EXHIBIT 4.1
EXECUTION VERSION
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT, dated March 19, 2004 (this "Agreement"), by
and among Xerox Imaging Systems, Inc., a Delaware corporation (the "Seller"),
and 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. (collectively, the
"Purchasers"), and, solely for purposes of Sections 5 and 6 of this Agreement,
ScanSoft, Inc., a Delaware corporation (the "Company").
WHEREAS, the Seller owns of record and beneficially 11,853,602 shares (the
"Common Shares") of the common stock, par value $.001 per share (the "Common
Stock"), of the Company; 3,562,238 shares (the "Preferred Shares") of the Series
B Preferred Stock, par value $.001 per share (the "Preferred Stock"), of the
Company; and a Common Stock Purchase Warrant (the "Warrant") issued by the
Company under its former name, Visioneer, Inc., on March 2, 1999; and
WHEREAS, the Seller desires to sell, transfer, assign and convey to the
Purchasers, and the Purchasers desire to purchase from the Seller, upon the
terms and subject to the conditions set forth herein, the Common Shares, the
Preferred Shares and the Warrant, together with such additional securities,
property or payments which accrue, are paid or payable on, or received or
receivable with respect to the Common Shares, the Preferred Shares and the
Warrant from and including the date hereof until the Closing Date (collectively,
the "Securities");
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the parties hereto hereby agree as follows:
1. PURCHASE AND SALE OF SECURITIES
Upon the terms and subject to the conditions set forth herein, on the
Closing Date (as defined in Section 2(a) below), the Seller shall sell,
transfer, assign and convey the Securities to the Purchasers, and the Purchasers
shall purchase the Securities from the Seller, in the amounts set forth on
Schedule I hereto, for an aggregate cash purchase price of $79,387,163.48 (the
"Purchase Price"). The obligations of the Purchasers hereunder shall be joint
and several.
2. CLOSING; CONDITIONS
(a) Closing. Subject to Section 8(a), the closing of the purchase and
sale of the Securities (the "Closing") shall take place at the offices of
Xxxxxxx Xxxx & Xxxxxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as
soon as practicable after the conditions described in Section 2(c) and (d) are
satisfied (or waived by the parties entitled to waive them), or at such other
time or place as may be mutually agreed to by the parties hereto. The actual
date on which the Closing shall occur is herein referred to as the "Closing
Date."
(b) At the Closing, such sale and purchase shall be effected by the
Seller's delivering to the Purchasers the original Warrant and duly executed
certificates or other instruments evidencing the other Securities to be
purchased, in each case with appropriate instruments of transfer attached (duly
endorsed or otherwise in form sufficient for transfer), against delivery by the
Purchasers to the Seller of the Purchase Price. All such certificates and other
instruments
shall be satisfactory to counsel to the Purchaser. Subject to Section 9(e), the
Purchase Price shall be paid by wire transfer of immediately available funds to
such account or accounts as the Seller shall designate in writing no later than
the close of business on the second business day immediately preceding the
Closing Date.
(c) Conditions to the Purchasers' Obligations. The obligations of the
Purchasers to purchase the Securities and to pay the Purchase Price are subject
to the satisfaction prior to or at the Closing (or the waiver of same by the
Purchasers) of each of the following conditions precedent:
(i) Each of the representations and warranties made by the Seller
in Section 3 shall have been true and correct in all material respects
when made and at the Closing Date as though each such representation and
warranty were made on and as of the Closing Date immediately prior to the
Closing.
(ii) The Seller shall have performed and complied in all material
respects with all agreements, obligations and conditions required by this
Agreement to be performed or complied with by it at or prior to the
Closing.
(iii) The Seller shall have delivered to the Purchasers a
certificate dated the Closing Date and signed by one of its duly
authorized officers confirming the matters referred to in subsections (i)
and (ii) of this Section 2(c).
(iv) In addition to the deliveries required by Section 2(b) above,
the Seller shall have delivered to the Purchasers an instrument of
assignment of the Warrant, which instrument shall be reasonably
satisfactory to counsel to the Purchasers and which shall contain the
Company's affirmation of its acknowledgment and agreement (as set forth in
Section 6(a)(ix)) to (A) the assignment of the Warrant and (B) treat the
Purchasers as the holders of the Warrant so as to purchase such number of
shares of Common Stock underlying the Warrant (as equitably adjusted from
time to time in the event of any stock dividend, stock split,
recapitalization, reclassification, recombination or the like) set forth
opposite their respective names on Schedule I hereto for all purposes
thereunder (notwithstanding any provision in the Warrant, including but
not limited to Sections 5 and 9.2 thereof, to the contrary).
