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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-K/A
AMENDMENT NO. 1
ANNUAL REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
FOR THE FISCAL YEAR ENDED JULY 31, 1997
Commission File No. 21697
ACCESS BEYOND, INC.
A Delaware Corporation
IRS Employer Identification No. 52-1987873
1300 Quince Orchard Blvd., Gaithersburg, Maryland 20878
Telephone - (301) 921-8600
Securities registered pursuant to Section 12(b) of the Act:
NONE
Securities registered pursuant to Section 12(g) of the Act:
Title of each class:
Common Stock, $.01 par value
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months and (2) has been subject to such filing requirements for
the past 90 days. Yes /X/ No / /
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. / X /
As of November 19, 1997 the aggregate market value of the Company's voting
Common Stock held by non-affiliates of the Company was approximately $52.0
million.
As of November 19, 1997 there were 12,516,183 shares of the registrant's
Common Stock, $.01 par value outstanding.
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PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS
Pursuant to the Company's certificate of incorporation and by-laws, the
Company's Board of Directors is divided into three classes with each director
serving a three year term (after the initial term). The following table sets
forth certain information as to persons who currently serve as directors and
executive officers of the Company.
DIRECTORS
Name, Age and Positions with the
Company other than Director Principal Occupation Information
- -------------------------------- --------------------------------
Class I - Term Expiring at 1997 Annual Meeting
Barbara Perrier Dreyer, 42......... Ms. Perrier Dreyer has served as a Vice
President and Chief Financial Officer of
Communication Systems Technology, Inc., a
developer of software and hardware
communications and control equipment,
since March 1996, and became a Senior Vice
President in October 1997. In July 1997,
Ms. Perrier Dreyer was appointed a member
of the Board of Directors of the
International Teleconferencing
Association. Ms. Perrier Dreyer was
President and founder of VideoGrafects,
Inc., a multimedia communications company
specializing in the production of video
and computer based material, from its
founding in August 1992 until the Company
was sold to French Bray in March 1996.
Prior to founding VideoGrafects, Inc., Ms.
Perrier Dreyer was a special (investing)
partner with New Enterprise Associates, a
venture capital firm.
Paul Schaller, 49.................. Mr. Schaller has served as President of
Schaller Associates, a management
consulting firm, since March, 1996. From
September 1995 to March 1996, Mr. Schaller
was Vice President of Business Development
with the LAN Switching Division of FORE
Systems, Inc., a provider of ATM switching
solutions. From August 1993 to August
1995, Mr. Schaller was the Vice President
of Marketing at Alantec, Inc., a provider
of routing switches for the internet
working market. Mr. Schaller was Vice
President of Sales and Marketing at
Harmonic Lightwaves, Inc., a fiber optic
equipment provider from 1992 to 1993. From
1982 to 1991 Mr. Schaller was Vice
President of Sales and Marketing and
General Manager of the Digital Division of
Vitalink Corporation, a provider of remote
internet working equipment.
2
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Name, Age and Positions with the
Company other than Director Principal Occupation Information
- -------------------------------- --------------------------------
Class II -- Term Expiring at 1998 Annual Meeting
John Howard, 44..................... Mr. Howard has served as Senior Managing
Director of Bear, Stearns & Co., Inc.
since March 1997. Mr. Howard was the Chief
Executive Officer of Gryphon Capital
Partners Corporation, an investment firm,
from July 1996 to March 1997. He served as
Co-Chief Executive Officer of Vestar
Capital Partners, a leveraged buyout firm,
from 1990 to 1996. Mr. Howard is also a
director of Celestial Seasonings, Inc., a
manufacturer of herbal teas. Mr. Howard is
the brother of Ronald A. Howard, the
Chairman of the Board, President and Chief
Executive Officer of the Company.
Arthur Samberg, 56.................. Mr. Samberg has served as President of
Dawson-Samberg Capital Management, Inc., a
registered investment advisor, since 1985.
Mr. Samberg is a General Partner and
senior portfolio manager of Pequot
Partners Fund, L.P., Pequot International
Fund Inc. and Pequot Endowment Fund, L.P.
Class III-Term Expiring at 1999 Annual Meeting
Ronald Howard, 41................... Mr. Howard has served as Chairman of the
Chairman of the Board, President and Board, President and Chief Executive
Chief Executive Officer Officer of the Company since November
1996. Mr. Howard served as President of
the Datability Networks Division of Penril
from November 1994 to November 1996, and
as Co-President of that division from May
1993 until November 1994. He had held the
position of Executive Vice President of
Penril from May 1993 until November 1996.
Mr. Howard was President of Datability
Inc. from its founding in 1977 until it
was acquired by Penril in May 1993. Mr.
Howard is the brother of John Howard, a
director of the Company.
EXECUTIVE OFFICERS (OTHER THAN
DIRECTORS)
James Gallagher, 52................. Mr. Gallagher has served as Vice President
Vice President -- Sales of Sales of the Company since November
1996. He was Vice President -- Sales of
the Datability Networks Division of Penril
from November 1994 until November 1996.
From May 1993, when Penril acquired
Datability, Inc, until November 1994, Mr.
