Exhibit 4.3
$75,000,000
C&D Technologies, Inc.
5.25% Convertible Senior Notes due 2025
REGISTRATION RIGHTS AGREEMENT
November 21, 2005
Credit Suisse First Boston LLC
Wachovia Capital Markets, LLC
c/o Credit Suisse First Boston LLC
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
C&D Technologies, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to Credit Suisse First Boston LLC and Wachovia
Capital Markets, LLC (collectively, the "Initial Purchasers"), upon the terms
set forth in a purchase agreement dated November 16, 2005 (the "Purchase
Agreement"), $60,000,000 aggregate principal amount of its 5.25% Convertible
Senior Notes Due 2025 (the "Firm Securities") and also granted to the Initial
Purchaser an option, exercisable from time to time by the Initial Purchasers, to
purchase up to an additional $15,000,000 aggregate principal amount (the
"Optional Securities ") of its 5.25% Convertible Senior Notes Due 2025. The Firm
Securities and the Optional Securities which the Initial Purchasers may elect to
purchase pursuant to the Purchase Agreement are herein collectively called the
"Notes". The Notes will be convertible into shares of common stock, par value
$0.01 per share, of the Company (the "Common Stock") at the conversion rate set
forth in the Offering Circular dated November 16, 2005. The Notes will be issued
pursuant to an Indenture, dated as of November 21, 2005 (the "Indenture"),
between the Company and The Bank of New York, as trustee (the "Trustee"). As an
inducement to the Initial Purchasers to enter into the Purchase Agreement, the
Company agrees with the Initial Purchasers, for the benefit of (i) the Initial
Purchasers and (ii) the holders of the Notes and the Common Stock issuable upon
conversion of the Notes (collectively, the "Securities") from time to time until
the earlier of (i) such time as such Securities have been sold pursuant to a
Shelf Registration Statement (as defined below) or (ii) the expiration of the
Shelf Registration Period (as defined below) (each of the foregoing a "Holder"
and collectively the "Holders"), as follows:
1. Shelf Registration (a) The Company shall, at its cost, prepare
and, as promptly as practicable (but in no event more than 90 days after the
original issuance of the Firm Securities (such original issuance date, the
"Closing Date")) file with the Securities and Exchange Commission (the
"Commission"), and thereafter use its commercially reasonable efforts to cause
to be declared effective, no later than 210 days after the Closing Date, a
registration statement (the "Shelf Registration Statement") on an appropriate
form under the Securities Act of 1933, as amended (the "Securities Act")
relating to the offer and sale of the Transfer Restricted Securities (as defined
in Section 5(d) hereof) by the Holders thereof from time to time in accordance
with the methods of distribution set forth in the Shelf Registration Statement
and Rule 415 under the Securities Act (hereinafter, the "Shelf Registration");
provided, however , that no Holder (other than an Initial Purchaser) shall be
entitled to have the Securities held by it covered by such Shelf Registration
Statement unless such Holder agrees in writing to be bound by all the provisions
of this Agreement applicable to such Holder.
(b) The Company shall use its commercially reasonable efforts to
keep the Shelf Registration Statement continuously effective in order to
permit the prospectus included therein (the "Prospectus") to be lawfully
delivered by the Holders of the relevant Securities, for a period of two
years (or for such longer period if extended pursuant to Section 2(h)
below) from the date of the latest issuance of the Notes from the Company
to the Initial Purchasers or such shorter period that will terminate when
all the Securities covered by the Shelf Registration Statement (i) have
been sold pursuant thereto or (ii) may be sold pursuant to Rule 144(k)
under the Securities Act, or any successor rule thereof, or otherwise
transferred in a manner that results in (A) the Securities not being
subject to transfer restrictions under the Securities Act and (B) the
absence of a need for a restrictive legend regarding registration under
the Securities Act (assuming for purpose of this Section 1(b)(ii) that the
Holders thereof are not affiliates of the Company) or (iii) cease to be
outstanding (in any such case, such period being called the "Shelf
Registration Period"). The Company shall be deemed not to have used its
commercially reasonable efforts to keep the Shelf Registration Statement
effective during the requisite period if it voluntarily takes any action
that would result in Holders of Securities covered thereby not being able
to offer and sell such Securities during that period, unless such action
is (i) required by applicable law or (ii) taken by the Company in good
faith and contemplated by Section 2(b)(v) and 2(b)(vi) below, and the
Company thereafter complies with the requirements of Section 2(h).
