SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. __)*
ScanSoft, Inc.
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(Name of Issuer)
Common Stock
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(Title of Class of Securities)
80603P-10-7
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(CUSIP Number)
Martin S. Wagner
Assistant Secretary
XEROX CORPORATION
800 Long Ridge Road
Stamford, Connecticut 06904
(203) 968-3000
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
MARCH 2, 1999
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(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box / /.
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the Schedule, including all exhibits. See section 240.13d-7(b) for
other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
CUSIP No. 80603P-10-7 13D Page 2 of 17 Pages
1. NAME OF REPORTING PERSON Xerox Corporation
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON (ENTITIES ONLY) 16-0468020
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/
(b) / /
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3. SEC USE ONLY
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4. SOURCE OF FUNDS WC
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO (d) OR 2(e) / /
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6. CITIZENSHIP OR PLACE OF ORGANIZATION New York
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NUMBER OF 7. SOLE VOTING POWER 0
SHARES
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BENEFICIALLY
OWNED BY 8. SHARED VOTING POWER 11,853,602
EACH
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REPORTING
PERSON 9. SOLE DISPOSITIVE POWER 0
WITH
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10. SHARED DISPOSITIVE POWER 11,853,602
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11,853,602
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 45%
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14. TYPE OF REPORTING PERSON CO
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CUSIP No. 80603P-10-7 13D Page 3 of 17 Pages
1 NAME OF REPORTING PERSON Xerox Imaging Systems, Inc.
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON (ENTITIES ONLY) 94-2206814
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
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6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
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NUMBER OF 7 SOLE VOTING POWER 0
SHARES
-----------------------------------------------------
BENEFICIALLY
OWNED BY 8 SHARED VOTING POWER 11,853,602
EACH
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REPORTING
PERSON 9 SOLE DISPOSITIVE POWER 0
WITH
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10 SHARED DISPOSITIVE POWER 11,853,602
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11,853,602
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 45%
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14 TYPE OF REPORTING PERSON CO
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CUSIP No. 80603P-10-7 13D Page 4 of 17 Pages
ITEM 1. SECURITY AND ISSUER.
The class of equity securities to which this Statement on Schedule 13D
(this "Statement") relates is the common stock, par value $0.001 per share (the
"Common Stock"), of ScanSoft, Inc., a Delaware corporation (formerly Visioneer,
Inc. ("Visioneer") (the "Issuer"). The principal executive offices of the
Issuer are located at 9 Centennial Drive, Peabody, Massachusetts 01960.
ITEM 2. IDENTITY AND BACKGROUND.
(a) This Statement is being filed by Xerox Corporation ("Xerox") and
Xerox Imaging Systems, Inc. ("XIS" and, together with Xerox, the "Reporting
Person"). Xerox is a corporation organized under the laws of the State of New
York. Xerox is The Document Company and a leader in the global document market,
providing document solutions that enhance business productivity. XIS is a
corporation organized under the laws of the State of Delaware, the principal
business of which is to own shares of Issuer's Common Stock. XIS is a
wholly-owned subsidiary of Xerox. The applicable information concerning the
directors and executive officers of each of Xerox and XIS is set forth on
Schedule I attached hereto, which is incorporated herein by reference.
(b) The address of the principal executive offices of each of Xerox and
XIS is 800 Long Ridge Road, Stamford, Connecticut 06904. The applicable
information concerning the directors and executive officers of each of Xerox and
XIS is set forth on Schedule I attached hereto, which is incorporated herein by
CUSIP No. 80603P-10-7 13D Page 5 of 17 Pages
reference.
(c) The applicable information concerning the directors and executive
officers of each of Xerox and XIS is set forth on Schedule I attached hereto,
which is incorporated herein by reference.
(d)-(e) During the last five years, none of Xerox, XIS, nor, to the
best knowledge of the Reporting Person, any person named in Schedule I attached
hereto has been (a) convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or (b) a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to, federal
or state securities laws or finding any violation with respect to such laws.
