EXHIBIT 3
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.
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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
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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.
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(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,
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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
6
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
7
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
8
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;
9
(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
10
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;
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(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
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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.
13
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
14
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,
15
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
16
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
17
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.
18
(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
19
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
00
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 & Aronoff
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
22
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.
23
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.
23
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first above written.
PENRIL DATACOMM NETWORKS, INC.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Title: President, Chairman, and CEO
PEQUOT PARTNERS FUND, L.P.
By: PEQUOT GENERAL PARTNERS,
its general partner
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Managing Partner
PEQUOT ENDOWMENT FUND, L.P.
By: PEQUOT ENDOWMENT PARTNERS, L.P.,
its general partner
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Managing Partner
PEQUOT INTERNATIONAL FUND INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: General Partner
