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EXHIBIT 4.5
EXECUTION COPY
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WARRANT
REGISTRATION RIGHTS AGREEMENT
Dated as of March 13, 1996
by and among
EXIDE ELECTRONICS GROUP, INC.,
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION,
J.P. MORGAN SECURITIES INC.,
and
NATIONSBANC CAPITAL MARKETS, INC.
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This Warrant Registration Rights Agreement (the "Agreement")
is made and entered into as of March 13, 1996 by and among Exide Electronics
Group, Inc., a Delaware corporation (the "Company") and Donaldson, Lufkin &
Jenrette Securities Corporation, J.P. Morgan Securities Inc. and NationsBanc
Capital Markets, Inc. (each an "Initial Purchaser" and together, "Initial
Purchasers"), who have agreed to purchase in the aggregate 125,000 Units (the
"Units") consisting of $125,000,000 principal amount of the Company's 11 1/2%
Senior Subordinated Notes due 2006 and warrants (the "Warrants") to purchase up
to an aggregate of 643,750 shares of Common Stock of the Company pursuant to
the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement (the
"Purchase Agreement"), dated as of March 7, 1996, by and among the Company and
the Initial Purchasers. In order to induce the Initial Purchasers to purchase
the Units, the Company has agree to provide the registration rights set forth
in this Agreement. The execution and delivery of this Agreement is a condition
to the obligations of the Initial Purchasers set forth in Section 8 of the
Purchase Agreement. All defined terms used but not defined herein shall have
the meanings ascribed to them in the Indenture (as defined below).
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms
shall have the following meanings:
Act: The Securities Act of 1933, as amended.
Business Day: Any day except a Saturday, Sunday or other day
in the City of New York, or in the city of the corporate trust office of the
Trustee, on which banks are authorized to close.
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Common Stock: The common stock, $0.01 par value, of the
Company.
Exchange Act: The Securities Exchange Act of 1934, as amended
from time to time.
Holders: As defined in Section 2 hereof.
Indenture: The Indenture, dated the Closing Date, between the
Company and American Bank National Association, as trustee (the "Trustee"),
pursuant to which the Units are to be issued, as such Indenture is amended or
supplemented from time to time in accordance with the terms thereof.
NASD: National Association of Securities Dealers, Inc.
Notes: The 11 1/2% Senior Subordinated Notes due 2006 of the
Company, being sold and issued pursuant to the Purchase Agreement and the
Indenture, or any notes exchanged therefor as contemplated by the Indenture.
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Person: An individual, partnership, corporation, trust,
unincorporated organization, or a government or agency or political subdivision
thereof.
Prospectus: The prospectus included in a Registration
Statement at the time such Registration Statement is declared effective, as
amended or supplemented by any prospectus supplement and by all other
amendments thereto, including post-effective amendments, and all material
incorporated by reference into such Prospectus.
Registrable Securities: The Warrants, Warrant Shares and any
other securities issued or issuable with respect to the Warrants or the Warrant
Shares by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization; provided that a security ceases to be a Registrable Security
when it is no longer a Transfer Restricted Security.
Registration Expenses: See Section 6 hereof.
Registration Statement: Any registration statement of the
Company which covers Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
Registration Statement, including post-effective amendments, and all exhibits
and all material incorporated by reference in such Registration Statement.
Transfer Restricted Securities: A Warrant or Warrant Share,
until such Warrant or Warrant Share (i) has been effectively registered under
the Act and disposed of in accordance with the Registration Statement covering
it, (ii) is distributed to the public pursuant to Rule 144 or (iii) may be sold
or transferred pursuant to Rule 144(k) (or any similar provisions then in
force) under the Act or otherwise.
Warrants: The warrants of the Company issued and sold
pursuant to the Purchase Agreement and the Warrant Agreement, together with any
warrants issued in substitution or replacement therefor.
Warrant Agreement: The Warrant Agreement dated the Closing
Date by and among the Company and American Bank National Association, as
Warrant Agent.
Warrant Shares: The Common Stock or other securities which
any Holder may acquire upon exercise of a Warrant, together with any other
securities which such Holder may acquire on account of any such securities,
including, without limitation, as the result of any dividend or other
distribution on Common Stock or any split-up of such Common Stock as provided
for in the Warrant Agreement.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Registrable Securities. The securities entitled to
the benefits of this Agreement are the Registrable Securities.
