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EXHIBIT 2.3.2
FIRST AMENDMENT TO AGREEMENT AND PLAN
OF REORGANIZATION BETWEEN ACCESS BEYOND, INC.
AND XXXXX MICROCOMPUTER PRODUCTS, INC.
This First Amendment to the Agreement and Plan of Reorganization
between Access Beyond, Inc. and Xxxxx Microcomputer Products, Inc. (this
"Amendment") is entered into as of November 7, 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
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.
Capitalized terms used but not otherwise defined in this Agreement have the
meanings ascribed to such term in the Merger Agreement.
X. Xxxxxxx Associates, L.P., Westgate International, L.P.,
Montrose Investments, Ltd., Xxxxxxxx Investments, L.P., Xxxxx International,
Ltd., Xxxxxxx Investment International, Ltd., Ramius Fund, Ltd., Gam Arbitrage
Investments, Inc., Leonardo, L.P., Raphael, L.P., and AG Super Fund
International Partners, L.P. (the "Investors") have agreed with Access Beyond
to purchase up to 45,000 shares of Access Beyond's 6% Cumulative Convertible
Preferred Stock, with a $1,000 per share liquidation preference, for the price
of $1,000 per share (the "Preferred Stock Investment").
C. As a part of the Preferred Stock Investment, Access Beyond
will be required to create and issue shares of 6% Cumulative Convertible
Preferred Stock, with a $1,000 per share liquidation preference.
D. Certain other amendments to the Merger Agreement are now
necessary.
NOW, THEREFORE, in reliance upon the recitals set forth above, the
Parties hereto agree as follows:
1. Access Beyond shall create a class of preferred stock known as "6%
Cumulative Convertible Preferred Stock" which class of preferred stock shall
have an initial liquidation preference of $1,000 per share and is more fully
described in a Certificate of Designations substantially in the form attached
hereto as Exhibit A to this Amendment. Without violating the
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Merger Agreement, Access Beyond may enter into a Preferred Stock Investment
Agreement, a Registration Rights Agreement and such other agreements as are
necessary and appropriate to effectuate the sale by Access Beyond to Investors
of up to 45,000 shares of the newly-created 6% Cumulative Convertible Preferred
Stock for up to $45,000,000 with the sale of 10,000 of the said shares for
$10,000,000 taking place prior to the Closing of the Merger Agreement and the
sale of up to 35,000 additional shares of the 6% Cumulative Convertible
Preferred Stock taking place after Closing of the Merger Agreement. 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, 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
appropriately adjusted to accommodate the dilution occasioned by conversion of
the 6% Cumulative Convertible Preferred Stock.
2. Recital D (i) of the Merger Agreement is hereby stricken in its
entirety and replaced with the following:
(i) Chestnut Capital Limited Partnership, Rinzai Limited
and Vulcan Ventures Incorporated, who together hold a majority or more
of the issued and outstanding shares of each class or series of Xxxxx
capital stock, and a sufficient number of shares of Xxxxx capital
stock to approve the Merger (the "Principal Xxxxx Shareholders"), are
each executing and delivering to Access Beyond a fully signed copy of
a certain Voting Agreement substantially in the form of Exhibit C-1
voting a sufficient number of shares of Xxxxx capital stock to
constitute a vote of sixty-nine and five tenths percent (69.5%) of the
issued and outstanding shares of Xxxxx capital stock in favor of the
Merger, containing a market standoff agreement, an agreement to vote
in favor of the Merger, this Agreement, the Certificate of Merger and
the transactions provided for herein and against any transaction that
could adversely affect the Merger (collectively, the "Voting
Agreements").
3. Section 5.3.3 of the Merger Agreement is hereby stricken in its
entirety.
4. Section 7.13 of the Merger Agreement is hereby stricken in its
entirety and replaced with the following:
7.13 Access Beyond Restated Certificate. The stockholders
of Access Beyond shall have approved and the Secretary of State of
Delaware shall have accepted for filing the Amended and Restated
Certificate of Incorporation substantially in the form attached hereto
as Exhibit 7.13 (the "Restated Certificate") in order to (a) change
Access Beyond's name to Xxxxx Communications Inc.; (b) create the
Access Beyond Series A Stock in an amount sufficient to provide for
conversion of the Xxxxx Series B Stock; and (c) increase the number of
shares of all classes of Access Beyond stock to 160,000,000.