Gallagher was Vice President, North and
South American Sales of the Datability
Networks Division. At Datability, Inc, he
was Vice President of Sales from April
1990 until May 1993.
3
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COMMITTEES OF THE COMPANY'S BOARD
The Company's board of directors (the "Company Board") has established
an Audit Committee (the "Audit Committee") and a Compensation Committee (the
"Compensation Committee"). The Company Board met six (6) times during the last
fiscal year.
The general functions of the Audit Committee include selecting the
independent auditors (or recommending such action to the Company Board),
evaluating the performance of the independent auditors and their fees for
services, reviewing the scope of the annual audit with the independent auditors
and the results of the audit with management and the independent auditors,
consulting with management, internal auditors and the independent auditors as to
the systems of internal accounting controls, and reviewing the nonaudit services
performed by the independent auditors and considering the effect, if any, on
their independence. The members of the Audit Committee are to be outside
directors and are selected by the full Company Board. The current members of the
Audit Committee are Barbara Perrier Dreyer and John Howard, the brother of
Ronald Howard. During the Company's last fiscal year, the Audit Committee met
several times in conjunction with meetings of the Company Board and Ms. Perrier
Dreyer, on behalf of the Audit Committee, met several times with Company
management and the Company's auditors.
The Compensation Committee is authorized and directed to (i) review and
approve the compensation and benefits of the Company's executive officers, (ii)
review and approve the annual salary plans, (iii) review management organization
and development, (iv) review and advise management regarding the benefits,
including bonuses, and other terms and conditions of employment of other
employees, (v) administer the Incentive Plan and the granting of options under
that plan, the Directors' Plan and any other plans that may be established, (vi)
review and recommend for the approval of the Company Board the compensation of
directors, and (vii) determine the compensation and benefits of the Chief
Executive Officer and review and approve, or modify if appropriate, the
recommendations of the Chief Executive Officer with respect to compensation and
benefits of other executive officers. The members of the Compensation Committee
are to be outside directors and are selected by the full Company Board. The
current members of the Compensation Committee are Paul Schaller and Arthur
Samberg. The Compensation Committee met twice during the Company's last fiscal
year.
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ITEM 11. EXECUTIVE COMPENSATION
The following table provides information with respect to the annual
compensation for services in all capacities to Penril or the Company for fiscal
years ended July 31, 1997, 1996 and 1995 of (i) the Company's chief executive
officer and (ii) the other three most highly compensated executive officers of
the Company (the "Named Executive Officers") who were employed by the Company at
the end of fiscal 1997:
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
ANNUAL LONG-TERM
COMPENSATION (1) COMPENSATION AWARDS
---------------- -------------------
NAME AND ALL OTHER
PRINCIPAL POSITION YEAR SALARY STOCK OPTIONS COMPENSATION (2)
- ------------------ ---- -------- ------------- ----------------
<S> <C> <C> <C> <C>
Ronald Howard ....................... 1997 $218,982 300,000(3) $568,269
Chairman of the Board, ............ 1996 $221,877 250,000(4) $ 784
President and Chief ............... 1995 $200,000 30,000(4) $ 5,458
Executive Officer
James Gallagher ..................... 1997 $236,204 75,000(3) $ 200
Vice President -- Sales ........... 1996 $188,293 20,000(4) $ 300
............................... 1995 $167,786 10,000(4) $ 250
Mark Silverman (5) .................. 1997 $155,993 60,000(3) $ 200
Vice President -- Research ........ 1996 $109,577 15,000(4) $ 300
and Development ................... 1995 $105,674 5,000(4) $ 250
John Clary (6) ...................... 1997 $155,993 225,000(3) $ --
Senior Vice President and Chief ... 1996 -- -- --
Operating Officer ................. 1995 -- -- --
</TABLE>
- --------
(1) In accordance with the rules of the Securities and Exchange Commission,
the compensation set forth in the table does not include medical, group
life insurance or other benefits which are available to all salaried
employees of the Company, and certain perquisites and other benefits,
securities or property which do not exceed the lesser of $50,000 or 10% of
the Named Executive Officer's salary and bonus shown in the table.
(2) Includes for fiscal 1997, $562,500 paid to Mr. Howard upon the closing of
the Penril/Bay Merger in a change of control payment and $5,569 paid for
one-half of the life insurance premium purchased on behalf of Mr. Howard,
pursuant to the Mr. Howard's employment agreement with the Company.
Includes for fiscal 1997 and 1996, $200 and $300 respectively paid for
benefits to Mr. Howard, Mr. Gallagher and Mr. Silverman pursuant to the
401(k) plan. Includes for fiscal 1996 $274 for Mr. Howard, under the
Penril Split Dollar Life Insurance Program and $210 for Mr. Howard paid to
the Exec-u-Care Medical Insurance Trust.
(3) Represents options granted under Access Beyond's 1996 Long-Term Incentive
Stock Option Plan. The options are exercisable at the price of $6.625 per
share, the fair market value on the date of grant, except for 100,000
options granted to Mr. Clary which are exercisable at $4.00 per share, the
exercise price on the date of grant.
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(4) Represents options granted under Penril's 1980 Long-Term Incentive Stock
Option Plan. The options were exercisable at prices varying from $2.31 to
$8.00 per share, the fair market value on the date of grant. All options
were exercised prior to the spin-off of the Company in November 1996.