(b) Holders of Registrable Securities. A Person is
deemed to be a Holder of Registrable Securities whenever such Person owns
Registrable Securities or has the right to acquire such Registrable Securities,
whether or not such acquisition has actually been effected and disregarding any
legal restrictions upon the exercise of such right.
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SECTION 3. SHELF REGISTRATION
(a) The Company shall file a "shelf" registration with
respect to all Registrable Securities on any appropriate form pursuant to Rule
415 (or similar rule that may be adopted by the Commission) under the Act (the
"Shelf Registration") (i) covering resales by the Holders of the Warrants and
resales of the Warrant Shares and (ii) covering the exercise of Warrants
(unless, in the opinion of counsel to the Company, registration of such
exercise is not required) on or prior to 120 days after the Closing Date, and
shall use its best efforts to have such Shelf Registration declared effective
by the Commission on or prior to 150 days after the Closing Date.
(b) If the Holders of a majority in aggregate principal
amount of the Registrable Securities to be registered in the Shelf Registration
so elect, an offering of Registrable Securities pursuant to the Shelf
Registration may be effected in the form of an underwritten offering. In such
event, and if the managing underwriters advise the Company and the Holders of
such Registrable Securities in writing that in their opinion the amount of
Registrable Securities proposed to be sold in such offering exceeds the amount
of Registrable Securities which can be sold in such offering, there shall be
included in such underwritten offering the amount of such Registrable
Securities which in the opinion of such underwriters can be sold, and such
amount shall be allocated pro rata among the Holders of such Registrable
Securities on the basis of the principal amount of Registrable Securities
requested to be included by such Holders. The Holders of the Registrable
Securities to be registered shall pay all underwriting discounts and
commissions of such underwriters.
(c) If any of the Registrable Securities covered by the Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will administer the offering
will be selected by the Holders of a majority in aggregate principal amount of
such Registrable Securities included in such offering; provided that such
investment bank or manager shall be reasonably satisfactory to the Company.
(d) The Company shall use its best efforts to keep the Shelf
Registration continuously effective until March 15, 2006.
The Company further agrees to use its best efforts to prevent
the happening of any event that would cause the Registration Statement pursuant
to this Section 3 to contain a material misstatement or omission or to be not
effective and usable for resale of the Registrable Securities during the period
that such Registration Statement is required to be effective and usable.
(e) Each Holder of Registrable Securities whose Registrable
Securities are covered by a Registration Statement filed pursuant to this
Section 3 agrees, if requested by the managing underwriters in an underwritten
offering, not to effect any public sale or distribution of securities of the
Company of the same class as any Securities included in such Registration
Statement, including a sale pursuant to Rule 144 under the Act (except as part
of such underwritten registration), during the 10-day period prior to, and
during the 45-day period beginning on, the closing date of each underwritten
offering made pursuant to such Registration Statement, to the extent timely
notified in writing by the Company or the managing underwriters; provided,
however, that each Holder of Registrable Securities shall be subject to the
hold-back restrictions of this Section 3(e) only once during the term of this
Agreement.
The foregoing provisions shall not apply to any Holder of
Registrable Securities if such Holder is prevented by applicable statute or
regulation from entering into any such agreement; provided, however, that any
such Holder shall undertake, in its request to participate in any such
underwritten offering,
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not to effect any public sale or distribution of any applicable class of
Registrable Securities commencing on the date of sale of such applicable class
of Registrable Securities unless it has provided 45 days prior written notice
of such sale or distribution to the underwriter or underwriters.