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall cause the Shelf Registration Statement and the
Prospectus and any amendment or supplement thereto, as of the effective
date of the Shelf Registration Statement, amendment or supplement, (i) to
comply in all material respects with the applicable requirements of the
Securities Act and the rules and regulations of the Commission and (ii)
not to contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they
were made, not misleading other than any such statement that may be made
or omitted in reasonable reliance upon and in conformity with written
information furnished by a Holder specifically for inclusion therein.
(d) Each Holder of Transfer Restricted Securities (as defined below)
agrees that if such Holder wishes to sell Transfer Restricted Securities
pursuant to the Shelf Registration Statement and related Prospectus, it
will do so only in accordance with this Section 1(d) and Section 2(h).
Each Holder of Transfer Restricted Securities wishing to sell Transfer
Restricted Securities pursuant to the Shelf Registration Statement and
related
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Prospectus and to be listed as a selling securityholder in the Shelf
Registration Statement and relatedProspectus at the time the Shelf
Registration Statement is declared effective (the "Effective Time") agrees
to deliver a written notice, substantially in the form of Annex A to the
offering circular disseminated in connection with the issuance of the Firm
Securities (a "Notice and Questionnaire") to the Company at least one (1)
Business Day (a "Business Day" meaning each day that is not a Saturday,
Sunday or legal holiday) prior to the filing of the Shelf Registration
Statement or any amendment thereto (each Holder delivering the Notice and
Questionnaire, a "Notice Holder"). From and after the date the Shelf
Registration Statement is declared effective, each Holder wishing to sell
Registrable Securities pursuant to the Shelf Registration Statement and
related Prospectus agrees to deliver a Notice and Questionnaire to the
Company at least five (5) Business Days prior to any intended distribution
of Transfer Restricted Securities under the Shelf Registration Statement.
The Company shall, as promptly as reasonably practicable after the later
of the date of receipt of a Notice and Questionnaire or the expiration of
any Suspension Period (as defined in Section 2(b) hereof) in effect when
the Notice and Questionnaire is delivered (i) if required by applicable
law, file with the Commission a post-effective amendment to the Shelf
Registration Statement or prepare and, if required by applicable law, file
a supplement to the related Prospectus or a supplement or amendment to any
document incorporated therein by reference or file any other document
required under the Securities Act so that the Holder delivering such
Notice and Questionnaire is named as a selling securityholder in the Shelf
Registration Statement and the related Prospectus in such a manner as to
permit such Holder to deliver such Prospectus to purchasers of the
Transfer Restricted Securities in accordance with applicable law and, if
the Company shall file a post-effective amendment to the Shelf
Registration Statement, use commercially reasonable efforts to cause such
post-effective amendment to be declared effective under the Securities Act
as promptly as is practicable; (ii) provide such Holder copies of any
documents filed pursuant to Section 1(d)(i); and (iii) notify such Holder
as promptly as practicable after the effectiveness under the Securities
Act of any post-effective amendment filed pursuant to Section 1(d)(i).
2. Registration Procedures. In connection with the Shelf
Registration contemplated by Section 1 hereof, the following provisions shall
apply:
(a) The Company shall (i) give notice to the Holders in the manner
as set forth in the Indenture (A) of its intention to file a Shelf
Registration Statement (the "Filing Notice") and (B) when the Shelf
Registration Statement or any amendment thereto has been filed with the
Commission and when the Shelf Registration Statement or any post-effective
amendment thereto has become effective; (ii) furnish to the Initial
Purchasers, prior to the filing thereof with the Commission, a copy of the
Shelf Registration Statement and each amendment thereof and each
supplement, if any, to the Prospectus included therein and, in the event
that an Initial Purchaser (with respect to any portion of an unsold
allotment from the original offering) is participating in the Shelf
Registration Statement, shall use its commercially reasonable efforts to
reflect in each such document, when so filed with the Commission, such
comments as an Initial Purchaser reasonably may propose; and (iii) include
the names of the Holders who propose to sell Securities pursuant to the
Shelf Registration Statement as selling securityholders. The Filing Notice
will seek, among other things, a determination from each such Holder as to
whether such
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Holder elects to have its Notes and the Common Stock issuable on
conversion thereof registered for sale pursuant to the Shelf Registration
Statement.
