REGISTRATION RIGHTS AGREEMENT, dated as of September 22,
1995, by and among PENRIL DATACOMM NETWORKS, INC., a Delaware
corporation ("the Company"), PEQUOT PARTNERS FUND, L.P., a
Delaware limited partnership ("Partners"), PEQUOT INTERNATIONAL
FUND, INC., a British Virgin Islands corporation
("International"), and PEQUOT ENDOWMENT FUND, L.P., a Delaware
limited partnership ("Endowment"); (Partners, International and
Endowment are herein individually referred to as an "Investor"
and collectively as the "Investors").
The Company and the Investors have entered into a Stock
Purchase Agreement (the "Purchase Agreement"), dated as of the
date hereof, pursuant to which the Investors have purchased from
the Company an aggregate of 1,465,000 shares of Common
Stock (as hereinafter defined).
The parties hereto desire to provide certain
registration rights with respect to the shares of Common Stock
purchased pursuant to the Purchase Agreement.
Accordingly, the parties hereto agree as follows:
1. Definitions.
As used herein, unless the context otherwise requires, the
following terms have the following respective meanings:
"Certificate of Incorporation" means the Restated
Certificate of Incorporation of the Company, as amended or
restated hereafter from time to time.
"Commission" means the Securities and Exchange Commission or
any other Federal agency at the time administering the Securities
Act.
"Common Stock" means any shares of Common Stock, par value
$.01 per share, of the Company now or hereafter authorized to be
issued, and any and all securities of any kind whatsoever of the
Company which may be issued on or after the date hereof in
respect of, or in exchange for, shares of Common Stock pursuant
to a merger, consolidation, stock split, stock dividend,
recapitalization of the Company or otherwise.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar Federal statute, and the rules and
regulations of the Commission thereunder, all as the same shall
be in effect at the time. Reference to a particular section of
the Exchange Act shall include a reference to the comparable
section, if any, of any such similar Federal statute.
"Holders" means the Investors and any Persons who have
acquired the Common Stock from the Investors in accordance with
the provisions of the Purchase Agreement, other than Persons who
have acquired such Common Stock in connection with a public
offering.
"Person" means a corporation, an association, a partnership,
an organization, a business, a trust, an individual, or any other
entity or organization, including a government or political
subdivision or an instrumentality or agency thereof.
"Registrable Securities" means (i) the shares of Common
Stock issued pursuant to the Purchase Agreement, and (ii) any
Common Stock issued with respect to the Common Stock referred to
in clause (i) by way of a stock dividend, stock split or reverse
stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or otherwise. As to any
particular Registrable Securities, such securities shall cease to
be Registrable Securities when (i) a registration statement with
respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have
been disposed of in accordance with such registration statement
(ii) they shall have been distributed to the public pursuant to
Rule 144 (or any successor provision) under the Securities Act,
(iii) they shall have been otherwise transferred, new
certificates for them not bearing a legend restricting further
transfer shall have been delivered by the Company and subsequent
disposition of them shall not require the registration under the
Securities Act, or (iv) they shall have ceased to be outstanding.
"Registration Expenses" means all expenses incident to the
registration and disposition of the Registrable Securities
pursuant to Section 2 hereof, including, without limitation, all
registration, filing and applicable national securities exchange
fees; all fees and expenses of complying with state securities or
blue sky laws (including fees and disbursements of counsel to the
underwriters or the Holders in connection with "blue sky"
qualification of the Registrable Securities and determination of
their eligibility for investment under the laws of the various
jurisdictions); all duplicating and printing expenses; all
messenger and delivery expenses; the fees and disbursements of
counsel for the Company and of its independent public
accountants, including the expenses of "cold comfort" letters or,
in connection with a registration pursuant to Section 2.3 only,
any special audits required by, or incident to, such
registration; all fees and disbursements of underwriters (other
than underwriting discounts and commissions); all transfer taxes;
and the reasonable fees and expenses of one counsel to the
Holders; provided, however, that Registration Expenses shall
exclude and the Holders shall pay underwriting discounts and
commissions in respect of the Registrable Securities being
registered.
"Securities Act" means the Securities Act of 1933, as
amended, or any similar Federal statute, and the rules and
regulations of the Commission thereunder, all as the same shall
be in effect at the time. References to a particular section of
the Securities Act shall include a reference to the comparable
section, if any, of any such similar Federal statute.
2. Shelf Registration; Registration Under Securities Act, etc.
2.1 Shelf Registration.
Prior to December 31, 1995, the Company shall file with
the Commission, at the Company's expense, a "shelf"
registration statement on any appropriate form pursuant to
Rule 415 under the Act covering all Registrable Securities
(the "Shelf Registration"). The Company shall use its best
efforts to have the Shelf Registration declared effective as
promptly as practicable after such filing (but not later
than 150 days after the date hereof) and to keep the Shelf
Registration continuously effective three years following
the date on which the Shelf Registration is declared
effective (the "Shelf Registration Period"). The Company
shall, to the extent necessary, supplement or amend the
Shelf Registration (in each case, at the Company's expense)
to keep the Shelf Registration effective during the Shelf
Registration Period. The Company further agrees to
supplement or amend any Shelf Registration, as required by
the registration form utilized by the Company or by the
instructions applicable to such registration form or by the
Securities Act or the rules and regulations thereunder or as
reasonably requested by any Holder. The Company shall
furnish to the Holders copies, in substantially the form
proposed to be used and/or filed, of any such supplement or
amendment at least 30 days prior to its being used and/or
filed with the Commission. The Company hereby consents to
the use (in compliance with applicable law) of the
prospectus or any amendment or supplement thereto by each of
the selling Holders of Registrable Securities in connection
with the offering and sale of the Registrable Securities
covered by the prospectus or any amendment or supplement
thereto. The Company shall pay all Registration Expenses
(other than fees and disbursements of underwriters) incurred
in connection with the Shelf Registration, whether or not it
becomes effective. In no event shall the Shelf Registration
include securities other than Registrable Securities, unless
the Holders of all Registrable Securities consent to such
inclusion. Nothing herein shall obligate the Company to
incur or pay for fees and disbursements of underwriters in
connection with a distribution under the Shelf Registration.