SECTION 4. LIQUIDATED DAMAGES
If the Registration Statement: (i) is not filed with the
Commission on or prior to the date specified for such filing in Section 3(a)
hereof; (ii) has not been declared effective by the Commission pursuant to
Section 3(a) hereof; or (iii) following the date such Registration Statement is
declared effective by the Commission, shall cease to be effective without being
restored to effectiveness by amendment or otherwise within 30 business days,
(each such event referred to in clauses (i) through (iii), a "Shelf
Registration Default") to the extent permitted by applicable law, the Company
shall pay as liquidated damages and not as a penalty to each Holder during the
first 90-day period immediately following the occurrence, and during the
continuance of such Shelf Registration Default, an amount equal to $.0025 per
week per Warrant (or per such number of Warrant Shares then issuable upon
exercise of or in respect of a Warrant) held by such Holder for each week or
pro rata for a portion of each week thereof that the Shelf Registration Default
continues. To the extent permitted by applicable law, the amount of the
liquidated damages will increase by an additional $.0025 per week per Warrant
(or per such number of Warrant Shares then issuable upon exercise of or in
respect of a Warrant) with respect to each subsequent 90-day period until all
Shelf Registration Defaults have been cured, up to a maximum amount of
liquidated damages of $.0125 per week per Warrant (or per such number of
Warrant Shares then issuable upon exercise of or in respect of a Warrant).
All accrued liquidated damages shall be paid to record Holders
by the Company by wire transfer of immediately available funds, or by mailing a
federal funds check, on each Interest Payment Date (as defined in the
Indenture). All obligations of the Company set forth in the preceding
paragraph that are outstanding with respect to any Registrable Security at the
time such security has been effectively registered under the Act shall survive
until such time as all such obligations with respect to such security have been
satisfied in full.
SECTION 5. REGISTRATION PROCEDURES
(a) General Provisions. In connection with the Company's
registration obligations pursuant to Section 3 hereof, the Company will use its
best efforts to effect such registration to permit the sale of such Registrable
Securities in accordance with the intended method or methods of disposition
thereof, and pursuant thereto the Company will as expeditiously as possible:
(1) use its best efforts to keep such Registration
Statement continuously effective and provide or incorporate by
reference all requisite financial statements for the period specified
in Section 3 of this Agreement. Upon the occurrence of any event that
would cause any such Registration Statement or the Prospectus
contained therein (A) to contain a material misstatement or omission
or (B) not to be effective and usable for resale of Registrable
Securities during the period required by this Agreement, the Company
shall file promptly an appropriate amendment to such Registration
Statement or file appropriate documents that will be so incorporated
by reference, (1) in the case of clause (A), correcting any such
misstatement or omission, and (2) in the case of either clause (A) or
(B), use its best efforts to cause such amendment to be declared
effective and
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such Registration Statement and the related Prospectus to become
usable for their intended purpose(s) as soon as practicable
thereafter;
(2) prepare and file with the Commission such
amendments and post-effective amendments to the Registration Statement
as may be necessary to keep the Registration Statement effective for
the period set forth in Section 3(d) hereof; cause the Prospectus to
be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Act; and
comply in all material respects with the provisions of the Act with
respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the sellers thereof
set forth in such Registration Statement or supplement to the
Prospectus; the Company shall not be deemed to have used its best
efforts to keep a Registration Statement effective during the
applicable period if it voluntarily takes any action that would result
in selling Holders of the Registrable Securities covered thereby not
being able to sell such Registrable Securities during that period
unless such action is required under applicable law, provided that the
foregoing shall not apply to actions taken by the Company in good
faith and for valid business reasons, including without limitation the
acquisition or divestiture of assets, so long as the Company promptly
thereafter complies with the requirements of clause (14) below, if
applicable;
(3) advise the underwriter(s), if any, and selling
Holders promptly and, if requested by such Persons, confirm such
advice in writing, (A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with
respect to any Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any request by the
Commission for amendments to the Registration Statement or amendments
or supplements to the Prospectus or for additional information
relating thereto, (C) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement under
the Act or of the suspension by any state securities commission of the
qualification of the Registrable Securities for offering or sale in
any jurisdiction, or the initiation of any proceeding for any of the
preceding purposes, (D) of the existence of any fact or the happening
of any event that makes any statement of a material fact made in the
Registration Statement, the Prospectus, any amendment or supplement
thereto or any document incorporated by reference therein untrue, or
that requires the making of any additions to or changes in the