(5) Mr. Silverman's employment with the Company terminated after the end of
fiscal 1997.
(6) Mr. Clary joined Penril on August 5, 1996 as Vice President of Strategic
Planning at an annual salary of $150,000. Mr. Clary's employment with the
Company terminated after the end of fiscal 1997.
STOCK OPTIONS
The following table sets forth certain information with respect to
options granted during the year ended July 31, 1997 to the Named Executive
Officers:
OPTION GRANTS IN LAST FISCAL YEAR
<TABLE>
<CAPTION>
Individual Grants
------------------------------------------------ Potential Realizable Value
Percent of At Assumed Annual Rates
Total of Stock Price
Securities Options Appreciation for Option
Underlying Granted to Exercise Terms ($)
Options Employees in Price Expiration --------------------------
Name Granted (#) Fiscal Year ($/share) Date 5% 10%
---- ----------- ------------ --------- ---------- -- ---
<S> <C> <C> <C> <C> <C> <C>
Ronald A Howard 300,000 20.4% 6.625 12/5/06 $1,249,928 $3,167,563
James Gallagher 75,000 5.1% 6.625 12/5/06 312,482 791,891
Mark Silverman 60,000 4.1% 6.625 12/5/06 249,986 633,513
John Clary 125,000 8.5% 6.625 12/5/06 520,803 1,319,818
100,000 6.8% 4.00 6/4/07 251,558 637,497
</TABLE>
OPTION EXERCISES AND HOLDINGS
The following table sets forth certain information concerning each
exercise of stock options, during the fiscal year ended July 31, 1997 by the
Named Executive Officers and unexercised stock options held by the Named
Executive Officers as of the end of such fiscal year.
AGGREGATED OPTION/SAR EXERCISES IN LAST FISCAL YEAR
AND FISCAL YEAR-END OPTION/SAR VALUES
<TABLE>
<CAPTION>
Value of
Number of Per Share Unexercised In-
Unexercised Exercise Price the-Money
Options/SARs at of Unexercised Options/SARs at
Shares Fiscal Year-End Options at Fiscal Year-End
Acquired on Exercisable/ Fiscal Year- Exercisable/
Exercise (1) Value Realized (2) Unexercisable (3) End Unexercisable (4)
Name (#) ($) (#) ($) ($)
- -------------------- ------------ ------------------ ----------------- -------------- -----------------
<S> <C> <C> <C> <C> <C>
Ronald Howard 370,000 1,697,125 --/300,000 6.625 --/--
James Gallagher 75,000 611,695 --/ 75,000 6.625 --/--
Mark Silverman 40,000 286,481 --/ 60,000 6.625 --/--
John Clary none none --/225,000 4.00-6.625 --/125,000
</TABLE>
(1) Reflects shares of Penril's Common Stock acquired prior to the Spin-off
transaction pursuant to the exercise of options under Penril's 1986
Long-Term Incentive Stock Option Plan.
(2) Reflects the difference between the exercise price of the options
exercised under Penril's 1986 Long-Term Incentive Stock Option Plan and
the market price of Penril's Common Stock on the date of exercise.
(3) Reflects only stock options granted under the Company's 1996 Long-Term
Incentive Plan. The Company does not grant SARs.
(4) Based on the fiscal year-end per share closing price of $5.25 (as
reported on the NASDAQ/NMS on July 31, 1997). 100,000 options held by
Mr. Clary were in-the-money.
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THE AMENDED AND RESTATED 1996 INCENTIVE OPTION PLAN
The Company Board unanimously adopted and approved the 1996 Incentive
Long-Term Option Plan on November 18, 1996, and unanimously adopted the plan, as
amended and restated, on February 4, 1997 (the "Incentive Plan"). The Incentive
Plan was approved by the stockholders of the Company at Special Meeting on March
6, 1997. On December 5, 1996, the Compensation Committee of the Company Board
(the "Committee") granted 1,080,000 options to officers and key employees of the
Company at an exercise price of $6.625, on February 4, 1997, an additional
75,000 options were granted at an exercise price of $6.75 and on June 4, 1997,
an additional 314,000 options were granted at an exercise price of $4.00, which
was the fair market value of shares of Common Stock on each such day, determined
in accordance with the provisions of the Incentive Plan. All of such options
vest at the rate of 30% after one (1) year, 60% after two (2) years and 100%
after three (3) years, subject to acceleration in certain circumstances,
including the occurrence of events which constitute a "Change in Control" as
defined in the Incentive Plan. The grant of these options was conditioned upon
the approval of the Incentive Plan by the stockholders of the Company, which
was obtained at the Special Meeting of stockholders on March 6, 1997.
The purpose of the Incentive Plan is to encourage ownership of Common
Stock of the Company by officers, key employees, consultants, advisors and other
service providers ("Eligible Persons"), to encourage their continued employment
with the Company and providing of services to the Company and to provide them
with additional incentives to promote the success of the Company.
The Incentive Plan authorizes the grant to Eligible Persons of options
("Options") consisting of "incentive stock options," as that term is defined
under the provisions of Section 422 of the Code and non-qualified stock options.
