number of Warrant Shares as to which the payment is being elected) and (ii)
___________, which is the exercise price with respect to such Warrant Shares, in
full payment of the Exercise Payment, payable by the Company to the Holder only
in shares of Common Stock valued at the Market Price in accordance with the
terms of the Warrant], and requests that the certificates for such shares be
issued in the name of, and be delivered to _____, whose address is __________.
Dated:
-----------------------------
-----------------------------
(Signature must conform in all respects to name of Holder as specified on the
face of the Warrant)
-----------------------------
Address
[To be signed only upon transfer of Warrant]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _______________ the right represented by the within Warrant to purchase
____ shares of the Common Stock of Scansoft, Inc. to which the within Warrant
relates, and appoints ________ attorney to transfer said right on the books of
Scansoft, Inc. with full power of substitution in the premises.
Dated:
-----------------------------
(Signature must conform in all respects to name of Holder as specified on the
face of the Warrant)
-----------------------------
Address
In the presence of:
-----------------------------
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