PLAN OF COMPLETE LIQUIDATION AND
DISSOLUTION OF ACCESS CORPORATION
This Plan of Complete Liquidation and Dissolution
(hereinafter referred to as this "Plan") is for the purpose of
effecting the complete liquidation, dissolution and distribution
of assets of ACCESS Corporation, an Ohio corporation (hereinafter
referred to as the "Corporation"), in accordance with Sections
1701.86 et seq. of the Ohio Revised Code, as follows:
1. AUTHORIZATION FOR DISSOLUTION. The Board of Directors
of the Corporation has adopted a resolution that this Plan be
submitted to the shareholders of the Corporation (the
"Shareholders") for adoption by a majority of the Shareholders to
be effective, upon its adoption, simultaneously with the closing
of that certain Asset Purchase Agreement, dated as of August 19,
1997 (the "Asset Purchase Agreement"), between the Corporation and
Universal Document Management Systems, Inc. an Ohio corporation
("Purchaser") (the "Effective Date").
2. APPROVAL AND ADOPTION OF THE PLAN. The Board of
Directors of the Corporation has determined that it is in the best
interests of the Corporation and of its Shareholders that the
liquidation of the Corporation and the distribution of its assets
be made pursuant to a formal, written plan of liquidation and
distribution, under which the Corporation shall be completely
liquidated and dissolved, all of its known debts and liabilities
shall be paid or otherwise provided for, and all of its remaining
assets shall be distributed to the Shareholders, according to
their respective interests, in complete redemption and
cancellation of all of the Corporation's shares.
3. CESSATION OF BUSINESS. After the Effective Date, the
Corporation shall cease to carry on business, except to the extent
necessary properly to wind up its affairs and to preserve the
value of its business and assets pending liquidation and
distribution.
4. SALE OF ASSETS. On or after the Effective Date, the
Board of Directors and the officers of the Corporation shall sell,
pursuant to the terms of the Asset Purchase Agreement, all the
assets (except for (i) $1.5 million in cash to fund payments (the
"Oce Cash Payments") to be made by ACCESS to Oce N.V. ("Oce")
pursuant to the terms of that certain Agreement, dated as of
August 19, 1997, between ACCESS and Oce (the "Oce Agreement"),
(ii) rights under either the Oce Agreement or the Asset Purchase
Agreement, and (iii) any proceeds of any stock options exercised
after the date of the Asset Purchase Agreement) to Purchaser, on
such terms and conditions and for such consideration as is
provided for in the Asset Purchase Agreement, including the
assumption by Purchaser of all or substantially all of the
liabilities of the Corporation. The Board of Directors and the
officers of the Corporation shall execute any instruments that are
necessary to transfer title to the property and assets.
5. PAYMENT OF DEBTS AND LIABILITIES. Prior to making any
distribution of corporate assets to the Shareholders, the Board of
Directors and the officers shall pay or make provision for the
payment of all of the known or ascertainable debts and liabilities
of the Corporation, except for payment of those debts and
liabilities acquired or assumed by Purchase pursuant to the terms
of the Asset Purchase Agreement.
The Corporation shall establish and maintain a reserve
fund (the "Reserve Fund") into which it shall deposit such
amounts, if any, as may be determined by the Board of Directors
and officers as necessary or appropriate for the payment of
unascertained or contingent liabilities and expenses of the
Corporation, including liabilities for taxes and expenses of
liquidation and dissolution. Any amount remaining in the Reserve
Fund after payment of such unascertained or contingent liabilities
and expenses shall be distributed to the Shareholders as provided
in paragraph 6 below.
6. DISTRIBUTION OF ASSETS. After payment of, or
provision for, all of the known debts and liabilities of the
Corporation, the Board of Directors and officers of the
Corporation shall distribute the remaining corporate assets to the
Shareholders of record in the following order and manner as
provided in the Corporation's Articles of Incorporation:
(a) The Oce Cash Payments shall be made to Oce as
payment in full of any rights of Oce in respect of all of Oce's
shares of capital stock of ACCESS;
(b) Any cash in excess of that distributed pursuant
to subparagraph (a) above shall be distributed, pro rata, to and
among the holder(s) of record as of the Effective Date, of the
Corporation's Common Stock (other than that held of record or
beneficially by Oce); and
(c) Assets other than cash (including, without
limitations, contingent rights of the Corporation under the Asset
Purchase Agreement to receive additional consideration) shall be
distributed to and held by a liquidating trust to be established
by the Corporation pursuant to a trust agreement, substantially in
the form attached hereto as Exhibit A and incorporated herein by
reference, for the purpose of receiving such additional
consideration.
All such distributions shall be made to the
Shareholders on the following conditions: (1) that, on demand
made by the Board of Directors, each Shareholder properly endorse
and surrender for cancellation, the certificate or certificates
evidencing ownership of the Shareholder's shares; and (2) that the
distribution shall be in complete satisfaction of the rights of
each Shareholder as a Shareholder of the Corporation.