(b) The Company shall give written notice (a "Deferral Notice") to
the Initial Purchasers and the Holders (which notice pursuant to clauses
(ii)-(vi) hereof (each a "Material Event") shall be accompanied by an
instruction to suspend the use of the Prospectus until the requisite
changes have been made) of any of the following:
(i) when the Shelf Registration Statement or any
amendment thereto has been filed with the Commission and when
the Shelf Registration Statement or any post-effective
amendment thereto has become effective;
(ii) any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the
Prospectus included therein or for additional information, or
it shall become necessary to amend such Shelf Registration
Statement or supplement the related prospectus to comply with
the Securities Act or the Securities Exchange Act of 1934, as
amended (the "Exchange Act") or the respective rules
thereunder;
(iii) the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration
Statement or the initiation of any proceedings for that
purpose;
(iv) the receipt by the Company or its legal counsel of
any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such
purpose;
(v) the happening of any event that requires the Company
to make changes in the Shelf Registration Statement or the
Prospectus in order that the Shelf Registration Statement or
the Prospectus neither contains an untrue statement of a
material fact nor omits to state a material fact required to
be stated therein or necessary to make the statements therein
(in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading; and
(vi) the occurrence or existence of any pending
corporate development or other similar event with respect to
the Company or a public filing with the Commission that, in
the reasonable discretion of the Company, makes it appropriate
to suspend the availability of a Shelf Registration Statement
and the related Prospectus.
The Company shall be entitled to exercise its right under this Section 2(b) to
suspend the availability of the Shelf Registration Statement and any Prospectus
upon the occurrence of any event contemplated by clauses (ii) through (vi)
above, without incurring or accruing any obligation to pay Additional Interest
pursuant to Section 5, for one or more periods not to exceed an aggregate
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of 60 days in any 12-month period (such period, during which the availability of
the Registration Statement and any Prospectus is suspended being a "Suspension
Period").
(c) The Company shall use its commercially reasonable efforts to
obtain the withdrawal at the earliest possible time, of any order
suspending the effectiveness of the Shelf Registration Statement.
(d) The Company shall furnish to each Holder of Securities included
within the coverage of the Shelf Registration Statement, without charge,
at least one copy of the Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, and, if the Holder so requests in writing, all exhibits thereto
(including those, if any, incorporated by reference).
(e) The Company shall, during the Shelf Registration Period, deliver
to each Holder of Securities included within the coverage of the Shelf
Registration Statement, without charge, as many copies of the Prospectus
(including each preliminary prospectus) included in the Shelf Registration
Statement and any amendment or supplement thereto as such person may
reasonably request. The Company consents, subject to the provisions of
this Agreement, to the use of the Prospectus or any amendment or
supplement thereto by each of the Notice Holders in connection with the
offering and sale of the Securities covered by the Prospectus, or any
amendment or supplement thereto, included in the Shelf Registration
Statement.
(f) Prior to any public offering of the Securities pursuant to the
Shelf Registration Statement, the Company shall use its commercially
reasonable efforts to register or qualify or cooperate with the Notice
Holders included therein and their respective counsel in connection with
the registration or qualification of the Securities for offer and sale
under the securities or "blue sky" laws of such states of the United
States as any Notice Holder reasonably requests in writing and do any and
all other acts or things necessary or advisable to enable the disposition
in such jurisdictions of the Securities covered by such Registration
Statement; provided, however, that the Company shall not be required to
(i) qualify generally to do business in any jurisdiction where it is not
then so qualified or (ii) take any action which would subject it to
general service of process or to taxation in any jurisdiction where it is
not then so subject.
(g) Subject to the terms of the Indenture, the Company shall
cooperate with the Notice Holders to facilitate the timely preparation and
delivery of certificates representing the Securities to be sold pursuant
to any Registration Statement free of any restrictive legends and in such
denominations and registered in such names as the Holders may request a
reasonable period of time prior to sales of the Securities pursuant to the
Shelf Registration Statement.
(h) Upon the occurrence of any Material Event during the period for
which the Company is required to maintain an effective Shelf Registration
Statement, the Company shall, as promptly as practicable, prepare and
file, if necessary pursuant to applicable law, a post-effective amendment
to the Shelf Registration Statement or an amendment or supplement to the
Prospectus and any other required document that would be incorporated
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by reference into such shelf Registration Statement and Prospectus
so that, as thereafter delivered to Holders or purchasers of the
Securities, the Shelf Registration Statement and documents incorporated
therein will not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading. If the Company provides a Deferral Notice to
the Initial Purchasers and the Holders to suspend the use of the
Prospectus, then the Initial Purchasers and the Holders shall suspend use
of such Prospectus, and the two-year period of effectiveness of the Shelf
Registration Statement provided for in Section 1(b) above shall be
extended by the number of days from and including the date of the giving
of such notice to and including the date when the Initial Purchasers and
the Holders shall have been advised by the Company that the Prospectus may
be used or have received such amended or supplemented prospectus pursuant
to this Section 2(h).
