EXHIBIT 10.3
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"). ANY TRANSFER OF SUCH SECURITIES SHALL BE
INVALID UNLESS A REGISTRATION STATEMENT UNDER THE ACT IS IN EFFECT AS TO SUCH
TRANSFER OR, IN THE OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY SUCH
REGISTRATION IS UNNECESSARY FOR SUCH TRANSFER TO COMPLY WITH THE ACT.
THIS WARRANT AND THE SHARES PURCHASABLE HEREUNDER ARE SUBJECT TO RESTRICTIONS ON
TRANSFER AS SET FORTH HEREIN.
WARRANT TO PURCHASE COMMON STOCK
OF
SCANSOFT, INC.
VOID AFTER June ___, 2011.
This Warrant is issued to Evercore Investments LLC, a Delaware Limited
Liability Company ("Evercore"), or its registered assigns ("Holder") by
ScanSoft, Inc., a Delaware corporation (the "Company"), on [________], 2003 (the
"Warrant Issue Date"). This Warrant is issued in connection with that certain
Agreement and Plan of reorganization by and among ScanSoft, Inc., Spiderman
Acquisition Corporation and SpeechWorks International, Inc. dated as of April
23, 2003 (the "Merger Agreement").
1. Purchase Shares. Subject to the terms and conditions hereinafter set
forth, the Holder is entitled, upon surrender of this Warrant at the principal
office of the Company (or at such other place as the Company shall notify the
holder hereof in writing), to purchase from the Company up to One Hundred and
Fifty Thousand (150,000) fully paid and non-assessable shares of Common Stock of
the Company, as constituted on the Warrant Issue Date (the "Common Stock"). The
number of shares of Common Stock issuable pursuant to this Section 1 (the
"Shares") shall be subject to adjustment pursuant to Section 7 hereof.
2. Exercise Price. The price per share for the Shares shall be the
average closing sale price of one share of ScanSoft Common Stock as reported on
the Nasdaq National Market System for the five (5) consecutive trading days
commencing on two (2) trading days immediately preceding the Closing Date and
ending on two (2) trading days immediately following the Closing Date, as
adjusted from time to time pursuant to Section 7 hereof (the "Exercise Price").
"Closing Date" shall have the meaning ascribed to it in the Merger Agreement.
3. Exercise of Warrant, Reservation of Shares. Subject to the terms and
conditions hereof, this Warrant shall be exercisable, in whole or in part,
during the term commencing on [_________], 2006 and ending at 5:00 p.m. EST on
[________], 2011, at which time this Warrant will expire and become void (the
"Expiration Date"). If the Expiration Date is a day on which federal or state
chartered bank institutions located in the State of Massachusetts are authorized
by law to close, then the Expiration Date shall be the next succeeding day which
shall not be such a day.
4. Method of Exercise. While this Warrant remains outstanding and
exercisable in accordance with Section 3 above, the Holder may exercise, in
whole or in part, the purchase rights evidenced hereby. Such exercise shall be
effected by:
(a) the surrender of the Warrant, together with a duly executed copy
of the form of Notice of Election attached hereto, to the President of the
Company at its principal offices.
(b) the payment to the Company of an amount equal to the aggregate
Exercise Price for the number of Shares being purchased.
(c) in lieu of payment of the Exercise Price in cash, at the option
of the Holder, the Holder may elect that the Company reduce the number of shares
of Common Stock to be delivered to such Holder upon exercise of the Warrants
then being exercised so that the Holder receives a number of shares of Common
Stock equal to the product of (1) the number of shares of Common Stock for which
such Warrant would otherwise then be nominally exercised if payment of the
Exercise Price as of the date of exercise were being made in cash and (2) the
Cashless Exercise Ratio. An exercise of a Warrant in accordance with this clause
(b) is herein called a "Cashless Exercise". The Holder may use the Cashless
Exercise option whether or not this Warrant is being exercised in full or in
part. "Cashless Exercise Ratio" means a fraction, the numerator of which is the
excess of the Market Value per share of Common Stock on the date of exercise
over the Exercise Price per share as of the date of exercise and the denominator
of which is the Market Value per share of the Common Stock on the date of
exercise.
(d) the rights represented by this Warrant shall be exercisable at
the election of the Holders thereof either in full at any time or in part from
time to time and, in the event that this Warrant is surrendered for exercise in
respect of less than all the Shares purchasable on such exercise at any time
prior to the Expiration Date, the Company shall, at the time of delivery of the
certificate or certificates representing the Shares, deliver to the Holder a new
Warrant evidencing the rights of Holder to purchase the unpurchased shares of
Common Stock called for by this Warrant, which new Warrant shall in all other
respects be identical with this Warrant, or at the request of the Holder,
appropriate notation may be made on this Warrant and the same returned to the
Holder.