7. POWERS OF DIRECTORS AND OFFICERS. The Board of
Directors and the officers of the Corporation shall carry out the
provisions of this Plan and shall take all actions that are
necessary or advisable to effect the complete liquidation of the
Corporation and its dissolution, including the execution of such
instruments as may be required to vest title to the assets in the
Shareholders, and the execution of all documents required by law
to be filed to effect the dissolution of the Corporation.
Exhibit A
LIQUIDATING TRUST AGREEMENT
THIS LIQUIDATING TRUST AGREEMENT (this "Agreement") is
entered into as of the ____ day of ____________, 1997, by and
among ACCESS Corporation, an Ohio corporation, in its capacity as
grantor hereunder (the "Grantor"), and Scott D. Watkins and Newton
W. Baker in their capacities as trustees hereunder (each, a
"Trustee" and, together, the "Trustees").
WHEREAS, pursuant to that certain Asset Purchase Agreement,
dated as of August 19, 1997 (the "Asset Purchase Agreement"), by
and between the Grantor and Universal Document Management Systems,
Inc. ("UDMS"), the Grantor has sold its Assets (as defined in the
Asset Purchase Agreement) to UDMS in exchange for $3.0 million in
cash and up to $1.0 million cash in contingent additional
consideration (the "Contingent Consideration") (said transaction
referred to herein as the "Asset Sale");
WHEREAS, the shareholders of the Grantor (the
"Shareholders") have adopted a Plan of Complete Liquidation and
Dissolution of the Grantor (the "Plan"), which Plan calls for the
complete liquidation of the Grantor to be commenced upon closing
of the Asset Sale and completed promptly thereafter;
WHEREAS, closing of the Asset Sale has occurred;
WHEREAS, pursuant to the Plan and the Oce Agreement (as
defined in the Asset Purchase Agreement), the Grantor has agreed
to distribute its Assets other than cash, including the right to
receive the Contingent Consideration (all such assets referred to
herein as the "Trust Assets"), to a liquidating trust to be held
by the Trustees for the benefit of the holders of the common stock
of the Grantor other than Oce N.V. (the "Beneficiaries") upon the
terms and subject to the uses and purposes hereinafter set forth;
and
WHEREAS, this liquidating trust is formed with the objective
of liquidating assets and not as an organization having as its
purpose the carrying on of a profit-making business;
NOW, THEREFORE, in consideration of the premises and the
mutual promises contained herein, the parties hereto agree as
follows:
ARTICLE VIII.
TRUST ESTABLISHED
Grantor, desiring to establish the trust created
herein (the "Trust"), has executed this Agreement and hereby
transfers all of its right, title and interest in and to the Trust
Assets, including its right to receive the Contingent
Consideration, to the Trustees to be held by the Trustees in
conformity with this Agreement, for the uses and purposes and
subject to the terms, conditions, powers and agreements as set
forth herein.
ARTICLE IX.
IRREVOCABILITY OF TRUST
This Agreement shall be irrevocable and not subject to
amendment.
ARTICLE X.
TERM OF TRUST
The term of the Trust shall commence on the date hereof and
shall terminate upon the earlier to occur of: (i) that date on
which the Trustees determine, in their sole discretion, that all
Trust Assets have been distributed to and among the Beneficiaries
as provided herein, or (ii) the second anniversary of the Closing
Date (the "Termination Date").
ARTICLE XI.
ALLOCATION OF INTERESTS IN TRUST
Each Beneficiary shall, during the term of this Agreement,
have an undivided percentage interest in the Trust Assets. The
undivided percentage interest of each Beneficiary (the
"Beneficiary's Percentage Interest") shall equal such
Beneficiary's percentage interest in the common stock of Grantor
immediately after the cancellation by the Grantor of the Oce
Shares (as defined in and contemplated by the Oce Agreement).
ARTICLE XII.
TRUST TERMS
All Trust Assets shall be held by the Trustees for the
benefit of the Beneficiaries, subject to the following terms:
A. Accumulation of Trust Income. During the term of this
Agreement, the Trustees shall collect and receive all income and
profits, if any, arising from or growing out of Trustee's
ownership of the Trust Assets, and, after deducting all proper
costs, charges, taxes and expenses as may be due against the
Trust, shall distribute, at least annually, all remaining income
or profits to and among the Beneficiaries in proportion to each
Beneficiary's Percentage Interest.
B. Payment of Trust Expenses. Prior to the distribution
of Trust Assets to the Beneficiaries as provided in paragraph C.
below, the Trustees shall pay from the Trust Assets all expenses,
if any, determined in the sole discretion of the Trustees to be
reasonable and necessary in the administration of the Trust.
C. Distribution of Trust Assets. On the Termination
Date, all of the Trust Assets remaining in the Trust, if any,
shall be distributed by the Trustees to and among the
Beneficiaries in proportion to each Beneficiary's Percentage
Interest; provided, however, that all proceeds, if any, except for
a reasonable amount to cover contingencies and claims, from the
sale of Trust Assets shall be distributed to and among the
Beneficiaries at least annually.
ARTICLE XIII.
TRUSTEES
The Grantor hereby appoints Scott D. Watkins and Newton W.
Baker as the original Trustees under this Agreement.
