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EXHIBIT 4.6
Amendment No. 1
to
PREFERRED SHARES RIGHTS AGREEMENT
dated as of October 23, 1996
This Amendment No. 1 (this "Amendment") to PREFERRED SHARES RIGHTS
AGREEMENT dated as of October 23, 1996 (the "Rights Agreement") is executed by
Visioneer, Inc. (the "Company") and U.S. Stock Transfer Corporation ("Rights
Agent") and is effective as of the 2nd day of December 1998.
The parties hereto agree as follows:
1. Definitions. Unless specifically designated otherwise, capitalized
terms used herein shall have the same meanings given them in the Rights
Agreement.
2. Amendment. Section 1(a) of the Rights Agreement shall be amended and
restated in its entirety to read as follows:
"(a) "Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall be the
Beneficial Owner of 20% or more of the Common Shares then outstanding,
but shall not include the Company, any Subsidiary of the Company or any
employee benefit plan of the Company or of any Subsidiary of the
Company, or any entity holding Common Shares for or pursuant to the
terms of any such plan. Notwithstanding the foregoing, no Person shall
be deemed to be an Acquiring Person either (i) as the result of an
acquisition of Common Shares by the Company which, by reducing the
number of shares outstanding, increases the proportionate number of
shares beneficially owned by such Person to 20% or more of the Common
Shares of the Company then outstanding; provided, however, that if a
Person shall become the Beneficial Owner of 20% or more of the Common
Shares of the Company then outstanding by reason of share purchases by
the Company and shall, after such share purchases by the Company, become
the Beneficial Owner of any additional Common Shares of the Company,
then such Person shall be deemed to be an Acquiring Person, or (ii) if
within eight days after such Person would otherwise become an Acquiring
Person (but for the operation of this clause (ii)), such Person notifies
the Board of Directors that such Person did so inadvertently and within
two days after such notification, such Person is the Beneficial Owner of
less than 20% of the outstanding Common Shares. Notwithstanding the
foregoing, neither ScanSoft, Inc. ("ScanSoft") nor any of its Affiliates
set forth on Schedule 1 hereto
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(collectively, the "Approved Persons") shall be considered an "Acquiring
Person" in the event such Approved Person shall become the Beneficial
Owner of Common Stock of the Company pursuant to and not in
contravention of that certain Agreement and Plan of Merger between
ScanSoft, Inc. and Visioneer, Inc. dated as of December 2, 1998 (the
"ScanSoft Merger Agreement").
Section 1(h) of the Rights Agreement shall be amended and restated in
its entirety to read as follows:
"(h) "Distribution Date" shall mean the earlier of (i) the Close
of Business on the tenth day (or such later date as may be determined by
action of a majority of Continuing Directors then in office) after the
Shares Acquisition Date (or, if the tenth day after the Shares
Acquisition Date occurs before the Record Date, the Close of Business on
the Record Date) or (ii) the Close of Business on the tenth day (or such
later date as may be determined by action of a majority of Continuing
Directors then in office) after the date that a tender or exchange offer
by any Person (other than the Company, any Subsidiary of the Company,
any employee benefit plan of the Company or of any Subsidiary of the
Company, or any Person or entity organized, appointed or established by
the Company for or pursuant to the terms of any such plan) is first
published or sent or given within the meaning of Rule 14d-2(a) of the
General Rules and Regulations under the Exchange Act, if, assuming the
successful consummation thereof, such Person would be the Beneficial
Owner of 20% or more of the shares of Common Stock then outstanding.
Notwithstanding the foregoing, no Distribution Date shall occur in the
event that any Approved Person shall become the Beneficial Owner of
Common Stock of the Company pursuant to and not in contravention of the
ScanSoft Merger Agreement.
Section 1(u) of the Rights Agreement shall be amended and restated in
its entirety to read as follows:
"(u) "Shares Acquisition Date" shall mean the first date of
public announcement (which, for purposes of this definition, shall
include, without limitation, a report filed pursuant to Section 13(d)
under the Exchange Act) by the Company or an Acquiring Person that an
Acquiring Person has become such; provided that, if such Person is
determined not to have become an Acquiring Person pursuant to Section
l(a)(ii) hereof, then no Shares Acquisition Date shall be deemed to have
occurred. Notwithstanding the foregoing, no Shares Acquisition Date
shall
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occur in the event that any Approved Person shall become the Beneficial
Owner of Common Stock of the Company pursuant to and not in
contravention of the ScanSoft Merger Agreement.
3. Effect of Amendment. Except as specifically set forth herein, the
terms and conditions contained in the Rights Agreement shall continue in full
force and effect.
4. Miscellaneous.
4.1 Governing Law. This Amendment shall be governed by and
construed under the laws of the State of Delaware in the United States of
America as applied to agreements among Delaware residents entered into and to be
performed entirely within such state.
4.2 Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4.4 Severability. If one or more provisions of this Amendment are
held to be unenforceable under applicable law, portions of such provisions, or
such provisions in their entirety, to the extent necessary, shall be severed
from this Amendment, and the balance of this Amendment shall be enforceable in
accordance with its terms.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
Visioneer, Inc.
By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇
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Name: J. ▇▇▇▇▇ ▇▇▇▇▇
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Title: President and Chief Executive Officer
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U.S. Stock Transfer Corporation
By: /s/ ▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇
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Title: Asst. V.P.
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Schedule 1
Xerox Corporation and its affiliates
ScanSoft, Inc. and its affiliates
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