Exhibit 4.7
$54,500,000
C&D Technologies, Inc.
5.50% Convertible Senior Notes due 2026
REGISTRATION RIGHTS AGREEMENT
November 21, 2006
To the Purchasers Party to
The Purchase Agreement dated
November 15, 2006 with
C&D Technologies, Inc.
Dear Sirs:
C&D Technologies, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the purchasers listed on Schedule I attached
hereto (collectively, the "Purchasers"), upon the terms set forth in a purchase
agreement dated November 15, 2006 (the "Purchase Agreement"), $54,500,000
aggregate principal amount of its 5.50% Convertible Senior Notes Due 2026 (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 Indenture, dated as of the date hereof (the "Indenture"), between
the Company and The Bank of New York, as trustee (the "Trustee"), and the Notes
will be issued pursuant to the Indenture. As an inducement to the Purchasers to
enter into the Purchase Agreement, the Company agrees with the Purchasers, for
the benefit of (i) the 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 ninety (90) days after the original
issuance of the Notes (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 one hundred eighty (180) 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 a 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 Closing Date
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 in
Section 5(d) hereof) 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
Prospectus and to be listed as a selling securityholder in the Shelf
Registration Statement and related Prospectus 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 attached hereto (such a
notice, when completed, duly executed and so delivered, a "Notice and
Questionnaire") to the Company at least one (1) Business Day (a "Business Day"
meaning each
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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
Securities pursuant to the Shelf Registration Statement and related Prospectus
that has not previously delivered a Notice and Questionnaire to the Company in
accordance with the foregoing provisons of this Section 1(d) 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; and (ii) 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 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 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;
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(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 defer the filing of the Shelf Registration Statement or
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
defer the filing of or 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 of 30 days in any 3-month period or an aggregate 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); provided that the Company shall have no obligation
to furnish to any such Holder any document that is available on the Commission's
XXXXX system.
(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
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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 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, the
Prospectus 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 Holders to suspend the use of the Prospectus,
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.
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(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 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
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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 Holders by one counsel designated by and on
behalf of the Holders 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 supplemented, 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) 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)
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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
(q) 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
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 any independent registered public accounting firm referred to
in Section 2(o) (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 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
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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 or any issuer free-writing prospectus (as defined in Rule
433 under the Securities Act) (a "FWP"), in any "issuer information" (as defined
in Rule 433 under the Securities Act) of the Company, which issuer information
is required to be, or is, filed with the Commission, or any Prospectus together
with any combination of one or more FWPs, if any, related to any such
registration or in any filing prepared or executed by the Company (or based upon
written information furnished by or on behalf of the Company expressly for use
in such filing) in connection with the qualification of the offering under the
securities or other "blue sky" laws of any jurisdiction in which Registrable
Securities are offered ("Blue Sky Filing"), 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 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 or FWP or in any issuer
information relating to the Shelf Registration (i) 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 or (ii) so made in the Prospectus used by such Notice Holder
after such time as the Company has advised such Notice Holder of such untrue
statement or omission or alleged untrue statement or omission and that the
filing of a post-effective amendment or supplement thereto was required until
such time as such post-effective amendment or supplement is so filed; 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. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of any Notice Holder
Indemnified Party and shall survive the transfer of securities by such Holder or
underwriter and any termination of this Agreement.
(b) Each Notice Holder, severally and not jointly, will, if the
securities held by it are included in Shelf Registration Statement, 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
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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 limitations set forth
immediately preceding this clause and Section 4(c) hereof, 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; provided, however,
that the aggregate amount which any such Notice Holder shall be required to pay
pursuant to this Section 4 shall in no event be greater than the amount of the
net proceeds received by such Notice Holder upon the sale of the Securities
pursuant to the Shelf Registration Statement or Prospectus giving rise to such
claims less all amounts previously paid by such Notice Holder with respect to
any such claims. This indemnity agreement will be in addition to any liability
which such Notice Holder may otherwise have to the Company Indemnified Party.
Such indemnity shall survive the transfer of securities by such Notice Holder
and any termination of this Agreement.
