Exhibit 4.2
$60,000,000
C&D Technologies, Inc.
5.25% Convertible Senior Notes due 2025
PURCHASE AGREEMENT
November 16, 2005
Credit Suisse First Boston LLC
Wachovia Capital Markets, LLC
c/o Credit Suisse First Boston LLC
Eleven Madison Avenue
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. C&D Technologies, Inc., a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the several initial purchasers named in Schedule A hereto (the
"Purchasers") U.S.$60,000,000 principal amount of its 5.25% Convertible Senior
Notes due 2025 (the "Firm Securities") which are convertible into cash or a
combination of cash and shares of common stock, $0.01 par value, of the Company
(the "Underlying Shares") and, at the election of the Purchasers, an aggregate
of up to an additional $15,000,000 principal amount ("Optional Securities") of
its 5.25% Convertible Senior Notes due 2025 (the Firm Securities and the
Optional Securities which the Purchasers may elect to purchase pursuant to
Section 3 hereof are herein collectively called the "Offered Securities") each
to be issued under an indenture to be dated as of November 21, 2005 (the
"Indenture"), between the Company and The Bank of New York, as Trustee, on a
private placement basis pursuant to an exemption under Section 4(2) of the
United States Securities Act of 1933, as amended (the "Securities Act"), and
hereby agrees with the several Purchasers as follows:
The Offered Securities will be convertible into shares of common
stock, par value $0.01 per share, of the Company (the "Common Stock ") in
accordance with the terms of the Offered Securities and the Indenture, at the
initial conversion rate specified in Schedule B hereto.
The holders of the Offered Securities will be entitled to the
benefits of a Registration Rights Agreement to be dated as of November 21, 2005
among the Company and the Purchasers (the "Registration Rights Agreement"),
pursuant to which the Company agrees to file a registration statement with the
Securities and Exchange Commission (the "Commission") registering the resale of
the Offered Securities and the Underlying Shares under the Securities Act.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Purchasers that:
(a) A preliminary offering circular and an offering circular
relating to the Offered Securities have been prepared by the Company. Such
preliminary offering circular (the "Preliminary Offering Circular") and offering
circular (the "Offering Circular"), as amended or supplemented as of the date of
this Agreement, together with any other document approved by the Company for use
in con-
nection with the contemplated resale of the Offered Securities, are hereinafter
collectively referred to as the "Offering Document". On the date of this
Agreement, the Offering Document does not, and as of the Closing Date will not,
include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The preceding sentence
does not apply to statements in or omissions from the Offering Document based
upon written information furnished to the Company by any Purchaser through
Credit Suisse First Boston LLC ("CSFB") specifically for use therein, it being
understood and agreed that the only such information is that described as such
in Section 7(b) hereof. Except as disclosed in the Offering Document, the
Company's Annual Report on Form 10-K most recently filed with the Commission and
all subsequent reports (collectively, the "Exchange Act Reports") which have
been filed by the Company with the Commission or sent to stockholders pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange Act") did not,
as of their respective filing dates, include any untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. Such documents, when they were filed with the Commission, conformed
in all material respects to the requirements of the Exchange Act and the rules
and regulations of the Commission thereunder. For purposes of this Agreement,
the phrases "disclosed in the Offering Document" or "contained in the
Preliminary Offering Circular," or words of similar import, shall refer to the
disclosure contained in the Offering Document as if the information incorporated
therein by reference from the Exchange Act Reports were set forth in full
therein.
(b) The Offered Securities have been duly authorized by the Company
and, when delivered and paid for pursuant to this Agreement and the Indenture,
will have been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company, entitled to the
benefits provided in the Indenture and enforceable in accordance with their
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally or by equitable principles relating to enforceability.
(c) The Company has submitted an application for listing the
Underlying Shares with the New York Stock Exchange ("NYSE").
(d) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Offering Document; and the Company is duly
qualified to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of its
business requires such qualification.
(e) Each subsidiary of the Company has been duly incorporated or
organized and is an existing corporation or other entity in good standing under
the laws of the jurisdiction of its incorporation or organization, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Offering Document; and each subsidiary of the
Company is duly qualified to do business as a foreign corporation or other
entity in good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such qualification;
all of the issued and outstanding capital stock of each subsidiary of the
Company has been duly authorized and validly issued and is fully paid and
nonassessable; and the capital stock of each subsidiary owned by the Company,
directly or through subsidiaries, is owned free from liens, encumbrances and
defects. The subsidiaries listed in Schedule B to this Agreement are the only
subsidiaries of the Company.
(f) The Company has a capitalization as set forth in the Offering
Document under the heading "Capitalization".
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(g) The Indenture has been duly authorized by the Company and, when
duly executed and delivered in accordance with its terms by each of the parties
thereto on the First Closing Date, will constitute a valid and legally binding
agreement of the Company enforceable against the Company in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally or by equitable principles relating to enforceability; and on the
First Closing Date (as defined in Section 3 hereof), the Indenture will conform
in all material respects to the requirements of the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act "), and the rules and regulations of the
Commission applicable to an indenture that is qualified thereunder;
(h) When the Offered Securities are delivered and paid for pursuant
to this Agreement on the Closing Date, such Offered Securities will be
convertible into shares of Common Stock of the Company in accordance with the
terms of the Indenture; the Underlying Shares initially issuable upon conversion
of such Offered Securities have been duly authorized and reserved for issuance
upon such conversion and, when issued upon such conversion, will be validly
issued, fully paid and nonassessable; the outstanding Underlying Shares have
been duly authorized and validly issued, are fully paid and nonassessable and
conform to the description thereof contained in the Offering Document; and the
stockholders of the Company have no preemptive rights with respect to the
Offered Securities or the Underlying Shares.
(i) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Company and any person that
would give rise to a valid claim against the Company or any Purchaser for a
brokerage commission, finder's fee or other like payment with respect to the
offer and sale of the Offered Securities.
(j) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement and the
Registration Rights Agreement in connection with the issuance and sale of the
Offered Securities by the Company, except for the filing with the Commission of
the Shelf Registration Statement (as defined in the Registration Rights
Agreement) and the order of the Commission declaring the Shelf Registration
Statement effective.
(k) The execution, delivery and performance of the Indenture, this
Agreement and the Registration Rights Agreement, and the issuance and sale of
the Offered Securities and compliance with the terms and provisions thereof will
not result in a breach or violation of any of the terms and provisions of, or
constitute a default under (i) any statute, rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any subsidiary of the Company or any of their
properties, (ii) any agreement or instrument to which the Company or any such
subsidiary is a party or by which the Company or any such subsidiary is bound or
to which any of the properties of the Company or any such subsidiary is subject,
or (iii) the charter or by-laws of the Company or any such subsidiary, in each
case, that would reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect, and the Company has full power and authority to
authorize, issue and sell the Offered Securities as contemplated by this
Agreement.
(l) This Agreement has been duly authorized, executed and delivered
by the Company.
(m) The Registration Rights Agreement has been duly authorized by
the Company and, when duly executed and delivered in accordance with its terms
by each of the parties thereto on the First Closing Date, will constitute a
valid and legally binding agreement of the Company enforceable against the
Company in accordance with its terms, except as enforceability may be limited by
applicable
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bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability, and
except that rights to indemnity and contribution thereunder may be limited by
applicable law and public policy.