(v) No temporary restraining order, preliminary or permanent
injunction or other order issued by a court of competent jurisdiction or
other legal restraint or legal prohibition preventing the consummation of
the Closing shall be in effect.
(vi) The waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 0000 (xxx "XXX Xxx") applicable to the transactions
contemplated hereby shall have expired or been terminated.
(d) Conditions to the Seller's Obligations. The obligations of the
Seller to sell, transfer, assign and convey the Securities to the Purchasers are
subject to the satisfaction prior to or at the Closing (or the waiver of same by
the Seller) of each of the following conditions precedent:
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(i) Each of the representations and warranties made by the
Purchasers in Section 4 shall have been true and correct in all material
respects when made and at the Closing Date as though each such
representation and warranty were made on and as of the Closing Date
immediately prior to the Closing.
(ii) The Purchasers shall have performed and complied in all
material respects with all agreements, obligations and conditions required
by this Agreement to be performed or complied with by them at or prior to
the Closing.
(iii) The Purchasers shall have delivered to the Seller a
certificate dated the Closing Date and signed by their duly authorized
officers confirming the matters referred to in subsections (i) and (ii) of
this Section 2(d).
(iv) No temporary restraining order, preliminary or permanent
injunction or other order issued by a court of competent jurisdiction or
other legal restraint or legal prohibition preventing the consummation of
the Closing shall be in effect.
(v) The waiting period under the HSR Act applicable to the
transactions contemplated hereby shall have expired or been terminated.
3. REPRESENTATIONS AND WARRANTIES AND COVENANTS OF THE SELLER
The Seller represents and warrants to, and covenants with, the Purchasers
and, with respect to Section 3(f), the Company that:
(a) The Seller is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
(b) The Seller has full legal right, power and authority to execute,
deliver, and perform its obligations under this Agreement in accordance with
their terms, and the execution, delivery and performance of this Agreement by
the Seller and the consummation by the Seller of the transactions contemplated
hereby have been duly authorized by all necessary action on behalf of the
Seller. This Agreement has been duly executed and delivered by the Seller and
constitutes a legally valid and binding agreement of the Seller, enforceable
against the Seller in accordance with its terms.
(c) The Seller has good and marketable title to the Securities, and the
Securities are owned by the Seller free and clear of any security interest,
lien, claim or other encumbrance or any restriction on transfer or voting
(collectively, "Encumbrances"). Upon delivery of the Securities to the
Purchasers at the Closing, against payment therefor as contemplated hereby, the
Seller will deliver the Securities to the Purchasers free and clear of any
Encumbrance.
(d) No consent, approval, authorization or order or permit of any court,
governmental agency or body or arbitrator having jurisdiction over the Seller is
required for the execution, delivery or performance by the Seller of its
obligations hereunder including, without limitation, the sale, transfer,
assignment and conveyance of the Securities.
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(e) Neither execution and delivery of this Agreement nor the sale of the
Securities nor the performance of the Seller's other obligations hereunder will
violate, conflict with, result in a breach of, or constitute a default (or an
event that, with the giving of notice or the lapse of time, or both, would
constitute a default) under (i) the certificate of incorporation, bylaws or
other organizational documents of the Seller, or (ii) any decree, judgment,
order, law, rule, regulation or determination of any court, governmental agency
or body or arbitrator having jurisdiction over the Seller or any of its assets
or properties.
(f) The Seller acknowledges that the Purchasers may be in possession of
material non-public information not known to it (the "Excluded Information") and
further acknowledges that the Purchasers and the Company (under appropriate
nondisclosure agreement) have offered to share with the Seller any Excluded
Information that may exist. The Seller agrees that neither the Purchasers nor
the Company shall have any liability with respect to any such non-disclosure.