(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 and actually 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
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
- 10 -
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, (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
and (iii) does not provide for any action on the part of any indemnified party
other than the payment of money damages which are to be paid in full by the
indemnifying 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, omissions or
actions 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, omission or action. 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). 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
- 11 -
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 ninetieth (90th) day after the Closing Date;
(ii) the Shelf Registration Statement has not been declared
effective by the Commission by the one hundred and eightieth (180th) 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 (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, (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 or (3) such Shelf Registration Statement has expired
before a replacement Shelf Registration Statement has become effective.
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 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% (one quarter of one percent) 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% (one half of one percent)
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
- 12 -
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 November 15 and May 15 (each,
an "Interest Payment Date") to Holders of record of the applicable Notes on the
preceding November 1 and May 1. The amount of Additional Interest will be
determined by multiplying the Additional Interest Rate by the principal amount
of the applicable 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 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)). Upon the request of any Holder, the Company shall deliver to
such Holder a written statement as to whether it has complied with such
- 13 -
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 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, 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 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.
- 14 -
(3) if to the Company, at its address as follows:
C&D Technologies, Inc.
0000 Xxxxx Xxxxxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attention: General Counsel
with a copy to:
Xxxxx Xxxxxx LLP
00 Xxxxx 00xx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, 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 machine 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) Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
- 15 -
INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT.
(j) 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.
(k) 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.
(l) Third Party Beneficiaries. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the 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.
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 Purchasers and the Company in accordance with its terms.
Very truly yours,
C&D TECHNOLOGIES, INC.
By: /s/ Xxx X. Xxxxxx
--------------------------------------
Name: Xxx X. Xxxxxx
Title: Vice President Finance and
Chief Financial Officer
- 16 -
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
PURCHASER
Name: Basso Fund Ltd.
By:/s/ Xxxx Xxxxxx
---------------------------
Name: Xxxx Xxxxxx
Title: Authorized Signatory
Address: 0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Tax ID#: N/A
- 17 -
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
PURCHASER
Name: Basso Holdings Ltd.
By: /s/ Xxxx Xxxxxx
---------------------------
Name: Xxxx Xxxxxx
Title: Authorized Signatory
Address: 0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Tax ID#: 00-0000000
- 17 -
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
PURCHASER
Name: Basso Multi-Strategy Holding Fund Ltd.
By: /s/ Xxxx Xxxxxx
---------------------------
Name: Xxxx Xxxxxx
Title: Authorized Signatory
Address: 0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Tax ID#: 00-0000000
- 17 -
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
PURCHASER
Name: X.X. Xxxxx Special Opportunity Funds, L.P.
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Partner
Address: 000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Tax ID#:
- 17 -
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
PURCHASER
Name: X.X. Xxxxx Special Opportunity Funds, Ltd.
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Partner
Address: 000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Tax ID#:
- 17 -
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
PURCHASER
Name: D.E. Shaw Valence Portfolios, L.L.C.
By: X.X. Xxxx & Co., L.P. as Managing
Member
By: /s/ Xxxx Xxxxxxx
---------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
Address: 000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Tax ID#:
- 17 -
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
PURCHASER
Name: Five Sticks, L.P.
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
Title: Authorized Signatory
Address: 0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Tax ID#: 00-0000000
- 17 -
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
PURCHASER
Name: GLG Partners LP
By: /s/ Xxxxxxxx Xxxx
-----------------------------
Name: Xxxxxxxx Xxxx
Title: Asset Manager
Address: 0 Xxxxxx Xxxxxx
Xxxxxx, Xxxxx Xxxxxxx X0X 0XX
Tax ID#: N/A
- 17 -
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
PURCHASER
Name: Highbridge International LLC
By:Highbridge Capital Management, LLC
By: /s/ Xxxx X. Chill
-----------------------------
Name: Xxxx X. Chill
Title: Managing Director
Address: 0 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxx X. Xxxxxx/Xxxx X. Chill
Tax ID#: N/A
- 17 -
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
PURCHASER
Name: LB I Group Inc.
By: Xxxx X. Xxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
Address: LB I Group Inc.
Attn: Xxxx Xxxxxxx
c/x Xxxxxx Brothers
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Tax ID#: 00-0000000
- 17 -
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
PURCHASER
Name: Marathon Global Convertible Master
Fund, Ltd.