(n) Except as disclosed in the Offering Document, neither the
Company nor any of its subsidiaries is (i) in violation of its charter, by-laws
or similar organizational documents; (ii) in default, and no event has occurred
that, with notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject; or
(iii) in violation of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental or regulatory authority,
except, in the case of clauses (ii) and (iii) above, for any such default or
violation that would not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the condition (financial or
other), business, properties or results of operations of the Company and its
subsidiaries taken as a whole ("Material Adverse Effect").
(o) Except as disclosed in the Offering Document, the Company and
its subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them, in each case free from liens,
encumbrances and defects that would materially affect the value thereof or
materially interfere with the use made or to be made thereof by them; and except
as disclosed in the Offering Document, the Company and its subsidiaries hold any
leased real or personal property under valid and enforceable leases with no
exceptions that would materially interfere with the use made or to be made
thereof by them.
(p) The Company and its subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or bodies
necessary to conduct the business now operated by them and have not received any
notice of proceedings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to the Company or
any of its subsidiaries, would individually or in the aggregate reasonably be
expected to have a Material Adverse Effect.
(q) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that would
reasonably be expected to have a Material Adverse Effect.
(r) The Company and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and other
intellectual property (collectively, "intellectual property rights") necessary
to conduct the business now operated by them, or presently employed by them, and
have not received any notice of infringement of or conflict with asserted rights
of others with respect to any intellectual property rights that, if determined
adversely to the Company or any of its subsidiaries, would individually or in
the aggregate reasonably be expected to have a Material Adverse Effect.
(s) Except as disclosed in the Offering Document, neither the
Company nor any of its subsidiaries is in violation of any statute, rule,
regulation, decision or order of any governmental agency or body or any court,
domestic or foreign, relating to the use, disposal or release of hazardous or
toxic substances or relating to the protection or restoration of the environment
or human exposure to hazardous or toxic substances (collectively, "environmental
laws"), owns or operates any real property contaminated with any substance that
is subject to any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any claim
relating to any environ-
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mental laws, which violation, contamination, liability or claim would
individually or in the aggregate reasonably be expected to have a Material
Adverse Effect; and the Company is not aware of any pending investigation which
would reasonably be expected to lead to such a claim.
(t) Except as disclosed in the Offering Document, there are no
pending actions, suits or proceedings against or affecting the Company, any of
its subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, would individually or in
the aggregate reasonably be expected to have a Material Adverse Effect, or would
materially and adversely affect the ability of the Company to perform its
obligations under the Indenture, this Agreement or the Registration Rights
Agreement, or which are otherwise material in the context of the sale of the
Offered Securities; and no such actions, suits or proceedings are threatened or,
to the Company's knowledge, contemplated; and (i) there are no current or
pending legal, governmental or regulatory actions, suits or proceedings that
would be required under the Securities Act to be described in a prospectus that
are not so described in the Offering Document and (ii) there are no contracts or
other documents that are required under the Securities Act to be filed as
exhibits to a registration statement or described in a registration statement or
a prospectus that are not filed with the Commission or described in the Offering
Document.
(u) The financial statements included in the Offering Document
present fairly the financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of operations and cash
flows for the periods shown, and such financial statements have been prepared in
conformity with the generally accepted accounting principles in the United
States applied on a consistent basis except as may be stated in the notes
thereto.
(v) Except as disclosed in the Offering Document, since the date of
the latest audited financial statements included in the Offering Document, there
has been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole, and, except as disclosed in or contemplated by
the Offering Document, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(w) The Company is subject to the reporting requirements of either
Section 13 or Section 15(d) of the Exchange Act and files reports with the
Commission on the Electronic Data Gathering, Analysis, and Retrieval (EDGAR)
system.
(x) Each employee benefit plan, within the meaning of Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA "),
that is maintained, administered or contributed to by the Company or any of its
affiliates for employees or former employees of the Company and its affiliates
has been maintained in all material respects in compliance with its terms and
the requirements of any applicable statutes, orders, rules and regulations,
including but not limited to ERISA and the Internal Revenue Code of 1986, as
amended (the "Code"); no prohibited transaction, within the meaning of Section
406 of ERISA or Section 4975 of the Code, has occurred with respect to any such
plan excluding transactions effected pursuant to a statutory or administrative
exemption; and for each such plan that is subject to the funding rules of
Section 412 of the Code or Section 302 of ERISA, no "accumulated funding
deficiency" as defined in Section 412 of the Code has been incurred, whether or
not waived, and the fair market value of the assets of each such plan (excluding
for these purposes accrued but unpaid contributions) exceeds the present value
of all benefits accrued under such plan determined using reasonable actuarial
assumptions.
(y) Each of the Company and its subsidiaries has filed all necessary
federal, state and foreign income and franchise tax returns, except where the
failure to so file such returns would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, and has paid all
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taxes shown as due thereon; and other than tax deficiencies which the Company or
any subsidiary, as the case may be, are contesting in good faith and for which
the Company or such subsidiary, as the case may be, has provided adequate
reserves, there is no tax deficiency that has been asserted against the Company
or any of the subsidiaries that would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
(z) The Company and its subsidiaries maintain systems of internal
accounting controls sufficient to provide reasonable assurance that in all
material respects (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(aa) The Company and its subsidiaries have insurance covering their
respective properties, operations, personnel and businesses, which insurance is
in amounts and insures against such losses and risks as are reasonably adequate
for the conduct by the Company and its subsidiaries of their respective
businesses.
(bb) Neither the Company nor any of its subsidiaries nor, to the
Company's knowledge, any director, officer, agent, employee or other person
associated with or acting on behalf of the Company or any of its subsidiaries
has (i) used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity; (ii)
made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; (iii) violated or is in
violation of any provision of the Foreign Corrupt Practices Act of 1977; or (iv)
made any bribe, rebate, payoff, influence payment, kickback or other unlawful
payment.
(cc) On and immediately after the Closing Date, the Company (after
giving effect to the issuance of the Offered Securities and the other
transactions related thereto as described in the Offering Document) will be
Solvent. As used in this paragraph, the term "Solvent " means, with respect to a
particular date, that on such date the present fair market value (or present
fair saleable value) of the assets of the Company is not less than the total
amount required to pay the liabilities of the Company on its total existing
debts and liabilities (including contingent liabilities) as they become absolute
and matured.
(dd) The Company is not an open-end investment company, unit
investment trust or face-amount certificate company that is or is required to be
registered under Section 8 of the United States Investment Company Act of 1940,
as amended (the "Investment Company Act"); and the Company is not and, after
giving effect to the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the Offering Document, will
not be an "investment company" as defined in the Investment Company Act.
(ee) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Offered Securities are listed on any
national securities exchange registered under Section 6 of the Exchange Act or
quoted in a U.S. automated inter-dealer quotation system; and each of the
Preliminary Offering Circular and the Offering Circular, as of its respective
date, contains or will contain all the information that, if requested by a
prospective purchaser of the Offered Securities, would be required to be
provided to such prospective purchaser pursuant to Rule 144A(d)(4) under the
Securities Act.
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(ff) Neither the Company nor any of its affiliates (as defined in
Rule 501(b) of Regulation D under the Securities Act) has, directly or through
any agent, sold, offered for sale, solicited offers to buy or otherwise
negotiated in respect of, any security (as defined in the Securities Act), that
is or will be integrated with the sale of the Offered Securities in a manner
that would require registration of the Offered Securities under the Securities
Act.