The Seller hereby waives any and all claims and causes of action now or
hereafter arising against the Purchasers and/or the Company based upon or
relating to such non-disclosure and further covenants not to xxx either the
Purchasers or the Company or any of their respective partners, directors,
officers, employees, agents or affiliates for any loss, damage or liability
arising from or relating to such non-disclosure. It is understood and agreed
that the Purchasers make no representation or warranty whatsoever with respect
to the business, condition (financial or otherwise), properties, prospects,
creditworthiness, status or affairs of the Company, or with respect to the value
of the Securities.
(g) There is no investment banker, broker, finder or other intermediary
who might be entitled to any fee or commission upon consummation of the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of the Seller.
4. REPRESENTATIONS AND WARRANTIES AND COVENANTS OF THE PURCHASERS
The Purchasers represent and warrant to, and covenant with, the Seller
and, with respect to Section 4(e), the Company that:
(a) Each of the Purchasers is duly formed, validly existing and in good
standing under the laws of its jurisdiction of organization.
(b) Each of the Purchasers has full legal right, power and authority to
execute, deliver, and perform its obligations under this Agreement in accordance
with their terms, and the execution, delivery and performance of this Agreement
by the Purchasers and the consummation by the Purchasers of the transactions
contemplated hereby have been duly authorized by all necessary action on behalf
of the Purchasers. This Agreement has been duly executed and delivered by the
Purchasers and constitutes a legally valid and binding agreement of the
Purchasers, enforceable against the Purchasers in accordance with its terms.
(c) No consent, approval, authorization or order or permit of any court,
governmental agency or body or arbitrator having jurisdiction over the
Purchasers is required for the execution, delivery or performance by the
Purchasers of their obligations hereunder, including without limitation the
purchase of the Securities.
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(d) Neither execution and delivery of this Agreement nor the acquisition
of the Securities or the performance of the Purchasers' other obligations
hereunder will violate, conflict with, result in a breach of, or constitute a
default (or an event that, with the giving of notice or the lapse of time, or
both, would constitute a default) under (i) the organizational documents of the
Purchasers, or (ii) any decree, judgment, order, law, rule, regulation or
determination of any court, governmental agency or body or arbitrator having
jurisdiction over the Purchasers or any of their assets or properties.
(e) The Purchasers acknowledge that the Seller has not provided
Purchasers with any information regarding the Company. The Purchasers agree that
neither the Seller nor the Company shall have any liability with respect to any
such non-disclosure. The Purchasers hereby waive any and all claims and causes
of action now or hereafter arising against the Seller and/or the Company based
upon or relating to such non-disclosure and further covenants not to xxx either
the Company or the Seller or any of their respective partners, directors,
officers, employees, agents or affiliates for any loss, damage or liability
arising from or relating to such non-disclosure. It is understood and agreed
that the Seller makes no representation or warranty whatsoever with respect to
the business, condition (financial or otherwise), properties, prospects,
creditworthiness, status or affairs of the Company, or with respect to the value
of the Securities.
(f) To the best of the Purchasers' knowledge, none of the Purchasers or
any of their affiliates owns a material amount of the voting securities of any
business entity that sells products that compete with the Company's products.
(g) There is no investment banker, broker, finder or other intermediary
who might be entitled to any fee or commission upon consummation of the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of the Purchasers.
5. ADDITIONAL COVENANTS OF THE PARTIES
(a) Further Assurances. From and after the date hereof, the each party
hereto (including the Company) shall execute all certificates, instruments,
documents or agreements and shall take any other action which it is reasonably
requested to execute or take by any other party hereto to further effectuate the
respective rights and obligations of the parties hereto under, and as
contemplated by, this Agreement.