There are 2,000,000 shares of Common Stock available for granting of Options
under the Incentive Plan. The Committee administers the Incentive Plan and has
sole discretion to determine those Eligible Persons to whom Options will be
granted, the number of Options granted, the provisions applicable to each Option
and the time periods during which Options may be exercisable; provided, however,
that no person may receive Options to acquire more then 500,000 shares of Common
Stock during any given year. The Committee has complete authority to interpret
all provisions of the Incentive Plan, to prescribe, amend, and rescind rules and
regulations for its administration, and to make all other determinations
necessary or advisable for the administration of the Incentive Plan.
Options may be granted to such Eligible Persons as the Committee, in
its discretion, shall determine. In determining the Eligible Persons to whom
Options shall be granted and the number of shares of Common Stock to be issued
or subject to purchase or issuance under such Options, the Committee shall take
into account the recommendations of the Company's management as to the duties of
the Eligible Persons, their present and potential contributions to the success
of the Company and its subsidiaries, and such other factors as the Committee
shall deem relevant in connection with accomplishing the purposes of the
Incentive Plan. No Option shall be granted to any member of the Committee so
long as his or her membership on the Committee continues or to any member of the
Company Board who is not also an officer, employee or consultant of the Company
or any subsidiary.
As a condition to the grant of an Option under the Incentive Plan, an
optionee must enter into two agreements with the Company: (1) an Assignment of
Inventions and Non-Disclosure Agreement ("Confidentiality Agreement") and (2) a
Non-interference Agreement ("Non-Interference Agreement").
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2,000,000 shares of Common Stock have been reserved for issuance by the
Company under the Incentive Plan. Options may be granted to any Eligible Person
for up to an aggregate of 500,000 shares of Common Stock during any calendar
year, subject to adjustment in the event of certain changes in the Company's
capitalization.
The Committee may grant incentive stock options, non-qualified stock
options, or a combination of the two. The exercise price of each incentive stock
option may not be less than the fair market value of the Common Stock on the
date of grant. Under the Incentive Plan, fair market value is generally the
closing price of the Common Stock on NASDAQ/NMS on the last business day prior
to the date on which the value is to be determined. Unless the Committee
determines otherwise, the option price per share of any non-qualified stock
option will be the fair market value of the shares of Common Stock on the last
business day immediately preceding the date on which the option is granted. The
exercise price of each incentive stock option granted to any stockholder
possessing more than 10% of the combined voting power of all classes of capital
stock of the Company, or, if applicable, a parent or subsidiary of the Company,
on the date of grant must not be less then 110% of the fair market value on that
date. In addition, no Eligible Person may be granted an incentive stock option
to the extent the aggregate fair market value, as of the date of grant, of the
stock with respect to which incentive stock options are first exercisable by
such Eligible Person during any calendar year exceeds $100,000.
No option shall be exercisable more than ten (10) years from the date
it was granted. Options granted as incentive stock options shall not be
exercisable more than five (5) years from the date of grant. Options shall be
subject to earlier termination as provided for in the Incentive Plan.
Unless the committee determines otherwise, Options may be exercised as
to 30% of the shares subject to an Option at any time after the first
anniversary of the date of grant, as to 60% of the shares subject to an Option
at any time after the second anniversary of the date of grant and as to all
shares subject to an Option at any time after the third anniversary of the date
of grant.
Options granted under the Incentive Plan are non-transferable except
(a) by will or the laws of descent and distribution or (b) pursuant to a
qualified domestic relations order as defined in the Code or in the Employee
Retirement Income Security Act of 1974, as amended.
Pursuant to the Incentive Plan, Options are terminated upon the
termination of the Eligible Person's employment or other relationship with the
Company, for (i) cause, (ii) voluntarily without the written consent of the
Company or (iii) upon a breach or threatened breach of the Confidentiality
Agreement or Non-Interference Agreement (entered into by the Eligible Persons
upon the grant of the Option). Upon any other termination of the employment or
such other relationship with the optionee (other than in (i) - (iii) above), the
vested portion of the Option is exercisable within three months after the date
of such termination (but not beyond the term of the Option). If an optionee dies
while in the employ of the Company or while providing consulting or other
services to the Company or dies within three months after the termination of
employment or such other relationship with the Company (other than a termination
in (i) - (iii) above), then the vested portion of the Option may be exercised by
a legatee or legatees or by his or her personal representative, at any time
within one year after his or her death (but not beyond the term of the Option).
If the employment or other relationship of an optionee terminates upon
disability (as defined in Section 221(e)(3) of the Code) such person may
exercise the vested portion of the Option for one year after the date of
termination of employment (but not beyond the term of the Option).
An optionee entitled to exercise an Option shall do so by delivery of a
written notice to that effect specifying the number of shares of Common Stock
with respect to which the Option is being exercised. The notice shall be
accompanied by payment in full of the purchase price of any shares of Common
Stock to be purchased, which payment may be made in cash or, upon authorization
by the Committee, in shares of Common Stock of the Company.
Options granted under the Incentive Plan are subject to adjustment upon
a recapitalization, stock split, stock dividend, merger, reorganization,
liquidation, extraordinary dividend or other similar event affecting the Common
Stock.