(f) The applicable information concerning the directors and executive
officers of each of Xerox and XIS is set forth on Schedule I attached hereto,
which is incorporated herein by reference.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The Reporting Person acquired the Common Stock reported herein on March
2, 1999 (the "Closing Date") in connection with the consummation of the merger
transaction (the Merger) contemplated by that certain Agreement and Plan of
Merger dated as of December 2, 1998 by and between ScanSoft, Inc., a Delaware
corporation ("ScanSoft"), a wholly owned subsidiary of XIS, and the Issuer (the
"Merger Agreement"). XIS was the record owner
CUSIP No. 80603P-10-7 13D Page 6 of 17 Pages
of 100% of the issued and outstanding shares of ScanSoft common stock and all of
the issued and outstanding shares of ScanSoft Series A preferred stock. Pursuant
to the Merger Agreement: (a) ScanSoft merged with and into the Issuer; (b) the
Issuer's corporate name changed from "Visioneer, Inc." to "ScanSoft, Inc."; (c)
5,097,000 shares of Visioneer's Common Stock were cashed out using approximately
$10.5 million (or $2.06 per share) in cash contributed by the Reporting Person
out of working capital; and (d) XIS was issued 11,853,602 shares of the Issuer's
Common Stock (or 45% of the total number of shares of Common Stock outstanding,
based on a total of 26,341,338 outstanding shares of Common Stock, as of the
Closing Date). In addition, XIS was issued a warrant to purchase up to 1,738,552
additional shares of Common Stock (the "Warrant") under certain circumstances
and 3,562,238 shares of the Issuer's nonvoting Series B Preferred Stock (the
"Series B")(or 100% of the total number of shares of Series B outstanding). The
Warrant and Series B are described more fully in Item 6.
ITEM 4. PURPOSE OF THE TRANSACTION.
Xerox believes that the merger between Visioneer and ScanSoft has the
potential to produce benefits to the combined company that would not be
obtainable by either company on an independent basis. These potential benefits
include significant technology and cost synergies, the rationalization and
expansion of a number of key OEM relationships and an expansion of retail
channel opportunities.
Xerox, XIS, Visioneer and several holders of shares of
CUSIP No. 80603P-10-7 13D Page 7 of 17 Pages
Visioneer common stock, entered into a Voting Agreement, effective as of the
Closing Date (the "Voting Agreement"), attached hereto as Exhibit 1 and
incorporated herein by reference. The Voting Agreement requires all of the
parties thereto to nominate and elect certain persons to the Issuer's Board of
Directors, including up to two designees of the Reporting Person. In all other
respects, the parties to the Voting Agreement are free to vote in their sole
discretion. (The Voting Agreement is described more fully in Item 6).
Except as set forth above and as described below in Item 6, the
Reporting Person has no plan or proposal of the type described in subparagraphs
(a) through (j) of Item 4 of Schedule 13D.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) XIS owns of record 11,853,602 shares of Common Stock which
represents 45% of the outstanding shares of the Issuer's Common Stock, based a
total of 26,341,338 outstanding shares of Common Stock, as of the Closing Date.
(b) Xerox and XIS share voting and investment power with respect to the
11,853,602 shares of Common Stock.
(c) Except the receipt of 11,853,602 shares of Common Stock in the
Merger, neither Xerox nor XIS has effected any transaction in shares of Common
Stock during the past 60 days.
(d) Not applicable.
(e) Not applicable. The applicable information concerning the directors
and executive officers of each of Xerox and XIS is set forth on
CUSIP No. 80603P-10-7 13D Page 8 of 17 Pages
Schedule I attached hereto, which is incorporated herein by reference.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
Except as set forth below in this Item 6, there is no contract,
arrangement, understanding or relationship (legal or otherwise) among the
persons named above in Item 2 or between any such person and any other person
with respect to any securities of the Issuer, including but not limited to
transfer or voting of any of the securities, finder's fees, joint ventures, loan
or option arrangements, puts or calls, guarantees or profits, division of
profits or loss, or the giving or withholding of proxies:
CUSIP No. 80603P-10-7 13D Page 9 of 17 Pages
VOTING AGREEMENT. Xerox, XIS, Visioneer and several holders of
Visioneer common stock entered into the Voting Agreement effective at the close
of the Merger. The have each agreed to vote to elect certain nominees to the
Issuer's Board of Directors, including up to two persons designated by the
Reporting Person. In accordance with the Voting Agreement, the board of
directors has been increased to seven persons. Two designees of the Reporting
Person, as well as the Chief Executive Officer of the Issuer, have been elected
to the board. Currently, one of the Reporting Person's designees, Paul A. Ricci,
is Chairman of the Board.