(gg) The offer and sale of the Offered Securities by the Company to
the several Purchasers in the manner contemplated by this Agreement will be
exempt from the registration requirements of the Securities Act by reason of
Section 4(2) thereof, Regulation D thereunder and Regulation S; and it is not
necessary to qualify an indenture in respect of the Offered Securities under the
Trust Indenture Act.
(hh) Neither the Company, nor any of its affiliates, nor any person
acting on its or their behalf (i) has, within the six-month period prior to the
date hereof, offered or sold in the United States or to any U.S. person (as such
terms are defined in Regulation S under the Securities Act) the Offered
Securities or any security of the same class or series as the Offered Securities
or (ii) has offered or will offer or sell the Offered Securities (A) in the
United States by means of any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the Securities Act or (B)
with respect to any securities sold in reliance on Rule 903 of Regulation S, by
means of any directed selling efforts within the meaning of Rule 902(c) of
Regulation S. The Company has not entered and will not enter into any
contractual arrangement with respect to the distribution of the Offered
Securities except for this Agreement and any engagement agreement with a
Purchaser.
(ii) Nothing has come to the attention of the Company that has
caused the Company to believe that the statistical and market-related data
included in the Offering Document is not based on or derived from sources that
are reliable and accurate in all material respects.
(jj) No relationship, direct or indirect, exists between or among
the Company or any of its subsidiaries, on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company or any of its
subsidiaries, on the other, that is required by the Securities Act to be
described in a prospectus that is not so described in the Offering Document.
(kk) There is and has been no failure on the part of the Company or
any of the Company's directors or officers, in their capacities as such, to
comply in all material respects with any provision of the Sarbanes-Oxley Act of
2002 and the rules and regulations promulgated in connection therewith (the
"Sarbanes-Oxley Act"), including Section 402 related to loans and Sections 302
and 906 related to certifications.
(ll) The proceeds to the Company from the offering of the Offered
Securities will not be used to purchase or carry any security.
3. Purchase, Sale and Delivery of Offered Securities. On the basis
of the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the Company agrees to sell to the
Purchasers, and the Purchasers agree, severally and not jointly, to purchase
from the Company, at a purchase price of 97.0% of the principal amount thereof
plus accrued interest from November 21, 2005 to the First Closing Date (as
hereinafter defined), the respective principal amounts of Firm Securities set
forth opposite the names of the several Purchasers in Schedule A hereto.
The Company will deliver against payment of the purchase price the
Firm Securities in the form of one or more permanent global securities in
definitive form (the "Firm Global Securities") deposited with the Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the
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name of Cede & Co., as nominee for DTC. Interests in any permanent global
securities will be held only in book-entry form through DTC, except in the
limited circumstances described in the Offering Document. Payment for the Firm
Securities shall be made by the Purchasers in Federal (same day) funds by
official check or checks or wire transfer to an account at a bank acceptable to
CSFB at the office of Cahill Gordon & Reindel LLP at 9:00 A.M. (New York time),
on November 21, 2005, or at such other time not later than seven full business
days thereafter as CSFB and the Company determine, such time being herein
referred to as the "First Closing Date", against delivery to the Trustee as
custodian for DTC of the Firm Global Securities representing all of the Firm
Securities. The Firm Global Securities will be made available for checking at
the offices of Cahill Gordon & Reindel LLP at least 24 hours prior to the First
Closing Date.
In addition, upon written notice from CSFB given to the Company from
time to time not more than 30 days subsequent to the date of this Agreement, the
Purchasers may purchase all or less than all of the Optional Securities at the
purchase price of 97.0% of the principal amount of Optional Securities
(including any accrued interest thereon from November 21, 2005 to the related
Optional Closing Date (as defined below)). The Company agrees to sell to the
Purchasers the principal amount of Optional Securities specified in such notice
and the Purchasers agree, severally and not jointly, to purchase such Optional
Securities. Such Optional Securities shall be purchased from the Company for the
account of each Purchaser in the same proportion as the principal amount of Firm
Securities set forth opposite such Purchaser's name in Schedule A hereto bears
to the total principal amount of Firm Securities (subject to adjustment by CSFB
to eliminate fractions). No Optional Securities shall be sold or delivered
unless the Firm Securities previously have been, or simultaneously are, sold and
delivered. The right to purchase the Optional Securities or any portion thereof
may be exercised from time to time and to the extent not previously exercised
may be surrendered and terminated at any time upon notice by CSFB to the
Company.
Each time for the delivery of and payment for the Optional
Securities, being herein referred to as the "Optional Closing Date", which may
be the First Closing Date (the First Closing Date and each Optional Closing
Date, if any, being sometimes referred to as a "Closing Date"), shall be
determined by CSFB on behalf of the several Purchasers but shall not be later
than seven full business days after written notice of election to purchase
Optional Securities is given. The Company will deliver against payment of the
purchase price the Optional Securities being purchased on each Optional Closing
Date in the form of one or more permanent global Securities in definitive form
(each, an "Optional Global Security") deposited with the Trustee as custodian
for DTC and registered in the name of Cede & Co., as nominee for DTC. Payment
for such Optional Securities shall be made by the Purchasers in Federal (same
day) funds by official check or checks or wire transfer to an account at a bank
acceptable to CSFB at the office of Cahill Gordon & Reindel LLP, against
delivery to the Trustee as custodian for DTC of the Optional Global Securities
representing all of the Optional Securities being purchased on such Optional
Closing Date.
4. Representations by Purchasers; Resale by Purchasers.
(a) Each Purchaser severally represents and warrants to the Company
that it is an "accredited investor" within the meaning of Regulation D under the
Securities Act.
(b) Each Purchaser severally acknowledges that the Offered
Securities have not been registered under the Securities Act and may not be
offered or sold within the United States or to, or for the account or benefit
of, U.S. persons except in accordance with Regulation S or pursuant to an
exemption from the registration requirements of the Securities Act. Each
Purchaser severally represents and agrees that it has offered and sold the
Offered Securities and will offer and sell the Offered Securities (i) as part of
their distribution at any time and (ii) otherwise until the later of the
commencement of the
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offering and the latest Closing Date, only in accordance with Rule 144A ("Rule
144A") or Rule 903 under the Securities Act. Accordingly, neither such Purchaser
nor its affiliates, nor any persons acting on its or their behalf, have engaged
or will engage in any directed selling efforts with respect to the Offered
Securities, and such Purchaser, its affiliates and all persons acting on its or
their behalf have complied and will comply with the offering restrictions
requirement of Regulation S. Each Purchaser severally agrees that, at or prior
to confirmation of sale of the Offered Securities, other than a sale pursuant to
Rule 144A, such Purchaser will have sent to each distributor, dealer or person
receiving a selling concession, fee or other remuneration that purchases the
Offered Securities from it during the restricted period a confirmation or notice
to substantially the following effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be offered or
sold within the United States or to, or for the account or benefit of,
U.S. persons (i) as part of their distribution at any time or (ii)
otherwise until 40 days after the later of the date of the commencement of
the offering and the closing date, except in either case in accordance
with Regulation S (or Rule 144A if available) under the Securities Act.
Terms used above have the meanings given to them by Regulation S."
Terms used in this subsection (b) have the meanings given to them by
Regulation S.