Registration Statement in order to make the statements therein not
misleading, or that requires the making of any additions to or changes
in the Prospectus in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
If at any time the Commission shall issue any stop order suspending
the effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue an
order suspending the qualification or exemption from qualification of
the Registrable Securities under state securities or Blue Sky laws,
the Company shall use its best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
(4) make available to each selling Holder named in
any Registration Statement or Prospectus and each of the
underwriter(s) in connection with such sale, if any, before filing
with the Commission, copies of any Registration Statement or any
Prospectus included therein or any amendments or supplements to any
such Registration Statement or Prospectus and the Company will not
file or will correct any such Registration Statement or Prospectus or
any amendment or supplement to any such Registration Statement or
Prospectus (including all such documents incorporated by reference) to
which the selling Holders of the Registrable Securities covered by
such Registration Statement or the underwriter(s) in connection with
such sale, if any, shall reasonably object within five Business Days
after the receipt thereof. A selling Holder or underwriter, if any,
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shall be deemed to have reasonably objected to such filing if such
Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains a material misstatement
or omission or fails to comply with the applicable requirements of the
Act;
(5) promptly upon the filing of any document that is
to be incorporated by reference into a Registration Statement or
Prospectus, make available copies of such document to the selling
Holders and to the underwriter(s) in connection with such sale, if
any, make the Company's representatives available for discussion of
such document and other customary due diligence matters, and include
such information in such document prior to the filing thereof as such
selling Holders or underwriter(s), if any, reasonably may request;
(6) make available at reasonable times for
inspection by the selling Holders, any underwriter participating in
any disposition pursuant to such Registration Statement and any
attorney or accountant retained by such selling Holders or any of such
underwriter(s), all financial and other records, pertinent corporate
documents and properties of the Company and cause the Company's
officers, directors and employees to supply all information reasonably
requested by any such Holder, underwriter, attorney or accountant in
connection with such Registration Statement or any post-effective
amendment thereto subsequent to the filing thereof and prior to its
effectiveness; provided that any person to whom information is
provided under this clause (6) agrees in writing to maintain the
confidentiality of such information to the extent such information is
not in the public domain;
(7) if requested by any selling Holders or the
underwriter(s) in connection with such sale, if any, promptly include
in any Registration Statement or Prospectus, pursuant to a supplement
or post-effective amendment if necessary, such information as such
selling Holders and underwriter(s), if any, may reasonably request to
have included therein, including, without limitation, information
relating to the "Plan of Distribution" of the Registrable Securities,
information with respect to the principal amount of Registrable
Securities being sold to such underwriter(s), the purchase price being
paid therefor and any other terms of the offering of the Registrable
Securities to be sold in such offering; and make all required filings
of such Prospectus supplement or post-effective amendment as soon as
practicable after the Company is notified of the matters to be
included in such Prospectus supplement or post-effective amendment;
(8) furnish to each selling Holder and each of the
underwriter(s) in connection with such sale, if any, without charge,
at least one copy of the Registration Statement, as first filed with
the Commission, and of each amendment thereto, and make available all
documents incorporated by reference therein and all exhibits
(including exhibits incorporated therein by reference);
(9) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment
or supplement thereto as such Persons reasonably may request; the
Company hereby consents to the use of the Prospectus and any amendment
or supplement thereto by each of the selling Holders and each of the
underwriter(s), if any, in connection with the offering and the sale
of the Registrable Securities covered by the Prospectus or any
amendment or supplement thereto;
(10) enter into such agreements (including, unless
not required pursuant to Section 3 hereof, an underwriting agreement)
and make such representations and warranties and take all such other
actions in connection therewith in order to expedite or facilitate the
disposition of the Registrable Securities pursuant to any Registration
Statement contemplated by this Agreement as may be reasonably
requested by any Holder of Registrable Securities or underwriter in
connection
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with any sale or resale pursuant to any Registration Statement
contemplated by this Agreement, and in such connection, whether or not
an underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, the Company shall:
(A) furnish to each selling Holder and each
underwriter, if any, upon the effectiveness of the
Registration Statement:
(1) a certificate, dated the date of
effectiveness of the Registration Statement, signed
by (x) the President or any Vice President and (y) a