(b) Commercially Reasonable Efforts. Each of the parties hereto
(including the Company) will use commercially reasonable efforts to take, or
cause to be taken, all action, and to do, or cause to be done, all things
necessary, proper or advisable consistent with applicable law to consummate and
make effective in the most expeditious manner practicable the transactions
contemplated hereby, including without limitation, making all required
regulatory filings as promptly as practicable after the date hereof. Without
limiting the generality of the foregoing, Purchasers and the Company will each,
as promptly as practicable following the execution and delivery of this
Agreement, file with the United States Federal Trade Commission (the "FTC") and
the United States Department of Justice (the "DOJ") the notification and report
form required pursuant to the HSR Act for the transactions contemplated hereby,
and will provide promptly upon request of the FTC or the DOJ or any other
Governmental Authority any supplemental information requested in connection
therewith. Purchasers and the Company will
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use commercially reasonable efforts to obtain early termination of the waiting
period under the HSR Act. Purchasers and the Company shall furnish to the each
other such necessary information and reasonable assistance as the the other may
request in connection with its preparation of any filing or submission which is
necessary under the HSR Act or other applicable Law. Purchasers shall keep
Seller apprised of the status of any communications with, and inquiries or
requests for additional information from, the FTC and the DOJ or any other
Governmental Authority and shall comply promptly with any such inquiry or
request. In connection with the foregoing, Purchasers and the Company shall use
their respective reasonable commercial efforts to resolve objections, if any, as
may be asserted with respect to the transactions contemplated hereby under any
antitrust or trade or regulatory Laws of any Governmental Authority. In
complying with the foregoing, Purchasers and the Company shall use all
reasonable commercial measures available to consummate the transactions
contemplated hereby. Notwithstanding the foregoing or any other covenant or
agreement herein contained, in connection with the receipt of any necessary
approvals under the HSR Act or otherwise in respect of the transactions
contemplated hereby, neither any party hereto nor any of its respective
affiliates shall be required to: (i) divest or hold separate or otherwise take
or commit to take any action that limits such party's or affiliate's freedom of
action with respect to, or its ability to retain, administer or operate, any of
its assets, properties or business; or (ii) commence any litigation against any
person or entity in order to facilitate the consummation of any of the
transactions contemplated hereby.
6. COMPANY MATTERS
(a) The Company hereby represents and warrants to, and covenants with,
the Purchasers and the Seller that:
(i) the Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(ii) the Company has full legal right, power and authority to
execute, deliver, and perform its obligations under this Agreement in
accordance with their terms, and the execution, delivery and performance
of its obligations under this Agreement by the Company have been duly
authorized by all necessary action on behalf of the Company;
(iii) this Agreement has been duly executed and delivered by the
Company and constitutes a legally valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms;
(iv) no consent, approval, authorization or order or permit of any
court, governmental agency or body or arbitrator having jurisdiction over
the Company is required for the execution, delivery or performance by the
Company of its obligations hereunder, except for any such consents,
approvals, authorizations, orders or permits which the failure to obtain
would not have or is not reasonably likely to have a material adverse
effect on the Company;
(v) neither the execution and delivery of this Agreement by the
Company nor the performance of the Company's obligations hereunder will
violate, conflict with, result
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in a breach of, or constitute a default (or an event that, with the giving
of notice or the lapse of time, or both, would constitute a default) under
(A) the certificate of incorporation, bylaws or other organizational
documents of the Company, or (B) any decree, judgment, order, law, rule,
regulation or determination of any court, governmental agency or body or
arbitrator having jurisdiction over the Company or any of its assets or
properties, except for such violations, conflicts, breaches or defaults
that would not have or are not reasonably likely to have a material
adverse effect on the Company;
(vi) as of the date hereof, the Warrant is exercisable for 525,732
shares of Common Stock (the "Warrant Shares");
(vii) the per share exercise price for each of the Warrant Shares
is $0.61, for an aggregate exercise price for the Warrant Shares of
$320,696.48;
(viii) the Board of Directors of the Company has heretofore taken
all necessary action to approve, and has approved, for purposes of Section
203 of the Delaware General Corporation Law (including any successor
statute thereto "Section 203") the Purchasers' becoming, together with
their affiliates and associates, an "interested stockholder" within the
meaning of Section 203 by virtue of the execution, delivery and
performance of this Agreement, such that, as of the date hereof and from
and after the Closing, Section 203 will not be applicable to any "business
combination" within the meaning of Section 203 that may take place between
one or more of the Purchasers and/or their respective affiliates and
associates, on the one hand, and the Company, on the other, as a result of
the transactions contemplated by this Agreement or otherwise;
(ix) the Company hereby acknowledges and agrees to the assignment