(c) Each Purchaser severally agrees that it and each of its
affiliates has not entered and will not enter into any contractual arrangement
with respect to the distribution of the Offered Securities except for any such
arrangements with the other Purchasers or affiliates of the other Purchasers or
with the prior written consent of the Company.
(d) Each Purchaser severally agrees that it and each of its
affiliates will not offer or sell the Offered Securities by means of any form of
general solicitation or general advertising, within the meaning of Rule 502(c)
under the Securities Act, including, but not limited to (i) any advertisement,
article, notice or other communication published in any newspaper, magazine or
similar media or broadcast over television or radio, or (ii) any seminar or
meeting whose attendees have been invited by any general solicitation or general
advertising. Each Purchaser severally agrees, with respect to resales made in
reliance on Rule 144A of any of the Offered Securities, to deliver either with
the confirmation of such resale or otherwise prior to settlement of such resale
a notice to the effect that the resale of such Offered Securities has been made
in reliance upon the exemption from the registration requirements of the
Securities Act provided by Rule 144A.
(e) Each Purchaser severally acknowledges and agrees that the
Offered Securities and any Underlying Shares issued upon conversion thereof
shall bear the legend described in the Offering Document for the period
specified therein.
(f) In relation to each member state (each, a "Member State") of the
European Economic Area (European Union member states plus Norway, Iceland and
Liechtenstein) that has implemented Directive 2003/71/EC, including any relevant
implementing measure in each such Member State (the "Prospectus Directive" and
each such Member State that has implemented the Prospectus Directive, a
"Relevant Member State"), each Purchaser severally agrees that with effect from
and including the date on which the Prospectus Directive is implemented in that
Relevant Member State (the "Relevant Implementation Date") it has not made and
will not make an offer of the Offered Securities to the public in that Relevant
Member State prior to the publication of a prospectus in relation to the Offered
Securities which has been approved by the competent authority in that Relevant
Member State or, where appropriate, approved in another Relevant Member State
and notified to the competent authority in that Relevant Member State, all in
accordance with the Prospectus Directive, except that it may, with effect from
and
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including the Relevant Implementation Date, make an offer of Offered Securities
to the public in that Relevant Member State at any time:
(i) to legal entities which are authorised or regulated to
operate in the financial markets or, if not so authorised or
regulated, whose corporate purpose is solely to invest in
securities;
(ii) to any legal entity which has two or more of (1) an
average of at least 250 employees during the last financial year;
(2) a total balance sheet of more than (euro)43,000,000 and (3) an
annual net turnover of more than (euro)50,000,000, as shown in its
last annual or consolidated accounts; or
(iii) in any other circumstances which do not require the
publication by the Issuer of a prospectus pursuant to Article 3 of
the Prospectus Directive.
For the purposes of this provision, the expression an "offer of
Shares to the public" in relation to any Offered Securities in any Relevant
Member State means the communication in any form and by any means of sufficient
information on the terms of the offer and the Offered Securities to be offered
so as to enable an investor to decide to purchase the Offered Securities, as the
same may be varied in that Member State by any measure implementing the
Prospectus Directive in that Member State.
(g) Each Purchaser severally agrees that (i) it has only
communicated or caused to be communicated and will only communicate or cause to
be communicated an invitation or inducement to engage in investment activity
(within the meaning of Section 21 of the FSMA) received by it in connection with
the issue or sale of the Offered Securities in circumstances in which Section
21(1) of the FSMA does not apply; and (ii) it has complied and will comply with
all applicable provisions of the FSMA with respect to anything done by it in
relation to the Offered Securities in, from or otherwise involving the United
Kingdom.
5. Certain Agreements of the Company. The Company agrees with the
several Purchasers that:
(a) The Company will advise CSFB promptly of any proposal to amend
or supplement the Offering Document and will not effect such amendment or
supplementation without CSFB's consent, which shall not be unreasonably withheld
or delayed. If, at any time prior to the completion of the resale of the Offered
Securities by the Purchasers any event occurs as a result of which the Offering
Document as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, the Company promptly will notify CSFB of such event and
promptly will prepare, at its own expense, an amendment or supplement which will
correct such statement or omission. Neither the Purchasers' consent to, nor the
Purchasers' delivery to offerees or investors of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth in
Section 6.
(b) The Company will furnish to CSFB copies of any preliminary
offering circular, the Offering Document and all amendments and supplements to
such documents, in each case as soon as available and in such quantities as CSFB
requests, and the Company will furnish to CSFB on the date hereof three copies
of the Offering Document signed by a duly authorized officer of the Company. At
any time when the Company is not subject to Section 13 or 15(d) of the Exchange
Act, the Company will promptly furnish or cause to be furnished to CSFB (and,
upon request, to the other Purchaser) and, upon request of holders and
prospective purchasers of the Offered Securities, to such holders and
purchasers,
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copies of the information required to be delivered to holders and prospective
purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the
Securities Act (or any successor provision thereto) in order to permit
compliance with Rule 144A in connection with resales by such holders of the
Offered Securities. The Company will pay the expenses of printing and
distributing to the Purchasers all such documents.
(c) The Company will arrange for the qualification of the Offered
Securities for sale and the determination of their eligibility for investment
under the laws of such states in the United States as CSFB designates and will
continue such qualifications in effect so long as required for the resale of the
Offered Securities by the Purchasers provided that the Company will not be
required to qualify as a foreign corporation or to file a general consent to
service of process or subject itself to taxation in any such state.
(d) During the period of two years after the later of the First
Closing Date and the last Optional Closing Date, the Company will, upon request,
furnish to CSFB, the other Purchaser and any holder of Offered Securities a copy
of the restrictions on transfer applicable to the Offered Securities.
(e) During the period of two years after the later of the First
Closing Date and the last Optional Closing Date, the Company will not, and will
not permit any of its affiliates (as defined in Rule 144 under the Securities
Act) to, resell any of the Offered Securities that have been reacquired by any
of them.
(f) During the period of two years after the later of the First
Closing Date and the last Optional Closing Date, the Company will not be or
become an open-end investment company, unit investment trust or face-amount
certificate company that is or is required to be registered under Section 8 of
the Investment Company Act.
(g) The Company will pay all expenses incidental to the performance
of its obligations under this Agreement, the Indenture and the Registration
Rights Agreement including (i) the fees and expenses of the Trustee and its
professional advisers; (ii) all expenses in connection with the execution,
issue, authentication, packaging and initial delivery of the Offered Securities,
the preparation and printing of this Agreement, the Registration Rights
Agreement, the Offered Securities, the Indenture, the Offering Document and
amendments and supplements thereto, and any other document relating to the
issuance, offer, sale and delivery of the Offered Securities; (iii) the cost of
qualifying the Offered Securities for trading in The PortalSM Market ("PORTAL")
of The Nasdaq Stock Market, Inc. and any expenses incidental thereto, (iv) the
cost of any advertising approved by the Company in connection with the issue of
the Offered Securities, (v) any expenses (including fees and disbursements of
counsel) incurred in connection with qualification of the Offered Securities for
sale under the laws of such jurisdictions as CSFB designates and the printing of
memoranda relating thereto, and (vi) expenses incurred in distributing
preliminary offering circulars and the Offering Document (including any
amendments and supplements thereto) to the Purchasers. The Company will
reimburse the Purchasers for all travel expenses of the Purchasers and the
Company's officers and employees and any other expenses of the Purchasers and
the Company in connection with attending or hosting meetings with prospective
purchasers of the Offered Securities.
