EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered into as
of September 29, 1994 by and between Exide Electronics Group, Inc, a Delaware
corporation (the "Company"), and Gilbert Stuart Goodchild (the "Holder").
WHEREAS, in connection with the acquisition of G.S. Electronics Limited by MPL
Powerware Systems Limited ("MPL") pursuant to an agreement dated 29 September
1994 made between MPL (1) and the Holder and others (2) (the "Agreement") under
which the Company will issue to the Holder such number of shares as represent
the Holder's entitlement to the Consideration Shares (as defined in the
Agreement) as is determined in accordance with the terms of the Agreement (the
"Registrable Shares") of common stock, par value $.01 per share, of the Company
("Common Stock"), the Company and the Holder have agreed to enter into this
Agreement in order to provide, among other things, for certain registration
rights concerning the sale of Registrable Shares;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements contained herein, the parties hereto agree as follows:
1. Demand Registration
(a) At any time the Company is eligible to use Form S-3 or other short form
registration statement, but no earlier than 31 December 1994, upon the
written request of the Holder the Company shall file a registration
statement with the Securities and Exchange Commission ("SEC") within 60
days of receipt of the Holder's written request for registration with
the SEC under the Securities Act of 1933 (the "1933 Act") of all or
part of its Registrable Shares; provided, however, that the Company
shall have no obligation to register any Registrable Shares that are
eligible for sale pursuant to Rule 144(k) under the 1933 Act. Any such
request by the Holder shall specify the aggregate number of Registrable
Shares proposed to be sold and shall also specify the intended method
of disposition thereof; provided, however, that the Holder's demand
shall specify an aggregate number of Registrable Shares equal to at
least half of the Registrable Shares that the Holder owns at the time
the demand is made of the Company. The Company shall use its best
efforts to keep the registration statement effective until the earlier
of six (6) months after the date of effectiveness of the registration
statement or until the Holder has sold the number of Registrable Shares
for which it requested registration. The Holder shall not be entitled
to make a demand pursuant to this Section 1 more than one (1) time;
provided, however, that (i) if no registration statement is declared
effective with respect to a demand which the Holder has made (other
than because the Holder has requested that the registration statement
not be declared effective) or (ii) if the registration statement does
not include all of the Registrable Shares that the Holder requests to
be included, that demand shall not be counted for purposes of this
limit. The Company may defer filing a registration statement pursuant
to this Section 1 for up to 120 days if in the reasonable judgment of
the Company's board of Directors the filing of such registration
statement would be detrimental to the Company. Such option of the
Company's Board of Directors shall be exercised only once with respect
to each request. The Company may, in its discretion, include in the
registration statement shares of Common Stock to be sold by the Company
or other stockholders.
2. Registration Procedures
(a) The Company shall have no obligation to include Registrable Shares
owned by the Holder in a registration statement pursuant to Section 1
hereof unless and until the Holder has furnished the Company with all
information and statements about or pertaining to the Holder in such
reasonable detail and on such timely basis as is reasonably deemed by
the Company to be necessary or appropriate for the preparation of the
registration statement.