(i) Not later than the effective date of the Shelf Registration
Statement, the Company will provide CUSIP numbers for the Notes and the
Common Stock registered under the Shelf Registration Statement, and,
subject to the terms of the Indenture, provide the Trustee with printed
certificates for such Notes, in a form eligible for deposit with The
Depository Trust Company.
(j) The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the Shelf
Registration and will make generally available to its security holders (or
otherwise provide in accordance with Section 11(a) of the Securities Act)
an earnings statement satisfying the provisions of Section 11(a) of the
Securities Act, no later than 45 days after the end of a 12-month period
(or 90 days, if such period is a fiscal year) beginning with the first
month of the Company's first fiscal quarter commencing after the effective
date of the Shelf Registration Statement, which statement shall cover such
12-month period.
(k) The Company shall cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), in a
timely manner and containing such changes, if any, as shall be necessary
for such qualification. In the event that such qualification would require
the appointment of a new trustee under the Indenture, the Company shall
appoint a new trustee thereunder pursuant to the applicable provisions of
the Indenture.
(l) The Company may require each Holder of Securities to be sold
pursuant to the Shelf Registration Statement to furnish to the Company all
such information regarding the Holder and the distribution of the
Securities as the Company may from time to time reasonably require for
inclusion in the Shelf Registration Statement, and the Company may exclude
from such registration the Securities of any Holder that fails to furnish
such information within a reasonable time after receiving such request.
Each Holder agrees, by acquisition of the Securities, to be bound by and
to comply in all respects with its obligations as a Holder under this
Agreement and that no Holder of Securities shall be entitled to have the
Securities held by it covered by the Shelf Registration Statement or to
sell any of such Securities pursuant to the Shelf Registration Statement
or to receive a Prospectus relating thereto, unless such Holder has
furnished the Company with a Notice
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and Questionnaire as required in accordance with Section 1(d) (including
all information required to be included in such Notice and Questionnaire)
and the information set forth in the next sentence. Each Notice Holder
agrees promptly to furnish to the Company all information required to be
disclosed in order to make the information previously furnished to the
Company by such Notice Holder not misleading and any other information
regarding such Notice Holder and the distribution of such Securities as
may be required to be disclosed in the Shelf Registration Statement under
applicable law or pursuant to comments of the Commission or as the Company
may reasonably request.
(m) The Company shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form) and
take all such other action, if any, as any Holder shall reasonably request
in order to facilitate the disposition of the Securities pursuant to the
Shelf Registration.
(n) The Company shall (i) make reasonably available for inspection
by the Holders, any underwriter participating in any disposition pursuant
to the Shelf Registration Statement and any attorney, accountant or other
agent retained by the Holders or any such underwriter all relevant
financial and other records, pertinent corporate documents and properties
of the Company and (ii) cause the Company's officers, directors,
employees, accountants and auditors to supply all relevant information
reasonably requested by the Holders or any such underwriter, attorney,
accountant or agent in connection with the Shelf Registration Statement,
in each case, as shall be reasonably necessary to enable such persons, to
conduct a reasonable investigation within the meaning of Section 11 of the
Securities Act; provided, however, that the foregoing inspection and
information gathering shall be coordinated on behalf of the Initial
Purchasers by you and on behalf of the other parties by one counsel
designated by and on behalf of such other parties as described in Section
3 hereof.
