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EXHIBIT 4.3
Amendment No. 2 to
PREFERRED SHARES RIGHTS AGREEMENT
dated as of October 23, 1996, as amended
This Amendment No. 2 (this "Amendment") to PREFERRED SHARES RIGHTS
AGREEMENT dated as of October 23, 1996, as amended (the "Rights Agreement") is
executed by ScanSoft, Inc. (the "Company") and U.S. Stock Transfer Corporation
("Rights Agent") and is effective as of the 27th day of January 2000.
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 Caere
Corporation nor any of its Affiliates nor any Affiliates of the
Company set forth on
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Schedule 1 hereto (collectively, the "Approved Persons") shall be
considered an "Acquiring Person" in the event such Approved Person
became or shall become the Beneficial Owner of Common Stock of the
Company pursuant to and not in contravention of (i) that certain
Agreement and Plan of Merger between ScanSoft, Inc. and Visioneer,
Inc. dated as of December 2, 1998 or (ii) that certain Agreement and
Plan of Reorganization dated as of January 15, 2000 by and among
ScanSoft, Inc., Scorpion Acquisitions Corporation and Caere
Corporation (together, the "Merger Agreements").
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
became or shall become the Beneficial Owner of Common Stock of the
Company pursuant to and not in contravention of the Merger Agreements.
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;
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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 occur in the event that
any Approved Person became or shall become the Beneficial Owner of
Common Stock of the Company pursuant to and not in contravention of
the Merger Agreements.
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.
ScanSoft, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: President & CEO
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U.S. Stock Transfer Corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Assistant Vice President
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Schedule 1
Xerox Corporation and its affiliates
Caere Corporation and its affiliates
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