(b) Whenever the Holder has requested that Registrable Shares be registered
pursuant to Section 1 hereof, the Company shall, subject to the
provisions of Section 1 hereof:
(1) prepare and file with the SEC a registration statement
with respect to such Registrable Shares and use its reasonable
efforts to cause such registration statement to become
effective as soon as practicable after the filing thereof
(provided that before filing a registration statement or
prospectus or any amendments or supplements thereto, the
Company shall furnish counsel for the Holder with copies of
all such documents proposed to be filed);
(2) prepare and file with the SEC such amendments and
supplements to such registration statement and prospectus
contained therein as may be necessary to keep such
registration statement effective for a period of not less than
six (6) months or until the Holder has completed the
distribution described in such registration statement,
whichever occurs first;
(3) furnish to the Holder the number of copies of such
registration statement, each amendment and supplement thereto,
the prospectus contained in such registration statement
(including each preliminary prospectus), and such other
documents as the Holder may reasonably request;
(4) use its best efforts to register or qualify such
Registrable Shares under the state blue sky or securities
("Blue Sky") laws of such jurisdictions as the Holder
reasonably requests (and to keep such registrations and
qualifications effective for a period of six months, or until
the holder has completed the distribution of such Registrable
Shares, whichever occurs first), and to do any and all other
acts and things that may be reasonably necessary or advisable
to enable the Holder to consummate the disposition of such
Registrable Shares in such jurisdictions; provided, however,
that the Company will not be required to do any of the
following: (i) qualify generally to do business in any
jurisdiction where it would not be required but for this
Section 2(b), (ii) subject itself to taxation in any such
jurisdiction, or (iii) file any general consent to service of
process in any such jurisdiction;
(5) promptly notify the Holder, at any time when a prospectus
relating thereto is required to be delivered under the 1933
Act during the period that the Company is required to keep
the registration statement effective, of the occurrence of any
event as a result of which the prospectus included in such
registration statement contains an untrue statement of a
material fact or omits any fact necessary to make the
statements therein in the light of the circumstances under
which they were made, not misleading, and prepare a supplement
or amendment to the prospectus so that, as thereafter
delivered to the purchasers of such Registrable Shares, the
prospectus will not contain an untrue statement of a material
fact or omit to state any fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(6) provide a transfer agent and registrar (if the Company
does not already have such an agent) for all such Registrable
Shares not later than the effective date of such registration
statement; and
(7) ensure that, if the Holder is included as a party to the
underwriting agreement between the Company and such
underwriters as the Company may have selected, the Holder
shall not be required to make any representations or
warranties to or agreements with the Company or the
underwriters other than representations, warranties or
agreements regarding the Holder's status, the Holder's Common
Stock holdings, the Holder's intended method of distribution,
and any other representations, warranties, and agreements of
selling stockholders customarily included in an underwriting
agreement.
3. Holdback Agreement
In the event that the Company effects an underwritten public offering of any the
Company's securities, the Holder agrees, if requested by the Company or the
managing underwriters, not to effect any offer, sale, or transfer, including any
sale pursuant to Rule 144 under the 1933 Act, of any interest in the Company's
equity securities or any security convertible or exercisable for the Company
equity securities (except as part of such underwritten offering) pursuant to
demand made under Section 1 hereof during the 180-day period commencing with the
effective date of the registration statement for such offering (or such longer
or lesser period as is requested of and agreed to by other large Company
stockholders or the Company management generally).
4. Registration Expenses
(a) If, pursuant to Section 1 hereof, Registrable Shares owned by the
Holder are included in a registration statement, then the Holder shall
pay all transfer taxes, if any, relating to the sale of its Registrable
Shares, the fees and expenses of its own counsel, and its pro rata
portion of any underwriting discounts or commissions or the equivalent
thereof.
(b) Except for the fees and expenses specified in Section 4(a) hereof and
except as provided below in this Section 4(b), the Company shall pay
all expenses incident to the registration and to the Company's
performance of or compliance with this Agreement, including, without
limitation, all registration and filing fees, fees and expenses of
compliance with Blue Sky laws, printing expenses, messenger and
delivery expenses, and fees and expenses of counsel for the Company and
all independent certified public accountants and other persons retained
by the Company.
(c) With respect to any registration pursuant to Section 1 hereof, the
Company shall pay its internal expenses (including, without limitation,
all salaries and expenses of its officers and employees performing
legal or accounting duties).
5. Indemnity and Contribution
(a) In the event that any Registrable Shares owned by the Holder are sold
by means of a registration statement pursuant to Section 1 hereof, the
Company agrees to indemnify and hold harmless the Holder (referred to
in this Section 5 as an "Indemnified Person") from and against all
demands, claims, actions or causes of action, assessments, losses,
damages, liabilities, costs, and expenses, including, without
limitation, interest, penalties, and reasonable attorneys' fees and
disbursements, asserted against, resulting to, imposed upon, or
incurred by the Holder, directly or indirectly (hereinafter referred to
in this Section 5 in the singular as a "Claim" and in the plural as
"Claims"), based upon, arising out of, or resulting from any untrue
statement of a material fact contained in the registration statement or
any omission to state therein a material fact necessary in order to
make the statements made therein, in the light of the circumstances
under which they were made, not misleading, except insofar as such
Claim is based upon, arises out of or results from information
furnished to the Company by the Holder in a written document provided
by the Holder for use in connection with the registration statement.