(o) The Company, if requested by any Notice Holder covered by the
Shelf Registration Statement, shall cause (i) its counsel to deliver an
opinion and updates thereof relating to the Securities in customary form
addressed to such Notice Holders and the managing underwriters, if any,
thereof and dated, in the case of the initial opinion, the effective date
of such Shelf Registration Statement (it being agreed that the matters to
be covered by such opinion shall include, without limitation, the good
standing of the Company and its subsidiaries; the qualification of the
Company and its subsidiaries to transact business as foreign corporations;
the due authorization, execution and delivery of the relevant agreement of
the type referred to in Section 2(m) hereof; the due authorization,
execution, authentication and issuance, and the validity and
enforceability, of the Securities; the absence of governmental approvals
required to be obtained in connection with the Shelf Registration
Statement, the offering and sale of the applicable Securities, or any
agreement of the type referred to in Section 2(m) hereof; the compliance
as to form of the Shelf Registration Statement and any documents
incorporated by reference therein and of the Indenture with the
requirements of the Securities Act and the Trust Indenture Act,
respectively; and a separate letter to such counsel's knowledge as of the
date of the opinion and as of the effective date of the Shelf Registration
Statement or most recent post-effective amendment thereto, as the case may
be regarding the absence from the Shelf Registration Statement and the
Prospectus included therein, as then amended or supple-
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mented, and from any documents incorporated by reference therein of an
untrue statement of a material fact or the omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading (in the case of any such documents, in
the light of the circumstances existing at the time that such documents
were filed with the Commission under the Exchange Act); (ii) its officers
to execute and deliver all customary documents and certificates and
updates thereof requested by any underwriters of the applicable Securities
(including a certificate as to the absence of material legal or
governmental proceedings involving the Company and its subsidiaries, to
the knowledge of the officer executing such certificate) and (iii) its
independent registered public accounting firm and the independent
registered public accounting firm with respect to any other entity for
which financial information is provided in the Shelf Registration
Statement to provide to the Notice Holders and any underwriter therefor a
comfort letter in customary form and covering matters of the type
customarily covered in comfort letters in connection with primary
underwritten offerings, subject to receipt of appropriate documentation as
contemplated, and only if permitted, by Statement of Auditing Standards
No. 72.
(p) The Company will use its commercially reasonable efforts to
cause the Securities covered by the Shelf Registration Statement to be
rated with the appropriate rating agencies, if so requested by holders of
a majority in aggregate principal amount of Securities covered by the
Shelf Registration Statement, or by the managing underwriters, if any.
(q) In the event that any broker-dealer registered under the
Exchange Act shall underwrite any Securities or participate as a member of
an underwriting syndicate or selling group or "assist in the distribution"
(within the meaning of the Conduct Rules (the "Rules") of the National
Association of Securities Dealers, Inc. ("NASD")) thereof, whether as a
Holder of such Securities or as an underwriter, a placement or sales agent
or a broker or dealer in respect thereof, or otherwise, the Company will
assist such broker-dealer in complying with the requirements of such
Rules, including, without limitation, by (i) if such Rules, including Rule
2720, shall so require, engaging a "qualified independent underwriter" (as
defined in Rule 2720) to participate in the preparation of the Shelf
Registration Statement relating to such Securities, to exercise usual
standards of due diligence in respect thereto and, if any portion of the
offering contemplated by such Shelf Registration Statement is an
underwritten offering or is made through a placement or sales agent, to
recommend the yield of such Securities, (ii) indemnifying any such
qualified independent underwriter to the extent of the indemnification of
underwriters provided in Section 5 hereof and (iii) providing such
information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Rules.
(r) The Company shall use its commercially reasonable efforts to
take all other steps necessary to effect the registration of the
Securities covered by the Shelf Registration Statement contemplated
hereby.
3. Registration Expenses. (a) All expenses incident to the Company's
performance of and compliance with this Agreement will be borne by the Company,
regardless of
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whether a Shelf Registration Statement is ever filed or becomes effective,
including without limitation, (i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal securities and state "blue
sky" or securities laws; (iii) all expenses of printing (including printing
certificates for the Securities to be issued and printing of Prospectuses),
messenger and delivery services and telephone; (iv) all fees and disbursements
of counsel for the Company; (v) all application and filing fees in connection
with listing the Securities on a national securities exchange or automated
quotation system pursuant to the requirements hereof; and (vi) all fees and
disbursements of the independent registered public accounting firm of the
Company (including the expenses of any special audit and comfort letters
required by or incident to such performance). The Company will 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 the Shelf Registration Statement required by
this Agreement, the Company will reimburse the Initial Purchasers and the Notice
Holders of Securities covered by the Shelf Registration Statement, for the
reasonable fees and disbursements of not more than one counsel, designated by
the Notice Holders of a majority in aggregate principal amount of the Securities
covered by the Shelf Registration Statement (provided that Notice Holders of
Common Stock issued upon the conversion of the Notes shall be deemed to be
Notice Holders of the aggregate principal amount of Notes from which such Common
Stock was converted) to act as counsel for the Notice Holders in connection
therewith.
4. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Notice Holder and each person, if any, who controls such Notice
Holder within the meaning of the Securities Act or the Exchange Act (each Notice
Holder and such controlling persons are referred to collectively as the "Notice
Holder Indemnified Parties") from and against any losses, claims, damages or
liabilities, joint or several, or any actions in respect thereof (including, but
not limited to, any losses, claims, damages, liabilities or actions relating to
purchases and sales of the Securities) to which each Notice Holder Indemnified
Party may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages, liabilities or actions arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Shelf Registration Statement or Prospectus
including any document incorporated by reference therein or in any amendment or
supplement thereto or in any preliminary prospectus relating to the Shelf
Registration, or arise out of, or are based upon, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and shall reimburse, as
incurred, the Notice Holder Indemnified Parties for any legal or other expenses
reasonably incurred by the Notice Holder Indemnified Parties in connection with
investigating or defending any such loss, claim, damage, liability or action in
respect thereof; provided, however, that (i) the Company shall not be liable in
any such case to the extent that such loss, claim, damage or liability arises
out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in the Shelf Registration Statement or
Prospectus or in any amendment or supplement thereto or in any preliminary
prospectus relating to the Shelf Registration in reliance upon and in conformity
with written information pertaining to such Notice Holder and furnished to the
Company by or on behalf of such Notice Holder specifically for inclusion therein
and (ii) with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary pro-
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spectus relating to a Shelf Registration Statement, the indemnity agreement
contained in this subsection (a) shall not inure to the benefit of any Notice
Holder from whom the person asserting any such losses, claims, damages or
liabilities purchased the Securities concerned, to the extent that a prospectus
relating to such Securities was required to be delivered by such Notice Holder
under the Securities Act in connection with such purchase and any such loss,
claim, damage or liability of such Notice Holder results from the fact that
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Securities to such person, a copy of the final
prospectus if the Company had previously furnished copies thereof to such Notice
Holder; provided further, however, that this indemnity agreement will be in
addition to any liability which the Company may otherwise have to such Notice
Holder Indemnified Party. The Company shall also indemnify underwriters, their
officers and directors and each person who controls such underwriters within the
meaning of the Securities Act or the Exchange Act to the same extent as provided
above with respect to the indemnification of the Notice Holders of the
Securities if requested by such Notice Holders. (b) Each Notice Holder,
severally and not jointly, will indemnify and hold harmless the Company and each
person, if any, who controls the Company within the meaning of the Securities
Act or the Exchange Act (each a "Company Indemnified Party") from and against
any losses, claims, damages or liabilities or any actions in respect thereof, to
which the Company Indemnified Party may become subject under the Securities Act,
the Exchange Act or otherwise, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon (i) (A) any untrue
statement or alleged untrue statement of a material fact contained in the Shelf
Registration Statement or in any amendment thereto or (B) the omission or
alleged omission to state therein a material fact necessary to make the
statements therein not misleading or (ii) (A) any untrue statement or alleged
untrue statement of a material fact contained in the prospectus or supplement
thereto or in any preliminary prospectus relating to the Shelf Registration, or
(B) the omission or alleged omission to state therein a material fact necessary
to make the statements therein, not misleading, but in each case only to the
extent that the untrue statement or omission or alleged untrue statement or
omission was made in reliance upon and in conformity with written information
pertaining to such Notice Holder and furnished to the Company by or on behalf of
such Notice Holder specifically for inclusion therein; and, subject to the
limitation set forth immediately preceding this clause, shall reimburse, as
incurred, the Company for any legal or other expenses reasonably incurred by the
Company Indemnified Party in connection with investigating or defending any such
loss, claim, damage, liability or action in respect thereof. This indemnity
agreement will be in addition to any liability which such Notice Holder may
otherwise have to the Company Indemnified Party.
(c) Promptly after receipt by an indemnified party under this
Section 4 of notice of the commencement of any action, claim or proceeding
(including a governmental investigation), such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 4, notify the indemnifying party of the commencement thereof; but the
failure to notify the indemnifying party shall not relieve the indemnifying
party 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;
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, claim or proceeding is brought against any
indemnified party, and it notifies the indemnifying party of the
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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 4 for any legal or other expenses, other than
reasonable costs of investigation, subsequently incurred by such indemnified
party in connection with the defense thereof. 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. Any such separate firm for the
Notice Holder Indemnified Parties shall be designated in writing by the Notice
Holder Indemnified Parties and any such separate firm for the Company
Indemnified Parties shall be designated in writing by the Company. 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, which consent shall not 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 (i) includes 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 a failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 4 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (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 (or actions in respect thereof) referred to in
subsection (a) or (b) above in such proportion as is appropriate to reflect the
relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities (or actions in
respect thereof) as well as any other relevant equitable considerations. The
relative fault of the parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Notice Holder or such other
indemnified party, as the case may be, on the other, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such 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 sentence
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 proceeding, action or claim which is the subject of this
subsection (d).