principal financial or accounting officer of the
Company, confirming, as of the date thereof, the
matters set forth in paragraphs (a), (c) and (d) of
Section 10 of the Purchase Agreement and such other
matters as the Holders and/or underwriter(s) may
reasonably request;
(2) an opinion, dated the date of
effectiveness of the Registration Statement, of
counsel for the Company, covering (i) due
authorization and enforceability of the Warrants,
(ii) a statement to the effect that such counsel has
participated in conferences with officers and other
representatives of the Company and representatives of
the independent public accountants for the Company
and have considered the matters required to be stated
therein and the statements contained therein,
although such counsel has not independently verified
the accuracy, completeness or fairness of such
statements; and that such counsel advises that, on
the basis of the foregoing (relying as to materiality
to a large extent upon facts provided to such counsel
by officers and other representatives of the Company
and without independent check or verification), no
facts came to such counsel's attention that caused
such counsel to believe that the applicable
Registration Statement, at the time such Registration
Statement or any post-effective amendment thereto
became effective, and contained an untrue statement
of a material fact or omitted to state a material
fact required to be stated therein or necessary to
make the statements therein not misleading, or that
the Prospectus contained in such Registration
Statement as of its date contained an untrue
statement of a material fact or omitted to state a
material fact necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading and (iii)
such other matters of the type customarily covered in
opinions of counsel for an issuer in connection with
similar securities offerings, as may reasonably be
requested by such parties. Without limiting the
foregoing, such counsel may state further that such
counsel assumes no responsibility for, and has not
independently verified, the accuracy, completeness or
fairness of the financial statements, notes and
schedules and other financial, statistical and
accounting data included in any Registration
Statement contemplated by this Agreement or the
related Prospectus; and
(3) a customary comfort letter, dated as of
the date of effectiveness of the Registration
Statement, from the Company's independent
accountants, in the customary form and covering
matters of the type customarily covered in comfort
letters to underwriters in connection with primary
underwritten offerings, and affirming the matters set
forth in the comfort letters delivered pursuant to
Section 10(h) of the Purchase Agreement, without
exception;
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(B) set forth in full or incorporate by reference in
the underwriting agreement, if any, in connection with any
sale or resale pursuant to any Registration Statement the
indemnification provisions and procedures of Section 7 hereof
with respect to all parties to be indemnified pursuant to said
Section 7; and
(C) deliver such other documents and certificates as
may be reasonably requested by such parties to evidence
compliance with clause (A) above and with any customary
conditions contained in the underwriting agreement or other
agreement entered into by the Company pursuant to this clause
(10), if any.
The above shall be done at each closing under such
underwriting or similar agreement, as and to the extent required
thereunder, and if at any time the representations and warranties of
the Company contemplated in (A)(1) above cease to be true and correct,
the Company shall so advise the underwriter(s), if any, and selling
Holders promptly and if requested by such Persons, shall confirm such
advice in writing;
(11) prior to any public offering of Registrable
Securities, cooperate with the selling Holders, the underwriter(s), if
any, and their respective counsel in connection with the registration
and qualification of the Registrable Securities under the securities
or Blue Sky laws of such jurisdictions as the selling Holders or
underwriter(s), if any, may request and do any and all other acts or
things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the applicable
Registration Statement; provided, however, that the Company shall not
be required to register or qualify as a foreign corporation where it
is not now so qualified or to take any action that would subject it to
the service of process in suits or to taxation, other than as to
matters and transactions relating to the Registration Statement, in
any jurisdiction where it is not now so subject;
(12) in connection with any sale of Registrable
Securities that will result in such securities no longer being
Transfer Restricted Securities, cooperate with the selling Holders and
the underwriter(s), if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be
sold and not bearing any restrictive legends; and to register such
Registrable Securities in such denominations and such names as the
Holders or the underwriter(s), if any, may request at least two
Business Days prior to such sale of Registrable Securities;
(13) use its best efforts to cause the Registrable
Securities covered by the Registration Statement to be registered with
or approved by such other governmental agencies or authorities as may
be necessary to enable the seller or sellers thereof or the
underwriter(s), if any, to consummate the disposition of such
Registrable Securities, subject to the proviso contained in clause
(11) above;
(14) if any fact or event contemplated by clause (2)
above shall exist or have occurred, prepare a supplement or
post-effective amendment to the Registration Statement or related
Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the
