EIGHTH AMENDED AND RESTATED
REGISTRATION AGREEMENT
This Eighth Amended and Restated Registration Agreement dated as
of March 19, 1997, among Xxxxx Electronics Inc. ("Xxxxx"), an Ohio
corporation, for itself and as assignee of Xxxxx Inc., EFI International
Inc. ("EFI"), a Delaware corporation, Encore Computer Corporation
("Encore"), a Delaware corporation, and Indian Creek Capital, Ltd. ("Indian
Creek"), as assignee of Xxxxxxx X. Xxxxxx, and its transferees as permitted
under the terms of this Agreement (collectively, Indian Creek and any such
transferees, the "Management Stockholders") amends and restates the Seventh
Amended and Restated Registration Agreement dated as of April 16, 1996
among Xxxxx, EFI, Encore and Indian Creek.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Xxxxx currently owns 3,935,900 shares of Encore Common
Stock, 73,641 shares of Encore Series A Convertible Participating Preferred
Stock ("Series A Stock"), 728,722 shares of Encore Series B Convertible
Preferred Stock ("Series B Stock"), 123,890 shares of Encore Series D
Convertible Preferred Stock ("Series D Stock"), 1,139,789 shares of Encore
Series E Convertible Preferred Stock ("Series E Stock"), 533,333 shares of
Encore Series F Convertible Preferred Stock ("Series F Stock"), 572,289
shares of Encore Series G Convertible Preferred Stock ("Series G Stock"),
350,000 shares of Encore Series H Convertible Preferred Stock ("Series H
Stock") and 400,000 shares of Encore Series I Stock ("Series I Stock") and
EFI currently owns 991,184 shares of Series D Stock (the Series A Stock,
Series B Stock, Series D Stock, Series E Stock, Series F Stock, Series G
Stock, Series H Stock and Series I Stock, together, being "Encore Preferred
Stock"). The Encore Preferred Stock collectively is convertible into an
additional 162,501,423 shares of Encore Common Stock (after taking into
account accrued dividends in the Encore Preferred Stock through January 15,
1997);
WHEREAS, the Management Stockholders currently own shares of
Series B Stock which are convertible into 1,096,923 shares of Encore Common
Stock (after taking into account accrued dividends in the Encore Preferred
Stock through January 15, 1997); and
WHEREAS, Encore, Xxxxx, EFI and the Management Stockholders wish
to set forth certain registration rights which Xxxxx, EFI and the
Management Stockholders have with respect to shares of Encore Common Stock.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions contained herein, the parties hereto agree as follows:
1. REGISTRATION ON REQUEST OF XXXXX.
(a) Encore agrees that any time it receives a written
notice from Xxxxx or EFI that either or both of Xxxxx and EFI desires to
sell Xxxxx Shares (as hereinafter defined) with a reasonably estimated
public offering price of $10,000,000 or more in a transaction or
transactions requiring registration under the Securities Act of 1933, as
amended (the "Act"), and requesting that Encore effect registration with
respect to the Xxxxx Shares specified in the notice (which, at the election
of Xxxxx or EFI, may be or include a registration of a delayed offering in
accordance with Rule 415 under the Act or a successor to that Rule), Encore
will, subject to subparagraph (c) of this Paragraph 1, promptly file a
registration statement with the Securities and Exchange Commission (the
"SEC") relating to the Xxxxx Shares specified in the notice from Xxxxx or
EFI and use its best efforts to make the registration statement become
effective and qualify the sale of the shares to which it relates under the
Blue Sky laws of those states reasonably requested by Xxxxx and/or EFI, as
applicable, as promptly as practicable. The notice received by Encore from
Xxxxx and/or EFI will contain Xxxxx'x and/or EFI's undertaking, as
applicable, to cooperate with Encore in connection with the registration
and to furnish Encore all such information in connection with the
registration as Encore may reasonably request or as may be required by the
SEC. There will be no limit on the number of notices Xxxxx or EFI can give
under this subparagraph or the number of registration statements Encore
will be required under this subparagraph to file.
(b) Encore will not be obligated to file a registration
statement during the period beginning at Encore's fiscal year end and
ending at the time Encore's year end financial statements are completed,
which will be no later than the time Encore's Annual Report on Form 10-K is
required to be filed with the SEC. If Encore has any contractual
obligation to others entitling them to join any registration of securities
of Encore and Encore wishes to include such other securities of Encore in
any registration statement filed pursuant to this Paragraph 1, Encore will
be permitted to so include such other securities; PROVIDED, HOWEVER, that
Encore will not be permitted to so include such other securities if the
managing underwriter determines in good faith that the inclusion of such
other securities would interfere with the successful sale of the Xxxxx
Shares proposed to be sold.