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In the case of a "change in control" of the Company, each Option
granted under the Incentive Plan will terminate 90 days after the occurrence of
such "change in control" and an officer, employee or consultant will generally
have the right, commencing at least five days prior to the "change in control"
and subject to any other limitation on the exercise of the Option (but without
regard to any vesting limitations) in effect on the date of exercise, to
immediately exercise any Option in full to the extent not previously exercised.
The Incentive Plan will terminate ten (10) years after adoption and
Options will not be granted under the Incentive Plan after that date although
the terms of any Option may be amended in accordance with the Incentive Plan at
any date prior to the end of the term of such Option. Any Options outstanding at
the time of termination of the Incentive Plan will continue in full force and
effect according to the terms and conditions of the Option and the Incentive
Plan.
The Incentive Plan may be amended by the Company Board, provided that
stockholder approval will be necessary to the extent required under Section 422
of the Code or Rule 16b-3 of the General Rules and Regulations of the Exchange
Act, and provided further that no amendment may impair any rights of any holder
of an Option previously granted under the Incentive Plan without the holder's
consent.
Some of the Options granted under the Incentive Plan are intended to
qualify as incentive stock options for federal income tax purposes as described
in Section 422 of the Code. Generally, an optionee recognizes no taxable income
upon either the grant or exercise of an incentive stock option, although the
difference between the exercise price and the fair market value of the stock on
the date of exercise is an item of tax preference in computing the optionee's
alternative minimum tax liability, if any. If certain holding period
requirements are met, gain or loss on a subsequent sale of the stock by the
optionee is taxed at capital gain rates. Generally, long-term capital gains
rates will apply to the optionee's full gain at the time of the sale of the
stock, provided that: (i) no disposition of the stock is made within two (2)
years from the date of grant of the option nor within one (1) year after the
acquisition of such stock, and (ii) the option is exercised within three months
of the optionee's termination of employment (one year in the event of
disability).
A sale, exchange, gift or other transfer of legal title of stock
acquired pursuant to an incentive stock option within two (2) years from the
date of grant or within one (1) year after acquisition of the stock pursuant to
exercise of the option constitutes a disqualifying disposition. A disqualifying
disposition involving a sale or exchange produces taxable income to the
optionee, and an income tax deduction to the Company, in an amount equal to the
lesser of (i) the fair market value of the stock on the date of exercise minus
the option price or (ii) the amount realized on disposition minus the option
price. Otherwise, generally, neither issuance nor exercise of an incentive stock
option nor the disposition of the underlying stock produces a deduction for the
Company. A disqualifying disposition as a result of a gift produces taxable
income to the optionee in an amount equal to the difference between the option
price and the fair market value of the stock on the date of exercise.
Some of the Options granted under the Incentive Plan may also be
considered to be so-called non-qualified stock options for federal income tax
purposes. An optionee recognizes no taxable income upon the grant of such stock
options. Generally, Section 83 of the Code requires that, upon exercise of an
option, the optionee recognizes ordinary income in an amount equal to the
difference between the option exercise price and the fair market value of the
shares on the date of exercise; and such amount, subject to certain limitations,
is deductible as an expense by the Company for federal income tax purposes. The
ordinary income resulting from the exercise of such options is subject to
applicable withholding taxes. Generally, any profit or loss on the subsequent
disposition of such shares is short-term or long-term capital gain or loss,
depending upon the holding period for the shares.
9
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THE AMENDED AND RESTATED 1996 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
The Company Board unanimously adopted and approved the Directors' Plan
on November 18, 1996, and unanimously adopted the plan, as amended and restated,
on February 4, 1997 (the "Directors' Plan"). The Directors' Plan was approved by
the stockholders of the Company at an Annual Meeting on March 6, 1997. In
accordance with the provisions of the Directors' Plan, each non-employee
director, or his or her designee(s), was granted 25,000 options under the
Directors' Plan on November 18, 1996, at the exercise price of $7.7375, which
was the fair market value of shares of Common Stock on such day, based on the
average of the closing price of the Common Stock for the 10 day period of
November 19, 1996 to December 3, 1996, in accordance with the provisions of the
Directors' Plan. All of such options vest at the rate of 30% after one (1) year,
60% after two (2) years and 100% after three (3) years, subject to acceleration
in certain circumstances. The grant of these options was conditioned upon the
approval of the Directors' Plan by the stockholders of the Company, which was
obtained at the Annual Meeting of stockholders on March 6, 1997.
The Directors' Plan is intended to encourage non-employee directors of
the Company ("Eligible Directors") to acquire or increase their ownership of
Common Stock on reasonable terms, and to foster a strong incentive to put forth
maximum effort for the continued success and growth of the Company. The
Directors' Plan provides for the granting of non-qualified stock options to
purchase 250,000 shares of Common Stock to current and future Eligible
Directors.
The Directors' Plan is administered by the Committee. The principal
terms of the option grants are fixed in the Directors' Plan. Therefore, the
Committee will have no discretion to select which Eligible Directors receive
options, the number of shares of Common Stock included in any grant, or the
exercise price of options.