At each annual meeting of stockholders of the Issuer during the term of
the Voting Agreement, or at any special meeting of stockholders at which board
members are to be elected, the parties to the Voting Agreement will vote their
shares so as to elect the following directors:
(a) so long as the Reporting Person owns at least 20% of the
Issuer's outstanding voting stock: two persons designated by the
Reporting Person, two individuals designated by the four members of the
Issuer's board of directors who were not nominated by the Reporting
Person and who are not the Issuer's Chief Executive Officer, the
Issuer's then current Chief Executive Officer, and two independent
members with relevant industry experience who are to be designated by
at least four out of the five directors who are not considered to be
independent directors; or
CUSIP No. 80603P-10-7 13D Page 10 of 17 Pages
(b) so long as the Reporting Person owns at least 10% of the
Issuer's outstanding voting stock: one person designated by the
Reporting Person, two individuals designated by the five members of the
board who were not nominated by the Reporting Person and who are not
Issuer's Chief Executive Officer, Issuer's then current Chief Executive
Officer, and three independent members with relevant industry
experience who are designated by at least three out of the four
directors who are not considered to be independent directors.
The Voting Agreement will terminate upon the earliest to occur of (1)
the sale of all or substantially all of the Issuer's property or business or its
merger into or consolidation with any other corporation or if the Issuer effects
any other transaction(s) in which more than 50% of its voting power is disposed
of; (2) such time as the Reporting Person owns less than 10% of Issuer's
outstanding voting stock; or (3) such time as the non-Reporting Person parties
to the voting agreement own, in the aggregate, less than 7% of the Issuer's
outstanding voting stock; provided, however, that if such time occurs prior to
the second anniversary of the Closing Date of the Merger and the Reporting
Person holds at such time shares of the Issuer's Series B Preferred Stock, the
Voting Agreement will not terminate until the earlier of (x) the second
anniversary of the Closing Date and (y) the date on which the Reporting
CUSIP No. 80603P-10-7 13D Page 11 of 17 Pages
Person (together with its affiliates) no longer holds any shares of the Issuer's
Preferred Stock. The foregoing summary of the Voting Agreement is qualified in
its entirety by reference to the copy of the Voting Agreement attached as
Exhibit 1 to this Statement and incorporated herein by reference.
THE SERIES B PREFERRED STOCK. In connection with the Merger, XIS was
issued 3,562,238 shares of the Issuer's nonvoting Series B Preferred Stock. The
Series B Preferred Stock is convertible into shares of Common Stock on a share
for share basis at the option of the Reporting Person at any time after the
second anniversary of Closing Date of the Merger Agreement; provided, however,
that the Series B Preferred Stock becomes convertible immediately if the
Reporting Person's ownership of outstanding Issuer Common Stock is less than
30%, unless such conversion would result in the Reporting Person owning more
than 50% of the outstanding Issuer Common Stock. The Series B Preferred Stock is
entitled to noncumulative dividends at the rate of $0.065 per annum only if and
to the extent declared by the Issuer's Board of Directors. The Series B
Preferred Stock has a liquidation preference of $1.30 per share plus all
declared but unpaid dividends. The Series B Preferred Stock does not have any
voting rights, except for such rights as are provided under Delaware law. The
foregoing summary of certain aspects of the Series B Preferred Stock is
qualified in its entirety by reference to the copy of the Amended and Restated
Certificate of Incorporation attached as Exhibit 4.1
CUSIP No. 80603P-10-7 13D Page 12 of 17 Pages
to the Issuer's Current Report on Form S-8 filed with the Commission on
March 12, 1999 (the "Issuer's Current Report") and incorporated herein by
reference.