The Holder agrees to indemnify and hold harmless the Company, its
officers and directors, each person, if any, who controls or may
control the Company within the meaning of the 1933 Act and any
underwriters participating in the distribution of Registrable Shares
pursuant to a registration statement (the Company, its officers and
directors, and any such other persons being hereinafter referred to
individually as an "Indemnified Person" and collectively as
"Indemnified Persons") from and against all Claims based upon, arising
out of, or resulting from any untrue statement of a material fact
contained in the registration statement or any omission to state
therein a material fact necessary in order to make the statement made
therein, in the light of the circumstances under which they were made,
not misleading, to the extent that such Claim is based upon, arises out
of or results from information furnished to the Company by the Holder
in a written document provided by the Holder for use in connection with
the registration statement. The indemnification's set forth herein
shall be in addition to any liability the Company or the Holder may
otherwise have to the Indemnified Persons. Promptly after actually
receiving definitive notice of any Claim in respect of which an
Indemnified Person may seek indemnification under this Section 5, such
Indemnified Person shall submit written notice thereof to either the
Company or the Holder, as the case may be (sometimes being hereinafter
referred to as an "Indemnifying Person"). The failure of the
Indemnified Person so to notify the Indemnifying Person of any such
Claim shall not relieve the Indemnifying Person from any liability it
may have hereunder except to the extent that (a) such liability was
caused or increased by such omission, or (b) the ability of the
Indemnifying Person to reduce such liability was materially adversely
affected by such omission. In addition, the failure of the Indemnified
Person so to notify the Indemnifying Person of any such Claim shall not
relieve the Indemnifying Person from any liability it may have
otherwise than hereunder. The Indemnifying Person shall have the right
to undertake, by counsel or representatives of its own choosing, the
defense, compromise, or settlement (without admitting liability of the
Indemnifying Person) of any such Claim asserted, such defense,
compromise, or settlement to be undertaken at the expense and risk of
the Indemnifying Person, and the Indemnified Person shall have the
right to engage separate counsel, at its own expense, whom counsel for
the Indemnifying Person shall keep informed and consult with in a
reasonable manner. In the event the Indemnifying Person shall elect
not to undertake such defense by its own representatives, the
Indemnifying Persons shall give prompt written notice of such election
to the Indemnified Person, and the Indemnified Person shall undertake
the defense, compromise, or settlement (without admitting liability of
the Indemnified Person) thereof on behalf of and for the account and
risk of the Indemnifying Person by counsel or other representatives
designated by the Indemnified Person. In the event that any Claim
shall arise out of a transaction or cover any period or periods wherein
the Company and the Holder shall each be liable hereunder for part of
the liability or obligation arising therefrom, then the parties shall,
each choosing its own counsel and bearing its own expenses, defend such
Claim, and no settlement or compromise of such Claim may be made
without the joint consent or approval of the Company and the Holder.
Notwithstanding the foregoing, no Indemnifying Person shall be
obligated hereunder with respect to amounts paid in settlement of any
Claim if such settlement is effected without the consent of such
Indemnifying Person which consent shall not be unreasonably withheld).
(b) If the indemnification provided for in Section 5(a) of this Agreement
is unavailable to an Indemnified Person in respect of any Claims, the
Indemnifying Person, in lieu of indemnifying such Indemnified Person,
shall contribute to the amount paid or payable by such Indemnified
Person as a result of such Claims (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company,
on the one hand, and the Holder, on the other hand, from the offering
of the Common Stock, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company, on the
one hand and the Holder, on the other hand, in connection with the
statements or omissions that resulted in such Claims, as well as any
other relevant equitable considerations. The relative benefits
received by the Company, on the one hand, and the Holder, on the other
hand, shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the
Company bear to the total net proceeds (before deducting expenses)
received by the Holder. The relative fault of the Company, on the one
hand, and the Holder, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company,
on the one hand, or by the Holder, on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
6. Transfer to Third Parties
If the Holder transfers all of its Registrable Shares to any other person or
entity (the "Transferee") other than pursuant to a registration statement filed
in response to demand made under Section 1 hereof or pursuant to Rule 144(k)
under the 1933 Act, then, if so requested by the holder in writing, the Company
shall enter into an appropriate agreement with the Transferee (or an appropriate
amendment to this Agreement) which provides that the Transferee shall have the
same rights and same obligations with regard to registration of the Registrable
Shares and related matters as are granted to the Holder hereunder.