By: /s/ Xxxxxxxxx Xxxxxx
-----------------------------
Name: Xxxxxxxxxx Xxxxxx
Title: Managing Director
Address: c/o Citgo Fund Services
(Cayman Islands) Limited
P.O. Box 311065MB
Regatta Park, West Bay Road
Grand Cayman, Cayman Islands
Tax ID#: 00-0000000
- 17 -
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
PURCHASER
Name: Portside Growth and Opportunity Fund
By: /s/ Xxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxx Xxxxx
Title: Authorized Signatory
Address: c/o Ramius Capital Group, LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Tax ID#: 00-0000000
- 17 -
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
PURCHASER
Name: Swiss Re Financial Products
Corporation
By: /s/ Xxxxx Xxxxx
-----------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
Address: 00 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Tax ID#: 00-0000000
- 17 -
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
PURCHASER
Name: Tempo Master Fund LP
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: COO
Address: 0 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Tax ID#: 00-0000000
- 17 -
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
PURCHASER
Name: UBS AG
By: /s/ Xxxxx Xxxxxx
-----------------------------
Name: Xxxxx Xxxxxx
Title: Director
Address: 0000 0xx Xxxxxx
Xxx Xxxx, XX 00000
Tax ID#: 00-0000000
- 17 -
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
PURCHASER
Name: UBS X'Xxxxxx LLC FBO X'Xxxxxx Global
Convertible Arbitrage Master Limited
By: /s/ Xxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxx
Title: Managing Director
Address: 0 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Tax ID#: N/A - foreign
- 17 -
Schedule I
Purchasers
Basso Fund Ltd.
Basso Holdings Ltd.
Basso Multi-Strategy Holding Fund Ltd.
Five Sticks, LP
Attn: Xxxx Xxxxxx
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
X.X. Xxxxx Special Opportunity Funds, L.P.
D.B. Xxxxx Special Opportunity Funds, Ltd.
Attn: Xxxxxx X. Xxxxx, Managing Partner
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
D.E. Shaw Valence Portfolios, L.L.C.
Attn: Xxxx Xxxxxxx, Managing Director
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
GLG Partners LP
Attn: Xxxxxxxx Xxxx, Asset Manager
0 Xxxxxx Xxxxxx
Xxxxxx, Xxxxx Xxxxxxx X0X 0XX
Highbridge International LLC
Attn: Xxxx X. Chill, Managing Director
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
LB I Group Inc.
c/x Xxxxxx Brothers
Attn: Xxxx X. Xxxxxxx
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Marathon Global Convertible Master Fund, Ltd.
Attn: Xxxxxxxxxx Xxxxxx, Managing Director
c/o Citgo Fund Services (Cayman Islands) Limited
P.O. Box 311065MB
Regatta Park, West Bay Road
Grand Cayman, Cayman Islands
Portside Growth Opportunity Fund
c/o Ramius Capital Group, LLC
Attn: Xxxxxxx Xxxxx
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Swiss Re Financial Products Corporation
Attn: Xxxxx Xxxxx, Managing Director
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Tempo Master Fund LP
Attn: Xxxxxx Xxxxxxx, Portfolio Manager
0 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
UBS AG
Attn: Xxxxx Xxxxxx, Director
0000 0xx Xxxxxx
Xxx Xxxx, XX 00000
UBS X'Xxxxxx LLC FBO UBS X'Xxxxxx
Global Convertible Arbitrage Master Limited
Attn: Xxxxxx Xxxxxxx, Managing Director
0 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
- 2 -
ANNEX A
C&D TECHNOLOGIES, INC.
FORM OF SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
The undersigned beneficial holder of 5.50% Convertible Senior Notes due
2026 (the "Notes") of C&D Technologies, Inc. (the "Company") and/or common
stock, $0.01 par value per share, issued or issuable upon conversion of the
Notes (the "Registrable Securities") understands that the Company has filed or
intends to file with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-3 (the "Shelf Registration Statement") for the
registration and resale under Rule 415 of the Securities Act of 1933, as amended
(the "Securities Act"), of the Registrable Securities, in accordance with the
terms of the registration rights agreement, dated as of November 21, 2006 (the
"Registration Rights Agreement"), among the Company and the Purchasers named
therein. A copy of the Registration Rights Agreement is available from the
Company upon request at the address set forth below. All capitalized terms not
otherwise defined herein shall have the meaning ascribed thereto in the
Registration Rights Agreement.