Immediately prior to the Distribution, each of the then identified
Eligible Directors, or his or her designee(s), was granted an option to purchase
25,000 shares of Common Stock. Each Eligible Director who subsequently joins the
Company Board will be granted on the first business day following the first day
of his or her term, an option to purchase 25,000 shares of Common Stock. On the
fifth business day after the Company's Annual Report on Form 10-K is filed with
the Commission for each fiscal year that the Directors' Plan is in effect, each
person who is an Eligible Director on such date will receive an additional
option to purchase 5,000 shares of Common Stock. Accordingly, on October 21,
1997 option to purchase 20,000 shares of Common Stock were granted to the four
eligible Directors. If the number of shares available for grant under the
Directors' Plan on a scheduled date of grant is insufficient to make all the
grants, then Each Eligible Director will receive an option to purchase a pro
rata number of the available shares.
250,000 shares of Common Stock (subject to adjustment) have been
reserved for issuance by the Company under the Directors' Plan. Any shares of
Common Stock subject to an option which, for any reason, terminates unexercised
or expires, shall be available again for issuance under the Directors' Plan.
The option price per share is the fair market value of the shares of
Common Stock on the date of grant. Under the Directors' Plan, fair market value
is generally the closing price of the Common Stock on NASDAQ/NMS on the last
business day prior to the date on which the value is to be determined; provided,
however, that with respect to the options granted immediately prior to the
Distribution, fair market value means the average of the daily closing price of
the Common Stock for the first ten (10) consecutive trading days that Common
Stock is traded on NASDAQ/NMS other than on an "as issued" or "when issued"
basis, calculated to the nearest cent, as determined by the Company.
Options granted under the Directors' Plan are exercisable for a term of
ten (10) years from the date of grant, subject to earlier termination, and may
be exercised as follows: (a) any option granted as of the effective date of the
Director's Plan or as the first day of an Eligible Director's initial term on
the Company Board may be exercised as to 30% of the shares subject to such
option at any time after the first anniversary of the date of grant, as to 60%
of the shares subject to such option at any time after the second anniversary of
the date of grant, and as to all shares subject to such option at any time after
the third anniversary of the date of grant and (b) any other options may be
exercised at any time after the third anniversary of the date of grant.
10
<PAGE> 11
Options granted under the Directors' Plan are non-transferable other
than by will or pursuant to the laws of descent and distribution or pursuant to
a qualified domestic relations order.
In the event that an Eligible Director ceases to be a member of the
Company Board (other than by reason of death or disability), an option may be
exercised by the director (to the extent the director was entitled to do so at
the time he ceased to be a member of the Company Board) at any time within seven
months after he ceases to be a member of the Company Board, but not beyond the
term of the option. If the Eligible Director dies or becomes disabled while he
is a member of the Company Board or within seven months thereafter, an option
may be exercised (to the extent the director was entitled to do so as of the
date of his death or the termination of his directorship by reason of his
disability) by a legatee of the director under his will, or by him or his
personal representative or distributees, as the case may be, at any time within
12 months after his death or disability, but not beyond the term of the option.
An Eligible Director entitled to exercise an Option shall do so by
delivery of a written notice to that effect specifying the number of shares of
Common Stock with respect to which the Option is being exercised. The notice
shall be accompanied by payment in full of the purchase price of any shares of
Common Stock to be purchased, which payment may be made in cash or, upon
authorization by the Committee, in shares of Common Stock of the Company that
such Eligible Director has held for more than six (6) months.
In accordance with Rule 16b-3(d)(3) promulgated under the Exchange Act,
Eligible Directors are not permitted to dispose of the shares of Common Stock
underlying an option granted pursuant to the Directors' Plan during the six
month period commencing from the date of the acquisition of such option.
Options granted under the Directors' Plan are subject to adjustment
upon a recapitalization, stock split, stock dividend, merger, reorganization,
liquidation, extraordinary dividend or other similar event affecting the Common
Stock.
Upon a "change of control" of the Company, each option granted under
the Directors' Plan will terminate on the later of (i) 90 days after the
occurrence of such "change of control" and (ii) seven months following the date
of grant of each option, and an option holder will have the right, commencing
at least five days prior to the "change of control" and subject to any other
limitation on the exercise of the option (except without regard to any vesting
limitations) in effect on the date of exercise, to immediately exercise any
options in full, to the extent they have not previously been exercised.
The Directors' Plan will terminate on the tenth anniversary of the
Distribution and options may not be granted under the Directors' Plan after that
date, although the terms of any option may be amended in accordance with the
Directors' Plan at any date prior to the end of the term of such option. Any
options outstanding at the time of termination of the Directors' Plan will
continue in full force and effect according to the terms and conditions of the
option and the Directors' Plan.
The Directors' Plan may be amended by the Company Board, provided that
stockholder approval will be necessary to the extent required under Rule 16b-3
of the General Rules and Regulations of the Exchange Act, and no amendment may
impair any of the rights of any holder of an option previously granted under the
Directors' Plan without the holder's consent.
The tax treatment of options granted under the Directors' Plan will be
the same as the tax treatment for non-qualified options discussed under the
Incentive Plan above.