Either Trustee may resign at any time by delivering to the
other Trustee his written resignation, in which event the
resignation shall take effect immediately. If either of the
original Trustees should die, become disabled, resign or otherwise
cease to serve as a Trustee hereunder, then the remaining of the
original Trustees shall continue to serve as the sole Trustee
hereunder. If both of the original Trustees should die, become
disabled, resign or otherwise cease to serve as Trustees
hereunder, then a substitute or successor Trustee shall be
appointed by Beneficiaries collectively holding a majority of the
Beneficiary's Percentage Interests.
The use of the term "Trustee" in this trust Agreement shall
be a reference to the original Trustees above named and any
substitute or successor Trustee as provided herein. No bond shall
be required of any Trustee acting hereunder.
ARTICLE XIV.
TRUSTEES DUTIES AND POWERS
The Trust created hereunder shall be held subject to the
following terms and conditions, and the Trustees shall have, in
addition to any other powers granted to the Trustees elsewhere in
this Agreement or by law, the following powers:
A. Investments. The Trustees shall have the power to
invest Trust Assets in demand and time deposits in banks or
savings institutions, or in temporary investments, such as short-
term United States Treasury Bills and money market funds, in
addition to keeping certain funds, to the extent deemed advisable
by the Trustees, in a readily accessible checking account.
B. Claims. The Trustees shall have the power to
arbitrate, defend, enforce, release or settle any claim pertaining
to the Trust Assets, and the Trustees are hereby expressly
authorized to pay any such claim out of the Trust Assets.
Further, the Trustees shall have the power to initiate litigation
on behalf of the Beneficiaries, and to otherwise pursue any and
all claims held jointly by the Beneficiaries; provided, however,
the Trustees shall not be obligated to initiate litigation or
otherwise pursue claims unless the Trustees are indemnified to
their satisfaction against all expenses and liabilities in which
the Trustees may, in their judgment, be involved by their efforts
in pursuing any such claims.
C. Nominee. The Trustees may take and hold all
securities or other personal property in bearer form, in the name
of any of the Trustees, or in the name of a nominee, with or
without disclosing any fiduciary relationship, but the Trustees
shall be liable for any wrongful act of the nominee with respect
to such assets.
D. Employment of Agents. The Trustees may employ and pay
reasonable compensation to agents, investment counsel and
attorneys, including the Trustees and any person, partnership,
corporation or other entity with which the Trustees may be
associated. The Trustees shall not be liable for any neglect,
omission or wrongdoing of such agents, investment counsel or
attorneys, provided that the Trustees shall have exercised
reasonable care in the selection of any persons.
E. Instruments. The Trustees may execute and deliver all
necessary or proper deeds or other instruments.
F. Distribution to Incapacitated Persons. During the
incapacity of any one of the Beneficiaries, the Trustees are
authorized, in the Trustees' sole discretion, to pay any sum
distributable to such Beneficiary, without liability to the
Trustee, by paying the sum to such Beneficiary or to any person
whomsoever for the use and benefit of such Beneficiary, whether or
not such person shall be the guardian of such Beneficiary.
G. Nonliability of Trustees; Acts of Predecessor
Fiduciary. The Trustees shall not be personally liable for any
assessments, charges or damages, or for any obligations in
carrying out or effectuating the purposes of this Agreement,
provided, however, that nothing shall relieve the Trustees from
liabilities arising out of their own willful misconduct, bad faith
or gross negligence. The Trustees shall not be responsible in any
manner whatsoever for the validity or sufficiency of this
Agreement. A Trustee or successor Trustee shall not be liable for
any act or omission of any predecessor Trustee or co-Trustee, nor
have a duty to enforce any claims against any such predecessor
Trustee or co-Trustee on account of any such act or omission.
H. Protection on Distributions. The Trustees shall be
protected in continuing to make distributions of income or
principal to the Beneficiaries until the Trustees shall have
actual knowledge of the happening of an event such as death or
other occurrence which would affect such distributions.
I. Reliance on Documents. Each Trustee shall be
protected in acting upon any paper or document believed by him to
be genuine.
J. Individual Trustee May Bind Trust. The signature
and/or acts of either of the Trustees shall be sufficient to bind
the Trust.
ARTICLE XV.
NON-ASSIGNABILITY
No Beneficiary may sell, assign, transfer, convey or
encumber this Agreement or any right or interest under this
Agreement, except by death or operation of law.
ARTICLE XVI.
GOVERNING LAW
The validity, effect and interpretation of this Agreement
and of the property interests created herein shall be controlled
by the laws of the State of Ohio.
ARTICLE XVII.
COMPENSATION OF TRUSTEES
The Trustees shall serve without compensation but shall be
entitled to reimbursement for their out of pocket expenses, if
any, including attorney's fees, incurred in connection with the
administration of the Trust.
IN WITNESS WHEREOF, the parties have executed this
Liquidating Trust Agreement as of the day and year first above
written.
ACCESS CORPORATION, as Grantor
By:____________________________
Title: ________________________
_____________________________
Scott D. Watkins, Trustee
______________________________
Newton W. Baker, Trustee
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