purchasers of Registrable Securities, the Prospectus will not contain
an 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;
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(15) provide a CUSIP number for all Registrable
Securities not later than the effective date of a Registration
Statement covering such Registrable Securities and provide the Trustee
under the Indenture with printed certificates for the Registrable
Securities which are in a form eligible for deposit with the
Depository Trust Company;
(16) cooperate and assist in any filings required to
be made with the NASD and in the performance of any due diligence
investigation by any underwriter (including any "qualified independent
underwriter") that is required to be retained in accordance with the
rules and regulations of the NASD, and use its best efforts to cause
such Registration Statement to become effective and approved by such
governmental agencies or authorities as may be necessary to enable the
Holders selling Registrable Securities to consummate the disposition
of such Registrable Securities;
(17) otherwise use its best efforts to comply with
all applicable rules and regulations of the Commission, and make
generally available to its security holders with regard to any
applicable Registration Statement, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) covering a twelve-month period beginning
after the effective date of the Registration Statement (as such term
is defined in paragraph (c) of Rule 158 under the Act);
(18) cause all Registrable Securities covered by the
Registration Statement to be listed on each securities exchange on
which similar securities issued by the Company are then listed if
requested by the Holders of a majority in aggregate principal amount
of Registrable Securities or the managing underwriter(s), if any;
(19) provide promptly to each Holder upon written
request each document filed with the Commission pursuant to the
requirements of Section 13 or Section 15(d) of the Exchange Act; and
(20) if the registration is a registration in which
securities of the Company are sold to an underwriter for reoffering to
the public, obtain a customary comfort letter, dated as of the date of
effectiveness of each Registration Statement, addressed to the Board
of Directors of the Company from the Company's independent
accountants, in the customary form and covering matters of the type
customarily covered in comfort letters to boards of directors in
underwritten offerings.
(b) Restrictions on Holders. Each Holder agrees by
acquisition of a Registrable Security that, upon receipt of any notice from the
Company of the existence of any fact of the kind described in Section
5(a)(3)(D) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to the applicable Registration Statement until
such Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(a)(14) hereof, or until it is advised in writing (the
"Advice") by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated
by reference in the Prospectus. If so directed by the Company, each Holder
will deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities that was current at the time of receipt of
such notice. In the event the Company shall give any such notice, the time
period regarding the effectiveness of such Registration Statement set forth in
Section 3 hereof, as applicable, shall be extended by the number of days during
the period from and including the date of the giving of such notice pursuant to
Section 5(a)(3)(D) hereof to and including the date when each selling Holder
covered by such Registration Statement shall have received the copies of the
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supplemented or amended Prospectus contemplated by Section 5(a)(14) hereof or
shall have received the Advice.
SECTION 6. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of
or compliance with this Agreement will be borne by the Company, regardless of
whether a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses (including
filings made with the NASD (including, if applicable, the fees and expenses of
any "qualified independent underwriter" and its counsel, as may be required by
the rules and regulations of the NASD)); (ii) all fees and expenses of
compliance with federal securities and state Blue Sky or securities laws; (iii)
all expenses of printing (including, without limitation, expenses of printing
or engraving certificates for the Registrable Securities in a form eligible for
deposit with the Depositary Trust Company and printing of Prospectuses),
messenger and delivery services and telephone; (iv) all fees and disbursements
of counsel for the Company and, in accordance with Section 6(b) below, the
Holders of Transfer Restricted Securities; (v) all application and filing fees
in connection with listing the Registrable Securities on a national exchange or
automated quotation system if required hereunder; and (vi) all fees and
disbursements of independent certified public accountants of the Company
(including the expenses of any special audit and comfort letters required by or
incident to such performance).
The Company will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Company.
(b) In connection with each Registration Statement
required hereunder, the Company will reimburse the Holders of Registrable
Securities being registered pursuant to such Registration Statement for the
fees and disbursements of not more than one counsel chosen by the Holders of a
majority of the principal amount of such Registrable Securities, or more than
one, if, in the reasonable judgment of counsel for the Holders and counsel for
the Company, a conflict exists among such Holders. Notwithstanding the
provisions of this Section 6, each Holder of Registrable Securities shall pay
all registration expenses to the extent required by applicable law.