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5. Fractional Shares. No fractional shares shall be issued upon the
exercise of this Warrant. In lieu of any fractional share to which the Holder
would otherwise be entitled, the Company will pay to the Holder an amount in
cash equal to such fraction multiplied by the fair market value of the Common
Stock of the Company.
6. Transfer in Compliance with the Securities Act of 1933; Exchange,
Assignment or Loss of Warrant.
6.1 Restricted Securities. The Holder understands that this Warrant
and the shares it is purchasing are characterized as "restricted securities"
under the federal securities laws inasmuch as they are being acquired from the
Company in a transaction not involving a public offering and that under such
laws and applicable regulations such securities may be resold without
registration under the Securities Act of 1933, as amended (the "Act"), only in
certain limited circumstances. In this connection, such Holder represents that
it is familiar with SEC Rule 144, as presently in effect, and understands the
resale limitations imposed thereby and by the Act. The Company shall use
commercially reasonable efforts to cause the Shares issued upon exercise to be
qualified for sale or exempt from qualification under the applicable securities
laws of the states or other jurisdictions in which such Holder resides;
provided, however, that the Company shall not be required to qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this Section 6.1 or to take any action which would subject it to
general service of process or to taxation in any such jurisdiction where it is
not then so subject.
6.2 Transfers of Warrant. Subject to compliance with applicable
federal and state securities laws, this Warrant and all rights (but only with
all related obligations) hereunder are transferable in whole or in part by the
Holder upon the prior written consent of the Company. The transfer shall be
recorded on the books of the Company upon (i) the surrender of this Warrant,
properly endorsed, to the Company at its principal offices, (ii) the payment to
the Company of all transfer taxes and other governmental charges imposed on such
transfer (iii) such transferee's agreement in writing to be bound by and subject
to the terms and conditions of this Warrant, and (iv) if reasonably requested by
the Company, the Holder furnishing the Company with an opinion of counsel,
reasonably satisfactory to the Company that such disposition will not require
registration of such securities under the Act. In the event of a partial
transfer, the Company shall issue to the holders one or more appropriate new
warrants.
6.3 Legends. It is understood that the certificates evidencing the
Shares may bear one or all of the following legends:
"These securities have not been registered under the Securities Act of
1933, as amended. They may not be sold, offered for sale, pledged or
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hypothecated in the absence of a registration statement in effect with
respect to the securities under such Act or an opinion of counsel
satisfactory to the Company that such registration is not required or
unless sold pursuant to Rule 144 of such Act."
Any legend required by the laws of the State of Massachusetts.
7. Adjustment of Number of Warrant Shares and Exercise Price.
7.1 Adjustment. The number of Shares for which this Warrant may be
exercised shall be subject to adjustment as follows:
(a) In the event there is a subdivision or combination of the
outstanding shares of Common Stock into a larger or smaller number of shares,
the number of Shares shall be increased or reduced in the same proportion as the
increase or decrease in the outstanding shares of Common Stock.
(b) If the Company declares a dividend on Common Stock payable
in Common Stock or securities convertible into Common Stock, the number of
Shares shall be increased, as of the record date for determining which holders
of Common Stock shall be entitled to receive such dividend, in proportion to the
increase in the number of outstanding shares of Common Stock as a result of such
dividend.
7.2 Reorganization, Merger, Sale. In the event at any time prior to
the expiration of this Warrant of any reorganization or reclassification of the
outstanding shares of Common Stock (other than a change in par value, or from no
par value to par value, or from par value to no par value, or as a result of a
subdivision or combination) or any consolidation or merger of the Company with
another entity, or sale, lease or transfer of all or substantially all of the
property or assets of the Company, the Holder shall have the right, but not the
obligation, to exercise this Warrant. Upon such exercise, the Holder shall have
the right to receive the same kind and number of shares of capital stock and
other securities, cash or other property as would have been distributed to the
Holder upon such reorganization, reclassification, consolidation or merger had
the Holder exercised this Warrant immediately prior to such reorganization,
reclassification, consolidation or merger. The Holder shall pay upon such
exercise the Exercise Price that otherwise would have been payable pursuant to
the terms of this Warrant. If any such reorganization, reclassification,
consolidation or merger results in a cash distribution in excess of the Exercise
Price provided by this Warrant, the Holder may, at the Holder's option, exercise
this Warrant without making payment of the Exercise Price, and in such case the
Company shall, upon distribution to the Holder, consider the Exercise Price to
have been paid in full, and in making settlement to the Holder, shall deduct an
amount equal to the Exercise Price from the amount payable to the Holder.
