EXHIBIT 99.A
AGREEMENT
AND PLAN OF MERGER
Dated as of
May 1, 1993
Among
Penril DataComm Networks, Inc.,
Datability, Inc.,
PD Acquisition Corp.,
and
the Stockholders of Datability listed on Appendix I.
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Exhibit C, subject in each case to the performance by Penril of its obligations
contained therein. Such Employment Agreements are being executed at the Closing.
3.04 Covenants of the Stockholders.
(a) Each Stockholder agrees, for himself and his respective personal
representatives, heirs, distributees, successors, assigns, agents, affiliates,
associates and other related persons, that for the period commencing on the
Closing Date and continuing for a period of eighteen (18) months after the
Closing and for an additional period thereafter ending on the earlier to occur
of (i) the date thirty (30) months after the Closing or (ii) the date Xxxxx
Xxxxx Xxxxxxx is neither Chairman of the Board nor President of Penril, no such
person, singly, as a partnership or as part of a group (as such term is used in
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended [the
"Exchange Act"]), directly or indirectly, through one or more intermediaries,
affiliates or associates (as the terms "affiliate" and "associate" are defined
by the rules and regulations under the Exchange Act), or otherwise, except with
the prior written approval of the Board of Directors of Penril, shall:
(i) Purchase, acquire or own, or offer or agree to purchase,
acquire or own, any securities of Penril other than, in the case of a
Stockholder, the number of Penril Shares set forth opposite such Stockholder's
name on Schedule I hereto (except upon exercise of employee stock options
granted to such Stockholder by Penril or pursuant to a stock split or stock
dividend or other pro rata distribution by Penril to holders of Penril Common
Stock);
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(ii) Sell shares of Penril Common Stock owned by such Stockholder
otherwise than pursuant to (A) "brokers' transactions" within the meaning of
Rule 144(g) promulgated under the Securities Act of 1933, as amended (the
"Securities Act") or transactions directly with a market maker meeting the
requirements of Rule 144(f) promulgated under the Securities Act, and/or (B)
private transactions which shall not exceed 100,000 shares in the aggregate per
twelve-month period;
(iii) Pledge, hypothecate or otherwise encumber any shares of
Common Stock, except in a bona fide transaction not undertaken as a means of
evading this Section 3.04;
(iv) Seek representation on the Board of Directors of Penril or
solicit, or encourage any other person to solicit, proxies or participate or
otherwise engage in any "solicitation" as such term is defined in Regulation 14A
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), in
opposition to a recommendation of a majority of the directors of Penril with
respect to any matter, whether or not such solicitation is subject to any of
Sections 14a-3 through 14a-14 of Regulation A or any successor provisions, or
otherwise make or permit to be published in any media any public statement
indicating such opposition;
(v) Initiate, propose or otherwise solicit shareholders for the
approval of one or more shareholder proposals with respect to Penril, as
described in Rule 14a-8 under the Exchange Act;
(vi) Acquire or affect the control of Penril, or directly or
indirectly participate in or encourage formation of any group seeking to acquire
or affect control
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of Penril whether by making a business combination proposal with respect to
Penril or otherwise; provided that this clause (vi) shall not preclude a
Stockholder from communicating to the Chairman of the Board of Penril a third
party proposal which he did not, directly or indirectly, initiate, formulate,
solicit or encourage;
(vii) Become part of any "group" as such term is used in Section
13(d)(3) of the Exchange Act with respect to securities of Penril;
(viii) Deposit any securities of Penril in a voting trust or
subject them to a voting agreement or other arrangement of similar effect; or
(ix) Encourage any person, firm, corporation, group or other
entity to engage in any of the actions covered by clauses (i) through (viii) of
this Section.
