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EXHIBIT 2.1
FORM OF
DISTRIBUTION AGREEMENT
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THIS DISTRIBUTION AGREEMENT ("Agreement") is made and entered into this
_____ day of __________, 1996, by and between PENRIL DATACOMM NETWORKS, INC., a
Delaware corporation ("Penril"), and ACCESS BEYOND, INC., a Delaware corporation
("Access Beyond").
RECITALS
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WHEREAS, Penril, Bay Networks, Inc., a Delaware corporation ("Bay") and
Beta Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of
Bay ("Acquisition Corp.") have entered into an Agreement and Plan of
Reorganization and Merger dated as of June 16, 1996 as amended on August 5,
1996 (the "Merger Agreement") providing for the merger of Acquisition Corp.
with and into Penril (the "Merger");
WHEREAS, Penril desires to transfer to Access Beyond substantially all
of the assets owned or used by Penril and its subsidiaries in the operation of
Penril's business other than its modem business (the "Business") including, but
not limited to, all of the contracts and agreements to which it is a party
relating to the operation of the Business (the "Assigned Assets") in exchange
for the issuance of a sufficient number of shares of common stock $.01 par
value per shares of Access Beyond ("Access Beyond Stock") to effect the
Distribution (as defined below); provided, however, that the Assigned Assets
shall not include those assets listed on EXHIBIT "A" attached hereto, which
assets are owned or used by Penril and its subsidiaries in the operation of its
modem business, and Access Beyond desires to assume all debts, obligations,
contracts or liabilities of Penril and its subsidiaries incurred in connection
with the Business (the "Assumed Liabilities") other than as specifically listed
on EXHIBIT "B" attached hereto;
WHEREAS, immediately prior to the Effective Time (as defined in the
Merger Agreement), Penril's Board of Directors, subject to the approval of
Penril's stockholders, expects to distribute (the "Distribution") to the
holders of common stock, $.01 par value per share of Penril ("Company Stock")
on a one-share-for-one-share basis, all of the issued and outstanding Access
Beyond Stock; and
WHEREAS, the purpose of the Distribution is to make possible the Merger
by divesting Penril of all of its businesses other than the modem business,
which modem business was the only business Bay desired to acquire.
NOW, THEREFORE, in consideration of the above premises and of the
mutual undertakings and covenants set forth in this Agreement, and other good
and valuable consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged, Penril and Access Beyond, intending to be legally bound,
agree as follows:
1. TRANSFER OF ASSETS. Prior to the Distribution, Penril will transfer
to Access Beyond as of that date all of its and its subsidiaries rights, titles
and interests in and to (i) the Assigned Assets and (ii) the Assumed
Liabilities and those employees of Penril other than those listed on Schedule 1
(the "Transfer"). Prior to the Distribution, Access Beyond will accept such
transfer and assume such liabilities. The Transfer will be effected by means
of a xxxx of sale, assignment and assumption agreement, substantially in
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the form of EXHIBIT "C" attached hereto, which Penril and Access Beyond hereby
agree to sign prior to the Distribution and prior to the Merger.
2. ISSUANCE OF STOCK. In connection with, in consideration of and at
the time of the Transfer, Access Beyond hereby agrees to issue to Penril a
number of shares of Access Beyond Stock such that Penril will own a number of
shares of Access Beyond Stock equal to the number of shares of Company Stock
then outstanding.
3. SETTLEMENT OF RECEIPTS. On a weekly basis, each party shall deliver
to the other any cash received which is properly the property of the other as
well as any mail packages or similar items so received.