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7.3 Dissolution, Liquidation. If the Company shall, at any time prior
to the expiration of this Warrant, dissolve, liquidate or wind up its affairs,
the Holder shall have the right, but not the obligation, to exercise this
Warrant. Upon such exercise the Holder shall have the right to receive, in lieu
of the shares of Common Stock that the Holder otherwise would have been entitled
to receive, the same kind and amount of assets as would have been issued,
distributed or paid to the Holder upon any such dissolution, liquidation or
winding up with respect to such shares of Common Stock had the Holder been the
holder of record of such shares of Common Stock receivable upon exercise of this
Warrant on the date for determining those entitled to receive any such
distribution. If any such dissolution, liquidation or winding up results in any
cash distribution in excess of the Exercise Price provided for by this Warrant,
the Holder may, at the Holder's option, exercise this Warrant without making
payment of the Exercise Price and, in such case, the Company shall, upon
distribution to the Holder, consider the Exercise Price to have been paid in
full, and in making settlement to the Holder shall deduct an amount equal to the
Exercise Price from the amount payable to the Holder.
7.4 Calculation. The Company may retain a firm of independent public
accountants of recognized standing (who may be any such firm regularly employed
by the Company) to make any computation required under this Section 7, and a
certificate signed by such firm shall be conclusive evidence of the correctness
of any computation made under this Section.
7.5 Exercise Price. Whenever the number of shares of Common Stock
purchasable upon the exercise of this Warrant is adjusted as herein provided,
the Exercise Price shall be adjusted by multiplying the applicable Exercise
Price immediately prior to such adjustment by a fraction, the numerator of which
shall be the number of shares of Common Stock purchasable upon exercise of this
Warrant immediately prior to such adjustment and the denominator of which shall
be the number of shares of Common Stock purchasable immediately after such
adjustment.
7.6 Notice. Upon any adjustment of the Exercise Price, then and in
each such case the Company shall give written notice thereof in accordance with
Section 10 hereof, at the address of such Holder as shown on the books of the
Company, which notice shall state the Exercise Price resulting from such
adjustment, setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based.
7.7 Reservation of Stock. The Company will at all times reserve and
keep available out of its authorized Common Stock or its treasury shares, solely
for the purpose of issuance upon the exercise of this Warrant as herein
provided, such number of shares of Common Stock as shall then be issuable upon
the exercise of this Warrant.
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7.8 Issuance of Certificates. The issuance of certificates for shares
of Common Stock upon exercise of this Warrant shall be made without charge to
the Holder thereof for any issuance tax in respect thereof; provided, that the
Company shall not be required to pay any tax which may be payable in respect of
any transfer involved in the issuance and delivery of any certificate in a name
other than that of the Holder.
8. Rights of Holder. This Warrant does not entitle the Holder to any
rights of a stockholder of the Company either at law or in equity, and the
rights of any such Holder are limited to those expressed in this Warrant and are
not enforceable against the Company, except to the extent set forth herein.
9. Lock-up. So long as Holder has not exercised this Warrant, in whole or
in part, Holder agrees not to sell, make any short sale of, loan, grant an
option for the purchase of, or otherwise dispose of, any of the Common Stock or
other derivative or synthetic instruments related thereto, without the prior
written consent of the Company.
10. Governing Law. This Warrant shall be construed in accordance with the
laws of the Commonwealth of Massachusetts.
11. Notices. All notices, requests, consents and other communications
required or permitted under this Warrant shall be in writing and shall be deemed
to have been given when mailed by registered or certified mail, postage prepaid,
or sent by an internationally recognized courier (e.g. FedEx), to the following
addresses:
To the Company: ScanSoft, Inc.
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To Holder: At the address set forth on Schedule A of the Agreement.
Evercore Investments LLC
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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IN WITNESS WHEREOF, the Company has executed this Warrant as of the ___ day
of __________, 2003.
SCANSOFT, INC.
By:
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
Initial Holder:
EVERCORE INVESTMENTS LLC
By:
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Member
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PURCHASE FORM
Dated: _______________, 200___
The undersigned hereby irrevocably elects to exercise the attached Warrant
for [all of the shares] [________ of the shares] [cross out inapplicable phrase]
purchasable under the Warrant and hereby makes payment of $__________ in payment
of the actual exercise price thereof.
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name: ____________________________________________________________________
(Please typewrite or print in block letters)
Address: _________________________________________________________________
_________________________________________________________________
_________________________________________________________________
Signature: _____________________
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ASSIGNMENT FORM
FOR VALUE RECEIVED, ____________________ hereby sells, assigns and
transfers unto
Name: ____________________________________________________________________
(Please typewrite or print in block letters)
Address: _________________________________________________________________
the right to purchase Common Stock represented by this Warrant to the extent of
_________ shares of Stock and does hereby irrevocably constitute and appoint
____________________, attorney, to transfer the same on the books of the Company
with full power of substitution in the premises.
Signature: _____________________
Dated: _______________, 200__
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