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Notwithstanding any other provision of this Section 4(d), the Notice Holders
shall not be required to contribute any amount in excess of the amount by which
the net proceeds received by such Notice Holders from the sale of the Securities
pursuant to the Shelf Registration Statement exceeds the amount of damages which
such Notice Holders have 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. For purposes of this paragraph (d),
each person, if any, who controls such indemnified party within the meaning of
the Securities Act or the Exchange Act shall have the same rights to
contribution as such indemnified party and each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act shall have
the same rights to contribution as the Company.
(e) The agreements contained in this Section 4 shall survive the
sale of the Securities pursuant to the Shelf Registration Statement and shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement or any investigation made by or on behalf of any indemnified
party.
5. Additional Interest Under Certain Circumstances. (a) The Company
shall pay additional interest (the "Additional Interest") to the holders of
Transfer Restricted Securities as follows if any of the following events occur
(each such event in clauses (i) through (iii) below a "Registration Default"):
(i) the Shelf Registration Statement has not been filed with the
Commission by the 90th day after the Closing Date;
(ii) the Shelf Registration Statement has not been declared
effective by the Commission by the 210th day after the Closing Date; or
(iii) the Shelf Registration Statement is declared effective by the
Commission but (A) the Shelf Registration Statement thereafter ceases to
be effective or (B) the Shelf Registration Statement or the Prospectus
ceases to be usable in connection with resales of Transfer Restricted
Securities (as defined below) during the periods specified herein because
either (1) any event occurs as a result of which the Prospectus forming
part of such Shelf Registration Statement would 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, or (2) it shall be necessary to amend
such Shelf Registration Statement or supplement the related prospectus, to
comply with the Securities Act or the Exchange Act or the respective rules
thereunder.
Each of the foregoing will constitute a Registration Default whatever the reason
for any such event and whether it is voluntary or involuntary or is beyond the
control of the Company or pursuant to operation of law or as a result of any
action or inaction by the Commission.
The Company shall pay Additional Interest to the Holders of the Notes that
are Transfer Restricted Securities over and above the interest set forth in the
title of the Notes from and including the date on which any such Registration
Default shall occur to but excluding the date on
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which all such Registration Defaults have been cured; provided, that in no event
shall the Company be obligated to pay Additional Interest following the
expiration of the Shelf Registration Period; and provided further, however, that
no such Additional Interest shall accrue for or during any Suspension Period.
Additional Interest will accrue at a rate of (a) 0.25% of the principal amount
of such Notes per annum to and including the 90th day following the occurrence
of such Registration Default and (b) 0.50% of the principal amount of such Notes
per annum from and after the 91st day following such Registration Default (such
interest rates pursuant to clauses (a) and (b), the "Additional Interest Rate")
No additional interest will accrue on any shares of Common Stock into which
Notes have been converted.
(b) A Registration Default referred to in Section 5(a)(iii) hereof
shall be deemed not to have occurred and be continuing in relation to the Shelf
Registration Statement or the related Prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a post-effective
amendment to the Shelf Registration Statement to incorporate annual audited
financial information with respect to the Company where such post-effective
amendment is not yet effective and needs to be declared effective to permit
Notice Holders to use the related Prospectus or (y) other material events with
respect to the Company that would need to be described in such Shelf
Registration Statement or the related Prospectus and (ii) in the case of clause
(y), the Company is proceeding promptly and in good faith to amend or supplement
the Shelf Registration Statement and related Prospectus to describe such events;
provided, however, that in any case if such Registration Default occurs for a
continuous period in excess of 30 days, Additional Interest shall be payable in
accordance with the above paragraph from the day such Registration Default
occurs until such Registration Default is cured but in no event shall Additional
Interest accrue for or during any Suspension Period.