11
<PAGE> 12
COMPENSATION OF DIRECTORS
Members of the Company Board who are also employees of the Company do
not receive any additional compensation for service on the Company Board or any
committees of the Company Board. Members of the Company Board who are not
employees receive an annual retainer of $5,000 plus a stipend of $1,000 for each
Company Board meeting attended. Non-employee directors receive additional
stipends for service on committees of the Company Board of $1,000 per committee
meeting not held on the same day as a Company Board meeting.
EMPLOYMENT AND CONSULTING AGREEMENTS
The Employment Agreement dated November 18, 1996 between Ronald Howard
and the Company provides for Mr. Howard serving as Chairman of the Board,
President and Chief Executive Officer. Such employment agreement further
provides for, among other things, a two year term of employment, an annual
salary of $175,000, an opportunity for bonus compensation in an amount at least
equal to his annual salary pursuant to a plan to be established by the Company
Board, and benefits consistent with those normally provided by the Company to
its executive employees as well as a $5.0 million term life insurance policy.
Pursuant to such employment agreement, Mr. Howard was granted options to
purchase 300,000 shares of Common Stock and is entitled to receive, upon a
change of control of the Company, which includes transactions such as the
Merger, a payment equal to two and one-half times his annual g12 compensation.
Upon the Effective Time, the November 18, 1996 Employment Agreement will
terminate.
Henry Epstein is a consultant to the Company under the terms of a
November 18, 1996 consulting agreement (the "Epstein Agreement") between the
Company and Ideonics, a financial and technology consulting firm owned by Mr.
Epstein. The Epstein Agreement provides, among other things, for a four year
consulting term with an annual consulting fee of $137,500. In addition, pursuant
to the Epstein Agreement, the Company provides Ideonics with office space,
secretarial assistance and health care benefits for Mr. Epstein. Mr. Epstein was
the Chairman of the Board of both Penril and the Company until the Penril/Bay
Merger and the Distribution, respectively.
As of the Effective Time, the Company will enter into employment
agreements with Messrs. Hayes and Howard. See "CERTAIN RELATIONSHIPS AND RELATED
TRANSACTIONS."
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
The Compensation Committee is composed of Paul Schaller and Arthur
Samberg. Neither Mr. Schaller nor Mr. Samberg is or was an officer or employee
of the Company.
RETIREMENT AND SAVINGS PLAN
Access Beyond's Retirement and Savings Plan ("401(k) Plan") is a
defined contribution plan that includes a "cash or deferred" option for
participants, as described in Section 401(k) of the Internal Revenue Code of
1986, as amended (the "Code"). Employees of Access Beyond who have completed 90
days of eligibility service ("Participants") are eligible to participate in the
401(k) Plan. The 401(k) Plan permits, but does not require Access Beyond to make
matching contributions. In addition, Access Beyond may make discretionary
contributions to the 401(k) Plan which will be allocated to each Participant
based on the ratio of such Participant's eligible compensation to the total of
all Participants' eligible compensation. Amounts contributed by Access Beyond
vest as to 30% after 1 year of eligible service, 60% after 2 years of eligible
service and 100% after 3 years of eligible service. Participants may elect to
direct the investment of their contributions in accordance with the provisions
of the 401(k) Plan. As a part of the Transfer, a retirement and savings plan of
Penril ("Penril Plan") was transferred to the Company and active participation
in the Penril Plan is limited to eligible employees of the Company.
12
<PAGE> 13
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth the beneficial ownership of Common Stock
as of November 19, 1997, by each director and Named Executive Officer of the
Company and all directors and executive officers of the Company as a group, as
well as by any person known by the Company to own beneficially more than 5% of
the Common Stock of the Company, based upon such person's reported ownership of
Common Stock in filings made with the Commission pursuant to Sections 13(d) and
13(g) of the Exchange Act as of November 19, 1997. The information in this table
was based in part on information supplied by the named individuals.
<TABLE>
<CAPTION>
NUMBER OF SHARES OF PERCENTAGE
COMMON STOCK BENEFICIALLY OWNERSHIP AS OF
OWNED AS OF NOVEMBER 19,
NAME AND ADDRESS OF BENEFICIAL OWNER NOVEMBER 19, 1997 1997 (1)
- ------------------------------------ ------------------------- ---------------
<S> <C> <C>
Ronald Howard 1,018,603 (2) 8.1%
John Howard 30,000 (3) *
Barbara Perrier Dreyer 36,000 (3)(4) *
Arthur Samberg 1,955,000 (3)(5)(6) 15.6%
Paul Schaller 35,000 (3) *
James Gallagher 22,500 (7) *
ALL DIRECTORS AND EXECUTIVE OFFICERS AS A
GROUP (6 PERSONS) 3,080,603 (8) 24.2%
Richard Chilton, Jr.
399 Park Avenue
New York, New York 10022 672,800 (9) 5.4%
</TABLE>
13
<PAGE> 14
<TABLE>
<CAPTION>
<S> <C> <C>
Pequot Partners Fund, L.P.
and Pequot International Fund, Inc.
354 Pequot Avenue
Southport, Connecticut 06490 1,485,600 (5) 11.9%
Cramer Partners, L.P.