(h) In connection with the offering, until CSFB shall have notified
the Company and the other Purchasers of the completion of the resale of the
Offered Securities, neither the Company nor any of its affiliates has or will,
either alone or with one or more other persons, bid for or purchase for any
account in which it or any of its affiliates has a beneficial interest any
Offered Securities or attempt to induce any person to purchase any Offered
Securities; and neither it nor any of its affiliates will make
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bids or purchases for the purpose of creating actual, or apparent, active
trading in, or of raising the price of, the Offered Securities.
(i) For a period of 90 days after the date of the initial offering
of the Offered Securities by the Purchasers, the Company will not offer, sell,
contract to sell, pledge, or otherwise dispose of, directly or indirectly, any
shares of Common Stock of the Company or warrants or other rights to purchase
shares of Common Stock of the Company, without the prior written consent of
CSFB, or publicly disclose the intention to make any such offer, sale, pledge or
disposition; provided that such restriction shall not apply to: (i) the Offered
Securities, (ii) the filing of the shelf registration statement covering resales
of the Offered Securities and any Underlying Shares issued upon conversion
thereof pursuant to a shelf registration statement, (iii) the conversion or
exchange of convertible or exchangeable securities or the exercise of warrants
or options, in each case outstanding on the date hereof, (iv) grants of employee
stock options pursuant to the terms of a plan in effect on the date hereof , (v)
issuances of Common Stock pursuant to the exercise of such options or (vi)
distributions of Common Stock in satisfaction of the Company's obligations under
its deferred compensation plan. The Company will not at any time offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly, any
securities under circumstances where such offer, sale, pledge, contract or
disposition would cause the exemption afforded by Section 4(2) of the Securities
Act to cease to be applicable to the offer and sale of the Offered Securities.
6. Conditions of the Obligation of the Purchasers. The obligations
of the several Purchasers to purchase and pay for the Firm Securities on the
First Closing Date and for the Optional Securities on each Optional Closing Date
will be subject to the accuracy of the representations and warranties on the
part of the Company herein, to the accuracy of the statements of officers of the
Company made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) The Purchasers shall have received a letter, dated the date of
this Agreement, of PricewaterhouseCoopers LLP confirming that they are an
independent registered public accounting firm within the meaning of the
Securities Act and the applicable published rules and regulations thereunder
("Rules and Regulations") and otherwise in form and substance satisfactory to
the Purchasers and PricewaterhouseCoopers LLP, containing statements and
information of the type ordinarily included in accountant's "comfort letters" to
Purchasers, with respect to the audited and unaudited financial statements and
certain financial information contained or incorporated by reference in the
Offering Circular.
(b) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries taken as
one enterprise which, in the judgment of a majority in interest of the
Purchasers, including CSFB, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the offering or the sale of and
payment for the Offered Securities; (ii) any downgrading in the rating of any
outstanding debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Securities Act), or any public announcement that any such organization has
under surveillance or review its rating of any such debt securities of the
Company (other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating) or any
announcement that the Company has been placed on negative outlook; (iii) any
change in U.S. or international financial, political or economic conditions or
currency exchange rates or exchange controls as would, in the judgment of a
majority in interest of the Purchasers, including CSFB, be likely to prejudice
materially the success of the proposed issue, sale or distribution of the
Offered Securities, whether in the primary market or in respect of dealings in
the secondary market; (iv) any material suspension or material limitation of
trading in securities generally on the New York Stock Exchange or any setting of
minimum prices for trading on such exchange; (v) or any suspension of
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trading of any securities of the Company on any exchange or in the
over-the-counter market; (vi) any banking moratorium declared by U.S. Federal or
New York authorities; (vii) any major disruption of settlements of securities or
clearance services in the United States or (viii) any attack on, outbreak or
escalation of hostilities or act of terrorism involving the United States, any
declaration of war by Congress or any other national or international calamity
or emergency if, in the judgment of a majority in interest of the Purchasers,
including CSFB, the effect of any such attack, outbreak, escalation, act,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the offering or sale of and payment for the Offered
Securities.
(c) The Purchasers shall have received an opinion, dated such
Closing Date, of Duane Morris LLP, counsel for the Company, that:
(i) The Company is an existing corporation in good standing
under the laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as
described in the Offering Document; and the Company is duly
qualified to do business as a foreign corporation in good standing
in the jurisdiction set forth opposite its name in Annex A to such
opinion;
(ii) Each subsidiary of the Company listed on Annex A to such
opinion is an existing corporation or other entity in good standing
under the laws of the jurisdiction of its incorporation or
organization and is duly qualified to do business as a foreign
corporation or other entity in good standing in the jurisdictions
set forth opposite its name in Annex A to such opinion; and each
subsidiary of the Company listed on Annex A to such opinion and
organized under the laws of the State of Delaware has the power and
authority (corporate or other) to own its properties and conduct its
business as described in the Offering Document;
(iii) The Indenture has been duly authorized, executed and
delivered by the Company; the Offered Securities delivered on such
Closing Date have been duly authorized, executed, authenticated,
issued and delivered and conform in all material respects to the
description thereof contained in the Offering Document; and the
Indenture (assuming the due authorization, execution and delivery
thereof by the Trustee) and the Offered Securities delivered on such
Closing Date constitute valid and legally binding obligations of the
Company enforceable against it in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and remedies and to
general equity principles;
(iv) The Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and conforms in
all material respects to the description thereof contained in the
Offering Document; and (assuming the due authorization, execution
and delivery thereof by the Purchasers) the Registration Rights
Agreement constitutes the valid and legally binding obligation of
the Company enforceable against it in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and remedies and to
general equity principles;
(v) This Agreement has been duly authorized, executed and
delivered by the Company;
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(vi) The Offered Securities delivered on such Closing Date are
convertible into Common Stock of the Company in accordance with the terms
of the Indenture and the shares of such Common Stock initially issuable
upon conversion of the Offered Securities delivered on such Closing Date
have been duly authorized and reserved for issuance upon such conversion
and, when issued upon such conversion in accordance with the provisions of
the Indenture and the Notes, will be validly issued, fully paid and
nonassessable; the outstanding Common Stock conforms as to legal matters
in all material respects to the description thereof contained in the
Offering Document; and, to such counsel's knowledge, the stockholders of
the Company have no contractual preemptive rights with respect to the
Offered Securities or such Common Stock. There are no preemptive rights to
acquire any such shares of Common Stock set forth in the Company's
organizational documents or in the General Corporation Law of the State of
Delaware;
(vii) The Company is not and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Offering Document, will not be an "investment
company" as defined in the Investment Company Act of 1940, as amended;
(viii) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement and the
Registration Rights Agreement in connection with the issuance or sale of
the Offered Securities by the Company, except such as may be required
under state securities laws and except for the filing with the Commission
of the Shelf Registration Statement and the order of the Commission
declaring the Shelf Registration Statement effective;
(ix) The execution, delivery and performance by the Company of the
Indenture, this Agreement and the Registration Rights Agreement and the
issuance and sale by the Company of the Offered Securities and compliance
by the Company with the terms and provisions thereof will not result in a
breach or violation of any of the terms and provisions of, or constitute a
default under any statute, rule, regulation or order of any governmental
agency, body or court which, to the knowledge of such counsel, is binding
on the Company or any subsidiary of the Company or to which, to such
counsel's knowledge, any of their properties is subject, or any agreement
or instrument filed as an exhibit to any document incorporated by
reference into the Offering Document to which the Company or any such
subsidiary is a party or by which the Company or any such subsidiary is
bound or to which any of the properties of the Company or any such
subsidiary is subject, or the charter or by-laws of the Company or any
such subsidiary, and the Company has full corporate power and authority to
authorize, issue and sell the Offered Securities as contemplated by this
Agreement;
(x) The descriptions in the Offering Circular and the Exchange Act
Reports of statutes, legal and governmental proceedings and contracts and
other documents, in each case to the extent such descriptions constitute
summaries of the legal matters relating thereto, are accurate in all
material respects and fairly present the information required to be shown;
it being understood that such counsel need express no opinion as to the
financial statements or other financial data contained in the Offering
Circular and the Exchange Act Reports;
(xi) It is not necessary in connection with (i) the offer, sale and
delivery of the Offered Securities by the Company to the several
Purchasers pursuant to this Agreement
-14-
or (ii) the resales of the Offered Securities by the several
Purchasers in the manner contemplated hereby to register the Offered
Securities under the Securities Act or to qualify the Indenture
under the Trust Indenture Act, assuming (a) the accuracy of the
representations and warranties of the Company and the Purchasers
herein, (b) compliance by the Purchasers and the Company with their
respective covenants set forth in this Agreement and (c) that each
resale by the Purchasers of the Offered Securities occurs in
accordance with, and in the manner set forth in, this Agreement and
the Offering Document.