(c) Encore will not be required to effect registration
pursuant to paragraph (a) or (b) of this Paragraph 1 if a majority of the
directors of Encore determines in good faith that owing to business or
market conditions or the business or financial condition of Encore it is
inappropriate at such time to undertake a public offering of Encore
securities;, PROVIDED, HOWEVER, that Encore may elect not to effect
registration on such grounds only once in any two year period beginning on
the date of such election by Encore, and that within six months after
Encore elects not to effect registration on such grounds Encore will file a
registration statement which will effect such registration. Furthermore,
Encore will not be required to effect registration pursuant to paragraph
(a) or (b) of this Paragraph 1 if a registration statement filed in
connection with an underwritten public offering of Encore Common Stock has
become effective under the Act within six months before the date of receipt
of the notice from Xxxxx or EFI; PROVIDED, HOWEVER, that Encore may elect
not to effect registration on such grounds only once in any two year
period. In addition, if Encore can establish, by delivery of an opinion of
responsible underwriters, that sale of Xxxxx Shares by a means legally
available but not involving an underwriting -- whether by block
transaction, private placement, Rule 144 sale or Rule 144A sale -- will
produce a net price to the prospective seller not lower than that which
would be obtained in an underwriting, Xxxxx and/or EFI, as applicable, will
be obligated to pursue the non-underwritten method (for which registration
is not required) for disposal of such Xxxxx Shares.
(d) The term "Xxxxx" as used in this Agreement shall be
deemed to include, in addition to Xxxxx, any subsequent holder of all or a
portion of the Xxxxx Shares initially owned by Xxxxx who agrees to become a
party to this Agreement. The term "EFI" as used in this Agreement shall be
deemed to include, in addition to EFI, any subsequent holder of all or a
portion of the Xxxxx Shares initially owned by EFI who agrees to become a
party to this Agreement.
(e) The term "Xxxxx Shares" means (i) the shares of Encore
Common Stock currently held by Xxxxx, (ii) the shares of the Series A
Stock, Series B Stock, Series D Stock, Series E Stock, Series F Stock,
Series G Stock, Series H Stock and Series I Stock currently held by Xxxxx
or EFI, as the case may be, or issued as a dividend with regard to those
shares, (iii) any shares of Encore Common Stock issued or issuable to Xxxxx
or EFI upon conversion of any shares of Series A Stock, Series B Stock,
Series D Stock, Series E Stock, Series F Stock, Series G Stock, Series H
Stock and Series I Stock currently held by Xxxxx or EFI or issued as a
dividend with regard to those shares and (iv) any shares of Encore Common
Stock or preferred stock issued in respect of shares described in clauses
(i), (ii) and (iii) upon any stock split, stock dividend or
recapitalization. A notice under Paragraph 1(a) requesting registration of
Xxxxx Shares may specifically be with regard to one or more specified
series of Encore Preferred Stock, and if that is the case, the registration
statement filed as a result of that request will relate only to Preferred
Stock of the specified series.
(f) If Xxxxx acquires Xxxxx Shares from EFI, those shares
will remain Xxxxx Shares and Xxxxx'x rights under this Agreement will apply
to the Xxxxx Shares Xxxxx acquires from EFI to the same extent as though
Xxxxx owned those shares on the date of this Agreement.
2. "PIGGYBACK" RIGHTS.
(a) If Encore shall at any time propose to file a
registration statement under the Act for any underwritten sale of shares of
Encore Common Stock, Encore will give written notice to Xxxxx, EFI and the
Management Stockholders of the registration and the form of registration
statement on which it intends to register such shares. If Xxxxx, EFI or
any Management Stockholder so requests within 10 days, Encore will include
in any such registration Xxxxx Shares or Management Shares (as hereinafter
defined), but Encore will not be obligated to so include the Xxxxx Shares
or the Management Shares if the managing underwriter or underwriters of
such sale determines in good faith that the inclusion of those shares would
interfere with the successful sale of the shares of Encore Common Stock
proposed to be sold or would require the use of a form of registration
statement other than the form which could have been used with regard to the
transaction and which was originally proposed by such managing underwriter.