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5. Section 9.1 (b) of the Merger Agreement is hereby stricken in its
entirety and replaced with the following:
(b) by either Access Beyond or Xxxxx if the Merger shall not
have been consummated by 5:00 p.m. (Eastern Time) on March 1, 1998
(unless the failure to consummate the Merger is attributable to a
failure on the part of the Party seeking to terminate this Agreement
to perform any material obligation required to be performed by such
Party at or prior to the Effective Time);
6. Section 9.3.1 of the Merger Agreement is hereby stricken in its
entirety and replaced with the following:
9.3.1 Allocation. Except as set forth in this Section 9.3,
each Party will bear its respective expenses and fees of its own
accountants, attorneys, investment bankers and other professionals
incurred with respect to this Agreement and the transactions
contemplated hereby; provided, however, that Xxxxx and Access Beyond
shall share equally all fees and expenses other than attorneys' fees,
incurred in connection (i) with the printing and filing of the Form
S-4 and the Prospectus/Proxy Statement and amendments or supplements
thereto; (ii) any filings required of Xxxxx or Access Beyond pursuant
to the HSR Act; and (iii) any filings required of Xxxxx or Access
Beyond pursuant to NASDAQ requirements. Each Party shall promptly
reimburse its principal shareholders, stockholders, officers and
directors for amounts paid by them as filing fees to governmental
agencies and other reasonable and necessary expenses that are incurred
by such persons to comply with any consent or approval required to be
obtained in order to perform this Agreement.
7. Exhibit 1.5B (Certificate of Officer of Xxxxx Microcomputer Products,
Inc.) to the merger Agreement is hereby stricken in its entirety and replaced
with the new Exhibit 1.5B, set forth as Exhibit B to this Amendment.
8. Exhibit C-4 (Executive Employment Agreement of Xxxxxx X. Xxxxxx) to
the Merger Agreement is hereby stricken in its entirety and replaced with the
new Exhibit C-4, set forth as Exhibit C to this Amendment.
9. Exhibit C-5 (Executive Employment Agreement of Xxxxxx X. Xxxxx) to the
Merger Agreement is hereby stricken in its entirety and replaced with the new
Exhibit C-5, set forth as Exhibit D to this Amendment.
10. All other provisions of the Merger Agreement shall remain unchanged
and are hereby declared to be in full force and effect, except as expressly
amended hereby.
11. By executing this Amendment, Xxxxx represents that the Amendment and
the actions contemplated hereby have been duly authorized by the Xxxxx
Transaction Committee and Access
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Beyond represents that the 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 Agreement as
of the date first above written.
ACCESS BEYOND, INC. XXXXX MICROCOMPUTER PRODUCTS, INC.
BY:/s/ Xxxxxx X. Xxxxxx By:/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxxx, President Xxxxxx X. Xxxxx, Chairman
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EXHIBIT B
CERTIFICATE OF OFFICER
OF XXXXX MICROCOMPUTER PRODUCTS, INC.
The undersigned officer of Xxxxx Microcomputer Products, Inc., a
Georgia corporation ("Xxxxx"), on behalf of the management of Xxxxx, after
consulting with legal counsel and financial auditors regarding the meaning of
and the factual support for the following representations, hereby represent, in
connection with the proposed merger of Xxxxx with and into _________________, a
Georgia corporation ("Newco"), a wholly owned subsidiary of Access Beyond,
Inc., a Delaware corporation ("Acquiror"), with Xxxxx surviving the merger and
with Xxxxx shareholders receiving solely Acquiror voting stock in the merger,
intended to qualify as a reorganization described in Section 368(a)(1)(A) of the
Internal Revenue Code of 1986, as amended (the "Code"), by virtue of the
provisions of Section 368(a)(2)(E), collectively referred to as the "Merger,"
pursuant to that certain Agreement and Plan of Reorganization by and between
Acquiror, Newco and Xxxxx, dated as of _____________, 1997, and Exhibits
thereto (collectively the "Agreement"),(1) that to the best of their knowledge
and belief the following facts are now true, correct and complete; and will
continue to be true, correct and complete as of the Effective Time for the
Merger and thereafter, as relevant.
1. At least 90% of the fair market value of its net assets and
at least 70% of the fair market value of the gross assets held by Xxxxx
immediately before the Merger during the Pre-Merger Period will be held by
Xxxxx immediately after the Merger. For the purpose of determining the
percentage of the net and gross assets held by Xxxxx immediately before the
Merger for purposes of this representation, the following assets will be
treated as property held by Xxxxx immediately prior but not subsequent to the
Merger: (a) assets disposed of by Xxxxx prior to the Merger and in
contemplation thereof (including without limitation any asset disposed of by
Xxxxx, other than in the ordinary course of business, during the period ending
on the Effective Time of the Merger and beginning with the commencement of
negotiations (whether formal or informal) between Xxxxx and Acquiror regarding
the merger (the "Pre-Merger Period"), (b) assets used by Xxxxx to pay expenses
or liabilities incurred in connection with the Merger, and (c) assets used to
make distributions (except for regular and normal dividends), redemption or
other payments in respect of Xxxxx stock or rights to acquire such stock
(including payments treated as such for tax purposes) that are made in
contemplation of the merger or related thereto.
2. Xxxxx has made no transfer of any of its assets (including
any distribution of assets with respect to, or in redemption of, stock) in
contemplation of the Merger or during the Pre-Merger Period other than (a) in
the ordinary course of business, and (b) payments for expenses incurred in
connection with the Merger.
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(1) Unless otherwise indicated, all capitalized terms shall have the
meaning defined in the Agreement.