Each beneficial holder of Registrable Securities, including beneficial
holders of Notes convertible into Registrable Securities (each a "beneficial
owner"), is entitled to the benefits of the Registration Rights Agreement. In
order to sell, or otherwise dispose of, any Registrable Securities pursuant to
the Shelf Registration Statement, a beneficial owner of Registrable Securities
generally will be required to be named as a selling securityholder in the
related prospectus, deliver a prospectus to purchasers of Registrable Securities
and be bound by those provisions of the Registration Rights Agreement applicable
to such beneficial owner (including certain indemnification provisions as
described below). Beneficial owners that do not complete this Notice and
Questionnaire and deliver it to the Company as provided below will not be named
as selling securityholders in the prospectus and, therefore, will not be
permitted to sell any Registrable Securities pursuant to the Shelf Registration
Statement. Beneficial owners are required to complete and deliver this Notice
and Questionnaire at least one business day prior to the filing of the Shelf
Registration Statement so that such beneficial owners may be named as selling
securityholders in the related prospectus at the time of effectiveness. The
Company has agreed to pay additional amounts pursuant to the Registration Rights
Agreement under certain circumstances set forth therein.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and the related prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and the related prospectus.
NOTICE
The undersigned beneficial owner (the "Selling Securityholder") of
Registrable Securities hereby gives notice to the Company of its intention to
sell or otherwise dispose of Registrable Securities beneficially owned by it and
listed below in Item 3 (unless otherwise specified under such Item 3) pursuant
to the Shelf Registration Statement. The undersigned, by signing and
A-1
returning this Notice and Questionnaire, understands that it will be bound by
the terms and conditions of this Notice and Questionnaire and the Registration
Rights Agreement.
Pursuant to the Registration Rights Agreement, the undersigned has agreed
to indemnify and hold harmless the Company's directors and officers and each
person, if any, who controls the Company within the meaning of either Section 15
of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), from and against certain losses arising in
connection with statements concerning the undersigned that are made in the
Company's Shelf Registration Statement or the related prospectus in reliance
upon the information provided in this Notice and Questionnaire.
If the Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item 3 below after the date on which such
information is provided to the Company, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Registration Rights
Agreement.
QUESTIONNAIRE
Please respond to every item, even if your response is "none." If you need
more space for any response, please attach additional sheets of paper. Please be
sure to indicate your name and the number of the item being responded to on each
such additional sheet of paper, and to sign each such additional sheet of paper
before attaching it to this Questionnaire. Please note that you may be asked to
answer additional questions depending on your responses to the following
questions.
If you have any questions about the contents of this Questionnaire or as
to who should complete this Questionnaire, please contact the General Counsel of
the Company at telephone number: (000) 000-0000.
The undersigned hereby provides the following information to the Company
and represents and warrants that such information is accurate and complete:
1. Your Identity and Background as the Beneficial Owner of the Registrable
Securities.
(a) Your full legal name:
____________________________________________________________________
(b) Your business address (including street address) (or residence if no
business address), telephone number and facsimile number:
Address:__________________________________________________________________
__________________________________________________________________________
Telephone No.:____________________________________________________________
Fax No.:__________________________________________________________________
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(c) Are you a broker-dealer registered pursuant to Section 15 of the
Exchange Act?
|_| Yes.
|_| No.
(d) If your response to Item 1(c) above is no, are you an "affiliate" of
a broker-dealer registered pursuant to Section 15 of the Exchange
Act?
|_| Yes.
|_| No.
For the purposes of this Item 1(d), an "affiliate" of a registered
broker-dealer includes any person that directly, or indirectly
through one or more intermediaries, controls, or is controlled by,
or is under common control with, such broker-dealer, and does not
include any individuals employed by such broker-dealer or its
affiliates.