In addition, the Purchasers shall have received the negative
assurance letter, dated such Closing Date, of Duane Morris LLP, counsel
for the Company, substantially in the form set forth in Exhibit A hereto.
(d) The Purchasers shall have received an opinion, dated such
Closing Date, of the General Counsel for the Company, reasonably satisfactory to
the Purchasers, as to the matters set forth in Exhibit B hereto.
(e) The Purchasers shall have received from Cahill Gordon & Reindel
LLP, counsel for the Purchasers, such opinion or opinions, dated such Closing
Date, with respect to the validity of the Offered Securities, the Offering
Circular, the exemption from registration for the offer and sale of the Offered
Securities by the Company to the Purchasers and the resales by the several
Purchasers as contemplated hereby and other related matters as CSFB may require,
and the Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(f) The Purchasers shall have received a certificate, dated such
Closing Date, of the President or any Vice President and a principal financial
or accounting officer of the Company in which such officers, to the best of
their knowledge after reasonable investigation, shall state that the
representations and warranties of the Company in this Agreement are true and
correct, that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to
such Closing Date, and that, subsequent to the respective date of the most
recent financial statements in the Offering Document, there has been no material
adverse change, nor any development or event involving a prospective material
adverse change, in the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries taken as a whole
except as set forth in the Offering Document or as described in such
certificate.
(g) The Purchasers shall have received a certificate, dated such
Closing Date, of the Vice President and General Counsel of the Company in which
such officer, to the best of his knowledge after reasonable investigation, shall
state that, other than as disclosed in the Offering Circular, there are no
pending, actions, suits or proceedings against or affecting the Company, any of
its subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a Material Adverse Effect; and, to such officer's knowledge,
no such actions, suits or proceedings are threatened or contemplated.
(h) The Purchasers shall have received a letter, dated such Closing
Date, of PricewaterhouseCoopers LLP which meets the requirements of subsection
(a) of this Section, except that the specified date referred to in such
subsection will be a date not more than three days prior to such Closing Date
for the purposes of this subsection.
(i) The Purchasers shall have received, on or prior to the date of
this Agreement, lockup letters substantially in the form of Exhibit C hereto
signed by each of the executive officers and directors of the Company listed on
Schedule B.
-15-
The Company will furnish the Purchasers with such conformed copies of such
opinions, certificates, letters and documents as the Purchasers reasonably
request. CSFB may in its sole discretion waive on behalf of the Purchasers
compliance with any conditions to the obligations of the Purchasers hereunder,
whether in respect of an Optional Closing Date or otherwise.
7. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Purchaser, its
partners, members, directors, officers and affiliates and each person, if any,
who controls such Purchaser within the meaning of Section 15 of the Securities
Act, against any losses, claims, damages or liabilities, joint or several, to
which such Purchaser may become subject, under the Securities Act or the
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Offering Document, or any amendment or supplement thereto, including the
Preliminary Offering Circular, or the Exchange Act Reports, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, including any losses, claims,
damages or liabilities arising out of or based upon the Company's failure to
perform its obligations under Section 5(a) of this Agreement, and will reimburse
each Purchaser for any legal or other expenses reasonably incurred by such
Purchaser in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by the any Purchaser through CSFB
specifically for use therein, it being understood and agreed that the only such
information consists of the information described as such in subsection (b)
below.
(b) Each Purchaser will, severally and not jointly, indemnify and
hold harmless the Company, its directors, officers and affiliates and each
person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act, against any losses, claims, damages or liabilities to which the
Company may become subject, under the Securities Act or the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Offering Document, or any
amendment or supplement thereto, including the Preliminary Offering Circular, or
arise out of or are based upon the omission or the alleged omission to state
therein a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Purchaser through CSFB specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, it being understood and agreed that the only such
information furnished by any Purchaser consists of the following information in
the Offering Document furnished on behalf of each Purchaser under the caption
"Plan of Distribution": the first sentence in the third paragraph, the ninth
paragraph except for the first sentence thereof and the tenth paragraph;
provided however, that the Purchasers shall not be liable for any losses,
claims, damages or liabilities arising out of or based upon the Company's
failure to perform its obligations under Section 5(a) of this Agreement.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
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commencement thereof; but the failure to notify the indemnifying party shall not
relieve it from any liability that it may have under subsection (a) or (b) above
except to the extent that it has been materially prejudiced by such failure; and
provided further that the failure to notify the indemnifying party shall not
relieve it from any liability that it may have to an indemnified party otherwise
than under subsection (a) or (b) above (it being understood that this sentence
is not intended to modify or alter in any way the rights of the indemnified
party or the obligations of the indemnifying party with respect to such other
liability). In case any such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, which
consent shall not be unreasonably withheld or delayed, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. It is understood and agreed that the indemnifying party
shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any reasonably necessary local counsel) for all indemnified
parties, and that all such reasonable fees and expenses shall be paid or
reimbursed as they are incurred. The indemnifying party shall not be liable for
any settlement effected without its written consent unless (i) such settlement
is entered into in good faith by the indemnified party more than 45 days after
receipt by such indemnifying party of written notice of the proposed settlement,
(ii) such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
for any fees and expenses for which the indemnified party is entitled to and has
requested indemnification hereunder prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, such consent not to be unreasonably withheld or delayed, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes (i)
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not include a
statement as to or an admission of fault, culpability or failure to act by or on
behalf of any indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Purchasers on the other from the offering of
the Offered Securities 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 Purchasers on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Purchasers on the other 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 discounts and commissions received by the
Purchasers from the Company under this Agreement. The relative fault 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 or the Purchasers
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The amount
paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sen-
-17-
tence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Purchaser shall be required to contribute any amount in excess of the amount by
which the total price at which the Offered Securities purchased by it were
resold exceeds the amount of any damages which such Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. The Purchasers' obligations in this subsection (d) to
contribute are several in proportion to their respective purchase obligations
and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Purchaser within the meaning of the Securities Act or the Exchange Act; and the
obligations of the Purchasers under this Section shall be in addition to any
liability which the respective Purchaser may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act.