Any cut-back of the Xxxxx Shares and the Management Shares will be PRO RATA
based upon the respective numbers of Xxxxx Shares and Management Shares
requested to be sold. Except as set forth in Paragraph 2(b) hereof, the
obligations and rights of Encore, Xxxxx and EFI under this Paragraph 2 will
not affect in any way their obligations and rights under Paragraph 1.
(b) If Xxxxx or EFI requests inclusion of Xxxxx Shares in
any registration statement pursuant to Paragraph 2(a) and Encore decides,
pursuant to the terms of such provisions, not to include such Xxxxx Shares,
Encore will, within a reasonable time thereafter, such time not to exceed
six months, use all reasonable efforts to cause the Xxxxx Shares to be
registered under the Act and to prepare and file a registration statement
to effect such registration, unless Encore can establish, by delivery of an
opinion of responsible underwriters, that the sale of such Xxxxx Shares by
a means legally available but not involving a public offering or an
underwriting whether by block transaction, private placement, Rule 144 sale
or Rule 144A sale will produce a net price to the prospective seller not
lower than that which would be obtained in an underwriting.
(c) The term "Management Stockholders" means Indian Creek
and any individual who is an officer of Encore to whom Indian Creek
transfers any shares of Series B Stock and who agrees to become a party to
this Agreement.
(d) The term "Management Shares" means (i) the shares of
Encore Common Stock issued or issuable to any Management Stockholder upon
conversion of the Series B Stock held by the Management Stockholder, (ii)
any shares of Encore Common Stock issued or issuable to any Management
Stockholder upon conversion of any shares of Series B Stock issued to the
Management Stockholders as a dividend on Series B Stock, (iii) shares of
Series B Stock presently held by Indian Creek or issued as a dividend with
regard to these shares and (iv) any shares of Encore Common Stock or
Preferred Stock issued in respect of the shares described in clauses (i),
(ii) and (iii) upon any stock split, stock dividend or recapitalization.
3. EXPENSES.
(a) Subject to the limitations contained in this Paragraph
3, the entire costs and expenses of the registration and qualification
pursuant to Paragraph 1(a) will be borne by Encore. Such costs and
expenses shall include the fees and expenses of counsel for Encore and of
its accountants, all other costs and expenses of Encore incident to the
preparation, printing and filing under the Act of the registration
statement and all amendments and supplements thereto, the cost of
furnishing copies of each preliminary prospectus, each final prospectus and
each amendment or supplement thereto to underwriters, dealers and other
purchasers of the Encore Shares, and the costs and expenses (including fees
and disbursements of counsel) incurred by Encore in connection with the
qualification of the Xxxxx Shares under the Blue Sky laws of various
jurisdictions. Notwithstanding the above, Encore will not be required to
pay the underwriting fees or commissions, or the fees of counsel for the
underwriters or Xxxxx or EFI, in connection with any sale pursuant to
Paragraph 1.
(b) Xxxxx, EFI and the Management Stockholders will bear
their PRO RATA shares (based on the percentage the Xxxxx Shares and the
Management Shares registered pursuant to Paragraph 2 bear to the total
number of shares of Encore Common Stock included in such registration) of
the costs and expenses of such registration which are not borne by Encore,
including the costs and expenses listed in paragraph (a) hereof.
4. PROCEDURES. In the case of each registration or
qualification pursuant to Paragraph 1 or 2, Encore will keep Xxxxx and EFI
(and, in the case of each registration or qualification pursuant to
Paragraph 2, each Management Stockholder) advised in writing as to the
initiation of proceedings for such registration and qualification and as to
the completion thereof, and will advise Xxxxx and EFI (and, in the case of
each registration or qualification pursuant to Paragraph 2, each Management
Stockholder), upon request, of the progress of such proceedings. At its
expense Encore will keep such registration and qualification effective by
any action as may be necessary or appropriate for a period of 120 days
after the effective date of the registration statement including, without
limitation, the filing of post-effective amendments and supplements to any
registration statement or prospectus necessary to keep the registration
statement current and further qualification under any applicable Blue Sky
or other state securities law to permit the sale or distribution which is
the subject of the registration statement, all as requested by Xxxxx, EFI
or any Management Stockholder (except that (i) in the case of an
underwritten offering said 120-day period will instead be a 90-day period
and (ii) in the case of a registration statement under Rule 415 said 120-
day period will instead be a nine-month period or a shorter period which
expires when all the Xxxxx Shares and the Management Shares to which the
registration statement relates are sold).