4. 401(K) PROFIT SHARING PLAN. As part of the Transfer, Penril will
transfer to Access Beyond and Access Beyond will assume Penril's 401(k) Profit
Sharing Plan, as amended (the "Plan"). Penril and Access Beyond shall at Access
Beyond's sole cost and expense take all action as may be necessary or
appropriate to cause Access Beyond to assume sponsorship of the Plan and to
establish Access Beyond as successor of Penril as to all rights, duties,
liabilities and obligations under or with respect to the Plan. The parties
acknowledge that following the Transfer, active participation in the Plan will
be limited to eligible employees of Access Beyond. The parties acknowledge that
Access Beyond intends to split up the Plan so that the portion of the Plan
representing the benefits of participants not employed by Access Beyond can be
terminated. No provision of this Agreement shall be construed as a limitation
on the right of Access Beyond or Penril to amend the Plan or terminate its
participation therein which either would otherwise have under the terms of the
Plan or otherwise and no provision of this Agreement shall be construed to
create or create a right in any employee or beneficiary of such employee under
the Plan that such employee or beneficiary would not otherwise have under the
terms of the Plan itself. Access Beyond hereby agrees to indemnify and hold
harmless Penril from any liabilities, costs, or expenses for the Plan, from and
after the Transfer.
5. CHANGE IN CONTROL PAYMENTS. Notwithstanding anything to the
contrary contained herein, Penril shall retain, and shall not transfer to
Access Beyond, funds sufficient to pay to Xxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxx
and Xxxxxxx X. Xxxx payments in the amount of $550,000, $562,000 and $150,000
respectively, which payments they are entitled as a result of the change in
control of Penril as result of the Merger. Penril hereby covenants and agrees
to make these payments at or prior to the consummation of the Merger.
6. ACCESS TO INFORMATION. From and after the effective time of the
Transfer, each party shall afford to the other and its authorized accountant,
counsel or other designated representatives reasonable access and duplicating
rights during normal business hours to all books, records, contracts,
instruments, computer data and other information which relates to the assets or
liabilities or business of the other. Information may be required under this
Section 6 for, without limitation, audit, accounting, claims, litigation and tax
purposes as well as for purposes of fulfilling disclosure and reporting
obligations.
Each party shall hold and shall cause its officers, employees, agents,
consultants and advisors to hold in strict confidence, unless compelled to
disclose by judicial or administrative process or, in the opinion of its counsel
by other requirements of law, all non-public information concerning the other
party furnished by such other party or its representatives pursuant to this
Agreement or which have been retained by such party and each party shall not
release or disclose such information to any other person, except its auditors,
attorneys, financial advisor, bankers and other consultants and advisors who
agree to be bound by the provisions of this Section 6. Each party shall be
deemed to have satisfied its obligation to hold confidential the information
concerning or supplied by the other party if it exercises the same care as it
takes to preserve confidential of its own similar confidential information.
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7. FURTHER ASSURANCES. Each party will, without further consideration,
at any time and from time to time after the date hereof, upon request of the
other party, promptly do, execute, acknowledge, obtain and deliver any and all
instruments as may reasonably be required for the purpose of vesting in Access
Beyond the full right, title and interest of Penril in the Assigned Assets,
enabling Access Beyond to perform its obligations under the Assigned Assets and
Assumed Liabilities and to carry out the intent and purposes of this Agreement.
8. BINDING EFFECT. This Agreement will be binding upon and will inure
to the benefit of Penril and Access Beyond and their respective successors and
permitted assigns.
9. MISCELLANEOUS. Captions and section headings are for convenience
only, are not a part of this Agreement, and may not in any way be used in
construing it. Any failure by any party to comply with any of the obligations
set forth in this Agreement may be waived by the other party, but any such
waiver must be in writing and will not be deemed a waiver of any other
obligation, agreement or condition contained in this Agreement.
10. AMENDMENTS. There are no verbal agreements, representations,
warranties, undertakings or agreements between the parties, and this Agreement
may not be amended or modified in any respect except by a written instrument
signed by the parties to this Agreement.
11. GOVERNING LAW. This Agreement is to be governed by and construed in
accordance with the laws of the State of Delaware without regard to the conflict
of laws principles.
IN WITNESS WHEREOF, the parties have duly executed this Agreement
on the date first above written.
PENRIL DATACOMM NETWORKS, INC.
By:
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Its:
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ACCESS BEYOND, INC.
By:
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Its:
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