(b) Each Stockholder, for himself and his personal representatives,
heirs, distributees, successors, assigns, agents, affiliates, associates and
other related persons, acknowledges and agrees that in the event of any breach
of any provision of this Section 3.04 by any such person, Penril would be
irreparably harmed and could not be made whole by monetary damages. It is
accordingly agreed that in addition to any other remedy to which it may be
entitled at law or in equity, Penril shall be entitled to seek injunctive relief
and to compel specific performance of this Section 3.04, and each such person
consents to the entry of such relief and waives the making of a bond as a
condition for obtaining such relief. Moreover. each person subject to this
Section 3.04 agrees that any other provision of this Agreement or principle of
law to the contrary notwithstanding, no breach of any representation. warranty
or covenant of Penril set forth in this Agreement or any agreement
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6.02 Agreements by the Stockholders. (a) In addition to the covenants
set forth in Section 3.04 hereof, and not in derogation thereof, each
Stockholder agrees that he will not offer, sell, transfer, assign, mortgage,
pledge or otherwise dispose of, distribute or encumber any Penril Shares
delivered pursuant to this Agreement, except for bona fide pledges of Penril
Shares to secure up to $1,700,000 of existing indebtedness of the Stockholders,
which shares shall be included in those registered pursuant to Section 6.04(a)
hereof, unless, (i) in the opinion of counsel to Penril or the opinion of
counsel satisfactory to Penril's counsel, registration of such shares under the
Securities Act and the rules and regulations of the Commission thereunder, as
then in effect, is not required in connection with such transaction, or (ii)
sale of the Penril Shares is permissible pursuant to Rule 144 under the
Securities Act, in which event the Stockholder shall furnish Penril with an
opinion of counsel reasonably satisfactory to counsel for Penril to the effect
that sale of the Penril Shares proposed to be sold is permissible pursuant to
Rule 144, or (iii) a registration statement under the Securities Act is then in
effect with respect to such shares and the purchaser or transferee has been
furnished with a prospectus meeting the requirements of Section 10 of the
Securities Act.
(b) Anything in subparagraph (a) of this Section 6.02 to the contrary
notwithstanding, no Stockholder will offer, sell, transfer, assign, mortgage,
pledge or otherwise dispose of, distribute or encumber any Penril Shares if any
such transaction would render the consummation of the transactions contemplated
by this Agreement, to be deemed to be an "offer," "offer to sell," "offer for
sale," or "sale" of the Penril Shares to any
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person other than the Stockholders, within the meaning of Rule 145 of the Rules
and Regulations of the Commission under the Securities Act, as in effect on the
date hereof.
6.03 Legend, Etc. Each of the Stockholders agrees that Penril may
endorse on any certificate for Penril Shares to be delivered pursuant to this
Agreement an appropriate legend referring to the provisions of Sections 6.01 and
6.02 hereof and that Penril may instruct its transfer agents not to transfer any
such Penril Shares unless advised by Penril that such provisions have been
complied with.
6.04 Registration Rights. Subject to the provisions of Section 3.04
and this Section 6.04, the Stockholders shall have the following registration
rights with respect to the Penril Shares:
(a) As soon as practicable after Penril is permitted under the
applicable rules, regulations and instructions of the Commission to file a
registration statement on Form S-3 with respect to the Penril Shares, Penril
shall file a registration statement on Form S-3 under the Securities Act with
respect to one-half of the Penril Shares issued to the Stockholders (which shall
not include the Penril Shares being held as collateral under the Escrow
Agreement), and shall use its best efforts to cause such registration statement
to become effective as soon thereafter as practicable. Penril shall only be
required to file one registration statement pursuant to this Section 6.04(a) and
shall not be required to register the Penril Shares on any form other than Form
S-3; provided, however, that if after the filing of Penril's Form 10-K for the
fiscal year ending July 31, 1994, Penril is still unable to file a registration
statement on Form S-3, it shall as promptly as possible thereafter file a
registration statement on any available form.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
each of Penril, Subsidiary and Datability by its duly authorized officer, all as
of the day and year first above written.
PENRIL DATACOMM NETWORKS, INC.
By: /s/ Xxxxx Xxxxx Xxxxxxx
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Title: Chairman of the Board and
President
PD ACQUISITION CORP.
By: /s/ Xxxxx Xxxxx Xxxxxxx
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Title: Chairman of the Board
DATABILITY, INC.
By: /s/ Xxxxxx Xxxxxx
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Title: President
/s/ Xxxxxx Xxxxxx
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Xxxxxx X. Xxxxxx
/s/ Xxxxxxx Xxxx
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Xxxxxxx Xxxx