SECTION 7. INDEMNIFICATION
The Company agrees to indemnify and hold harmless the Holders
and each person, if any, who controls the Holders within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, from and against
any and all losses, claims, damages, liabilities and judgments caused by any
untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendment or supplement thereto), or caused by
any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or judgments arise
out of or are based upon any such untrue statement or alleged untrue statement
or omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of such
Holder expressly for use therein.
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(a) In case any action shall be brought against the
Holders or any person controlling the Holders, based upon the Registration
Statement or the Prospectus or any amendment or supplement thereto and with
respect to which indemnity may be sought against the Company, the Holders shall
promptly notify the Company in writing and the Company shall assume the defense
thereof, including the employment of counsel reasonably satisfactory to such
indemnified party and payment of all fees and expenses. The Holders or any
such controlling person shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of the Holders or such controlling
person unless (i) the employment of such counsel shall have been specifically
authorized in writing by the Company, (ii) the Company shall have failed to
assume the defense and employ counsel or (iii) the named parties to any such
action (including any impleaded parties) include both the Holders or such
controlling person and the Company and the Holders or such controlling person
shall have been advised in writing by such counsel that there may be one or
more legal defenses available to it which are different from or additional to
those available to the Company (in which case the Company shall not have the
right to assume the defense of such action on behalf of the Holders or such
controlling person, it being understood, however, that the Company shall not,
in connection with such action or similar or related actions arising out of the
same general allegations or circumstances, be liable for the fees and expenses
of more than one separate firm of attorneys (in addition to any local counsel)
for the Holders and all such controlling persons and that all such fees and
expenses shall be reimbursed as they are incurred). The Company shall not be
liable for any settlement of any such action effected without its written
consent but if settled with its written consent, the Company agrees to
indemnify and hold harmless the Holders and any such controlling person from
and against any loss or liability by reason of such settlement.
Notwithstanding the immediately preceding sentence, if in any case where the
fees and expenses of counsel are at the expense of the indemnifying party and
an indemnified party shall have requested the indemnifying party to reimburse
the indemnified party for such fees and expenses of counsel as incurred, such
indemnifying party agrees that it shall be liable for any settlement of any
action effected without its written consent if (i) such settlement is entered
into more than ten business days after the receipt by such indemnifying party
of the aforesaid request and (ii) such indemnifying party shall have failed to
reimburse the indemnified party in accordance with such request for
reimbursement prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding 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 an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(b) The Holders agree, severally and not jointly, to
indemnify and hold harmless the Company, its directors, officers and any person
controlling the Company, within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, to the same extent as the foregoing
indemnity from the Company to the Holders, but only with respect to information
relating to the Holders furnished in writing to the Company by the Holders
expressly for use in the Registration Statement or the Prospectus. In case any
action shall be brought against the Company, any of its directors, any such
officer or any person controlling the Company based on the Registration
Statement and the Prospectus and in respect of which indemnity may be sought
against the Holders, the Holders shall have the rights and duties given to the
Company (except that the Holders may but shall not be required to assume the
defense thereof), and the Company, any of its directors, any such officers and
any person controlling the Company shall have the rights and duties given to
the Holders, by Section 7(a) hereof.
(c) If the indemnification provided for in this Section 7
is unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or judgments referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities and judgments (i)
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in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand from the offering of the Registrable Securities
and any such Holder from its sale of the Registrable Securities on the other
hand 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 and the Holders in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or judgments, as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Holders shall be deemed to be in the same
proportion as the total proceeds from the offering of the Registrable
Securities (before deducting expenses) received by the Company, and the total
proceeds received by such Holder upon its sale of the Registrable Securities,
respectively. The relative fault of the Company and the Holders shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the Company or the Holders and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Holders agree that it would not be just
and equitable if contribution pursuant to this Section 7(c) were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or judgments referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7, the Holders
shall not be required to contribute any amount in excess of the amount received
by such Holder with respect to the sale of its Registrable Securities which
exceeds the sum of (A) the amount paid by such Holder for such Registrable
Securities plus (B) the amount of any damages which such Holder has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute pursuant to this
Section 7(c) are several in proportion to the respective amount of Registrable
Securities purchased by each of the Holders hereunder and not joint.