2.2 Registration on Request.
(a) Request.
Subject to the provisions of Section 2.2(h) below,
(i) if the Shelf Registration remains continuously
effective during the Shelf Registration Period in
accordance with the terms hereof, at any time or from
time to time after the expiration of the Shelf
Registration Period and until the later of (I) the date
which is 30 days after the Company shall have filed
with the Commission its Annual Report on Form 10-K for
the fiscal year ending July 31, 1999 or (II) the fourth
anniversary hereof, or (ii) if for any reason the Shelf
Registration does not become effective within 150 days
after the date hereof or ceases to be effective at any
time prior to the expiration of the Shelf Registration
Period, at any time or from time to time after the date
which is 150 days from the date hereof (if the Shelf
Registration fails to become effective) or the date on
which the Shelf Registration ceases to be effective, as
the case may be, and until the later of (x) the date
which is 30 days after the Company shall have filed
with the Commission its Annual Report on Form 10-K for
the fiscal year ending July 31, 1998 or (y) the third
anniversary hereof, the Holders, individually and
jointly, of not less than 50% of the Registrable
Securities (the "Initiating Holders") shall have the
right to require the Company to effect the registration
under the Securities Act of all or part of the
Registrable Securities held by such Initiating Holders,
by delivering a written request therefor to the Company
specifying the number of shares of Registrable
Securities and the intended method of distribution.
The Company shall promptly give written notice of such
requested registration to all other Holders, and
thereupon the Company shall, as expeditiously as
possible, use its best efforts to (A) effect the
registration under the Securities Act (including by
means of a shelf registration pursuant to Rule 415
under the Securities Act if so requested in such
request and if the Company is then eligible to use such
a registration) of the Registrable Securities which the
Company has been so requested to register by the
Initiating Holders, and all other Registrable
Securities which the Company has been requested to
register by any other Holder (together with the
Initiating Holders, the "Selling Holders") by written
request given to the Company within 10 days after the
giving of written notice by the Company, all to the
extent necessary to permit distribution in accordance
with the intended method of distribution set forth in
the written request or requests delivered by the
Selling Holders, and (B) if requested by the Selling
Holders, obtain acceleration of the effective date of
the registration statement relating to such
registration.
(b) Registration of Other Securities.
Whenever the Company shall effect a registration
pursuant to this Section 2.2 in connection with an
underwritten offering by any Selling Holders of
Registrable Securities, no securities other than
Registrable Securities shall be included among the
securities covered by such registration (i) if the
managing underwriter of such offering shall have
advised the Company and the Selling Holders in writing
that the inclusion of such other securities would
adversely affect such offering or (ii), if such
offering is not an underwritten offering, unless the
Selling Holders of not less than 50% of all Registrable
Securities to be covered by such registration shall
have consented in writing to the inclusion of such
other securities.
(c) Registration Statement Form.
Registrations under this Section 2.2 shall be on
such appropriate registration form of the Commission as
shall be selected by the Company and as shall be
reasonably acceptable to the Selling Holders. The
Company agrees to include in any such registration
statement all information which, in the opinion of
counsel to the Selling Holders and counsel to the
Company, is required to be included.
(d) Expenses.
The Company shall pay all Registration Expenses in
connection with any registration requested pursuant to
this Section 2.2.
(e) Effective Registration Statement.
A registration requested pursuant to this Section
2.2 shall not be deemed to have been effected
(including for purposes of paragraph (h) of this
Section 2.2) (i) unless a registration statement with
respect thereto has become effective and has been kept
continuously effective for a period of at least
120 days (or such shorter period which shall terminate
when all the Registrable Securities covered by such
registration statement have been sold pursuant
thereto), (ii) if after it has become effective, such
registration is interfered with by any stop order,
injunction or other order or requirement of the
Commission or other governmental agency or court for
any reason not attributable to the Selling Holders and
has not thereafter become effective, or (iii) if the
conditions to closing specified in the underwriting
agreement, if any, entered into in connection with such
registration are not satisfied for any reason not
attributable to the Selling Holders or waived.
(f) Selection of Underwriters.
The underwriters of each underwritten offering of
the Registrable Securities so to be registered shall be
selected by the Selling Holders and shall be reasonably
satisfactory to the Company.
(g) Priority in Requested Registration.
If the managing underwriter of any underwritten
offering shall advise the Company in writing (with a
copy to each Selling Holder) that, in its opinion, the
number of Registrable Securities requested to be
included in such registration exceeds the number which
can be sold in such offering within a price range
acceptable to the Selling Holders, the Company will
include in such registration, to the extent of the
number which the Company is so advised can be sold in
such offering, Registrable Securities requested to be
included in such registration, pro rata among the
Selling Holders requesting such registration on the
basis of the percentage of Registrable Securities of
such Selling Holders requesting so to be registered.
In connection with any such registration to which this
Section 2.2(g) is applicable, no securities other than
Registrable Securities shall be covered by such
registration.
(h) Limitations on Registration on Request.
Notwithstanding anything to the contrary contained
herein, the registration rights granted to the Holders
in Section 2.2(a) are subject to the following
limitations: (i) the Holders shall be entitled to
require the Company to, and the Company shall be
required to, effect no more than one registration
pursuant to Section 2.2(a)(i) hereof and no more than
two registrations pursuant to Section 2.2(a)(ii) hereof
(provided, however, that the aggregate offering value
of the shares to be registered pursuant to any such
registration shall be at least $2,500,000 unless the
Holders then own shares with a value less than
$2,500,000); (ii) the Company shall not be required to
effect a registration pursuant to Section 2.2(a) if, at
the time the Initiating Holder or Holders deliver the
request therefor to the Company, the Company is not
eligible to use Form S-3 (or any successor or similar
form); provided, however, that so long as this
Agreement is in effect the Company shall use its best
efforts to ensure that the Company is at all times from
the date hereof until the expiration of the Investors'
right to request the registration of Registrable
Securities pursuant to Section 2.2(a) hereof eligible
to use Form S-3; (iii) the Company shall not be
required to effect a registration pursuant to Section
2.2(a) if, with respect thereto, the managing
underwriter, the Commission, the Securities Act or the
rules and regulations thereunder, or the form on which
the registration statement is to be filed, would
require the conduct of an audit other than the regular
audit conducted by the Company at the end of its fiscal
year, but rather the filing may be delayed until the
completion of such regular audit (unless the Holders
agree to pay the expenses of the Company in connection
with such an audit other than the regular audit) and
(iv) the Holders shall not be entitled to require the
Company to, and the Company shall not be required to,
effect a registration pursuant to Section 2.2(a)(ii)
within six (6) months following the effective date of
another registration pursuant to Section 2.2(a)(ii).