7. Subsequent Registration Statement
The Company shall not cause any new registration statements (except registration
statements on Forms S-8, S-4, or comparable forms) to become effective during
the 90 days after the effective date of a registration statement covering
Registrable Shares owned by the Holder or until the Holder has completed the
distribution described in such registration statement, whichever occurs first.
8. Warranties
The Company warrants to the Holder as follows:
(a) this Agreement constitutes a valid and binding obligation of the
Company;
(b) the Registrable Shares have been duly authorised and validly issued by
the Company and are fully paid, non-assessable and free for any liens,
claims, charges, security interests, options or other encumbrances;
(c) the Registrable Shares are of the same class and, except only for the
restrictions o transferability pursuant to the provisions of applicable
securities law, are the same in every respect as those shares of the
Company traded on NASDAQ Securities Trading Exchange under the symbol +
UPS.
9. Term
This Agreement shall terminate five (5) years after the date first
above written; provided, however, that the revisions of Section 5
hereof shall survive such termination.
10. Notices
All notices, requests, demands or other communications that may be or are
required to be given, served, or sent by any party to any other party pursuant
to this Agreement shall be in writing and shall be hand delivered or mailed by
first class, registered or certified mail, return receipt requested, postage
prepaid, delivered by overnight express, or transmitted by telegram or telex,
addressed as follows:
(i) If to the Company:
Exide Electronics Group, Inc
8521 Six Forks Road
Raleigh
North Carolina 27615
U.S.A.
Attention: President
(ii) If to the Holder:
Hawkwell House
Maidstone Road
Pembury
Tunbridge Wells
Kent TN2 4AE
Each party may designate by notice in writing a new address to which any notice,
request, demand, or other communication may thereafter be so given. Each notice,
request, demand, or other communication that shall be hand delivered, mailed or
telexed in the manner described above, or that shall be delivered to a telegraph
company, shall be deemed sufficiently given, served, sent, received, or
delivered for all purposes at such time as it is delivered to the addressee
(with the return receipt, the delivery receipt, the affidavit of messenger, or
overnight courier or (with respect to a telex) the answerback being deemed
conclusive, but not exclusive, evidence of such delivery) or at such time as
delivery is refused by the addressee upon presentation.
11. Severability
If fulfilment of any provision of this Agreement or performance of any
transaction related thereto, at the time such fulfilment or performance shall be
due, shall involve transcending the limit of validity prescribed by law, then
the obligation to be fulfilled or performed shall be reduced to the limit of
such validity; and if any clause or provision contained in this Agreement
operates or would operate prospectively to invalidate any other provision in
this Agreement, in whole or in part, then only the clause or provision causing
the invalidity of such other clause or provision shall be held ineffective, as
though not herein contained, and the remainder of this Agreement shall remain
operative and in full force and effect.
12. Miscellaneous Provisions
Each of the parties hereto shall take or cause to be taken such further actions
and shall obtain such consents as may be necessary or as the other party may
reasonably request, without the payment of further consideration, in order fully
to effectuate the purposes, terms, and conditions of this Agreement. Neither
party may assign its rights under this Agreement without the prior written
consent of the other party hereto. No waiver by any party of, or consent by any
party to, a variation from the requirements of any provision of this Agreement
shall be effective unless made in a written instrument duly executed by or on
behalf of such party, and any such waiver shall be limited solely to those
rights or conditions expressly waived. This Agreement constitutes the entire
agreement of the parties hereto with respect to the matters contemplated herein
and supersedes all prior oral or written agreements, commitments, or
understandings with respect to the matters contemplated herein, and may not be
modified, deleted, or amended except by written instrument executed by the
parties. This Agreement, the rights and obligations of the parties hereto, and
any Claims or disputes relating thereto shall be governed by and construed in
accordance with the laws of the State of [Delaware] (but not including the
choice of law rules thereof). To facilitate execution, this agreement may be
executed in as many counterparts as may be required; it shall not be necessary
that the signatures of, or on behalf of, each party appear on each counterpart;
but it shall be sufficient that the signatures of, or on behalf of, each party,
or the signatures of the persons required to bind any party, appear on one or
more of the counterparts. All counterparts shall collectively constitute a
single agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
EXIDE ELECTRONICS GROUP, INC.
By: /s/ Marty R. Kittrell
Vice President, CFO and Treasurer
By: /s/ Gilbert Stuart Goodchild