8. Default of Purchasers. If any Purchaser or Purchasers default in
their obligations to purchase Securities hereunder on either the First Closing
Date or any Optional Closing Date and the aggregate principal amount of the
Offered Securities that such defaulting Purchaser or Purchasers agreed but
failed to purchase does not exceed 10% of the total principal amount of the
Offered Securities that the Purchasers are obligated to purchase on such Closing
Date, CSFB may make arrangements satisfactory to the Company for the purchase of
such Offered Securities by other persons, including any of the Purchasers, but
if no such arrangements are made by such Closing Date, the non-defaulting
Purchasers shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Securities that such defaulting
Purchasers agreed but failed to purchase on such Closing Date. If any Purchaser
or Purchasers so default and the aggregate principal amount of the Offered
Securities with respect to which such default or defaults occur exceeds 10% of
the total principal amount of the Offered Securities that the Purchasers are
obligated to purchase on such Closing Date and arrangements satisfactory to CSFB
and the Company for the purchase of such Offered Securities by other persons are
not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Purchaser or the Company,
except as provided in Section 9 (provided that if such default occurs with
respect to Optional Securities after the First Closing Date, this Agreement
shall not terminate as to the Firm Securities or any Optional Securities
purchased prior to such termination). As used in this Agreement, the term
"Purchaser" includes any person substituted for a Purchaser under this Section.
Nothing herein will relieve a defaulting Purchaser from liability for its
default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Purchasers set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Purchaser, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Offered Securities. If this Agreement is
terminated pursuant to Section 8 or if for any reason the purchase of the
Offered Securities by the Purchasers is not consummated, the Company shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 5 and the respective obligations of the Company and the Purchasers
pursuant to Section 7 shall remain in effect and if any Offered Securities have
been purchased hereunder the representations and warranties in Section 2 and all
obligations under Section 5 shall remain in effect. If the purchase of the
Offered Securities by the Purchasers is not consummated for any reason other
than solely because of the termination of this Agreement pursuant to Section 8
or the occurrence of any event specified in clause (iii), (iv), (vi), (vii) or
(viii) of Section 6(b), the Company will reimburse the Purchasers for
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all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Offered
Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to any Purchaser will be mailed, delivered or telegraphed and confirmed to
the Purchasers, c/o CSFB, at Eleven Madison Avenue, New York, N.Y. 10010-3629,
Attention: Transactions Advisory Group, or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at C&D Technologies, Inc.,
1400 Union Meeting Road, Blue Bell, PA 19422-0858, Attention: General Counsel.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder, except that holders of Offered Securities shall
be entitled to enforce the agreements for their benefit contained in the second
and third sentences of Section 5(b) hereof against the Company as if such
holders were parties hereto.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. Absence of Fiduciary Relationship. Company acknowledges and
agrees that:
(a) The Purchasers have been retained solely to act as the initial
purchasers in connection with the sale of the Offered Securities and that no
fiduciary, advisory or agency relationship between the Company and the
Purchasers has been created in respect of any of the transactions contemplated
by this Agreement, irrespective of whether the Purchasers have advised or are
advising Company on other matters;
(b) the price of the Offered Securities set forth in this Agreement
was established by the Company following discussions and arms-length
negotiations with the Purchasers and the Company is capable of evaluating and
understanding and understands and accepts the terms, risks and conditions of the
transactions contemplated by this Agreement;
(c) it has been advised that the Purchasers and their affiliates are
engaged in a broad range of transactions which may involve interests that differ
from those of the Company and that the Purchasers have no obligation to disclose
such interests and transactions to the Company by virtue of any fiduciary,
advisory or agency relationship; and
(d) it waives, to the fullest extent permitted by law, any claims it
may have against the Purchasers for breach of fiduciary duty or alleged breach
of fiduciary duty and agrees that the Purchasers shall have no liability
(whether direct or indirect) to the Company in respect of such a fiduciary duty
claim or to any person asserting a fiduciary duty claim on behalf of or in right
of the Company, including stockholders, employees or creditors of the Company.
14. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York without regard
to principles of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
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If the foregoing is in accordance with the Purchasers' understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company and the
Purchasers in accordance with its terms.
Very truly yours,
C&D Technologies, Inc.
By: /s/ Stephen E. Markert, Jr.
---------------------------
Name: Stephen E. Markert, Jr.
Title: Vice President, Finance, CFO
The foregoing Purchase Agreement is hereby
confirmed and accepted as of the date
first above written.
CREDIT SUISSE FIRST BOSTON LLC
WACHOVIA CAPITAL MARKETS, LLC
By: Credit Suisse First Boston LLC
By /s/ Richard Wallach
-------------------
Name: Richard Wallach
Title: Vice President
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SCHEDULE A
Principal Amount of
Purchaser Offered Securities
--------- ------------------
Credit Suisse First Boston LLC......................... $ 51,000,000
Wachovia Capital Markets, LLC.......................... $ 9,000,000
Total................................ $ 60,000,000
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SCHEDULE B
Subsidiaries
C&D Charter Holdings, Inc.
C&D International Investment Holdings, Inc.
C&D Holdings, Ltd.
NCL Holdings, Ltd.
C&D Technologies (NCL), Ltd.
C&D Electronics (Guangzhou) Ltd.
C&D Instruments, Ltd.
C&D Components Hong Kong, Ltd.
C&D Technology, Ltd.
C&D Microtek, Ltd.
Charter Power F.S. Ltd.
C&D Technologies (Power Electronics), Ltd.
C&D Technologies de Mexico, S.A., de C.V.
C&D Technologies (UK) Ltd.
C&D Technologies (HK) Ltd.
C&D Technologies (Italia), S.r.l.
Shanghai C&D Battery Company, Ltd.
C&D Technologies Reynosa, S. de R.L. de C.V.
C&D Dynamo Corporation
C&D Power Systems (Canada) ULC
C&D Technologies (CPS) LLC
C&D Technologies (CPS) ULC
Celab Limited UK
Celab Power Management Limited
Datel Holding Corporation
C&D Technologies (Datel), Inc.
Datel Systems, Inc.
C&D Technologies Kabushiki Kaisha
C&D Technologies (Datel) GmbH
C&D Technologies Datel SARL
Datel (UK) Ltd.
Datel Electronic Technology (Shanghai) Co. Ltd
Dynamo Acquisition Corporation
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SCHEDULE C
List of persons subject to lock-up
o Kevin P. Dowd
o Jeffrey A. Graves
o William Harral, III
o Robert I. Harries
o Pamela S. Lewis Davies
o George MacKenzie
o John A.H. Shober
o Stanley S. Silverman
o Ellen C. Wolf
o William E. Bachrach
o Kevin D. Burgess
o Michael Crowley
o James D. Dee
o Charles R. Giesige
o Stephen E. Markert, Jr.
o Pamela J. Reich
o Stanley S. Wreford
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Exhibit A
Form of Negative Assurance Letter
Reference is made to the Offering Circular, dated November 16, 2005 (the
"Offering Circular"), relating to the issuance of $60 million principal amount
of 5.25% Convertible Senior Notes due 2025 (the "Offered Securities") of C&D
Technologies, Inc., a Delaware corporation (the "Company"), as to which we have
acted as counsel to the Company. This letter is furnished to you pursuant to
Section 6(b) of the Purchase Agreement, dated as of November 16, 2005, between
the Company and Credit Suisse First Boston LLC and the other Purchaser(s) named
therein (the "Purchase Agreement"). Capitalized terms defined in the Purchase
Agreement and used (but not otherwise defined) herein are used herein as so
defined.