(e) Full legal name of person through which you hold the Registrable
Securities (i.e., name of your broker or the DTC participant, if
applicable, through which your Registrable Securities are held):
Name of Broker:_____________________________________________________
DTC No.:____________________________________________________________
Contact person:_____________________________________________________
Telephone No.:______________________________________________________
2. Your Relationship with the Company.
(a) Have you or any of your affiliates, officers, directors or principal
equity holders (owners of 5% or more of the equity securities of the
undersigned) held any position or office or have you had any other
material relationship with the Company (or its predecessors or
affiliates) within the past three years?
|_| Yes.
|_| No.
(b) If your response to Item 2(a) above is yes, please state the nature
and duration of your relationship with the Company:
____________________________________________________________________
____________________________________________________________________
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3. Your Interest in the Registrable Securities.
(a) State the type and amount of Registrable Securities beneficially
owned by you:
____________________________________________________________________
State the CUSIP No(s). of such Registrable Securities beneficially
owned by you:
____________________________________________________________________
(b) Other than as set forth in your response to Item 3(a) above, do you
beneficially own any other securities of the Company?
|_| Yes.
|_| No.
(c) If your answer to Item 3(b) above is yes, state the type, the
aggregate amount and CUSIP No. of such other securities of the
Company beneficially owned by you:
Type:_______________________________________________________________
Aggregate amount:___________________________________________________
CUSIP No.:__________________________________________________________
(d) Did you acquire the securities listed in Item 3(a) above in the
ordinary course of business?
|_| Yes.
|_| No.
(e) At the time of your purchase of the securities listed in Item 3(a)
above, did you have any agreements or understandings, direct or
indirect, with any person to distribute the securities?
|_| Yes.
|_| No.
(f) If your response to Item 3(e) above is yes, please describe such
agreements or understandings:
____________________________________________________________________
____________________________________________________________________
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4. Nature of your Beneficial Ownership.
(a) Check if the beneficial owner set forth in your response to Item
1(a) is any of the below:
(i) A reporting company under the Exchange Act. |_|
(ii) A majority-owned subsidiary of a reporting company under the
Exchange Act. |_|
(iii) A registered investment fund under the 0000 Xxx. |_|
(b) If the beneficial owner of the Registrable Securities set forth in
your response to Item I (a) above is a limited partnership, state
the names of the general partner(s) of such limited partnership:
____________________________________________________________________
____________________________________________________________________
(i) With respect to each general partner listed in Item 4(b) above
who is not a natural person and is not publicly-held, name
each shareholder (or holder of partnership interests, if
applicable) of such general partner. If any of these named
shareholders are not natural persons or publicly-held
entities, please provide the same information. This process
should be repeated until you reach natural persons or a
publicly-held entity.
______________________________________________________________
______________________________________________________________
(c) Name your controlling shareholder(s) (the "Controlling Entity"). If
the Controlling Entity is not a natural person and is not a
publicly-held entity, name each shareholder of such Controlling
Entity. If any of these named shareholders are not natural persons
or publicly-held entities, please provide the same information. This
process should be repeated until you reach natural persons or a
publicly-held entity.
(i) (A) Full legal name of Controlling Entity(ies) or natural
person(s) who has/have sole or shared voting or dispositive
power over the Registrable Securities:
____________________________________________________________________
____________________________________________________________________
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(B) Business address (including street address) (or residence
if no business address), telephone number and facsimile number
of such person(s):
Address:_____________________________________________________
_____________________________________________________________
Telephone No.:_______________________________________________
_____________________________________________________________
Fax No.:_____________________________________________________
_____________________________________________________________
(C) Name of shareholders:
_____________________________________________________________
(ii) (A) Full legal name of Controlling Entity(ies):
_____________________________________________________________
(B) Business address (including street address) (or residence
if no business address), telephone number and facsimile number
of such person(s):
Address:______________________________________________________
______________________________________________________________
______________________________________________________________
Telephone No.:________________________________________________
______________________________________________________________
______________________________________________________________
Fax No.:______________________________________________________
______________________________________________________________
______________________________________________________________
(iii) Name of shareholders:
______________________________________________________________
______________________________________________________________
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5. Plan of Distribution.