COMMON STOCK WARRANT. At the Closing Date of the Merger, Issuer issued
to XIS a ten-year warrant that allows XIS to acquire a number of shares of
Common Stock equal to the number of options to purchase Common Stock (whether
vested or unvested) that remain unexercised at the termination of any ScanSoft
option assumed by the Issuer in the Merger. The exercise price for each warrant
share is the same as the exercise price of each assumed ScanSoft option, as
adjusted by the exchange ratio in the Merger. If all of the assumed ScanSoft
options terminate without being exercised, XIS would be entitled to purchase
approximately 1,738,552 additional shares of the Issuer's Common Stock. The
Warrant is exercisable at any time that shares are available for acquisition
under the Warrant; provided, however, XIS may not exercise the Warrant prior
to two years from the date of its initial issuance unless, immediately after
such exercise, XIS owns directly or indirectly a number of outstanding shares of
the Issuer's Common Stock that represents less than 45% of the total number of
shares of Issuer's Common Stock outstanding immediately after such exercise. The
foregoing summary of the Common Stock Warrant is qualified in its entirety by
reference to the copy of the warrant attached as Annex A to
CUSIP No. 80603P-10-7 13D Page 13 of 17 Pages
the Issuer's Registration Statement on Form S-4 filed with the Commission on
January 14, 1999 and incorporated herein by reference.
REGISTRATION RIGHTS AGREEMENT. Xerox, XIS and Visioneer entered into a
Registration Rights Agreement ("Registration Rights Agreement"), effective as of
the Closing Date, in connection with the consummation of the Merger. Pursuant to
the Registration Rights Agreement, the Reporting Person may demand registration
under the Securities Act of some or all of the shares of Common Stock owned by
the Reporting Person (including upon conversion of the Series B Preferred Stock
or pursuant to the exercise of the Common Stock Warrant). Each such registration
will be at the Issuer's expense. The Issuer may postpone such a demand under
certain circumstances. In addition, the Reporting Person may request the Issuer
to include shares of Common Stock held by the Reporting Person in any
registration proposed by the Issuer of such Common Stock. The foregoing summary
of the Registration Rights Agreement is qualified in its entirety by reference
to the copy of the Registration Rights Agreement attached as Annex A to Issuer's
Registration Statement on Form S-4 filed with the Commission on January 14, 1999
and incorporated herein by reference.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 1 - Voting Agreement, dated March 2, 1999, between Xerox, XIS,
Visioneer and the Investors.
SIGNATURE
---------
After reasonable inquiry and to the best of my knowledge
CUSIP No. 80603P-10-7 13D Page 14 of 17 Pages
and belief, I certify that the information set forth in this statement is true,
complete and correct.
Dated as of March 12, 1999.
XEROX CORPORATION XEROX IMAGING SYSTEMS, INC.
By /s/ Martin S. Wagner By /s/ Martin S. Wagner
------------------------------------ -----------------------------------
Name Martin S. Wagner Name Martin S. Wagner
Title Assistant Secretary Title Secretary
CUSIP No. 80603P-10-7 13D Page 15 of 17 Pages
SCHEDULE I
ITEM 2. IDENTITY AND BACKGROUND
Set forth below is the name of each director of Xerox, the present
principal occupation of such director and the business address of such director.
Unless otherwise noted, the address below is that of the organization in which
each director's present principal occupation is conducted, which is also the
business address of such director.
PRESENT
DIRECTOR'S NAME PRINCIPAL OCCUPATION ADDRESS
- --------------- ------------------------ -------
Paul A. Allaire Chairman of the Board, Xerox Corporation
Chief Executive Officer 800 Long Ridge Road
and Chairman of the P.O. Box 1600
Executive Committee Stamford, CT 06904-1600
B.R. Inman Investor Suite 500
701 Brazos Street
Austin, TX 78701
(mailing address)
Antonia Ax:son Chairman Axel Johnson AB
Johnson P.O. Box 26008 - Villagatan 6
Stockholm S-100 41, Sweden
Vernon E. Partner Akin, Gump, Strauss, Hauer &
Jordan, Jr. Feld, L.L.P.