of the Warrant to the Purchasers as contemplated by this Agreement and,
upon the effectuation of such assignment, the Company shall treat the
Purchasers as the holders of the Warrant so as to purchase such number of
shares of Common Stock underlying the Warrant (as equitably adjusted from
time to time in the event of any stock dividend, stock split,
recapitalization, reclassification, recombination or the like) set forth
opposite their respective names on Schedule I hereto for all purposes
thereunder (notwithstanding any provision in the Warrant, including but
not limited to Sections 5 and 9.2 thereof, to the contrary);
(x) the Company hereby acknowledges and agrees that this
Agreement is the Securities Purchase Agreement by and among the Company,
Seller and the Purchasers described in Section 1 of each of the warrants
(the "Purchaser Warrants"), numbers W-16, W-17, W-18 and W-19, each dated
as of March 15, 2004, issued by the Company to the Purchasers;
(xi) as of the time that the Purchaser Warrants were issued to the
Purchasers, (A) the Company had full legal right, power and authority to
execute, deliver and perform its obligations under the Purchaser Warrants
in accordance with their respective terms, (B) the execution, delivery and
performance of its obligations under the Purchaser Warrants by the Company
were duly authorized by all necessary action on behalf of the
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Company and (C) no consent, approval, authorization or order or permit of
any court, governmental agency or body or arbitrator having jurisdiction
over the Company was required for the execution, delivery or performance
by the Company of its obligations under the Purchaser Warrants;
(xii) the Purchaser Warrants have been duly executed and delivered
by the Company and constitute legally valid and binding agreements of the
Company, enforceable against the Company in accordance with their
respective terms; and
(xiii) neither the execution and delivery of the Purchaser Warrants
by the Company nor the performance of the Company's obligations thereunder
violate or will violate, conflict or will conflict with, resulted or will
result in a breach of, or constituted or will constitute a default (or an
event that, with the giving of notice or the lapse of time, or both,
constituted or would constitute a default) under (1) the certificate of
incorporation, bylaws or other organizational documents of the Company, or
(2) any decree, judgment, order, law, rule, regulation or determination of
any court, governmental agency or body or arbitrator having jurisdiction
over the Company or any of its assets or properties.
(b) The Company acknowledges the receipt of adequate consideration for
the performance of its obligations under this Agreement.
7. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The respective agreements, representations, warranties, covenants and
other statements made by or on behalf each party hereto pursuant to this
Agreement shall remain in full force and effect, regardless of any investigation
made by or on behalf of any party, and shall survive delivery of and payment for
the Securities.
8. TERMINATION
(a) This Agreement may be terminated at any time prior to the Closing:
(i) by the Purchasers, by notice to the Seller, if the Seller has
materially breached any of its agreements or obligations hereunder or if
any of the representations and warranties of the Seller was not true and
correct in all material respects when made;
(ii) by the Seller, by notice to the Purchasers, if the Purchasers
have materially breached any of their agreements or obligations hereunder
or if any of the representations and warranties of the Purchasers was not
true and correct in all material respects when made;
(iii) by either the Seller or the Purchasers, if the FTC or the DOJ
issues to any Purchaser a request for additional information or
documentary material pursuant to Section 7A(e) of the Xxxxxxx Act (15
U.S.C. Section 18a(e)); or
(iv) by either the Seller or the Purchasers, by notice to the
other, if the Closing shall not have occurred by April 30, 2004;
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provided that no party who has materially breached any of its covenants, or any
of whose representations and warranties was not true and correct when made,
shall be permitted to terminate this Agreement pursuant to this Section 8(a).
(b) In the event of the termination of this Agreement pursuant to
Section 8(a) above, this Agreement shall thereafter cease to be of any force or
effect; provided that such termination shall not relieve a party from liability
for any breach of this Agreement.
9. GENERAL PROVISIONS
(a) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed entirely within such State.
(b) Jurisdiction; Service of Process; No Jury Trial. With respect to any
claim arising out of this Agreement, the Seller and the Purchasers each
irrevocably submit to the exclusive jurisdiction of the courts of the State of
New York and the United States District Court located in the Borough of
Manhattan in New York City and agree that any disputes that may arise out of
this Agreement shall be litigated in such courts. The Seller and the Purchasers
each irrevocably waive any objection which they may have at any time to the
laying of venue of any suit, action or proceeding arising out of or relating to
this Agreement brought in any such court, irrevocably waive any claim that any
such suit, action or proceeding brought in any such court has been brought in an
inconvenient forum and further irrevocably waive the right to object, with
respect to any such suit, action or proceeding brought in any such court, that
such court does not have jurisdiction over such party. The Seller and the
Purchasers agree that service of process upon them in any such suit, action or
proceeding shall be deemed in every respect effective service of process upon
them if given in the manner set forth in Section 8(d). The Seller and the
Purchasers waive the right to a trial by jury in connection with any dispute
arising out of this Agreement.