Except as set forth below, the undersigned (including its donees or
pledgees) intends to distribute the Registrable Securities listed above in Item
3 pursuant to the Shelf Registration Statement only as follows (if at all): Such
Registrable Securities may be sold from time to time directly by the undersigned
or, alternatively, through underwriters, broker-dealers or agents. If the
Registrable Securities are sold through underwriters, broker-dealers or agents,
the Selling Securityholder will be responsible for underwriting discounts or
commissions or agents' commissions. Such Registrable Securities may be sold in
one or more transactions at fixed prices, at prevailing market prices at the
time of sale, at varying prices determined at the time of sale or at negotiated
prices. Such sales may be effected in transactions (which may involve block
transactions) (i) on any national securities exchange or quotation service on
which the Registrable Securities may be listed or quoted at the time of sale,
(ii) in the over-the-counter market, or (iii) in transactions otherwise than on
such exchanges or services or in the over-the-counter market. The Selling
Securityholder may pledge or grant a security interest in some or all of the
Registrable Securities owned by it and, if it defaults in the performance of its
secured obligations, the pledgees or secured parties may offer and sell the
Registrable Securities from time to time pursuant to the prospectus. The Selling
Securityholder also may transfer and donate the Registrable Securities in other
circumstances in which case the transferees, donees, pledgees or other
successors in interest will be the selling securityholder for purposes of the
prospectus.
State any exceptions here:
________________________________________________________________________________
________________________________________________________________________________
Note: In no event will such method(s) of distribution take the form of an
underwritten offering of the Registrable Securities without the prior written
agreement of the Company.
The undersigned acknowledges its obligation to comply with the provisions
of the Exchange Act and the rules thereunder relating to stock manipulation,
particularly Regulation M thereunder (or any successor rules or regulations), in
connection with any offering of Registrable Securities pursuant to the
Registration Rights Agreement. The undersigned agrees that neither it nor any
person acting on its behalf will engage in any transaction in violation of such
provisions.
The undersigned beneficial owner and selling securityholder hereby
acknowledges its obligations under the Registration Rights Agreement to
indemnify and hold harmless certain persons as set forth therein. Pursuant to
the Registration Rights Agreement, the Company has agreed under certain
circumstances to indemnify the undersigned beneficial owner and selling
securityholder against certain liabilities.
In accordance with the undersigned's obligation under the Registration
Rights Agreement to provide such information as may be required by law for
inclusion in the Shelf Registration Statement, the undersigned agrees to
promptly notify the Company of any inaccuracies or changes in the information
provided herein that may occur subsequent to the date hereof at any time while
the Shelf Registration Statement remains effective.
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All notices to the beneficial owner hereunder and pursuant to the
Registration Rights Agreement shall be made in writing to the undersigned at the
address set forth in Item 1(b) of this Notice and Questionnaire.
By signing below, the undersigned acknowledges that it is the beneficial
owner of the Registrable Securities set forth herein, represents that the
information provided herein is accurate, consents to the disclosure of the
information contained in this Notice and Questionnaire and the inclusion of such
information in the Shelf Registration Statement and the related prospectus. The
undersigned understands that such information will be relied upon by the Company
in connection with the preparation or amendment of the Shelf Registration
Statement and the related prospectus.
Once this Notice and Questionnaire is executed by the undersigned
beneficial owner and received by the Company, the terms of this Notice and
Questionnaire, and the representations and warranties contained herein, shall be
binding on, shall inure to the benefit of and shall be enforceable by the
respective successors, heirs, personal representatives and assigns of the
Company and the undersigned beneficial owner. This Notice and Questionnaire
shall be governed in all respects by the laws of the State of New York, without
giving effect to rules governing the conflict of laws.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or
by its duly authorized agent.
NAME OF BENEFICIAL OWNER:
____________________________________________
(Please Print)
Signature:__________________________________
Date:_______________________________________
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND
QUESTIONNAIRE TO C&D TECHNOLOGIES, INC. AS FOLLOWS:
C&D Technologies, Inc.
0000 Xxxxx Xxxxxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attention: General Counsel
A-8