1333 New Hampshire Ave, N.W. Suite 400
Washington, D.C. 20036
Yotaro Kobayashi Chairman and Chief Fuji Xerox Co., Ltd.
Executive Officer 2-17-22 Akasaka, Minato-ku
Tokyo 107, Japan
Hilmar Kopper Chairman of the Deutsche Bank AG
Supervisory Board Taunusanlage 12
Frankfurt 60262, Germany
Ralph S. Larsen Chairman and Chief Johnson & Johnson
Executive Officer One Johnson & Johnson Plaza
New Brunswick, NJ 08933
George J. Special Counsel Verner, Liipfert, Bernhard,
Mitchell McPherson and Hand, Chartered
901 15th Street, N.W.,
Suite 700
Washington, D.C. 20005
N.J. Nicholas, Investor Suite 19F, 45 W. 67th Street
Jr. New York, NY 10023
(mailing address)
John E. Pepper Chairman of the Board and Procter & Gamble Company
Chief Executive Officer One Procter & Gamble Plaza
Cincinnati, OH 45202
Patricia F. Russo Executive Vice President, Lucent Technologies Inc.
Chief Staff Officer 600 Mountain Ave., Room 61C326
Murray Hill, NJ 07974
CUSIP No. 80603P-10-7 13D Page 16 of 17 Pages
Martha R. Seger Distinguished Visiting Martha R. Seger Financial
Professor of Finance, Group, Inc.
Northern Arizona 220 Park Avenue
University Birmingham, MI 48009
(mailing address)
Thomas C. Managing Director, William Blair Venture Partners,
Theobald L.L.C.
Suite 3300
222 West Adams Street
Chicago, IL 60606-5312
(mailing address)
G. Richard Thoman President and Chief Xerox Corporation
Operating Officer 800 Long Ridge Road
222 West Adams Street
P.O. Box 1600
Stamford, CT 06904-1600
Each of the directors named above (other than Antonia Ax:son Johnson,
Yotaro Kobayashi and Hilmar Kopper) is a United States citizen. Antonia Ax:son
Johnson is a citizen of Sweden, Yotaro Kobayashi a citizen of Japan, and Hilmar
Kopper a citizen of Germany.
Set forth below is the name and title of each executive officer of Xerox:
Officer's Name Title
- -------------- -----
Paul A. Allaire Chairman of the Board, Chief Executive Officer and
Chairman of the Executive Committee
G. Richard Thoman President and Chief Operating Officer
William F. Buehler Executive Vice President
Industry Solutions Operations
Allan E. Dugan Executive Vice President
Business Group Operations
Anne M. Mulcahy Executive Vice President
General Markets Operations
Carlos Pascual Executive Vice President
Deputy Executive Officer
Industry Solutions Operations
Barry D. Romeril Executive Vice President and Chief Financial Officer
Patrick J. Martin Senior Vice President
President, Developing Markets Operations
Michael Miron Senior Vice President
Corporate Business Strategy and Development
Hector J. Motroni Senior Vice President and Chief Staff Officer
Mark B. Myers Senior Vice President
Xerox Research and Technology
Richard S. Paul Senior Vice President and General Counsel
Eunice M. Filter Vice President, Treasurer and Secretary
Phillip D. Fishbach Vice President and Controller
The organization in which the present principal occupation of each of the
executive officers named above is conducted is Xerox, P.O. Box 1600, 800 Long
Ridge Road, Stamford, Connecticut 06904-1600. Each of the officers named above
(other than Barry D. Romeril and Carlos Pascual) is a United States citizen.
Barry D. Romeril is a citizen of Great Britain, and Carlos Pascual is a citizen
of Spain.