(c) Any amounts of Additional Interest due pursuant to Section 5(a)
will be payable in cash semiannually in arrears on May 1 and November 1 (each,
an " Interest Payment Date ") to Holders of record of the applicable Notes on
the preceding April 15 and October 15. The amount of Additional Interest will be
determined by multiplying the Additional Interest Rate by the principal amount
of the Notes, further multiplied by a fraction, the numerator of which is the
number of days such Additional Interest Rate was applicable during such period
(determined on the basis of a 360 day year comprised of twelve 30-day months),
and the denominator of which is 360. If a Holder converts its Notes, all
Additional Interest, if any, that has accrued since the Interest Payment Date
last preceding the date of conversion will be deemed to be paid in full upon
such conversion, and no separate payment will be made by the Company upon
conversion on account of such Additional Interest.
(d) "Transfer Restricted Securities" means each Security until (i)
the date on which such Security has been effectively registered under the
Securities Act and disposed of in accordance with the Shelf Registration
Statement or (ii) the date on which such Security is distributed to the public
pursuant to Rule 144 under the Securities Act or assuming for this purpose that
the Holder thereof is not an affiliate of the Company, is saleable pursuant to
Rule 144(k) under the Securities Act.
6. Rules 144 and 144A. The Company shall use its best efforts to
file the reports required to be filed by it under the Securities Act and the
Exchange Act in a timely manner and, if at any time the Company is not required
to file such reports, it will, upon the request of any
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Holder, make publicly available other information so long as necessary to permit
sales of their securities pursuant to Rules 144 and 144A. The Company covenants
that it will take such further action as any Holder may reasonably request, all
to the extent required from time to time to enable such Holder to sell Transfer
Restricted Securities without registration under the Securities Act within the
limitation of the exemptions provided by Rules 144 and 144A (including the
requirements of Rule 144A(d)(4)). The Company will provide a copy of this
Agreement to prospective purchasers of Securities identified to the Company by
the Initial Purchasers upon request. Upon the request of any Holder, the Company
shall deliver to such Holder a written statement as to whether it has complied
with such requirements. Notwithstanding the foregoing, nothing in this Section 6
shall be deemed to require the Company to register any of its securities
pursuant to the Exchange Act.
7. Underwritten Registrations. If any of the Transfer Restricted
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 ("Managing Underwriters") will be selected by
the Holders of a majority in aggregate principal amount of such Transfer
Restricted Securities to be included in such offering (provided that Holders of
Common Stock issued upon conversion of the Notes shall not be deemed Holders of
Common Stock, but shall be deemed to be Holders of the aggregate principal
amount of Notes from which such Common Stock was converted).
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
8. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any failure
by the Company to comply with its obligations under Section 1 hereof may result
in material irreparable injury to the Initial Purchasers or the Holders for
which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, the Initial Purchasers or any Holder may obtain such relief as may be
required to specifically enforce the Company's obligations under Sections 1
hereof. The Company further agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(b) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, except by the Company and the written
consent of the Holders of a majority in principal amount of the Securities
affected by such amendment, modification, supplement, waiver or consents
(provided that Holders of Common Stock issued upon conversion of Notes shall not
be deemed Holders of Common Stock, but shall be deemed to be Holders of the
aggregate principal amount of Notes from which such Common Stock was converted).
Without
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the consent of the Holder of the Notes, however, no modification may change the
provisions relating to the payment of Additional Interest.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
(1) if to a Holder that is not a Notice Holder, at the most
current address given by such Holder to the Company.
(2) if to a Notice Holder, at the most current address given
by such Notice Holder to the Company in a Notice and Questionnaire or any
amendment thereto.
(3) if to the Initial Purchasers;
Credit Suisse First Boston LLC
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Transactions Advisory Group
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
(4) if to the Company, at its address as follows:
C&D Technologies, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; three
business days after being deposited in the mail, postage prepaid, if mailed;
when receipt is acknowledged by recipient's facsimile ma-
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chine operator, if sent by facsimile transmission; and on the day delivered, if
sent by overnight air courier guaranteeing next day delivery.
(d) No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
(e) Successors and Assigns. This Agreement shall be binding upon the
Company and its successors and assigns.
(f) 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.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing 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. By the execution and delivery of this
Agreement, the parties hereto submit to the nonexclusive jurisdiction of any
federal or state court in the State of New York.
(i) Severability. If 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 and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(j) Securities Held by the Company. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Securities is
required hereunder, Securities held by the Company or its affiliates (other than
subsequent Holders of Securities if such subsequent Holders are deemed to be
affiliates solely by reason of their holdings of such Securities) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
(k) Third Party Beneficiaries. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent they may deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the several Initial Purchasers and the Company in accordance with its
terms.
Very truly yours,
C&D TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Vice President and Chief
Financial Officer
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The foregoing Registration
Rights 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/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
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