(c) Interpretation. The headings of the sections and subsections of this
Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any
provisions of this Agreement.
(d) Notices. All communications under this Agreement shall be in writing
and shall be delivered by hand or facsimile or mailed by overnight courier or by
registered or certified mail, postage prepaid, as follows:
(i) if to the Purchasers:
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Warburg Pincus Private Equity VIII, X.X.
Xxxxxxx Xxxxxx Netherlands Private Equity VIII I X.X.
Xxxxxxx Xxxxxx Netherlands Private Equity VIII II X.X.
Xxxxxxx Xxxxxx Germany Private Equity VIII K.G.
c/o Warburg Pincus LLC
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Fax No. 000-000-0000
with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Fax No. 000-000-0000
(ii) if to the Seller:
Xerox Imaging Services, Inc.
c/o Xerox Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Chief Financial Officer
Fax No. 000-000-0000
with a copy to:
Xerox Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
Fax No. 000-000-0000
(iii) if to the Company:
ScanSoft, Inc.
0 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
Fax No. 000-000-0000
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with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx,
Xxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Fax No. 000-000-0000
Any party hereto may from time to time change its address or fax number for
notices under this Section 8(d) by giving notice of such changed address to the
other parties hereto. Any notice addressed in accordance with this Section 8(d)
shall be deemed to be given: if delivered by hand or facsimile, on the date of
such delivery; if mailed by courier, on the first business day following the
date of such mailing; and if mailed by registered or certified mail, on the
third business day after the date of such mailing.
(e) Expenses and Taxes. All fees, costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such fees, costs or expenses, provided that the
Seller shall reimburse the Purchasers for $22,500 of the total HSR Act filing
fee, and the Purchasers shall be entitled to retain $22,500 of the Purchase
Price in satisfaction of such reimbursement. The Purchasers will pay, and hold
the Seller harmless from any and all liabilities (including interest and
penalties) with respect to, or resulting from any delay or failure in paying,
stamp and other taxes (other than income taxes), if any, which may be payable or
determined to be payable on the execution and delivery of this Agreement.
(f) Publicity. Between the date hereof and the Closing Date, the parties
agree to consult with each other to coordinate the issuance of any press release
or similar public announcement or communication relating to the execution or
performance of this Agreement or to the transactions contemplated hereby.
(g) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties.
(h) Entire Agreement; Amendment. This Agreement constitutes the entire
understanding of the parties hereto and supersedes all prior understandings
among such parties, provided that nothing contained herein shall be deemed to
alter or modify the rights and obligations of the Company and the Purchasers
under the Purchaser Warrants. This Agreement may be amended with (and only with)
the written consent of the Seller and the Purchasers.
(i) Severability. If any term or provision of this Agreement or the
application of any such term or provision to any person or circumstance shall be
held invalid, illegal, void or unenforceable in any respect by a court of
competent jurisdiction, the remaining terms and provisions of this Agreement
shall remain in full force and effect, unless such invalidity, illegality,
voidness or unenforceability would substantially impair the benefits of such
remaining provisions of any party hereto.
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(j) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
duly executed as of the date first written above.
SELLER
XEROX IMAGING SYSTEMS, INC.
By: /s/ Xxxxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Vice President
PURCHASERS
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
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
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
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
COMPANY
SCANSOFT, INC.
By: /s/ Xxxx X. Xxxxx
------------------------------
Name: Xxxx X. Xxxxx
Title: Chief Executive Office and
Chairman of the Board
SCHEDULE I
Number of Number of Number of
Purchaser Common Shares Preferred Shares Warrant Shares
--------- ------------- ---------------- --------------
Warburg Pincus Private Equity VIII, L.P. 11,487,326 3,452,165 509,487
Warburg Pincus Netherlands Private Equity VIII I C.V 195,347 58,706 8,664
Warburg Pincus Netherlands Private Equity VIII II C.V 137,620 41,357 6,104
Warburg Pincus Germany Private Equity VIII K.G 33,309 10,010 1,477
---------- --------- -------
TOTALS 11,853,602 3,562,238 525,732