Set forth below is the name of the sole director of XIS, his present
CUSIP No. 80603P-10-7 13D Page 17 of 17 Pages
principal occupation and business address. Unless otherwise noted, the address
below is that of the organization in which his present principal occupation is
conducted, which is also his business address.
PRESENT
Director's Name Principal Occupation Address
- --------------- ------------------------ -------
Paul A. Ricci Chairman and President Xerox Imaging Systems, Inc.
c/o Xerox Corporation
800 Long Ridge Road
P.O. Box 1600
Stamford, CT 06904-1600
Paul A. Ricci is a United States citizen.
Set forth below is the name and title of each executive officer of XIS:
Officer's Name Title
- -------------- -----
Paul A. Ricci Chairman and President
The organization in which the present principal occupation of Paul A. Ricci
is conducted is Xerox Imaging Systems, Inc., c/o Xerox Corporation, P.O. Box
1600, 800 Long Ridge Road, Stamford, Connecticut 06904-1600. Paul A. Ricci is a
United States citizen.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a)-(c) Each of Mark B. Meyers and Paul A. Ricci received stock options,
none of which are currently vested, under the Issuer's employee stock option
plan covering 20,000 shares of Common Stock. It is expected that all such stock
options will be returned to the Issuer or otherwise cancelled in the near
future. Based on the Reporting Person's information and belief, none of the
other directors and executive officers named in Item 2 of this Schedule I (i)
beneficially owns any shares of Common Stock, (ii) has either sole or shared
power to vote or to direct the vote or to dispose or direct the disposition of
any shares of Common Stock, or (iii) has effected any transaction in shares of
Common Stock during the past 60 days.
The foregoing responses are based upon the Reporting Person's information
and belief and are subject to change pending its receipt of questionnaires from
the other directors and executive officers named in Item 2 of this Schedule I
indicating a different response. Upon receipt of such questionnaires indicating
a different response, the Reporting Person will promptly file an amendment to
this Schedule 13D.
(d) Not applicable.
(e) Not applicable.
VISIONEER, INC.
VOTING AGREEMENT
----------------
This Voting Agreement (the "AGREEMENT") is made as of the 2nd day of
March 1999, by and among Visioneer, Inc., a Delaware corporation (the
"COMPANY"), Xerox Imaging Systems, Inc. a Delaware Corporation, and Xerox
Corporation, a New York corporation (together "XEROX"), and the current holders
of shares of the Company's Common Stock listed on EXHIBIT A (collectively, the
"CURRENT HOLDERS").
RECITALS
--------
The Company and ScanSoft, Inc., a Delaware corporation ("SCANSOFT") and
a wholly-owned subsidiary of Xerox, are concurrently with the execution of this
Agreement entering into an Agreement and Plan of Merger dated as of the date
hereof (the "MERGER AGREEMENT"). Section 6.12 of the Merger Agreement provides
that the Company, Xerox and the Current Holders enter into this Agreement to
provide for the nomination and election of the Company's Board of Directors.
Capitalized terms not otherwise defined herein shall have the meanings ascribed
to them in the Merger Agreement.
AGREEMENT
---------
The parties agree as follows:
