EXHIBIT 2.02
AMENDMENT AGREEMENT
This Agreement is made and entered into as of the 5th day of August, 1996, by
and among Bay Networks, Inc., a Delaware corporation (the "Buyer"), Beta
Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of the
Buyer (the "Transitory Subsidiary"), and Penril DataComm Networks, Inc., a
Delaware corporation (the "Company"). The Buyer, the Transitory Subsidiary and
the Company are referred to collectively in this Agreement as the "Parties".
WITNESSETH:
WHEREAS, a Plan and Agreement of Merger dated as of June 16,
1996, was executed and entered into by and among the Parties (the "Merger
Agreement"); and
WHEREAS, the Parties desire to amend the Merger Agreement as
provided herein;
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:
1. Amendment to Section 1.2 of the Merger Agreement.
Section 1.2 of the Merger Agreement is hereby amended and
restated in its entirety to read as follows:
"1.2 The Closing. The closing of the transactions
contemplated by this Agreement (the "Closing") shall take
place at a mutually agreed upon location, commencing at 9:00
a.m. local time on a mutually agreeable date as soon as
practicable after the date on which all of the conditions to
the obligations of the Parties to consummate the
transactions contemplated by this Agreement have been
satisfied or waived (the "Closing Date"), but in no event
later than November 25, 1996.
2. Amendment to Section 1.9 of the Merger Agreement.
Section 1.9 of the Merger Agreement is hereby amended and
restated in its entirety to read as follows:
"1.9 Fractional Shares. No certificates or script
representing fractional Merger Shares shall be issued to
former Company Stockholders upon the surrender for exchange
of Certificates, and such former Company Stockholders shall
not be entitled to any voting rights, rights to receive any
dividends or distributions or other rights as a stockholder
of the Buyer with respect to any fractional Merger Shares
that would otherwise be issued to such former Company
Stockholders. In lieu of any fractional Merger Shares that
would otherwise be issued, each former Company Stockholder
that would have been entitled to receive a fractional Merger
Share shall, upon proper surrender of such person's
Certificates, receive a cash payment equal to the Buyer
Stock Market Price, multiplied by the fraction of a share
that such Company Stockholder would otherwise be entitled to
receive.
3. Amendment to Section 6.1 of the Merger Agreement. Section
6.1 of the Merger Agreement is hereby amended and restated
in its entirety to read as follows:
"6.1 Termination of Agreement. The Parties may terminate
this Agreement prior to the Effective Time (whether before
or after Requisite Stockholder Approval) as provided below:
(a) the Parties may terminate this Agreement by mutual
written consent;
(b) the Buyer may terminate this Agreement by giving
written notice to the Company in the event the Company
is in breach, and the Company may terminate this
Agreement by giving written notice to the Buyer and
the Transitory Subsidiary in the event the Buyer or
the Transitory Subsidiary is in breach, of any
material representation, warranty or covenant
contained in this Agreement, and such breach is not
remedied within 10 days of delivery of written notice
thereof;
(c) any Party may terminate this Agreement by giving
written notice to the other Parties at any time after
the Company Stockholders have voted on whether to
approve this Agreement and the Merger in the event
this Agreement and the Merger failed to receive the
Requisite Stockholder Approval;
(d) the Buyer may terminate this Agreement by giving
written notice to the Company if the Closing shall not
have occurred (i) on or before November 25, 1996, by
reason of the failure of any condition precedent under
Section 5.1 or 5.2 hereof (unless the failure results
primarily from a breach by the Buyer or the Transitory
Subsidiary of any representation, warranty or covenant
contained in this Agreement);
(e) the Company may terminate this Agreement by giving
written notice to the Buyer and the Transitory
Subsidiary if the Closing shall not have occurred (i)
on or before November 25, 1996, by reason of the
failure of any condition precedent under Section 5.1
or 5.3 hereof (unless the failure results primarily
from a breach by the Company of any representation,
warranty or covenant contained in this Agreement); or
(f) any Party may terminate this Agreement if the
Board of Directors of the Company shall have withdrawn
or modified in a manner adverse to the Buyer its
approval or recommendation to the Company Stockholders
of this Agreement or the Merger or shall have approved
or recommended to the Company Stockholders that they
accept the terms of any Acquisition Proposal or shall
have resolved to take any of the foregoing actions;
provided, however, that reasonable delay required to
comply with the Company Board Fiduciary Duties shall
not be deemed to be a withdrawal or a modification
adverse to the Buyer.
4. Replacement of Exhibit C to the Merger Agreement.
Exhibit C to the Merger Agreement is replaced in its entirety by
Exhibit C attached hereto.
5. Effect of Modification. In the event of any
inconsistency between the provisions of the Merger Agreement
and the applicable provisions of this Agreement, the
provisions of this Agreement shall control in all respects.
Otherwise, the Merger Agreement shall remain in full force
and effect.
6. Successors and Assigns; Governing Law. Subject to the Merger
Agreement as amended hereby, this Agreement shall inure to
the benefit of and bind the respective heirs, personal
representatives, successors and assigns of the parties
hereto and shall be governed by and construed in accordance
with the internal laws (and not the law of conflicts) of the
State of Delaware.
7. Severability; Modifications. Should one or more of the
provisions of this Agreement be determined by a court of law
to be illegal or unenforceable, the other provisions shall
nevertheless remain effective and shall be enforceable.
This Agreement shall not be modified without the prior
consent of each of the Parties.
8. Execution in Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an
original but all of which together shall constitute one and
the same instrument.
This Agreement, once executed, may be delivered to either party
through the use of facsimile transmission. In this regard, any and all
signatures of the parties appearing on any facsimile copies of this Agreement
shall be deemed, unless otherwise proved, the lawful and valid signature of
the executing party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date set forth below.
Effective date of this Agreement: August 5, 1996.
THE BUYER:
BAY NETWORKS, INC.
By:____________________________
Title:_________________________
THE TRANSITORY SUBSIDIARY:
BETA ACQUISITION CORP.
By:____________________________
Title:_________________________
THE COMPANY:
PENRIL DATACOMM NETWORKS, INC.
By:____________________________
Title:_________________________
Amendment Agreement