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Exhibit 2.3
SECOND AMENDMENT TO AGREEMENT AND PLAN
OF REORGANIZATION BETWEEN ACCESS BEYOND, INC.
AND XXXXX MICROCOMPUTER PRODUCTS, INC.
This Second Amendment to the Agreement and Plan of Reorganization between
Access Beyond, Inc. and Xxxxx Microcomputer Products, Inc. (the "Second
Amendment") is entered into as of November 21, 1997, by and between Access
Beyond, Inc., a Delaware corporation ("Access Beyond"), and Xxxxx
Microcomputer Products, Inc., a Georgia corporation ("Xxxxx") (and individually
referred to as "Party" and jointly and severally referred to herein as
"Parties"). This Second Amendment will be effective as of the Effective Date
(as defined below).
RECITALS
A. The Parties previously entered into an Agreement and Plan of
Reorganization on July 29, 1997 (the "Merger Agreement") pursuant to which,
subject to the terms and conditions set forth therein, a new corporation that
will be organized in Georgia as a wholly owned subsidiary of Access Beyond
("Newco") will merge with and into Xxxxx in a reverse triangular merger (the
"Merger"), with Xxxxx to be the surviving corporation of the Merger, and the
Merger Agreement was amended pursuant to that certain First Amendment to the
Agreement and Plan of Reorganization between Access Beyond, Inc. and Xxxxx
Microcomputer Products, Inc. on November 7, 1997 (the "First Amendment").
Capitalized terms used but not otherwise defined in this Second Amendment have
the meanings ascribed to such term in the Merger Agreement and the First
Amendment. (As used herein, the term "Merger Agreement, as amended" means the
Merger Agreement and the First Amendment.)
B. Certain other amendments to the Merger Agreement, as amended, are now
necessary.
NOW, THEREFORE, in reliance upon the recitals set forth above, the Parties
hereto agree as follows:
1. The last sentence of paragraph 1 of the First Amendment is hereby deleted
and the following sentence is inserted in lieu thereof:
In the event the Investors convert any of 6% Cumulative
Convertible Preferred Stock prior to the Closing of the
Merger Agreement, then each Party agrees that it will be
proportionately diluted by the common stock required to be
issued to Investors, as if such common stock were issued
after the Closing of the Merger Agreement and that the
respective percentages of the shares of Access Beyond to be
held immediately after the Effective Time by the Access
Beyond and Xxxxx shareholders as contemplated by Section
1.1.5 of the Merger Agreement shall be calculated without
regard to the issuance of the common shares occasioned by
conversion of the 6% Cumulative Convertible Preferred Stock.
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2. Section 1.1.5 of the Merger Agreement is hereby amended in the
definition of "C", in the Conversion Ratio, by adding after the words
"Effective Time", the following:
calculated without regard to the issuance of common stock upon
conversion prior to the Effective Time of any of the 6% Cumulative
Convertible Preferred Stock issued to the Investors pursuant to
the Preferred Stock Investment.
3. Section 8.16 of the Merger Agreement is hereby amended by deleting
in the fourth line thereof the words "at the Closing", and inserting in lieu
thereof the following: "not more than five (5) days prior to the Effective Date
of the registration statement on Form S-4".
4. Exhibit 7.13 to the Merger Agreement, as amended, is hereby deleted
and a new Exhibit 7.13 is inserted in lieu thereof, as set forth on Exhibit
"A" attached to this Second Amendment and made a part hereof by this
reference. The purpose of this substituted Restated Certificate is to provide
the completed information left blank in the original Restated Certificate
attached to the Merger Agreement.
5. All other provisions of the Merger Agreement, as amended, shall
remain unchanged and are hereby declared to be in full force and effect, except
as expressly amended hereby.
6. By executing this Amendment, Xxxxx represents that the Second
Amendment and the actions contemplated hereby have been duly authorized by the
Xxxxx Transaction Committee and Access Beyond represents that the Second
Amendment and the actions contemplated hereby have been duly authorized by the
Access Beyond Board of Directors.
IN WITNESS WHEREOF, the Parties hereto have executed this Second Amendment
as of the date first above written.
ACCESS BEYOND, INC. XXXXX MICROCOMPUTER PRODUCTS, INC.
BY: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
_______________________________ _______________________________
Xxxxxx X. Xxxxxx, President Xxxxxx X. Xxxxx, Chairman