100 Wall Street, 8th Floor
New York, New York 10004 3,052,800 (10) 24.4%
</TABLE>
- -----------------
(*) Less than 1%
(1) Includes, in certain instances, shares held in the name of an executive
officer's or director's spouse or minor children, the reporting of
which is required by applicable rules of the Commission, but as to
which shares the executive officer or director may have disclaimed
beneficial ownership. Beneficial ownership includes (i) 115,500 shares
issuable upon exercise of optons granted under the Incentive Plan and
(ii) assuming that the Merger is consummated within 60 days, 120,000
shares issuable upon exercise of options granted under the Directors
Plan.
(2) Includes 90,000 shares of Common Stock issuable upon the exercise of
options, assuming that the Merger is consummated within 60 days from
the date hereof and a "change in control" of the Company occcurs as a
result thereof. Does not include additional shares of Common Stock
issuable to Mr. Howard in lieu of a $437,500 cash bonus payable upon
a change in control.
(3) Includes 30,000 shares of Common Stock issuable upon the exercise of
options, assuming that the Merger is consummated within 60 days from
the date hereof and a "change in control" of the Company occurs as a
result thereof.
(4) Mrs. Perrier Dreyer and her husband, John Dreyer, have shared voting
and dispositive power with respect to these shares.
(5) Includes 787,100 shares of Common Stock owned by Pequot Partners Fund,
L.P., a Delaware limited partnership whose general partner and
investment manager is Pequot General Partners, LLC, a Connecticut
limited liability company ("General Partners") and 698,500 shares of
Common Stock owned by Pequot International Fund, Inc., a British Virgin
Islands corporation, whose investment manager is DS International
Partners, L.P., a Delaware limited partnership ("International
Partners"). (Pequot Partners Fund, L.P. and Pequot International Fund,
Inc. are together referred to as the "Funds"). Mr. Samberg is a General
Partner and senior portfolio manager of each of the Funds. General
Partners and International Partners (together, the "Partners") are the
beneficial owners, as such term is used in Rule 13d-3 of the Exchange
Act of the shares of Common Stock owned by the Fund for which they act
as investment manager, respectively. The Partners may be deemed to
constitute a group as such term is used in Section 13(d)(3) of the
Exchange Act. Each of the Partners disclaims beneficial ownership of
the Common Stock beneficially owned by the other Partners.
(6) Includes 86,500 shares of Common Stock owned by Dawson-Samberg Capital
Management, Inc., of which Mr. Samberg is President, and 352,900 shares
of Common Stock owned by Pequot Endowment Fund, L.P., a Delaware
limited partnership ("Endowment Fund") whose general partner and
investment manager is Pequot Endowment Partners, L.P., a Delaware
limited partnership. Mr. Samberg is a General Partner and senior
portfolio manager of Endowment Fund.
(7) Includes 22,500 shares of Common Stock issuable upon the exercise of
options, assuming that the Merger is consummated within 60 days from
the date hereof and a "change in control" of the Company occurs as a
result thereof.
(8) Includes (i) 115,500 shares issuable upon exercise of options granted
under the Incentive Plan and (ii) assuming that the Merger is
consummated within 60 days, 120,000 shares issuable upon exercise of
options granted under the Directors Plan.
14
<PAGE> 15
(9) According to the Amendment No. 1 to the Schedule 13D, dated March 21,
1997, includes shares of Common Stock held by Chilton Investment
Partners, L.P. ("Chilton Partners"), a Delaware limited partnership,
Chilton Opportunity Trust, L.P. ("Chilton Trust"), a Delaware limited
partnership, or managed accounts over which Mr. Chilton has investment
discretion. Mr. Chilton is the general partner of Chilton Investments,
L.P. ("Chilton Investments"), a Delaware limited partnership, and
Olympic Equity Partners, L.P., a Delaware limited partnership
("Olympic"). Chilton Investments is the general partner of Chilton
Partners. Olympic is the general partner of Chilton Trust, serves as
the investment advisor to Chilton International (BVI) Ltd., a British
Virgin Islands corporation, and advises several managed accounts.
(10) James J. Cramer, President of J.J. Cramer & Co., and Karen Cramer, Vice
President of J.J. Cramer & Co., have shared voting and dispositive
power with respect to these shares.
15
<PAGE> 16
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
None.
16
<PAGE> 17
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized, in Gaithersburg,
Maryland on November 19, 1997.
Access Beyond, Inc.
By /s/ RONALD A. HOWARD
-----------------------------------
Ronald A. Howard
President, Chief Executive Officer,
and Chairman of the Board of
Directors
Date: November 19, 1997
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed below by the following persons on behalf of the Registrant and
in the capacities and on the date indicated:
/S/ BARBARA PERRIER /S/ RONALD A. HOWARD
- ------------------- --------------------
Barbara Perrier Ronald A. Howard
Director President, Chief Executive Officer,
Date: November 19, 1997 and Chairman of the Board of
Directors
/S/ PAUL SCHALLER Date: November 19, 1997
- -------------------
Paul Schaller
Director /S/ MARK R. FIELDS
Date: November 19, 1997 --------------------
Mark R. Fields
/S/ JOHN HOWARD Controller and Acting Chief
- ------------------- Financial Officer
John Howard Date: November 19, 1997
Director
Date: November 19, 1997
/S/ ARTHUR SAMBERG
- -------------------
Arthur Samberg
Director
Date: November 19, 1997
17