(i) Postponement.
The Company shall be entitled once in any six-
month period to postpone for a reasonable period of
time (but not exceeding 120 days) (the "Postponement
Period") the filing of any registration statement
required to be prepared and filed by it pursuant to
this Section 2.2 if the Company determines, in its
reasonable judgment, that such registration and
offering would materially interfere with any material
financing, corporate reorganization or other material
transaction involving the Company or any subsidiary, or
would require premature disclosure thereof, and
promptly gives the Selling Holders written notice of
such determination, containing a general statement of
the reasons for such postponement and an approximation
of the anticipated delay. If the Company shall so
postpone the filing of a registration statement, the
Selling Holders of more than 50% of the Registrable
Securities to be registered shall have the right to
withdraw the request for registration by giving written
notice to the Company at any time and, in the event of
such withdrawal, such request shall not be counted for
purposes of the requests for registration to which the
Holders are entitled pursuant to this Section 2.2.
2.3 Incidental Registration.
(a) Right to Include Registrable Securities.
If the Company at any time prior to the expiration
of the Investors' right to request the registration of
Registrable Securities pursuant to Section 2.2(a)
hereof proposes to register any of its securities under
the Securities Act by registration on Form X-0, X-0 or
S-3 or any successor or similar form(s) (except
registrations on such Form or similar form(s) solely
for registration of securities in connection with an
employee benefit plan or dividend reinvestment plan or
a merger or consolidation), whether or not for sale for
its own account, it will each such time give prompt
written notice to the Holders of its intention to do so
and of the Holders' rights under this Section 2.3 and
the Holders shall be entitled to include, subject to
the provisions of this Agreement, Registrable
Securities on the same terms and conditions as apply to
other comparable securities of the Company sold in
connection with such registration. Upon the written
request of any Holder (a "Requesting Holder"),
specifying the maximum number of Registrable Securities
intended to be disposed of by such Requesting Holder),
made as promptly as practicable and in any event within
15 days after the receipt of any such notice, the
Company shall use its best efforts to effect the
registration under the Securities Act of all
Registrable Securities which the Company has been so
requested to register by the Requesting Holders;
provided, however, that if, at any time after giving
written notice of its intention to register any
securities and prior to the effective date of
the registration statement filed in connection with
such registration, the Company shall determine for any
reason not to register or to delay registration of such
securities, the Company shall give written notice of
such determination and its reasons therefor to the
Holders and (i) in the case of a determination not to
register, shall be relieved of its obligation to
register any Registrable Securities in connection with
such registration (but not from any obligation of the
Company to pay the Registration Expenses in connection
therewith), without prejudice, however, to the rights
of the Holders to request that such registration be
effected as a registration under Section 2.2 and
(ii) in the case of a determination to delay
registering, shall be permitted to delay registering
any Registrable Securities, for the same period as the
delay in registering such other securities. No
registration effected under this Section 2.3 shall
relieve the Company of its obligation to effect any
registration upon request under Section 2.2. The
Company will pay all Registration Expenses in
connection with any registration of Registrable
Securities requested pursuant to this Section 2.3.
(b) Right to Withdraw.
Any Requesting Holder shall have the right to
withdraw its request for inclusion of Registrable
Securities in any registration statement pursuant to
this Section 2.3 at any time by giving written notice
to the Company of its request to withdraw.
(c) Priority in Incidental Registrations.
If the managing underwriter of any underwritten
offering shall inform the Company by letter of its
belief that the number of Registrable Securities
requested to be included in such registration, when
added to the number of other securities to be offered
in such registration, would materially adversely affect
such offering, then the Company shall include in such
registration, to the extent of the number and type
which the Company is so advised can be sold in (or
during the time of) such offering without materially
adversely affecting such offering (the "Section 2.3
Sale Amount"), (i) all of the securities proposed by
the Company to be sold for its own account;
(ii) thereafter, to the extent the Section 2.3 Sale
Amount is not exceeded, the Registrable Securities and
the shares of Common Stock constituting all or part of
the 50,000 shares of Common Stock purchased by a
certain third party investor in connection with the
Proposed Sale (as defined in the Purchase Agreement)
requested by the Requesting Holders and such third
party investor to be included in such registration
pursuant to Section 2.3(a) pro rata among the
Requesting Holders and such third party investor on the
basis of the percentage of Registrable Securities and
such shares of Common Stock of such Requesting Holders
and such third party investor requested to be included
in such registration; and (iii) thereafter, to the
extent the Section 2.3 Sale Amount is not exceeded, any
other securities of the Company requested to be
included in such registration.
(d) Plan of Distribution.
Any participation by the Holders in a registration by
the Company shall be in accordance with the Company's plan
of distribution.