5. INDEMNIFICATION.
(a) Encore will indemnify and hold harmless Xxxxx, EFI and
any underwriter (as defined in the Act) for Xxxxx or EFI, and each person,
if any, who controls Xxxxx, EFI or any underwriter within the meaning of
the Act, against any losses, claims, damages, or liabilities, joint or
several, and expenses (including reasonable costs of investigation) to
which Xxxxx, EFI or any underwriter or such controlling person may be
subject, under the Act or otherwise, insofar as any thereof arise out of or
are based upon any untrue statement or alleged untrue statement of a
material fact contained in any registration statement under which Xxxxx
Shares were registered under the Act pursuant to Paragraph 1 or 2, any
prospectus or preliminary prospectus contained therein (provided, in the
case of any preliminary prospectus, that the foregoing indemnification
shall not apply to any underwriter or controlling person from whom the
person asserting any such losses, claims, damages or liabilities purchased
the Xxxxx Shares if a copy of the final prospectus had not been sent or
given by or on behalf of such underwriter or controlling person to such
person at or prior to the written confirmation of the sale of such
securities to such person), or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses,
claims, damages, liabilities or expenses arise out of or are based upon any
untrue statement or alleged untrue statement or omission or alleged
omission based upon information furnished to Encore in writing by Xxxxx or
EFI (with respect to which information furnished by it, each of Xxxxx and
EFI shall so indemnify and hold harmless Encore, any underwriter for Encore
and each person, if any, who controls Encore or such underwriter within the
meaning of the Act).
(b) Encore will indemnify and hold harmless each Management
Stockholder and any underwriter (as defined in the Act) for each Management
Stockholder and each person, if any, who controls each Management
Stockholder or any underwriter within the meaning of the Act, against any
losses, claims, damages, or liabilities, joint or several, and expenses
(including reasonable costs of investigation) to which each Management
Stockholder or any underwriter or such controlling person may be subject,
under the Act or otherwise, insofar as any thereof arise out of or are
based upon any untrue statement or alleged untrue statement of a material
fact contained in any registration statement under which the Management
Shares were registered under the Act pursuant to Paragraph 2, any
prospectus or preliminary prospectus contained therein (provided, in the
case of any preliminary prospectus, that the foregoing indemnification
shall not apply to any underwriter or controlling person from whom the
person asserting any such losses, claims, damages or liabilities purchased
the Management Shares if a copy of the final prospectus had not been sent
or given by or on behalf of such underwriter or controlling person to such
person at or prior to the written confirmation of the sale of such
securities to such person), or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses,
claims, damages, liabilities or expenses arise out of or are based upon any
untrue statement or alleged untrue statement or omission or alleged
omission based upon information furnished to Encore in writing by any
Management Stockholder (with respect to which information furnished by it,
such Management Stockholder shall so indemnify and hold harmless Encore,
any underwriter for Encore and each person, if any, who controls Encore or
such underwriter within the meaning of the Act).
6. GENERAL.
(a) This document contains the entire agreement between
Xxxxx, EFI, Encore and the Management Stockholders concerning the
transactions which are the subject of this Agreement, all prior
negotiations, understandings and agreements between them are superseded by
this Agreement, and there are no representations, warranties,
understandings or agreements concerning the transactions which are the
subject of this Agreement other than those expressly set forth in this
Agreement.
(b) Except to the extent provided in Paragraph 1(d),
neither this Agreement nor any right of any party under it may be assigned
without the prior written consent of Xxxxx, EFI and Encore.
7. Any notice or other communication required or permitted to
be given under this Agreement must be in writing and will be deemed
effective when delivered in person or sent by facsimile, if promptly
confirmed in writing, or on the third day after the day on which mailed by
first class mail from within the United States of America, to the following
addresses:
If to Xxxxx:
Xxxxx Electronics Inc.
00000 Xxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxx 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxxxxx, Esq.
Xxxxxx & Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
If to EFI:
EFI International Inc.
c/o Gould Electronics Inc.
00000 Xxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxx 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
If to Encore or any Management Stockholder:
Encore Computer Corporation
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000-0000
Attention: President
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to:
Cameron Read, Esq.
Xxxxxx, Xxxx & Xxxxxxx
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
8. This Agreement will be governed by, and construed under, the
laws of the State of New York.
9. Thi