(d) The Company hereby designates CT Corporation Systems,
New York, New York, a Delaware corporation, as its authorized agent, upon which
process maybe served in any action, suit or proceeding which may be instituted
in any state or federal court in the State of New York by the Holders or person
controlling the Holders asserting a claim for indemnification or contribution
under or pursuant to this Section 7, and the Company will accept the
jurisdiction of such court in such action, and waive, to the fullest extent
permitted by applicable law, any defense based upon lack of personal
jurisdiction or venue. A copy of any such process shall be sent or given to
the Company at the address for notices specified in Section 9(e) hereof.
(e) The indemnity and contribution agreements contained
in this Section 7 are in addition to any liability which the indemnifying
persons may otherwise have to the indemnified persons referred to above.
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SECTION 8. RULE 144A
The Company hereby agrees with each Holder, for so long as any
Registrable Securities remain outstanding, to make available, upon request of
any Holder of Registrable Securities, to any Holder or beneficial owner of
Registrable Securities in connection with any sale thereof and any prospective
purchaser of such Registrable Securities designated by such Holder or
beneficial owner, the information required by Rule 144A(d)(4) under the Act in
order to permit resales of such Registrable Securities pursuant to Rule 144A.
SECTION 9. MISCELLANEOUS
(a) Remedies. Each Holder of Registrable Securities, in
addition to being entitled to exercise all rights provided herein, and as
provided in the Purchase Agreement and the Warrant Agreement and granted by
law, including recovery of damages, will be entitled to specific performance of
its rights under this Agreement. The Company agrees that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach
by it of the provisions of this Agreement and hereby agrees to waive the
defense in any action for specific performance that a remedy at law would be
adequate.
(b) No Inconsistent Agreements. The Company will not on
or after the date of this Agreement enter into any agreement with respect to
its securities that conflicts with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The Company has not previously entered into any agreement
granting any registration rights of its securities to any Person that is
inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders of Registrable Securities hereunder do not in any way conflict with and
are not inconsistent with the rights granted to the holders of the Company's
securities under any other agreement in effect on the date hereof, except where
a waiver with respect thereto has been obtained prior to the date of
effectiveness of any Registration Statement required under this Agreement.
(c) Adjustments Affecting the Registrable Securities.
The Company will not take any action, or permit any change to occur, with
respect to the Registrable Securities which would (i) adversely affect the
ability of any of the Holders of Registrable Securities to include such
Registrable Securities in a registration undertaken pursuant to this Agreement
or (ii) materially adversely affect the marketability of the Registrable
Securities in any such registration.
(d) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given unless the Company has obtained the written
consent of Holders of a majority of the outstanding Registrable Securities.
Notwithstanding the foregoing, a waiver or consent to departure from the
provisions hereof that relates exclusively to the rights of Holders of
Registrable Securities whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders of Registrable Securities may be given by the Holders
of at least a majority of the Registrable Securities being sold.
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(e) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail (registered or certified, return receipt requested), telex,
telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the Registrar under the Indenture, with a copy to the
Registrar under the Indenture; and
(ii) if to the Company:
Exide Electronics Group, Inc.
8609 Six Forks Road
Raleigh, NC 27615
Telecopier No.: (919) 870-3100
Attention: General Counsel
With a copy to:
Smith Helms Mulliss & Moore, L.L.P.
316 West Edenton Street (27603)
P.O. Box 27525
Raleigh, NC 27611-7525
Telecopier No.: (919) 828-7938
Attention: Brad S. Markoff, Esq.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged, if telecopied; and
on the next business day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Registrable Securities.
(g) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
*
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO THE CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity, legality
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and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
(k) Entire Agreement. This Agreement together with the
other Documents (as defined in the Purchase Agreement) is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein with respect to the registration rights granted by the
Company with respect to the securities sold pursuant to the Purchase Agreement.
This Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
EXIDE ELECTRONICS GROUP, INC.
By: /s/ Marty R. Kittrell
---------------------------------------
Name: Marty R. Kittrell
Title: Vice President, Chief Financial
Officer, Treasurer and Assistant
Secretary
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
J.P. MORGAN SECURITIES INC.,
NATIONSBANC CAPITAL MARKETS, INC.
By: DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ Robert B. Moon
-----------------------------------
Name: Robert B. Moon
Title: Vice President