2.4 Registration Procedures.
If and whenever the Company is required to use its best
efforts to effect the registration of any Registrable
Securities under the Securities Act as provided in
Sections 2.1, 2.2 and 2.3 hereof, the Company shall as
expeditiously as possible:
(a) prepare and file with the Commission as soon
as practicable the requisite registration statement to
effect such registration (and shall include all
financial statements required by the Commission to be
filed therewith) and thereafter use its best efforts to
cause such registration statement to become effective;
provided, however, that before filing such registration
statement (including all exhibits) or any amendment or
supplement thereto or comparable statements under
securities or blue sky laws of any jurisdiction, the
Company shall furnish such documents to each Holder
selling Registrable Securities covered by such
registration statement and each underwriter, if any,
participating in the offering of the Registrable
Securities and their respective counsel, which
documents will be subject to the review and comments of
each such Holder, each underwriter and their respective
counsel (but as to all such Holders, not more than one
counsel); and provided further, that (i) as to
registration pursuant to Section 2.1 or 2.2 hereof, the
Company may discontinue any registration of its
securities which are not Registrable Securities and,
(ii) as to registration pursuant to Section 2.3 hereof,
the Company may discontinue any registration of its
securities, in each case at any time prior to the
effective date of the registration statement relating
thereto;
(b) notify each Holder selling Registrable
Securities covered by such registration statement of
the Commission's requests for amending or supplementing
the registration statement and the prospectus, and
prepare and file with the Commission such amendments
and supplements to such registration statement and the
prospectus used in connection therewith as may be
necessary to keep such registration statement effective
and to comply with the provisions of the Securities Act
with respect to the disposition of all Registrable
Securities covered by such registration statement for
such period as shall be required for the disposition of
all of such Registrable Securities in accordance with
the intended method of distribution thereof; provided
that, except with respect to any such registration
statement filed pursuant to Rule 415 under the
Securities Act (other than in connection with the Shelf
Registration), such period need not exceed 120 days;
(c) furnish, without charge, to each Holder
selling Registrable Securities covered by such
registration statement and each underwriter such number
of conformed copies of such registration statement and
of each such amendment and supplement thereto (in each
case including all exhibits), such number of copies of
the prospectus contained in such registration statement
(including each preliminary prospectus and any summary
prospectus) and any other prospectus filed under Rule
424 under the Securities Act, in conformity with the
requirements of the Securities Act, and such other
documents, as such Holders and such underwriters may
reasonably request;
(d) use its best efforts (i) to register or
qualify all Registrable Securities and other securities
covered by such registration statement under such
securities or blue sky laws of such States of the
United States of America where an exemption is not
available and as any Holder or Holders selling
Registrable Securities covered by such registration
statement or any managing underwriter shall reasonably
request, (ii) to keep such registration or
qualification in effect for so long as such
registration statement remains in effect, and (iii) to
take any other action which may be reasonably necessary
or advisable to enable the Holders to consummate the
disposition in such jurisdictions of the securities to
be sold by such Holder or Holders; provided, however,
that the Company shall not for any purpose be required
to execute a general consent to service of process or
to qualify to do business as a foreign corporation in
any jurisdiction where it is not so qualified;
(e) use its best efforts to cause all Registrable
Securities covered by such registration statement to be
registered with or approved by such other Federal or
state governmental agencies or authorities as may be
necessary in the opinion of counsel to the Company and
counsel to any Holder or Holders selling Registrable
Securities covered by such registration statement to
consummate the disposition of such Registrable
Securities;
(f) furnish to each Holder selling Registrable
Securities covered by such registration statement and
each underwriter, if any, participating in the offering
of the securities covered by such registration
statement, a signed counterpart of
(i) an opinion of counsel for the Company,
and
(ii) a "comfort" letter signed by the
independent public accountants who have certified
the Company's financial statements included or
incorporated by reference in such registration
statement,
covering substantially the same matters with respect to
such registration statement (and the prospectus
included therein) and, in the case of the accountants'
comfort letter, with respect to events subsequent to
the date of such financial statements, as are
customarily covered in opinions of issuer's counsel and
in accountants' comfort letters delivered to the
underwriters in underwritten public offerings of
securities (and dated the dates such opinions and
comfort letters are customarily dated) and, in the case
of the legal opinion, such other legal matters, and, in
the case of the accountants' comfort letter, such other
financial matters, as such Holder or Holders, or the
underwriters, may reasonably request;
(g) promptly notify the Holders selling
Registrable Securities covered by such
registration statement and each managing
underwriter, if any, participating in the offering
of the securities covered by such registration
statement (i) when such registration statement,
any pre-effective amendment, the prospectus or any
prospectus supplement related thereto or post-
effective amendment to such registration statement
has been filed, and, with respect to such
registration statement or any post-effective
amendment, when the same has become effective;
(ii) of any request by the Commission for
amendments or supplements to such registration
statement or the prospectus related thereto or for
additional information; (iii) of the issuance by
the Commission of any stop order suspending the
effectiveness of such registration statement or
the initiation of any proceedings for that
purpose; (iv) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of any of the Registrable Securities
for sale under the securities or blue sky laws of
any jurisdiction or the initiation of any
proceeding for such purpose; (v) at any time when
a prospectus relating thereto is required to be
delivered under the Securities Act or, in the case
of the Shelf Registration, at any time during the
Shelf Registration Period, upon discovery that, or
upon the happening of any event as a result of
which, the prospectus included in such
registration statement, as then in effect,
includes an untrue statement of a material fact or
omits to state any material fact required to be
stated therein or necessary to make the statements
therein not misleading, in the light of the
circumstances under which they were made, and in
the case of this clause (v), at the request of any
Holder or Holders selling Registrable Securities
covered by such registration statement promptly
prepare and furnish to such Holder or Holders and
each managing underwriter, if any, participating
in the offering of the Registrable Securities, a
reasonable number of copies of a supplement to or
an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus
shall not include an untrue statement of a
material fact or omit to state a material fact
required to be stated therein or necessary to make
the statements therein not misleading in the light
of the circumstances under which they were made;
and (vi) at any time when the representations and
warranties of the Company contemplated by
Section 2.5(a) or (b) hereof cease to be true and
correct;
(h) otherwise comply with all applicable rules
and regulations of the Commission, and make available
to its security holders, as soon as reasonably
practicable, an earnings statement covering the period
of at least twelve months beginning with the first full
calendar month after the effective date of such
registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 promulgated thereunder, and