1. ELECTION OF DIRECTORS.
1.1 BOARD REPRESENTATION. As of the Effective Time of the Merger
Agreement, the Company's Bylaws shall provide for a Board of Directors comprised
of seven (7) members. At the first meeting of the Board of Directors after the
Effective Time, the current directors of the Company shall vote to appoint to
the Board two (2) new directors based on nominations received from Xerox and the
Company's new Chief Executive Officer (the "CEO"). Thereafter, at each annual
meeting of the stockholders of the Company, or at any meeting of the
stockholders of the Company at which members of the Board of Directors of the
Company are to be elected, or whenever members of the Board of Directors are to
be elected by written consent, Xerox and the Current Holders agree to vote or
act with respect to their shares so as to elect the following directors:
(a) so long as Xerox owns at least twenty percent (20%) of the
Company's outstanding voting stock: (i) two (2) members of the Company's Board
of Directors designated by Xerox; (ii) two (2) members of the Company's Board of
Directors designated by the four members of the Board who were not nominated by
Xerox and who are not the CEO (the "NON-XEROX/NON-CEO DIRECTORS"); (iii) the
Company's then current CEO; and (iv) two (2) independent members of the
Company's Board of Directors with relevant industry experience who are
designated by at least four out of the five directors who are not considered
independent directors; or
(b) so long as Xerox owns at least ten percent (10%) of the Company's
outstanding voting stock: (i) one (1) member of the Company's Board of Directors
designated by Xerox; (ii) two (2) members of the Company's Board of Directors
designated by the Non-Xerox/Non-CEO Directors; (iii) the Company's then current
CEO; and (iv) three (3) independent members of the Company's Board of Directors
with relevant industry experience who are designated by at least three out of
the four directors who are not considered independent directors;
1.2 APPOINTMENT OF DIRECTORS. In the event of the resignation, death,
removal or disqualification of a director designated pursuant to Section 1.1
above, the party or parties who were authorized to nominate such director
pursuant to Section 1.1 above shall promptly nominate a new director, and, after
written notice of the nomination has been given by such nominating party or
parties to the Company's Board of Directors, then each party hereto shall vote
its shares of capital stock of the Company to elect such nominee to the Board of
Directors.
1.3 REMOVAL. Any director may be removed hereunder only in accordance
with the Bylaws of the Company and Delaware General Corporation Law; PROVIDED,
HOWEVER, that Xerox may remove its designated directors at any time and from
time to time, with or without cause (subject to the Bylaws of the Company as in
effect from time to time and any requirements of law), in its sole discretion,
and after written notice to each of the parties hereto of the new nominee to
replace such director, each party hereto shall promptly vote its shares of
capital stock of the Company to elect such nominee to the Board of Directors.
2. ADDITIONAL REPRESENTATIONS AND COVENANTS.
2.1 NO REVOCATION; GRANT OF PROXY. The voting agreements contained
herein are coupled with an interest and may not be revoked during the term of
this Agreement. Should the provisions of this Agreement be construed to
constitute the granting of proxies, such proxies shall be deemed to be coupled
with an interest and are irrevocable for the term of this Agreement.
2.2 CHANGE IN NUMBER OF DIRECTORS. The parties hereto will not vote for
any amendment or change to the Certificate of Incorporation or Bylaws providing
for the election of more or less than seven (7) directors, or any other
amendment or change to the Certificate of Incorporation or Bylaws inconsistent
with the terms of this Agreement.
3. TERMINATION.
3.1 TERMINATION EVENTS. This Agreement shall terminate upon the earlier
of:
(a) The sale, conveyance, disposal, or encumbrance of all or
substantially all of the Company's property or business or the Company's merger
into or consolidation with any other corporation (other than a wholly-owned
subsidiary corporation) or if the Company effects any other transaction or
series of related transactions in which more than fifty percent (50%) of the
voting power of the Company is disposed of, PROVIDED that this Section
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3.1(a) shall not apply to a merger effected exclusively for the purpose of
changing the domicile of the Company;
(b) Such time as Xerox owns less than twenty percent (10%) of the
outstanding voting stock of the Company; or
(c) Such time as the Current Holders own, in the aggregate, less than
seven percent (7%) of the outstanding voting stock of the Company; provided,
however, that if such time occurs prior to the second anniversary of the
Effective Time and Xerox (or an affiliate thereof) holds at such time shares of
the Company's Series B Preferred Stock, this Agreement shall not terminate
pursuant to this Section 3.1(c) until the earlier of (X) the second anniversary
of the Effective Time and (Y) the date on which Xerox (together with its
affiliates) no longer hold any shares of the Company's Series B Preferred Stock.
4. MISCELLANEOUS.
4.1 SUCCESSORS AND ASSIGNS. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective successors and
assigns of the parties. Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
4.2 AMENDMENTS AND WAIVERS. Any term hereof may be amended or waived
only with the written consent of the Company, Xerox and each of the Current
Holders. Any amendment or waiver effected in accordance with this Section 4.2
shall be binding upon the Company, Xerox and each of the Current Holders, and
each of their respective successors and assigns.