The primary purpose of our professional engagement was not to establish or
confirm factual matters or financial or quantitative information, and many
determinations involved in the preparation of the Offering Document are of a
non-legal character. In addition, we have not undertaken any obligation to
verify independently any of the factual matters set forth in the Offering
Circular or in the documents incorporated by reference therein (the
"Incorporated Documents"). Consequently, in this letter we are not passing upon
and do not assume any responsibility for the accuracy, completeness or fairness
of the statements contained or incorporated by reference in the Offering
Document except as specified in our opinion to you dated the date hereof. Also,
we do not make any statement herein with respect to any of the financial
statements, the related notes and financial statement schedules thereto, and
other financial data that is contained or incorporated by reference in the
Offering Document.
We have reviewed the Offering Circular (including the Incorporated
Documents) and we have participated in conferences with representatives of the
Company, its independent public accountants, the Purchasers and their counsel,
at which conferences the contents of the Offering Circular, the Incorporated
Documents and related matters were discussed.
Subject to the foregoing, we confirm to you that, on the basis of the
information we gained in the course of performing the services referred to
above, no facts have come to our attention which cause us to believe that the
Offering Circular (including the Incorporated Documents) (other than the
financial statements, the related notes and financial statement schedules
thereto and other financial data, as to which we express no view) contained as
of its date or contains as of the date hereof any untrue statement of a material
fact or omitted or omits to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading.
The statements made herein are set forth solely for your benefit and are
addressed to you solely in your capacity as a Purchaser of the Offered
Securities. Neither this letter nor any of such statements may be used or relied
upon by, or assigned to, any other person (including any subsequent purchaser or
transferee of the Offered Securities), and neither this letter nor any copies
hereof may be furnished to any other person, filed with a governmental agency,
quoted, cited or otherwise referred to without our prior written consent
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Exhibit B
Form of Opinion of General Counsel
(i) The Company has been duly incorporated under the laws of the
jurisdiction of its incorporation;
(ii) Each subsidiary of the Company has been duly incorporated or
organized under the laws of the jurisdiction of its incorporation or
organization, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Offering Document; and
(iii) All of the issued and outstanding capital stock or other equity
interests of each subsidiary of the Company has been duly authorized and validly
issued and is fully paid and non-assessable; and the capital stock or other
equity interests of each subsidiary owned by the Company, directly or indirectly
through subsidiaries, is owned free from liens, encumbrances and defects.
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Exhibit C
Form Lock-Up Agreement
November 11, 2005
C&D Technologies, Inc.
1400 Union Meeting Road
Blue Bell, PA 19422
Credit Suisse First Boston LLC
Wachovia Capital Markets, LLC
c/o Credit Suisse First Boston LLC
Eleven Madison Avenue
New York, NY 10010-3629
Dear Sirs:
As an inducement to the Purchasers to execute the Purchase
Agreement, pursuant to which an offering will be made that is intended to result
in an orderly market for Convertible Senior Notes Due 2012 (the "Securities") of
C&D Technologies, Inc., and any successor (by merger or otherwise) thereto (the
"Company"), the undersigned hereby agrees that during the period specified in
the following paragraph (the "Lock-Up Period"), the undersigned will not offer,
sell, contract to sell, pledge or otherwise dispose of, directly or indirectly,
any shares of the Company's common stock, par value $0.01 per share (the "Common
Stock") or securities convertible into or exchangeable or exercisable for any
shares of Common Stock, enter into a transaction which would have the same
effect, or enter into any swap, hedge or other arrangement that transfers, in
whole or in part, any of the economic consequences of ownership of shares of
Common Stock, whether any such aforementioned transaction is to be settled by
delivery of shares of Common Stock or such other securities, in cash or
otherwise, or publicly disclose the intention to make any such offer, sale,
pledge or disposition, or to enter into any such transaction, swap, hedge or
other arrangement, without, in each case, the prior written consent of Credit
Suisse First Boston LLC ("CSFB"). In addition, the undersigned agrees that,
without the prior written consent of CSFB, it will not, during the Lock-Up
Period, make any demand for or exercise any right with respect to the
registration of any shares of Common Stock or any security convertible into or
exercisable or exchangeable for shares of Common Stock.
The initial Lock-Up Period will commence on the date of this Lock-Up
Agreement and continue and include the date 90 days after the offering date set
forth on the final offering circular used to sell the Securities (the "Offering
Date") pursuant to the Purchase Agreement, to which you are or expect to become
parties; provided, however, that if (1) during the last 17 days of the initial
Lock-Up Period, the Company releases earnings results or material news or a
material event relating to the Company occurs or (2) prior to the expiration of
the initial Lock-Up Period, the Company announces that it will release earnings
results during the 16-day period beginning on the last day of the initial
Lock-Up Period, then in each case the Lock-Up Period will be extended until the
expiration of the 18-day period beginning on the date of release of the earnings
results or the occurrence of the material news or material event, as applicable,
unless CSFB waives, in writing, such extension.
The undersigned hereby acknowledges and agrees that written notice
of any extension of the Lock-Up Period pursuant to the previous paragraph will
be delivered by CSFB to the Company (in
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accordance with Section 10 of the Purchase Agreement) and that any such notice
properly delivered will be deemed to have given to, and received by, the
undersigned. The undersigned further agrees that, prior to engaging in any
transaction or taking any other action that is subject to the terms of this
Lock-Up Agreement during the period from the date of this Lock-Up Agreement to
and including the 34th day following the expiration of the initial Lock-Up
Period, it will give notice thereof to the Company and will not consummate such
transaction or take any such action unless it has received written confirmation
from the Company that the Lock-Up Period (as may have been extended pursuant to
the previous paragraph) has expired.
Any shares of Common Stock received upon exercise of options granted
to the undersigned will also be subject to this Agreement. Any shares of Common
Stock acquired by the undersigned in the open market will not be subject to this
Agreement. A transfer of shares of Common Stock or securities convertible into
or exchangeable or exercisable for any shares of Common Stock to a family member
or trust may be made, provided the transferee agrees to be bound in writing by
the terms of this Agreement prior to such transfer and no filing by any party
(donor, donee, transferor or transferee) under the Securities Exchange Act of
1934 shall be required or shall be voluntarily made in connection with such
transfer (other than a filing on a Form 5 made after the expiration of the
Lock-Up Period).
In furtherance of the foregoing, the Company and its transfer agent
and registrar are hereby authorized to decline to make any transfer of shares of
Common Stock or securities convertible into or exchangeable or exercisable for
any shares of Common Stock if such transfer would constitute a violation or
breach of this Agreement
This Agreement shall be binding on the undersigned and the
successors, heirs, personal representatives and assigns of the undersigned. This
Agreement shall lapse and become null and void if the Offering Date shall not
have occurred on or before November 30, 2006. This agreement shall be governed
by, and construed in accordance with, the laws of the State of New York.
Very truly yours,
-----------------------------------
[Name of stockholder]
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