promptly furnish to the Holders a copy of any amendment
or supplement to such registration statement or
prospectus;
(i) provide and cause to be maintained a transfer
agent and registrar (which, in each case, may be the
Company) for the Common Stock from and after a date not
later than the effective date of such registration;
(j) (i) use its best efforts to cause all
Registrable Securities covered by such registration
statement to be quoted on the National Market System
("National Market System") of the National Association
of Securities Dealers, Inc. Automated Quotation System
("NASDAQ") within the meaning of Rule 11Aa2-1 of the
Commission if the quoting of such Registrable
Securities is then permitted under NASDAQ rules; or
(ii) if no similar securities of the Company are then
so quoted, use its bests efforts to (x) secure
designation of all such Registrable Securities as a
NASDAQ National Market System security or (y) failing
that, cause all such Registrable Securities to be
listed on a national securities exchange or (z) failing
that, to secure NASDAQ authorization for such shares
and, without limiting the generality of the foregoing,
to arrange for at least two market makers to register
as such with respect to such shares with the National
Association of Securities Dealers, Inc.;
(k) deliver promptly to counsel to the Holders
selling Registrable Securities covered by such
registration statement and each underwriter, if any,
participating in the offering of the Registrable
Securities, copies of all correspondence between the
Commission and the Company, its counsel or auditors and
all memoranda relating to discussions with the
Commission or its staff with respect to such
registration statement;
(l) use its best efforts to obtain the withdrawal
of any order suspending the effectiveness of the
registration statement;
(m) provide a CUSIP number for all Registrable
Securities, no later than the effective date of the
registration statement;
(n) make available its employees and personnel
and otherwise provide reasonable assistance to the
underwriters (taking into account the needs of the
Company's businesses) in their marketing of Registrable
Securities; and
(o) in the case of a Shelf Registration,
upon the occurrence of any event or the discovery
of any facts, each as contemplated by Section
2.4(g)(v) hereof, use its best efforts to prepare
a supplement or post-effective amendment to the
registration statement or the related prospectus
or any document incorporated therein by reference
or file any other required documents so that,
thereafter, such prospectus will not contain at
the time of such delivery any untrue statement of
a material fact or omit to state a material fact
necessary to make the statements therein, in light
of the circumstances under which they were made,
not misleading.
The Company may require the Holders selling Registrable Securities
covered by such registration statement to furnish the Company such
information regarding the Holders and the distribution of the
Registrable Securities as the Company may from time to time reasonably
request in writing. In the event of a registration effected pursuant
to Section 2.1, 2.2(a) or 2.3(a) hereof, if a Holder fails to provide
such information and the failure by such Holder to furnish such
information would prevent or unreasonably delay the registration
statement relating to such registration from being declared effective
by the Commission, the Company may exclude such Holder's Registrable
Securities from such registration, which right of the Company shall,
in the case of a registration effected pursuant to Section 2.1 or
2.2(a) hereof, be subject to the consent of the Holders of more than
50% of the Registrable Securities to be included in such registration
(other than such Holder's Registrable Securities).
The Holders agree that upon receipt of any notice from the
Company of the happening of any event of the kind described in
paragraph (g)(iii) or (v) of this Section 2.4, each of the Holders
will discontinue its disposition of Registrable Securities pursuant to
the registration statement relating to such Registrable Securities
until, in the case of paragraph (g)(v) of this Section 2.4, its
receipt of the copies of the supplemented or amended prospectus
contemplated by paragraph (g)(v) of this Section 2.4 and, if so
directed by the Company, will deliver to the Company (at the Company's
expense) all copies, other than permanent file copies, then in its
possession, of the prospectus relating to such Registrable Securities
current at the time of receipt of such notice. If the disposition by
the Holders of their securities is discontinued pursuant to the
foregoing sentence, the Company shall extend the period of
effectiveness of the registration statement by the number of days
during the period from and including the date of the giving of notice
to and including the date when the Holders shall have received copies
of the supplemented or amended prospectus contemplated by paragraph
(g)(v) of this Section 2.4; and, if the Company shall not so extend
such period, the Holders' request pursuant to which such registration
statement was filed shall not be counted for purposes of the requests
for registration to which the Holders are entitled pursuant to
Section 2.2 hereof.
2.5 Underwritten Offerings.
(a) Requested Underwritten Offerings.
If requested by the underwriters for any underwritten
offering by the Selling Holders pursuant to a registration
requested under Section 2.2, the Company shall enter into a
customary underwriting agreement with such underwriter or
underwriters. Such underwriting agreement shall be
reasonably satisfactory in form and substance to the Selling
Holders and shall contain such representations and
warranties by, and such other agreements on the part of, the
Company and such other terms as are generally prevailing in
agreements of that type, including, without limitation, such
customary provisions relating to indemnification and
contribution as shall be agreed to by the Company. The
Selling Holders shall be parties to such underwriting
agreement and may, at their option, require that any or all
of the representations and warranties by, and the other
agreements on the part of, the Company to and for the
benefit of such underwriters shall also be made to and for
the benefit of the Selling Holders and that any or all of
the conditions precedent to the obligations of such
underwriters under such underwriting agreement be conditions
precedent to the obligations of the Selling Holders. No
Selling Holder shall be required to make any representations
or warranties to or agreements with the Company or the
underwriters other than representations, warranties or
agreements regarding such Selling Holder, its ownership of
and title to the Registrable Securities, and its intended
method of distribution; and any liability of any Selling
Holder to any underwriter or other Person under such
underwriting agreement shall be limited to liability arising
from misstatements in or omissions from its representations
and warranties and shall be limited to an amount equal to
the net proceeds that it derives from such registration.
(b) Incidental Underwritten Offerings.
In the case of a registration pursuant to Section 2.3
hereof, if the Company shall have determined to enter into
any underwriting agreements in connection therewith, all of
the Requesting Holders' Registrable Securities to be
included in such registration shall be subject to such
underwriting agreements. The Requesting Holders may, at
their option, require that any or all of the representations
and warranties by, and the other agreements on the part of,
the Company to and for the benefit of such underwriters
shall also be made to and for the benefit of the Requesting
Holders and that any or all of the conditions precedent to
the obligations of such underwriters under such underwriting
agreement be conditions precedent to the obligations of the
Requesting Holders. No Requesting Holder shall be required
to make any representations or warranties to or agreements
with the Company or the underwriters other than
representations, warranties or agreements regarding such
Requesting Holder, its ownership of and title to the
Registrable Securities, and its intended method of
distribution; and any liability of any Requesting Holder to
any underwriter or other Person under such underwriting
agreement shall be limited to liability arising from
misstatements in or omissions from its representations and
warranties and shall be limited to an amount equal to the
net proceeds that it derives from such registration.