4.3 NOTICES. Any notice required or permitted by this Agreement shall
be in writing and shall be deemed sufficient on the date of delivery, when
delivered personally or by overnight courier or sent by telegram or fax (with
confirmation of successful transmission), or forty-eight (48) hours after being
deposited in the U.S. mail, as certified or registered mail, with postage
prepaid, and addressed to the party to be notified at such party's address or
fax number as set forth on the signature page or on EXHIBIT A hereto, or as
subsequently modified by written notice.
4.4 SEVERABILITY. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, the parties agree to renegotiate such
provision in good faith. In the event that the parties cannot reach a mutually
agreeable and enforceable replacement for such provision, then (a) such
provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (c) the
balance of the Agreement shall be enforceable in accordance with its terms.
4.5 GOVERNING LAW. This Agreement and all acts and transactions
pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and
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interpreted in accordance with the laws of the State of Delaware, without
giving effect to principles of conflicts of law.
4.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
4.7 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
4.8 SPECIFIC ENFORCEMENT. It is agreed and understood that monetary
damages would not adequately compensate an injured party for the breach of this
Agreement by any party hereto, that this Agreement shall be specifically
enforceable, and that any breach or threatened breach of this Agreement shall be
the proper subject of a temporary or permanent injunction or restraining order.
Further, each party hereto waives any claim or defense that there is an adequate
remedy at law for such breach or threatened breach.
[Signature Page Follows]
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The parties hereto have executed this Voting Agreement as of the date
first written above.
COMPANY:
VISIONEER, INC.
By: /s/ Larry Smart
-------------------------------------
Larry Smart, President
Address: 3400 Campus Drive
Fremont, CA 94555
Fax Number: (510-608-0300)
XEROX CORPORATION
By: /s/ Paul A. Ricci
-------------------------------------
Name:
-----------------------------------
(print)
Title:
----------------------------------
Address: 800 Long Ridge Road
Stamford, CT 06904-1600
Fax Number: (203) 968-4566
XEROX IMAGING SYSTEMS, INC.
By: /s/ Paul A. Ricci
-------------------------------------
Name:___________________________________
Title:__________________________________
(print)
Address: 800 Longe Ridge Road
Stamford, CT 06904-1600
Fax Number: (203) 968-4301
SIGNATURE PAGE TO VOTING AGREEMENT
CURRENT HOLDERS:
TECHNOLOGY VENTURE INVESTORS-IV
AS NOMINEE FOR
TECHNOLOGY VENTURE INVESTORS-4 L.P.
TVI PARTNERS-4, L.P. AND
TVI AFFILIATES-4, L.P.
BY: TVI MANAGEMENT-4, L.P., GENERAL PARTNER
BY: /s/ David Marquardt
------------------------------------
GENERAL PARTNER
MORGAN STANLEY VENTURE CAPITAL FUND II, L.P.
By: /s/ William J. Harding
------------------------------------
Name:
----------------------------------
(print)
Title:
---------------------------------
PARVEST U.S. PARTNERS II, C.V.
By: /s/ Vincent Worms
------------------------------------
Name: Vincent Worms
----------------------------------
(print)
Title: General Partner
---------------------------------
EXHIBIT A
---------
CURRENT HOLDERS
Name/Address/Fax No.
--------------------
Technology Venture Investors - IV
2480 Sand Hill Road
Suite 101
Menlo Park, CA 94025
Fax Number: 650-854-4187
Morgan Stanley Venture Capital Fund II, LP
3000 Sand Hill Road
Building 4, Suite 250
Menlo Park, CA 94025
Fax Number: 650-233-2626
Parvest U.S. Partners II, C.V.
Partech International Ventures VOF
U.S. Growth Fund Partners C.V.
Double Black Diamond I LLC
Almanori Limited
Multinvest LLC
Vencent Worms
Thomas G. McKinley
BVI Venture Managers
101 California Street, Suite 3150
San Francisco, CA 94111
Fax Number: 415-788-6763