2.6 Preparation; Reasonable Investigation.
In connection with the preparation and filing of each
registration statement under the Securities Act pursuant to
this Agreement, the Company will give the participating
Holders, their underwriters, if any, and their respective
counsel, accountants and other representatives and agents
the opportunity to participate in the preparation of such
registration statement, each prospectus included therein or
filed with the Commission, and, to the extent practicable,
each amendment thereof or supplement thereto, and give each
of them such access to its books and records and such
opportunities to discuss the business of the Company with
its officers and employees and the independent public
accountants who have certified its financial statements, and
supply all other information reasonably requested by each of
them, as shall be necessary or appropriate, in the opinion
of the participating Holders' and such underwriters'
respective counsel, to conduct a reasonable investigation
within the meaning of the Securities Act.
2.7 Indemnification.
(a) Indemnification by the Company.
The Company agrees that in the event of any
registration of any securities of the Company under the
Securities Act, the Company shall, and hereby does,
indemnify and hold harmless each Holder, its respective
directors, officers, partners, agents and affiliates and
each other Person who participates as an underwriter in the
offering or sale of such securities and each other Person,
if any, who controls such Holder or any such underwriter
within the meaning of the Securities Act, against any
losses, claims, damages, or liabilities, joint or several,
to which such Holder or any such director, officer, partner,
agent or affiliate or underwriter or controlling Person may
become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities,
joint or several (or actions or proceedings, whether
commenced or threatened, in respect thereof), arise out of
or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in any registration
statement under which such securities were registered under
the Securities Act, any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, (ii) any omission or
alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements
therein in light of the circumstances in which they were
made not misleading, or (iii) any violation by the Company
of any Federal, state or common law rule or regulation
applicable to the Company and relating to action required of
or inaction by the Company in connection with any such
registration, and the Company shall reimburse such Holder
and each such director, officer, partner, agent or
affiliate, underwriter and controlling Person for any legal
or any other expenses reasonably incurred by them in
connection with investigating or defending any such loss,
claim, liability, action or proceeding; provided that the
Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of or
is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such
registration statement, any such preliminary prospectus,
final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with written
information furnished to the Company through an instrument
duly executed by or on behalf of the Holders or underwriter,
as the case may be, specifically stating that it is for use
in the preparation thereof; and provided, further, that the
Company shall not be liable to any Person who participates
as an underwriter in the offering or sale of Registrable
Securities or any other Person, if any, who controls such
underwriter within the meaning of the Securities Act, in any
such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or
expense arises out of such Person's failure to send or give
a copy of the final prospectus, as the same may be then
supplemented or amended, to the Person asserting an untrue
statement or alleged untrue statement or omission or alleged
omission at or prior to the written confirmation of the sale
of Registrable Securities to such Person if such statement
or omission was corrected in such final prospectus. Such
indemnity shall remain in full force regardless of any
investigation made by or on behalf of either Holder or any
such director, officer, partner, agent or affiliate or
controlling Person and shall survive the transfer of such
securities by such Holder.
(b) Indemnification by the Holders.
As a condition to including any Registrable Securities
in any registration statement, the Company shall have
received an undertaking reasonably satisfactory to it from
each Holder so including any Registrable Securities to
indemnify and hold harmless (in the same manner and to the
same extent as set forth in paragraph (a) of this Section
2.7) the Company, and each director of the Company, each
officer of the Company and each other Person, if any, who
controls the Company within the meaning of the Securities
Act, with respect to any statement or alleged statement in
or omission or alleged omission from such registration
statement, any preliminary prospectus, final prospectus or
summary prospectus contained therein, or any amendment or
supplement thereto, but only to the extent such statement or
alleged statement or omission or alleged omission was made
in reliance upon and in conformity with written information
furnished to the Company through an instrument duly executed
by such Holder specifically stating that it is for use in
the preparation of such registration statement, preliminary
prospectus, final prospectus, summary prospectus, amendment
or supplement; provided, however, that the liability of such
indemnifying party under this Section 2.7(b) shall be
limited to the amount of net proceeds received by such
indemnifying party in the offering giving rise to such
liability. Such indemnity shall remain in full force and
effect, regardless of any investigation made by or on behalf
of the Company or any such director, officer or controlling
Person and shall survive the transfer of such securities by
such Holder.
(c) Notices of Claims, etc.
Promptly after receipt by an indemnified party of
notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subsections
of this Section 2.7, such indemnified party shall, if a
claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the
commencement of such action or proceeding; provided,
however, that the failure of any indemnified party to give
notice as provided herein shall not relieve the indemnifying
party of its obligations under the preceding subsections of
this Section 2.7, except to the extent that the indemnifying
party is actually prejudiced by such failure to give notice,
and shall not relieve the indemnifying party from any
liability which it may have to the indemnified party
otherwise than under this Section 2.7. In case any such
action or proceeding is brought against an indemnified
party, the indemnifying party shall be entitled to
participate therein and, unless in the opinion of outside
counsel to the indemnified party a conflict of interest
between such indemnified and indemnifying parties may exist
in respect of such claim, to assume the defense thereof,
jointly with any other indemnifying party similarly notified
to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party; provided, however,
that if the defendants in any such action or proceeding
include both the indemnified party and the indemnifying
party and if in the opinion of outside counsel to the
indemnified party there may be legal defenses available to
such indemnified party and/or other indemnified parties
which are different from or in addition to those available
to the indemnifying party, the indemnified party or parties
shall have the right to select separate counsel to defend
such action or proceeding on behalf of such indemnified
party or parties; provided, however, that the indemnifying
party shall be obligated to pay for only one counsel for all
indemnified parties. After notice from the indemnifying
party to such indemnified party of its election so to assume
the defense thereof and approval by the indemnified party of
such counsel, the indemnifying party shall not be liable to
such indemnified party for any legal expenses subsequently
incurred by the latter in connection with the defense
thereof other than reasonable costs of investigation (unless
the first proviso in the preceding sentence shall be
applicable). No indemnifying party shall be liable for any
settlement of any action or proceeding effected without its
written consent. No indemnifying party shall, without the
consent of the indemnified party, consent to entry of any
judgment or enter into any settlement which does not include
as an unconditional term thereof the giving by the claimant
or plaintiff to such indemnified party of a release from all
liability in respect to such claim or litigation.
(d) Contribution.
If the indemnification provided for in this Section 2.7
shall for any reason be held by a court to be unavailable to
an indemnified party under subsection (a) or (b) hereof in
respect of any loss, claim, damage or liability, or any
action in respect thereof, then, in lieu of the amount paid
or payable under subsection (a) or (b) hereof, the
indemnified party and the indemnifying party under
subsection (a) or (b) hereof shall contribute to the
aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection
with investigating the same), (i) in such proportion as is
appropriate to reflect the relative fault of the
indemnifying party on the one hand, and the indemnified
party on the other, which resulted in such loss, claim,
damage or liability, or action in respect thereof, with
respect to the statements or omissions which resulted in
such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable
considerations, or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law or if the
allocation provided in this clause (ii) provides a greater
amount to the indemnified party than clause (i) above, in
such proportion as shall be appropriate to reflect not only
the relative fault but also the relative benefits received
by the indemnifying party and the indemnified party from the
offering of the securities covered by such registration
statement as well as any other relevant equitable
considerations. The parties hereto agree that it would not
be just and equitable if contributions pursuant to this
Section 2.7(d) were to be determined by pro rata allocation
or by any other method of allocation which does not take
into account the equitable considerations referred to in the
preceding sentence of this Section 2.7(d). No Person guilty
of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such
fraudulent misrepresentation. The Holders' obligations to
contribute as provided in this subsection (d) are several
and not joint and shall be in proportion to the relative
value of their respective Registrable Securities covered by
such registration statement. In addition, no Person shall
be obligated to contribute hereunder any amounts in payment
for any settlement of any action or claim effected without
such Person's consent, which consent shall not be
unreasonably withheld. Notwithstanding anything in this
subsection (d) to the contrary, no indemnifying party (other
than the Company) shall be required to contribute any amount
in excess of the net proceeds received by such party from
the sale of the Registrable Securities in the offering to
which the losses, claims, damages or liabilities of the
indemnified parties relate.
(e) Other Indemnification.
Indemnification and contribution similar to that
specified in the preceding subsections of this Section 2.7
(with appropriate modifications) shall be given by the
Company and the Holders with respect to any required
registration or other qualification of securities under any
Federal, state or blue sky law or regulation of any
governmental authority other than the Securities Act. The
indemnification agreements contained in this Section 2.7
shall be in addition to any other rights to indemnification
or contribution which any indemnified party may have
pursuant to law or contract and shall remain operative and
in full force and effect regardless of any investigation
made by or on behalf of any indemnified party and shall
survive the transfer of any of the Registrable Securities by
any of the Holders.
(f) Indemnification Payments.
The indemnification and contribution required by this
Section 2.7 shall be made by periodic payments of the amount
thereof during the course of the investigation or defense,
as and when bills are received or expense, loss, damage or
liability is incurred; provided, however, that such periodic
payments shall only be made upon delivery to the
indemnifying party of an agreement by the indemnified party
to repay the amounts advanced to the extent it is ultimately
determined that the indemnified party is not entitled to
indemnification pursuant to this Section 2.7 or otherwise.
The parties hereto agree that for each of them such
agreement shall be deemed to be contained herein.
2.8 Unlegended Certificates.
In connection with the offering of any Registrable
Securities registered pursuant to this Section 2, the Company
shall (i) facilitate the timely preparation and delivery to the
Holders and the underwriters, if any, participating in such
offering, of unlegended certificates representing ownership of
such Registrable Securities being sold in such denominations and
registered in such names as requested by the Holders or such
underwriters and (ii) instruct any transfer agent and registrar
of such Registrable Securities to release any stop transfer
orders with respect to any such Registrable Securities.
2.9 Limitation on Sale of Securities.
(a) Until the expiration of the Investors' right to
request the registration of Registrable Securities pursuant
to Section 2.2(a) hereof, each Holder of Registrable
Securities agrees in connection with an underwritten public
offering by the Company, not to effect any public sale or
distribution, including any sale pursuant to Rule 144 under
the Securities Act, of any Registrable Securities, and not
to effect any such public sale or distribution of any other
equity security of the Company or of any security
convertible into or exchangeable or exercisable for any
equity security of the Company (in each case, other than as
part of such underwritten public offering) during the 15
days prior to, and during the 90-day period (or such longer
period, not in excess of 180 days, as may be reasonably
requested by the underwriter of such offering) beginning on,
the effective date of such registration statement (except as
part of such registration) provided that each Holder of
Registrable Securities has received written notice of such
registration at least 15 days prior to such effective date.
(b) If any registration of Registrable Securities
shall be in connection with an underwritten public offering,
the Company agrees (x) not to effect any public sale or
distribution of any of its equity securities or of any
security convertible into or exchangeable or exercisable for
any equity security of the Company (other than any such sale
or distribution in connection with any employee stock option
or other benefit plan) during the 15 days prior to, and
during the 90-day period (or such longer period, not in
excess of 180 days, as may be reasonably requested by the
underwriter of such offering) beginning on, the effective
date of such registration statement (except as part of such
registration) and (y) that any agreement entered into after
the date of this Agreement pursuant to which the Company
issues or agrees to issue any privately placed equity
securities shall contain a provision under which holders of
such securities agree not to effect any public sale or
distribution of any such securities during the period
referred to in the foregoing clause (x), including any sale
pursuant to Rule 144 under the Securities Act (except as
part of such registration, if permitted).
2.10 No Required Sale.
Nothing in this Agreement shall be deemed to create an
independent obligation on the part of any of the Holders to sell
any Registrable Securities pursuant to any effective registration
statement.
3. Rule 144.
The Company shall take all actions reasonably necessary to enable
holders of Registrable Securities to sell such securities without
registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144, or (b) any similar rule or
regulation hereafter adopted by the Commission including, without
limiting the generality of the foregoing, filing on a timely basis all
reports required to be filed by the Exchange Act. Upon the request of
any Holder, the Company will deliver to such holder a written
statement as to whether it has complied with such requirements.
4. Amendments and Waivers.
This Agreement may not be modified or amended, or any of the
provisions hereof waived, temporarily or permanently, except pursuant
to the written consent of the Holders of more than 50% of the
Registrable Securities and the Company.
5. Adjustments.
In the event of any change in the capitalization of the Company
as a result of any stock split, stock dividend, reverse split,
combination, recapitalization, merger, consolidation, or otherwise,
the provisions of this Agreement shall be appropriately adjusted.
6. Notice.
All notices and other communications hereunder shall be in
writing and, unless otherwise provided herein, shall be deemed to have
been given when received by the party to whom such notice is to be
given at its address set forth below, or such other address for the
party as shall be specified by notice given pursuant hereto:
(a) If to any Holder, to it at:
000 Xxxxxx Xxxxxx
XX Xxx 000
Xxxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx
With a copy to:
Fried, Frank, Harris, Xxxxxxx
& Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
(b) If to the Company, to it at:
Penril DataComm Networks, Inc.
0000 Xxxxxx Xxxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: Chairman
With a copy to:
Benesch, Friedlander, Xxxxxx & Xxxxxxx
0000 XX Xxxxxxx Xxxxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
7. Assignment.
This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their
respective successors and permitted assigns. This Agreement may
not be assigned by the Company. Any Holder may, at its election,
at any time or from time to time, assign its rights under this
Agreement, in whole or in part, to any transferee of Registrable
Securities.
8. Remedies.
The parties hereto agree that money damages or other remedy
at law would not be sufficient or adequate remedy for any breach
or violation of, or a default under, this Agreement by them and
that, in addition to all other remedies available to them, each
of them shall be entitled to an injunction restraining such
breach, violation or default or threatened breach, violation or
default and to any other equitable relief, including without
limitation specific performance, without bond or other security
being required. In any action or proceeding brought to enforce
any provision of this Agreement (including the indemnification
provisions thereof), the successful party shall be entitled to
recover reasonable attorneys' fees in addition to its costs and
expenses and any other available remedy.
9. No Inconsistent Agreements.
The Company will not, on or after the date of this
Agreement, enter into any agreement with respect to its
securities which is inconsistent with the rights granted to the
Holders in this Agreement or otherwise conflicts with the
provisions hereof, other than any customary lock-up agreement
with the underwriters in connection with any registration and
offering by the Company of its securities to the public (an
"Offering") effected hereunder, pursuant to which the Company
shall agree not to register for sale, and the Company shall agree
not to sell or otherwise dispose of, Common Stock or any
securities convertible into or exercisable or exchangeable for
Common Stock, for a specified period following such Offering. As
of the date hereof, the Company does not have any registration
rights outstanding to any Person other than the registration
rights granted pursuant to this Agreement. The rights granted to
the Holders hereunder do not in any way conflict with and are not
inconsistent with any other agreements to which the Company is a
party or by which it is bound. The Company further agrees that
if any other registration rights agreement entered into after the
date of this Agreement with respect to any of its securities
contains terms which are more favorable to, or less restrictive
on, the other party thereto than the terms and conditions
contained in this Agreement are (insofar as they are applicable)
to the Holders, then the terms and conditions of this Agreement
shall immediately be deemed to have been amended without further
action by the Company or the Holders so that the Holders shall be
entitled to the benefit of any such more favorable or less
restrictive terms or conditions.
10. Headings.
Headings of the sections and paragraphs of this Agreement
are for convenience only and shall be given no substantive or
interpretive effect whatsoever.
11. Governing Law; Jurisdiction.
(a) This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of
Delaware, without giving effect to the conflicts of law
principles thereof.
(b) Each of the parties hereto irrevocably and
unconditionally consents to the jurisdiction of the courts
of Delaware in respect of the interpretation and enforcement
of the provisions of this Agreement, and hereby agrees that
service of process in any such action, suit or proceeding
against the other party with respect to this Agreement may
be made upon it in any manner permitted by the laws of
Delaware or the federal laws of the United States.
12. Counterparts.
This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all
such counterparts shall together constitute one and the same
instrument.
13. Invalidity of Provision.
The invalidity or unenforceability of any provision of this
Agreement in any jurisdiction shall not affect the validity or
enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of this Agreement,
including that provision, in any other jurisdiction. If any
restriction or provision of this Agreement is held unreasonable,
unlawful or unenforceable in any respect, such restriction or
provision shall be interpreted, revised or applied in a manner
that renders it lawful and enforceable to the fullest extent
possible under law.
14. Further Assurances.
Each party hereto shall do and perform or cause to be done
and performed all further acts and things and shall execute and
deliver all other agreements, certificates, instruments, and
documents as any other party hereto reasonably may request in
order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
15. Entire Agreement; Effectiveness.
This Agreement and the Purchase Agreement and the other
writings referred to herein or delivered in connection herewith
contain the entire agreement among the parties with respect to
the subject matter hereof and supersede all prior and
contemporaneous arrangements or understandings with respect
thereto.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first above written.
PENRIL DATACOMM NETWORKS, INC.
By:
_______________________________
Title:
PEQUOT PARTNERS FUND, L.P.
By: PEQUOT GENERAL PARTNERS,
its general partner
By:
_____________________________
Managing Partner
PEQUOT ENDOWMENT FUND, L.P.
By: PEQUOT ENDOWMENT PARTNERS,
L.P.,
its general partner
By:
____________________________
Managing Partner
PEQUOT INTERNATIONAL FUND INC.
By:
____________________________
Name:
Title:
78340
September 25, 1995 - 4:20pm - JRE
CLE2 - 166859.1B - 03780\418
28
